“Joe, in response to all this NFL stuff, we want you to display U.S. flags at your workstation.”

“No.”

“Well, then you’re fired.”

Don’t think that can happen? Then you haven’t heard about the Cotto v. United Technologies Corp. case — a long-forgotten Connecticut Supreme Court case from 20 years ago that has particular meaning in today’s environment where standing for the national anthem has become front page news.

Is this patriotic too?

The basic facts are as I described them above:

  • The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years.
  • In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations.
  • The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag.
  • After a suspension, he was fired by his employer on or about May 16, 1992.

The Supreme Court had two things to say on this. First, the Court held that the employee could raise a claim under a state law that an employee’s free speech claims were being violated. Again, i talked more about this law in a post last month.

But that’s only part of the decision. In the other half of the decision, the Court was asked to decide whether the employee actually had a free speech claim.

The Court reminds us first that not everything is a federal or even state case.  “As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question.”

And then the court reminds us, in language that has direct implications for the discussion we’ve been having about standing for the national anthem, that the Complaint was missing a few essential aspects to rise to that level.

Significantly, the plaintiff has not alleged that:  (1) he was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto;  (2) he was directed to affix the flag to his person or to his private property;  or (3) he was indirectly directed to associate himself with the symbolism of the flag because the location of his workstation was such that members of the public, or his fellow employees, reasonably could have attributed that symbolism to him personally.

Instead, the claim rested on the requirement for the Plaintiff to affix the flag to the workstation. The Court saw no meaningful difference to that act, versus an employer who did it for the employee — which would not violate the First Amendment.

A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs.   Because a flag was to be affixed to  each workstation, and because the plaintiff’s workstation was not exposed to public scrutiny, he was not required to assume the risk that others might attribute to him any political beliefs about the flag that he did not share.   In other words, the direction to the plaintiff, as a matter of law, was not a “coercion of belief.”

Hmmm.

Now, if you’ve been paying attention, you’ve been seeing press reports that the NFL and its teams may require its players to stand at the national anthem.  Let’s suppose that happened in Connecticut too and that a paid employee was fired for refusing.

Given the language in Cotto, could the employee allege that he “was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto” — a fact that was missing in the Cotto case?

That obviously is an unanswered question, but it just goes to show that you can learn a lot through your history.

“President Trump is a Big Fat Idiot” or, for that matter, “Secretary Clinton is a Sore Loser.”

Let’s suppose you see one of your employees tweeting one of these expressions on Twitter during non-work hours from a personal account.

Can you discipline or even fire your employee over that tweet?

That, in essence, is at the heart of an issue that has been circulating in the sports pages (and in the President’s press briefings) over the last week due to the tweets of ESPN Sportscenter Anchor Jemele Hill from her personal account that were critical of the President.

The New York Times, in fact, ran a story on Saturday discussing the legal ramifications; it was nice to be quoted in the article.

While that article does a good job of summarizing the law in part, there’s a bit more to the story that is useful exploring (however briefly) in a blog post.

First off, people do not generally have a First Amendment protection for things that that they say that their employer finds out about.

Say you go to a white supremacist rally in, oh, Charlottesville and your employer finds out about your speech at the rally. You can be fired because of that generally.

But but but.

A state like Connecticut has a law that says that gives employee a right to sue their employer if the employer disciplines or fires the employee because of that employee exercised their free speech rights under both the First Amendment to the U.S. Constitution, AND the Connecticut Constitution.

Importantly, the speech has to be of a matter of “public concern” and courts will look to see if the person is speaking in his or her capacity as a concerned citizen; criticisms of your own personal workplace will often times not satisfy this standard.

Political speech is almost always the type of speech that courts will consider of a “public concern”.

The Connecticut Supreme Court said in 1999 (not 2015 as The New York Times indicated) in Cotto v. United Tech. Corp. that Connecticut’s free speech statute applied to speech made at an employer’s premises.

Continue Reading Calling President An Idiot May Be Protected Speech (But Maybe Not)

In two prior posts this week here and here, I talked about the significance of a new Connecticut Supreme Court case that has expanded the free speech rights of employees in the workplace.

For more on the case itself, check out these articles from the Hartford Courant and the Connecticut Law Tribune

But do employers have any other defenses to these types of claims? The “too long; didn’t read” answer is yes.

