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.