Since the publication of my post last week on House Bill 6667 on free speech in the workplace, there’s been a lot of followup press coverage.  Two that I would highlight include this article, and this blog post by Mara Lee at the Hartford Courant

The CBIA also highlighted the post on its website as well. 

Today, a new substitute of the bill was released that erased any pretense about the stealth nature of the bill.  It deleted all of the first 16 sections of the bill, and merely left the last section on employee free speech.   The report from the Office of Legislative Research is being compiled now and should be released any day now. 

Last week I discussed a lot of issues with the bill, but today’s post focuses on three in particular.

1.  First, the new substitute would do something remarkable.  It would amend Conn. Gen. Stat. Sec. 31-51q to delete public employers from its scope.  In other words, if passed, it would apply the free speech protections merely to employees of private-sector companies

Of course, for public employees, that distinction won’t matter as much because public employees would still have First Amendment protection.

But its a strange thing to happen nonetheless because it was only through a judicial decision, Cotto v. United Technologies Corp. in 1999, that 31-51q was applied to private sector employees. 

By eliminating this distinction, the law (if passed) would put a concern outlined by Justice Zarella in his recent concurrence into the spotlight again — namely that it would place the “employee’s statutorily created free speech right in potential conflict with the employer’s constitutional free speech right”. 

In other words, the employer’s right to free speech is protected by the Constitution while the employee’s right is statutorily created.  The proposed law says that the employer will not have a “defense” to a claim to say that the employee’s speech was job related.

But if the employer’s right to free speech is protected by the Constitution, there are then serious questions about whether this bill — even if it were a good idea — would withstand Constitutional muster.  After all, a statute cannot overturn the Constitution. 

As the Connecticut Supreme Court concluded, limiting the protection of speech in the workplace to non-work related speech, “keeps courts from the constitutionally untenable task of, in essence, having to choose sides in a work-related viewpoint dispute between two private actors.”

The proposed bill would create a conflict of exactly the type that the unanimous court worked so hard to prevent and create constitutional issues, the likes of which we haven’t seen in a long time. 

2. This goes, of course, to the second issue with the bill.  A careful reading of the Court’s decision in Schumann — for which this bill is in response to — shows that the court did not create a “defense” for employers to use in free speech cases.  Rather, it held that job related speech was not protected speech in the first place. 

What would the language in the bill then do? That’s a good question that — putting the Constititonal issues aside — would also be the subject of years of litigation.  

Perhaps that’s the point.

3. Another issue with the bill is the strange result it is trying to achieve.   In my brief research, I could find no court decision or state statute that would give private-sector employees more free speech protection than their public-sector counterparts. 

Testimony from groups like the Connecticut Employment Lawyers Association and the Connecticut Trial Lawyers Association, suggested that the bill merely ensures that whistleblowers at private companies would have enough protection.

But the Schumann case was quite clear that the whistleblower protections under Conn. Gen. Stat. 31-51m are unaffected by the decision. 

As the court stated in footnote 21, “[O]ur opinion in this case does not affect the whistle-blower protections afforded statutorily by General Statutes § 31-51m, which are not at issue in this case.”

Indeed, the language would directly contradict decades of well-established precedent in courts that have held that their role is “to prevent unlawful [employment] practices, not to act as a `super personnel department’ that second guesses employers’ business judgments.”

Creating free speech protections for job-related speech by private employees would inevitably force the courts to second-guess employers’ business judgments — something that just doesn’t happen in employment law.

Once again, the bill is a solution in search of a problem and should be rejected by the legislature.