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Conn. Supreme Court expands employees’ free speech rights

This week the Connecticut Supreme Court issued a decision in Trusz v. UBS Realty Investors which expanded employees’ free speech rights. Mr. Trusz worked for UBS as a managing director and the head of its valuation unit. In this role, Mr. Trusz managed UBS’s process for deciding the value of its real estate investment funds. In connection with his job, Mr. Trusz informed UBS that it had made errors in its valuation of certain properties that UBS held in some of its investment funds. He told UBS, among other things, that he thought UBS had an obligation to inform investors of the errors and to return excessive fees to investors that UBS had collected because of the errors. When UBS refused to take the steps Mr. Trusz said were necessary, Mr. Trusz told UBS that he thought it was violating legal and ethical obligations to investors. UBS subsequently fired Mr. Trusz and he sued claiming, among other things, that UBS fired him in retaliation for the concerns he raised about UBS’s handling of the valuation errors.

Mr. Trusz’s case required the Connecticut Supreme Court to decide whether it would follow the decision of the U.S. Supreme Court in Garcetti v. Ceballos (2006). In Garcetti, the Supreme Court held that an employer could legally retaliate against an employee who exercised her free speech rights if the employee engaged in free speech as part of her official job duties.

Garcetti only applies to public employees and employers, like public school teachers and police officers, because the First Amendment only restricts the activities of governments. However, in Connecticut, there is a law that prohibits both public and private employers from retaliating against an employee because he exercised his free speech rights under the U.S. or Connecticut Constitutions. This is why constitutional issues came into play in Mr. Trusz’s case even though it involved a private employer.

UBS argued that the Connecticut Supreme Court should follow the rule from Garcetti and dismiss Mr. Trusz’s claims because his official job duties required him to tell UBS that it had made valuation errors. The Connecticut Supreme Court rejected UBS’s argument and held that Connecticut’s Constitution is more protective of free speech rights than the First Amendment (or, at least, how the U.S. Supreme Court interpreted the First Amendment in Garcetti).

One reason the Connecticut Supreme Court rejected the reasoning from Garcetti was because of the perverse consequences of the Garcetti decision. Under Garcetti, when “a public auditor speaks on his discovery of embezzlement of public funds, when a building inspector makes an obligatory report of an attempt to bribe him, or when a law enforcement officer expressly balks at a superior’s order to violate constitutional rights he is sworn to protect,” the employer can fire that employee because of his speech.

Instead of the rule from Garcetti, the Connecticut Supreme Court held that when an employee speaks as part of his official job duties, his employer cannot punish him for that speech when the speech reveals “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety.” This is narrower than the protections that employees enjoy when they do not speak as part of their official job duties but it is still far more protective than the Garcetti rule.

The ACLU of Connecticut filed a brief in support of Mr. Trusz with the Connecticut Supreme Court.  In reaction to the court’s ruling, Dan Barrett, Legal Director of the ACLU of Connecticut said, “The court’s ruling protects employees who speak out about wrongdoing. This decision safeguards both private and public workers who raise their voices against lawbreaking, health and safety problems and other major public concerns.”