Supreme Court Limits First Amendment Rights For Public Employees

While yesterday's Wal-Mart decision is getting all the press, the U.S. Supreme Court issued another decision yesterday that will have broad impact on public employees.  In Borough of Duryea v. Guarnieri, the Supreme Court limited public employees' First Amendment right to petition the government for redress of grievances.

The facts are straightforward.  Charles Guarnieri filed a grievance when he was terminated from his position as Chief of Police in Duryea, Pennsylvania.  He was ordered reinstated, and the borough council later issued directives instructing him how to perform his duties. He filed a second grievance, and an arbitrator ordered that some of the directives be modified or withdrawn.  Guarnieri then filed suit, claiming than the directives were issued in retaliation for the filing of his first grievance, and violated his First Amendment right to petition the government for a redress of grievances.  Guarnieri won at trial, and the Third Circuit Court of Appeals affirmed, holding that a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.

The Supreme Court reversed, holding that a government employee is not protected by the petition clause unless the petition relates to a matter of public concern.  In doing so, the Court applied the same limitations it previously had applied to the First Amendment's Speech Clause to the Petition Clause.  The Court dismissed the fact that most governmental petitions are of a private nature, because, in their view, "Petitions, no less than speech, can interfere with the efficient and effective operation of government."

While this case does make the law consistent when it comes to public employees attempting to exercise their rights under the First Amendment, it is consistently wrong.  This case continues the line of jurisprudence that effectively gags public employees.  These cases allow government officials to retaliate against public employees under circumstances that clearly would be illegal when applied to private citizens.  In my view, the First Amendment is the foundation of our rights as a free people, and should be interpreted broadly, and apply equally to all.

Can I Be Fired For Making An Oral Complaint?

If the complaint is of a violation of the Fair Labor Standards Act ("FLSA"), the answer is "no."  That's what the U.S. Supreme Court held today in the case of Kasten v. Saint-Gobain Performance Plastics Corp.

Kevin Kasten complained to his bosses about the location of the time clock at work.  Specifically, he complained that the location prevented workers from getting paid for the time spent putting on and taking off their protective gear.  Under the FLSA, employees are required to be paid for such "donning and doffing" time.  Mr. Kasten complained to his supervisor, to HR, to his lead man and to his Operations Manager that he thought the location was illegal and the company would lose if it ever went to court.  When he was fired, Mr. Kasten sued under the FLSA's anti-retaliation provision, which makes it illegal "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . ." under the FLSA.

Mr. Kasten's suit was tossed out of court, on the grounds that the FLSA's anti-retaliation only applies to written complaints.  The Seventh Circuit Court of Appeals in Chicago agreed, so he took it all the way up to the U.S. Supreme Court.  And won.  The court held, in a 6-2 decision (Justice Kagan did not participate), that the "filed any complaint" language includes oral as well as written complaints.

Justices Scalia and Thomas dissented (gee, there's a surprise).  In their view, Mr. Kasten should lose, not because his complaints were oral rather than written, but because they were made to the employer rather than to the government.  In their view, the only way a complaint can be "filed" is with the government.  The majority declined to reach this issue, so it remains an open question.  In my view, this narrow, restrictive view undermines the goals of the FLSA and unfairly punished employees who choose to take the lesser, and perhaps more reasonable, step of complaining internally before escalating to the point of calling the government.

Regardless of this open question, this case is a nice victory for workers.  We need more like it.