Congratulations, You Did Your Job. You’re Fired

Federal and state governmental employees used to be able to obtain redress if they blew the whistle on wrong-doing under a federal civil rights statute, 42 U.S.C. §1983, which provided for a broad range of damages, attorney fees and costs.

42 U.S.C. §1983, part of the Civil Rights Act of 1871, prohibits the deprivation of any rights guaranteed under the Constitution and laws of the United States by anyone acting under color of state or local law. Because §1983 requires governmental involvement, it rarely applies in actions against private employers.

It used to be true that if a governmental employee exercised his or her right to complain about, let’s say, corruption in his or her department; and that employee was punished for doing so, then one of the tools available to the employee would be a claim for “First Amendment Retaliation.” In other words, the employee could not be punished for exercising his or her right of speech or petition (complain to the government). In 2006, the United States Supreme Court changed all that for the worse and made it open season on whistle blowers–although the majority of the court who authored the opinion denied doing so. In Garcetti v. Ceballos 547 U.S. 410, 126 S.Ct. 1951 (2006) the Supreme Court said that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes; and the Constitution does not insulate their communications from employer discipline.

So all is lost? No. For both state and federal employees there are various state remedies that a governmental employee of a state may use. As to federal employees, I suggest that they have suffered a greater diminution in their remedies than state employees, but not all their remedies.

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