Members of the Univeristy Community with Supervisory Responsibilities
The First Amendment in a Public University Workplace
Can a public employee criticize his or her employer without fear of discharge or discipline? Can a public employer discharge or discipline its employees for improper speech? These conflicting questions can only be answered on a case-by-case basis after balancing the competing interests of the employee and employer.
Public employees do not, merely as a result of their employment, relinquish their First Amendment right of free speech to speak out on matters of public interest and concern. The First Amendment generally protects a public employee’s speech on matters of public interest and concern, but a public employee’s work-related criticism of a personal nature may not be protected by the First Amendment.
The following case illustrates what the courts mean by public interest and concern. Marvin Pickering, a public school teacher, was discharged for writing a letter to the editor of a local newspaper criticizing the way in which the local board of education and the superintendent of schools had handled past proposals to raise new revenue for the schools. In 1968, the United States Supreme Court determined that his discharge was a violation of his constitutional right to free speech regarding an issue of public interest and concern.
A public employee’s right to voice criticism against his or her employer on an issue of public interest and concern must be balanced, however, against the public employer’s right to manage and control its own internal affairs. The U.S. Supreme Court has held that the First Amendment protects a public employee’s speech if it is on a matter of public interest and concern and the employee’s interest in expressing himself/herself is not outweighed by any injury the speech could cause to the employer’s interest in promoting the efficiency and effectiveness of the public services being performed by its employees. In other words, even though a public employee’s speech involves issues of public interest and concern, it can be restricted if the employer perceives that it may be disruptive in the workplace.
Questions about dealing with employees concerning the content of their speech are complex and must be handled carefully. Supervisors are encouraged to consult with Legal Counsel prior to taking action regarding such employees
Dos and Don'ts of Interviewing Applicants
Faculty and staff members in the University of Illinois community often participate in the hiring process by interviewing candidates, either individually or as part of a search committee. There are some general guidelines to keep in mind to assure a fair, non-discriminatory appointment process and to minimize the chance of a disappointed applicant bringing a successful legal challenge to the University’s hiring decision. Here are some pointers about questions you may and may not ask, organized by topic:
DO – You may ask if applicant meets minimum age requirements.
DON’T – You should not ask questions about an applicant’s age, date of birth, or dates of attendance or graduation from educational institutions.
DO – You may ask an applicant whether he/she is in position to submit proof of right to work in the United States.
DON’T – You may not ask questions about an applicant’s birthplace or the national origin of his/her parents or spouse.
DO – You may ask an applicant has been convicted (not just arrested) of a criminal offense. If this is to be pursued in your search, you should probably consult with the appropriate human resources office (academic or staff) or call the Office of University Counsel for advice about how to do this most appropriately.
DON’T – You should not ask general questions about an applicant’s arrest record.
DO – You may ask an about an applicant’s ability to perform job-related functions.
DON’T – You may not ask general questions that would tend to reveal disabilities or health conditions that do not relate to fitness to perform the job.
DO – You may ask whether an applicant has reliable transportation.
DON’T – You should not ask about an applicant’s home ownership, credit history, or vehicle ownership.
DO – You may ask whether any obligations, including family obligations, would prevent the applicant from meeting the work schedule of the position.
DON’T – You may not ask whether applicant is married, single, or divorced, inquire about a female’s maiden name; inquire about number of children or ask for ages of children; or inquire about an applicant’s lifestyle, sexual orientation or sexual preference.
DO – You may ask an applicant about availability to work weekends if working on Saturdays and/or Sundays is a bona fide requirement for the position.
DON’T – You should not ask applicant’s religious denomination or affiliation or whether applicant goes to church or belongs to a particular religion.
The best approach is to ask specific job-related questions and to avoid general questions that might tend to elicit information from an applicant about race, national origin, sex, sexual orientation, religion, disability, or age that might later leave the impression that the university made a discriminatory hiring decision.
Responsible Hiring: Checking References
Checking references of applicants before you make a hiring decision is both a good practice in terms of making sure you make an informed decision and increasingly important legally. Research shows that an alarmingly high percentage of applicants inflate their previous experience on resumes. Take the time to verify educational degrees and previous employment, especially the most recent job or two, including titles and responsibilities.
