Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Employee’s Speech Against Employer May Be Protected by First Amendment

By Daniel Schwartz on Posted in Litigation

Ever since the U.S. Supreme Court ruled in Garcetti v. Ceballos that an employee’s speech pursuant to the employee’s official job duties was not protected by the First Amendment, employers have attempted to use that case as a shield against free speech lawsuits by employees.

But a decision by a federal court in Connecticut late last month in a case titled Ricciuti v. Gyzenis (download here) shows the limits of that decision.  It’s a lengthy decision — worth reading if you’re a practitioner in the area — that lays out some important theories for employers to understand.

The court notes that the facts of the case are in dispute (already meaning that the employer’s motion for summary judgment is suspect):

To read the parties’ statements of facts in this case is already to suspect that summary judgment is not to be. As the Plaintiff would have it, this case is about an experienced officer who was disgusted by the misuse of public funds at the Madison [Connecticut] Police Department (“MPD”), and who decided to speak up as a town resident and taxpayer. According to the Defendants, this ase was brought by a complaining, often insubordinate probationary officer who thought she knew better than her superiors how to run the Department.  [Plaintiff] maintains that she was retaliated against for speaking out as a citizen on a matter of public concern; the Defendants counter that her speech, which violated the MPD’s Code of Conduct, was intended only to improve [her] own employment conditions.

The employer raised several arguments to say that the case should not proceed to trial and that “summary judgment” should be granted. The federal court rejected all of them.

Most notably, the employer argued that speech was not protected under the First Amendment. But the court found that under a variety of factors the speech was protected.  

The employer then argued that the employee’s speech was “indisputably more disruptive than valuable.” But the court said that it could not conclude that either at this stage and that such an argument was ill-suited for use at summary judgment.

What’s the takeaway for employers?

  • The U.S. Supreme Court’s decision in Garcetti may not bump every First Amendment workplace speech case. Courts still have some latitude to consider the parameters of the decision. 
  • Recall too that Connecticut state law applies those First Amendment rights to the private workplace in many instances. The Connecticut Supreme Court is currently considering the limits of that statute so stay tuned.

An Overview of “Right to Work”

By Daniel Schwartz on Posted in Labor Law & NRLB

Anyone who has read this blog for a while knows that I am a big fan of the Office of Legislative Research, a little-known office at the Connecticut General Assembly.  They produce reports, backgrounders and items like that for legislators and release them to the public.

Photo courtesy of Library of Contress

As a result, you can get some free research into topics that may be of interest.

While reviewing their recent reports over the weekend (it was a snow day), I found one done a few months ago analyzing “Right to Work” and the impact on various states.

As noted by the report, “Right-to-work laws allow employees to decide whether or not to join or financially support a union. Twenty-two states currently have right-to-work laws; Connecticut is not one of them. ”

The report notes that studies have shown that such laws have no impact (positive or negative) on wages. But it goes on to note that such laws appear to have a ”statistically significant, positive effect on employment levels and job creation.” 

Studies show that right-to-work laws have a statistically significant positive effect on employment levels and job creation, including faster growth in manufacturing jobs and lower unemployment rates. This may be because right-to-work laws affect where companies locate and manufacturing plants open. For example, all new auto plants built in the United States in the last 10 years were built in right-to-work states.

The report does indicate that other scholars dispute this conclusion, however.

“Right to Work” made headlines again last night.  The Indiana House passed a “right to work” bill yesterday.  And the Wall Street Journal Law Blog did an overview as well.   

It seems very unlikely that Connecticut will ever approve — must less consider– such a proposal.  Governor Malloy would surely veto any such measure as well.  Will this movement, however, continue to pick up steam?  As the saying goes, only time will tell.

CHRO Proposes New Equal Employment Opportunity Plan Regulations & Hearing

By Daniel Schwartz on Posted in CHRO & EEOC, Laws and Regulations

The Connecticut Commission on Human Rights and Opportunities (CHRO) has released proposed new regulations that would require state agencies and the like to create an Equal Employment Opportunity Plan.

These regulations would not apply to private employers so many of you can dispense with the worrying.

The proposed regulations will replace the current ones. The CHRO hasn’t amended the regulations in quite some time and according to one CHRO insider, it seemed to be a good time to look at them afresh. The changes are relatively modest, but for those that study these types of things, there are updates to definitions such as “good faith efforts” that should be reviewed.

You can download the full proposal here.

A public hearing on the proposal is set for February 8, 2012 at 10 a.m. The hearing will be held in Room 1A of the Legislative Office Building, 300 Capitol Avenue, Hartford, CT 06106.

If you’re interested in commenting on the proposal, you can do so in writing (either snail mail or e-mail) to: James O’Neill, Legislative Liaison, Commission on Human Rights and Opportunities, 25 Sigourney Street, Hartford, Connecticut 06106 or  james.j.oneill@ct.gov.

A Vote for the Blog

By Daniel Schwartz on Posted in Social Media

Popularity contests have never been my thing.  And asking for votes is even less my thing too.

But as I recently noted, the popular Sad City Hartford blog has nominated me for the “Hot in Hartford” 2012 contest.  It is a silly contest, as the blog authors readily concede, but a contest nonetheless. 

And for the next 24 hours, I’m up against popular WNPR radio host John Dankosky, in a one-on-one poll. 

As of this afternoon, just FIVE votes separated us.  Since I know that there are several hundred of you that visit this blog every day, if you took 30 seconds to vote, we could easily send a message that the law is greater than a talk show even if just a fraction of you voted.

(Put aside, for the moment, that I have great respect for John Dankosky and, having met him in person, he’s the real deal.  But all’s fair in battle.)

So, please click here and vote for the me and the blog.  (No registration required.)  And show that a lawyer can win a popularity contest after all.   

 

Public Hearings Suspension at CHRO Now Over; Two Human Rights Referees Appointed

By Daniel Schwartz on Posted in CHRO & EEOC

For nearly six months, public hearings at the CHRO were on hold because Governor Malloy did not reappoint the human rights referees.  As a result, cases that had been pending at the CHRO went nowhere — fast.

However, that is changing.  Two new human rights referees were appointed this month and a third will be on the way shortly.  The new referees are:

  • Alvin Wilson, who will serve as Chief Human Rights Referee.  Most recently, Wilson served as Director of Operations under Governor Malloy and is a 1993 UConn Law School graduate. His LinkedIn profile is available here.
  • Ellen Bromley.  Bromley recently worked for the law firm of Benjamin & Gold. Prior to that, she worked for the City of Stamford as Social Services Coordinator.  She is a 1981 Georgetown Law School graduate.

Although the CHRO does not have any public hearings yet listed on the website, these new referees have recently been sending out notices to start the process up again.

(Perhaps the CHRO could update their website to indicate who these new referees are and make a formal announcement to the public about the resumption of these public hearings?)

Thus, employers will cases that have been awaiting a public hearing (particularly those prior to July 1, 2011) should expect to see some action shortly.

For everyone else, this means that the logjam at the CHRO will soon be coming to end.  And since there is the possibility that cases can now skip investigations and go directly to public hearing under the new procedural rules in effect last year, that possibility is now more real than ever.

 

Super Bowl Office Pools in Connecticut – What Box Are You In?

By Daniel Schwartz on Posted in Featured, Highlight, Human Resources (HR) Compliance, Laws and Regulations

It doesn’t get much better than this for Connecticut residents.

Giants vs. Patriots for the Super Bowl. 

Go Giants!

In a state where the loyalties are divided, a Super Bowl rematch from four years ago is nirvana. 

And with such interest and enthusiasm, friendly wagering among friends will no doubt follow. But what happens when those people want to bring such wagering into the workplace in Connecticut?

In Connecticut, gambling and wagering are prohibited by various state laws. There is no clear exception for “workplace” bets, or small bets. According to the statutes, a bet is a bet, regardless of where it is placed. (The obvious exceptions to this general rule are the Indian casinos in the state — Foxwoods and Mohegan Sun.)

However, there is one well-worn exception to the “no gambling” rule. Specifically, Conn. Gen. Stat. Sec. 53-278b states that people (not companies) are:

exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling.

And what about the office pool?

(The traditional office pool is a game where people pay, say $5, for a “box” on a 10×10 grid.  The grid then has the last number for each team’s score ranging from 0-9.  If the score is 21 to 14 in favor of Giants, then the person who has the corresponding 1-4 box, in favor of the Giants, would win.) 

No less than Attorney General (now U.S. Senator) Richard Blumenthal chimed in on the subject a few years ago and blessed the office pool so long as the person or company running the pool doesn’t take a cut of the money.

“Office pools are generally legal unless they’re done for a profit by the person organizing it,” Blumenthal said at the time. “In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).” 

So, what’s the takeaway for employers? Even with the attorney general’s blessing, a company should probably not sponsor the pool directly. If a few employees want to organize, so much the better. But if that happens, someone should inform those individuals that any money collected should be distributed and they are not allowed to keep a cut of the money.

Of course, the company can always sponsor a contest (different from an office pool in that participants do not need to submit money to play) for employees to get involved with. For example, the company could give away a free “vacation day” to the winner of the office pool. It’s a fun, low-cost way to build morale within a department or office.

Regardless of your favorite team, this a fun time of year.  My loyalties are squarely with the New York Giants.   Go Big Blue!

Judge Peter Dorsey, Federal Judge, Dies at 80

By Daniel Schwartz on Posted in Litigation

The bench lost another notable judge this past week. Judge Peter Dorsey — who was the former chief judge of the District of Connecticut and who continued to serve despite taking “senior” status — died Friday at the age of 80.

I last appeared before Judge Dorsey very late last year. He had a wonderful sense of humor during that last session and he could still disarm both attorneys and clients with his wit.

It wasn’t always easy.  His trial preparation order was, for many years, the most unique of them all.  But you knew what to expect and he had the quality that most judges seeks — the perception of being fair-minded.

He handled numerous employment-related claims and you can review many of them on Google Scholar here.  His shoes will be hard to fill.

Conn. Supreme Court: Alleged Knowing and Deliberate Discovery Misconduct Not Enough to Warrant New Trial

By Daniel Schwartz on Posted in Discrimination & Harassment, Litigation

It’s so rare nowadays that the Connecticut Supreme Court rules on discrimination cases that, when I first took a look at its new decision in Duart v. Department of Corrections (download here) — officially released next week — I got excited.  After all, the case is based on a claims of gender, race and sexual orientation discrimination. Even the CHRO submitted an amicus brief in support of the decision.

Connecticut Supreme Court

But upon further review, it’s a decision only the lawyers will love; for employers, the case lacks the oomph to make it significant.

At issue is whether a party seeking a new trial on the basis of alleged knowing and deliberate discovery misconduct must show that the result at a new trial would likely be different.  The court concludes yes; the party must show that a “different result” would have occurred — a high standard indeed to meet.

In reaching that conclusion, the court basically notes that discovery has become so difficult that the other party can often find something to complain about. That would lead to chaos, according to the court.

Given the breadth of discovery in modern trial practice, it is inevitable that the movant could find some fault with the other party’s compliance with broadly phrased discovery requests. If we obliged the nondisclosing party to prove harmlessness every time the moving party claimed that the nondisclosure constituted misconduct, we would impose an insupportable burden on the nonmoving party to disprove amorphous assertions, as in the pre- sent case, that the ‘‘entire case would have gone differently . . . .’’ Requiring a showing of a different result serves as a means of differentiating those cases in which the nonmoving party’s alleged misconduct materially affected the resolution of the underlying case—and in which, accordingly, the increased burden and expense is thereby warranted—from those cases in which relitigation would be a pointless exercise.

