Employment Law Articles

By Your mom July 1, 2018
 Secretly recording a telephone conversation without the consent of all parties
participating in the conversation, such as between an employee and supervisor, violates
Connecticut civil law. Conn. Gen. Stat. § 52-570d makes it unlawful for anyone to record a
phone conversation without the consent of all parties to the communication. Such consent must
be obtained in advance, in writing, or verbally at the start of the recording, or through automatic
tone warnings throughout the conversation.

 While there are several exceptions to the two-party consent rule most do not apply to the
workplace. One exception that may, however, permits recipients to record calls that convey
threats of extortion, bodily harm or other unlawful requests or demands, without the consent of
the caller.

 Connecticut’s civil law is more restrictive than either Federal or state criminal law, which
both permit the recording of a phone conversation with the consent of a single party. Any person
aggrieved by a violation of the state civil law may recover damages, costs and attorneys’ fees.

 The rules governing the secret recording of a face to face discussion are less restrictive.
While there are no civil statutory restrictions, under both federal and state criminal law at least
one party engaged in the discussion must consent to the recording. Also, if a third party were to
record a discussion between two other people at least one of the participants must consent.

 Employers may also have policies that prevent the recording of any discussions. Such a
policy would allow the company to take action against the employee for breaching its policy, but
the recording could probably still be used in subsequent legal proceedings, provided it was
legally obtained.
By Your mom August 18, 2017
 The duty of loyalty is a common law concept whereby employees owe their employer a
certain degree of allegiance by not competing against them while employed, or obtaining
monetary gains that are rightfully those of the employer. The Connecticut Supreme Court
recently reviewed the obligations employees owe their employer, and the damages available
should employees breach their duty. Wall Systems v. Pompa, 324 Conn. 718 (2017).

 Here, the plaintiff, William Pompa, while working as an employee for Wall Systems,
secretly worked as an independent contractor for one of its competitors, and took kickbacks from
some of its subcontractors. The employee was fired and litigation ensued. The trial court found
for Wall Systems, and both parties appealed the amount of damages awarded by the court. The
employer argued that it was entitled to greater damages while the employee claimed the award
was excessive.

 More specifically, the employer believed it was entitled to recover all wages paid to the
employee during the term of his employment, as well as any monies paid by his competitor to his
employee (forfeiture), and the amount of any kickbacks received (disgorgement). The trial court
disagreed and instead awarded Wall Systems its provable damages. The Supreme Court upheld
the trial court and found that there is no standard measure of damages, and that the trial court has
equitable discretion in awarding relief.

 The Supreme Court went on to discuss the duty of loyalty and the range of potential relief
available when it is breached. The general principle is that an agent must act solely for the
benefit of the principal in matters connected to the agency. This includes a duty to not compete
or disclose confidential information. Also, an employee must refrain from acquiring material
benefits from third parties in connection with transactions undertaken on the employer’s behalf,
including secret commissions or kickbacks. An employee can be found to be disloyal even if the
unlawful acts do not depend on the use of an employer’s confidential information. Further, the
scope of the duty varies based on the nature of the relationship. Employees occupying a position
of trust and confidence owe a higher duty than those performing low-level tasks. Also, greater
access to confidential information increases the duty.

 Remedies include actual damages suffered by the employer, forfeiture of compensation
paid to an employee during the period of disloyalty, and disgorgement of any amounts received
from third parties related to the disloyalty, even if an employer has not suffered any actual
damages. In making its award, courts are permitted to consider a wide range of factors,
including the employee’s position, duties and degree of responsibility; compensation; the
frequency, timing and egregiousness of the disloyal acts; the effect the acts have on the business;
and the degree of planning undertaken to implement the disloyal acts.

 Employers should consider bringing claims for breach of the duty of loyalty when
employees are found to be working against the company’s interests, especially when there are no
non-compete, confidentiality, or other restrictive covenant agreements in place to otherwise
provide protection.
By Your mom August 18, 2017
 Outdated employee handbooks can create legal liabilities and provide incorrect
information to supervisors who depend on them when making important decisions. Over the
past year, legislative measures have changed employer obligations in significant ways. Your
handbook and other relevant forms, such as employment applications, I-9s, and leave forms,
should be modified to reflect these changes.

