Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The Connecticut Law Tribune ran a story this week about the lawsuit being brought by a former Hartford Courant columnist, George Gombossy.

I've discussed the case before -- it raises a claim that the columnist's First Amendment rights were violated under a state law (Conn. Gen. Stat. Sec. 31-51q) that purports to apply that amendment to private employers -- but was intrigued by the theory that the case could resolve issues of "first impression" in the state.

One of the arguments brought up by the Courant's attorneys in a motion is the fact that the newspaper has its own First Amendment rights to consider.

That theory is not new in First Amendment jurisprudence (First Nat’l Bank v. Bellotti, 435 U.S. 765, 776-77, 784 (1978)) but is still being developed under Connecticut's state law.

One of the state cases both parties will end up focusing on is Cotto v. United Technologies, Inc., 251 Conn. 1 (1999). In that case, the Connecticut Supreme Court skirted this issue. In footnote 5 of the decision, the court concluded it need not decide the issue of competing rights. But it went on to state:

we do not dispute the possibility that circumstances may arise when the rights of an employee under Sec. 31-51q may conflict with the employer’s own free expression rights. If and when that case does arise, we will be required to resolve any such conflicts…

Various concurring decisions in that case also warned about the possibility of competing rights. 

Of course, there are other cases that could get up to the Connecticut Supreme Court before then as well, but with a paucity of cases discussing this particular state law, it'll be interesting to add this one to the mix.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last week, I posted on how private employers are not bound by what the state government does in terms of sending home employees early for snow storms.  But that doesn't mean that private employers ignore what the government does.  Many will send employees home when the state tells non-essential workers they can leave.

Yesterday's snow storm, which dumped a foot of snow, was a prime example of that. Around the same time that the Governor allowed all non-essential workers to leave around 12:30 p.m. yesterday, the largest private employers in Hartford followed suit -- sending their 85,000 employees onto the streets.  That dismissal led to gridlock for much of the afternoon with 20 minute commutes taking over two hours.  (Who's to blame? Probably everyone, since the storm's intensity was hardly a surprise.)

With a lack of formal authority over private employers, Governor Rell late today tried a different approach -- public pressure. According to a press release she issued today:

Governor M. Jodi Rell today announced she has written to the heads of the 12 largest private employers in Greater Hartford, asking them to join her in a new system to coordinate their early releases of employees when inclement weather threatens the region. ...

“Any employer wants to make sure their employees get home safely when a storm of Thursday’s magnitude strikes,” Governor Rell said. “However, it is critical that all of us – the state and private companies alike – coordinate our decisions when it comes to early dismissals.

“I am asking the major Hartford-area employers to join with me in coordinating these releases so – first and foremost – we can make sure everyone gets where they need to be in the safest and quickest way possible,” the Governor said. “These coordinating calls will also help us minimize the disruption to highway preparation and clean-up. I am asking each company to designate a person to work with my office on this effort, which I want to become a regular feature when big storms hit on work days.”

The companies contacted by the Governor employ a total of about 85,000 people, while about 35,000 of the state’s 55,000 employees work in Hartford County.

If large private employers are going to follow the state's lead in shutting down their offices (or use the decisions as a guidepost), then the Governor's request is a reasonable one. 

However, private employers should be wary when the government intrudes on their business without any legal authority to do so.   A request to stagger dismissals can have an impact on a company's bottom line and employee morale. Do you think employees will "understand" that they can't leave work for an hour to allow others a head start? Employers will bear the brunt of an employee's frustrations.

I'm not advocating that the rules regarding private employers be changed to give the Governor that authority either. Ultimately, these types of decisions are best handled on a case-by-case and employer-specific basis.  There is a always a slippery slope (to use the phrase of this snow day) that is created when private employers start listening to "recommendations" from the Executive Branch -- no matter how well-intentioned.

Getting information on what others are doing can certainly help efforts; a simple website or e-mail chain would suffice. Anything further just seems an additional step that most employers would probably prefer to avoid.

(Hat Tip: CT News Junkie)

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link

A few days ago, I reported on the summary judgment decision of Tucker v. Journal Register East.  While the case is notable for its discussion of the whether an employee who expresses reluctance to testify has actually "participated" in a protected activity for Title VII purposes, the case also has a discussion of a claim arising from her First Amendment rights.

Now, your first question may be -- "I thought the First Amendment only applied to government employees.  Isn't she at a private employer?"  Well, in Connecticut, employees at private employer do have First Amendment rights; those rights happen to be dictated by a state statute, Conn. Gen. Stat. Sec. 31-51q.  That statute states:

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 ..., 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 .....

There is, however, a limitation on the employee's rights.  Section 31-51q “applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen.”  Thus, if the employee is speaking on purely personal concerns, then the speech is not protected.

In the Tucker case, the court had to decide whether the employee, in relaying her reservations about testifying on the behalf of the company was speaking “as a citizen upon matters of public
concern” or “instead as an employee upon matters only of personal interest.”

The court, in denying the employer's motion for summary judgment, held that the employee's speech may constitute a matter of public concern, and therefore she may be entitled to relief under C.G.S. 31-51q.

A jury could reasonably find that Tucker’s speech “was part of an overall effort . . . to correct allegedly unlawful practices or bring them to public attention.” Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d. Cir. 1993) (internal quotation marks omitted). Tucker’s speech relating to her impending testimony did not concern the terms or conditions of her own employment, but rather the change in her views regarding the merits of [another employee's] sexual harassment complaint before the CHRO. She was not speaking strictly from her role as an employee; a jury could believe that she was speaking as witness who was concerned about her testimony at an upcoming proceeding. ...[A] jury could believe that Tucker was not furthering only her private interest, but instead the interest of a fellow co-worker, whose allegations Tucker felt were more trustworthy. Tucker’s speech was not in response to any personal aggrievement.

Whether the employee will prevail at trial is, as always, an open question. But for employers, this case is another indication of the difficulty that exists in getting summary judgment on employment claims. 

Also noteworthy here is the fact that the employee's reluctance to testify (if that is, in fact, what happened) formed the basis of not one, but two separate employment claims -- even though that employee was not the victim of sexual harassment herself.

For employers dealing with non-testifying co-workers, this case illustrates the perils of taking any action against them. Seeking legal advice when disciplining or discharging such an employee may avoid the potential pitfalls that may arise.

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link