Public employees who speak out on matters of public concern are protected from retaliation because their speech is protected by the First Amendment of the U.S. Constitution. For some time, courts have held that, if the employee’s motive was not informing the public, but instead securing some other workplace advantage, the speech was not protected.
But now the 2nd Circuit Court of Appeals has concluded that isn’t the law.
Recent case: Bryan Sousa worked as an engineer for a state agency and complained to and others via e-mail that the department had a culture in which he felt harassed and intimidated on a daily basis. He said this was akin to and could lead to homicide or suicide.
After he sent the e-mail, he was suspended pending a fitness-for-duty exam, apparently because management was worried that he might kill himself or others. He eventually was terminated.
Sousa sued, alleging he had been suspended for speaking out on matters of public concern.
The lower court dismissed his case, reasoning that while his speech did cover a matter of public concern (workplace violence and its roots), his motive in speaking was not to bring to light the problem, but to complain about the way he believed he was being treated at work.
The 2nd Circuit Court of Appeals reversed. It reasoned that the motive behind the speech was irrelevant as long as it involved a matter of public concern. (Sousa v. Roque, et al., No. 07-1892, 2nd Cir., 2009)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- NLRB shakes up joint-employer landscape
- Make common sense the driving force of your business
- Providing References to Other Employers
- Your attorney's expertise is key to crafting severance agreements that stick