Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

This week, the U.S. Department of Labor updated their website and provided some new online tools to help employers figure out which recordkeeping, reporting and notice requirements apply to them. 

According to the DOL:

The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a FirstStep suite of advisors that also includes the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

"These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them," said Secretary of Labor Elaine L. Chao.

However, employers in Connecticut using these tools should be cautious.  There are additional requirements that employers in Connecticut that may apply and some are stricter than the federal rules.

Because of this, employers should use the department's online tools as a resources, but should followup with an attorney or the Connecticut Department of Labor about additional requirements that may apply.

(H/T Delaware Employment Law Blog)

• Print
• Comments
• Trackbacks

The focus for this term of the Connecticut General Assembly for employers and employees has been on the paid sick leave bill (still no action in the House as of May 3rd).

However, employers who have employees working on public works projects and manual labor on state or municipal building construction or repair contracts need to be aware of a bill that cleared both the Senate and House very early today (H.B. 5537).  The bill is expected to be signed into law shortly, will become effective January 1, 2009.  The vote tally in the Senate is available here.

Under current law, some of these employees must prove that they have completed a 10-hour construction safety and health course that meets federal OSHA Training Institute Standards. The new bill expands this training and expands the people who must receive training. 

The Office of Legislative Research has fairly detailed report available here:

First, it expands the construction safety training requirement to any public works project, which includes sewage and water treatment plants, site work, road and bridge work, parking lots, drainage systems, and other public projects.

Second, instead of applying the training requirement to all projects of $ 100,000 or more, the bill applies the existing prevailing wage project thresholds to the training requirement. This means the requirement kicks in for (1) repair and renovation projects of $ 100,000 or more and (2) new construction projects of $ 400,000 or more.

Furthermore, it removes the requirement that the proof of the training be sent to the labor commissioner. Presumably, the proof will be sent to the contracting agency paying for the prevailing wage project. ...

The bill also creates training requirement exceptions for employees of public service companies and commercial vehicle drivers who either pick up at or deliver cargo to public work projects.

It requires the labor commissioner to adopt implementing regulations by January 1, 2009. By law, regulations cannot take effect before the effective date of the act authorizing them.

A few notable items:

• The employees who must receive the training (which, under current law, is any employee "performing manual labor") is greater under the bill.  The bill states that a mechanic, laborer, or worker must complete the safety training course.
  
• Notably, according to the OLR, the safety training requirements "do not apply to employees of public service companies, which are defined in statute to include electric, electric distribution, gas, telephone, telegraph, pipeline, sewage, and water companies; cable franchise holders; and railroad companies."

• Print
• Comments
• Trackbacks

It's been a little while since we last checked in with the unionization efforts at Foxwoods.  The appeal process of the election of UAW has begun its slow arduous process so don't expect to hear much on this for weeks or months at a time.

But in the meantime, various other groups have been vying to try to unionize other workers at Foxwoods. Yesterday,  engineering department workers cast ballots about possible union representation by the International Union of Operating Engineers.

The workers overwhelmingly rejected such representation by a vote of 215-67. 

The Day has this report from late Thursday evening:

The election results were hailed as a major victory by Foxwoods, which has recently received intense pressure as several unions have filed petitions seeking to unionize workers at the casino.

”We are very pleased with the vote of confidence that employees have given Foxwoods management today,” said Foxwoods President Barry Cregan in the release issued shortly after 7 p.m. “Those team members displayed outstanding professionalism through the entire process and clearly agreed that having an intermediary come between us wasn't necessary.”

What's interesting about this is that the tribe had also complained to the NLRB that the election shouldn't go forward citing its sovereign immunity, as it has done on other elections. The Regional Director -- as it has done before -- rejected those claims in a decision found here.  But this time, Foxwoods prevailed in the union election so unless the union raises exceptions to the election, it is unlikely that the immunity argument will be tested again here.

Foxwoods still has several more union petitions from other worker groups to face in the upcoming months.  You can find my prior coverage of the Foxwoods unionization efforts here.

Because of Foxwoods' status as one of the largest employers in Connecticut, and the novelty of unionization of its employees, this remains a topic worth following in the upcoming months.

• Print
• Comments
• Trackbacks

With the legislative session coming to a close next week, developments are heating up at a fast and furious pace.  I'll do some quick updating and then provide a more through review when time permits.

First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements.  The Senate has been working off of some amendments as well, which can be located here.

The Hartford Courant has coverage here.   The CT News Junkie blog has a report earlier this week about it as well.

Second, the State Senate also passed amendments to the state's whistleblower law.  You can find my previous coverage here and you can view the Courant's coverage today of it here.

The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases.  The bill now moves on to the House for a vote. 

As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling.  The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.  As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?

Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward.  Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.

• Print
• Comments
• Trackbacks

With baseball season in full swing again, one of my favorite posts from last fall was about various employment contracts that baseball players had. 
-----

In Connecticut, the loyalties between the Red Sox and Yankees are about evenly split.   So, for now, it's baseball nirvana here in the state.  ...

In honor of the baseball playoffs beginning this week, I thought I would pass along some materials regarding the employment contracts of some baseball players.  And where would I turn for such information? 