To answer the question, we need to look at the statute itself – Conn. Gen. Stat. Sec. 31-51q:

Any employer … who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney’s fees to the employer.

I’ve highlighted portions that may be overlooked in defending such a claim, but shouldn’t.

First, the statute is pretty clear that not all adverse employment decisions are covered. Rather, it is only discipline or discharge that is covered. Thus, the employee who alleges that they are being harassed by their co-workers because of their speech isn’t likely to have the strongest claim.

But second, and more importantly, the state statute offers a form of protection that doesn’t have a federal counterpart.  The employee must show that the speech does not “substantially or materially interfere” with an employee’s job performance or working relationship.

Notice how I said “the employee”; I have long argued that it is the employee’s burden — according to the terms of the statute itself — to prove that the speech did not interfere.  That’s not typical of statutes, but it is one that has seen support in cases I’ve been involved with.

So what does this mean? Well, I suspect we’ll hear more about this aspect in the future.  For example, how does this play into the Pickering/Connick balancing test outlined by the Connecticut Supreme Court.

And lastly, the statute is unusual in that it provides an avenue for an employer to recover its own attorneys fees if the claims are found to have been brought without “substantial justification”.

Now, I grant you that this hasn’t been invoked by employers with success often (indeed, I haven’t been able to find a reported case in favor of an employer on this aspect.). But for negotiation purposes, it’s still there.

Thus, as employers digest the new case, it’s best not to forget that there are still other defenses to claims brought under this statute.

The new case from the Connecticut Supreme Court may have taken away one strong defense, but that doesn’t mean that employers need to roll over when such claims are brought.

microphoneIn yesterday’s post, I alerted you to a new Connecticut Supreme Court decision (Trusz v. UBS Realty Investors, LLC) that expanded employee free speech rights under the Connecticut Constitution.

But I wanted some time to think about the answer to the following question: How much did the court expand it?

And to that question, there are really two answers.

In some ways, the expansion is nearly unprecedented. After all, the U.S. Supreme Court in the Garcetti case ruled that free speech rights in the workplace were limited if the speech arises out of the employee’s official job duties.

In the Trusz case, though, the Connecticut Supreme Court explicitly rejected Garcetti and instead adopted the reasoning from Justice Souter in his Garcetti dissent, saying the Connecticut Constitution provides citizens with more free speech rights than their peers in every other state.

Employers and politicians who already believe that Connecticut is an unfriendly business climate will have one more piece of evidence for their argument.

In other ways, however, the decision’s impact may (and I emphasize may) be a little more muted.

So, let’s walk through some of the analysis.  First, as I noted above, the court rejected the Garcetti rule which established that workplace speech that relates to an employee’s official duties is not protected.

However, the court did not hold the opposite — that all speech pursuant to job duties IS protected — is true. Instead, what the court said is that only speech regarding matters of public concern (and, as limited by the Court’s decision as explained below), is still protected. This is, in essence, what the law was in Connecticut BEFORE Garcetti.

Indeed, before Garcetti, the U.S. Supreme Court, in what was known as the Pickering/Connick balancing test, held that employee speech in a public workplace is protected from employer discipline if it involves a matter of public concern AND if the employee’s interest in commenting on the matter outweighs the employer’s interest in promoting the efficient performance of public services.

It is this test that is adopted by the Connecticut Supreme Court in Trusz, as modified by the Trusz case itself.

So what is the new modified test? Here’s the key quote:

If an employee’s job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee’s speech is on a matter of public concern and implicates an employer’s official dishonesty…other serious wrongdoing, or threatens to health and safety that the speech trumps the employer’s right to control its own employees and policies.

The court then goes on to say that it views the difference between the Garcetti test and the test its adopted here as a limited one:

The only employee speech that is protected by the modified Pickering/Connick test and that is not protected by Garcetti is speech pursuant to an employee’s job duties that is on a matter of public concern and involves the employer’s “official dishonesty…other serious wrongdoing, or threats to health and safety….

The court reiterates elsewhere that it views as a minor burden on employers: “[W]e conclude that the modified Pickering/Connick test does not place a significantly greater burden on the speech rights of private employers than does the Garcetti test.”