Ban the Box

 Effective January 1, 2017, Connecticut employers may no longer ask about an applicant’s
criminal record, including arrests, criminal charges, and convictions, on an initial employment
application, except when an employer is otherwise required to do so by law, or a security,
fidelity or equivalent bond is required for the position. P.A. 16-83. Employers may inquire
about such matters during a subsequent interview or through supplemental questionnaires
following the initial screening. The new law does not impact existing protections requiring
employers to clearly state that applicants need not divulge prior arrests, charges or convictions
that have been erased. Conn. Gen. Stat. § 31-51i.

 The new law does not go as far as the laws of some states that prevent criminal inquires
until after a conditional offer of employment has been made. Prospective employees who
believe the law has been violated may file a complaint with the Connecticut Department of
Labor, but have no private right of action.

Physician Non-Competes

 Effective July 1, 2016, employers entering into, or renewing a non-compete with current
physician employees, must comply with tighter durational and geographic scope restrictions.
P.A. 16-95. More specifically, aside from the requirement that any such agreement be tailored to
protect a legitimate business interest, the non-compete restrictions can no longer exceed one
year, or cover a geographic radius of more than 15 miles from the physician’s primary work site.
The “primary work site” is defined as the location where the employee generates the majority of
his/her revenue, or any other location where the doctor practices and the parties have expressly
agreed and defined such site in the non-compete agreement.

 A distinction in the law provides greater enforceability where the non-compete is part of
an ownership agreement. In such cases, the agreement is enforceable regardless whether the
termination is voluntary, for cause, without cause, or if the ownership agreement expires without
renewal.

 In contrast, if the non-compete is outside an ownership agreement, the non-compete is
only enforceable if the doctor voluntarily quits, or is termed for cause. It is not enforceable if the
doctor is termed without cause, or the employment agreement expires and the employer fails to
offer a renewal of the contract on the same or similar terms. If the employer offers to renew the
contract on the same or similar terms, but the employee declines the offer, the non-compete is
enforceable.

 In all instances, the employer has the burden of proof when claiming a violation of a non-
compete agreement.

Bi-Weekly Pay

 Effective June 6, 2016, employers are no longer required to seek prior approval from the
Connecticut Department of Labor to move to a bi-weekly payroll period. In the past, such
approval was routinely granted, but required employers to go through the approval process. This
change allows employers to process their payroll 26 times each year, instead of 52, and save
administrative costs associated with payroll processing. P.A. 16-169.

Payroll Cards

 Effective October 1, 2016, employers may pay wages through a “payroll card,” provided
the employee has also been given the option of payment by check and direct deposit, and
voluntarily accepts payment by payroll card instead. Payment by payroll card cannot be made a
condition of employment when hiring new employees, nor can any employer costs associated
with the card be passed on to employees. P.A. 16-125.

 A “payroll card” is defined as a stored value card used by an employee to access wages
from a payroll card account established at a financial institution by an employer, and that is
redeemable at multiple merchants, service providers, bank branches, or ATMs.

 Before instituting a payroll card system, employers must provide employees with a
notice, which can be part of a handbook, stating: use of the card is voluntary and employees may
instead be paid by direct deposit or check; any fees; any terms or conditions for use of the card;
methods available to access wages and avoid or minimize fees; methods to check balances
without incurring fees; and any withdrawal rights.

 Some employers may like card payment as it reduces payroll costs. Processing a payroll
check can cost from $2 to $2.50, while loading a card costs around $.50. Also, many low wage
employees who may prefer to not have a checking account can now take advantage of the payroll
card method of payment.

 Employers may continue to pay through direct deposit, instead of by check or payroll
card, provided the employee consents to direct deposit. Regardless of the payment method, the
employee must be furnished a record of hours worked, gross earnings, deductions, and net
earnings. This statement may be provided electronically, provided the employee consents.

CT FMLA

 Effective June 7, 2016 the Connecticut Family and Medical Leave Act was amended to
closely mirror the federal FMLA’s military exigency leave rights. One difference in the two
laws centers on the length of leave for such reasons. Under federal law the exigency leave is up
to 12 weeks, while the CTFMLA uses the same 16 weeks over a 24-month period applicable for
other forms of leave under the state law. P.A. 16-195.

 Connecticut had previously provided leave to care for injured servicemembers, with such
leave limited to 26 weeks during any 12-month period, which is the same benefit provided by the
federal FMLA for similar needs. Any time taken to care for injured service members offsets the
time permitted for other forms of FMLA leave.

New I-9

 Effective January 22, 2017, employers are required to use an updated I-9 form, which can
be found here. The new form applies only to new hires and need not be completed by employees
already on the payroll.
By Your mom June 3, 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.
By Your mom June 3, 2016
 The Connecticut Supreme Court recently ruled that under certain circumstances children
can bring claims against negligent parties, including employers, whose actions deprive the
children of parental consortium. Campos v Coleman. In doing so, the Court overruled a case it
decided differently in 1998, Mendillo V. Board of Education.