It turns out the Baseball Hall of Fame has a whole website discussing the Labor History of Baseball.   Its a fascinating site that outlines a whole educational program that high schools or colleges can run about baseball's labor history, complete with profiles and source documents.  I'm certain that if my school had such a course, I would've been the first to sign up.  (Ithaca College -- near the Hall of Fame -- has run such a course over the years.)

Hidden on that site are some nuggets: the actual employment contracts of some baseball players.  Given my love of the Yankees, I thought I would post a few: Babe Ruth, Joe DiMaggio and portions of Derek Jeter's. 

As you will see, these are not your "standard" employment contracts.  After all, how many contracts do you know that have a limitation on the athlete playing impromptu billiards or darts?

Of course, the labor history of baseball is much more than just about the contracts.  Cases such as the Curt Flood litigation regarding free agency have set precedent for employment of athletes in all of sports. And there are even arbitration procedures for companies set up to follow "baseball arbitration" or "night baseball arbitration". 

As you watch the playoff games this month, the Baseball Hall of Fame's website is nice compliment to that experience.  And you can thank baseball for its involvement in setting precedent in the employment law arena.

• Print
• Comments
• Trackbacks

Not unexpectedly, an Administrative Law Judge this week overruled Foxwoods' objections to the election of the UAW union as the representative for the table dealers (download ALJ decision here).  The Regional Director will certainly certify the election results.  At that point, Foxwoods is expected to refuse to bargain with the UAW which will set up further appeals.

As I said last fall, the tribe has already telegraphed its next move:

Leaders of the Mashantucket Pequot Tribe, which owns and operates Foxwoods, indicated the issue is probably headed in that direction.

"In light of what is at stake for all of Indian country, we must pursue this and it will require an appeal to the federal courts," said Tribal Chairman Michael J. Thomas in a letter circulated by the tribe.

Because I'm on trial, I'm only able to provide a quick summary of the decision.

Foxwoods had claimed that the ballots to the election should have been written in Chinese. That objection was overruled in a summary as follows:

Based on the totality of the evidence presented by the Employer and the Union, it is my opinion that the Employer has not established that any significant number of Chinese born unit employees had such difficulty with reading and understanding English that the failure to translate the ballot into Chinese could have affected the election. The employees presented by the employer did not represent a random sampling of the Chinese voters. And the evidence failed to convince me that any more than a few, at most, might have had any difficulty in understanding how to mark their ballots. (In a few of the cases, any difficulty they might have had could be attributable to their indifference). The Notices of the Election posted at the facility were in English and traditional Chinese. Both the Company and the Union communicated to the employees in English and Chinese by a wide variety of means. Additionally the Company held a series of meetings urging employees to vote “no” and explaining the election procedure. In some cases, meetings were conducted in English with a Chinese translator available to answer questions. In other cases, meetings were held where instructions about the balloting were given by a Chinese speaker. This was bolstered by mailed DVDs and pamphlets explaining the balloting procedure in various languages including Chinese.

Other objections, such as massed speeches, or intimidation, were also overturned.

As I have noted time and again, readers should not get too excited -- one way or the other -- on these types of decisions.  Foxwoods (and indeed, the UAW) is merely making a record for a likely appeal.  The real battles -- in the federal courts -- are still to come.

For a recap of ALL my prior Foxwoods coverage, click here.

• Print
• Comments
• Trackbacks

A few years ago, there was lots of debate among attorneys about whether summary judgment was still a disfavored remedy in employment discrimination cases in federal court.  (For those readers unclear what "summary judgment" is, the Wikipedia entry is a pretty good start and George's Employment Blawg has a nice post about how to best prepare a motion for summary judgment.) 

If the latest in a series of recent decisions by Judge Vanessa Bryant is any indication (see prior posts here, here and here), summary judgment is still alive and well. 

In Grunberg v. Quest Diagnostics, Inc., Judge Bryant was faced with a multi-count complaint alleging claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq., and Connecticut common law.  The court granted Quest's request for summary judgment on each and every count. 

The decision itself is fairly routine in its analysis of the issues. Among the notable points:

• Employees cannot rely on generalized statements of progressive discipline in an employee handbook to create a "contract" claim, particularly if the employer has set forth adequate disclaimers.
• An employee cannot prevail on an FMLA claim, where the employer can show that it had already made a decision to remove the employee from his/her position prior to the exercise of FMLA rights.  This is important for employers to understand; the employee need not be notified of the decision in order to invoke this protection, but the decision must have already been made in one fashion or another.

So, does this decision signal a trend of granting summary judgment in Connecticut?  No, at least not generally. Certainly, Judge Bryant has shown that she is not afraid to use this procedural device to dispose of cases.  But each federal district court judge in Connecticut has their own style of handling cases.  Indeed, in a prior post, I noted that two federal court judges even outlined their summary judgment philosophies in their chambers practices.

For example, Judge Thompson believes that "dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case." ...  Judge Droney, however, states that, "in employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court."

Thus, when employees and employers are in federal court, the best way to evaluate a case may not be to merely look at the merits of the case, but to also understand the judge's philosophy and history as well.  An employer who may have a shot at summary judgment (thereby avoiding the cost of a trial) may value a case entirely differently than a party who knows that the case is going to trial regardless of what the parties uncover during discovery. 

• Print
• Comments
• Trackbacks

The hearing into Foxwoods' objections to the union election last fall ended yesterday with both sides claiming that they will ultimately prevail.  Briefs for both parties are due by February 28th and the judge indicated that he expects to issue a decision no later than March 15th.

