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Proposed Connecticut Law Would Strip Employers’ Right to Discipline Employees for Speech Made Within the Scope of Employment


Proposed Connecticut Law Would Strip Employers’ Right to Discipline Employees for Speech Made Within the Scope of Employment

May 10, 2013

In Connecticut, a private employer’s right to discipline an employee for speech made within the scope of his employment and as part of his official duties was established when the Connecticut Supreme Court issued its ruling in Schumann v. Dianon Systems, Inc., 43 A.3d 111, 304 Conn. 585 (Conn. 2012). In Schumann, the Connecticut Supreme Court applied to the private sector the United States Supreme Court’s holding in Garcetti v. Ceballos, 547 U.S 410 (2006), which applied to public employers. In Garcetti, the U.S. Supreme Court held that employee speech that related to his or her job duties was not protected by the First Amendment.

However, proposed House Bill 6667 is very stealthily attempting to take that right away from employers in Connecticut. In this lengthy bill, the legislature is proposing to amend Connecticut General Statutes Section 31-51q. This proposal is buried in the very last paragraph of the bill, and the rest of the bill concerns an entirely different topic. The text of the proposed amendment is as follows:

Section 31-51q of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state of Connecticut which activity does not substantially or materially interfere with an employee’s bona fide job performance or the working relationship 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 damages.  If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney’s fees to the employer. It shall not be a defense to an action filed under this section that such activity by an employee was within the scope of the employee’s employment. (House Bill 6667 — emphasis added)

It is the last sentence of the bill, highlighted above in italics, that alters the statute as it presently exists. In one fell swoop, this proposed language would not only overturn the Connecticut Supreme Court’s decision in Schumann, but it would also overturn, in Connecticut, the U.S. Supreme Court’s decision in Garcetti.

Some proponents of the bill are arguing that it is necessary in order to protect whistleblowers. However, that is merely a red herring as there is a separate Connecticut statute that applies to whistleblowers. (See Conn. Gen. Stat. § 31-51m.)

This bill, if passed, would open the floodgates to a rash of disruptive litigation by employees, effectively interfering with employers’ ability to conduct their businesses. In effect, passage of this bill would constitutionalize common workplace grievances and give employees rights that have never previously existed in the private workplace. The bill is being opposed very strenuously by the Connecticut Business & Industry Association.

With less than a month to go in this legislative session in Connecticut, this bill is definitely one to watch. If you have questions about how this may impact your business, please contact: