Alabama says it can fire workers for telling the truth

[umbertino]

by: Mark Gruenberg

May 1 2014

 

 

 

WASHINGTON - In certain circumstances, the state of Alabama says, it can fire or discipline a state worker who tells the truth - even if the truth exposes fraud and corruption.  But that state "right" appears to fly right in the face of the U.S. Constitution and Supreme Court justices met it with reactions ranging from skepticism to incredulity.

 

At issue on Apr. 28 was a case by former state worker Edward Lane, who uncovered fraud - specifically a state legislator in a no-show job - in an Alabama community college program designed to help troubled youth. Lane testified to the fraud, first before a grand jury and then at two trials of the state rep.   The rep was found guilty at the second trial. 

 

Lane's boss, college president Steve Franks, citing budget cuts, fired 29 "probationary" workers but later hired all but two back when he found they really were permanent, not probationary. Lane was one of the two left out of a job.  

 

Lane took the case to court, claiming Franks retaliated against him, a government worker, for exercising his 1st Amendment rights to free speech. He lost in the lower courts, but he appeared to be winning the justices over.

 

The case is important not just for its specific circumstances, but because whistle-blowing government workers are often the best sources of information about waste, fraud and abuse.  Leaving disciplinary power over them in the hands of their bosses when they speak up chills the prospect that they ever will.   It also limits their rights of free speech.

 

When it comes to free speech and state and local government workers, though, the Supreme Court set some past limits.  A worker testifying as a citizen has more rights when he or she does so, the court has said before.  Same thing if the worker's discussing "a matter of public concern."  But if the worker's using info learned on the job, there are times where the state, exercising control over the workplace, can discipline or fire the worker.

 

The question is where to draw the line.  Alabama said it can be drawn even if the worker tells the truth.  The justices couldn't believe what they heard.  Justice Antonin Scalia was the most incredulous.

 

"Where did you get this view that the 1st Amendment can be applied only to protection of views and not to expression of facts?" he asked one of Alabama's attorneys.  He wasn't alone.

 

"Let's say he writes a letter to the editor.  Can he be disciplined for that?"  Chief Justice John Roberts asked.  The Alabama attorneys' answers to both questions was that, depending on the circumstances, yes.

 

The justices weren't convinced.  "We've said that government employees can take the knowledge" they gain about waste, fraud and abuse on the job "and go out and use it and be protected" from retaliation, Justice Elena Kagan pointed out.  She got Franks' Alabama attorney, Mark Waggoner, to agree.  "Yes, that's the heart of the 1st Amendment," he said.

 

But not entirely, Waggoner added.  "Factual testimony based only on knowledge (learned) due to official duties would not be protected," he said.  "It's not the forum (used), but the character of the speech that counts.  And if it's not 'citizen' speech, you don't get to the 'public concern' question."

 

Tejinder Singh, Lane's attorney, had a much easier time.  "There's a long line of precedents that holds the 1st Amendment applies to all matters of public speech" by public workers, except for a few internal memos, he said.   "The principal point of contention is whether the fact that he learned about the facts" of the fraud while on the job "is sufficient protection" of the worker's right to speak.  Singh said it is.

 

So did the unions that filed friend-of-the-court briefs with the justices, all coming down in Lane's corner.  "Individuals who work for the government remain citizens entitled to participate in public affairs," AFL-CIO General Counsel Lynn Rhinehart wrote in her brief.   "And the public has a strong interest in hearing the views of public workers, who are often among the best-informed citizens regarding the workings of government."

 

AFSCME, the Service Employees and the National Education Association urged the justices, in their brief, to go even further and protect almost all speech by public workers.  The only exceptions, where a "balancing test" now exists, are speech "within the employer's legitimate proprietary control" and speech that doesn't involve a public concern.  Waste, fraud and abuse, they said, is a public concern.

 

"Judged by those standards, a public employee's truthful sworn testimony will almost always (their emphasis) merit protection against employer retaliation," the three unions said. "That's because truthful testimony necessarily implicates public concerns and a government employer has no legitimate reason for retaliating against an employee for such truthful testimony."

 

The justices will announce a decision by the end of June.

