Last week, I had the opportunity to present to the Connecticut Association of Independent Schools, an accrediting agency serving over 90 schools and 30,000 students here in state.
The topic was one that doesn’t get enough attention at times and due to its applicability not to just to schools, but to all employers (public and private), is one that employers should be mindful of.
My presentation on “Say Anything? Free Speech in Schools” talked a lot about how Connecticut’s state law (and our corresponding protections under the Connecticut Constitution) gives employees significant protections to speak on matters of public concern.
For private employers, the law has become a bit clearer over the years, particularly since the Connecticut Supreme Court’s decision in Trusz v. UBS came out.
In that decision, the Court held that “under the state constitution, employee speech pursuant to official job duties on certain matters of significant public interest is protected from employer discipline in a public workplace, and that [Conn. Gen. Stat.] § 31-51q extends the same protection to employee speech pursuant to official job duties in the private workplace.”
Of course, just because there is some greater clarity doesn’t mean that the law is clear. Much of the analysis of free speech claims looks at a balancing test between the speech at issue and the disruption to the workplace. In addition, an employee has to show that the speech does not “substantially or materially interfere” with that employee’s job performance or working relationship.
For schools, that disruption to the working relationship or the operations of the school can be severe. But the ramifications for a school shutting down certain speech can also be significant, both legally and in the court of public opinion too.
Perhaps the best takeaway from the presentation was this simple notion: Don’t overreact to everything you read on the internet from an employee. Just because someone posts something on a TikTok channel doesn’t mean you have to take an employment action. Rather, be thoughtful and be sure to balance competing interests. And, if necessary, consult with legal counsel to understand the legal landmines out there.
My thanks to CAIS for the opportunity to speak.