Beyond making sure that you have full information so you can make the best possible choice in filling a position, there are an increasing number of court decisions that find employers liable for negligent hiring and retention when the employer
The following list may help to improve the quality of your hiring decisions as well as to minimize your risks of liability for negligent hiring and retention.
- Look carefully at the applicant’s employment history and question any time gaps that are not fully explained.
- Check references. Verify positions, titles and responsibilities. Describe the position and ask about the “fit” of the person to those duties. Ask previous employers if they would hire the person again, given the opportunity. Ask if there are any other questions you should have asked.
- Keep notes of conversations (or communicate in writing) to document that you have investigated the candidate’s background and fitness for the position before hiring.
- In reference checks, request information about the employee that could reasonably present a risk of danger to the University or anyone the employee could foreseeably harm in the course of employment.
- The University checks criminal records for applicants for security sensitive civil service positions and other positions where this is legally required. Check with the Personnel Services Office for assistance with and information about these procedures. Ask for guidance in how to go about seeking disclosure from applicants of prior criminal convictions and for support in gathering information about the circumstances of any reported conviction.
Letters of Reference: Reluctant to Tell the Truth
Many people grapple with the fear of writing an honest letter of reference when the experience with an employee was negative. They worry about causing trouble (or fear being sued) at the same time they feel an obligation to be truthful. In this circumstance, there is an Illinois statute that can provide supervisors with some protection, the Employment Record Disclosure Act (1996).
The goal of the law is to protect employers from civil lawsuits when providing truthful, performance-related information in good faith about an employee or former employee in response to an employment reference inquiry. The law provides that an employer, or authorized employee or agent acting on behalf of an employer, who responds to an inquiry from a prospective employer with truthful written or verbal information or information that it believes in good faith, is immune from civil liability for the disclosure and the consequences of the disclosure. For the law to apply, the information must be:
- given to a prospective employer
- about a current or former employee
- related to job performance
- truthful or believed to be truthful
- disclosed in good faith
The law does not provide any protection if the information disclosed was known to be false or in violation of a civil right of the employee or former employee. When asked by a prospective employer to provide a reference for a current or past employee, stick to information that is related to job performance and truthful (or believed to be truthful). Not only is that sound management practice, this entitles you to a defense under Illinois law if a disgruntled employee sues over the contents of a letter of reference.
If you get telephone calls seeking references, you should follow the same guidelines: stick to good faith, truthful, job-related comments. It is always safe to provide the job title held by a person and dates of employment. If you have been asked to serve as a reference for a former employee, ask that person to give you a written consent (or waiver) signed by the employee. The Office of University Counsel can provide you with an appropriate form.
Before providing any information about an employee’s work performance, ask about the job title, the nature of the job, and the business in general and limit your comments to information about the employee’s ability to do that job. You should inform the prospective employer of any factual information you have indicating a risk of danger to the prospective employer or third parties. Be careful to report facts (or opinions based on facts) and do not offer rumors, gossip, or psychological analysis.
Sometimes supervisors ask about the risk of liability for defamation if providing information that a current or former employee may pose a threat to safety. These are relatively rare circumstances, and generally you should have advice from Legal Counsel in these situations. First, truth is a defense in a defamation case. The following guidelines, if followed, may also provide the basis for a legal defense to a defamation claim:
- you believed the information, in good faith, to be true;
- you had a legitimate business interest in making the statement;
- the statement was made in response to an appropriate request; and
- the information was disclosed only to individuals with legitimate need to know.
Progressive Discipline: Fairness and Legal Protections
One of the most difficult issues to handle in the employment area is discipline. The nature of the offense, the performance history of the employee involved, and the way similar incidents have been handled in the past are major considerations in the determination of appropriate disciplinary actions. University policies, civil service statutes, and union contracts generally require that the principles of corrective action and progressive discipline be followed. There are, of course, some actions that cannot be tolerated in the workplace, and for which immediate discharge is the only appropriate response. Civil service rules contain a list of prohibited actions that would warrant immediate discharge.
