first amendment

Subscribe to first amendment

“President Trump is a Big Fat Idiot” or, for that matter, “Secretary Clinton is a Sore Loser.”

Let’s suppose you see one of your employees tweeting one of these expressions on Twitter during non-work hours from a personal account.

Can you discipline or even fire your employee over that tweet?

That, in essence, is at the heart of an issue that has been circulating in the sports pages (and in the President’s press briefings) over the last week due to the tweets of ESPN Sportscenter Anchor Jemele Hill from her personal account that were critical of the President.

The New York Times, in fact, ran a story on Saturday discussing the legal ramifications; it was nice to be quoted in the article.

While that article does a good job of summarizing the law in part, there’s a bit more to the story that is useful exploring (however briefly) in a blog post.

First off, people do not generally have a First Amendment protection for things that that they say that their employer finds out about.

Say you go to a white supremacist rally in, oh, Charlottesville and your employer finds out about your speech at the rally. You can be fired because of that generally.

But but but.

A state like Connecticut has a law that says that gives employee a right to sue their employer if the employer disciplines or fires the employee because of that employee exercised their free speech rights under both the First Amendment to the U.S. Constitution, AND the Connecticut Constitution.

Importantly, the speech has to be of a matter of “public concern” and courts will look to see if the person is speaking in his or her capacity as a concerned citizen; criticisms of your own personal workplace will often times not satisfy this standard.

Political speech is almost always the type of speech that courts will consider of a “public concern”.

The Connecticut Supreme Court said in 1999 (not 2015 as The New York Times indicated) in Cotto v. United Tech. Corp. that Connecticut’s free speech statute applied to speech made at an employer’s premises.…

Continue Reading Calling President An Idiot May Be Protected Speech (But Maybe Not)

If at first you succeed, try it again. 

Well, that may not be how the saying goes, but the first back-and-forth post between me and Nina Pirrotti, an employee-side attorney, was so well received that we’re back for another conversation. 

Today’s topic: What legislation are we both keeping our eyes out for at the Connecticut General Assembly?  

The Dialogue Begins

Dan Schwartz: So Nina, our first post was such a hit that I think we’re due for an encore.  Thanks for being up for this.

It has only bewn a few weeks, but it feels like we’re moving at warp speed on developments.  We could spend another post just on The Donald, sorry, Mr. President. Somehow I think we’re likely to talk about that again soon.

But let’s focus today on some of the legislative items we’re keeping an eye on, particularly in Connecticut. Each year, it seems like our General Assembly likes to roll out fresh employment law ideas.

Is there a particular bill that you’re keeping your eye on now from an employee-side perspective?

nina_t_pirrotti1-150x150Nina Pirrotti: I’m so glad you asked!   Yes, let me tell you about one bill that has been on my mind on the federal level (I am speaking about it at an ABA conference in sunny Puerto Vallarta really soon) and then I will give you a couple of highlights from our backyard.  

The federal bill that looms large for me right now (although concededly perhaps not as large as the prospect of sitting on the beach, tequila based beverage in hand) is the misleadingly named  Lawsuit Abuse Reduction Act (“LARA”) which would force judges to respond to Rule 11 motions in a particular manner. 

Rule 11 allows for the possibility of sanctions to be imposed on attorneys or parties who submit (or later advocate for) pleadings which have been filed for an improper purpose or which contain frivolous arguments or claims. 

While Rule 11 motions rear their ugly heads relatively rarely in litigation, a newly invigorated Republican majority in Congress has proposed LARA which would amend the sanctions provisions in Rule 11 to remove all judicial discretion – – regardless of the circumstances of the individual case- – in two critical respects. 

First it would require the court to sanction any attorney, law firm, or party who violates the rule.  Second it forces judges who find the rule has been violated to order the offending party to pay  the other party’s attorneys’ fees and costs.  Those in my world who oppose LARA say that there is no proof Rule 11 is not working in its current form, that the changes would burden the courts and that  its “once size fits all” mandatory sanctions would unfairly penalize employees in civil lawsuits.

Closer to home, two bills come to mind.  The first is a proposed modification of C.G.S.A. 31-51m, a statute which bars employers from retaliating against employees who report  employers’ unethical or legal wrongdoings to public bodies. 

The modification seeks to  protect employees who complain about such conduct internally or who refuse to participate in an activity they believe to be in violation of the law.   It also seeks to extend the timeline to bring an action under the law (employees now have only 90 days to file) and to provide for a greater array of damages if the employer violates the statute.

The second is a proposal to provide eligible employees with paid Family and Medical Leave Act leave.  The proposed legislation would require employees to contribute 1/2 of 1% of their wages to it (there would be no employer contribution) and employees cannot opt out it.   

We plaintiff employment lawyers would welcome both pieces of legislation as long overdue and reasonably tailored to protect Connecticut’s workforce.

What are your thoughts from the other side of the aisle, Dan?    Or is there other proposed legislation that has captured your attention?…

Continue Reading The Dialogue: What Legislation We’re Keeping Our Eyes On

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…

Connecticut Supreme Court
Connecticut Supreme Court

In an unanimous decision that was released late this morning, the Connecticut Supreme Court ruled the limits to free speech limits established by the U.S. Supreme Court in its Garcetti decision — namely that speech pursuant to an employee’s official job duties was not protected —…

U.S. Supreme Court

Much will be written about the new First Amendment free-speech-in-the-workplace case decided by the U.S. Supreme Court today.

But frankly, I wouldn’t be surprised if most of them say nearly the same thing — that testimony by an employee who has been subpoenaed outside the course of his…

Have you heard of Justine Sacco?

If you’re on social media, it was hard to avoid over the weekend. She was the public relations professional who posted an offensive tweet on Friday before boarding a plane to South Africa.

Never mind that she had only 200 or so followers when she made the tweet.  By the time she got off the plane, a firestorm had erupted on Twitter that was arguably unlike anything that we’ve seen in some time.

Boing Boing has a detailed account here, but in case you missed the story, here’s the basic outline:

As she embarked upon a long flight to Africa, PR staffer Justine Sacco issued this tweet. At best a darkly ironic self-deprecation that could never fit into 140 characters, it resulted, within bare minutes, in an internet-wide scandal. Even as the plane is still in the air–Sacco presumably oblivious–there [was] a hashtag, #HasJustineLandedYet, a parody account, @LOLJustineSacco, a fake movie poster, and, God help her, a whole entire New York Times article, replete with a stunned disavowal from her corporate employers.

The meme was incredible and fueled by the fact that she was on a long flight — with no internet. By Saturday, Sacco was fired.…

Continue Reading Offensive Tweets and Twitter Justice: The Tale of Justine Sacco for Employers

After the U.S. Supreme Court’s decision in Garcetti several years ago, there was a lot of chatter about whether public employees still had substantive First Amendment free speech rights.

And for a short while, the trend did seem to indicate that speech that related to an employee’s “official job duties” was to be construed…