Articles Posted in First Amendment

In the midst of increased public scrutiny concerning allegations of a toxic work environment, NBC has announced that it will not seek to enforce any non-disclosure agreements (“NDA”) against any former or current NBC employee who wishes to speak openly about incidents of sexual harassment.  The announcement comes in response to recent reports that several former NBC employees are unwilling to speak publicly about their experiences of sexual harassment at NBC in fear that they would be breaching the NDA’s if they did so. While NBC maintains that the NDA agreements never prohibited employees from speaking out against sexual harassment, at least a few employees have been reported to believe differently.  The announcement should resolve any confusion of whether former or current NBC employees’ can speak freely about the NBC work environment. It also serves as a reminder to all employers of the significant legal risks associated with attempting to use NDA’s to keep employees silent about issues of workplace discrimination  


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The #Metoo movement has encouraged many victims of sexual harassment to openly and publicly discuss their experiences in working in a hostile work environment.  For far too long, victims of sexual harassment have remained silent and not hold the perpetrators responsible for the grave harms caused by their actions.  Many times, the decision to stay silent is voluntary. Victims would rather try to ignore what happened for fear that they will not be believed, their employer will not take any action, or even worse, suffer retaliation.  In fact, according to the report of the 2016 Task Force on the Study of Harassment in the Workplace, the least common response of a victim of harassment is to take some form of formal action, whether it be report the harassment internally or file a formal legal lawsuit.  In fact, approximately 75% of victims of sexual harassment will never talk to management, HR or a union representative about an incident of workplace sexual harassment.

Other victims of sexual harassment cannot speak freely about their experiences because they signed a written NDA contract with their former or current employer.  An NDA prohibiting an employee from discussing workplace sexual harassment is typically executed either when an employee starts his or her employment, or when the employment is separated.  When starting employment, many employers require the employee to sign employment agreements that include confidentiality of company trade secrets, proprietary information and other aspects of the employment that require confidentiality.  Some employers attempt to use these provisions to restrain current or former employees from disclosing incidents of workplace sexual harassment and deem them “confidential” under the NDA provision. While these confidentiality provisions in employment agreements are in most situations unenforceable as against public policy, many employees feel restrained by the provision and remain afraid to breach it.  Some employees are even afraid to speak to an employment attorney for advice and counsel concerning their rights under anti-discrimination laws. 

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The Third Circuit Court of Appeals has ruled in favor of a public employee who alleges she was terminated by her public employer for inquiring into a complaint that she had been illegally recorded during a conversation with a union leader.  In reversing the district court’s decision, the court reinforced the separation of a public employee’s speech in their capacity as a private citizen in comparison to what they say in their capacity as a public employee.  This case is a reminder that public employees do not waive their First Amendment rights by accepting public employment and have job protections when they engage in protected activity under the United States Constitution.  

In this case entitled Javitz v. County of Lucerne, the plaintiff, Donna Javitz’s was employed as the director of human resources for Lucerne County.  During her employment, Ms. Javitz’s alleges that she made a report to the district attorney that she had allegedly been illegally recorded when she met a union leader in her official capacity. The county manager told Javitz and the district attorney to drop the matter, but Javitz followed up with questions on the status of the investigation regarding the recording. Suddenly, her relationship with her employer became rocky and Javitz was abruptly terminated. Javitz claimed that her termination was in retaliation for reporting the alleged illegal recording to the district attorney. 

The county employer alleged that Javitz had been working within her capacity as a public employee when she was inquiring about the status of the investigation and therefore no First Amendment violation existed. The district court agreed and cited to the Lucerne County Code of Ethics as the source by which it found her conduct in reporting the illegal activity to be within her official capacity as a county employee. Because the action was within her duties as an employee, the District Court concluded that the report did not qualify as speech protected by the First Amendment. 

A recent federal court decision serves as a reminder of the extremely high burden a litigant has in order to close court proceedings from the public.  In our judicial system, the doors of the courthouse open in assuring the public’s right to access to the judicial process. This federal court decision is being considered by many as a victory for the public’s freedom to access judicial information.

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In the federal case, Silvka v. YMCA of the Pikes Peak Region, a Colorado District Court struck down the defendant employer’s motion for a gag order and a motion to restrict. In the opinion, Chief Judge Brimmer’s provided a thorough explanation and insight into the public’s right to have access to judicial proceedings. The order also reflected the core principle’s espoused in Professor Eugene Volokh’s objection to the motions raised by the YMCA; that the First Amendment and the common law assert a public right to access court proceedings whether civil or criminal in nature. 

