The United States Supreme Court has heard arguments in an interesting case that involves First Amendment protections for free speech and the interplay with whistleblower protections. There are a number of gaps in whistleblower protection laws, particularly when the employee works for the state or federal government. Many of the protections for government employees do not extend to every worker or only address the actions of specific government agencies. This case, Lane v. Franks, 13-483, is expected to be decided by June 2014.
This case deals with the issue of what protections exist for employees who testify in court against their employers. The philosophy behind the various whistleblower protection laws is that an employee should not be punished for doing the right thing and reporting wrongdoing in the workplace. However, what happens when no specific law applies to a particular employee who is drawn into legal proceedings against his employer and is subpoenaed to testify. In the case of Edward Lane, who was employed by an Alabama community college program, he was fired.
Mr. Lane began working as a director of a college youth program in 2006. Shortly after he began his new position, he learned that state representative Sue Schmitz was on the payroll, but did not regularly appear in her listed capacity. As a result, Mr. Lane terminated Representative Schmitz, but was warned that the action could lead to the termination of his own job. Soon thereafter, Mr. Lane was subpoenaed to testify in a legal action against Schmitz. He was terminated after testifying at the first of two fraud trials. Both the federal district court and the 11th United States Circuit Court of Appeals ruled against Lane, with the district court finding that the First Amendment did not protect Lane testifying as an employee and the 11th Circuit upholding the lower court’s decision.
The Supreme Court now is considering arguments that the First Amendment offers protections against retaliation for these employees. In previous cases heard by the Court, the Justices have found that the First Amendment only protects individuals who are speaking out in the capacity of private citizens and not in their roles as employees testifying about their jobs. Although many of the Justices seemed to believe that protection for employees reporting about government wrongdoing was very important, even if that information was learned while working for the government, the question seemed to be how broad the protection should be. There are many instances where offering testimony in court is part of the job duties of an employee, for example a criminal investigator who routinely appears in court to present evidence in ongoing cases. The issue appeared to be whether First Amendment protections should be extended so far that these instances were covered.
It appeared that some of the Justices were making a distinction that if testifying in court was not part of the job description of the employee, then in the moment when he was testifying as the result of a subpoena, he was acting as a private citizen. This position was supported by the deputy solicitor general arguing on behalf of the Obama administration, who asserted that the First Amendment protections should be extended to government employees except for those who routinely investigate and testify in court.
This case is being closely monitored by organizations that work towards whistleblower protections against retaliation. Whistleblower laws have been evolving over many years. Depending on the decision of the Supreme Court in this case, there may be more changes to ensure that all employees are encouraged to report instances of misconduct and fraud.
The Mississippi Qui Tam/Whistleblower Attorneys at Barrett Law PLLC are dedicated to maintaining our skills in these types of cases as the law continues to change. We work hard to ensure that our clients get the benefits of these protections. If you have been the victim of retaliatory actions by your employer, call us at (601) 790-1505 to learn how we can help you.