So, I come back to what I said earlier — the impact may be more muted.  It’ll be up to the courts to see how broadly they are willing to interpret the court’s holding here.  What is a “mere policy difference”? What constitutes “serious wrongdoing”? Are mere disagreements by the employee over the threat to “health and safety” enough to satisfy this burden?

We should see one immediate decision interpreting this case — namely when the federal court case that referred the matter to the Connecticut Supreme Court for an answer to the question of whether Garcetti applied, still needs to apply the the rule to the facts.  In other words, will the plaintiff, Trusz, win under this analysis?

But that’s just one case.

And in the short term, I suspect we’ll see a modest jump in cases that add this claim to their lawsuit.  So, for employers, I think it’s fair to say that 2016 promises to be a busier one than 2015. Just how busy? We’ll have to wait and see.

Connecticut Supreme Court
Connecticut Supreme Court

In an unanimous decision that was released late this morning, the Connecticut Supreme Court ruled the limits to free speech limits established by the U.S. Supreme Court in its Garcetti decision — namely that speech pursuant to an employee’s official job duties was not protected — did not apply to claims brought under the Connecticut Constitution.

In other words, there are broad protections for employees who raise issues of public concern in both the private and public workplaces after this decision.

Back in 2012, the Connecticut Supreme Court ruled in Schumann v. Dianon that First Amendment’s protections in the workplace didn’t extend to speech related to an employee’s job duties.

But the court left open the question of whether the Connecticut Constitution provide an independent and greater right of free speech for public (and even private) employees than the First Amendment of the U.S. Constitution.  In doing, the court stated: “We decline to reach the state constitutional issue raised in the plaintiff’s alternative ground for affirmance….”

That question was finally decided by the Court today in Trusz v. UBS Realty Investors, LLC and ruled that Connecticut’s Constitution does apply such protection.  It is, in essence, an adoption of the dissent in Garcetti.

The decision had been expected for some time.  Before oral argument in March, I previewed the decision in a post.

Mara Lee of the Hartford Courant, also previewed the decision back then.

Back in January before oral argument , I predicted a victory for employers but that the decision wouldn’t be unanimous.  So much for predictions.

In so ruling, the court is bringing its ruling back in line with the modified “Pickering/Connick” test outlined years ago by the court. The rule does not use the bright-line test of Garcetti, but still afford some protection to employers.  We’re reviewing exactly what that means today.

In full disclosure, my colleagues and I prepared an amicus brief on behalf of the Connecticut Business & Industry Association, in which we argued for a limited application of the Connecticut Constitution so I’m not going to get into an in-depth discussion yet in this post.

But suffice to say that this is probably one of the most significant Connecticut Supreme Court cases for employers in some time.  Stay tuned.

Not the Confederate flag.
Not the Confederate flag.

There’s been lots of talk lately about the Confederate flag and its symbolism in the aftermath of the Charleston shootings.

But I wondered: How has this flag come up in the context of employment discrimination cases?

It’s actually referenced a bunch according to a quick search by Google.  A case out of Alabama alleged a racially hostile environment with displays of the flag in 2011.  Indeed, in another case, an employee complained that various co-workers wore lots of clothes adorned with the Confederate flag.

So yes, displays of the flag at work can cause issues and give rise to discrimination claims. Not a big surprise. (Notably, my search did not highlight any particular displays of the Confederate flag coming up in Connecticut state or federal court cases.)

Then I came across the case of Duke v. Hamil, a federal court case from 2014 out of Georgia, in which a university police officer was demoted after he displayed a Confederate flag on his Facebook page along with the phrase “It’s time for the second revolution.”  He claimed that being demoted violated his First Amendment speech rights.

And on that ground, you might be surprised that the court agreed with him — in part.  The court held the display was actually a matter of public concern and subject to the protections of the First Amendment:

However, the Court finds that Plaintiff’s speech can be fairly considered to relate to matters of political concern to the community because a Confederate flag can communicate an array of messages, among them various political or historical points of view. Combine this symbol with a statement calling for a revolution right after an election, and it is plausible that Plaintiff was expressing his dissatisfaction with Washington politicians. Even if Plaintiff had intended to convey a more radical message by using the Confederate flag and the word revolution, that message would also relate to political and social concerns of the community regardless of how unpopular or controversial that point of view may be. Plaintiff’s speech was thus a matter of public concern because it expressed disapproval of elected officials, certainly a topic “upon which `free and open debate is vital to informed decision-making by the electorate.'”

