Heyl Royster

 

Whistleblower Protection For Public Employees

The U.S. Supreme Court unanimously held that a public employee's sworn testimony, given under subpoena, which was outside the scope of his ordinary job duties, was entitled to protection by the First Amendment. Lane v. Franks, 134 S.Ct. 2369 (2014).

In this case, Lane, was employed as a program director at Central Alabama Community College ("CACC"). Lane discovered that a state legislator was on the program's payroll, but had never reported to work. Lane terminated the state representative and stopped paying her. When the state representative was investigated, Lane was subpoenaed to testify at her criminal trial where she was eventually convicted of mail fraud and theft. The College's President, Steve Franks, terminated Lane, allegedly due to financial reasons. In response, Lane sued Franks, in his official and individual capacity, under 42 U.S.C. 1983 claiming that Franks violated the First Amendment when he terminated Lane as retaliation for testifying against the state representative.

The Supreme Court ruled that Lane's testimony was protected by the First Amendment, determining that he testified as a citizen, not as an employee. The Court further held that the information was merely obtained in the course of Lane's employment, was not directly related to his employment, it was a matter of public concern and the College failed to demonstrate any interest that outweighed Lane's right to speak on the matter.

Government employees enjoy greater whistleblower protection after Lane v. Franks, with the Court's holding that the First Amendment protects public employees who provide truthful, sworn testimony. Although the opinion was limited to public employees who testify outside the scope of their employment, whether information is directly or indirectly related to employment may be a gray area for lower courts. Public employers are encouraged to consult with legal counsel when considering an employment action against any employee who has given testimony or participated in other whistleblower activities.