Publicity: Control Your Name, Voice, Picture, etc. Archives

“Do employees have a right of free speech?”

Published on February 15th, 2013 by Alan L Sklover

Question: I am a public servant, a teacher on Long Island, New York. 

Does my principal have the right to tell me not to talk to a particular student or employee? The particular principal actually sent the student to me and when she talked to me, he then told me that I had gone against his order, and I was sent home from my duties as teacher. 

Doesn’t this go against my First Amendment rights of free speech?

Long Island, New York

Answer: Dear Doug: You present an interesting question, and one that many people wonder about. Here is the correct analysis:       

1. Public employees – like yourself – have “free speech” rights at work; employees of “private employers” do not. This is because the First Amendment to the U.S. Constitution says that “Congress shall pass no law abridging the right of free speech.” This has been interpreted by the Courts as saying that governmental entities – like your school board – cannot limit free speech of their employees. Since “private employers” do not “pass any laws,” the Constitutional right of free speech does not apply to their regulation of their employees’ speech at work. 

2. However, as with all of our legal rights, the right to free speech has its limits. Whenever we have rights, we have reasonable limitations on those rights, as well. You have a right to marry, but not a right to marry ten people. You have a right to drink alcohol, but you cannot do so while you are piloting an airplane. You have a right to vote, but not in a state where you do not live. As you have probably heard, you have a right to free speech, but you cannot shout “FIRE!!!” in a crowded movie theater, as that would likely cause a potentially deadly stampede toward the theater doors.   

The lesson is this: freedom is precious, but it can also be abused. Thus, reasonable limits are deemed acceptable.  

3. Our Courts have held that the Constitutional right to free speech of public employees applies to valid “issues of public concern,” but not to issues arising out of daily duties. In a well-known case called “Pickering vs. Board of Education,” public school teacher Pickering was fired for writing a letter to a local newspaper critical of the local school board. The Court ordered the school board to reinstate Pickering as a teacher because Pickering had raised a legitimate matter of public concern, and  his statements were neither recklessly false nor ones that would tend to interfere with his performance of his job. 

On the other hand, in another well-known case called “Mt. Healthy vs. Doyle,” a teacher, Mr. Doyle, lost his job after he engaged in a hand gesture commonly called “giving someone the finger” to two students. The Court upheld this firing, even though “giving the finger” has been accepted by many other Courts as a kind of permissible “speech” in other contexts.   

4. So, it seems your “free speech” rights were not violated if it was the Principal’s reasonable judgment that his order was appropriate to maintaining an orderly school, or in the student’s interests. From what you wrote, it seems that the Principal had some reason for his direction to you not to speak with a particular student, even if you may believe he was wrong or he made a mistake. While you may disagree with how the matter was handled, and what was done, it seems that the Principal’s directive, and his sending you home for not complying with it, would be upheld. No violation of First Amendment rights here.  

Douglas, I hope this clarifies things for you on this subject, and helps you guide yourself accordingly in the future. Thanks for writing in. 

My Best to You,
Al Sklover

P.S.: We offer a Model Memo Objecting to Retaliation at Work. If interested, just [click here.] Delivered by Email – Instantly! 

P.P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.

“Can I stop my former employer from using my voice on its answering service?”

Published on November 2nd, 2011 by Alan L Sklover

Question: I was let go from my previous job in February, 2010. When I was let go, I informed the General Manager and the Human Resources Manager that I wanted my voice taken off the main answering machine, and his office answering machine.

The General Manager snickered, and I said, “If you want to pay me to use my voice, that’s fine.” He said, “No.” I gave him one week to remove it. As of this date, my voice is still there.

What can I do? What rights do I have, if any? Thank you.

Manteca, California

Answer: Dear C.M.: Here’s the story:      

1. First, California has a law prohibiting the use of a person’s voice without their prior consent. Probably because so many celebrities make their home in California, it has a strict law prohibiting the use of a person’s (a) name, (b) voice, (c) signature, (d) photograph, and (e) likeness. It is California Civil Code Section 3344(a). A few other states, including New York and Massachusetts, also have similar laws. California’s law imposes a penalty of the greater of (i) $750 or (ii) an aggrieved persons actual damages, on the wrongdoer.  

