Decision 2586E – Chula Vista Elementary School District (Yvellez)

Employee speech, including emails, is generally protected if it relates to matters of legitimate concern to employees as employees, though it may lose its statutory protection in accordance with Rancho Santiago Community College District (1986) PERB Decision No. 602.

The Rancho Santiago standard encompasses two different tests to determine whether employee communications are protected. When an employer’s objection to employee speech is content-based, the speech is protected unless (1) it is demonstrably false, and (2) the employee knew the speech was false or acted with reckless disregard for whether it was true or false. When an employer’s objection to employee speech is conduct-based, e.g., applies to how the speech was made, the speech is protected unless it is so opprobrious, flagrant, insubordinate, or disruptive to workplace operations that it loses its statutory protection.

Concerns that public employers’ email systems are taxpayer-financed or that allowing employees to send intra-agency emails gives other employee recipients the false impression their employer endorses the email’s content do not constitute “special circumstances” justifying restrictions on employees’ right to engage in protected speech via their employer’s email system.

To establish a prima facie case of unlawful interference, the charging party must establish that the respondent’s conduct tends to or does result in some harm to employee rights granted under EERA. The charging party need not suffer an adverse effect; rather, where employer conduct would reasonably tend to discourage protected activity, the likely chilling effect may, itself, constitute unlawful interference.

Under Napa Valley Community College District (2018) PERB Decision No. 2563, all employees granted rightful access to their employer’s email system in the course of their employment have a presumptive right to use the email system to engage in EERA-protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances, necessary to

Concerns that public employers’ email systems are taxpayer-financed or that allowing employees to send intra-agency emails gives other employee recipients the false impression their employer endorses the email’s content do not constitute “special circumstances” justifying restrictions on employees’ right to engage in protected speech via their employer’s email system.

An employer does not commit unlawful interference when it investigates an employee based upon a facially valid complaint of misconduct, even if the alleged misconduct occurs during the employee’s exercise of arguably protected activity, provided that (i) the nature of the complaint legitimately calls into question whether the employee conduct was protected, and (ii) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. Once the employer has sufficient information to determine that the employee’s conduct did not lose its protected status, continuing the investigation is an unfair practice.

Unlawful interference where employer initiates investigation, and corresponding threat of discipline, based solely upon an employee’s email, not after receipt of a facially valid third-party complaint, without taking any time to factually investigate whether the email constituted protected activity.

In balancing the competing interests, interference with employee rights outweighs the employer’s proffered business justifications where the employer compounds its error by never informing the employee that it had concluded its investigation and would not impose discipline, thus leaving the employee in an uncertain state and further chilling his protected conduct.

To establish a prima facie case of retaliation, the charging party must show that: (1) the employee exercised rights protected by EERA; (2) the employer knew of the employee’s exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the adverse action because of the employee’s exercise of those protected rights.

Where an employer’s words or actions reveal that the employer took adverse action against an employee in response to his or her protected activity, such conduct serves as direct evidence of an unlawful motive connecting the protected activity and adverse action.

Where an employer’s words or actions reveal that the employer took adverse action against an employee in response to his or her protected activity, such conduct serves as direct evidence of an unlawful motive connecting the protected activity and adverse action.

In determining whether an employer’s action is adverse, the Board uses an objective test and will not rely upon the subjective reactions of the employee. The reasonable person test applies when the employer’s alleged adverse action is a threat.

Where the employer’s investigation notice stated the employee inappropriately used the employer’s email system to share derogatory information, a reasonable person may conclude from such notice that misconduct had already been found and discipline was forthcoming. In this case, such notice of an impending investigation is sufficiently unequivocal about future discipline to constitute an adverse action.

An investigation into alleged employee misconduct may constitute an adverse action against the investigated employee, regardless of whether disciplinary action ultimately results. Thus, an investigatory interview, occurring after the employer unequivocally accused the employee of misconduct and after the employer notified the employee it was considering imposing discipline, was an adverse action.

Where the employer’s investigation notice stated the employee inappropriately used the employer’s email system to share derogatory information, a reasonable person may conclude from such notice that misconduct had already been found and discipline was forthcoming. In this case, such notice of an impending investigation is sufficiently unequivocal about future discipline to constitute an adverse action.

An investigation into alleged employee misconduct may constitute an adverse action against the investigated employee, regardless of whether disciplinary action ultimately results. Thus, an investigatory interview, occurring after the employer unequivocally accused the employee of misconduct and after the employer notified the employee it was considering imposing discipline, was an adverse action.