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Saturday, September 10, 2016

Can I Sue My Employer for Violating My Free Speech Rights under the First Amendment?

The First Amendment to the U.S. Constitution reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

If you work for a private employer you may not sue your employer for violating your free speech rights under the First Amendment of the U.S. Constitution,  “Constitution”,  not to be confused with the constitutions of individual states. The First Amendment establishes limits only on the government’s infringement of speech rights but not on a private employer’s curtailing of  speech. However, even if your employer is private entity, there are numerous laws in New Jersey that prohibits employers from retaliating against you for certain types of speech, such as certain union activity, whistleblowing, reporting illegal discrimination, or testifying in a court against the private employer. 

However, if you are a public employee such as a state or federal employee, then the First Amendment protects you in some instances from government retaliation for exercising free speech. If the speech is found to be protected, a government employer cannot retaliate against the employee by firing him or by another adverse employment action. 

Not all speech is protected under the First Amendment even for government employees, however, and the law is very complex as shown in the 2014 U.S. Supreme Court case of  Lane v. Franks,  et al., and a recent case decided Aug. 5, 2016, Stilwell v. City of Williams , 2016 BL 253758, 9th Cir., No. 14-15540, 8/5/16 . In this Arizona case,  heard by U.S. Court of Appeals for the Ninth Circuit,  a former city water department superintendent Ronnie Stilwell alleged that he was fired because he planned to testify in a co-worker's age discrimination case. 

A divided U.S. Court of Appeals for the Ninth Circuit held he can pursue a First Amendment-based retaliation claim. The Ninth Circuit rejected a lower court's ruling  that his retaliation claim under the Civil Rights Act of 1871 (42 U.S.C. § 1983) was barred by the Age Discrimination in Employment Act. The majority reasoned that the Age Discrimination in Employment Act, “ADEA”, should not be interpreted as barring First Amendment claims because the ADEA provides narrower protections than the First Amendment rights available through Section 1983 .

The  U.S. Supreme Court has heard numerous cases regarding the First Amendment rights of public employees. These issues will be further discussed on this site.  Not all public employee speech is protected, the speech must involve matters of sufficient “public concern” to be  protected speech under the First Amendment. However, what is considered of “public concern” is a thorny issue to be decided before one can prevail in these types of claims.

What You Can Do

If you are a public or private employee in New Jersey, and your employer disciplined you or retaliated against you for reasons that you believe may have violated your free speech rights, or for whistleblowing or testifying against your employer, it is important to consult with an aggressive and experienced employment attorney. If you believe you are being subjected to such  unlawful workplace retaliation or discrimination, please contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.


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