The Implications of Whistleblower Laws & Free Speech Claims

Presented By:

Michael J. Rose, Managing Partnermrose@fordharrison.com

Cindy M. Cieslak, Senior Associateccieslak@fordharrison.com

FordHarrison LLP, Hartford Office

November 8, 2016

How FordHarrison, LLP can better assist municipalities

• FordHarrison has established a “hotline” with the Connecticut Interlocal Risk Management Agency (“CIRMA”) in which all CIRMA LAP members can participate.

• The hotline was developed to provide municipalities with a prompt response to emerging issues within the workplace.

• Each municipality who utilizes the hotline will receive up to one hour per month of complementary legal advice.

• If more than an hour is necessary to resolve the issue for which you used the hotline, services are billed at a negotiated rate through CIRMA.

• Plus, access to newsletters and legal alerts relating to employment law.

Hotline Information

Phone: 844-426-9086 E-mail: cirmahotline@fordharrison.com

Laws that protect whistleblowers and govern retaliation claims

Guidance from case law

Elements of a retaliation complaint

Defenses to a retaliation claim

Best practices when processing a whistleblower complaint

Avoiding retaliation claims

Topics to be Covered

The Broad Picture

• Government, including municipalities, may not infringe upon Free Speech Rights of citizens.

• In some circumstances, government as an employer may curtail disruptive speech. “A citizen who accepts public employment must accept certain limitations on his or her

freedom. . . . The government has a substantial interest in ensuring that all of its operations are efficient and effective. That interest may require broad authority to supervise the conduct of public employees.” Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011).

• However, it is illegal for employers to take adverse employment actions against employees that could be deemed to “chill” an employee’s exercise of his or her legal rights.

Laws that Govern Whistleblower Claims

• The First Amendment of the United States Constitution

• The Connecticut Constitution, article first, §§ 4 and 14

• Conn. Gen. Stat. §31-51q

• Conn. Gen. Stat. §31-51m

• Anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act.

• Miscellaneous Connecticut Statutes

The First Amendment

• The First Amendment applies to public sector employment.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

First Amendment: Analysis

To be protected:

1) Participation must be as a citizen, not as an employee.

2) The conduct must be on a “matter of public concern.”

3) The employee’s interest in engaging in the conduct must outweigh the employer’s right to control its employees.

First Amendment Analysis – “As a citizen”

Pursuant to Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), public employees do not speak “as citizens for First Amendment purposes” when they “make statements pursuant to their official job duties.” This is true even if the statement is on a matter of public concern. Ross v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012)

Example: Ceballos was a prosecutor who believed that an affidavit used to obtain a search warrant contained serious misrepresentations. He expressed his opinion about the affidavit and his recommendation for future action in a memorandum to his supervisor. Despite the plaintiff’s concerns, his supervisor decided to move forward with the prosecution. During a hearing on a related motion, the defense called Ceballos who testified about his observations of the affidavit.

The Supreme Court found the speech not protected by the First Amendment.

Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos' official duties.

First Amendment Analysis – “On a matter of public concern”

• Connick v. Myers, 461 U.S. 138, 146-47 (1983) instructs courts to begin by considering whether the expressions in question were made by the speaker as a citizen, upon matters of public concern.

• Connick defined a “matter of public concern” as one that “relat[es] to any matter political, social or other concern by the community.” It is not a matter of personal interest, i.e. employee grievances/dissatisfaction with his/her treatment, lawsuits that do not address systemic practices.

• In making this inquiry, the Court looks to the content, form and context of a given statement.

First Amendment Analysis – Pickering Test

• If the Court finds that the speech touched upon a matter of public concern, it must then weigh the employee’s interest, as a citizen, in commenting upon the matter, and the interest of the government, as an employer in promoting the efficiency of the public services it performs through its employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

• Recent examples of cases in which the scale tipped in favor of the Employer Looney v. Black Lynch v. Ackley

Connecticut Constitution

• Article first, Section 4“Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”

• Article first, Section 14“The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.”

Conn. Gen. Stat. § 31-51q

Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney's fees as part of the costs of any such action for damages….

Case Law Update:Trusz v. UBS Realty Investors, LLC, 319 Conn. 175 (Oct. 1, 2015).

• Speech pursuant to state constitution is not analyzed under Garcetti; rather it is analyzed under a “modified” balancing test is applied

Under this test, the employee can prevail only if he/she speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he/she does it.

Specifically, only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor when an employee is speaking pursuant to official job duties.

However, speech pursuant to an employee’s official duties regarding a mere policy disagreement with the employer is not protected, even if it pertains to a matter of public concern and has little effect on a legitimate employer interest.

Case Law Update:Trusz v. UBS Realty Investors, LLC, 319 Conn. 175 (Oct. 1, 2015).

