Can my employer discharge an employee for reporting concerns about the health and safety of residents at a skilled nursing care facility?
Yes. As strange and wrong as this may sound, a superior court judge recently ruled that an employee of a skilled nursing care facility who claimed that she was fired for reporting concerns about the health and safety of residents at a skilled nursing care facility does not have a case for wrongful termination. Carlson v. Sheriden Woods Health Care Center, Inc., 2012 WL 753756 (Conn.Super.).
She claimed that she was protected under the First Amendment and a statute in Connecticut which applies the First Amendment to private employers. Unfortunately, the court rejected her claim, applying a decision of the U.S. Supreme Court to our local statute. The U.S. case, called Garcetti v. Ceballos, 547 U.S. 410 (2006), held that an employee is not protected by the first amendment’s guarantee of free speech if the speech she engaged in fell within her job responsibilities. While Connecticut judges have the right to interpret our statutes in a more employee friendly way and not follow U.S. precedent, this judge declined that invitation.
This case will now lead to the following absurd results. Employers may fire employees for reporting such health and safety concerns if those employees have such reporting as part of their job but not if they don’t. Of course, if reporting such concerns is part of an employee’s job and they don’t raise the issue, they can be fired for not performing their job. Does this make sense?
Of course, the better result would have been to not follow Garcetti and simply interpret our statute in the spirit in which it was written: to protect employees who engage in speech on matters of public concern – like the health and safety of residents at a skilled nursing facility!