A recent U.S. Supreme Court decision paves the way for future claims against employers who retaliate against employees it believes are engaging in protected speech, even when the employee did not actually engage in the protected behavior. The case highlights the importance of employer intent and could have broader implications for other types of employment retaliation claims.
A recent U.S. Supreme Court decision (Heffernan v. City of Paterson, New Jersey) paves the way for future claims against employers who retaliate against employees it believes are engaging in protected speech, even when the employee did not actually engage in the protected behavior. The case highlights the importance of employer intent and could have broader implications for other types of retaliation claims.
The Court held, “When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983 even if, as here, the employer makes a factual mistake about the employee’s behavior.”
Heffernan v. City of Patterson, New Jersey
In 2006, Jeffrey Heffernan, a high-ranking police officer in New Jersey picked up a lawn sign from a mayoral campaign and talked to a campaign manager. Another officer passing by witnessed the encounter. The next day, Heffernan was demoted from detective to nighttime foot patrol as punishment for supporting that candidate. Heffernan sued the city in federal court claiming it violated his First Amendment right to free speech.
The district court focused on the employee’s actions and found that because the officer was picking up the sign for his mother, he had not engaged in protected speech and had not been deprived of any constitutionally protected right. The appellate court affirmed. The Supreme Court reversed finding that a public employee is entitled to First Amendment protections, even if the employer makes a factual mistake about the employee’s behavior. The Court focused on the employer’s motive, rather than the employee’s behavior, and considered whether the employer intended to discourage the employee (and other employees) from engaging in a protected activity.
Public employees and First Amendment protections
The First Amendment protects public employees against retaliation for exercising their right to free speech. This means that police officers, teachers, administrators, and other government employees are protected from negative employment action for exercising their right to free speech in the workplace or otherwise. This limitation only prohibits the federal government from limiting speech. The First Amendment protection does not apply to private sector employers or their employees.
What is “protected speech?”
Employee speech involving matters of public concern, rather than personal matters, constitutes protected speech under the First Amendment. The court set out a balancing test that considers the interests of the public employee as a citizen commenting on matters of public concern against the interest of the State as an employer in promoting efficiency and effectiveness of the public services it performs through employees.
Do I have a First Amendment retaliation case?
If you are a public employee and you have suffered a negative employment action as a result of speaking out against government deficiencies or engaging in other protected speech, you may have an employment retaliation claim. Under the new Supreme Court ruling, a plaintiff need only prove the employer believed that protected speech took place, resulting in adverse action.
Have you been demoted, fired or suffered other adverse action?
If you have recently lost your job or suffered adverse action based protected activity or conduct, you may have suffered illegal employment retaliation. Wanta Thome Jozwiak & Wanta LLP is dedicated to helping employees of Minnesota protect their rights and pursue all available remedies in the event of adverse employment action, including First Amendment violations and other forms of retaliation. Please call 612-252-3570 to discuss your case with our employment law attorneys.