The Day wraps up the details from the last day of the hearing here.  The Day reported that Judge indicated that he would have handled the ballots differently; whether this is going to be enough to overturn the election is a different question -- one that we'll have to wait to the judge's final decision for an answer.

The tribe has questioned why the ballots were not printed in multiple languages, why an election notice was only printed in one Chinese dialect and also contends that UAW representatives harassed and intimidated eligible voters before the election. ...

The majority of documents entered into evidence throughout the hearing dealt with the issue of language and to what extent Asian dealers, specifically those who speak Chinese, can speak, read and comprehend English.

[The Judge], as an aside at the beginning of the hearing, said that if it were his decision, he would have printed the ballots in Chinese.

• Print
• Comments
• Trackbacks

The NLRB's hearing into Foxwoods' objections to the union election continues this week. The latest issue to resurface is one that has surfaced before -- tribal sovereignty.  As I've said previously, I believe this is the type of "big picture" issue that may ultimately take this case up to the U.S. Supreme Court. 

Because the case may ultimately end up in a higher court, I am certain that both sides are trying to lay the groundwork for such an appeal. For the tribe, that means raising the issue thoroughly and establishing a transcript and record that can be used later on. 

Reports of the hearing yesterday illustrate that this strategy was front and center is yesterday's hearing, with seemingly trivial issues over a subpoena becoming major issues. 

According to The Day (continuing its thorough coverage of the hearing):

Monday's arguments in the hearing, in which Foxwoods is disputing the results of a November vote by table-games dealers to unionize with the UAW, centered on whether the tribe's police department could or should respond to a National Labor Relations Board-issued subpoena.

Last week, a subpoena was served to the police department on behalf of the attorneys representing the UAW seeking a police report that was filed by a dealer at Foxwoods. ...

Elizabeth Conway, an attorney for the tribe, argued that the department was not subject to comply with the subpoena because it is “separate and distinct from the gaming enterprise.” The NLRB previously ruled that it has jurisdiction over the gaming enterprise.

...
[Raymond P. Green, an administrative law judge] asked why the police department doesn't just waive sovereign immunity and release the document.

Green said that without the document, it could be detrimental to the case, in that, he would discredit the witness' testimony. If the tribe's attorneys could produce the document, they should.

“The subpoena is almost a red herring,” Green said.

He continued by saying the tribe's attorneys used the witness as a sword, but when asked to back up her claims with the report, the tribe then held up a shield, using the sovereign immunity claim.

“There's no legitimate reason for it being held secret,” he said.

The judge is expected to rule on the issue in the next day or two. Meanwhile, the hearing continued with the Tribe resting its case and the union putting on several witnesses.  The hearing continues today.

• Print
• Comments
• Trackbacks

While the mainstream press has been reporting on the upcoming hearing tomorrow on some of Foxwoods' objections to the election, Foxwoods has also been challenging the Regional Director's decision on December 21, 2007 rejecting the other objections raised by Foxwoods.  Thus, readers should be aware that reporting on the hearing tomorrow is only one front in the battle over unionization at Foxwoods. 

Earlier this month, Foxwoods filed a lengthy "Request for Review" of that December 21st decision, which can be downloaded here. While it repeats some of the same arguments made earlier, when read in conjunction with yesterday's column in The Day, it highlights the strongest argument that the Tribe has -- that tribal sovereignty and Indian law trump the "normal" rules of construction.

For instance, on pages 16-18, it notes that although federal agencies are generally afforded some deference to their rules, that deference should not be afforded when the rule is construed towards Indian tribes.

In line with that canon, the Board is consequently duty bound to interpret the NLRA's jurisdictional reach in a manner which furthers tribal interests.  Here, that inexorably leads to a conclusion that tribes, including [Foxwoods/Mashantucket Pequot Tribal Nation] fall outside the NLRA's scope..."

Foxwoods also argues that the effect of a potential strike on the tribe's ability to provide governmental services was not considered properly by the Regional Director.  Foxwoods' brief attaches multiple exhibits, which can be downloaded here, here and here, including its prior briefs which can give the reader additional insight into the tribal sovereignty argument. 

Notably, the State of Connecticut filed a brief in opposition on Friday, January 11th.  The State has taken a very aggressive approach to this matter and has again challenged the tribe's arguments -- saying they essentially nothing but a retread and dismissing the remaining arguments.   The  State's brief can be downloaded here.   It's also worth reading (its much smaller in scope) to understand the counter to the arguments raised by the Tribe. 

UPDATE: Jeff Hirsch, at the Workplace Prof blog, also has his thoughts on the arguments that are worth taking a look at. 

• Print
• Comments
• Trackbacks

Readers of the blog will no doubt know that the battle for unionization at Foxwoods Resort Casino  is one of the most significant labor issues in Connecticut in many years.  A hearing on the tribe's objections to the election of UAW is scheduled to begin on Tuesday, Januay 15th, which I've discussed before.

In advance of that hearing, The Day (which has been on top of the election throughout) published a very interesting column today by Timothy "Quietbear" Walker entitled Work With Tribe, Avoid Turf War.  

Walker, a citizen of the Mashantucket Pequot Tribal Nation, shifts the discussion from the objections to the election -- which contests the way the election was run -- to larger issues of tribal sovereignty, which it has raised before to no avail so far.  As Walker notes, "the battle is over the NLRB reversing 30 years of federal policy because of the actions of one small tribal group in California."
 
