Proposed CT Bill Would Provide Free Speech Protections To Employees

The Connecticut business industry is mobilizing to defeat a proposed bill at the legislature that would ensure employees have the right to speak up on the job about the employer’s illegal or unethical conduct.

House Bill 6667, An Act Concerning the Establishment of Benefit Corporations and the Liability of an Employer Who Disciplines or Discharges an Employee on Account of the Exercise of Certain Constitutional Rights.

The bill would amend Connecticut General Statute Section 31-51q, which provides protection against discipline or discharge for an employee’s “free speech” rights guaranteed by the First Amendment of the U.S. Constitution or by the Connecticut Constitution.

Now, you would think that an employee’s speech about an employer’s illegal or unethical conduct would be protected speech under such constitutions, correct? That issue has already been decided as applied to the U.S. Constitution and the news is not favorable to employees.

The U.S. Supreme Court held that when an employee’s speech is a matter of public concern, it must be made by the employee as a “citizen” rather than solely as an “employee.” Garcetti v. Ceballos, 547 U.S. 410 (2006)(plaintiff’s memo criticizing employer’s procedures was made pursuant to his duties).

Last year, the Connecticut Supreme Court used the Garcetti case to defeat an employee’s claim by holding that his speech pursuant to the U.S. Constitution was not protected, since he spoke as an employee, not a citizen. Perez-Dickson v. City of Bridgeport, 304 Conn. 483 (2012); See also, Schumann v. Dianon, 304 Conn. 585 (2012).

However, the Court did not answer the question whether such employee speech was protected under the Connecticut Constitution, pursuant to 31-51q. Since the Connecticut Constitution is more expansive or broader in its protections than the U.S. Constitution, one federal court has held that under the State Constitution, it would not matter since employee speech would be protected, “even when the speech is about her employment.” Ozols v. Town of Madison, No. 3:11cv1324, 2012 U.S.Dist. LEXIS 116992.

Therefore, the proposed bill would seek to clarify that such employee speech is protected, regardless if it is made pursuant to an employee’s duties.

The Busca Law Firm currently is litigating this issue in Connecticut District Court. Crouch v. Town of Lebanon and Joyce Okonuk, No. 3:11-cv-0199. Rather than detail the facts and claims in the complaint, the defendants have made the same argument: that the plaintiff’s speech is not protected since it arose in the course of her employment. However, the claims alleged in this case were made pursuant to the 31-51q statute as applied only to the Connecticut Constitution. Hopefully, later this year, after the decision on the defendants’ summary judgment motion is made, I can report more support.

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