 In Mendillo, the Court held that the children of a school principal who claimed she was
wrongfully terminated were not entitled to damages for loss of parental consortium, even though
the principal was forced to take a new job far from home that required her to spend significantly
less time with her young kids.

 In reversing itself, the Court stated that the parent-child relationship is essentially
different from other family relationships, and the inability of a parent who has suffered a tortious
injury to provide the love, care, companionship and guidance to minor children is a uniquely
harmful consequence of such an injury.

 While now recognizing loss of parental consortium as a cause of action, the Court placed
several restrictions on the claim. First, loss of parental consortium claims must be joined with
the parent's negligence claim whenever possible, and the jury must be instructed that only the
child raising the claim can recover the pecuniary value of the parent's services. Second, and
relatedly, because a loss of parental consortium action "is derivative of the injured [parent's]
cause of action, the consortium claim would be barred when the [action] brought by the injured
[parent] has been terminated by settlement or by an adverse judgment on the merits." Third, a
loss of parental consortium claim may be raised only by a person who was a minor on the date
that the parent was injured, and damages may be awarded only for the period between the date of
the parent's injury and the date that the child reaches the age of majority. Also, loss of parental
consortium claims are limited to claims resulting from a parent's injury during the parent's life.
The nature of the parent's injuries and whether they were insignificant or serious, or were
temporary or permanent, are factors to be considered in determining the amount of damages.

 While this new cause of action will apply in limited circumstances, it exposes employers
to an entirely new category of damages when a wrongful termination impacts the relationship a
fired parent has with his or her minor children.
By Your mom February 10, 2015
 Effective October 1, 2014, Connecticut further limited the rights of employers to use
criminal records in making employment decisions. Public Act 14-27 amends Conn. Gen. Stat. §
31-51i, subsections (d) and (e), which up to this point prohibited employers from denying
employment to a prospective employee, or discriminating against or discharging a current
employee, solely on the basis that the employee, or prospective employee, had a prior arrest,
criminal charge, or conviction, the records of which had been erased pursuant to section 46b-
146, 54-76o, or 54-142a. Further, employers were prohibited from considering convictions
where the employee or prospective employee received a provisional pardon pursuant to 54-130a.
For current employees, these rules applied only to arrests, criminal charges and convictions that
occurred prior to the time of employment.

 The new amendment expands these protections to cover criminal convictions for which
the employee or prospective employee has received a “certificate of rehabilitation” under 54-
130a. A “certificate of rehabilitation” is defined as “a form of relief from barriers or forfeitures
to employment or the issuance of licenses, other than a provisional pardon, that is granted to an
eligible offender by (A) the Board of Pardons and Paroles … or (B) the Court Support Services
Division of the Judicial Branch….” Again, for current employees, the expanded rule only
applies to arrests, criminal charges and convictions that occurred prior to the time of
employment.

 These new restrictions reflect a growing trend in Connecticut and beyond to limit the use
of criminal histories in making employment decisions.
By Your mom July 19, 2013
 A recent Florida Appellate Court case highlights the need to carefully draft non-compete
agreements. Heiderich v. Florida Equine Veterinary Services, Inc. In that case, the ex employee
was prohibited from “owning, managing, operating, controlling, being employed by, assisting,
participating in, or having any material interest in any business engaged in a general equine
veterinary practice within 30 miles of the former employer.” The former employee opened an
office just outside the 30 mile zone and treated patients, including those of the former employer,
within the 30 mile zone. The former employer sought an injunction, but the Appellate Court
found for the former employee. In doing so, it interpreted the relevant clause to prohibit the
former employee from establishing a physical location within 30 miles, but it did not prevent the
performance of competitive services within 30 miles.

 Initially, the trial court found for the former employer. It found that “the [location of the]
actual office is of no consequence. The issue is where she practices. The Court does not believe
it was the intent of the parties to allow the doctor to set up an office just outside the 30 mile
radius and allow her to treat her former employer’s clients within the restricted area.”

 The former employee appealed and asked the higher court to interpret the plain language
of the agreement, which she argued merely prevented her from owning or being employed by a
business physically located within the 30 mile zone. Since her business was located more than
30 miles away, she met the strict terms of the agreement even though she practiced within 30
miles of her former employer.

