Connecticut Employees Gain Broader Free Speech Rights
- By Your mom
- •
- 03 Jun, 2016
The Connecticut Supreme Court recently weighed in on the scope of employee free
speech rights in the workplace. Trusz v. UBS Realty Investors, LLC. In doing so, it expanded
the protections afforded employees when speaking out on matters of public concern, including
those related to their job duties. The Court’s interpretation will bolster the rights of
whistleblowers reporting job related wrongdoing, and better protect employees speaking out on
serious job related issues.
Free speech rights originate from the First Amendment of the U.S. Constitution, and
Article I, §§ 4,5 and 14 of the Connecticut Constitution. Conn. Gen. Stat. § 31-51q provides a
statutory remedy for employees disciplined or fired for exercising their free speech rights at
work. The statute protects both private and public employees.
Over the years, the U.S. Supreme Court has provided guidance on the scope of free
speech rights in the workplace under the federal Constitution. The federal test is known as the
Pickering/Connick balancing test, modified by Garcetti.
In Pickering the Court recognized that a public employer may regulate employee speech
by applying a balancing test that weighs the interests of the employee, as a citizen, in
commenting upon matters of public concern against the interest of the state, as an employer, in
promoting the efficiency of the public services it provides. This test was refined in Connick,
which stated that if a government employee's speech cannot be fairly characterized as
constituting speech on a matter of public concern, it does not enjoy first amendment protections.
Thus, under the Pickering/Connick balancing test, employee speech in a public workplace is
protected from employer discipline if it involves a matter of public concern, and the employee's
interest in commenting on the matter outweighs the employer's interest in promoting the efficient
performance of public services.
This test was narrowed in Garcetti v. Ceballos, which held that even if the speaker is
discussing matters of public concern, if those matters encompass official job duties, the speech is
not protected by the first amendment. As a result, when analyzing federal free speech claims, a
court must first determine if the employee was speaking as an employee pursuant to his/her
official duties, or as a citizen speaking on non-work related matters of public concern. If the
employee is found to have been speaking as an employee the speech is unprotected. However, if
the employee is found to have been speaking as a citizen on public matters not associated with
official job duties, the court will apply the Pickering/Connick balancing test to determine if the
employee’s right to speak outweighed the employer’s interests in performing its function. In
doing so the court will look at the extent of disruption caused by the speech on workplace
discipline, co-worker harmony, working relationships, the employee’s job performance, the
employer’s responsibilities, and whether the speech was made publically or privately.
While the Connecticut Supreme Court applied this test to federal claims, the question of
employee speech rights under the Connecticut Constitution remained somewhat unsettled. In
2012 the Connecticut Supreme Court issued companion rulings in Schumann v. Dianon Systems,
Inc., and Perez-Dickson v. City of Bridgeport. Those cases reinforced that the federal test
applies only to federal claims made by either private or public sector employees. Left open was
whether the state Constitution bestowed broader free speech rights to public and private
employees than its federal counterpart.
In Trusz the Court answered the question in the affirmative. The new test applicable to
free speech claims brought under the state Constitution modifies the Pickering/Connick
balancing test, and eliminates the Garcetti requirement that an employee prove he was not
speaking out on a matter tied to his official duties. Under this modification, while not every
employment dispute will be protected, if the speech is connected to an employee’s job related
concerns about official dishonesty, deliberately unconstitutional action, other serious
wrongdoing, or threats to health and safety, it will not be automatically dismissed, but will be
subjected to the Pickering/Connick balancing test.
In fashioning the new test, the Connecticut Supreme Court adopted Justice Souter’s
dissent in Garcetti, in which he argued that his “test properly balances the employer's heightened
interest in controlling employee speech pursuant to official job duties—an interest that Pickering
did not specifically address—and the important interests of the employee and of the public in
allowing employees to speak without fear of retaliation about matters of particularly acute public
concern—interests that the Garcetti standard fails to protect.” The Court went on to state that
the new test will apply to both public and private employees who bring suit via 31-51q
contending a violation of the Connecticut Constitution.
In sum, the new rules are as follows. Free speech claims brought by both private and
public employees under the federal constitution are analyzed under the Pickering/Connick test as
modified by Garcetti. Therefore, if an employee was disciplined or discharged for speech that
touches on their job, the speech will not be protected. Only if the employee is speaking as a
citizen on a matter of public importance that is not related to their job, and their right to speak
outweighs their employer’s interests, will the speech be protected.
In contrast, free speech claims brought by either private or public employees under the
Connecticut Constitution will be analyzed under the Pickering/Connick test as modified by
Justice Souter’s dissent in Garcetti. Under this new test, an employee who speaks out on a
matter of public concern, including work related concerns that involve official dishonesty,
deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety will
be protected from discipline when making those comments, if the employee’s right to make the
comments outweighs the employer’s interests in preventing the statements. Therefore, the
Connecticut Constitution provides broader protections for public employees speaking out about
serious job related concerns, and § 31-51q extends those same protections to private employees.
speech rights in the workplace. Trusz v. UBS Realty Investors, LLC. In doing so, it expanded
the protections afforded employees when speaking out on matters of public concern, including
those related to their job duties. The Court’s interpretation will bolster the rights of
whistleblowers reporting job related wrongdoing, and better protect employees speaking out on
serious job related issues.
