14 Connecticut Lawyer April 2013 Visit www.ctbar.org

Employee Free Speech in Connecticut: The Unsettled Landscape of ConnecticutGeneral Statutes31-51qBy Stephen W. Aronsonand Ian T. Clarke-Fisher

Stephen W. Aronson is a part-ner in the Employment, La-bor, and Immigration Practice Group at Robinson & Cole LLP in Hartford, where his practice focuses on employment litiga-tion and employer counseling.

He is a member of the CBA Professional Dis-cipline Committee and the Federal Practice, Health Law, and Labor and Employment Law Sections.

Ian T. Clarke-Fisher is an asso-ciate at Robinson & Cole LLP in Hartford and is a member of its Employment, Labor, and Immigration Practice Group. He is a member of the CBA La-bor and Employment Law and

Young Lawyers Sections.

Connecticut Lawyer April 2013 15

In 2012, the Connecticut Supreme Court issued two opinions, Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012) and Perez-Dickson v. City of Bridgeport, 304 Conn. 483 (2012), which altered, and sig-nificantly limited, the employee free speech protections in Connecticut’s free speech statute, Connecticut General Statutes § 31-51q. In both of these cases, the Court ruled that employee speech made pursuant to the employee’s official duties was not protected by the U.S. Constitution but the Court de-clined to address whether such speech was protected by the free speech provisions in the Connecticut Constitution. As a result, an open question remains as to whether the free speech protections in the U.S. Constitution are coextensive to those of the Connecticut Constitution as they pertain to employee speech or whether the Connecticut Consti-tution provides broader protections than the U.S. Constitution.

Connecticut’s Free Speech Stat-ute: Conn. Gen. Stat. § 31-51qConnecticut’s free speech statute provides a cause of action for private and public em-ployees who are terminated, or otherwise disciplined, as a result of exercising their free speech rights, as protected by the fed-eral and state constitutions. Section 31-51q provides that:

[a]ny employer…who subjects any em-ployee to discipline or discharge on ac-count of the exercise by such employee of rights guaranteed by the first amend-ment to the United States Constitution or section 3,1 4,2 or 143 of article first of the Constitution of the state, provided such activity does not substantially or materi-ally interfere with the employee’s bona fide job performance or the working re-lationship 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 dam-ages.

The logic behind the holding in Garcetti stems from the fact that, as a general prin-ciple, employers operate by controlling their employees. As the United States Supreme Court explained, “Government employers, like private employers, need a significant de-gree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”9 The Supreme Court explained that the restraint applied to employees’ speech made pursuant to their employment duties “simply reflects the exercise of em-ployer control over what the employer itself has commissioned or created” and “does not infringe any liberties the employee might have enjoyed as a private citizen.”10 Ac-cordingly, the Court observed that when an employee is “simply performing his or her job duties…[courts need not undergo] the delicate balancing of the competing inter-ests surrounding the speech and its conse-quences.”11 The Supreme Court noted that other protections exist outside of the First Amendment for employees who speak out about certain issues within the course of their employment, such as whistleblower protections.12 Notably, Garcetti only applies to public employees and only to protections granted by the U.S. Constitution. It does not address the protections for private em-ployees or free speech protections under the Connecticut Constitution.

In Schumann and Perez-Dickson, the Con-necticut Supreme Court applied the holding in Garcetti to § 31-51q for both private and public employees, in the context of protec-tions presented by the U.S. Constitution.13 In Schumann, the Connecticut Supreme Court stated, “[W]e conclude that the rule in Garcetti…applies to claims under § 31-51q grounded in the First Amendment that are brought against private employers, and must be considered as a threshold matter prior to undertaking the Pickering/Connick balanc-ing test [a balancing test taking into account the interests of employers and rights of em-ployees].”14 As Garcetti bases protected speech on whether the speech was made pur-

Conn. Gen. Stat. § 31-51q (footnotes added).

To claim that an employer violated the free speech statute, an employee must allege “(1) that she was exercising rights protected by the first amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution; (2) that she was fired ‘on account of’ her exercise of such rights; and (3) that her exercise of first amendment or equivalent state constitutional rights did not substantially or materially in-terfere with her bona fide job performance or with her working relationship with her em-ployer.”4 Furthermore, to satisfy the first ele-ment of this test, the employee’s speech must address a matter of public concern.5 The U.S. and State Constitutions do not protect em-ployee statements “that address wholly per-sonal matters.”6 The free speech statute is important because it extends constitutional free speech protections to private employees, as opposed to simply limiting free speech protections to public employees.7

Schumann and Perez-Dickson: Reining in Employee Free Speech ProtectionsIn Schumann and Perez-Dickson, the Con-necticut Supreme Court limited the protec-tions under § 31-51q by ruling that the right to free speech found in the U.S. Constitution, as codified by statute, does not protect private or public employees from discipline based on speech made pursuant to the employee’s official job duties. Schumann applied to a private employee and Perez-Dickson applied to a public employee. In short, these deci-sions stand for the proposition that employ-ers have the right to control their employees’ job-related speech under the U.S. Constitu-tion. In reaching this conclusion, the Court adopted the United States Supreme Court’s holding in Garcetti v. Cevallos, 547 U.S. 410 (2006), which determined that when “em-ployees make statements pursuant to their official duties, the employees are not speak-ing as citizens for first amendment purposes, and the constitution does not insulate their communications from employer discipline.”8

