Can your employer retaliate against you for speaking out about a matter of public concern? No. If your employer does so, then it will be liable under either your State’s relevant whistleblower statute or the First Amendment of the U.S. Constitution. This pamphlet discusses liability under the First Amendment, which applies only to government-run employers.
In order to successfully sue your employer under the First Amendment, you must prove two elements: (1) that you spoke out about a matter of “public concern” and (2) that you were fired, demoted, or otherwise punished for doing so.
What is a matter of “public concern?” It is any matter of political, social, or other concern to the “community.” This last word is important. Throughout your career, you may find yourself speaking out about a matter that concerns only you, such as your work hours, your responsibilities, and your boss. None of these matters, however, concern the “community.” In such instances you will not be protected by the First Amendment.
In Rafiy v. Nassau County Medical Center (SDNY 2002), two doctors sued their employer for terminating them after they had filed several complaints against their boss, the director of the hospital’s residency program. The complaints alleged that the director was professionally and morally inept. The doctors believed that such complaints addressed a matter of concern to the community, specifically whether the director was properly managing the hospital and caring for the patients. The Court disagreed, however, and dismissed the case. Looking at the record as a whole, the Court found that the doctors were really in a “personal dispute” with the director, or in other words, that they were really just “out to get” the director. According to the Court, they were not crusading for the “community.”
Flynn v. NYC Board of Education (SDNY 2002) is an example of a more successful First Amendment case. There, a teacher sued his school for terminating him after he spoke out at several teacher and parent meetings about the teaching inadequacies at the school. The school argued, like the hospital did in Rafiy, that the teacher was really in a “personal dispute” with his boss, the school. The teacher, on the other hand, argued that he was not in a personal dispute but was rather speaking out about a matter that concerned the community – whether the school was properly teaching its children. The Court agreed with the teacher and allowed the case to go to trial.
As the Rafiy and Flynn cases show, if you’re going to speak out against your government-run employer, and expect to take some heat for doing so, then make sure that you are discussing a topic that’s not about you, but about the community. A good lawyer can help you through the process.