HR Specialist: New York Employment Law

Employee interpretations of state laws are leading to sky-high numbers of lawsuits in the Empire State. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This New York-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: New York Employment Law and the free report you’ll get when you subscribe...

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 management 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 workplace violence 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)