However, most workplace conduct that warrants correction calls for a progressive response, starting with information about the problem with advice about what change in behavior is sought, only later followed by more formal and serious actions. This lets employees know that there is a problem and provides information about how to succeed in the workplace. Only after giving the person notice of the perceived problem and the University’s expectations for more appropriate conduct are actions at the next level of seriousness taken if the unacceptable conduct persists or is repeated.
The levels of discipline under the civil service statute and rules are as follows: The first level is a verbal warning given to an employee. The second level of discipline is a written letter of reprimand or warning. Both the verbal and written warnings should inform the employee about the unacceptable conduct, the measures the employee should take to correct his/her conduct, and the further disciplinary action that will ensue if corrective measures are not taken. The third level is a suspension without pay for a period of time not to exceed 30 days under civil service rules. The use of increasing numbers of days off for successive infractions is a form of progressive discipline. The final level is discharge from the University.
An employee must be notified in writing of the reasons for a suspension or discharge. Suspensions are not subject to review by the Civil Service Merit Board. Discharge from employment from a civil service position must be based on “just cause.” “Just cause” has been defined as “some substantial shortcoming which renders continuance of employment detrimental to discipline and efficiency and something which the law and sound public opinion regard as good cause for termination of employment.”
Whether or not progressive discipline has been imposed may be part of this “just cause” analysis. At the request of an employee, the Merit Board will review a discharge to determine whether the employer had just cause to terminate an employee.
Different rules apply to academic professionals, tenured faculty and some members of unions under collective bargaining agreements. Consult the academic human resources office on your campus for guidance.
Union Election Campaigns: What Can You Say or Do
In the time period preceding an election to be conducted by the Illinois Educational Labor Relations Board, supervisors are subject to certain constraints regarding communications about the union.
What Supervisors Cannot Do Under The Illinois Educational Labor Relations Act:
- Promise employees, directly or indirectly, a pay increase, promotion, or any other benefit or special favor if they stay out of the union or vote against it
- Prevent employees from soliciting union membership during their free time on University premises as long as this does not interfere with work being performed by them or others. It is important that departments respond to requests for rooms for union meetings in the same manner as any other requests for meeting rooms for other non-departmental purposes.
- Threaten loss of jobs, reduction of income or discontinuance of any privileges or benefits to influence an employee to support or oppose the union. This includes statements to employees that they will suffer adverse consequences if they support or vote for the union.
- Ask employees whether they have signed or intend to sign a union card, attend union meetings, vote for the union, etc. This includes asking employees how they think other employees will react to the union.
- Call employees into a supervisor's office to discuss the employer's position on unionization, even though nothing coercive or improper is said.
- Conduct surveillance of employees to determine whether or not they are participating in union activities.
- Discriminate by giving an employee less favorable work assignments, denying a promotion or other benefits, etc., based on an employee's pro-union activities.
What Supervisors Can Do Under The Illinois Educational Labor Relations Act
- Supervisors may listen to information voluntarily provided by employees.
- Supervisors may respond to questions and discuss current conditions of employment at the U of I, and how these conditions compare with other universities.
- Supervisors are free to rebut any misstatements of fact made by the union.
- Supervisors may discuss the cost of union representation, such as payment of dues and fair share requirements, as long as these are "possibilities" and not "threats.”
- Supervisors may discuss the union election procedures, such as the fact that it takes a majority of employees who vote to elect a union.
- Supervisors are free to remind employees that the election will be held by secret ballot, conducted by officials of the Illinois Educational Labor Relations Board (IELRB).
In summary, one-on-one discussions and small group meetings between supervisors and bargaining unit employees are permissible provided they are not coercive (e.g., requiring the employee to come to the supervisor's office or interrogating the employee about his/her support for the union).
What Do I do About an Employee Who Makes Threats
If you feel unsafe, or if anyone in your immediate environment does, call the University police. If you are a supervisor and receive information indicating that an employee has been harassing or threatening or will harm someone, this should also be reported to the University police. You should also consult with personnel and other appropriate administrative offices to determine what investigation and response (including discipline) is required. Failure to report, investigate, and take appropriate corrective action may result in personal and institutional liability if some injury or other incident occurred that could reasonably have been prevented.