Teacher who Reported That Another Teacher Improperly Coached Students is not Protected Under First Amendment

Cohen v. NYC Department of Education, ____Fed. Appx.____(2d Cir. Sept. 20, 2017), demonstrates just how narrow the protection are for public employees under the First Amendment. There, a teacher noticed that students in another teacher's class received perfect scores. He suspected that the teacher improperly coached his students. He then received negative ratings and argued that was because of his report. The 2d Circuit held that the teacher's conduct here was not protected under the First Amendment, reasoning:

Only certain types of speech made by government employees are protected by the First Amendment: it is necessary (but not sufficient) that the government employee “sp[eak] ‘as a citizen’ rather than solely as an employee.” Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)). There is no “brightline rule” to determine whether or not “a public employee is speaking pursuant to [his] official duties,” i.e., speaking as an employee rather than as a citizen. Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). “Courts must examine the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Id. 

In Weintraub v. Board of Education, a teacher alleged retaliation after complaining that a school administrator had declined to punish a student who had thrown books at the teacher. 593 F.3d 196, 198 (2d Cir. 2010). The teacher’s complaint was made “pursuant to his official duties because it was part-and-parcel of his concerns about his ability to properly execute his duties as a public school teacher-- namely, to maintain classroom discipline.” Id. at 203 (citation and quotation marks omitted). Consequently, the teacher spoke as an employee rather than as a citizen.

So too here. Cohn and the other earth science teachers were responsible for setting up the laboratory exam, creating the answer key, and grading the exam. As in Weintraub, Cohn’s speech was “part-and-parcel” of his job responsibilities--here, ensuring the fair and proper administration of a test for which he had some responsibility. Id. The alert to school officials that another teacher may have helped students cheat was therefore “pursuant to his official duties.” Id. Accordingly, Cohn was speaking as an employee--rather than as a citizen--and his speech is unprotected by the First Amendment.

SDNY Approves FLSA Collective Action For Unpaid Overtime

Garcia v. 34th Street Coffee, ____F. Supp. 2d ____(S.D.N.Y. Aug. 30, 2017), NYLJ Sept. 11, 2017 (registration required), is brought to your attention because the Court does an excellent job of summarizing the standards for a collective action under the FLSA for unpaid Overtime. As the Court stated:

The Second Circuit has endorsed a two-step process for determining whether an action may proceed collectively under Section 216(b). See, e.g., Myers, 624 F.3d at 554. In the first stage of the analysis, a district court must make an initial determination as to whether the named plaintiffs are "similarly situated" to the putative collective members. Id.; see also Gauman v. DL Rest. Dev. LLC, No. 14 Civ. 2587 (RWS), 2015 WL 6526440, at *1 (S.D.N.Y. Oct. 28, 2015) ("The Court is not concerned with weighing the merits of the underlying claims, but rather with determining whether there are others similarly suited who could opt into the lawsuit and become plaintiffs."); Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010) (quoting Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)). If a plaintiff makes a "modest factual showing" that she and the potential opt-in plaintiffs "together were victims of a common policy or plan that violated the law," conditional certification and court-facilitated notice is appropriate. Myers, 624 F.3d at 555 (citation omitted); see also Cunningham, 754 F. Supp. 2d at 644; Lynch, 491 F. Supp. 2d at 368. This initial phase is often termed the "notice stage." Lynch, 491 F. Supp. 2d at 368.
The second stage, after discovery is completed, is where "if it appears that some or all members of a conditionally certified class are not similarly situated," a "defendant may move to challenge certification, at which point a court will conduct a more searching factual inquiry as to whether the class members are truly similarly situated." Viriri v. White Plains Hosp. Med. Ctr., No. 16 Civ. 2348 (KMK), 2017 WL 2473252, at *2 (S.D.N.Y. June 8, 2017) (internal quotation marks omitted) (quoting Jenkins v. TJX Cos., 853 F. Supp. 2d 317, 320-21 (E.D.N.Y. 2012)). At that time, "[i]f the claimants are indeed similarly situated, the collective action proceeds to trial, and if they are not, the class is decertified, the claims of the opt-in plaintiffs are dismissed without prejudice, and the class representative may proceed on his or her own claims." Malloy v. Richard Fleischman & Assocs. Inc., No. 09 Civ. 322 (CM), 2009 WL 1585979, at *2 (S.D.N.Y. June 3, 2009) (citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006).

Confidentiality Rule That Prohibits Discussions About Salary Violates The NLRA

NLRB v. Long Island Association, ___F. 3d___(2d Cir. Aug. 31, 2017, is an interesting decision. The Court holds that an employer violated 8(a)(1) of the NLRA for discharging an employee who refused to sign an employer's confidentiality rule. That rule, among other things, stated that employees cannot disclose salaries. Of interest is that this employer was not organized and this is yet another example of the application of the NLRA to non-union employers. As the court stated:

 “The [NLRB] has long adhered to and applied the principle that discipline  imposed pursuant to an unlawfully overbroad rule is unlawful.” The Cont’l Grp., 3 Inc., 357 N.L.R.B. 409, 410 (2011). This is called the Double Eagle rule after Double  Eagle Hotel & Casino, 341 N.L.R.B. 112 (2004). See The Cont’l Grp., Inc., 357 N.L.R.B. 5 at 410. One of the central concerns animating the Double Eagle rule is that “the  mere maintenance of an overbroad rule tends to inhibit employees who are  considering engaging in legally protected activities by convincing them to refrain  from doing so rather than risk discipline.” Id. at 411. Thus, “[a]n employer is not free to evade liability through the device of utilizing a rule prohibiting activity protected by Section 7 of the [NLRA] and by then basing its discipline on the fact that the employee has violated the rule, thereby being insubordinate.” Kolkka  Tables & Finnish‐Am. Saunas, 335 N.L.R.B. 844, 849 (2001). In other words, “an employer may not discharge an employee for refusing to comply with an unlawful order prohibiting protected activity.” Quantum Elec., Inc., 341 N.L.R.B. 15 1270, 1280‐81 (2004). The rule that has emerged, therefore, is “that an employer  may not take coercive action against an employee . . . for refusing to comply with a policy that . . . itself deters protected activity” in violation of Section 8(a)(1)