2. That said, it is my expectation that you did, in fact, give your prior consent when you were still an employee of the company. From what you have written, and from my own experience, it is my expectation that, when you placed your voice on the answering machines, you did, in fact, give your former employer “prior consent” to its use. I mean, surely when you recorded the message, you must have known it was going to be used. Can a person then, later, withdraw that consent, once it is given? The law does not say, but the use of the words “prior consent” in the law suggests that, once given, consent cannot be withdrawn in order to make any further use capable of characterization as “without prior consent.” The law, though, is not “black and white” on that issue.

3. However, I do suggest you make a formal, written request to your former General Manager, and cite this law, demanding they “Cease and Desist.” I strongly recommend that you send a stern letter to your former employer, citing this California law, formally demanding the use of your voice “cease and desist,” which means be discontinued. If you can get an attorney-friend to write such a letter for you, all the better. Just the thought of having to hire an attorney to defend against such a lawsuit, if brought, even in a Small Claims court, may well convince your former General Manager to cease his snickering, and just do what is right. In fact, sending the letter to the CEO or Board Chairman might just embarrass your former General Manager into acting more grown up than he has to date on this subject.

We do offer a Model Letter entitled “Cease and Desist Use of Name and Photo” that could easily be adapted to your circumstances. If interested, simply [click here].

C.M., I hope this is helpful. At a very minimum, there is personal satisfaction in standing up for yourself to a former employer who “snickers” when asked to engage in a simple task that would be nothing more than doing the “right thing.” I encourage you to do it.

Thanks for writing in; please help us by telling others of our blogsite, our Sklover On-Demand-Videos, and our helpful Model Letters, Memos, Checklists and Agreements.

Al Sklover

 Repairing the World,
One Empowered and Productive Employee at a Time ™ 

© 2011 Alan L. Sklover, All Rights Reserved.

“Former Employer Still Using My Name in Emails – Do I Have Any Recourse?”

Published on August 26th, 2008 by Alan L Sklover

Question: I resigned from my company a few weeks ago, but the company is still using my email address – which contains my name – as a means to obtain my previous business contacts. Is this legal? Can I protect my name from being used in this manner? What happens if negative emails are being sent out via my old email address?

Theresa, from Harrisburg, PA
(All names are changed)

Answer: From your letter, it sounds like the email address is something like this: I can’t give you a definitive answer because I am not licensed as an attorney in Pennsylvania. I can tell you that (a) it probably does not violate any laws (that is, laws passed by Pennsylvania’s state legislature), but (b) it probably does violate your several of your legal rights, especially the rights every one has to their name, their privacy and their reputation, that exist in what is called the “common law.”

Let’s discuss your rights, and their violations, one by one:

(1) Your Name: Use of someone else’s name (or photo) for commercial purposes is a violation of law in most states. You have every right to demand they cease doing so, and every right to get a Court Order directing them to stop doing so.

(2) Your Privacy: In most states, you are not considered to have a right to privacy when using the company’s emails for personal purposes. However, in this case, it is not your use of the company’s email for personal purposes that is in question, but their using your name to attract email traffic, that is, the exact opposite. For example, if I was an old friend trying to contact you, and came across your name in your company email address on Google, I would be tempted to send you a personal note. I believe the company’s continued use of your name in their email address invites such personal contact, and so does constitute an invasion of your privacy. In this, too, a Court would likely grant you an Order stopping them from doing so.

(3) Your Reputation: Reputation is one of the most valuable assets a person has. I am certain that if negative emails were sent out using your name in the email address, it would do you irreparable harm, perhaps for your entire life. For this, too, a Court would likely issue an Order directing their halting of using your name in their email.

I encourage you to send the owner(s) of the company a “Cease and Desist” letter, demanding that they immediately “cease and desist” from using your name in their outgoing email addresses, and send it by provable means, that is, email, FedEx, or both. Tell them they have 24 hours – no more – to comply with your demand, or you will hire an attorney to take them to Court, and in that Court proceeding you will demand they reimburse you for your legal costs. That should do the trick. If not, you might send them a copy of this Blog Answer. If necessary, you might ask a local attorney how much she or he would charge for a good “attorney’s letter,” or even to take the matter to local court.

We offer a Model Letter entitled “Cease and Desist Use of Name and Photo” that you can easily adapt to your circumstances. To obtain a copy, simply [click here].

You have protectable legal rights to your name, your privacy and your reputation. Try, first, to “help yourself” with your own letter. If that doesn’t work, consider hiring local counsel. But, no matter what you do, do not be afraid to stand up for what is rightfully yours; that would be the only error you could make.

Hope that helps. Please keep coming back to our Blogsite.

Best, Al Sklover

Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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