There Are Limits to Connecticut’s Employee Free Speech Law

PC_2012-13Annual_510x510-300dpi-crowd walkingIt has long been recognized as a matter of federal constitutional law that public employees cannot be deprived by the government of their right to freedom of speech protected by the First Amendment, even though the government is also their employer. Public employees have the right to speak out about matters of public concern (which includes writing articles or letters, social media posting, and the like) as long as their speech does not unduly interfere with the performance of their jobs

Connecticut has a statute, General Statutes § 31-51q, which extends this “constitutional” protection of freedom of speech to the employees of all employers, private as well as public.  The statute empowers an employee who believes that he has been disciplined or discharged for exercising his freedom of speech to sue his employer for wrongful discharge.  However, there are several obstacles which the employee must overcome on the path to a jury trial and possibly damages

First, the employee must show that he has been disciplined or discharged.  Discharge of course is obvious, as is discipline with an economic impact, such as a demotion.  However, there may be less tangible actions by the employer which the employee perceives as negative, but which do not constitute discipline for purposes of the statute.

Next, the employee must show that he was speaking as a private citizen, not as part of his official duties.  If the speech was made in the context of the employee’s job duties, such as a corporate officer delivering a report critical of the company, there is no statutory protection if the employer is unsatisfied with the report, unless the employee is commenting on official dishonesty, serious wrongdoing, or threats to health and safety; in a word, whistleblowing.

But even if the employee’s speech was made as a private person, and not as part of official job duties, there is no statutory protection if the employee was only complaining about personal matters, such as the terms or conditions of employment.  The employee has to show that he was commenting on a matter of public concern, rather than attempting to resolve a private dispute with the employer.

Moreover, having satisfied these threshold requirements, the employee still has to prove that he was the victim of discrimination; that is, that the exercise of the right to speak was a motivating factor in the discharge or discipline.  If the employer claims that the employee’s job performance merited discharge or discipline regardless of the employee’s speech, the employee has the burden to show that the employer’s explanation is a pretext, and that retaliation because of the employee’s speech was the real motivation.

Finally, the employee must also show that his speech did not substantially or materially interfere with his bona fide job performance or with his working relationship with his employer.  In other words, even if the employee spoke out on a matter of public concern, the employer can discharge or discipline him for that reason if the speech results in a material deterioration in the employee’s job performance or seriously harms his working relationships.

In sum, the Connecticut free-speech statute provides limited protection for employees as private citizens.  For example, an employer cannot fire an employee who campaigns for a political candidate disliked by the employer, but on the other hand the employee cannot use the statute as leverage in a personal dispute with the employer, or as an excuse for poor job performance.