The Scabby Saga Continues

The battle over Scabby the Rat took another turn on July 21, 2021, when the National Labor Relations Board issued its anticipated decision and order in International Union of Operating Engineers, Local 150 and Lippert Components, Inc.

Scabby is a large, 12-foot-high inflatable rat with red eyes, menacing fangs, and claws. Unions often use it to inform the public that they have a dispute with a non-union employer. The rat often is used in construction trades when a non-union contractor provides services at a worksite. Additionally, as part of street theatre, many unions use the rat—along with large banners and union representatives standing nearby—to publicize their disputes with non-union employers, known as the primary employer for labor law purposes. More ›

Whole Foods Prevails Against Racial Bias Claims

With political and social activism surging in the workplace, Frith et al. v. Whole Foods Market Inc. et al., may prove to be the tip of the iceberg when it comes to employee discrimination claims. At issue in the polarizing case decided in a Massachusetts' federal court was whether Whole Foods violated federal discrimination laws when it barred employees from expressing support for the Black Lives Matter movement by wearing masks and apparel referencing BLM. More ›

Political and Social Activism Surges in the Workplace: Five Issues for Employers to Consider

Six months into a global pandemic, employers across the United States continue to confront a series of new economic realities. One particular phenomenon employers are having to deal with is a surge of political and social activism in the workplace. Individuals across the country are voicing opinions in what can only be described as a highly polarized political environment. Many employees are expressing their viewpoints both on social media and in the workplace, and it is unreasonable to expect these conversations will not happen during working hours. More ›

Electioneering at the Water Cooler: Protections and Pitfalls of Politics in the Workplace

With the 2020 U.S. Presidential Election less than a year away, political conversations and activities are seeping into almost every aspect of daily life—even the workplace. While discussions on the topic can be harmless, they may also be heated. The Seventh Circuit's decision in Daza v. State of Indiana serves as a cautionary tale and reminder to both public and private employers to proceed with caution when it comes to politics in the workplace. More ›

Seventh Circuit Rules Termination Based on Political Affiliation Was Lawful

As a result of the 2018 midterms, many public offices will be transitioning from one political party to the other. In a timely decision, the Seventh Circuit recently reaffirmed that government entities have the right to discharge employees for political reasons, including political affiliation, in certain circumstances. More ›

Perception is Everything: Supreme Court Expands First Amendment Protections for Public Employees

In a decision that may expand the "zone of interest" protected by the First Amendment via 42 U.S.C. §1983, the Supreme Court in Heffernan v. City of Paterson, strengthened free speech rights for public employees by holding a public employee may bring a suit premised on his engagement in protected political activities, even when the employee did not engage in those activities, and the employer was mistaken in its belief that he had.

The Case

The city demoted a police officer (Heffernan) after it believed Heffernan was holding a campaign sign supporting a mayoral candidate and speaking to the candidate’s campaign staff. The demotion was intended as punishment for Heffernan's "overt involvement" in the campaign. However, the city was mistaken about his political activity, because Heffernan was only transporting the challenger's sign to his sick mother, at her request. More ›

Ninth Circuit: Police Officer’s Complaints Regarding Safety Matters are not Protected Speech

In this case, a police officer was removed from his position on the K-9 team after it was determined that he, as well as other officers on the team, had serious performance issues that posed a significant risk to team safety. The officer then brought suit against his employer and various other officers alleging that that he was deprived of his constitutional rights in that he was retaliated against for exercising his free speech rights under the First Amendment. Essentially, the officer claimed that he was terminated because he voiced various concerns about the K-9 team's ongoing safety problems and the accidental discharge of weapons. The matter was tried to a jury, who found unanimously that the officer was retaliated against. The employer moved for a judgment as a matter of law, which was denied. The employer appealed. More ›

Employee’s Facebook Venting not Protected Speech

A police officer had a Facebook page which was set to "private," but was viewable to any of her numerous Facebook "friends," who could then potentially distribute material on her page more broadly. On her page, she had posted a comment criticizing an investigator in her department. The department had a work rule requiring that any criticism of a fellow officer be directed through official department channels, and should not be used to to the disadvantage of the reputation or operation of the department or employees. More ›

Police Sergeant Engaged in Protected Activity when Complaining About Gender Inequality

Last month we reported to you the case of a public school principal whose First Amendment and retaliation claims were stricken by the Court due to the fact that she was not speaking as a private citizen, and thus, her speech was not protected. On the other side of the coin, here, the Third Circuit finds that a triable claim exists where a public employee articulates complaints of sex discrimination in the police force, because such speech implicates matters of public concern.  More ›

Employee Failed to State Valid First Amendment Claim Because she was Speaking Pursuant to her Official Duties

A former school payroll employee reported incidences of fiscal irregularities to the superintendent, and later reported the same concerns to an outside consultant. Thereafter, she was suspended when it was discovered she falsified her employment application. In response, the employee wrote a personal letter to individual board members expressing frustration with how the superintendent responded to fiscal concerns, and that her suspension was in retaliation for reporting fiscal malfeasance. The superintendent recommended the employee’s termination, which the board approved, and the termination was later made official following a disciplinary hearing. More ›