 In finding for the doctor and reversing the lower court, the Appellate Court relied on an
earlier Appellate Court decision, Tam-Bay Realty, Inc. v. Ross, 534 So. 2d 1200 (Fla. 2d DCA
1988). In that case, an ex employee was prohibited from “opening, operating, serving as an
officer, director or other employee of any real estate brokerage business located within Pinellas
County.” The ex employee started a real estate business physically located in a neighboring
county, but advertised and transacted business in Pinellas. The court there found that because
the ex employee had not opened or operated a business physically located in Pinellas County, no
violation had occurred, even though the business provided services within Pinellas.

 Like the court in Tam-Bay, the Heiderich Court found the ex employee was permitted to
provide services within the 30 mile zone, and doing so did not violate the agreement because her
new practice was physically located more than 30 miles from her prior employer.

 These findings are somewhat surprising given that the applicable Florida statute covering
non-competes favors former employers, and must be construed in favor of enforcement. Section
542.335(1)(h) Fla. Stat. requires the court to construe a restrictive covenant in favor of providing
reasonable protection to all legitimate business interests established by the person seeking
enforcement. A court shall not employ any rule of contract construction that requires it to read
the restriction narrowly, or against restraint, or against the contract drafter.

 While properly drafted non-competes and other restrictive covenants are generally
enforceable, there are signs that they may be losing legislative and judicial favor, especially in
this difficult economy. For instance, the Connecticut legislature recently attempted to pass an
Act that would have subjected non-competes to pre-execution legal review to be binding. While
a watered down version was eventually passed, Governor Malloy vetoed the bill. However, he
encouraged legislators to reconsider the issue in the next session when some of his technical
concerns could be better addressed.

 The takeaway here is that careful drafting is necessary to protect important rights through
enforcement of non-compete, non-solicitation, and non-disclosure agreements. Conversely,
sloppiness may lead to unintended consequences.
By Your mom July 19, 2013
 Effective October 1, 2013, Connecticut employees will be able to inspect and/or obtain
copies of their personnel file more quickly than in the past. Also, employees will now be entitled
to copies of any disciplinary documentation, notices of termination, and performance
evaluations. They retain the right to refute the contents of any such document, in writing. P.A.
13-176.

 Previously, employers were required to let employees inspect their personnel files, or get
copies, within a “reasonable period.” This left the time frame ambiguous and made enforcement
difficult. Now, employers have seven (7) business days to comply once they receive a written
request from a current employee. Requests from former employees must be complied with
within ten (10) business days, provided the request is received in writing within one (1) year
following termination.

 Inspections by current employees must take place during regular business hours at the
employer’s location, or one reasonably near such location. Former employees have the right to
inspect their file during regular business hours at a location mutually agreed upon by the
employer and former employee. If the parties cannot agree on a location, the employer may mail
a copy of the former employee’s personnel file to the former employee within ten (10) business
days after receipt of the former employee’s written request. Personnel files must be retained by
the employer for one year after an employee’s termination.

 A separate and new provision requires employers to provide an employee with a copy of
“any documentation of any disciplinary action imposed” within one (1) business day after the
date of imposing such action. In addition, employers must immediately provide an employee
with a copy of any “documented notice” of termination. Further, employers must now include a
statement in clear and conspicuous language in any documented disciplinary action, notice of
termination, or performance evaluation that the employee may submit a written statement
outlining any disagreement the employee may have with the information contained in the
employer’s document. A copy of the employee’s statement must be made part of the personnel
file and must accompany any transmittal or disclosure of the file to a third party.

 Left somewhat ambiguous is whether employers must create documentation when
disciplining or terminating an employee. For instance, if an employee is issued a verbal warning,
does an employer need to document the warning? Also, does an employer now have to provide a
written notice of termination, or is verbal notification enough? For the time being, a strict
reading of the statutory language seems to indicate that such documentation does not have to be
created, but if it is, then these new rights are triggered. That may change as administrative or
judicial rulings emerge in the future.

 Given the more onerous requirements, the Act lessens the penalties for non-compliance
by making them discretionary, not mandatory, and reducing them from $500 to “up to” $500 for
a first violation. Each subsequent violation involving the same employee, or former employee,
subjects an employer to penalties up to $1,000.
By Your mom May 9, 2013
 According to the AFL-CIO, chief executives of the nation’s largest companies earned an
average of $12.3 million in total pay last year, or 355 times more than the $34,645 earned by the
typical American worker. In contrast, Richard Trumka, President of the AFL-CIO, made
$302,000 in total compensation, or 8.7 times the average worker. The discrepancy in pay
between CEOs and average workers has skyrocketed over the years. In 1980, CEO pay was
only 42 times that of the average worker. While the 2012 figure is significant, it is actually
lower than the peak year of 2000 when CEOs earned 525 times the amount paid to those working
for them.

