Unlawful for Public Employer to Retaliate Because They Think Employee Exercised Free Speech, Even if Employee Didn’t Actually Do It

Last month, in Heffernan v. City of Paterson, the U.S. Supreme Court issued an important decision on the First Amendment rights of public sector employees.  Heffernan worked for Paterson’s Police Department as a Detective.  During the City’s mayoral election, Heffernan went to the headquarters of the challenger to pick up a yard sign for his mother, who was bedridden at the time.  Co-workers saw Heffernan at the challenger’s headquarters holding his mother’s sign.  The Chief of Police, who had been appointed by the incumbent Mayor, learned of it.  The next day, the Chief demoted Heffernan to “Patrol Officer.”  The City stated that Heffernan was demoted because of “overt involvement” in the mayoral campaign in violation of established policy.

Heffernan sued the City saying that he was illegally demoted in violation of the First Amendment of the Constitution.  He argued that even though he was not actually exercising his right to freedom of speech by supporting the challenger, but was simply running an errand for his mother, the City demoted him because he was mistakenly perceived to be supporting the challenger.  The City countered that it could not have violated Heffernan’s First Amendment rights if he was not actually exercising those rights.

The Supreme Court sided with Heffernan, in a 6-2 decision, holding that whether an adverse employment action violates the First Amendment depends on the Employer’s motivation, rather than the Employee’s intention.  It did not matter that Heffernan was not actually exercising his right to freedom of speech because the Employer believed he was and demoted him for that reason.  This decision establishes that an adverse employment action may violate the First Amendment when the Employer is motivated by a perceived (even if mistaken) exercise of rights by an employee.

The Supreme Court did, however, emphasize that a general policy prohibiting public employees from participating in political campaigns could be legal, so long as it was neutrally applied.  In other words, if a public employer has a policy prohibiting all employees from involvement in political campaigns of the public entity for which they work, and the employer applies that policy to all employees regardless of which candidate they support, that policy may be constitutional.  Whether such a policy complies with the Constitution will be determined by lower courts based on the specifics of each case.

For more information about the First Amendment rights of public employees, or other public sector labor laws, please contact your labor law counsel.

By Rob Szykowny | June 7, 2016

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