Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Followup: Court Dismisses EEOC Lawsuit Challenging CVS Separation Agreement

Posted in CHRO & EEOC, Human Resources (HR) Compliance, Litigation

Back in February, I talked about how a lawsuit brought by the EEOC against CVS challenging the company’s standard separation agreement could be a big deal “if the EEOC prevails”.

But I cautioned about drawing any sweeping conclusions just then stating: ”My gut tells me that the courts are not likely to view the government’s arguments with favor. The arguments just seem too ‘out there’.”

It’s fun to say, “I told you so” every once in a while, which is why the news from late Friday brought a smile to my face.

A federal judge in Illinois dismissed the government’s lawsuit during a status conference last week and indicated that his decision would be forthcoming.

So, right now, we don’t quite know all the logic behind it, but suffice to say that employers who were concerned that they would have to rewrite all of their agreements, should breathe a little easier today.

Of course, it’s quite possible (probable?) that the EEOC will appeal the ruling and it’s not clear whether the EEOC will continue to push this aggressive line of arguments in other cases as well.

56 Million Reasons Why Your HR Department Needs Better Data Security

Posted in Data Privacy, Highlight, Human Resources (HR) Compliance, Social Media

Real hackers are more fearsome than this one.

Okay, okay.  I realize the headline is a bit misleading.  But it isn’t every day that you hear about a data breach at Home Depot in which 56 MILLION credit cards may have been hacked. To put that into perspective, that’s 16 million MORE than the infamous Target breach!

But this is an employment law blog, not a shopping one. So, why does this matter to human resources professionals and companies? Because if hackers can access credit card information, they are going to try to hack into your work files.

It isn’t a matter of “if”. It’s a matter of when they will attempt to do so.

Don’t take my word for it. This comes from the head of the military’s cybersecurity division.  Admiral Mike Rogers has been preaching for months of the need for companies to take data privacy and cybersecurity seriously.  A recent news post reported on the importance Rogers has placed on this area for private businesses.

Corporations must successfully deal with cybersecurity threats, because such threats can have direct impacts on business and reputation, Rogers told the business audience.“You have to consider [cybersecurity threats] every bit as foundational as we do in our ability to maneuver forces as a military construct,” he said.

I have little doubt you’ll hear a lot more about this at an upcoming Data Privacy and Cybersecurity Summit that I’ve been helping to put together here at Shipman & Goodwin, in conduction with CT SHRM.

It’s scheduled to be held on October 16, 2014 from 8a to 2p at the Crowne Plaza in Cromwell, CT.

The cost is just $75, which includes continental breakfast, coffee, buffet lunch, and the materials.  Full details as well as registration can be found here.

Speakers include myself, Shipman & Goodwin attorneys Scott Cowperthwait, Cathy Intravia and William Roberts as well as industry experts from Adnet Technologies, the Connecticut Attorney General’s office, ESPN, the FBI, FINEX North America, General Electric Company, JPD Forensic Accounting, Quinnipiac University, United Therapeutics Corporation, and United Technologies Corporation (UTC).

Hope to see you there. Register soon as spots have been filling up over the last week.

“Consider” This Important: Employment Contracts Are a Two-Way Street

Posted in Highlight, Human Resources (HR) Compliance, Litigation, Wage & Hour

My colleague Chris Engler reports today on a new Connecticut Appellate Court case that focuses on a often misunderstood concept in employment contracts — the need for “consideration”.  What was it that Dire Straits’ sang about in the 1980s? Getting “Money for Nothing”?

We’ve all been told that you can’t get something for nothing.  That lesson was reiterated in a new case by the Appellate Court due to be officially released next week. 

The Facts

As told by the Court, the facts of the case,  Thoma v. Oxford Performance Materials, Inc., revolve around the employer’s attempts to attract investors. 

One investment company told the employer, Oxford, that it wanted assurances that key personnel would not leave.  Oxford dutifully entered into employment contracts with various employees, including Lynne Thoma.

The details of the contracts are important.  This first employment contract gave Ms. Thoma a higher salary, job security (termination could only be with 60 days’ notice), and a severance package.  In return, Ms. Thoma promised not to leave during the contract period and not to work for a competitor for six months after leaving.  Ms. Thoma signed this contract.

 At this point, both parties had gotten a benefit, and all seemed well.

But then a second investment company informed Oxford of its dissatisfaction because the employment contract was “too strong.”  So Oxford went back to the drawing board and crafted new contracts.

 Ms. Thoma’s second contract was quite different.  It removed all of the monetary elements, including the salary increase.  The new contract also allowed Oxford to fire Ms. Thoma without notice or cause.  Finally, it prohibited Ms. Thoma from working for a competitor.  (The length of this prohibition was unclear.  If you’re a contract jargon junkie, I recommend reading the court’s analysis in full.) 

Nevertheless, Ms. Thoma went ahead and signed this contract as well.

A year later, Oxford fired Ms. Thoma.  She demanded the benefits from the first contract.  Thus commenceth this case.

Is the Second Contract Enforceable?

Ultimately, both the trial court and the appellate court sided with Ms. Thoma, concluding that she didn’t receive any consideration in exchange for the sacrifices she made in the second contract.  In other words, she gave up some perks without getting anything in return.

Continue Reading

How Long Can You Enforce a Non-Compete Agreement For?

Posted in Highlight, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center, Wage & Hour

Back in June, I talked about the standard that courts will follow in deciding whether or not to enforce a non-compete agreement between an employer and an employee.  (Go read it here first.)

But many employers want to know something more straightforward: How long can I make the restrictive covenant in my agreement; in other words, how long can the non-compete provision be?

The answer, of course, is “it depends” — in general, the higher-ranked the employee, the broader the scope of the non-compete.  And it also depends on other factors, such as the type of businesses the employee would be prevented from working for, and the geographic nature of the restrictions.

Of course, that’s not a satisfying answer either because again, the central questions is, what’s the maximum amount of time that a court will enforce a non-compete agreement?

In Connecticut, two years is seen by some as the typical time period for enforcing a non-compete agreement, as one case ruled back in 1988.

But where the time restriction is accompanied by a narrow geographic or industry restriction, courts have granted non-competes of five years.  Here are some examples:

Can you do something longer? Perhaps. In one reported instance in another state, a ten year non-compete agreement was ruled enforceable! But that’s definitely the exception, rather than the rule.

Indeed, a five-year non-compete isn’t going to work in some (many?) employment agreements.  So before you rewrite all of your agreements to have a broad restrictive covenant, you should check with experienced employment law counsel and figure out if your agreement really is narrowly tailored to meet you needs.  And experienced counsel can also add in certain contract provisions to help in those instances where the courts may have concerns with a broader non-compete.

But if you’ve been wondering if you courts enforce five-year non-compete agreements, the above cases show that it happens — perhaps even with more regularity than you might first think.

Domestic Violence Awareness: Resources for Employers

Posted in Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center, Wage & Hour

This post is not going to discuss, in my view, the NFL’s inadequate response over the years to domestic violence incidents by players in the league.  (If you want to listen to a full take down of the NFL, I recommend Slate’s The Gist podcast from yesterday.)

Rather, I want to talk today about how Connecticut employers can address domestic violence when such incidents have an impact on work.

  • As I talked about in August, the ABA adopted a Model Workplace Policy in Employer Responses to Domestic Violence.  It worth a look at for most employers. An “employer who does adopt it can illustrate that it takes the issues of domestic violence seriously and will encourage employees who are going through the process to speak up. As noted in the materials attached to the resolution, researchers have determined that victimization rates in the workplace are actually higher than in the general population.”\
  • Beyond that though, employers should have updated their policies to provide for the state-mandated domestic violence leave.  The law, which has been in place since 2010, provides for several items including the following: “It requires employers to allow family violence victims to take paid or unpaid leave (including compensatory time, vacation time, personal days, or other time off) during any calendar year in which the leave is reasonably necessary for the following reasons: 1.seek medical care or counseling for physical or psychological injury or disability, 2.obtain services from a victim services organization, 3.relocate due to the family violence, or 4.participate in any civil or criminal proceeding related to or resulting from such family violence.”  Unpaid leave is limited to 12 days per calendar year.
  • There are also plenty of online resources as well, including a toolkit designed to help address these issues further.  While such online resources need to be tailored to your workplace, it is a good place to start if you’re seeking more information.

Domestic violence isn’t just an issue for football players. It has an impact on employers all across the United States.  For employers that want to do something more, these resources are a good place to start.

Seven Years Later….

Posted in Social Media

Can it really be seven years since my first blog post?

But as I look back on my ”Welcome” post (which may or may not have been posted on September 12, 2007, though I was writing before them), there IS proof that I started this little blog seven years ago.

The Welcome post was full of lofty ideas, some of which have lasted, and some of which sounded better in theory than practice.  But I think I’ve been true to my original intent which was to focus on “on new and noteworthy developments in the employment law arena, particularly as they may impact those in Connecticut.”

What I didn’t forsee in that original post is that the blog would grow and become among the most widely read law blogs in the country.  And an ABA Journal “Blawg Hall of Fame” recipient!  Who would’ve thought?

So, to all the readers and all of my colleagues at my law firms who have supported this blog, I say a sincere thanks.

What’s next for the blog?

Well, I think over the next six months, you’ll start to see some significant changes. I’m in the early stages of another redesign, for example.  And, with all the changes in social media over the last seven years, I am looking at how this blog can best fit in.

You may have noticed more “guest” bloggers as well. I suspect those “guests” will become regulars as we look to provide you with the very latest in employment law in Connecticut.

Your suggestions and comments are always appreciated.

Now, let’s go work on another year together, shall we?

A Small Tribute to a Professional Arbitrator and Mediator: “Larry” Foy

Posted in Labor Law & NRLB

James “Larry” Foy passed away earlier this week.  (His memorial service is scheduled for tomorrow in Southwick, Massachusetts.)

For those of us in Connecticut that were blessed with having had a case with him as an arbitrator or mediator — and there were many — his death will leave a substantial void.

Indeed, Larry was a labor arbitrator and mediator for so long that it’s hard to realize there was a time he wasn’t a fixture in Connecticut.

Here’s the telling statistic from his obituary:

Since 1979 Larry has privately arbitrated over 2,000 grievance arbitrations in the public and private sectors throughout New England. He has arbitrated over 400 municipal, teacher and state employee interest arbitration disputes. Larry has mediated over 1,000 collective bargaining contract negotiations between boards of education and bargaining units of certified teachers and/or administrators. – See more at:

So what happened in the year prior to 1979? Well, one of my partners kept documentation that.  And so, with the permission of Brian Clemow, we thought we’d relay a letter that Brian wrote about Larry way back in 1978.

Back then — when gas was just 63 cents a gallon and the Bee Gees were over the airwaves — Brian wrote a recommendation letter to the American Arbitration Association on behalf of Larry.  While he noted that as a representative of management, “Larry does not always view things in the same light as I view them”,  he suspected that union representatives would say the same thing.

Brian suggested that Larry would have a “high level of acceptability as an arbitrator in the eyes of both labor & management.”

Decades later, that prediction came to fruition time and again.  Larry became one of the area’s most well-regarded arbitrators.  I have no doubt that I speak for my colleagues and those around the state in saying that Larry will be sorely sorely missed.

Fantasy Football: A Real and Present Danger to the Workplace?

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Litigation

A confession first: I’m in a fantasy football league. Actually two of them.  It’s fun and makes weekend football watching a heck of a lot more interesting.

But did you know that fantasy football has led to all sorts of real issues in the workplace?

Well, longtime readers may remember an incident from five years ago when Fidelity Investments fired a number of employees for participating in and running a fantasy football league claiming it was part of a “gambling” operation.

The tips I gave at the time still hold true today:

  • Set up clear rules for your employees; if participation in fantasy leagues or office pools is prohibited, say so. And then enforce that rule evenly.
  • If those types of activities aren’t prohibited, make it clear that participation in those activities during work time is not allowed. Restricting off duty conduct is — for the most part — well outside the bounds for an employer to consider.
  • Consider “blessing” such activities in a non-monetary fashion. Some employers have small office gatherings around some sports event to build morale and teamwork.

But I was curious: Has fantasy football been the subject of actual allegations in other employment cases? In other words, is fantasy football something other than a fantasy in the workplace?

A quick Google Scholar search turned up more cases than I would have thought.

  • There was the 2004 New Jersey case where two employees alleged religious harassment.  For example, “One of the ‘Jewish’  comments ascribed to [the alleged harasser] related to the office fantasy football league when [that employee] allegedly said, ‘This is the gentiles against the Jews and the plaque should never hang in anybody’s office that doesn’t celebrate Christmas.’”  Despite this allegation, the court upheld summary judgment in favor of the employer.
  • In a 2013 case, an employee claimed that his termination was racially motivated.  The employer, as part of its defense, pointed to an earlier performance review where the employee’s usage of worktime was criticized. The review indicated that the employee “showed up late for meetings, worked on fantasy football during a “boot camp” training session in August 2004, and failed to contribute in staff meetings.”  The employee’s discriminatino claim was allowed to proceed to trial by the Sixth Circuit after further consideration (and more facts.)
  • Lest you think that fantasy football is merely virtual, there was constructive discharge case filed against a fantasy football statistics company and a claim for unpaid stock worth in the millions of dollars.
  • A more common claim is the type found in some sexual harassment claims — that the employee was ostracized.  In a Minnesota case from a few years ago, a female employee alleged that “she was excluded from Fantasy Football leagues and other social events, like campfires, and her co-workers would talk about these activities around her, even though she wasn’t invited to participate. ” (Campfires? Do companies still do that?) The employer’s motion for summary judgment was denied in this case as well.

So to answer my own question in the title: No, fantasy football is not a critical threat to your business. But sometimes, fantasy football can be used support a claim of harassment or discrimination.

Fantasy football, despite its name, is a real industry and those companies that treat it as mere child’s play, do so at their own risk.

Restrictive Covenants in Connecticut: Win Some, Lose Some for Employers

Posted in Highlight, Human Resources (HR) Compliance

In the July/August issue of the Connecticut Lawyer magazine, attorney Joseph Blyskal has the first of a two-part article on the state of restrictive covenants in employment agreements in Connecticut.  I’ve talked about this several times before (most recently earlier this summer), but the Connecticut Lawyer article is recommended reading as well (it’s behind a paywall).

It’s worth reviewing a few key points that can be derived from the article.

First, the author concedes that there has been a lack of controlling cases from any of the key appellate courts lately.  He readily admits that the recent cases do nothing to change the “welll-established standards governing enforceability of restrictive covenants in employment agreements.”

And what is that standard? Over 50 years old, it remains a fact-specific inquiry that “requires the actual impact of particular arrangements on competition [to] be examined to determine whether they have a pernicious effect on competition and lack any redeeming virtue.”

The article then goes on to discuss how various cases apply the factors that courts use to decide whether or not restrictions are reasonable.  Employers are fairing in the middle on a cursory review of the cases.  Where the restrictive covenants are in writing and are not overreaching, courts have upheld them, but too often employers try to enforce overbroad provisions or, in one instance, try to create restrictions after-the-fact.

Another takeaway from the article is the observation that claims are also being made lately on a related law: The Connecticut Uniform Trade Secret Act (CUTSA).  The author teases that this will be discussed further in part two, which will be published later this month.

All told, for those interested in the subject, the article provides a good recap of the state of affairs for restrictive covenants.

Connecticut Bar Has Trouble with the NLRB’s Curveball on Social Media

Posted in Highlight, Labor Law & NRLB, Social Media

As our big Labor Day weekend kicks off, it seems appropriate to bring back a “labor” topic, particularly when mixed with one of our favorite topics here: Social Media.

Today, my colleague Jarad Lucan returns with a case straight out of Connecticut with national implications.

As most readers of this blog have read before (here, here, here — you get the point), Section 7 of the National Labor Relations Act gives employees the statutory right to “improve terms and conditions” of employment or otherwise improve their lot.

The NLRB has said in recent years that this right includes the use by employees of social media to communicate with each other and the public for that purpose.

Late last week, the National Labor Relations Board issued a decision giving a big thumbs up to employees who use the “Like” option to endorse a workplace comments on Facebook. . . .well, sort of.

This isn’t the first time that the issue of a Facebook “like” has made legal headlines. A federal court case last year ruled that a Facebook “like” could be protected speech in some instances under the First Amendment, for example.

And I should point out that the new NLRB case involves a number of interesting issues related to employee use of social media and employers regulation of that use. Because this post only addresses the NLRB’s approval of the “Like” option as part of protected concerted activity, I encourage readers to take a look at the decision in their spare time.

In short, Jillian Sanzone and Vincent Spinella, two employees of Triple Play Sports Bar and Grille, located in Watertown, discovered that they owed more in State income taxes than they had originally expected. One of the employees discussed this issue with co-workers, and complaints were made to the employer.

The discussion continued on Facebook, and a former employee, Jamie LaFrance, posted the following “status update” to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . W[*]f!!!!”

LaFrance also posted about the accounting error, blaming it on the owner of Triple Play and stating that “It’s all Ralph’s [the owner] fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

Following this second post, Spinella selected the “Like” option under the LaFrance’s initial update. The discussion continued with several comments being posted, including one from LaFrance referring to Ralph as a “shady little man” who probably “pocketed it all from our paychecks.”

This Facebook discussion was brought to the attention of the owners of Triple Play who subsequently terminated Spinella because he “’Liked’ the disparaging and defamatory comments,” including LaFrance’s references to Ralph and his pocketing of money.

The NLRB, however, determined that Spinella’s termination violated the Act.

According to the NLRB, Spinella merely “Liked” the comments related to Triple Play’s alleged inability to complete tax paperwork correctly and failure to pay a former employee’s wages.

The NLRB rejected the employer’s argument that Spinella’s “like” related to the comments about Ralph, stating that it interpreted Spinella’s “Like” solely as “an expression of approval” of the initial status update. Had Spinella wished to express approval of any of the additional comments deriving from the initial status update, he could have “liked” them individually. He did not.

The NLRB, therefore, found that, even if the “shady little man” and “pocketed it all” comments were defamatory and therefore unprotected, Spinella’s use of the “Like” option during the discussion did not attribute those particular comments to him and he could not be terminated because of them.

Although this is the first case issued by the NLRB addressing an employee’s use of the “Like” option on Facebook, it appears that the NLRB’s position is that “Liking” comments that amount to protected concerted activity is itself protected concerted activity. Frankly, it’s not altogether surprising given the recent cases decided by them.

But whether “liking” comments that are defamatory (i.e. maliciously untrue or made with knowledge of their falsity) or that publically attack an employer’s product or services is protected is a question left for another day.

So, feel free to “like” this post. We won’t hold it against you.