Government Employee's Civil Rights

The United States and New Jersey Constitutions provide protections to all citizens against unjust actions by the government.  Employees do not give up these civil rights just because they work for the government.  Even in its role as an employer, the government must respect its employees’ civil rights.

McLaughlin & Nardi’s employment attorneys have been fighting for New Jersey employees’ civil rights for many years.  Our employment lawyers have made a commitment to helping public employees gain redress from the government’s violation of their civil rights.

Both New Jersey and federal law prohibit governments from taking actions that deprive people – including their employees – of their constitutional rights.  Our attorneys make aggressive use of both the New Jersey Civil Rights Act and Section 1983 of the federal Civil Rights Act to vindicate the rights of employees which have been violated by their government employers.

• Substantive Due Process – Substantive due process protects employees against arbitrary action by their governmental employer by the exercise of its power without any reasonable justification that it is pursuing a legitimate governmental objective.  In other words, the government must treat its employees fairly.  However, to have due process rights, the employee must have some vested interest in her job, such as tenure (not just teachers have tenure, most governmental employees go from being “probationary” to having protections from firing, which counts as the “tenure” needed for them to have due process rights).
• Procedural Due Process – Procedural due process constrains governmental decisions which deprive individuals of liberty or property interests, such as governmental employment.  Essentially, procedural due process requires that a government employee be given notice and the opportunity for a hearing before she is deprived of any her job, assuming that, as in substantive due process, some form of tenure has been achieved.  Normally this is satisfied through civil service or tenure appeals, provided meaningful consideration is given.
• Equal Protection Rights – The government cannot deny people – including its own employees – equal protection under the law.  It must treat similarly situated employees alike.
• Free Speech Rights  – The First Amendment provides that a public employee has a constitutional right to speak out on matters of public concern without fear of retaliation.  Speech made by an employee in the course of her duties or solely on her own behalf, however, is not protected.
• Political Affiliation Rights – The government, or any government supervisor,  cannot take action against an employee because of what her political affiliation is, or even the fact that she has no political affiliation.  Personnel decisions for officials who make policy, however, can take into account political affiliation.
• Religious Freedom – Government employers may not make personnel decisions based on an employee’s religious beliefs.
• Federal Statutory Law  – Section 1983 also provides a remedy for violation of some federal laws.  The employee will be able to sue if the law creates binding obligations on the government, was intended to benefit the someone in the employee’s position, and does not provide its own remedy or expressly preclude a suit.
• Our employment attorneys are committed to fighting for New Jersey government employees when their rights have been violated by their public employers.

The original law allowing public employees to sue their government employer is the federal law known as “Section 1983.”

Shortly after the Civil War, during Reconstruction, Congress passed a series of laws to protect the rights of freed slaves, culminating in the Fourteenth Amendment in 1868, providing that citizenship, due process and equal protection to all people.  However, the Fourteenth Amendment had no enforcement provisions. President Grant urged Congress to pass a civil rights enforcement law in response to rampant violence, often with the collusion of local government officials, aimed at freedmen and southerners who supported the Union during the Civil War.  In response, Congress enacted the Civil Rights Act of 1871, also known as the “Ku Kux Klan Act” since one of the evils it addressed was the acts of the Klan.  This law lives on in 42 U.S.C. § 1983, or “Section 1983.”

In short, Section 1983 allows people to file a lawsuit against those who use the law to deprive others of their rights under the United States Constitution or federal laws. Simply put, the government and government officials cannot abuse their power to deprive people of their rights.

Suits under Section 1983 can be brought in New Jersey Superior Court or federal court, although defendants can remove suits from state court to federal court.  Employees have the right to a trial by jury.  Successful employees can recover compensatory damages, such as lost pay and emotional distress, and sometimes punitive damages.  Successful employees may also have their litigation costs and attorneys fees paid for by the defendants.  People and governmental entities who violate these rights can be sued, although the state government and its employees are immune from suit under Section 1983 because of the Eleventh Amendment.

Our attorneys have successfully litigated Section 1983 suits in New Jersey’s federal and state courts.  We are committed to fighting for employees’ civil rights.

In 2004, Governor McGreevey signed the New Jersey Civil Rights Act.  The Act was designed to be the state counterpart to § 1983 of the Civil Rights Act of 1871, and to provide a remedy for violation of state, as well as federal rights.  This was important for several reasons.  First, the State of New Jersey and its employees are immune from suit under Section 1983, but the New Jersey Civil Rights Act provides suits against the state government and its employees. Second, the New Jersey Superior Court is more favorable to employees than federal court.

The New Jersey Civil Rights Act prohibits any person or entity from depriving employees of the protections of the state and federal constitutions and laws.  All of a person’s constitutional rights are protected, including due process, equal protection, and free speech.

The Act protects government employees, as well as citizens at large.  If their rights are violated, they can bring suit in New Jersey’s Superior Court.  Employees are entitled to have their civil rights suits decided by a jury of their peers.  If an employee wins, in addition to compensatory damages, such as lost pay and emotional distress, she may also recover her attorneys fees and litigation costs, and possibly punitive damages.

Our employment attorneys make aggressive use of the protections of the New Jersey Civil Rights Act in fighting for employees’ rights.

Call us at (973) 890-0004 or e-mail us to learn how we can help vindicate your civil rights as a government employee.