By Scott Tiedemann and Dalisai S. Nisperos
Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Dalisai Nisperos is an Associate in the San Francisco Office of Liebert Cassidy Whitmore. She represents and advises public sector agencies in all aspects of labor, employment, and education law. Ms. Nisperos earned her J.D. from the University of Pennsylvania Law School and her B.A. from the University of California, Berkeley.
Barone v. City of Springfield, Oregon, 902 F.3d 1091 (9th Cir. 2018).
Thelma Barone worked as a Community Service Officer (CSO) for the City of Springfield Police Department as a victim advocate and as a Department liaison to the City's minority communities. In 2015, Barone attended a Department-sponsored event entitled "Come Meet Thelma Barone from the Springfield Police Department." Barone was in uniform and was paid for her time. In response to a citizen's question about increasing complaints of racial profiling—Barone responded that she "had heard such complaints." The Department subsequently suspended Barone for dishonesty during the investigation of alleged incidents of misconduct unrelated to the community event, and required her to sign a Last Chance Agreement ("LCA") to return to work. The LCA prohibited Barone from saying or writing anything negative "related to the Department/Organization/City of Springfield or its Employees," but not from relaying complaints relating to discrimination or profiling by the Department.
The Department terminated Barone when she refused to sign the LCA. Barone sued, claiming that she was terminated in retaliation for exercising her First Amendment right to free speech at the community meeting, and that the LCA was an unlawful prior restraint on speech.
The Ninth Circuit found that Barone's comments at the community event were not protected by the First Amendment. Barone participated in the event as a paid, uniformed Department representative, had special access to the event because of her position, and was speaking about complaints she regularly received in the course of her duties. Because Barone commented in her role as a public employee, and not as a private individual, the Department could lawfully discipline Barone for the comments she made at the event.
However, the very broad terms of the LCA violated Barone's right to speak, as a private citizen, on matters of public concern, because it restricted Barone from speaking on topics unrelated to her job duties, and topics of concern to the general public, such as City services, employees, or elected officials or matters related to water quality, or tax and revenue policies. The part of the LCA that excluded complaints of discrimination or profiling was insufficient to address this problem.
Campbell v. City of L.A., 903 F.3d 1090 (9th Cir. 2018)
Approximately 2,500 police officers opted into two Fair Labor Standards Act collective actions claiming that the Los Angeles Police Department adopted a "pervasive, unwritten policy" discouraging the officers from reporting, and seeking compensation for, overtime work. After "preliminary certification" of the collective action and discovery, the City moved to decertify both actions on the grounds that the officers were not "similarly situated" within the meaning of the FLSA.
Announcing a new standard for evaluating a post-discovery motion to decertify an FLSA collective action, the Ninth...
