BURNHAM DOUGLASS *
Areas of Practice
The way people treat one another requires adherence to the rights of individuals to receive equal treatment under the law. For the most part, civil rights are enforced at the federal level -- most notably the far-reaching protections provided by the Civil Rights Act of 1964. But New Jersey and other states typically provide additional civil rights protections within their borders. For instance, it is a violation of New Jersey civil rights laws for employers to discriminate against employees on the basis of one's gender identity or expression. Burnham Douglass strives to protect the rights of individuals in a manner consistent with fair and equal treatment that each of us deserves as members of a civilized society.
The First Amendment guarantees that, for the most part, the government can’t punish or limit speech. The First Amendment does not impact the ability of private citizens and organizations to punish or limit speech. This is why it’s permissible for a private employer to fire an employee for engaging in speech the employer disapproves of; private employers have the right to manage their employees as they see fit. (The exception to this rule is if a private employer is engaging in discriminatory employment practices, which would be a violation of the Civil Rights Act–not the First Amendment).
The situation grows more complicated when the government is the employer. Like any other employer, the government has a legitimate interest in maintaining efficient offices and agencies, which often requires managing and disciplining employee speech. At the same time, it is impermissible for a government employee to have fewer free speech rights than a private citizen not employed by the government. The law attempts to balance these two interests.
While there are an infinite number of factual scenarios in which a public employee could raise a First Amendment claim, the cases tend to fall into one of several general categories:
A public employee is fired because of speech or expressive conduct that the employer claims is disruptive to the efficient operation of the workplace.
A public employee contends that he or she has suffered an adverse employment action (dismissal, demotion, etc.) in retaliation for First Amendment-protected conduct.
A public employee is fired because of political patronage — that is, for not belonging to his or her boss’s political party. To schedule your free initial confidential consultation, click here.
Other Workplace Constitutional Rights
The Fourth Amendment protects against unreasonable searches and seizures.The Fourth Amendment applies to prohibit public employers from conducting unreasonable searches and seizures with respect to their employees. However, public employers’ searches of employees and their offices, desks and files to retrieve work related materials from them, or to investigate alleged work-related misconduct, are permitted if, under all the circumstances, the search is reasonable. One critical circumstance is whether or not the employee has a “reasonable expectation of privacy”. Drug and alcohol testing fall under the protection afforded by the Fourth Amendment.
The Thirteenth Amendment protects against involuntary servitude.
The Fifth and Fourteenth Amendment guarantees due process and equal protection. Public employees who have a property interest in their employment are entitled to procedural due process protections in disciplinary matters in which they might be deprived of their employment. Whether that public employee has a property right to his or her job is a question of state law. Property rights can arise under state law, collective bargaining agreements, employer policies or practices, and sometimes from employee handbooks and common practices in the workplace.
The Fifth Amendment protects persons against self-incrimination. For public employees, that means that they cannot be forced to answer their employer’s questions under threat of discharge and thereby incriminate themselves. Instead, before being compelled to answer questions, the employee must be extended immunity from prosecution for answering. That right is commonly referred to as the Garrity right, following the United States Supreme Court decision in Garrity v. New Jersey, 385 U.S. 493 (1967).
The Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. Equal protection limits the State and Federal governments' power to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group, like a race, religion or sex. Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a "liberty," like the right to free speech, or a property interest.
Our firm can skillfully guide you through a workplace constitutional violation. Don’t hesitate to contact us to determine if you think a constitutional violation or issue has presented itself based on something that has happened at the workplace. To schedule your free initial confidential consultation, click here.