While the First Amendment to the U.S. Constitution, which protects speech, expression, and religion, only protects public employees, there are state statutes that affords some of these same rights to private employees. A new Connecticut law in effect July 1, 2022 enhances these protections and exposes private employers to new potential liability for curtailing employees’ First Amendment rights.
Expansion of Employee Free Speech Rights Under the General Statutes
The Act Protecting Employee Freedom of Speech and Conscience, signed into law by Governor Lamont as Public Act No. 22-24, applies to public and private employers alike. It will expand free speech protections for employees and present new restrictions for employers with respect to how they can hold meetings and relay information in the workplace. The law substitutes Section 1 §31-51q of the Connecticut General Statutes, which holds employers liable for disciplining or discharging an employee on account of such employee’s exercising of certain constitutional rights, namely, the right to free speech.
Employer Restrictions on Disciplining Employees for Exercise of Free Speech
According to the new law, an employer cannot discipline or discharge an employee (or threaten to do so) on account of that employee’s exercising his or her First Amendment rights, provided that these actions or behaviors do not interfere with the employee’s job performance or the employee’s working relationship with their employer.
The law also grants employees immunity from discipline for not attending certain employer meetings. An employer cannot retaliate against an employee for the employee’s refusal to attend an employer-sponsored meeting whose primary purpose is to convey the employer’s beliefs and opinions on political or religious matters. Political matters include those pertaining to “elections for political office, political parties, proposals to change regulation and the decision to join or support any political party or political civic, community, fraternal, or labor organization.” “Religious matters” encompass any matters pertaining to religious practice and/or affiliation as well as the decision to join or support any religious organization or association.
In allowing employees a choice in whether to attend a meeting, the law includes “the right not to be required to listen to speech” in the right to free speech. Any employer found to have retaliated against an employee on the basis of their refusal to attend such a meeting, will be liable to the employee for any damages (including punitive damages) caused by discharge or discipline, as well as for any attorneys’ fees.
Employers should be mindful of how the expansion of employee free speech rights could impact the workplace. To minimize any potential legal impact to the company, employers should think critically before choosing to discipline an employee for non-attendance at a meeting to ensure that the meeting does not fall within one of the categories enumerated above. Employers may choose to reevaluate using mandatory meetings as a means to communicate information.
Captive-audience Meetings
The Act’s language barring compulsory meetings on political matters, which include “the decision to join or support any…labor organization,” is intended to outlaw what are referred to by organized labor as “captive-audience meetings.” Captive-audience meetings are mandatory meetings held during work hours during which employers discuss statutory labor rights with employees, oftentimes in response to a labor or trade union organizing campaign. They are typically aimed, with varying degrees of overtness, at dissuading employees from unionizing. The new law prohibits employers from retaliating against employees who elect not to attend these meetings. These meetings have been criticized by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and labor organizers for being used as a tool of intimidation in order to dissuade employees from unionizing.
Because captive-audience meetings are loosely defined and can take on many forms, employers should be particularly careful of requiring employee attendance, or disciplining employees for non-attendance, at meetings that occur during labor organizing campaigns or touch on the subject of organized labor.
What the Act Permits
The law explicitly allows the following, which are exempt from potential employer liability:
- An employer communicating to its employees any information that they are required by law to communicate, and only allows them to do so to the extent of what is legally required;
- An employer communicating to its employees any information that is relevant and necessary for the performance of their duties;
- Permits institutions of higher education to meet with or discuss with employees matters relating to coursework or academic programs;
- Casual conversations between employees or between an employee and an employer; and
- Any requirement limited to managerial and supervisory employees.
The law also does not apply to any religious corporation, entity, association, educational institution or society exempt from the requirements of Title VII of the Civil Rights Act of 1964.
The Act does not limit employers’ ability to hold company-wide meetings to discuss matters that are relevant to the workplace and employees’ labor rights, including captive-audience meetings.
ESPN Faces Claim Based on Employee’s Alleged Deprivation of First Amendment Rights
A claim currently pending in Connecticut courts against ESPN illustrates how employers may face backlash for allegedly depriving their employees of their rights to free speech.
On April 27, 2022, ESPN anchor Sage Steele (“Steele”) filed a lawsuit in Connecticut state court against her employers ESPN Productions, Inc. and parent company The Walt Disney Company for violating her right to free speech under Connecticut law (§31-51q) and the First Amendment of the United States Constitution. Steele alleged that she was retaliated against due to comments she made during her appearance on an episode of “Uncut with Jay Cutler,” a podcast hosted by former NFL athlete Jay Cutler in September of 2021. During the interview, Steele criticized ESPN/Disney’s COVID-19 vaccine mandate and admitted that despite fervently disagreeing with the mandate, she complied in order to keep her job. She also made comments pertaining to her racial identity and female journalists, which in addition to her opinions on her employer’s vaccine mandate, spurred criticism in the news and on social media.
Steele alleged that the network, in response to her comments, sidelined her, stripping Steele of her customary assignments, and failed to defend her against the attacks she had been receiving in the workplace and in the media. Steele is seeking over $15,000 in damages, as well as declaratory and other relief.
ESPN has moved to dismiss the lawsuit under Connecticut’s relatively new “Anti-SLAPP” law, which provides an avenue for expedited dismissal of SLAPP (Strategic Lawsuits Against Public Participation) suits. SLAPP suits are defined as actions based on the defendant’s exercise of free speech on an issue of public concern.
Conclusion
The law is expected to face legal challenges from employers and business advocacy groups alike. Connecticut will be the second state, after Oregon, to outlaw mandatory captive-audience meetings.
We recognize that this law may present new restrictions and expectations with respect to how employers can operate their businesses and communicate with employees.
If you have any questions or concerns about how this new law may impact you and your workplace, contact your attorney at Hinckley Allen.
Daniela Mays-Sanchez, Hartford Office Intern, contributed to the drafting of this Client Alert.