All employees have certain rights, and exercising these rights shouldn’t be grounds for getting fired. For example, employees cannot be punished for making discrimination complaints or speaking up about sexual harassment. In addition to these rights, public-sector employees can also participate in free speech or political activities outside of work without fear that their opinions will be cause for negative employment action.
The intersection of free speech and employee rights is a complicated area of the law. In the private sector, most employees are at-will, meaning that they could be fired for almost any reason, including their speech or actions outside of work. In contrast, government or public employees cannot be fired for participating in protected political activities or for exercising their free speech rights. While these employees could still be fired for mouthing off to their boss, government employees who support a particular candidate or make online comments about a political issue are generally protected by the U.S. Constitution. When a public employee is fired for exercising his or her free speech rights, it can be a form of retaliation that is illegal under state and federal law.
Recently, the United States Supreme Court addressed the issue of retaliation in a called Heffernan v. City of Paterson, New Jersey. In that case, Officer Heffernan was a detective in the city of Paterson. The Chief of Police who employed Heffernan supported the incumbent for the city’s mayoral race. Officer Heffernan’s bedridden mother supported the mayoral challenger, and asked her son to pick up one of his yard signs on her behalf. Other police officers saw Officer Heffernan picking up the challenger’s sign, and reported Heffernan to the Chief of Police. The Chief of police demoted Officer Heffernan over his “overt involvement” in the mayoral challenger’s political campaign.
There are many cases which support a government employee’s right to exercise free speech or political association without negative employment consequences. While this area is relatively settled, this particular case was unique. Officer Heffernan was not actually engaging in political activity; he was simply picking up a sign for his ailing mother. As a result, the lower trial and appellate courts found that his demotion was not retaliation because he hadn’t actually exercised his First Amendment rights.
The U.S. Supreme Court disagreed with the lower courts and held the opposite. According to the Justices, what matters is the reasoning behind the negative employment action rather than its factual accuracy. The Chief of Police believed that Heffernan had engaged in political activity that he didn’t like, and demoted the officer on that basis. Whether or not Heffernan actually supported that candidate did not matter.
This case may be particularly important during 2016’s heated and contentious political race. Public employees who are fired, demoted, or transferred based on their employer’s opinions about their political beliefs or activities should be aware that this type of retaliation is illegal. If you have faced negative employment actions after filing a complaint or exercising your rights, contact us to speak with an experienced discrimination attorney in San Francisco today.
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