EDUCATOR'S EMPLOYMENT RIGHTS - SAWTION RETALIATION



Public Employees and First Amendment Rights

This page provides some qualified answers to the following questions:

1. How does the First Amendment protect public employees?
2. Do I have any other protections against being discharged as a public employee?
3. What has the U.S. Supreme Court said about the First Amendment rights of public employees?
4. What must I prove to win a First Amendment retaliation case?
5. What are matters of "public concern"?
6. What are not generally considered matters of "public concern?"
7. How can I tell the difference between matters of "public concern" and those which are not?
8. What is the balancing test courts use to decide these cases?
9. Aren't these factors vague or subjective?
10. Is speech protected even if it is just part of doing my job?
11. I am a high school teacher. Can the school censor what I teach my students?
12. Is filing a grievance protected the same as speech?
13. What time limits apply to First Amendment retaliation cases?
14. Do I have other remedies?
15. Do I have to look for a job once I've lost mine?
16. Should I get a lawyer?


1. How does the First Amendment protect public employees?
The First Amendment to the U.S. Constitution says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."


The first thing to know about the First Amendment is that it is a limit only on government. It prohibits the federal government from making laws that infringe on the rights of religion, speech, press, assembly and petition. Through the Fourteenth Amendment, state and local governments are also prohibited from infringing on these rights. Yet, one of the most powerful restraints on individual freedom is the power of employers to discharge workers. If your employer is a private entity, the First Amendment offers you no protection from being fired on account of what you say. (You may still have protection from other sources described below, or in the one state that abolished employment-at-will, Montana).


Public employees, on the other hand, work for the government. So, public employees do have protection from retaliation for exercising certain First Amendment rights. Courts have been cautious in this area, limiting the protection to speech that is on matters of "public concern." The Supreme Court is not yet ready to say that public employees are protected from retaliation for any First Amendment activity. Thus, while the government could not put someone in jail for complaining about a meager raise, the government might still be able to fire a public employee for this reason, unless the complaint was a matter of "public concern."


2. Do I have any other 
protections against being discharged as a public employee?
Many, but not all, public employees have other protections. If you belong to a union, you are likely to be protected from any discharge that is without "just cause." This right is protected by binding arbitration. Similarly, many state and local governments have civil service laws that promise continued employment during good behavior. The civil service laws typically create a government agency to conduct hearings on whether there is sufficient evidence to justify a discharge or long suspension. Public employees with these rights will want to carefully consider whether to pursue these protections with an administrative agency, or alternatively a First Amendment case in court. You (and your attorney) will need to consider the merits of your claims, as well as the reputation of the arbitrators, civil service agency, and the courts in your area. You may also consider pursuing both options, accepting the risk that a decision in one case may possibly control the outcome of the other.
There are also protections for those whistleblowers who report government illegality, waste, and corruption, whose reports are likely to make the perpetrators mad. By protecting the rights of whistleblowers, we can discourage not only the retaliation, but also the corruption itself. See our site's section on whistleblowing for more information


3. What has the U.S. Supreme Court said about the First Amendment rights of public employees?
The Supreme Court has ruled that public employee speech involving matters of public concern constitutes protected speech under the First Amendment.
The U.S. Supreme Court first recognized that public employees could sue for retaliation in 1968. In the case Pickering v. Board of Education,  the Court set out the balancing test that remains controlling law today:
"the interests of the [employee] as a citizen, in commenting on matters of public concern" must be balanced against "the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees."
In other words, if you bring a claim against your employer under the First Amendment, you must convince the court that your interest in speaking openly on a matter of public concern outweighs the government's interest in having an efficient workplace.
This is an important right, because, as the Supreme Court has conceded, government employees are often in the best position to learn the deficiencies in the government agencies for which they work. It is important to allow government employees to make these deficiencies open to the community, so the public can debate how to improve them.


4. What must I prove to win a First Amendment retaliation case?
To win a retaliation case under the First Amendment, a court must find that:
 the plaintiff was engaged in a constitutionally protected activity;
 the defendant's adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and
 the adverse action was motivated at least in part as a response to the exercise of the plaintiff's constitutional rights.


For a public employee claiming retaliation by the employer, the court must also find that:
 the employee's speech was a matter of 'public concern'; and
 the interest of the employee as a citizen, in commenting on matters of public concern, outweighs the employer's interest in promoting the efficiency of the public services it performs through its employees.
  

