UBS Whistleblower Protected Under Broadly Interpreted State Constitution Provisions

Author: Marta Moakley, XpertHR Legal Editor

October 12, 2015

The Connecticut Supreme Court has ruled that, under the state constitution, employee speech relating to official job duties on "certain matters of significant public interest" is protected from employer discipline in a public workplace, and that those protections extend to employees in private workplaces.

In a unanimous decision in Trusz v. UBS Realty Investors, LLC, the state high court declined to apply the narrower whistleblower protections of the US Supreme Court's 2006 case Garcetti v. Ceballos, which interprets the First Amendment of the US Constitution, in favor of Connecticut's broader employee retaliation protections. Connecticut employers should be particularly mindful when considering whether to discipline an employee for statements that may affect matters of public concern.

The decision arises from a federal district court's request to the Connecticut Supreme Court to rule on the intersection of federal constitutional law and state anti-retaliation protections. Connecticut's Section 31-5q allows for an employee to file a case against an employer who disciplines or discharges an employee based on his or her exercise of constitutional rights guaranteed by the First Amendment to the US Constitution or the freedoms of religion, speech, press and the rights to assemble and petition under the Connecticut Constitution. These employee protections apply provided that the exercise of rights does not substantially interfere with the employee's job performance or the working relationship between the employee and the employer.

Trusz, the employee, filed an action in federal court to recover damages for his allegedly wrongful termination. Based on arguments in that case, the federal court certified to the Connecticut Supreme Court the question of how the US Supreme Court's decision in Garcetti applies to Connecticut state law. Under Garcetti, when employees make statements in furtherance of their official duties, the employees are not speaking as citizens for First Amendment purposes. Therefore, those statements could be the basis for employer discipline.

But the Connecticut Supreme Court rejected that premise, holding that instead of applying Garcetti, courts should apply a balancing test that weighs the employee's interests as a citizen on matters of public concern versus the employer's interest in promoting the efficiency of the public services it performs (a form of the Pickering/Connick balancing test, which was in place prior to the Garcetti decision). Finally, the court ruled that the state constitution extends these protections to employee speech in a private workplace.

The ruling confirms that broader employee whistleblower protections are available under the Connecticut Constitution than under the US Constitution.