Walker argues that the NLRB's recent decision to exercise jurisdiction over tribal enterprises in some situations (including a tribal casino in California) is unfair and flawed. He argues that Tribes have the legal right to govern labor relations on tribal lands:  "Each tribal nation has the inherent authority to pass its own laws, tax its citizens, and determine the structure and operation of its government."

In doing so, he points to statement which he says "the federal government acknowledges 'the sovereign status of federally recognized Indian tribes as domestic dependent nations'".  What is this document? A June 1, 1995 Memorandum on Indian Soveriegnty by the U.S. Attorney General, which can be found here.  Its worth reading to understand that the "tribal sovereignty" is among the most wide-ranging and important rules for federally-recognized Indian tribes.

Walker's column argues that public education does a poor job of explaining this and argues that  many American were probably not aware that Native Americans were still around until the "media buzz on Indian Gaming".  He thus suggests that "15 minutes of research on the Internet will provide anyone interested with a simple understanding of the major issues being debated."  With the advent of Google, such information is now at your fingertips.

There are also two museums that are, frankly, worth visiting as well to get a better understanding.  (My law school did a good job explaining it, but its a little more expensive.) In Connecticut, the Mashantucket Pequot Museum and Research Center is a sight to see. 

And In Washington, D.C., the National Museum of the American Indian has tons of information -- much of it from a different perspective than most have probably been taught.  I had the opportunity to visit it last month and would highly recommend adding it to your itenerary on your next visit. 

(Hat Tip to Workplace Horizons Blog, which covered this today; the lawfirm behind the blog, Kilpatrick Stockton, has been representing Foxwoods in the UAW/Foxwoods dispute.)

• Print
• Comments
• Trackbacks (2)

During the holiday period, the Second Circuit issued a long (and I do mean LONG -- 77 pages!) decision regarding whether Connecticut corrections officers could belong to the Outlaws Motorcycle Club. 

The Second Court upheld the dismissal of First Amendment and other constitutional claims brought by several fired corrections officers who had challenged their firings. They contended, in Piscottano v. Murphy (download here) that their participation in the Club, which the government regards as a criminal enterprise, violated their rights to Freedom of Association.  The Court rejected that claim.  (The Hartford Courant's report can also be read here.)

Wait a Second Blog, has the initial details:

As the Court of Appeals likes to do, it uses this case to flesh out the state of the law on the right of association under the First Amendment, outlining how the Supreme Court has made it easier over the years to allow the government to restrict certain First Amendment freedoms among public employees.

The Court of Appeals first reviewed the Supreme Court's latest pronouncements on the regulation of a public employee's outside activities. Citing San Diego v. Roe, 543 U.S. 77 (2004), the Court stated that the government has leeway to discipline an employee whose outside speech or associations are detrimental to that operation. It is true, the Second Circuit held, that the plaintiffs in this case engaged in a "protected" association with the Outlaws in that their involvement with the organization raised a matter of "public concern" under the First Amendment. This is because, while the Outlaws Motorcycle Club does not as an organization engage in "public concern" speech, that organization's questionable existence itself would raise concern among the public.

But while "public concern" speech is protected by the First Amendment, the analysis does not end there. The government can still win the case by showing that this associational relationship can hurt governmental operations. Since the plaintiffs are corrections officers associating with an organization with a mission at odds with law enforcement, they can be fired for that association, overriding the First Amendment claim. Moreover, since membership in a large and non-selective social club like the Outlaws does not represent the kind of intimate (family) relationship for which you cannot be punished at work, the right of "intimate association" under the First Amendment does not help the corrections officers, either.

There are a few other notable aspects to the case to point out briefly.

• The case was argued in February 2006 -- thus, the case took nearly two years to decide. The next time you have an appeal before the Second Circuit, don't presume the wheels of justice will move quickly.
  
• It appears to judges focused to some extent on the corrections officers' denials of their knowledge of the criminal activities of the Outlaws group and their seeming denials of actually participating in the group:

In sum, on this record, we think it plain that Piscottano,Kight, and Vincenzo, by, inter alia, repeatedly consorting with the Outlaws and wearing Outlaws colors and apparel in public--even at such times as they were not members of the Outlaws--engaged in expressive activity approving of the nature of the Connecticut chapter of the Outlaws, of the national Outlaws organization, and of other Outlaws chapters.

The fact that law enforcement agencies believe the Outlaws and many of its chapters engage in criminal activity is sufficient in itself to make the nature of those entities a matter of public concern.

• An interesting question is whether courts would come to the same result for a private employer. After all, Conn. Gen. Stat. Sec. 31-51q purports to apply the reach of some constitutional claims to private employers.   It is plain from reading the decision that the particular position held by the corrections officers (semi- law enforcement) was a factor in the Court's decision.  Would the Court reach the same result for a newspaper delivery person?  That's simply an open question at the point.  But at least under Sec. 31-51q, the employer would have an additional defense that such actions may "substantially interfere" with the employee's performance or the working relationship.

• Print
• Comments
• Trackbacks

Last week, while many (including myself) were vacationing, the NLRB set a date for a hearing on the objections raised by Foxwoods. I last updated the status in this post.  You can find all the posts about the election here.   

As to the hearing, The Day reports,

A recent decision by the NLRB found that Foxwoods' claims that the board did not have jurisdiction over the casino and that the ballot failed to list the union's full name were without merit and were overruled.

But 10 of the 12 objections Foxwoods filed regarding the election remain unresolved, so on Jan. 15 the NLRB will hear testimony from both the United Auto Workers union, which petitioned for the election and right to represent the casino's roughly 3,000 dealers, and the Mashantucket Pequot Tribal Nation, which owns Foxwoods.

The hearing will focus on the conduct of UAW representatives leading up to the vote, including what Foxwoods claims was the harassment and intimidation of eligible voters who did not support unionization. The NLRB also will examine whether ballots should have been multilingual.

If the NLRB affirms the tribe's allegation of misconduct, it would force a new election.

Overturning the results of the election are never easy but without evaluating the evidence presented by Foxwoods, it is impossible to evaluate Foxwoods' likelihood of success.  Perhaps the UAW engaged in some egregious behavior before the election; if so, the results of the election would be set aside, perhaps even on just one valid objection (of the 10 remaining). 

But that's still a long way off. There will be a hearing, followed by a hearing officer decision and ultimately, a likely appeal to the entire Board.  That process could still take many months (or even over a year given the turmoil at the NLRB itself).  As stated in previous posts, this battle will continue for some time. 

• Print
• Comments
• Trackbacks

On Friday afternoon -- conveniently right before a long holiday weekend -- the NLRB dropped a significant decision on an important issue -- whether an employer may set up a policy that, in turn, prohibits employees from using the employer's e-mail system for any "non-job-related solicitations." 

The NLRB answered "yes" in the case of The Guard Publishing Company d/b/a The Register-Guard,  351 NLRB No. 70.

The NLRB issued a lengthy press release discussing the case available here which also addressed some additional, and no less significant, issues:

The employer’s written policy prohibited the use of e-mail for “non-job-related solicitations.” In practice, the employer allowed a number of nonwork-related employee e-mails, but there was no evidence that it permitted e-mails urging support for groups or organizations. ... 

Addressing the maintenance of the policy, the Board majority of Chairman Battista and Members Schaumber and Kirsanow reasoned that under Board precedent, employees have no statutory right to use an employer’s equipment for Section 7 purposes. The majority found that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the Court held that a ban on solicitation during nonworking time was unlawful absent special circumstances, was inapplicable to the use of an employer’s e-mail system, because Republic Aviation involved only face-to-face solicitation, not the use of employer equipment. The majority noted that the use of e-mail “has not changed the pattern of industrial life at the Respondent’s facility to the extent that the forms of workplace communication sanctioned in Republic Aviation have been rendered useless . . . . Consequently, we find no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.” Therefore, the majority concluded, the maintenance of the policy did not violate Section 8(a)(1).

With respect to the alleged discriminatory application of the policy to Prozanski’s e-mails, the majority clarified that “discrimination under the Act means drawing a distinction along Section 7 lines.” The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and “group” or “organizational” postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court’s analysis, “rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.” The majority overruled the Board’s decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.

The case has already been written about by The New York Times, and discussed at length by several blogs over the weekend, including Workplace Prof (which heavily criticizes the decision), Ross Runkel's NLRB Law Memo, Workplace Horizons, Eye on the NLRB, and Pennsylvania Employment Law Blog, so I won't repeat their thorough coverage here (plus I'm technically on "vacation").

But a few thoughts immediately come to mind:

1) Employers will need to consider revising their employment policies on use of electronic mail and intranets immediately to take advantage of the protections this case offers.  After the new year, I'll add more on this as the analysis of the case becomes clear.

2) For the non-labor lawyers or non-union employers, you may be wondering what the fuss is all about. After all, limiting employees' use of the e-mail system to work-related conduct is something that many employers preach. Some even go further with computer-aided limits on sites with personal e-mail accounts, etc.  For these employers, the decision may not seem as ground-breaking, but nevertheless, it allows the employer to create an employment policy that brings consistency and identifible limits. 

3) The case seems to distringuish between "solicitation" and general announcements.  You wonder, however, how this will apply in a practical sense. Will employees try to couch future e-mails as informational -- even when they may just be solicitations dressed up with "informational" language?

Of course, should the makeup of the NLRB change after the next election cycle, all bets are off on whether this case continues to be binding precedent.

• Print
• Comments
• Trackbacks

A U.S. District Court decision today by Judge Janet Arteron provides a bit of clarity on some first amendment retaliation issues that may be helpful to some employers. The case, Milardo v. City of Middletown (Dec. 20, 2007), is by no means groundbreaking; the facts of the case allow the court to sidestep some issues by simply finding a lack of evidence to support some of the claims.

Nevertheless, the case addresses, for example, the common argument of retaliation claims that mere temporal proximity should be sufficient to state a claim for retaliation.  (Click here for prior posts on the issue of temporal proximity for retaliation.)   The court here finds that the passage of nearly a year between an alleged complaint and the ultimate termination is insufficient to support a claim of retaliation.

One other interesting aspect is whether the filing of a Freedom of Information Act (FOIA) request is sufficient to form the basis of a First Amendment claim.  The court says that the answer generally is no and that Plaintiff did not show that his case falls within the very narrow exception to that general rule. 

