“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.


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Having tackled the predictions in employment law on a federal level, what does the future hold for employers in Connecticut?

Besides a debate on Family & Medical Leave Insurance, there are a few things we’re likely to see.

1. New bills at the General Assembly: The first one comes courtesy of Mara Lee

Does the Connecticut Constitution provide an independent and greater right of free speech for public (and even private) employees than the First Amendment of the U.S. Constitition?

That was a question left unanswered in last year’s precedent-setting Schumann decision by the Connecticut Supreme Court that I handled, where the court stated: “We decline to reach

The dust is still settling from the mad dash that is the end of the Connecticut General Assembly session. 

I’ll have more in the upcoming days as events warrant, but here’s a quick look at a few items that I’ve been tracking in recent weeks. 

Employers: If there is one proposed bill at the Connecticut General Assembly to be concerned about this year, it is the stealth House Bill 6667.  It could have the single biggest impact on employer/employee relations in a generation.  

And that’s just for starters.

If you look at the bill on the legislative website, it looks innocuous enough.  It didn’t go through the normal channels, like the Labor & Public Employee committee, and thus has been off most people’s radar screens.  There hasn’t even been an analysis done by the Office of Legislative Research.   Most of the bill actually discusses something entirely different. 

That’s a ploy. 

Buried in the very last section in the very last sentence is the proverbial trojan horse, one that would change the workplace in significant ways. This section would overturn a vital Connecticut Supreme Court case (indeed, one that I was on the winning side of) that said that employee speech that relates to the job is not protected as “free speech” under the Connecticut or U.S. Constitution.   Notably, it would also overturn U.S. Supreme Court precedent in Connecticut as well. 

It is crucial for employers to call their legislators immediately to make sure this bill does not pass.  Time is of the essence.  If you need to look up your legislator, you can find all the contact information on the CBIA website here. 
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Free Speech in Workplace Has Limits

In one of the most significant employment law cases decided by the Connecticut Supreme Court in recent years, the Court unanimously ruled earlier this month that an employee’s free speech rights in the private workplace do not extend to speech pursuant to his job duties.  Those rights do not cover insubordinate behavior either. In doing so, the Court reversed the jury verdict to the employee of approximately $10 million.

I typically don’t write about cases that I’ve handled, but given the importance of this case, the client, LabCorp, has approved an exception. My public thanks to them for allowing me to share this important case with you. (I first alerted you to the case in this post.)

The case, Schumann v. Dianon, can be downloaded here.  You can read the basic facts there but the case concerned a laboratory doctor who refused to use certain diagnostic codes for lab tests that were being performed and claimed that it would affect patient safety.   He brought a claim under Conn. Gen. Stat. 31-51q which purports to apply First Amendment protection to Connecticut employers. (You can view additional articles about the case here, here and here.)

A few years ago, the U.S. Supreme Court ruled, in Garcetti v. Ceballos, that when public employees make statements pursuant to their official duties, such speech is not protected by the First Amendment. Because the First Amendment typically applies to public employers, the issue in the Schumann case was whether the Garcetti rule applied to actions brought against private employers in Connecticut. A state statute, Conn. Gen. Stat. 31-51q and prior caselaw has applied First Amendment protections to both public and private employers.


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