 

 

 

Photo: The Supreme Court is considering whether the 1st Amendment protects Lane and millions of other public workers from job retaliation when they offer testimony about government misdeeds in court. Wikipedia (CC)

 

 

http://www.peoplesworld.org/alabama-says-it-can-fire-workers-for-telling-the-truth/

[bamagirl]

In Alabama you do not legally have to be given a reason to be fired, you can be fired for any reason an employer decides... as it should be. I believe if you own something (business) then it's yours to do with as you choose.

[Muleslayer]

Hi bama! Good to see you!

P.s. I agree with you!

[bamagirl]

Thanks Mule, good to be back!

[Maggie123]

This article is about State Workers... as in workers for the state... not private businesses.

 

Sure doesn't seem to be a very good way to curb fraud and corruption and at the expense of the state citizens tax dollars no less.

 

"In certain circumstances, the state of Alabama says, it can fire or discipline a state worker who tells the truth - even if the truth exposes fraud and corruption.  But that state "right" appears to fly right in the face of the U.S. Constitution and Supreme Court justices met it with reactions ranging from skepticism to incredulity."

[bamagirl]

Yea Maggie I read the whole article after I posted.. oops!

[AmericaInc]

Hi bama! Good to see you!

P.s. I agree with you!

that figures...

 

let's see what happens to you when YOU are a victim of injustice someday...

 

Meanwhile, why don't you move to Alabama...

 

As for the "Supreme" Court

They'll probably vote with Alabama and not people who tell the truth.

[DinarThug]

This Is An Outrage !

Why Should They Be Allowed To Fire A Worker For Having A Tooth ...

[Heavyduty053]

Right to work laws are good in ways but can be over stepped by employers who wants something or someone different. Ex: lets say a person was doing their job according to protocol but a certain supervisor was under pressure from the bosses sister to hire her son out of school but there were no open slots unless someone was released. So the supervisor starts planning the failure of that person in some way to be fired, hence opening that job slot for the boy..........did the person doing his job correctly deserve that....not in my book.......now let me say that this freedom to fire or let go at will is good if someone is slacking or laying out.....the point I am trying to make is I have seen this very example committed for one reason many times over my 61 years working public jobs.

Edited May 3, 2014 by Heavyduty053

[Bama Nation]

Good to see you bamagirl. Hope all is well in T-Town

[Maggie123]

Yea Maggie I read the whole article after I posted.. oops!

 

No problem... and it is nice to have you back... we sure missed you around here.

 

 

This Is An Outrage !

Why Should They Be Allowed To Fire A Worker For Having A Tooth ...

:D

 

     

[waterman13]

Right to work laws are good in ways but can be over stepped by employers who wants something or someone different. Ex: lets say a person was doing their job according to protocol but a certain supervisor was under pressure from the bosses sister to hire her son out of school but there were no open slots unless someone was released. So the supervisor starts planning the failure of that person in some way to be fired, hence opening that job slot for the boy..........did the person doing his job correctly deserve that....not in my book.......now let me say that this freedom to fire or let go at will is good if someone is slacking or laying out.....the point I am trying to make is I have seen this very example committed for one reason many times over my 61 years working public jobs.

Heavy.

Was in a similar position when one of my asst. managers (who was doing good work, made some mistakes, but was trying) when the co-owner of the company made me fire him because my other asst. manager (co-owner's son-in-law) (who didn't do his job well) didn't get along with him. I left the company a year later after they never got me anymore help, and I was doing three people's jobs.

Wm13

[Muleslayer]

that figures...

let's see what happens to you when YOU are a victim of injustice someday...

Meanwhile, why don't you move to Alabama...

As for the "Supreme" Court

They'll probably vote with Alabama and not people who tell the truth.

To late has happened several times in my life.

I pick MYSELF back up and start over! Okay to be fair a little help from family. As it should be.

Sure I spend a few days whining and crying about it.

Then I get over it and MOVE ON! Life is not fair! Boo Hoo poor me.

You could move completely out of America! Try Afghanistan and see how tolerant they are of your views.

I will even donate my john boat to the effort of getting you there.

You REALLY should consider putting me back on ignore!

Edited May 4, 2014 by Muleslayer

[SnowGlobe7]

Funny...my boss is wanting me to lie to everyone right now..or I could lose my job.