The case Montero v. Yonkers involves a City of Yonkers police officer, Raymond Montero. Montero filed a federal lawsuit alleging his First Amendment rights were violated. In his lawsuit, Montero alleged that he was elected vice-president of the PBA, the union in place for the Yonkers Police Department. One of the defendants, also a Yonkers police officer, Keith Olson, was elected president. According to Montero, Olson opposed Montero’s candidacy for the vice president position.

Following the election, Montero made comments at union meetings. At one meeting, Montero criticized Olson’s relationship with the police commissioner and that the commissioner’s decision to change some policing units would hurt the police department, the community, and the union. Several months later, Montero called for a no confidence vote for the police commissioner.

Montero alleged that after he made these comments at union meetings, Olson and other police officers acting at Olson’s direction retaliated against Montero. For example, he alleges he was wrongfully investigated, denied overtime pay, transferred, and lost pay.

Based on these facts, Montero filed a First Amendment retaliation case in the Southern District of New York. The Court, however, dismissed all of the claims. The judge held that Montero’s actions were not protected by the First Amendment because he was not speaking as a private citizen. The court relied on the Supreme Court case Garcetti v. Ceballos. Montero appealed the dismissal to the United States Second Circuit Court of Appeals.

On May 16, 2018, the Second Circuit issued its decision. The court reaffirmed the principle that public employees are indeed entitled to some protection from the First Amendment. But, not all speech made a public sector employee is entitled to protection. Rather, the public employee must be speaking as a citizen on a matter of public concern. The Montero case hinged largely on the first part of the test which is whether Montero was speaking as a citizen.

In previous decisions, courts have held that to determine whether an employee is speaking as a citizen, courts should look at whether the speech has a citizen analogue and whether the speech was outside the employee’s official responsibilities. The Second Circuit held that these questions are factors. The primary question is whether the speech was within the employee’s duties. Ultimately, courts must look at whether the speech was part and parcel of the employee’s concerns about being able to do his or her job properly.

In Montero, the court held that his comments were not part of parcel of his concerns about his ability to do his job. The court found it persuasive that Montero was speaking as a the union vice-president noting that this was a role in which he was not required to serve as part of his job. Moreover, the court noted that although Montero learned the information he spoke about because of his job, it was not part of his job responsibilities. But, the Second Circuit did not adopt a broad rule as other courts have adopted which says that all speech made by an employee in his or her capacity as a union member is speech made as a private citizen.

The Montero decision is an important case about First Amendment retaliation in New York. The case clarifies what employees must show to be protected by the First Amendment in the workplace. The Montero case can certainly be read as an employee friendly decision.

The Long Island employment lawyers at Famighetti & Weinick PLLC are experienced in handling First Amendment retaliation cases in New York. If you have questions about the First Amendment, the Montero decision, or public sector labor law, contact an employment lawyer at 631-352-0050.

Retaliation in Suffolk and Nassau Counties Long Island

Retaliation can and does take place in Long Island’s workplaces. Only certain activities, however, can trigger protections against workplace retaliation on Long Island. The federal anti-discrimination statutes provide protections. For example, Title VII of the Civil Rights Act protects employees who complain about or oppose discrimination. It further protects employees who participate in EEOC discrimination investigations or testify in discrimination lawsuits. The Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA), all have similar protections for employees who exercise rights under the statutes.

Like its federal counterpart, the New York State Human Rights Law also prohibits retaliation in Long Island workplaces for employees who exercise rights under the Human Rights Law.

The anti-retaliation provisions of the discrimination laws prohibit employees from taking adverse employment actions against employees in New York. Adverse employment actions are any actions which may dissuade a reasonable employee from exercising their rights under the laws. Actions may include demotions, reductions in pay, termination, or any other action which may disadvantage an employee at work or hinder the employee’s opportunity to advance at work.

Whistleblower Protection on Long Island

New York’s Labor Law Section 740 is known as New York’s Whistleblower law. It prohibits employers from retaliating against New York employees who disclose or threaten to disclose a workplace activity or policy which violates a law or regulation and which creates a substantial and specific danger to the public health or safety or which is health care fraud. The Whisteblower law also protects employees who refuse to participate in any such conduct. The New York Whistleblower law protects only very specific conduct, so employees who believe they may have a whistleblower lawsuit should contact an employment lawyer to discuss the matter.

First Amendment Retaliation on Long Island

The First Amendment prohibits the government and government officials from retaliating against citizens on Long Island who exercise rights granted under the First Amendment. It applies to public employees, such as employees who work for Nassau County, Suffolk County, the Town of Hempstead, the Town of North Hempstead, the Town of Oyster Bay, the Town of Smithtown, the Town of Huntington, the Town of Brookhaven, the Town of Islip, the Town of Babylon, the Town of Southampton, or the Town of Riverhead. It also applies to employees of cities and villages such as Long Beach, Hempstead, Glen Cove, and Freeport. School teachers, principals, and other school district employees are also protected by the First Amendment. First Amendment rights include free speech, religious freedoms, political association freedoms, and the freedom to associate with family and to protest the government.

The First Amendment not only protects public employees, but it protects all of Long Island’s citizens. The government cannot retaliate against citizens who express their political views, grieve the government, or exercise religious freedoms.

Long Island Retaliation Lawyers Famighetti & Weinick

Famighetti & Weinick PLLC are employment lawyers on Long Island who represent New York employees in retaliation lawsuits. Famighetti & Weinick PLLC also represent citizens of Nassau and Suffolk counties in First Amendment retaliation lawsuits. The retaliation laws can be complicated. For more information about retaliation laws and retaliation lawsuits, call a Long Island employment lawyer at Famighetti & Weinick PLLC at 631-352-0050. We also have more information about retaliation lawsuits our website at https://www.linycemploymentlaw.com.