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Federal Courts recently decided two cases involving public employee First Amendment issues. In Lane v. Franks, the U.S. Supreme Court settled an important question of law –whether public employers who testify truthfully pursuant to a subpoena are protected from retaliation by their employer under the First Amendment. In Pekowsky v. Yonkers Bd. of Educ., Judge Cote of the Southern District of New York held that a union representative’s advocating on behalf of other union members was protected First Amendment speech. This two part series discusses the legal issues presented in those cases and the decisions’ implications. Part 1 discusses Lane v. Franks.
Lane v. Franks
Years ago, the Supreme Court set down a rule of law that citizens who work for the government do not automatically lose their constitutional rights. The Court, however, noted that the government, as an employer, has an interest in regulating its workplace. Accordingly, the Supreme Court held that when an employee seeks First Amendment protection for speech made in the workplace, Courts must balance the employee’s interest in the speech against the government’s interest in promoting an efficient workplace.
In 2006, the Supreme Court further defined the contours of First Amendment protection by establishing a two part test to determine whether speech by a pubic employee may be protected. First, Courts determine whether the employee “spoke as a citizen on a matter of public concern.” This test has been interpreted to mean whether the employee was speaking pursuant to her official duties or about something related to her job responsibilities. If the first test is satisfied, then the Court must determine whether the government was justified in treating the employee differently.
In Lane, the plaintiff was hired as director of a community college program. His responsibilities included decision making related to the program’s finances. When he was hired, the program was suffering financially so Lane conducted an audit. The audit revealed that an Alabama State representative was on the payroll, but was not reporting to work. After efforts to have the representative report to work, Lane fired her, after which the FBI opened an investigation into the representative. Lane testified at a grand jury and then, pursuant to a subpoena, he testified at the trial. He testified about the representative’s work and services performed. The jury could not reach a verdict, so Lane testified for a third time at a subsequent trial.
After Lane’s testimony, the college laid off 29 employees, including Lane. But, the college rescinded all but two layoffs, one of which was Lane. Lane sued arguing that he was terminated because of his testimony, in violation of the First Amendment. The trial Court dismissed the case holding that Lane testified as part of his job duties because he learned about the information in his testimony from serving as director. The Eleventh Circuit Court of Appeals agreed.
The Supreme Court, however, disagreed and reversed. The Court noted that “[t]here is considerable value … in encouraging, rather than inhibiting, speech by public employees.” The Court then looked at the speech in question – the truthful testimony – and found that it is “clearly” speech as a citizen on a matter of public concern. The Court squarely 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. That is so even when testimony relates to his public employment or concerns information learned during that employment.” The Court made the determination because all citizens have a duty to testify truthfully. In other words, testifying truthfully is not an obligation one has solely because of one’s employment. The critical question is whether the speech is “ordinarily within the scope an employee’s duties.”
The Court further found that Lane’s speech was a matter of public concern. Corruption in a publicly funded program is clearly a “significant public concern.” In concluding that Lane’s speech was protected, the Court noted that the defendants could not show any government interest in regulating the speech which outweighed Lane’s right to testify truthfully.
The importance of the Lane decision cannot be understated. The Supreme Court has given reassurance to public employees that they should not be afraid to testify truthfully about matters related to the workplace. The Court noted, however, that the rule is not without potential exception, such as, for instance, when a police officer testifies as a routine part of his duties.
If you have questions about the First Amendment, public employee rights, or the Lane decision, contact the employment lawyers at Famighetti & Weinick. Check back for Part 2 of the discussion which reviews a recent case analyzing First Amendment protection for public employees’ union activity.
Citations in this article are to Lane v. Franks, 573 U.S. __ (2014).
Famighetti & Weinick, PLLC
Many employees think that “whistleblowing” in the workplace is widely protected. However, New York’s primary whistleblower statute, Labor Law 740, is very narrow and only protects a very specific set of whistleblowing activities. Although the requirements to prove such claims at trial have not changed nor has scope of the protections changed, New York’s highest court recently clarified the law and made it slightly easier for plaintiff’s to allege a whistleblower claim and to get their foot in the door of the courthouse.
New York’s Labor Law (Section 740) prohibits employers from retaliating against employees who disclose or threaten to disclose a practice of the employer which is in violation of the law and which “creates and presents a substantial and specific danger to the public health or safety or … constitutes health care fraud.” In other words, an employer acting in violation of the law is not enough to trigger workers’ protections. Rather, the employer’s conduct must also create a danger to public health or safety.
In Webb-Weber v. Community Action for Human Servs., Inc., New York’s highest Court, the Court of Appeals, discussed the “violation of the law” prong of the statute. The question presented was whether workers must specifically identify the “law, rule or regulation” that the employer violated at the time the lawsuit is filed with the court. The Court noted that employees are not required to identify the specific violation of law when they make their complaint so it makes sense that plaintiffs should not be required to identify the law when filing their lawsuit in court. The Court noted, however, that employees are still ultimately required at trial to prove that the employer actually violated a law and that the violation caused harm to public health or safety.
In sum, the Court of Appeals did not expand the scope of New York’s very limited whistleblower statute, but it made it slightly easier for wrongfully terminated employees to have their day in court.
If you believe you’ve been retaliated against for whistleblowing, contact the employment lawyers at Famighetti & Weinick for a free consultation.
Famighetti & Weinick, PLLC
This week, New York City implemented legislation to provide the same workplace protections to unpaid interns which paid employees have enjoyed for years.
Last week, a New York Appellate Court in Manhattan upheld a judgment in an employment discrimination case awarding the plaintiff $1.2 million in punitive damages and $400,000 in compensatory damages, for a total award of $1.6 million. The plaintiff sued her former employer for violations of the New York City Human Rights Law, including for religious and sexual orientation discrimination.
According to the decision, the plaintiff worked as a chef in a restaurant. The evidence showed that the defendant held weekly prayer meetings at the restaurant which the staff believed were mandatory to attend. Further, the evidence showed that the defendant said on multiple occasions that homosexuality is a sin, gay people were going to hell, and other offensive anti-homosexual comments. Additionally, the evidence showed the defendants retaliated against the plaintiff after she objected to the discrimination.
The Court confirmed that the standard under the City Human Rights Law is different than under the State laws. It rejected the defendants’ argument that the plaintiff must have shown that the conduct was “severe and pervasive” and noted that the State law is more restrictive than the City.
The Court further noted that the $400,000 award for emotional distress did not “materially deviate” from awards in other cases and that the $1.2 million punitive damage award was not grossly excessive because of the extent of the discriminatory conduct shown by the evidence.
In sum, the decision is a strong reminder that the New York City Human Rights Law does not tolerate discrimination in the workplace and that employers found liable for discrimination may face significant damages awards.
If you think you’re facing discrimination in the workplace, the employment lawyers at Famighetti & Weinick, PLLC may be able to help. Contact us at 631-352-0050 or linycemploymentlaw.com
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