UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

Single Topic for Decision 2591M

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To lose statutory protection, an employee’s speech must be maliciously untrue. Any party alleging that another party acted with “actual malice” must satisfy a heightened standard of proof by coming forward with “clear and convincing” evidence. Assertions largely based on opinion unlikely to lose protection under actual malice standard. Employee terminated for making allegedly unfounded assertions about working conditions in federal court litigation reinstated where statements found to be protected; employer did not show by clear and convincing evidence that employee exhibited actual malice in making assertions.