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.
So why the uproar?
Last year, the Connecticut Supreme Court decided Schumann v. Dianon. I represented the employer in that case and reported on it on the blog in a detailed post. That case was important because it applied well-established Connecticut and federal law that said that employee speech that relates to his or her job duties was not protected.
Imagine if an shoe salesman told customers not to buy shoes because he thought the company does not pay its overseas workers sufficient wages. Should that “free speech” prevent the employer from taking action? What about a cook at a fast-food restaurant who refused to serve hamburgers because he thought such food contributed to obesity? What then?
These issues were posed to the court; it sided with the employer.
“The defendant contends that precluding the application of Garcetti to private employers in an action brought pursuant to § 31-51q would render the statute “an absurdity” as applied to the health care industry because “[v]irtually every workplace dispute involving a health care worker would become a free speech case . . . with every employee serving as a roving ombudsman free to overrule her employer,” thus creating a “lose/lose situation, no matter what the company does [wherein] someone will be unhappy with the result and could claim a free speech right to refuse to accept the employer’s decision.”
The court found that all employers need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of services.
As we argued to the Connecticut Supreme Court — and its equally applicable now — the proposed bill seeks to constitutionalize common workplace grievances and provide a level of protection never before seen in the private workplace. It would allow employees to stand in the way of change because his or her views failed to win out. Moreover, it would insulate from discipline employees who complain about — and eventually refuse to do — their job.
The Connecticut Supreme Court found that it would be terrible public policy to do so in a 7-0 unanimous decision. There is no good reason to overturn that judgment here. The proponents seem to recognize this which is why the bill is taking an unusual path and why the provision is buried deep in an unrelated bill.
Notably, the existing rule does not impair a whistleblower ‘s rights at all. Why? That is protected by a separate state statute that was unaffected by the Court’s ruling. Any suggestion to the contrary is a ploy for votes and should be rejected outright.
Left unaddressed by the bill is another important question: What about the employer’s free speech rights? Suppose that it has three doctors on staff who disagree about a new medicine that could cure cancer. Two doctors say the benefits outweigh the risks, but one disagrees and refuses to work on that medicine. The employer decides to go with the majority. Can the employee file a lawsuit?
Why are the free speech rights of one doctor more important than the other two? And who’s to say that individual doctor is right? Will every workplace dispute then need to be litigated?
The CBIA has been lobbying for opposition to this bill. Employers should join the CBIA’s efforts to defeat this stealth bill.