Based on a new and unique interpretation of the state constitution, the Connecticut Supreme Court has greatly increased the potential exposure of employers to damage claims by whistleblowers. In Trusz v. UBS Realty Investors LLC, et al. (October 5, 2015), the court removed a key defense that was previously available to employers sued under Connecticut General Statute § 31-51q.
General Statutes § 31-51q provides a damage remedy to employees who are disciplined or discharged for exercising free speech rights guaranteed by the First Amendment to the U.S. Constitution and its counterpart in the Connecticut Constitution. Since 2006, Connecticut courts had interpreted § 31-51q as not applying to statements that employees made as “part of their official duties,” following the interpretation that the U.S. Supreme Court applied to the federal First Amendment in Garcetti v. Ceballos (2006). By virtue of the Trusz decision, the Connecticut Supreme Court has become the first state to interpret its own constitutional protection of free speech as trumping the Garcetti restriction. In other words, in Connecticut an employee has a protected right to speak about matters of public interest while performing official job duties without being disciplined or discharged for doing so.
The Trusz decision is premised on a determination that the Connecticut Constitution “sets forth free speech rights more emphatically than its federal counterpart.” The Trusz Court rejects the reasoning of Garcetti that the U.S. Constitution does not prevent a public employer from disciplining employees for what they say or write as part of their jobs. The plaintiff in Garcetti, for example, was a deputy district attorney for the Los Angeles County District Attorney’s Office who made an internal complaint regarding claimed inaccuracies in a search warrant affidavit in a pending criminal case. The U.S. Supreme Court held that because these statements were made as part of the plaintiff’s duties as a public employee, his speech had no First Amendment protection.
In contrast, the Trusz court concludes that under the Connecticut Constitution, the appropriate standard for evaluating free speech claims is a balancing test that was developed in U.S. Supreme Court decisions concerning public-sector employees prior to Garcetti. This test—known as the Pickering/Connick balancing test—recognizes that employee speech in the workplace is protected from discipline by a public employer “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.” This balancing test will now be applied by Connecticut courts to § 31-51q claims even where an employee made the pertinent statements as part of his or her official duties.
The Trusz decision is particularly important to employers because of the highly unusual state statute that it affects. Constitutional free speech protections generally apply only to government employees, but Connecticut’s § 31-51q expands such constitutional protections to both public and private employees. Thus, the expansive interpretation of the state constitution in Trusz affects private-sector employers as well as the state and municipalities. The decision significantly bolsters employee whistleblower protection, removes an important limitation on § 31-51q actions, and makes it more difficult for an employer to obtain summary judgment in such cases.
The Trusz court’s decision to reject the Garcetti bright-line rule could increase the number of state law whistleblower claims concerning employee speech in Connecticut workplaces. While the court in Trusz attempted to clarify the balancing test by asserting that an employer has a right to control its employees and policies except when the employee is speaking out against an employer’s “official dishonesty, . . . other serious wrongdoing or threats to health and safety,” the use of the Pickering/Connick balancing test will expand the scope of § 31-51q claims beyond what has previously been considered the outer limit of the statute. Moreover, since the Pickering/Connick balancing test is necessarily a more fact-intensive analysis than the bright line Garcetti standard, the Trusz decision could make it more difficult for an employer to obtain summary judgment on a claim brought under Section 31-51q.
With the new Trusz standard in mind, employers should be particularly careful when considering whether to discipline or discharge an employee for something said or written about the employer, including on electronic forums and in social media. This is already a problematic area because of the National Labor Relations Board’s tendency to consider employee speech "protected concerted activity." The Trusz decision will complicate such discipline decisions even more in Connecticut.