Generally, private employers can regulate most speech in the workplace without too much concern over employees' First Amendment rights. Public employers are much more restricted in this regard. But what are the limits of free speech in the workplace?

Background

Section 31-51q of the Connecticut General Statutes prohibits employers from disciplining or discharging any employee who exercises rights guaranteed by the First Amendment to the U.S. Constitution or Sections 3, 4, or 14 of Article I of the Connecticut Constitution. The exercise of these rights, however, is not unrestricted. Free speech may not materially interfere with an employee's job performance or the working relationship with his employer.

What rights are protected?

The First Amendment protects free exercise of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government for a redress of grievances. Likewise, the three designated sections of Article I of the Connecticut Constitution protect the exercise of religious beliefs, speech, and assembly rights of state citizens.

Limitations

Section 31-51a specifically limits these constitutionally protected activities in that they may not "substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer." Whether a particular act interferes with the job performance or the working relationship is decided on a case-by-case basis.

What activities are (or aren't) protected?

To be protected, the employee's expression must deal with a matter of public concern. Therefore, an employee's complaints about safety issues generally will constitute speech on matters of public concern and are protected. In contrast, an employee's expressions about customer service, employee attitudes, staffing levels and inventory control problems generally have not been deemed matters of public concern. Whether a particular statement's subject matter is of public concern is a question of law for the court to decide. Statements of public concern relate to "any matter of political, social, or other concern to the community." Whether a particular statement addresses such a matter, however, is a question of fact, and the content and form of the statement and the context in which it was made must be taken into account.

An employee who speaks out about personal employment issues rather than as a citizen speaking about matters of public concern will not be entitled to the statute's protection. Thus, public griping about supervisors or distributing questionnaires regarding the quality or confidence in a particular supervisor could subject a disgruntled employee to discipline. Requiring an employee to salute a flag or recite the pledge of allegiance, however, is not permissible, and an employee who refuses to engage in such conduct would be protected.

While you could not require an employee to display a company slogan on his personal property, such as a company bumper sticker on his car, he can be required to display an emblem on your property. Therefore, a police officer or firefighter may be required to wear a flag patch on his uniform or display an American flag on a workstation inside the workplace. You are not likely to be able to restrict an employee from speaking out on public issues on her own time.

You may not require an employee to work for a designated political candidate or campaign, nor can you require an employee to join a political party. Likewise, a public employee would be protected for criticizing her employer's employment policies that may be considered discriminatory.

Sometimes it is difficult to determine whether someone is advocating the rights of all employees or simply complaining about a personal issue. Therefore, the employee's motive for speaking out is often at issue. Certain issues may be both public and personal concerns (e.g., workplace discrimination and family leave policies).

Internal employment policies are not generally viewed as matters of public concern. Statements by a police officer regarding police misconduct are likely to be matters of public concern. Complaints about building maintenance are not matters of public concern. Speaking out at an employer-sponsored forum about management dishonesty and the awarding of large bonuses to certain executives to the detriment of lower-level employees are matters of personal, rather than public, concern. Certain issues, such as whether an employee can date a competitor's employee in violation of company policy, have yet to be decided. Such a case would require balancing an employee's right to intimate association with a company's conflict of interest policy.

Damages

An employer that has violated Section 31-51q will be liable for damages that are caused by the discipline or discharge of the employee. Additionally, it may be subject to punitive damages and responsible for reimbursing all reasonable attorneys' fees expended by the employee in successfully prosecuting a lawsuit. The statute further states, however, that the employee may be liable for his employer's costs and reasonable attorneys' fees if the court determines that his suit was instituted "without substantial justification." Therefore, frivolous claims against an employer are discouraged.

Practical advice

As a general proposition, you should feel free to control your employees' workplace speech. You must not, however, discipline any employee who speaks out on matters of public concern, even if you disagree with what he has said.

Reprinted with permission of publisher. First appeared in Connecticut Employment Law Letter (December 2000). For subscription information, call (800)274-6774.