Wage Law

Yesterday, the U.S. Supreme Court held, in Garcetti v. Ceballos, that government employees do not have unfettered free speech rights when discussing government business. The case makes it for more difficult for government employees to bring retaliation lawsuits when they are fired or suffer other adverse employment actions after engaging in whistleblowing against for public entites. Justice Kennedy wrote, for the majority, that the First Amendment does not protect "every statement a public employee makes in the course of doing his or her job." The decision was a 5-4 majority, with Justice Alito casting the swing vote. The case had been reargued following Sandra Day O'Connor's departure from the court.

In Ceballos, the Los Angeles County District Attorney's office appealed an appellate ruling in favor of a prosecutor who wrote a memo questioning whether a deputy sheriff had lied in an affidavit. Ceballos was later demoted, and claimed that the demotion was payback for his exposure of the lie.

The ruling is of some interest to wage and hour lawyers in California because it could have an effect upon the plight of Miles Locker, who was fired by the Labor Commissioner for expressing opinions that were politically unpopular among the new Schwarzenegger appointees. Locker's case can be factually distinguished from Ceballos, however, and some commentary in the dissent might give Locker's attorney's some further hope, where Justice Stevens wrote that "[t]he notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong." Locker's speech occurred in his capacity as a private citizen.