In last week’s post about an important new free speech case from the Connecticut Superior Court, I highlighted one aspect of the court’s ruling.
Today’s post addresses another aspect – though this may have more significance to practitioners in the area than anything else.
Connecticut’s free speech statute, Conn. Gen. Stat. Sec. 31-51q, contains an notable exception to an employee’s claim of free speech, stating that such speech is protected “provided such activitiy does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee or employer”.
For many years, lower courts have held that this is an element of an employee’s claim that must be plead and proved.
But the new decision (Matthews v. Department of Public Safety) turns that on its head by suggesting that it is the employer that bears the burden of pleading AND proving that the speech interfered with the job performance or working relationship.
This court finds that “provided” creates a proviso that limits the application of §31–51q, and that the defendant bears the burden of raising the facts triggering the proviso as a special defense. Constructing “provided” in §31–51q in this way not only fits with general principles of statutory construction and the limited Connecticut case law, but also comports with a logical operation of the statute and the Practice Book. As the plaintiff correctly notes, if he were required to prove a lack of asubstantial and material interference, he would be forced to prove a negative, which is a difficult if not impossible task. This would place the court in the peculiar position of requiring the plaintiff to plead either an extensive and exhaustive recitation of all events that may have involved interference or a boilerplate that would not give significant factual detail and would likely involve a legal conclusion.
The court goes on to state that by placing it as a special defense, the employer is in a better position to state the facts of the interference.
This creates a situation well suited for an affirmative defense, and, in light of the case law, interpretation of thestatutory textand confines of logic, it makes more sense that it is the defendant’s burden to prove a substantial and material interference.
If this logic is followed in other cases, it will make summary judgment harder for employers because it will be the employerand not the employee that will bear the burden of proof and an employee may be able to get to trial easier — even though there are facts that suggest that his or her speech disrupted the workplace.
Ultimately, given the standard of having to show ”substantial or material inteference” set forth by the court, this may become a burden that employers will have a tough time establishing.
For employers, this is yet another reason why this new Superior Court case is one to watch.