Visit www.ctbar.orgVisit www.ctbar.org16 Connecticut Lawyer April 2013

suant to the employee’s official job duties, “the key inquiry [when applying Garcetti] is whether the speech activity stemmed from and was the type that the employee was paid to do.”15 As further explained by the Court, an employee’s speech is “pursuant to an em-ployee’s duties when it is part-and-parcel of his concerns about his ability to properly ex-ecute his duties.”16

Accordingly, in adopting the reasoning and holding of Garcetti, the Connecticut Su-preme Court limited the protections of § 31-51q to statements made outside the course of an employee’s “official job duties.” How-ever, the Court explicitly declined to address whether Garcetti applies to Connecticut constitutional claims under the free speech statute.17 The Court declined to address the protections of the Connecticut Constitu-tion, as this specific issue was not properly before it, and it had not been examined by the trial court. Although not too much can be read into the Court’s decision to pass on this issue, as it was not procedurally ripe, it no doubt places the decisions of Schumann and Perez-Dickson in an interesting light.

If the Connecticut Constitution provides greater protections than the U.S. Consti-tution, the application of Garcetti as to federal claims may become superfluous. Plaintiffs’ trial attorneys likely will assert § 31-51q claims under the Connecticut Con-stitution and the well-reasoned decisions

Connecticut Supreme Court nor the Con-necticut Appellate Court ever recognized, or elaborated upon, a substantive distinction between the U.S. and State Constitutions as pertained to § 31-51q.19 Likewise, lower federal and state courts have consistently not differentiated the protections found in the U.S. and State Constitutions as applied to employee speech.20 Nevertheless, in other contexts, Connecticut courts have found the free speech protections under the Connecti-cut Constitution broader than those under the U.S. Constitution.21 Those court rulings, that broader protections exist in other con-texts, place the interaction between these provisions in dispute.

Connecticut’s free speech provisions, al-though different from the First Amendment, are not entirely unique. Many other state constitutions contain similar constitutional language and have found, at least in the con-text of employee speech, that such language is coextensive with the U.S. Constitution.22 This includes such states as California and New York, both known for their strong poli-cies encouraging and fostering employee free speech rights. Further, there is a public policy issue: Garcetti was a decision based on the public policy that employers must, at times, control their employees and that em-ployee grievances should not, as a matter of course, rise to the level of a constitutional issue. It remains unclear how these policy determinations, which the decisions in Schumann and Perez-Dickson appear to have adopted, would be altered when applied to the Connecticut Constitution and Connecti-cut employees.

A federal district court recently addressed the issue of the protections found under the Connecticut Constitution within the pub-lic sector, determining that the Connecticut Constitution provides greater employee free speech protections than the U.S. Constitu-tion. In Ozols v. Town of Madison, 2012 U.S. Dist. LEXIS 116992 (D. Conn. Aug. 20, 2012), the court, in denying a motion to dismiss a § 31-51q count, explained that the Connecticut Supreme Court, if it had ad-dressed the issue, “would hold that Garcetti does not apply to claims based on the state constitution.”23 The Court reasoned that Garcetti should be reined in, noting that, in the context of public employees, “it is ques-tionably sound to deny public employees the right to speak about matters of great public

in Schumann and Perez-Dickson. What the Connecticut Supreme Court did not address may become the exception that overtakes the rule. By declining to address this issue, and by making a point to do so, the Connecticut Supreme Court placed this issue at the fore-front of § 31-51q litigation and created some uncertainty in the trial courts.

Broader Protections Through the Connecticut Constitution? The question that the Schumann and Perez-Dickson decisions declined to address is whether the Connecticut Constitution pro-vides broader protections to employees than the U.S. Constitution or whether the protec-tions are coextensive. The text of the rele-vant constitutional provisions are different, yet the protections provided by the provi-sions, at times, have been determined to be coextensive. The text of the primary section of the Connecticut Constitution reads as fol-lows: “Any citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that lib-erty.” Conn. Const. Art. 1, § 4.18 The First Amendment of the U.S. Constitution, in con-trast, reads as follows: “Congress shall make no law…abridging the freedom of speech.” It is these differences in verbiage that the trial courts will be forced to discern until the Connecticut Supreme Court resolves the is-sue. Importantly, prior to the decisions in Schumann and Perez-Dickson, neither the

Visit www.ctbar.orgVisit www.ctbar.org Connecticut Lawyer April 2013 17

concern.”24 The Court’s decision, which ar-guably focused more on the downfalls of Garcetti than on the breadth of the Con-necticut Constitution, also noted that § 31-51q addresses the issues of employee con-trol and policy discussed in Garcetti because the cause of action only accrues when “the employee’s speech does not substantially or materially interfere” with the employee’s job.25 While the decision in Ozols arguably expands employee protections under the Connecticut Constitution, other lower court decisions following Schumann and Perez-Dickson have not noted such a distinction.26

ConclusionAs of the date of publication, the present state of employee free speech protections in Connecticut remains unsettled. If the Con-necticut Constitution provides for broader protections of employee speech, what are the limitations of such speech, and what role, if any, do the decisions in Schumann and Perez-Dickson play? Although no de-cision has gone into a detailed analysis of the provisions, these arguments are certain to arise and, in the interim, the spectrum of employee free speech rights will remain in flux. CL

Notes 1. “The exercise and enjoyment of religious

profession and worship, without discrimina-tion, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.” Conn. const. art. I, sec. 3.