As a general matter, courts have held that there is no First Amendment right to access government information, even by way of the FOIA. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 8–9 (1978) (plurality opinion) (“Neither the First Amendment nor theFourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.”); id. at 16 (Stewart, J., concurring) (“The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government.”); McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (“As a general rule, citizens have no first amendment right of access to traditionally nonpublic government information. A litigant seeking release of government information under FOIA, therefore, relies upon a statutory entitlement — as narrowed by statutory exceptions — and not upon his constitutional right to free expression.”)

To the extent there is a limited constitutional right of access to some types of information held by the government, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)
(recognizing a First Amendment right to access certain aspects of criminal proceedings), Plaintiff has failed to show how what he requested through the FOIA falls within that exception. See Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 934–36 (D.C. Cir. 2003) (summarizing the limited ways in which the Constitution guarantees access to criminal trials).

Milardo argues in his brief only that, although “the mere filing of a FOIA request is not necessarily ipso facto the exercise of a protected First Amendment right, the nature of the request in this case does merit First Amendment protection.” (Pl.’s Opp’n at 6.) In his request, Plaintiff sought information which he believed would reveal evidence of improper conduct by city employees, but he has not shown how this is the type of exceptional request that merits constitutional protection.

Moreover, the undisputed evidence shows that the city produced the documents he sought and that his request played no part in the city’s ultimate decision to terminate his employment ten months later. Thus, no reasonable fact-finder could conclude that Plaintiff was subjected to an adverse employment decision in retaliation for making any constitutionally-protected request.

• Print
• Comments
• Trackbacks (1)

The Wall Street Journal has an interesting story this morning about employers who are seeking to implement and enforce arbitration agreements on employment law claims. 

Arbitration of employment disputes took off in the early 1990s after federal legislation made it easier for workers to sue -- and win big damages -- over claims such as sex, race and disability discrimination. Intent on reducing large payouts and litigation costs, companies responded by putting in place arbitration programs in which disputes are heard not by a judge or jury, but by an arbitrator.

Typically, disputes are handled by a single arbitrator, who, as a lawyer, may be less likely to be swayed by emotion than a jury would be. In arbitration, workers also face greater constraints on the amount of evidence they can gather to support claims. Proceedings usually are private, and final awards aren't easily overturned by courts.

Employment arbitration now covers a wide swath of industries, from restaurants and retailers to law firms and banks. An estimated 15% to 20% of businesses now require employees to arbitrate disputes, according to Alexander Colvin, a labor studies professor at Pennsylvania State University. By contrast, a 1995 government study indicated that less than 10% of companies had employee-arbitration programs.

While more employers are using arbitration agreements, it is hardly a majority.  Employers considering arbitration clauses should determine what is best for their company without worrying about trends.  As the article notes, the studies on the outcomes of arbitrations are far from clear:

Proponents of arbitration argue that while juries sometimes give huge awards, they also can award nothing; arbitrators, they say, are more inclined to provide at least some damages. People on both sides of the debate say that very large awards are less likely in arbitration. But data on outcomes conflict: Some studies show that employees fare worse in arbitration than in court, while others conclude that employees win more often in arbitration and recover comparable amounts. Studies show that employment arbitrations are resolved twice as quickly on average as lawsuits.

Arbitration is not for every employer and even where the employer decides to implement an arbitration program, there are many nuanced decisions that need to be made. An article by some of my colleagues a few years ago touches on this and is a good starting point for thinking about whether an arbitration clause is right for you. 

(Hat Tip: Law Blog)

• Print
• Comments
• Trackbacks

Suppose an employee takes maternity leave from a position. Due to health complications, that leave is extended multiple times (past the 12 or 16 weeks required under FMLA or CT FMLA).  The employee remains an employee pursuant to a short-term disability plan. When the employee is ultimately medically cleared to work, does the employer need to reinstate the employee?

An summary order (i.e. an opinion that is NOT binding in future cases) from the Second Circuit this morning suggests that the employer does not need to reinstate the employee and that the employer's actions do not violate Title VII. 

The Second Circuit in Infante v. Ambac Financial Group, suggests that this is a fairly easy call:

[The employer] avers that it could not rely on the possibility of [the employee]’s return from her leave because she had repeatedly extended her anticipated dates of return-- sometimes on one or two business days’ notice. [The employer] thus faced uncertainty about when, if ever, [the employee] would return, as well as the increasing work demands of [employee]’s former accounting unit. After [the employee] had extended her return date by more than six weeks, [the employer] decided to interview replacements. As of that time, [the employee]’s leave of absence was outside the scope of the twelve-week job protection provided by the Family and Medical Leave Act, 29 U.S.C. § 27 2612 (“FMLA”). [The employer]’s short-term disability leave policy contains no similar job protection provision.

So [the employer] was under no legal or contractual obligation to hold [the employee]’s job open for her, and was entitled to interview (and hire) replacement candidates whom it deemed more qualified for the role.

The opinion suggests that courts will not be afraid to read the statutory limits on protected leave strictly; 12 weeks under FMLA is 12 weeks -- not 20.  And for employers, the case is a good reminder that upon expiration of FMLA leave, the employer can and should explore filling open positions as business needs dictate.

