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Government whistle-blowing is protected speech–unless delivered in insubordinate manner

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in Employment Law,Human Resources

Public employees who speak out on matters of public importance are engaging in protected speech. That means employers can’t punish them for speaking out.

However, that protection has limits. When the “speech” is rude, offensive or threatening—and it occurs at work—the employer is free to punish the employee for the speech’s delivery (not its content).

Recent case: Carl, a New York state employee, appealed a federal judge’s decision to toss out a protected-speech lawsuit. Carl had argued that when he spoke out about what he perceived to be food-safety problems at the psychiatric center where he worked, he had engaged in protected activity. He claimed he was illegally fired in retaliation for doing so.

The 2nd Circuit Court of Appeals sided with the state, which argued it hadn’t fired Carl because of the content of his speech. Rather, it fired him because he was rude, offensive and threatening in the way he raised his concerns. The appeals court said that was insubordination, not protected speech. (Finn v. New York State Office of Mental Health, et al., No. 11-4582, 2nd Cir., 2012)

Final note: If an employee is ­arguably engaging in protected speech, be sure you can justify any in­­­subordination charges.

Keep a concise summary of what was said, the tone in which it was said and the reaction of those who heard the exchange. Interview ­everyone and get their take. If some felt threatened, have them explain why.

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