Employee’s Allegedly Dishonest Comments Are Protected by the MMBA Unless the Employer Can Prove the Employee Knew the Comments Were False.

Category: Client Update
Date: Dec 3, 2018 06:56 PM

Under the Meyers Milias Brown Act (“MMBA”), employee statements related to the terms and conditions of employment are legally protected.  They lose the protection of the MMBA only if they are flagrant, defamatory, insubordinate, or made with malice such that they cause a “substantial disruption of or material interference with” an agency’s operations.

In this case, the County terminated employee and Union Chief negotiator, Wendy Thomas, because she allegedly made false statements in the course of pending litigation.  The County later investigated the statements and found them to be false.  The Union then filed an unfair labor practice charge claiming that the statements were protected by the MMBA and that the County unlawfully terminated Thomas in retaliation for her protected activity.

The PERB Board reversed the Administrative Law Judge (“ALJ”) decision dismissing the Union’s charge.  Instead, the Board found that the County had not proven that the employee knew that the statements at issue were false.  Thus, PERB found the statements were indeed protected by the Act.

PERB relied on its prior decision in Chula Vista Elementary School District (2018) PERB Decision No. 2586, which found that an employer must prove that an employee was knowingly dishonest (that the employee acted with “actual malice”):

A party claiming employee speech is unprotected [because the speech is false] therefore must prove that (1) the employee’s statement was false and (2) the employee made the statement ‘with knowledge of its falsity, or with reckless disregard of whether it was true or false.’ This standard focuses on the employee’s subjective state of mind, not on whether a reasonable person would have investigated before making the statement. Even gross or extreme negligence as to the statement’s truth is insufficient to prove the actual malice necessary to strip employee speech of statutory protection.

(internal citations omitted).  The employer must prove the employee was dishonest under the “clear and convincing” standard, a higher standard of proof than the “preponderance of the evidence” standard.

PERB found the evidence did not show that Thomas was intentionally dishonest in making the statements at issue.  Among other things, the PERB Board found that in describing her worksite as “remote” and “substandard,” Thomas made statements of opinion which PERB did not find to be knowingly false.

Thomas had also stated that her County-issued vehicle had been removed from its usual parking spot even though Thomas had possession of the vehicle keys.  The County claimed that Thomas omitted the material fact that the car was inoperable so the keys were not needed. 

PERB rejected the ALJ’s finding that Thomas’ assertion was maliciously false.  The evidence confirmed that the County moved Thomas’ vehicle without notifying her or asking her for the keys.  PERB also reasoned that because Thomas experienced other County actions that she may have viewed as retaliatory, Thomas’ assertions more likely reflected her genuine belief that the County’s actions were inappropriate.

PERB found that the evidence did not support the County’s position that Thomas made these statements knowing that they were false.  Therefore, Thomas’ statements were indeed protected by the MMBA, and PERB found the County violated the MMBA’s prohibitions on retaliation when it terminated her for making these statements. 

SEIU v. County of Riverside, (2018) PERB Dec. No. 2591-M

As this decision indicates, the MMBA is very protective of employee comments relating to terms and conditions of employment.  Proving that an employee’s comments lose the protection of the Act because they were intentional or reckless requires clear and convincing evidence that the employee knew the statements to be false.  LCW attorneys are available to advise agencies in evaluating whether employee conduct is protected by the MMBA.

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