UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES – Speech

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The Board found EERA protects on its face Firtha’s communication to the Academic Senate that she and another employee lost their department chair positions in retaliation for safety complaints. (City of Santa Maria (2020) PERB Decision No. 2736-M, p. 26.) If an employer challenges the accuracy of speech, the employer faces a heightened burden, and it must prove by clear and convincing evidence that the speech was maliciously false, meaning that the speaker either knew of its falsity or recklessly disregarded whether it was true or false. Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice. The District’s assertion that Brown believed the comments were untrue does not establish by clear and convincing evidence that the statements were maliciously false. (pp. 23-24.)