I have no qualms with either the district court's or the Ninth Circuit's opinion here. It doesn't violate the First Amendment to instruct someone not to contact any witnesses about the pending investigation into that person's alleged work misconduct regarding that investigation. Seems entirely right.
I was nonetheless struck by the penny ante nature of the alleged workplace misconduct here.
Todd Roberts' employer lets people take unpaid time off, but says they need to make every effort to clear such absences in advance. Makes sense. One day, Mr. Roberts says he's going to miss work because he has some kid stuff to do. But it turns out that he was just taking a day off and hanging out on the Oregon coast.
Okay. That violates the policy. The guy clearly needs a good talking to. Clearly he doesn't get paid for the day, and maybe, if you're somewhat mean, you suspend him for a week, and maybe even tell him that if he does it again, the penalty will be more severe. It seems from the briefs that no one's arguing anything other than it's this guy's first time making up an excuse to take a day off. And it's not like there's anything that's super important happening that particular day, or that the guy's work involves something mission critical or anything like that.
But, no. The guy's employer puts the guy on paid administrative leave for three months while it hires two lawyers to conduct an investigation into the alleged excuse, and then fires the guy once the investigation concludes (seemingly correctly) that the guy was just hanging out rather than dealing with his kid's soccer registration or the like.
Seems harsh, no?
I mean, if it's okay for the guy to take the day off work to sign up his kids for soccer and stuff like that, it doesn't seem all that significant that the guy was actually taking the day off to go fishing (or whatever). If the guy's taking too many days off, tell him to stop. If he's not, leave him be.
That's not a First Amendment issue or anything. It just seems like part of not being a jerk of an employer.
No?
