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Friday, September 30, 2016

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

As stated earlier on this site, 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 ( not to be confused with individual state constitutions) which establishes limits only on the government’s infringement of speech rights but not on a private employer’s curtailing of speech of its employees.

The  U.S. Supreme Court has heard numerous cases regarding the First Amendment rights of public employees. 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.

The U.S. Supreme Court Established a Balancing Test of  "Public Concerns" V. "Private Concerns" in 1968.

The U.S. Supreme Court first recognized that government employees could sue for retaliation for exercising speech rights in 1968 and set out the balancing test in the case of Pickering v. Board of Education, 391 U.S. 563 (1968).  The inquiry was that the interest of the government as an employer, in promoting the efficiency of the public services it performs through its employees, must be balanced against the interests of the employee as a citizen, if the employee comments on matters of public concern. Under this balancing test, the plaintiff employee must convince the court that the employee's purpose in speaking openly on a matter of public concern outweighs the government's interest in having sufficient control and efficiency in the workplace.

While there is not a bright line rule, some matters that were considered protected speech of government employees because of the "public concern" were a public school's allegedly racist policies, reasons for seeking tax revenues, and environmental, health and safety concerns. Speech related to issues of internal employment procedures and policies that do not touch on public concerns are usually considered unprotected speech by the government employee.

In 2014, The U.S. Supreme Court Held  That Truthful Testimony under Oath by a Public Employee Outside the Scope of His Ordinary Job Duties Is Speech as a Citizen for First Amendment Purposes.

On June 19, 2014,  Lane v. Franks,  573 U.S. __(2014),  the Supreme Court unanimously held that when a public employee testifies truthfully outside of the scope of ordinary job duties, he testifies as a private citizen and not as a public employee for purposes of First Amendment protections and that this remains the case even when the testimony relates to the public employee's job or is information that the employee learned through his employment with the public entity. 

The distinction between testimony as a public employee and as a private citizen is of critical importance in these types of First Amendment claims. Acting as a private citizen speaking on matters of public importance, a public employee is entitled to First Amendment protections, and those protections prevent public employers from firing or taking other adverse employment actions against their employees on the basis of that type of speech. 

In Lane v. Franks et al.,  a college appointed Edward Lane as the probationary director of Community Intensive Training for Youth (CITY), a statewide program for under-privileged youth that received federal funds. An audit of the program's expenses revealed that Alabama State Representative Suzanne Schmitz was on CITY's payroll, yet Schmitz was not reporting to CITY's offices for work. Schmitz had received over $170,000 from CITY but had provided virtually no work. When Schmitz refused to report for work as Lane directed, Lane terminated her. Her termination led to a federal investigation into her employment with CITY, and Lane later testified to a federal grand jury regarding his reasons for terminating her.

Following Lane's testimony, the College, and its then-president, Steve Franks, decided to cancel the CITY program all together and terminate Lane's employment. Lane filed a lawsuit in his individual and official capacity, asserting he was fired in retaliation for testifying against Schmitz, and he brought  First Amendment claims under § 1983 of the Civil Rights Act, alleging that his First Amendment rights to speak as a private citizen on matters of public concern had been violated by the firing. 

Because the content of Lane's testimony addressed matters he learned about as a result of his employment as CITY director, the lower court and the Eleventh Circuit found that Lane had testified not as a private citizen but rather as a public employee. As a public employee, the Eleventh Circuit held, Lane was entitled to no First Amendment protection when testifying.

The Supreme Court, in a unanimous decision June 19, 2014, rejected the Eleventh Circuit's reasoning. 

Writing for the Court, Justice Sonia Sotomayor, stated in a blistering opinion that:

"Almost 50 years ago, this Court declared that citizens do not surrender their First Amendment rights by accepting public employment. Rather, the First Amendment protection of a public employee's speech depends on a careful balance "between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). In Pickering, the Court struck the balance in favor of the public employee, extending First Amendment protection to a teacher who was fired after writing a letter to the editor of a local newspaper criticizing the school board that employed him. Today, we consider whether the First Amendment similarly protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities. We hold that it does.

...Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment. In rejecting Lane's argument that his testimony was speech as a citizen, the Eleventh Circuit gave short shrift o the nature of sworn judicial statements and ignored the obligation borne by all witnesses testifying under oath. ........When the person testifying is a public employee, he may bear separate obligations to his employer—for example, an obligation not to show up to court dressed in an unprofessional manner. But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee. ..

The content of Lane's testimony—corruption in a public program and misuse of state funds—obviously involves a matter of significant public concern. See, e.g., Garcetti, 547 U. S., at 425 ("Exposing governmental inefficiency and misconduct is a matter of considerable significance"). And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. "Unlike speech in other contexts, testimony under oath has the formality and gravity necessary to remind the witness that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others." ......We hold, then, that Lane's truthful sworn testimony at Schmitz' criminal trials is speech as a citizen on a matter of public concern....It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs."    Id.

The distinction for purposes of First Amendment protection between testimony as a public employee and as a private citizen is not always initially clear and requires a complex analysis. 

Fortunately for public employees in New Jersey, they do not have to rely upon a First Amendment balancing test of public concerns v. private interests if they were retaliated against for testifying against their employer, because there are a host of New Jersey statutes that prohibit both private and public employers from retaliating against employees who testify against them.

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, reporting discrimination, 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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