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Vol41N3 SpeakingOutInVol41N3 Commentary by bbanasik


									                  Although public
                  employees retain the

                  right of free speech
                  in the workplace,
                  that speech must be
                  outside the scope of
                  their official duties
                  and must regard
                  some legitimate public

                  Speaking Out in the Workplace

                                              by R. Scott Oswald

                                              Public sector employees do not check the constitutional right of free
                                              speech at the door when they enter public service. According to the Supreme
                                              Court, a public employer cannot infringe on constitutionally protected rights
                                              as a condition of employment. In the course of their employment, employees
                                              who speak out on waste, fraud, abuse, or illegal activity and then face retalia-
                                              tion as a result are protected from retaliation by 42 U.S.C. § 1983.
                                                   Signed into law in 1871 to combat the adverse treatment of African
                                              Americans following the Civil War, Section 1983 creates a private cause of
                                              action for those who are deprived of their constitutional rights under the color
                                              of state law. Over the years Section 1983 has been used as a tool to protect
                                              public sector employees who are deprived of a constitutional right, such as free
                                              speech, by their employers.
                                                   Both public sector managers and employees should be aware of Section
                                              1983’s ramifications. Employers should appreciate the consequences of the
                                              statute to avoid potential liability, and employees should know when their
                                              speech is protected and what redress is available in the event of retaliation.
                                              Section 1983 jurisprudence is far too vast to completely address here, so I will
                                              focus on what is considered protected speech and who can be sued, as well as
                                              the implications of liability.

                                              Claims Under Section 1983
                                              The federal courts require a Section 1983 claim to include:
                                               1. that an employee speaks on a matter of legitimate public concern
                                               2. that the employee speaks as citizen, not as a public employee

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  3. that the employer takes an                In 2006 the Supreme Court             purposes of the 11th Amendment,
     adverse action against the           clarified what it means to speak as a      state agencies are usually viewed as a
     employee as a result of the          citizen in the seminal case of Garcetti    state’s alter ego and therefore enjoy
     employee’s protected speech,         v. Ceballos. Distilling the Supreme        the same protections as the state
     such as termination or demotion.     Court’s opinion down to its ultimate       itself. For example, courts have found
                                          holding, an employee must speak            that in certain circumstances such
     The first element—that an            outside the scope of her official job      state agencies as police departments
employee’s speech is on a matter of       duties. When the Supreme Court             and universities are immune from
legitimate public concern—may seem        considered the facts of the case the       suit under Section 1983. However,
a bit amorphous, but it is easily ful-    focus of its analysis was whether the      local municipalities are not generally
filled in most cases. Speech regarding    plaintiff’s speech was in furtherance      considered alter egos of the state and
a matter of legitimate public concern     of his job duties. The fact that the       can be sued under Section 1983.
is speech designed to bring a breach      plaintiff’s official job duties specifi-        Public managers also can be
of the public trust or wrongdoing to      cally required him to investigate and      sued under certain circumstances.
the attention of the public.              report on the very issue his speech        If an aggrieved employee attempts
     Matters such as the misap-           involved meant that he was speaking        to sue his manager in her official
propriation of public funds, waste,       as a public employee, not as a citizen.    capacity, then that manager will
fraud, and inefficient management
have qualified as matters of legitimate
public concern. An employee speak-        Speech regarding a matter of legitimate public concern
ing on a matter that he reasonably
believes is illegal or fraudulent is
                                          is speech designed to bring a breach of the public trust
within the protections of the statute     or wrongdoing to the attention of the public.
provided the other elements are met.

