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

In case you missed it, a California court recently upheld a $4.1 billion aribration award to a former executive who brought a wrongful termination suit against his former employer. (The National Law Journal has a good analysis today of what happened here, as well.)   

Although this blog covers issues applilcable to Connecticut employers, the lessons learned from this California case -- which seems to be the largest single plaintiff employment law case award ever -- are applicable to employers everywhere. 

Numerous other blogs have done a great job recapping the case so I'm not going to spend time here doing so. For a employee perspective, check out the Employee Rights Post recap.  For an employer perspective, check out the Manpower Employment Blawg.  (And for a humorous perspective, check out World of Work's "First Annual Dr. Evil Award".) 

But the lessons learned from this case are simple: If you're an employer and you make promises, you'll be bound by them. Even if they lead to really really big numbers.  Proper drafting of employment contracts and follow through on the issues that such contracts raise can help an employer avoid similar issues in the future. 

For more links about the case, check out Overlawyered.

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UPDATED 6/16/09 

While all eyes are on the Ricci v. DeStefano case now pending at the U.S. Supreme Court, another high-profile case from Connecticut may end up making its way to the court docket later this summer.

The case is Church Homes (d/b/a Avery Heights) v. NLRB and dates all the way back to 1999 when employees went out on long and notable strike.  

Permanent replacements were hired (ostensibly without the union's knowledge) and the union -- when it learned of this -- made an unconditional offer to return to work; an issue has arisen ever since of whether the hiring of permanent replacements was an unfair labor practice in this situation. 

For additional background, you can find the Company's website here and this blog post by the Adjunct Law Prof blog.   The union's website can be found here.  The Hartford Courant has covered this from time to time, such as this article from 2001 on the ongoing strike. 

In late 2004, the the National Labor Relations Board issued its first decision that the company did not have an independent unlawful motive in hiring the permanent replacements. The Union appealed to the Second Circuit, which ultimately vacated the Board's decision and remanded it stating that failing to inform the union could be evidence of an unlawful motive.  

The NLRB then re-heard the case and issued a supplemental decision in mid-2007 finding a unfair labor practice because of the company's failure to reinstate the permanently replaced economic strikers upon their unconditional offer to return to work.  The majority of the board protested its decision in a footnote but said its needed to follow the Court of Appeals instructions.

This time, it was the Company that appealed to the Second Circuit contending that the Board erred by improperly placing a burden of proof on it.  On December 29, 2008, the Second Circuit issued a summary order denying the Company's request for relief and affirming the Board's decision.

On March 31, 2009, Church Homes filed a petition for certiorari with the Supreme Court.  While petitions are a common occurrence (and routinely denied), this case may get a closer look than most.  

Church Homes is asking the Supreme Court to consider three questions:

1. Did the Board unlawfully shift the burden of proof from the General Counsel by holding that it would find the Company acted for an independent unlawful purpose unless the Company proved that it had a legitimate reason for not disclosing its hiring plans to the Union?
2. Did the Board err when it disregarded as hearsay the testimony of a witness as to why the Company did not inform the union of its staffing plans and required the Company to produce actual evidence of the Union's potential for disruption?
3. Did the Board err when it found that the Company hired permanent replacements for an independent unlawful purpose?

The Supreme Court may have been tipping its hand a bit as well as to which way its leaning.  On May 20, 2009, the Supreme Court requested that the U.S. government to chime in on the case and offer its opinion.  The Solicitor General now has until July 20, 2009 to file its response.  

Will the Supreme Court take the case and look at the issues regarding strike replacements and the burdens of proof associated with such claims? Stay tuned. 
 

Note: Due to an editing error, an early version of this post contained an incorrect description of the earlier NLRB decision. The post has been updated to clarify this disposition of the matter.

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Suppose you've drafted a fairly lengthy agreement entitled "Employment, Non-Solicitation, and Confidentiality Agreement" for an employee to sign. And suppose that among the provisions is a paragraph entitled "Agreement Not to Solicit". And now suppose that the language details various items that the employee is prohibited from doing.

What's the issue, you may ask? Well, suppose as well that  the paragraph is missing "operative language". In other words, it's missing a few key words about the employee's responsibility under the agreement such as "I shall not" or "I will not" do those prohibited tasks. 

Is the agreement (and the specific paragraph prohibiting solicitation) still enforceable?

According to an Appellate Court decision released this morning (and officially released June 16, 2009), the answer is a most definite "yes".

