Public employers, take note: Expect trial on First Amendment whistle-Blower claims — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Public employers, take note: Expect trial on First Amendment whistle-Blower claims

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Employees who work for federal, state or local government agencies have more rights than most private-sector employees. One of those is the limited right to be a whistle-blower on matters of public concern, such as alleged corruption or illegal activities.

The First Amendment right to free speech protects public employees who blow the whistle on public policy issues—unless the speech is pursuant to the employee’s official duties. For example, an auditor whose job it is to ferret out corruption is doing her job by reporting such corruption, and going to the papers would not be protected free speech. On the other hand, the same speech by a secretary probably would be protected speech.

Now the 5th Circuit Court of Appeals has ruled that a public employer can’t immediately appeal a court’s decision to move such a case to the trial phase. Instead, the lower court must allow both sides to conduct extensive discovery to determine whether there was protected speech and, if so, whether the employer retaliated against the speaker.

Recent case: Shelton Charles worked for the Texas Lottery Commission as a systems analyst. He was fired for insubordination after he sent a series of e-mails to the state Legislature in which he alleged that the commission misused state funds and violated the Texas Open Records Act.

His former boss alleged that the insubordination charge was not because Charles sent the e-mails, but because he refused to answer his boss’s questions about those e-mails. The trial judge said the case could go forward and denied the boss’s request for immunity. The lottery commission appealed, effectively stalling the litigation.

A very angry 5th Circuit Court of Appeals dismissed the appeal and ordered the commission to pay Charles’ legal fees. It warned that any public employer filing a similar appeal would be harshly punished. (Charles v. Grief, No. 07-50537, 5th Cir., 2007)

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