 Given these disparities, unions are pushing regulators to enforce an outstanding
requirement stemming from recent Wall Street reforms to make publicly traded companies reveal
CEO pay compared to their average employees. The U.S. Securities and Exchange Commission
has delayed efforts to craft a rule, in part because of heavy lobbying by impacted companies.
The AFL-CIO also recently unveiled a website database showing executive pay for all Fortune
500 companies.
By Your mom July 20, 2012
 The Connecticut Supreme Court recently issued two important decisions limiting
employee free speech claims, Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012) and
Perez-Dickson v. City of Bridgeport, 304 Conn. 483 (2012). Both cases centered on whether
employers violate Conn. Gen. Stat. § 31-51q when they discipline employees for statements
made in connection with the performance of their job duties.

 Section 31-51q protects both private and public sector employees from being disciplined
for exercising their federal first amendment rights, or their free speech rights guaranteed by the
Connecticut state constitution. Schumann involved a private employer while Perez-Dickson
involved a public employer.

 In issuing these companion rulings, the Court found that job related employee statements
are unprotected regardless whether the employee works in the private or public sector, and any
resulting discipline does not violate the first amendment. The Court also established the
analytical framework to decide federally based Section 31-51q claims.

 The plaintiffs in both cases claimed they were disciplined in retaliation for statements
protected by the first amendment to the federal constitution. In Schumann, the plaintiff worked
for a medical testing laboratory. He claimed he was fired in violation of Section 31-51q for
speaking out about changes to the company’s testing protocol, which he believed would harm
patient safety. In Perez-Dickson, the plaintiff was a school principal who claimed she was
disciplined in violation of Section 31-51q after reporting alleged student abuse.

 In analyzing these claims, the Connecticut Supreme Court first reviewed the U.S.
Supreme Court’s ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006), and determined it applied
to state claims brought under Section 31-51q’s federal first amendment prong. In Garcetti, the
U.S. Supreme Court held that when public employees make statements pursuant to their official
duties they are not speaking as citizens for first amendment purposes and therefore are not
insulated from employer discipline. Speech is considered job related if it is related to matters the
employee is paid for, or is pursuant to an employee’s concerns about his ability to properly
execute his duties. When, however, the court concludes a public employee is speaking as a
citizen on a matter of public concern unrelated to his job duties, a secondary analysis using a
balancing test must be used to determine if the speech is protected.

 Factors considered in this secondary analysis under federal case law include the extent of
disruption caused by the speech on workplace discipline, co-worker harmony, working
relationships, the employee’s job performance, the employee’s responsibilities, and whether the
speech was made publically or privately. Pickering v. Bd. of Ed., 391 U.S. 563 (1968) and
Connick v. Myers, 461 U.S. 138 (1983). In short, the question is whether the employee’s right to
speak outweighs the employer’s interest in the effective operation of the workplace. If not, the
speech is unprotected, even if it is a matter of public concern.

 The factors used in the secondary analysis are similar to those outlined in the state statute,
which requires the court to determine if the speech “substantially or materially interferes with the
employee’s bona fide job performance or the working relationship between the employees and
employer.”

 Applying this framework to Schuman the Court found, pursuant to Garcetti, that because
plaintiff was engaged in job related speech his statements were unprotected, and his refusal to
participate in the new testing protocol amounted to insubordination for which he could be
terminated, even though he was a private sector employee.

 In Perez-Dickson the Court found the Garcetti rule applied equally to public sector
employees bringing Section 31-51q claims based on the federal first amendment.

 In sum, private and public sector employees claiming a Section 31-51q violation related
to their federal first amendment rights must first show they were not speaking on job related
matters to satisfy the Garcetti test. They must then survive a balancing test by showing they
were speaking as a citizen on a matter of public concern and their speech did not substantially or
materially interfere with their job performance or work relationships.

 Left open is whether the Connecticut constitution extends protection to job related
speech, even though the federal constitution does not. Even if the court were to find in future
cases that a greater state constitutional right exists, such that job related statements are not
unprotected per se, employees would still have to show their right to speak outweighed the
employer’s interests.

 Given the complexities in this area of the law, employers are encouraged to seek counsel
prior to imposing any form of discipline for speech related conduct.
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