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.