2. “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Conn. const. art. I., sec. 4.

3. “The citizens have a right, in a peaceable man-ner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remon-strance.” Conn. const. art. I, sec. 14.

4. Sherman v. Sedgwick James of Connecticut, No. CV-326150, 1997 Conn. Super. LEXIS 349 (Super. Ct. Feb. 10, 1997) (Melville, J.) [quoting Daley v. Aetna Life & Casualty, slip op. no. 533693 (Aug. 3, 1994) (Sheldon, J.)].

5. Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 778 (1999).

6. Id.7. Cotto v. United Technologies Corp., Sikorsky

Aircraft Division, 251 Conn. 1, 16 (1999).8. Id. at 421.9. Id. at 418.10. Id. at 422.11. Id. at 423 (referring to analysis of First Amend-

ment protections set forth in Pickering v. Board

of Educ., 88 S. Ct. 1731 [1968], and Connick v. Myers, 103 S. Ct. 1684 [1983]).

12. Id. at 425.13. Schumann, 304 Conn. at 608.14. Id. at 611. The factors for this balancing test are

articulated in DiMartino v. Richens, 263 Conn. 639 (2003), as follows: “In Pickering v. Board of Education, … [t]he court then set forth a general principle governing the constitutionality of government restrictions on the speech of its employees: in evaluating the constitutionality of government restrictions on an employee’s speech, a court must arrive at a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs. In Connick v. Myers,…the court added a modification to the general balancing test promulgated in Pickering. Under Connick, if a government employee’s speech cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary to scrutinize the reasons for his or her discharge.” Id. at 665-66.

15. Schumann, 304 Conn. at 614.16. Id.17. Schumann, 304 Conn. at 589. 18. Section 31-51q further contemplates the ap-

plication of § 3 and 14 of article first of the Connecticut Constitution. Section 3 protects religious liberty and section 14 establishes a right to assemble and petition. For the purposes of this article and employee free speech protec-tions, Section 4 is the most commonly applied and litigated section.

19. See Cotto v. United Technologies Corp., 251 Conn. 1, 16-20 (1999); Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 778 n.6 (1999); Emer-ick v. Kuhn, 52 Conn. App. 724, 743-44 (1999).

20. See Skaats v. State, No. HHD-CV-03-08226902, 2009 Conn. Super. LEXIS 2514 (Conn. Super. Ct. Sept. 4, 2009); Bracey v. Board of Educ. of City of Bridgeport, 368 F.3d 108, 116 (2d Cir. 2004); Baldyga v. City of New Britain, 554 F. Supp. 2d 268, 278 (D. Conn. 2008) (“Connecti-cut courts have concluded that the application of section 31-51q is coextensive with the First Amendment, and therefore, the two provisions are interpreted identically.”).

21. See State v. Linares, 232 Conn. 345 (1995) (state constitution has broader free speech protections in public demonstration context).

22. See, e.g., Kaye v. Board of Trs. of San Diego County Public Library, 179 Cal. App. 4th 48, 57-58 (Cal. App. 4th Dist. 2009); Carter v. Incorporated Village of Ocean Beach, 693 F. Supp. 2d 203, 212 (E.D.N.Y. 2010).

23. Id. at *12.24. Id. at *14.25. Id.26. See Perez v. Bridgeport Hosp., 2012 Conn.

Super. LEXIS 1957 (Conn. Super. Ct. Aug. 3, 2012); Lenox v. Town of N. Branford, 2012 U.S. Dist. LEXIS 174419 (D. Conn. Dec. 7, 2012) (“Court assumes that the Plaintiff ’s speech rights under the state constitution are coexten-sive with his speech rights under the Federal Constitution.”)

LAWYERS CONCERNED FORLAWYERS—CONNECTICUT, INC.

If you have ever thought what a relief it would be to talk frankly with a person who is sensitive to problems

like yours…

If you want support to stop using alcohol or other drugs…

If you have ever been concerned aboutsomeone else’s alcohol or drug use…

Use the LCL HOTLINE today…leaveyour first name and telephone number.

Expect a call back…peer support will be made available to you. It’s FREE

and CONFIDENTIAL.

HOTLINE: 1-800-497-1422

Play atworld-class golf courses without

breaking the bank.

CBA members have the opportu-nity to golf at a championship

18-hole golf course in Cromwell and other affiliated courses around

the country through the CBA’s corporate membership. In addition

to a nominal annual fee, the member is responsible for paying

all greens fees, food, beverage, and room charges. Tee times are booked through

the CBA office up to thirty days in advance.

For more information please call the CBA at (860)223-4400.