• Implications:

Internal whistleblowers will have greater protections from “discipline or discharge” under § 31-51q as long as they can show that the speech “does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer . . . .”

Plaintiffs’ lawyers are more likely to plead their clients’ claims of discipline or discharge under the State Constitution as the standard is seemingly more favorable to employees than Garcetti.

Conn. Gen. Stat. § 31-51m

No employer shall discharge, discipline or otherwise penalize any employee because (1) the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, (2) the employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action, or (3) the employee reports a suspected incident of child abuse or neglect pursuant to sections 17a-101a to 17a-101d, inclusive, or 17a-103. No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer. The provisions of this subsection shall not be applicable when the employee knows that such report is false.

Elements of a Whistleblower Retaliation Claim

1) The employee engaged in a protected activity as defined by the statute.2) The employee was subsequently subjected to an adverse employment

action. Sometimes limited by the specific whistleblower statute to discipline or discharge

If not limited by statute, it is more broad: “a materially adverse change in the terms or conditions of employment”

o Does not include everyday workplace grievances, disappointments, and setbacks

o However, courts have held that adverse employment actions in a claim for retaliation may include employer conduct that seems less severe than the traditional termination or suspension.

• It does not have to include a loss of pay.

o An action that results in a significant disadvantage to the employee

“A plaintiff must show that a reasonable employee would have found the challenged actions materially adverse”, “which in this context means it ‘might well have dissuaded a reasonable workers from making or supporting a charge of discrimination’.”

3) There was a causal connection between the employee’s participation in the protected activity and the adverse employment action.

Defenses to a Retaliation Claim

• Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) The employee has the initial burden to show that the protected

speech was a “motivating factor” in the adverse employment action. The employer then has the opportunity, as an affirmative defense,

to show “by a preponderance of the evidence that it would have reached the same decision . . . even in the absence of the protected conduct.”

Therefore, even where an employee’s speech was protected, if the employer can demonstrate that the adverse employment action would have been taken despite the protected speech, the employer will not be held liable.

Best Practices When Processing Whistleblower Complaints

• Promptly begin the investigation.• Complete the investigation as soon as possible while maintaining

thoroughness.

• Take notes during the investigation, including interviews with witnesses.

• Advise the complaining party that retaliation is illegal and that they should report any retaliation.

• Advise involved individuals they can be held personally liable for violating whistleblower statutes.

• The person who conducts the investigation should be:

Someone not involved in the complaint, and, if possible, someone from outside the department

Human resources or someone who has been trained in conducting investigation

Someone who can be impartial Someone who can spend the time conducting the investigation Someone very detail oriented Perhaps a referral to outside counsel is appropriate

Utilizing an Ombudsman

• We suggest that the officer at the highest level of the municipality appoint a second individual to act as “ombudsman.”

It is critical that the ombudsman: o have appropriate training in state and federal discriminatory practice law; o have the intellectual capacity to conduct a thorough and searching

assessment of the discipline/remediation; ando have the political independence to properly identify disciplinary actions which

may be, in fact, tainted by a retaliatory flavor.o be prepared to conduct the very same inquiry that a good plaintiff’s lawyer

would conduct: a comparison of the performance of the protected employee to his or her peers, a vigorous comparison of the employees’ opportunities for advancement as opposed to his or her peers; and the level of discipline afforded to all similarly situated employees.

• The ombudsman would conduct a de novo review of claims of retaliation.• This process allows the supervisor to be free to continue supervising the

employee. • The entity would have established a secondary reporter to vigorously

investigate any claims of retaliation.

When Performance Issues Pre-Date the Whistleblower Complaint

• An employee who “blows the whistle” may, however, also have performance issues that began prior to the employee’s report, or while you are investigating a whistleblower complaint.

• Performance deficiencies must be addressed and/or corrected for the smooth operation of government.

• When the supervisors attempt to implement their remediation plan, it should be expected that the employee will claim “retaliation.”

Avoiding Whistleblower Retaliation Claims

• Define each of your employees’ “official job duties” with clarity. Job descriptions should be specific Update job descriptions regularly

• Take a proactive approach Provide initial training to employees Re-train employees periodically, and especially after a complaint is received

• Avoid blanket prohibitions on certain types of speech

• Have clear and detailed anti-discrimination/anti-retaliation policies

• Have a written complaint process for managing whistleblower complaints

• Make sure any discipline that is issued after an employee makes a complaint is meted out evenhandedly and does not exceed what is warranted for any employer misconduct

Michael J. Rose, Managing Partnermrose@fordharrison.com

Cindy M. Cieslak, Senior Associateccieslak@fordharrison.com

Questions?

DISCLAIMER :This seminar is intended to be for informational and educational purposes only and does not constitute legal advice. If you have any questions about the content of these materials, or are in need of legal advice, please feel free to contact Michael J. Rose or the FordHarrison attorney with whom you usually work.