Speaking as a Citizen
Employees must not only speak on
matters of legitimate public concern;          The Supreme Court’s holding           likely enjoy immunity. A suit against
they also must speak as citizens.         may appear cut and dry, but a fact         managers, who were acting in their
Although an employee still retains        specific case-by-case analysis is neces-   official capacities, is not really a suit
free speech rights, not all speech is     sary to determine if an employee is        against the individual. Rather, it is a
protected. The courts are reluctant to    speaking as a citizen or not. This         suit against the manager’s office and
deprive government employers of all       analysis can turn on specific and          therefore simply synonymous with
control over their employees’ conduct     seemingly minute details, but the          the state.
in the workplace.                         more an employee speaks outside of              However, public managers are
     Public employers cannot provide      regular reporting channels or goes         not completely immune. Managers
efficient management and distribu-        beyond her official job description,       can still be sued under two different,
tion of public services if they have no   the more likely she will be speaking       but similar theories. First, managers
control over employees. Obviously, a      as citizen, not as an employee.            can be sued in their official capaci-
government office cannot operate effi-                                               ties for prospective relief. Prospective
ciently if every employment decision      Who Can Be Liable Under                    relief, often referred to as equitable
runs afoul of the constitution. To        Section 1983?                              relief, is an order from the court
strike a balance between protecting       There are constitutional limitations on    that will place the employee back in
legitimate constitutional speech and      who can be held liable under Section       a position as though the retaliation
efficient government operation, the       1983. The 11th Amendment of the            never occurred.
courts have required that employees       Constitution prohibits a citizen from           Courts have incredibly broad
must speak as a citizen to qualify for    bringing suit against a state and state    powers to fashion nonmonetary relief
Section 1983’s protections.               agencies in federal court. For the         to remedy the harm an employee

                                                                                          The Public Manager   |   Fall 2012   71
             suffered. Usually this will take the       position as if the retaliation never        further retaliation. In lieu of rein-
             form of reinstating the employee           occurred, often calculated by the           statement, a court can award front

             to his job. Second, managers and           salary and value of the benefits lost       pay, which is a sum of money equal to
             supervisors can be sued in their           from the time of termination, offset        future lost income resulting from the
             personal capacities. In such cases,        by any salary from new employ-              termination.
             managers are acting as individu-           ment, to the date of judgment. This              Public employers should be
             als, not as representatives of the         is often described as “making the           aware that taking an adverse action
             state. Managers’ personal assets are       plaintiff whole.”                           against an employee for speaking
             therefore vulnerable if they are held           In certain circumstances puni-         on matters of public concern in the
             liable.                                    tive damages are available when a           workplace can result in significant
                                                                                                    liability, and they may or may not be
                                                                                                    indemnified by their employer. In
             Juries are free to award punitive damages even if the                                  addition, employees should be aware
                                                                                                    that although they retain the right
             plaintiff has very little or no actual monetary damages.                               of free speech in the workplace, that
             So an employer who blatantly retaliates against an                                     speech must be outside the scope of
                                                                                                    their official duties and must regard
             employee for engaging in protected speech can face                                     some legitimate public concern.
             significant financial liability even if the retaliation does                                Respecting and understanding
                                                                                                    Section 1983’s protections will result
             not result in a financial loss.                                                        in more efficient government service
                                                                                                    free from retaliation.

                                                                                                    R. Scott Oswald is the managing principal
                  Because public sector manag-          defendant’s actions are reckless,           at The Employment Law Group law firm
             ers can be sued in their individual        callously indifferent to the rights of      in Washington, D.C., where he litigates
             capacities, this raises concerns about     the employee, or if the defendant was       whistleblower retaliation and other employment-
             the employee’s ability to obtain a         motivated by some evil intent. These        related actions on behalf of employees. Contact
             full recovery from the manager and         damages are designed to punish a            him at
             the manager’s ability to pay court-        defendant for his unlawful conduct
             awarded damages. Public employers          and to deter similar conduct in the
             can indemnify managers who are             future. Juries are free to award puni-
             found liable under Section 1983.           tive damages even if the plaintiff
             Indemnification is available based         has very little or no actual monetary
             on individual state laws, so whether       damages. So an employer who bla-
             managers are indemnified will vary         tantly retaliates against an employee
             based on the state. Federal courts         for engaging in protected speech can
             applying federal law have found            face significant financial liability even
             repeatedly that there is no inherent       if the retaliation does not result in a
             right of indemnification for federal       financial loss.
             employees.                                      Plaintiffs have access to equitable
                                                        remedies that allow the court to
             Available Remedies                         order action to ensure that justice is
             Section 1983 offers a broad array of       satisfied. In the employment context
             relief. Primarily a successful plaintiff   a court can order an employer to rein-
             is awarded compensatory damages.           state the employee and even require
             This is a monetary award designed          the employer to place the employee
             to place the employee in the same          under a different supervisor to avoid

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