What are matters of "public concern"?
Since the First Amendment is a constitutional principle, the doctrines that interpret it come from a series of court cases, rather than laws that have been passed. The courts add to the list of what subjects are of "public concern" only when a particular case requires them to decide on a new issue. We can look to some of those cases to discern what is, and is not, of "public concern."



The Supreme Court has found the following speech to be of public concern:
the allocation of school funds, and the administration's methods of informing, or not informing, the taxpayers of the real reasons why additional tax revenues were being sought for schools,
testifying before a state legislature,


a memorandum relating to teacher dress and appearance that the school principal had circulated to various teachers at a public school, statements concerning a School District's allegedly racially discriminatory policies, where speech criticizes government inefficiency and waste, not as an aggrieved employee, but as a concerned citizen,


staff psychologist criticizing a hospital for unnecessary psychotropic drugs, failing to provide safe working conditions, and inadequately supervising a penal code patient,
the manner in which police and fire fighters performed upon a particular occasion,
adequacy of funding for emergency services, environmental violations at wastewater treatment plant,

 an elementary school teacher who claimed she was fired for inviting actor Woody Harrelson to come speak to her class about the environmental benefits of hemp.


6. What are not generally considered matters of "public concern?"
The Supreme Court has ruled that when employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should not have to suffer too much interference with managing their offices.
Your employer may dismiss you for speech that is not considered of public concern, such as employee grievances concerning internal office policy, such as a petition circulated by an Assistant District Attorney to other Assistant District Attorneys about the office's transfer policy, office morale, and whether a grievance committee was needed. However, a person dismissed for such activity would have the same First Amendment protections a non-employee would have in a libel or other case.


7. How can I tell the difference between matters of "public concern" and those which are not?
The result of various Supreme Court cases is that some speech is more clearly of "public concern" than others. Matters of elections, pending legislation, corruption, race discrimination, public health and safety are in the zone of public concern. Matters of internal employment policy that do not touch on these public concerns are normally unprotected.


Other matters may or may not be of "public concern," depending on the scope of media attention, controversy, or, on the other hand, how deeply they disrupt the function of the public office. Sometimes we just cannot tell what a court will do with a case raising a new area or an issue that raises strong concerns about both public policy and internal disruption. As the Supreme Court stated in Connick v. Myers: 


"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record."
Balancing test courts use to decide these cases? 

Once a plaintiff states a claim for unlawful retaliation, a court must decide if
"the interest of the employee as a citizen, in commenting on matters of public concern, outweighs the employer's interest in promoting the efficiency of the public services it performs through its employees."


Courts have to make this decision after weighing the facts of each particular case. Some balancing factors for a court to consider include whether:
 the statement impairs discipline by superiors or harmony among coworkers,
 the statement has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, and


 whether the speech in question interferes with the normal operation of the employer's business.
The extent of the government's burden to show disruption depends on the nature of the employee's expression. The more important the First Amendment interest, the more disruption the government has to show. A speaker's "personal stake" in a controversy does not prevent speech on the issue from involving a matter of public concern.


9. Aren't these factors vague or subjective?
Yes, these factors may seem vague or subjective. For example, even though the education of special needs students is clearly a matter of public concern, a principal may lawfully discharge teachers for disobeying an order to quit talking about this subject. The 8th Circuit Court of Appeals held that the speech "resulted in school factions and disharmony among their co-workers and negatively impacted [the principal's] interest in efficiently administering the middle school." Fales v. Garst. 


Compare this result to Belyeu v. Coosa County Bd. of Education,  where the Court of Appeals in Atlanta upheld the rights of a teacher's aide who called for a commemoration of Black History Month in a speech to a PTA meeting. Immediately after the meeting, the principal told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system's interest in avoiding racial tensions outweighed the aide's right to free speech. On appeal, however, the Court reversed, writing that the aide's "remarks did not disrupt the School System's function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so."


10. Is speech protected even if it is just part of doing my job?
This question was recently answered by the U.S. Supreme Court in a 5-4 decision. In the case of Garcetti v. Ceballos,  the Court decided that employees must be acting as private citizens to receive First Amendment protection. That is, they are not acting as private citizens while performing their job duties. In essence, the boss can control what is said on the job, but not what the employee says on matters of public concern as a private citizen.
The Court stated, "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
So, to receive First Amendment protection, the employee must apparently be on his or her own time (clocked-out), and speaking in a forum for citizen expression on matters of public concern. Those employees who claim that they were just "doing their jobs too well" will find that they no longer have First Amendment protection. (They may still have protection under specific laws; for example, if they report environmental violations as required by federal law, then the environmental laws will still provide protection against adverse employment actions.)
The Garcetti decision is a setback for public employees, and we can look forward to further developments in the law as legislators consider the need for new laws, and courts issue further decisions in this area.