That said, there are -- of course -- cautionary notes. For example, this case does not address the trickier issue of whether a disabled worker out on leave is allowed to have extended leave as a "reasonable accommodation" under the ADA.  Thus, whenever employees are out on extended leave, an employer should review all the laws that may apply (not simply FMLA) to ensure their compliance with various legal obligations.  Also, employers should also review their internal policies to ensure that they are following what their policies say about leaves of absences.

• Print
• Comments
• Trackbacks

For employers in the state, the lawsuits now being brought against St. Francis Hospital and Medical Center for the alleged actions of a former physician, should be a huge wake-up call that former employees can cause big headaches for their employers -- even decades later.  These cases -- which are still at the earliest stages -- arise from the actions of a former physician who had not even worked at the hospital for 15 years (and who died in 1998). 

How can this be, you might ask, and why are these claims not automatically time-barred? The claims may arise, in part, due to a change to the statute of limitations in 2002 that addressed claims arising from sexual abuse of minors. For employers in the state who have had employees in the past engage in similar conduct, the case is a unfortunate reminder that long-forgotten claims could still resurface.  Steps can be taken now to determine a company's exposure to such claims and put in place processes to prevent such claims from occurring.

First, a caution:  This post is admittedly long and the details of the cases are not for the squeamish.  However, the background and length are needed to explain the issues that employers face.  The Hartford Courant has a series of articles on the particulars, including the latest one today here.

As the Courant has summarized or indicated in various articles and on its website:

West Hartford, Connecticut police announced a few weeks ago that a homeowner renovating the basement found a large quantity - 50,000 35-mm slides and more than 100 8-mm video reels - of child pornography hidden in a secret storage area in the home.  The house was was previously owned by Dr. George Reardon, a former chief of endocrinology at St. Francis Hospital and Medical Center in Hartford with a troubled history.  

Dr. Reardon resigned in disgrace in 1993 as a series of witnesses testified before the state Medical Examining Board that he had photographed and molested them as children.   Lawyers now contend that the Hospital failed to supervise Reardon.

St. Francis officials have said the hospital was under the impression that Reardon was conducting a legitimate practice and had no idea of any wrongdoing.

"The newest revelations are shocking and, as we've said before, our hearts go out to each and every victim," said Barry Feldman, general counsel and senior vice president at St. Francis.

St. Francis, which has offered to help the alleged victims get counseling, is hoping to reach a quick and fair conclusion to the legal actions in the Reardon matter, Feldman said.

Although a few past victims sued Reardon's estate and won modest settlements after his death, the recently filed lawsuits [after the revelations of the child pornography stash] mark the first time St. Francis has been named in any legal action related to Reardon's activity in the hospital.

So, if the claims are based on the actions of a doctor from the 1960s to 1993, aren't they too old to be brought? After all, the "normal" statute of limitations on tort claims (that is. actions for negligence or some actions for personal injuries) is three years.  Conn. Gen. Stat. Sec, 52-577. 

However, one exception to this statute is that for claims based on the personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault, another much longer statute of limitations applies.  In such cases, Conn. Gen. Stat. 52-577d, states that claims may be brought up until that person reaches age 48 -- potentially extending the statute of limitations for up to four decades.  (Technically, its 30 years from the time a person reaches the age of "majority" -- which is age 18.)

Notably, this statute of limitations was increased in 2002 to age 48 (up from age 35 that had been in the statute), through the passage of Public Act 02-138.  The act appears to take care of the retroactivity question as well, by noting that new statute is "Effective from passage and applicable to any cause of action arising from an incident committed prior to, on or after said date".  Thus, claims that may have been untimely in 1995 or 2000, may now be timely. 

Do the claims against St. Francis Hospital meet these criteria? That's up to a judge or jury, ultimately.  The legal claims and facts of each case are different enough that it's impractical and irresponsible to paint such cases with the same brush.  And considering the lawsuits have only been filed this month, it's still much to early to tell what is going to happen to these claims.  To its credit, St. Francis Hospital has been out front on these issues; its website, for example, contains a detailed statement from its President and CEO and notes that the hospital is already taking steps in response. 

But for other employers in the state, these cases should be of concern.  Publicity of lawsuits like these could lead to other lawsuits against other employers as well for actions of their former employees.  Considering the turnover at many companies, many executives may not be aware that such claims might be lingering out there.  A prudent executive or in-house counsel should start asking questions internally now to determine what, if any, exposure exists.  Questions can be asked, such as:

• Are we aware of any instances where one of our employees was accusing of abuse of a child?
• If so, what claims have already been made and what is the potential remaining exposure to such claims?
• What steps have we taken to preserve any records of such incidents so that we can defend ourselves if new claims surface in the years to come?
• Is there any insurance that we have had or have that might cover such a claim?
• Who, within the company, has the institutional knowledge to assist in any defense? If they've retired or move on, is there a way to contact these people?

Hospitals, schools, day-care centers are all potentially at higher risk for such claims given their employees' significant contact with children.  As such, the case is also another reminder that background checks on employees -- to weed out potential problems before those people work for you -- remain a good tool to use in the hiring process, which I've discussed before.

By analyzing past exposure and implementing good hiring practices now, employers can get a better grip on their potential exposure to such claims and be prepared if such claims do, unfortunately, arise. 

• Print
• Comments
• Trackbacks

We all love surveys and rankings.  From Family Feud to U.S. News School Rankings to American Idol - we love to know who is up, who is down, who is the best and who is the worst.

