Labor & Employment Law

Terminated Volunteer Wins First Amendment Case

Terminated Volunteer Wins First Amendment Case
Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

In a major employment law case of first impression, an uncompensated volunteer's jury verdict in her favor was upheld even though she was not an employee. The case is Lynch v. Town of Southhampton, ___F.3d___(2d Cir. Dec. 2, 2008). Unfortunately, the appellate court did not address the issue of whether a volunteer can bring a First Amendment challenger to her discharge because the defendant here failed to properly preserve that issue for appellate review.

The plaintiff had claimed that she was terminated in retaliation for writing letters to the editor, to T.V. and for filing a lawsuit.

Volunteers are generally not protected under our nations employment laws. Why? Because they are not employees. Whether they can bring a First Amendment or other constitutional claim, however, remains a very interesting unresolved question.

Mitchell H. Rubinstein

NYPPL comment: Only rarely does one find litigation involving the separation of a volunteer worker. One such case: Wonder v Hyland, CA9, 127 F3 1135. Roy L. Wonder was a volunteer with a juvenile probation department for 10 years. He alleged that he was "fired" from his position in retaliation for writing a memorandum critical of the facility's management. The U.S. Circuit Court of Appeals held that volunteers have the same First Amendment right to speak on matters of public interest that government employees enjoy [Pickering v Board of Education, 391 US 563] despite the fact that they were not technically government employees.

Full post as published by New York Public Personnel Law on January 22, 2009 (boomark / email).