Office talk not always free speech

Employers often have to deal with disgruntled employees who regularly complain about their supervisor or others and about business issues.

In a recent case that arose within the context of state employment, an employee regularly complained about his supervisor and issued a memorandum to a superior official requesting that the department in which he worked be transferred out of the jurisdiction of that supervisor.

This memorandum proved to be the last straw. The employee was called in and given the option of resigning or being terminated. The employee elected to resign and later filed suit claiming that his free speech rights had been violated, that he was a whistle-blower under the Indiana statute and that he was wrongfully discharged under Indiana common law.

On the free speech guarantee, despite the fact the individual was a state employee, the court could not agree that his speech was protected under Article I, Section 9, of the Indiana Constitution simply because it was addressed to the state. The employee was clearly acting within the scope of his employment because he requested an improvement in his employment situation. This is a private interest. So free speech was not at issue.

On the whistle-blower issue, the employee did not exhaust the internal administrative remedies and chose to resign rather than be terminated. Hence, no claim.

The court reaffirmed that Indiana follows the doctrine of employment at-will under which employment may be terminated by either party at-will, with or without reason. None of the three exceptions applied in this case.

There was no "adequate independent consideration" for employment, no public policy exception existed and no promise had been made on which the employee relied to his detriment to impute an employment contract.

This case not only reaffirms Indiana's employment at-will doctrine but it also points out that even in public employment, an employee does not necessarily have a free speech right to criticize a supervisor or the way the department is organized solely for personal interests.

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Office talk not always free speech