In Hilb Rogal & Hobbs Co. v. Randall (download here),  the court held that

despite the missing language, it is clear from the title of the employment agreement, the title of paragraph six and the language found under paragraph six that the parties intended that the defendant would be prohibited from engaging in solicitation for two years. ...  The fact that the employment agreement imposes remedies for violations of paragraph six further evidences that paragraph six was intended to prohibit certain conduct.

From a legal perspective, the case is important because the Appellate Court reached this conclusion without having the "reform" (or rewrite) the contract:

Contrary to the trial court, we do not believe that the contract at hand needed to be reformed for the court to be empowered to supply an obvious missing term consistent with the clear intent expressed in the balance of the contract language. ... Because the intent of the nonsolicitation agreement is plain from an objective reading of the contract, a request for reformation is not necessary to enforce the provision.

Why is this case important for employers?

There are several takeaways from this decision. First, employers should never overlook the importance of proper drafting.  Just a few missing words here has caused lots of grief for this employer.  Even agreements that seem perfunctory (and perhaps borrowed from other agreements) should be scrutinized to ensure that no language has been lost in the drafting and revisions.

Second, the Court seems to approve of the contract even though the only consideration for the agreement was a promise of continued employment by the employer. In addition, the Court tacitly approves of the non-solicitation clause's two-year prohibition without any consideration of whether the scope of that provision is overly broad.  Employers should keep this in mind as they draft future agreements.

Overall, the decision is a sensible one and elevates substance over form. That doesn't mean that employers should draft their agreements in haste; but it does mean that if there is a clerical errors or inadvertant omissions, employers can still try to enforce that agreement.

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On Wednesday, May 27th, National Labor Relations Board Chairman Wilma Liebman and General Counsel Ronald Meisburg announced the appointment of Jonathan B. Kreisberg as the Regional Director of the NLRB’s Regional Office in Hartford, CT (Region 34).

Mr. Kreisberg succeeds former Director Peter B. Hoffman, who retired in March 2009.

Employers and attorneys in Connecticut will no doubt be familiar with Mr. Kreisberg. He has been a career NLRB employee, and has served as Regional Attorney in the Hartford Regional Office since 1989. He is also a former chair of the Connecticut Bar Association's Labor & Employment Law Committee.

In a press release announcing the appointment, Chairman Liebman and General Counsel Meisburg stated:

Jonathan Kreisberg brings a wealth of experience and abilities to his new position. During his many years of service with the Agency, Jonathan’s excellent legal and organizational skills have resulted in the amicable resolution of many labor disputes and meaningful remedies for employees, unions and employers under the NLRA. We are confident that his considerable experience with the Agency and his active involvement with the labor-management community in Connecticut will enable him to continue the tradition of excellence in the Hartford Regional Office.

A native of Bayside, Queens, New York, Mr. Kreisberg earned his B.S. degree in 1974 from Cornell University’s School of Industrial and Labor Relations, and his J.D. degree in 1977 from American University’s Washington College of Law.

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Employment law is quite the hot topic among various blogs. So much so that it's time for the next installment of Quick Takes -- a quick summary of what's new and noteworthy.

• Don't miss the Ohio Employer's Law Blog's post on how NOT to fire an employee. In the post, Jon Hyman describes how an employer took an already difficult situation and made it worse.  Lesson from Jon: Do not do layoffs or firings via e-mail. Period.
   
• World of Work continues the focus on the new COBRA subsidies with a link to FAQ by the Department of Labor.  A new blog, Compliance Building, has information from the IRS also about the new COBRA subsidies. 
   
• The Employee Free Choice Act is expected to be introduced into Congress soon. For what its worth, one union leader is predicting passage by August, according to a post by the Pennsylvania Labor & Employment Blog.   And although the EFCA has been recapped extensively by this blog and others, the Labor & Employment Law Blog has one more here. 
   
• If there was really a remaining question about whether a plaintiff's Facebook postings were discoverable, a recent court finding out of Canada suggests the answer: Yes.  (Delaware Employment Law Blog)
   
• Richard Hayber, over at the Connecticut Employee Rights Blog points out a recent case by a federal appeals court that holds that releases of future claims in last chance agreements are invalid.   While the case isn't binding in Connecticut, Richard clearly believes that the same concepts could be applied by a Connecticut court.
   
