A KANSAS CITY AREA EMPLOYMENT ATTORNEY FOR KANSAS EMPLOYEES

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RETALIATION

The discrimination
laws make it illegal for
an employer to
retaliate against an
employee who
exercises rights
under the federal
employment laws.  
Thus, as long as an
employee makes a
reasonable and good
faith allegation of
discrimination, his
employer cannot
retaliate against him.  
If the employer does,
this creates an
entirely new violation
of the law.

If your employer
takes any
employment action
after you have
complained about
discrimination, your
rights might have
been violated.
Kansas employment law attorney representing Kansas employees in employment disputes
concerning race, age and gender discrimination, disability issues, family medical leave (FMLA), civil
rights, due process, sexual harassment, wage and hour disputes, wrongful discharge and
termination in Kansas City, Johnson County, Overland Park, Topeka, Wichita, and across the state
of Kansas. Kansas employees who believe their employment rights have been violated should
contact a competent Kansas employment rights attorney who knows federal and Kansas law.  
Updates: Federal and Kansas Employment Cases
     DEVELOPMENTS IN FREE SPEECH CASE LAW   

     In Garcetti v. Ceballos, a case that the Supreme Court
decided in May 2006, the issue had to do with the First
Amendment rights of a public employee, namely, a deputy district
attorney who helped to prosecute criminal conduct.  Typically,
when a public employee speaks out on matters of public concern,
his employer cannot punish him for doing so because a public
employee continues to be a citizen and to enjoy constitutional
rights, including First Amendment rights.  However, it is important
to keep in mind that these First Amendment rights only apply to
public employers since the United States Constitution does not
generally apply to the private sector.  The private sector employee
who believes that he has been retaliated against for speaking out on
an issue must bring a state whistle blower case unless he is
protected under OSHA and the new Sarbanes-Oxley bill.
     In Ceballos, the issue was whether the attorney's speech, a
memorandum in which he criticized an affidavit provided by a
police officer in a criminal case, was protected speech under the
First Amendment.  The Court held that it was not because it was
speech made as part of Ceballo's job duties and he was not
speaking as a citizen.  Thus, even if his employer retaliated against
him, the retaliation would not be unlawful under the federal
constitution.
     Although it is possible that a Kansas employee could bring a
whistle blowing claim, also called a wrongful discharge or wrongful
termination claim, the employee would probably not be successful.  
The Kansas state courts often follow the lead of federal cases in
matters like this.  The Kansas courts would likely hold that it was
not contrary to public policy to fire or demote an employee whose
speech was only a part of their job and not made as a citizen in
general.
     In Ceballos, it is possible that if the attorney had gone to the
newspaper and complained that the police were routinely using
false affidavits to get convictions, and that this was causing
innocent people to go to jail, his speech would be protected.  Now,
he would have stepped out of his role as an employee and into his
role as a citizen.  The question becomes whether the employee's
speech is so disruptive to his work place that the employer can
terminate him.  This results in an important balancing test where
the speaker's rights and the right of the public to know are balanced
against the employer's right to run an efficient government
operation.  More often than not, this balance falls in favor of the
employee.
     Here is a link to one the Supreme Court's most important
opinions on this issue.  Click on Pickering.
Michael M. Shultz

913-385-9955