The motion for a gag order came as a result of Silvka’s complaint against the YMCA of the Pikes Peak Region. The complaint alleged that a YMCA manager sexually harassed and forcibly groped the former employee and that the YMCA failed to conduct a proper investigation into her complaints.  The allegations of the sexual harassment lawsuit include a hostile work environment that involved employees binge drinking, and male upper level personnel abusing their power by coercing young female employees to have sex with them in order to advance in the organization. Silvka claimed to be the latest victim of this culture in her complaint. In response to the complaint and its publication by local news outlets in Colorado, the YMCA sought to impose a gag order fearing the complaint’s publication would prejudice a jury against them. 

The Second Circuit Court of Appeals issued a defeat to President Donald Trump and more importantly a victory for First Amendment Rights in July, finding that the President could not block individuals on the social media platform Twitter. In the matter, Knight First Amendment Institute at Columbia University v. Trump, — F.3d –, 2019 WL 2932440 (2d Cir. July 9, 2019), the Second Circuit upheld the Southern District of New York’s ruling that the President’s Twitter account was effectively a public forum.  Based on this finding, the Court held that President Trump could not restrict certain individuals’ access to his Twitter account because to do so would constitute “viewpoint discrimination” in violation of the First Amendment.

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In his opinion, Circuit Judge Barrington Parker highlighted that though the account was made in 2009, before President Trump was elected, the account has become at least temporarily a government-controlled account and qualifies as a public forum. The opinion noted that the account had been used for governmental purposes in the past. This was made evident when the account was used to announce meetings with foreign leaders, or when it was used to announce the nominations of high-ranking officials, like Christopher Wray as the new Director of the FBI. Because the account was used in an “official capacity” to make announcements regarding governmental activity, the Second Circuit found that the President was likewise acting “in the same capacity when he blocks those who disagree with him.”

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HOLMDEL, NEW JERSEY (MAY 9, 2019)–The high school teacher who was blamed for a yearbook censorship controversy in Wall Township in 2017 filed a motion in the Superior Court in Monmouth County on Thursday, seeking immediate relief from a Board of Education (BOE) policy that has blocked her from being able to tell her full story to the media.

In her original lawsuit filed on May 6, 2019, Susan Parsons alleged she was framed by members of the school administration as the person responsible for digitally altering a student’s 2017 yearbook photo to remove a “Trump: Make America Great Again” logo from his shirt, a narrative she was unable to refute due to an ongoing BOE media gag order.

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Susan Parsons seeks relief from restrictions on her ability to speak to media

HOLMDEL, NEW JERSEY (MAY 6, 2019)–Wall Township former yearbook advisor and teacher Susan Parsons, who was thrown into the center of a high profile high school yearbook controversy in 2017, filed a civil rights lawsuit in the Superior Court of New Jersey, Monmouth County on Monday against the Wall Township Board of Education (BOE) as well as Wall Township High School Superintendent Cheryl Dyer, seeking redress for violations of her First Amendment right to free speech.

New Jersey’s State Policy Prohibiting Discrimination in the Workplace is considered amongst many New Jersey employment lawyers as being one of the least protective of employee rights in the entire country.  Unfortunately, the newest revisions proposed by the Civil Service Commission do not provide any meaningful improvement for State employees governed under the State’s anti-harassment policy, and particularly with respect to how it conducts investigations of claims of sexual harassment.  In fact, when it comes to New Jersey’s controversial “strict confidentiality directive” policy, the proposed changes make the New Jersey’s anti-harassment policy even worse for victims of sexual harassment and discrimination.

Much has been written over the past week regarding the Civil Service Commission’s attempts to strengthen the strict confidentiality directive.  While the Civil Service Commission’s proposed revisions could worsen the penalties for breach, the current version of the strict confidentiality directive in effect continues to require incidents of sexual harassment from the public. What many of the news reports seem to have missed is the devastating impact of the current strict confidentiality policy has and continues to have on silencing victims of sexual harassment.

The current strict confidentiality directive in place expressly threatens state employees with discipline up to and including termination if the state employee exercises his or her constitutionally protected right to speak out about allegations of harassment within the state workplace. A state employee who makes a complaint of harassment or discrimination, or is requested to participate in a discrimination or harassment investigation, is required under current state regulations and practice to keep all aspects of the investigation confidential.  This means, for example, that if a state employee is the victim of sexual assault or harassment at her state job and she complains about it to the State’s EEO/AA office, she is forbidden under current regulations and practice to tell a lawyer, a co-worker or even her spouse anything about what happened.  The strict confidential directive remains in place and every state employee must abide by it or be subject to discipline.  N.J.A.C. 4A:7-3.1(j), states: