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Speech in the Private Sector: The NLRA and the Common Law
Protections for private sector speech are very limited--a mix of statute (in some cases), contract, and tort. Connecticut law, for example,makes an employer liable for discharging or disciplining a private-sector employee based on protected speech provided that such exercise does not “materially interfere with the employee’s bona fide job performance or the working relationship between the employee and employer.” CONN. GEN. STAT. §31-51q (2018). But for the most part, private sector employees have far more limited speech protections.
Federal labor law provides another potentially important, albeit limited protection for employee speech, even in nonunionized workplaces. Section 8(a)(1) of the National Labor Relations Act (“NLRA”), 29 U.S.C. §158(a)(1) (2018), protects all workers in their right under §7 of the NLRA to “concerted activities for the purpose of . . . mutual aid or protection,” even apart from the formation of a union.
We will consider speech protections in both these contexts.
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