U.S. Supreme Court Announces Public Worker’s Sworn Testimony Protected by First Amendment in Retaliation Lawsuit

On June 19, 2014, a unanimous U.S. Supreme Court held in Lane v. Franks, No. 13-483 that the First Amendment protects public employees who provide truthful sworn testimony, compelled by subpoena, outside the scope of their ordinary job responsibilities. The case was brought by Edward Lane who was hired by a community college in Alabama as a Director of a program for underprivileged youth.  During an audit of the program, he discovered an Alabama state representative, Suzanne Schmitz, was on the payroll but had not been reporting for work.  Lane fired Schmitz and testified before a grand jury and criminal trial which lead to Schmitz’ conviction.  Shortly thereafter, Lane was fired and the program for which he worked was eliminated. 

Lane then sued the community college’s president, Steve Franks, in his individual and official capacities under 42 U.S.C. 1983 alleging retaliation in violation of the First Amendment.  The District Court dismissed the case which was affirmed by the 11th Circuit.  The Supreme Court reversed the lower courts thereby allowing Lane to pursue his claim.  The Court balanced the interests of the employee as a citizen in freely commenting upon matters of public concern, and the interests of the State as an employer in promoting the efficient delivery of the public services it performs.  In ruling in favor of the employee in allowing his case to proceed it held that testimony under oath by a public employee outside the scope of his ordinary job duties is speech protected by the First Amendment. It stressed the importance of the testimony in a public corruption scandal and the obligation of citizens to tell the truth when under oath. The Court also ruled that the college president was entitled to qualified immunity in his individual capacity because under the law at the time he may have reasonably believed that the termination did not violate the First Amendment.

The holding is indicative of the proliferation of retaliation lawsuits on both the state and federal levels.  While this case involved a public employee it should be noted that in New Jersey, there is already a law, known as the Conscientious Employee Protection Act, protecting both public and private employees from testifying about any practice of an employer which the employee reasonably believes is a violation of law, or a rule or regulation promulgated pursuant to law.  Although Franks may eventually be vindicated before the Jury if it believes that Lane’s testimony had nothing to do with his firing, the case demonstrates the importance of employers to document the reasons for all job terminations and to seek legal advice during the pre-termination decision-making process.  Whistleblower and retaliation lawsuits have grown significantly over the past decade and with the latest unanimous Court decision they are likely to continue to grow. 

If you have any questions about any of the foregoing or about how to handle adverse employment actions in general, please contact the chair of our Labor & Employment practice group, J. Andrew Kinsey, Esq. or Steven S. Srenaski, Esq.  Many thanks to Veronica Hallett, Esq. and Summer Associate Courtney Johnson for assisting in the preparation of this Alert.

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