For employers, it’s hard to take away much from this decision.  It’s a procedural decision that may impact discovery and trials. But for human resources professionals, it’s not going to have much, if any impact.

Quick Hits: Ban On Cell Phones; NLRB & Social Media; Nursing Mothers; Retaliation, LinkedIn

By Daniel Schwartz on Posted in Labor Law & NRLB, Laws and Regulations, Litigation, Social Media, Wage & Hour

As another week passes by (seriously, where did January go already?), here are a few odds and ends that are worth a mention:

  • Earlier this month, new rules regarding limits on the use of mobile phones went into effet by the Federal Motor Carrier Safety Administration.   The rule covers ”both, drivers of CMVs in interstate commerce, and also any drivers who operate a vehicle transporting a quantity of hazardous materials requiring placarding under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.” Presumably, you should know if you’re covered but if you still have questions, here are the FAQ. 
  • The NLRB continues to issue memoranda addressing whether an employee’s use of social media is protected under federal labor laws.  Brian Hall, of the Employer Law Report, suggests that the NLRB ”may be settling in on, dare I say, a more reasoned position when it comes to these kinds of cases.”   The takeaway? Not all employee conduct is going to qualify for protection but the rules are still being developed.
  • A while back, I noted about a little-known provision on the new health care law that mandated employers provide space in the workplace for mothers to lactate. Since that time, just 23 companies have been cited under the law, reports the Ohio Employer’s Law Blog. 
  • At the very end of last year, the Department of Labor released three new fact sheets offering further guidance to employers on the topic of retaliation under the FLSA and the FMLA.  Nothing altogether new, but useful nonetheless. 
  • And if you haven’t thought about wehther LinkedIn connections are trade secrets and who owns them, then this post by The Employer Handbook is worth a read too. 

Finally, if you’re looking for other law blogs to follow, you could do a lot worse than to check out this list by BlogRank of the top 50 blogs by various metrics. Yes, this blog is on there, but there are plenty of others worth exploring.

No Fiduciary Relationship Created Between Medical Resident and Program Director

By Daniel Schwartz on Posted in Litigation

The Appellate Court, in a decision that will be officially released next week, rejected the claims of a former medical resident that his program director owed a “fiduciary duty” to protect that resident’s interests.

In Golek v. Saint Mary’s Hospital, Inc. (download here), the court was asked to review the propriety of a decision by a hospital that conducts an accredited surgical residency training program to decline to promote a senior resident to the position of chief resident.  In all facets of its review, the Court upheld the hospital’s decision.

Much of the decision concerns a review of evidentiary issues and jury instructions. But one facet of the decision should be of note to employers.  It reviewed the appropriate standards as to whether a fiduciary relationship was created; if a relationship is found, that creates a higher standard of care by the fiduciary.

It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . . we have recognized that not all business relationships implicate the duty of a fiduciary. . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.

To show this, the court said, requires ‘‘a unique degree of trust and confidence between the parties such that the [defendant] undertook to act primarily for the benefit of the plaintiff.’’

Here, the court rejected the notion of a fiduciary relationship between the resident and program director, noting that the resident is an “adult”. 

[No] fiduciary relationship existed between [the director] and the plaintiff while the parties were negotiating the plaintiff’s role in the surgical residency program. As the [trial] court noted, the plaintiff is an adult who voluntarily became a physician and entered the hospital’s surgical residency program. The plaintiff alleges that … [the] program director, sometimes praised and sometimes criticized the plaintiff’s performance and that he certified surgical residents’ performance records to ACGME. That history does not suffice to establish anything other than a form of a student-teacher relationship. We know of no case, and the plaintiff has cited none, to support the proposition that such a relationship, without something more, was fiduciary in nature…

For employers, understanding claims like this are the best way to avoid such claims in the future. Disclaimers to employees that they are “at-will” and that nothing in an offer letter is intended to alter the employee-employer relationship, are one way to reduce the risk of such claims in the future.