Section 6 Pickering Balancing Test

• Library: Employer-Employee Law 2008

If the employee speaks as a citizen and the speech relates to a matter of public concern, the court must weigh the interest of the employee “in commenting upon matters of public concern” against the interest of the employer “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will County, Ill.,
391 U.S. 563, 568 (1968); Rankin v. McPherson, 483 U.S. 378, 384 (1987). The Pickering balance test is for the court, though it may rest on predicate facts found by the jury concerning disruption in the workplace. Dunn v. Carroll, 40 F.3d 287 (8^th Cir. 1994); Porter v. Dawson Educ. Serv. Coop., 150 F.3d 887 (8^th Cir. 1998); Belk v. City of Eldon, 228 F.3d 872 (8^th Cir. 2000). The court applies the balancing test to the speech that the employer reasonably believed the employee made, not the speech the jury found was made. Waters v. Churchill, 511 U.S. 661 (1994) (plurality); Tindle v. Caudell, 56 F.3d 966 (8^th Cir. 1995). If the employer fails to present evidence that the employee’s speech created an actual or potential disruption in the workplace, the court does not need to reach the Pickering analysis...