United States Supreme Court Provides Further Guidance on First Amendment Protections for Public Employees

In an important case for all public employers, the U.S. Supreme Court recently held that employee grievances are not per se protected speech under the First Amendment. In Borough of Duryea v. Guarnieri, the plaintiff, a police chief in Pennsylvania, filed a grievance challenging his termination. After an arbitration hearing between the plaintiff's union and the borough's administrative council, the entity responsible for plaintiff's termination, plaintiff was reinstated as police chief.  Upon plaintiff's return to his position, the council issued plaintiff performance directives as part of his reinstatement. Plaintiff filed a lawsuit against the administrative council, arguing that his initial grievance was protected by the Petition Clause under the First Amendment and that the performance directives issued by the council were in retaliation for his protected activity.

In its decision, the Court reversed the lower court's opinion, holding that employee grievances and petitions are not automaticallyprotected speech under the First Amendment.  The Court reasoned that public employee grievances must be analyzed pursuant to the "public concern test" articulated by the Court in earlier cases related to protected speech claims – specifically, when a public employee sues a public employer under the First Amendment, the employee must show that he or she spoke as a citizen on a matter of public concern and demonstrate that the employee's interests in engaging in the protected speech outweigh the interests of the public employer in promoting the efficiency of the public services it performs through its employees.  The Court reiterated that an employee grievance that involves nothing more than a complaint about a change in an employee's job duties does not relate to a matter of public concern.  Finally, the Court stressed that unrestrained application of the Petition Clause and First Amendment would subject public employers to invasive judicial supervision over every employee grievance related to the employer's operations.