11. I am a high school teacher. Can the school censor what I teach my students?
The speech of teachers in the classroom represents the school's educational product. Most courts apply to teachers' speech the more deferential standard that asks whether there is a legitimate educational reason for the school board's policy.
One federal appeals court determined that any form of censorship must be reasonably related to a legitimate educational reason. However, many courts are highly deferential to employer interests, especially public school officials. For example, in Fowler v. Bd. of Education of Lincoln County, Ky.,  a teacher found no protection from the Cincinnati appeals court after she showed an R-rated movie (Pink Floyd -- The Wall) to her class.
As a result, teachers should understand that the traditional First Amendment rights of academic freedom generally accorded to university professors are much more limited in public primary and secondary schools.


12. Is filing a grievance protected the same as speech?
Yes, and perhaps even more so. Through the "petition clause" of the First Amendment, the Constitution's Framers recognized that those who ask government to address unfairness face an extra risk of retaliation. Through the "petition clause," they flatly prohibited any restraint on petitioning government for redress of grievances. At worst, courts will treat a petition as "speech" and require that it pass both the "public concern" and balancing tests before protecting public employees who present grievances.


However, different courts have different views on whether the "public concern" standard should apply to retaliatory dismissal of a public employee who files a "petition."
With a labor grievance, the government can hardly claim that the employee was being disruptive, since the employee is following the government's own policy on how to file the grievance. Hopefully other courts will see the light that the right to petition is not limited to matters of public concern. Until then, many labor activists will suffer retaliation without a remedy.


 
13. What time limits apply to First Amendment retaliation cases?
The time limit for federal employee claims of retaliation in violation of the First Amendment will depend on the administrative remedies available. If you have a right to appeal an adverse employment action, for example to the Merit System Protection Board (MSPB), then you do not have a right to sue in court. The time limit for MSPB appeals is typically thirty (30) days. See the MSPB's Appeal Process for more information.


A federal whistleblower who filed a complaint with the Office of Special Counsel (OSC) will have sixty-five (65) days after OSC issues a notice of termination of its investigation. If OSC takes longer than 120 days, then an appeal can be filed anytime thereafter (up until 60 days after receipt of notice from OSC).


The time limit for state and local employees to file a lawsuit for violating the First Amendment varies from state to state. This is because Congress did not establish a time limit for claims under the federal law that allows people to sue when someone acting "under color of state law" violates rights guaranteed by federal law. So, the Supreme Court has said that federal courts should use the time limit for personal injury claims in the state where the court is located. This is the same time limit set by each state for automobile accident claims. Depending on the state, the time limits run from one year (Kentucky, Louisiana and Tennessee) to six years (Maine and North Dakota). You can find the time limit in your state from web pages like:
Personal Injury Statute of Limitations


14. Do I have other remedies?
Some states may recognize that a discharge in violation of the First Amendment is a wrongful discharge and allow you to sue for damages in state court. See, for example, the New Jersey Conscientious Employee Protection Act. 


We can also ask our state legislators to adopt the Montana law that abolished employment-at-will. In Montana, no employee who has successfully completed the probationary period can be fired without cause. Montana adopted the statute in the 90's and its economy did not stop. Still, no other state government has adopted a similar law. If you are unlawfully fired, you can also apply for unemployment compensation benefits. See our site's termination section for more information.


15. Do I have to look for a job once I've lost mine?
Whenever anyone has a legal claim against another, they have a duty to mitigate damages. That means you have to do what you can to minimize the damages. In retaliation and discrimination cases, a discharged worker has a duty to look for new employment. If the other side can convince the judge or jury that you did not do what was reasonable, you could win your case and be awarded one dollar (nominal damages). In employment cases, you must make a good faith effort to reduce the money that you have lost because your former employer caused you to lose your job. This means that you need to actively look for another job. For more information, please see our site's mitigation page.


16. Should I get a lawyer?
It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a retaliation case. Some lawyers with experience will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will trust the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer's first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement of the complaint. When you shop around for an attorney, look for attorneys who have experience in employment matters. For more information, see our site's attorney resources page.
Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.





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This is the fight of our professional careers. Are You In or Out?

What's taking so long? This is the fight of our professional careers. Are You In or Out? "Hell has a special level for those who sit by idly during times of great crisis."
Robert Kennedy

The Art of SETTING LIMITS, Its not as easy as it looks.

