Wait a Cotton Pickin’ Minute: Free Speech and Employment

by Jay Marshall Wolman

As an employment lawyer who works for a 1st Amendment firm, I try to keep up with developments in both areas.  Sometimes, they overlap, as they did in my Twitter feed recently.  (Blatant self-promotion, feel free to follow me @wolmanj ).

In Trusz v.UBS Realty Investors, LLC, the Connecticut Supreme Court was asked to consider how it should evaluate statements by employees and retaliation claims.  As noted by the court in Trusz, Connecticut employees (private, as well as public) have broad free speech rights under the Connecticut constitution:

This court previously has held that because, unlike the first amendment to the federal constitution: (1) article first, § 4, of the Connecticut constitution includes language protecting free speech ‘‘on all subjects’’; (2) article first, § 5, of the Connecticut constitution uses the word ‘‘ever,’’ thereby providing ‘‘additional emphasis to the force of the provision’’; (internal quotation marks omitted) State v. Linares, 232 Conn. 345, 381, 655 A.2d 737 (1995); and (3) article first, § 14, of the Connecticut constitution provides a right to seek redress for grievances by way of ‘‘remonstrance,’’ and therefore ‘‘sets forth free speech rights more emphatically than its federal counterpart’’; (internal quotation marks omitted) State v. Linares, supra, 381; these textual differences ‘‘warrant an interpretation separate and distinct from that of the first amendment.’’ (Internal quotation marks omitted.)Id. The text of article first, § 4, of the Connecticut constitution providing that citizens of this state are free to speak ‘‘on all subjects, being responsible for the abuse of that liberty’’; (emphasis added); is particularly relevant in the present case. This broad and encompassing language supports the conclusion that the state constitution protects employee speech in the public workplace on the widest possible range of topics, as long as the speech does not undermine the employer’s legitimate interest in maintaining discipline, harmony and efficiency in the workplace.

Daniel Schwartz, over at Connecticut Employment Law Blog, has a terrific analysis of the decision itself.  The Trusz case came after the Garcetti case, which addressed public employee rights and held, as Dan summarizes, “workplace speech that relates to an employee’s official duties is not protected.”  Trusz ignored that limit and the money quote is:

If an employee’s job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee’s speech is on a matter of public concern and implicates an employer’s official dishonesty…other serious wrongdoing, or threats to health and safety that the speech trumps the employer’s right to control its own employees and policies.

Not all speech is treated equally.  It must be of public concern and implicate dishonesty, wrongdoing, or threats arising from the employer.  Other speech remains unprotected.  Of course, this really only matters for Connecticut; the rest of the country is unaffected and public employees are governed by Garcetti.

The other matter that was prominently featured in my feed was the firing of Ericka Escalante by Isagenix.  Ms. Escalante posted a photograph of herself picking cotton with the caption “Our inner Nigger came out today”.  As I grew up watching Looney Tunes, I was well familiar with the term “cotton pickin'”, though apparently there is a distinction:  cotton pickin’ itself is not racist, but calling someone a “cotton picker” is.  Isagenix, as a private employer, was fully within its right to terminate Ms. Escalante for her off-the-clock speech on a matter not of public concern. (Also, Isagenix should be commended for paying interns and avoiding the scrutiny of unpaid internships.)

Still, an employer like Isagenix should be sure it conducts a proper investigation, especially if it is a Connecticut employer.  What if the subtext were that Latino interns were treated or paid worse than African-American interns, and Ms. Escalante’s posting was a complaint that, were she African-American, she would be treated better?  Would the racist nature (use of “Nigger” and cotton picker imagery) override her complaint about racism in the workplace (a matter of public concern and serious wrongdoing)?  (Additionally, if it is on behalf of a group of employees, might it also be protected by section 7 of the NLRA?)  Here, there do not appear to be those issues, but employers should still satisfy themselves that they are not facing a suit merely by doing what internet denizens demand or, at least, weigh the risks.

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