Connecticut Supreme Court Limits Employee Free Speech Protections

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.