UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

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* * * Modified by Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 14 and Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, pp. 21-23, as recognized in SunLine Transit Agency (2024) PERB Decision No. 2928-M, pp. 18-19. PERB no longer follows a singular test for finding speech unprotected. Board now analyzes whether: (1) speech is proven, by clear and convincing evidence, to have been maliciously false; or (2) speech was sufficiently flagrant or insubordinate as to cause substantial disruption in the workplace, based on all relevant circumstances.* * *

An employee's newsletter articles criticizing the employers' administration is protected speech if it relates to matters of legitimate concern to employees as employees and is not opprobrious, flagrant, insulting, defamatory, insubordinate or fraught with malice as to cause substantial disruption of or material interference with school activities. Exaggerated and over stated language is not, by itself, enough where described events are widely known; pp. 12-13.