But some surveys and rankings just don't add up.  Last week, a group calling itself the Alliance for Worker Freedom, ranked each state on an Index of "worker freedom".  (The group, according to its website, "was founded in 2004 to combat anti-worker, pro-union legislation and educate the public about the plight to protect workers rights.")  It contends that the "2007 Index of Worker Freedom (IWF) is the first state-by-state comparative study that measures the level of worker freedom by analyzing actual policy as well as quantitative state data."

And how does Connecticut rank, according to the survey? Survey says: Dead last, with a letter grade of "F". 

What does this mean? Beats me. I can't make any sense out of it.  For example, the state receives zero points because its minimum wage is above the federal minimum wage. Huh? Certainly, in Connecticut, where the cost of living is much higher -- it hardly seems "anti-worker" to have the minimum wage be $7.65.  And Ohio, which has a higher percentage of union workers than Connecticut, receives a "C+", so go figure.

And therein lies the tragedy with surveys like this. They do little to educate the public about the labor and employment facts of a particular state, relying only on an easy to remember "grade system".  

(Hat Tip: Workplace Horizons)

• Print
• Comments (1)
• Trackbacks

As predicted, Foxwoods casino has filed its formal objections this week to a union vote of table game dealers last month.  Thus begins what I would expect to be a protracted period of waiting. Sure, there will be the flare-up in the press here and there, but until the NLRB rules on the objections -- which could take many months, even over a year or two in some instances -- nothing will happen with this particular issue.

Indeed, even if the NLRB rules against Foxwoods on the objections, hat still does not end the appeal process. Foxwoods could refuse to bargain with the UAW setting up an appeal to a federal appellate court. 

According to the Hartford Courant, that is exactly what the tribe intends to do:

Leaders of the Mashantucket Pequot Tribe, which owns and operates Foxwoods, indicated the issue is probably headed in that direction.

"In light of what is at stake for all of Indian country, we must pursue this and it will require an appeal to the federal courts," said Tribal Chairman Michael J. Thomas in a letter circulated by the tribe.

Foxwoods statement is telling; as I indicated back in September, this case seemed destined to be an epic battle -- not just about Foxwoods but all the tribal casinos. Foxwoods' reference to what is "at stake for all of Indian country" enforces that notion.  There's simply too much riding on the decision here.

• Print
• Comments
• Trackbacks (1)

Connecticut is an at-will employment state, meaning that employers can terminate an employee's employment for any reason at any time, with or without cause. Employees are also free to leave their jobs at any times.   There are exceptions, of course, to that general rule.  But overall, when an employer's offer letter to an employee confirms that the employee is "at-will", that should do it. 

However, some employers -- while contending that they are keeping the at-will status -- have language in their handbooks that suggests that the first 90 days of employment are "probationary." 

A decision by U.S. District Court Judge Mark Kravitz released late yesterday in Defontes v. Mayflower Inn suggests that this language could potentially turn an at-will employee into something else. I use "potentially" because the court does not conclude this definitively; rather, the court suggests that this is an issue for a jury -- not a court -- to decide.

The District Court, in denying a motion for summary judgment by the Mayflower Inn, found that it was a disputed issue whether the handbook provisions changed an employee's at-will status into something else.  The Court did not conclude that the handbook did, in fact, make definite promises to the employees -- only that it could not decide that issue in the absence of a jury trial. 

It is not at all clear what the Handbook promised the Inn's employees. For example, does the use of the term "Probationary-At-Will Period" imply that after 90 days an employee is no longer at will? It is undisputed that [the employee] worked at the Inn for more than 90 days. Did he then become something other than an at-will employee? Was he, at a minimum,
entitled to a performance review before termination? It is undisputed that [the employee] was summarily fired without any explanation of the reasons for his termination or whether his performance was inadequate in any way. Given the ambiguity of the Handbook language (coupled with the fact that no party has provided the Court with any evidence regarding the Inn's course of performance under it), the question of whether the Handbook gives rise to an implied promise that after 90 days employment will not be terminated without cause, is one for a jury, not this Court. As the Connecticut Supreme Court stated in Gaudio, "In the absence of [express contractual] language . . . the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact. Because it is an inference of fact, determining the intent of the parties is within the province of the jury . . . ."

Could the employer have done more to prevent this claim? Monday-morning quarterbacking on cases like this is easy so I'll resist the urge and leave it to you, as readers, to analyze the court's decision. (I would suggest, however, that you ponder the decision it over a meal at the Mayflower Inn, which was written up by the Hartford Courant just last week or so.) 

What I take away from the case are lessons that are applicable for all sorts of employers, such as:  

• Updating an employee handbook. I previously discussed the need for vigilance at this earlier post. 
• Ensuring that a handbook has an appropriate disclaimer that the policies do not change an employee's at-will status.
• Consider eliminating the "probationary" period language for the "introductory" period of employment. Instead, consider adding that an employee's performance will be reviewed after 90 days. If an employee's employment needs to be terminated, that will be an opportune time -- with or without a "probationary" period. After all, if an employee is at-will, then they can be terminated without necessarily being on "probation". 
• Ensuring that the employee not only receives the handbook but signs an acknowledgment of receipt.

While this list is not intended to be exhaustive, updating policies and procedures may be one of the easiest ways for an employer to reduce their exposure to liability. Cases such as this one show the importance of doing so.