Free speech rights originate from the First Amendment of the U.S. Constitution, and
Article I, §§ 4,5 and 14 of the Connecticut Constitution. Conn. Gen. Stat. § 31-51q provides a
statutory remedy for employees disciplined or fired for exercising their free speech rights at
work. The statute protects both private and public employees.
Over the years, the U.S. Supreme Court has provided guidance on the scope of free
speech rights in the workplace under the federal Constitution. The federal test is known as the
Pickering/Connick balancing test, modified by Garcetti.
In Pickering the Court recognized that a public employer may regulate employee speech
by applying a balancing test that weighs the interests of the employee, as a citizen, in
commenting upon matters of public concern against the interest of the state, as an employer, in
promoting the efficiency of the public services it provides. This test was refined in Connick,
which stated that if a government employee's speech cannot be fairly characterized as
constituting speech on a matter of public concern, it does not enjoy first amendment protections.
Thus, under the Pickering/Connick balancing test, employee speech in a public workplace is
protected from employer discipline if it involves a matter of public concern, and the employee's
interest in commenting on the matter outweighs the employer's interest in promoting the efficient
performance of public services.
This test was narrowed in Garcetti v. Ceballos, which held that even if the speaker is
discussing matters of public concern, if those matters encompass official job duties, the speech is
not protected by the first amendment. As a result, when analyzing federal free speech claims, a
court must first determine if the employee was speaking as an employee pursuant to his/her
official duties, or as a citizen speaking on non-work related matters of public concern. If the
employee is found to have been speaking as an employee the speech is unprotected. However, if
the employee is found to have been speaking as a citizen on public matters not associated with
official job duties, the court will apply the Pickering/Connick balancing test to determine if the
employee’s right to speak outweighed the employer’s interests in performing its function. In
doing so the court will look at the extent of disruption caused by the speech on workplace
discipline, co-worker harmony, working relationships, the employee’s job performance, the
employer’s responsibilities, and whether the speech was made publically or privately.
While the Connecticut Supreme Court applied this test to federal claims, the question of
employee speech rights under the Connecticut Constitution remained somewhat unsettled. In
2012 the Connecticut Supreme Court issued companion rulings in Schumann v. Dianon Systems,
Inc., and Perez-Dickson v. City of Bridgeport. Those cases reinforced that the federal test
applies only to federal claims made by either private or public sector employees. Left open was
whether the state Constitution bestowed broader free speech rights to public and private
employees than its federal counterpart.
In Trusz the Court answered the question in the affirmative. The new test applicable to
free speech claims brought under the state Constitution modifies the Pickering/Connick
balancing test, and eliminates the Garcetti requirement that an employee prove he was not
speaking out on a matter tied to his official duties. Under this modification, while not every
employment dispute will be protected, if the speech is connected to an employee’s job related
concerns about official dishonesty, deliberately unconstitutional action, other serious
wrongdoing, or threats to health and safety, it will not be automatically dismissed, but will be
subjected to the Pickering/Connick balancing test.
In fashioning the new test, the Connecticut Supreme Court adopted Justice Souter’s
dissent in Garcetti, in which he argued that his “test properly balances the employer's heightened
interest in controlling employee speech pursuant to official job duties—an interest that Pickering
did not specifically address—and the important interests of the employee and of the public in
allowing employees to speak without fear of retaliation about matters of particularly acute public
concern—interests that the Garcetti standard fails to protect.” The Court went on to state that
the new test will apply to both public and private employees who bring suit via 31-51q
contending a violation of the Connecticut Constitution.
In sum, the new rules are as follows. Free speech claims brought by both private and
public employees under the federal constitution are analyzed under the Pickering/Connick test as
modified by Garcetti. Therefore, if an employee was disciplined or discharged for speech that
touches on their job, the speech will not be protected. Only if the employee is speaking as a
citizen on a matter of public importance that is not related to their job, and their right to speak
outweighs their employer’s interests, will the speech be protected.
In contrast, free speech claims brought by either private or public employees under the
Connecticut Constitution will be analyzed under the Pickering/Connick test as modified by
Justice Souter’s dissent in Garcetti. Under this new test, an employee who speaks out on a
matter of public concern, including work related concerns that involve official dishonesty,
deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety will
be protected from discipline when making those comments, if the employee’s right to make the
comments outweighs the employer’s interests in preventing the statements. Therefore, the
Connecticut Constitution provides broader protections for public employees speaking out about
serious job related concerns, and § 31-51q extends those same protections to private employees.
