Protected Speech

The First Amendment provides that Congress shall make no law “abridging the freedom of speech”. The protections of the First Amendment are applied to the states by incorporation under the Fourteenth Amendment.

New York State similarly protects the rights of its citizens to “freely speak, write and publish his or her sentiments on all subjects” and “no law shall be passed to restrain or abridge the liberty of speech.”

First Amendment Speech Claims. For an employee to make an employment-based First Amendment retaliation claim, the plaintiff must engage in constitutionally protected speech by speaking “as a citizen” and on a matter of public concern, the plaintiff must suffer an adverse employment action, and the speech was a motivating factor in the adverse employment decision.

The First Amendment does not prohibit employer discipline based on an employee’s expressions that are made pursuant to the job duties, i.e. the speech was done as an employee, not a citizen. Similarly, employee grievances are not complaints made as a citizen, but pursuant to job duties.

In determining whether speech is on a matter of public concern, consider:

  • the content, form and context of statement;
  • the totality of circumstances when made; and
  • whether the employee’s speech was intended to redress personal grievances or carried a broader public purpose.

Taylor Law Speech Claims. The Taylor Law, while it does not expressly protect free speech, grants public employees the right to join and participate in an employee organization. Thus, when a public employee exercises that right in the form of speech or speech-related conduct, and an employer interferes with, restrains, or discriminates on the basis of such exercise, the employer has violated the Taylor Law.

In order to establish a violation, the complaining party must prove that: (a) he was engaged in protected activity; (b) his employer had knowledge of such activity; (c) his employer made an adverse employment decision; and (d) that decision was made because of the protected activity. If the complaining party proves these elements, the employer can then prove that the decision was motivated by a legitimate business reason. The complaining party may then counter, showing the legitimate business reason is not the real reason for the decision.

Protected speech under the Taylor Law protects organizational speech, which are actions taken in support or against employee organization or a collective bargaining agreement. Employee grievances are protected organizational speech. Inaccurate employee statements are also protected, unless deliberately false or maliciously intended. Confrontational or intemperate speech is also likely to be protected, but may lose protection depending on the manner in which it is relayed.

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