Art of Setting Limits Setting limits is one of the most powerful tools that professionals have to promote positive behavior change for their clients, students, residents, patients, etc. Knowing there are limits on their behavior helps the individuals in your charge to feel safe. It also helps them learn to make appropriate choices.


There are many ways to go about setting limits, but staff members who use these techniques must keep three things in mind:
Setting a limit is not the same as issuing an ultimatum.
Limits aren’t threats—If you don’t attend group, your weekend privileges will be suspended.

Limits offer choices with consequences—If you attend group and follow the other steps in your plan, you’ll be able to attend all of the special activities this weekend. If you don’t attend group, then you’ll have to stay behind. It’s your decision.
The purpose of limits is to teach, not to punish.
Through limits, people begin to understand that their actions, positive or negative, result in predictable consequences. By giving such choices and consequences, staff members provide a structure for good decision making.
Setting limits is more about listening than talking.
Taking the time to really listen to those in your charge will help you better understand their thoughts and feelings. By listening, you will learn more about what’s important to them, and that will help you set more meaningful limits.
Download The Art of Setting Limits

SYSTEMATIC USE OF CHILD LABOR


CHILD DOMESTIC HELP
by Amanda Kloer

Published February 21, 2010 @ 09:00AM PT
category: Child Labor
Wanted: Domestic worker. Must be willing to cook, clean, work with garbage, and do all other chores as assigned. No contract available, payment based on employer's mood or current financial situation. No days off. Violence, rape, and sexual harassment may be part of the job.

Would you take that job? No way. But for thousands of child domestic workers in Indonesia, this ad doesn't just describe their job, it describes their life.

A recent CARE International survey of over 200 child domestic workers in Indonesia found that 90% of them didn't have a contract with their employer, and thus no way to legally guarantee them a fair wage (or any wage at all) for their work. 65% of them had never had a day off in their whole employment, and 12% had experienced violence. Child domestic workers remain one of the most vulnerable populations to human trafficking and exploitation. And while work and life may look a little grim for the kids who answered CARE's survey, it's likely that the most abused and exploited domestic workers didn't even have the opportunity to take the survey.

In part, child domestic workers have it so much harder than adults because the people who hire children are more likely looking for someone easy to exploit. Think about it -- if you wanted to hire a domestic worker, wouldn't you choose an adult with a stronger body and more life experience to lift and haul and cook than a kid? If you could get them both for the same price, of course you would. But what if the kid was cheaper, free even, because you knew she wouldn't try and leave if you stopped paying her. Or even if you threatened her with death.



Congress Aims to Improve Laws for Runaway, Prostituted Kids

by Amanda Kloer

categories: Child Prostitution, Pimping

Published February 20, 2010 @ 09:00AM PT

The prospects for healthcare reform may be chillier than DC weather, but Democrats in the House and Senate are turning their attention to another warmer but still significant national issue: the increasing number of runaway and throwaway youth who are being forced into prostitution. In response to the growing concerns that desperate, runaway teens will be forced into prostitution in a sluggish economy, Congress is pushing several bills to improve how runaway kids are tracked by the police, fund crucial social services, and prevent teens from being caught in sex trafficking. Here's the gist of what the new legislation is trying to accomplish:

Shelter: Lack of shelter is one of the biggest vulnerabilities of runaway and homeless youth. Pimps will often use an offer of shelter as an entree to a relationship with a child or a straight up trade for sex. In the past couple years, at least 10 states have made legislative efforts to increase the number of shelters, extend shelter options, and change state reporting requirements so that youth shelters have enough time to win trust and provide services before they need to report the runaways to the police. Much of the new federal legislation would make similar increases in the availability and flexibility of shelter options.

Police Reporting: Right now, police are supposed to enter all missing persons into the National Crime Information Center (NCIC) database within two hours of receiving the case. In reality, that reporting doesn't always get done, making it almost impossible for law enforcement to search for missing kids across districts. This hole is a big problem in finding child prostitution victims and their pimps, since pimps will often transport girls from state to state. The new bill would strengthen reporting requirements, as well as facilitate communication between the National Center for Missing and Exploited Children and the National Runaway Switchboard

We Must Never Forget These Soldiers, Sailors and Airmen and Women

We Must Never Forget These Soldiers, Sailors and Airmen and Women
Nor the Fool Politicians that used so many American GIs' lives as fodder for the fight over an english noun - "Communism"