But before you start ranting about this decision on Reddit, there’s more. The court went on to apply a balancing test in which the plaintiff’s speech is weighed against the interest of the police to take action when speech “may unreasonably disrupt the efficient conduct of government operations.”

And this is where the employee’s claim ultimately falls apart”

Appearing to advocate revolution during a presidential election, and to associate that idea with a Confederate flag, Plaintiff likely sent a partisan, if not prejudicial, message to many in the … Police Department and the community it serves.

After carefully weighing these factors, the Court finds that the … Police Department’s interests outweigh Plaintiff’s interest in speaking. It is obvious that speech invoking revolution and the Confederate flag could convey a host of opinions that many would find offensive, especially when associated with a senior law enforcement official.

Even though the case concerned a police officer, it’s likely that other courts could come to similar conclusions. Any right to display the flag, will be outweighed by the disruption in the workplace.

Of course, Connecticut has its own flag case – Cotto v. United Technologies — in which the court had to look at whether an employee’s refusal to display an American flag was protected speech.  I’ve talked about that case here.

If you want to learn more about “good” and “bad” flag design, I highly recommend this discussion of vexillology here.

gavelTomorrow, the Connecticut Supreme Court will hear arguments in Trusz v. UBS. It’s case I’ve mentioned before and even made a prediction about the case back at the start of the year.

I’m not going to discuss it in detail because I and my colleagues here at the firm wrote an amicus brief on behalf of the Connecticut Business & Industry Association in the case last fall. You can read that brief here.

Fortunately, Mara Lee from the Hartford Courant does a good job recapping the issues in an article today. At issue is whether the Connecticut Constitution affords greater protection to employees than the U.S. Constitution.

The Connecticut Supreme Court will hear arguments Tuesday on one narrow issue in the case: Are employers free to discipline or fire employees for complaints inside the workplace, even if employees’ concerns are on a matter of public interest?

The U.S. Supreme Court, in a 2006 decision, rejected the argument that public employees deserve whistle-blower protection for internal protests, but Trusz’s lawyers are arguing that judges interpreting the Connecticut Constitution are not bound by that precedent.

When this issue was last before the court (in a case I was involved with), it took the court nearly a year to decide it after oral argument. Will we get a decision before the end of 2015? Stay tuned.

Having tackled the predictions in employment law on a federal level, what does the future hold for employers in Connecticut?

Besides a debate on Family & Medical Leave Insurance, there are a few things we’re likely to see.

1. New bills at the General Assembly: The first one comes courtesy of Mara Lee over at the Hartford Courant; with “predictable scheduling” now become a cause celebre for unions (see this article in The New York Times back in August), the co-chair of the General Assembly’s Labor Committee promises a hearing on the subject.  A bill seems still far off, but issues like this have a tendency to percolate for a bit. Expect to hear a lot more about this.

What else? I still think a bill on workplace bullying will again come up for debate.  And the Commission on Human Rights and Opportunities will again push for changes to their procedures as well, according to minutes from recent CHRO meetings.  Non-compete legislation always seems to be popular too.  With a new two-year cycle starting up soon in the “long” session, it’s likely to be busier than last year.

My prediction? We’ll see a new rule or two, but with all the mandates that have been passed in the last four years, I expect there to be more bluster from politicians, but that we’ll actually see a bit less interference when all is said and done — at least for now.

2. Clarification on Free Speech Rights for Private Employees: The Connecticut Supreme Court is set to hear arguments later this winter on whether the Connecticut Constitution offers private employees more free speech rights than the First Amendment to the U.S. Constitution.  At issue in Trusz v. UBS is whether speech that relates to an employee’s official job duties is protected under the Connecticut Constitution; under the Schumann case from a few years ago that I was involved with, the Court found that such speech isn’t protected under federal law but left open the issue under state law.

My prediction? The court will find that such speech isn’t protected under the Connecticut Constitution.  But I should disclose that I’m not exactly an impartial observer; I am leading a team of attorneys here that filed an amicus brief on behalf of the Connecticut Business & Industry Association this fall advocating the same thing.   My more confident prediction is that the decision from the court will not be unanimous.

3. Agencies and Task Forces Take Leading Roles: There are several issues that have been “floating” out there for a while. Expect to see movement on some of them.  For example, the Domestic Workers Task Force is set to issue a report on October 1, 2015 that could set the tone for future legislation on the subject.  And on July 1, 2015, new electronic prevailing wage notices go into effect.

At the CHRO, expect to see some additional visibility from this group. With Gary Collins’ leadership at the CHRO, a long-standing backlog on cases continues to get winnowed down.  And with new leadership from Tanya Hughes, we’re seeing more public outreach through programs, newsletters and even a new blog developed by interns (and which has a nicer splash page than this one….).  And a new computer system for the agency — set to start last week — will finally bring it up speed, years after a prior system outlived its useful life.

On the flip side at the CHRO, there is little stopping the trend of the overwhelming number of cases being retained for mediation and investigation.  For employers, this means that cases filed at the agency will, on average, continue to be more expensive to defend than five years ago.

My prediction? Beyond these, I also predict that we’ll see some impact from the introduction of revised white-collar overtime rules at the federal level.  Connecticut may use those changes to revisit the rules at the state level.

2014 was a relatively quiet year in employment law overall in Connecticut. I expect a busier and buzzier year in 2015.

U.S. Supreme Court

Much will be written about the new First Amendment free-speech-in-the-workplace case decided by the U.S. Supreme Court today.

But frankly, I wouldn’t be surprised if most of them say nearly the same thing — that testimony by an employee who has been subpoenaed outside the course of his or her job responsibilities is now protected by the First Amendment.  I predicted as much last month.  Yawn.

Yet that’s the general proposition that comes out of the case of  Lane v. Franks today.  This was a unanimous decision  — and written by Justice Sotomayor.  This was not a close call in the court’s view — something that was foreseen by the questions at oral argument.  No one should really be surprised.

Another way to look at the case is to see that the court was asked to revisit the scope of its holding in Garcetti v. Ceballos.  Some courts had interpreted the rule in that case  — that employee speech made “pursuant to official job duties” is not protected — pretty broadly.

The Supreme Court rejected the view that almost any speech by an employee doesn’t deserve First Amendment protection.

Rather, the court said:  “The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

Justice Thomas wrote a concurrence to basically say the same thing.  He goes on to say what this case is not about:

We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities.  For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.

I’ve talked before about how Connecticut has an equivalent state law that adopts First Amendment precedent.  So for Connecticut employers, it’s important to understand that employees who are subpoenaed to testify about work (but outside their official job duties) will now have some protection.

But the Lane case always seemed like an outlier case to begin with; if you’re disciplining employees for testifying truthfully under a subpoena in a corruption case, you probably have other issues as well.

WNPR’s “Where We Live”

This morning, I had the pleasure of visiting again with John Dankosky on his WNPR show, Where We Live.  Much of the discussion on the show revolved around a pending U.S. Supreme Court case, Lane v. Franks.I haven’t discussed that case on the blog yet, because we’re still waiting for the court’s opinion, but it’s worth a  quick note.  The court held argument on the case a few weeks ago and a decision is expected by June.

At issue in that case is whether an employee’s compelled testimony under a subpoena deserves First Amendment protection, even if the speech relates to his official job duties.

All of the speakers on the show agreed with the notion that it is unlikely we’ll see any great changes to the rule announced back in 2006 in the Garcetti case that speech “pursuant” to an employee’s official job duties does not fall within First Amendment protection. But it is likely that the court will issue a narrow exception to that — perhaps on the grounds that compelled testimony that is factually true is entitled to some protection.

During oral argument, several Supreme Court justices appeared troubled by the notion that an employee could be fired just for truthful speech about illegal activity at the workplace that was compelled by a subpoena.

What this will mean in Connecticut — which has a statute that applies the First Amendment to private employers — remains to be seen. Typically the Connecticut Supreme Court follows U.S. Supreme Court precedent in this area; but the Connecticut courts have been asked to review free speech rights under the State Constitution as well — a subject I’ve discussed in a prior post. 

My thanks to WNPR producers Lydia Brown and Catie Talarski for coordinating my visit as well.  You can find a link to the show’s stream at this link down on the page.