• My former colleague, Richard Tuschman from the Florida Employment Law Blog, highlights a case in which a common question is raised: Does hiring an employee who has a non-compete agreement from a competitor constitute "tortious interference" (and subject that new employer to a claim)? The answer? Maybe not, but there are still other claims to worry about.

And on the lighter side, don't miss this fun post by the Delaware Employment Law Blog recapping the top 10 excuses for being late to work.

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Here's a warning: If you don't get involved with labor unions or collective bargaining agreements, you might as well skip over this next post because things don't get much more technical (or mundane, depending on your perspective) than the following case discussion. 

In a divided 3-2 decision, the Connecticut Supreme Court held that the collective bargaining agreement between the named defendant, the town of Greenwich, and the Silver Shield Association, the union representing the town’s police officers, did not cover the promotion to the position of police captain, which is a position outside the bargaining unit. (Note: the decision will be officially released on February 24, 2009.)  Justice Katz writes the dissenting opinion.

The case, Honulik v. Town of Greenwich, will have some significance for those who practice labor law in the state because it will help define what areas should be the subject of mandatory bargaining and what areas shouldn't.  In this case, the court was asked to examine, among other items, the scope of the "past practices" clause in the collective bargaining agreement. That clause stated:

All benefits and obligations which are not described in this [a]greement or in either the manual or plan and which are now enjoyed by or required of the employees are specifically included in this [a]greement by reference just as though each such benefit or obligation was specifically set forth.

Ultimately, the court concludes that other provisions of the agreement belie the notion that
the past practices clause governs the nonmandatory bargaining subject of promotion to police captain.  The court notes that:

We also observe that our conclusion leaves intact the current status of labor law in our state. To conclude that past practices clauses protect nonmandatory subjects of bargaining, in the absence of express language to the contrary, would set forth a rule of law that might have the perverse effect of encouraging municipalities and other employers to behave erratically with respect to permissive subjects of bargaining so as not to create a past practice precedent. That we will not do.

For employers (and even some labor/employment law attorneys), it's hard to get excited about this case. It's lengthy and fact-specific and doesn't lend itself to some overarching analysis.  But this case does reinforce the notion that employers should get sound legal advice when negotiating the terms of an agreement with a union.  Nothing beats good quality drafting of collective bargaining agreements to avoid any future disputes later on.

As an aside, I can't help but chuckle at the following footnote (footnote 17, if you're curious), buried in Justice Katz's dissent :

In light of the urgency to resolve this expedited public interest appeal as expeditiously as possible, I do not address the remaining arguments of the parties.

In case you are curious, the court held oral arguments on the case on April 15, 2008, nearly 10 months ago.

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UPDATE 2/2/09 - On late Friday, January 30th -- after this post had been published -- USCIS announced that it was delaying implementation of the rule by at least 60 days (or April 3, 2009). See new post here. 

As if human resources professionals didn't have enough on their plate this month (with changes to the ADA and FMLA), Groundhog Day will bring about another change. Although I've covered it before, it is important for employers to understand because it will affect employers of all sizes, regardless of whether they are in Connecticut or beyond.  

The U.S. Citizenship and Immigration Service has revised the I-9 Forms and modified the list of documents that are acceptable to prove identification.  The form should be used starting February 2, 2009 for all new hires and can be downloaded here.  Employers will have to use the revised Form I-9 for all new hires and to re-verify any employee with expiring employment authorization.

CIS's website summarizes the changes to the acceptable documents list here:

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process. The changes included in the interim final rule will significantly improve the security of the employment eligibility verification process.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only.

The rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.  

Various other blogs have summarized these changes as well, including the Pennsylvania Labor & Employment Blog, World of Work, and The Word on Employment Law. 

Until February 2nd, employers can continue to use the current I-9 forms.

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 With another holiday weekend approaching, there's time enough this morning for a few quick stories about a wide range of employment issues with relevance to employers in Connecticut.  As I look out from my office (and wondering where the snow is in Hartford), here are a few stories to ponder:

• The Connecticut General Assembly is just beginning its 2009.  Inside the Capitol, a blog run by the Connecticut Business and Industry Association, has started posting updates relating to new labor bills being introduced.  The first is entitled Workers’ Compensation and Rehabilitative Therapy For Individuals Who Have Witnessed a Colleague’s Death.  Suffice to say, the CBIA doesn't think much of the bill.  
   
• Back in Washington, DC, new employment law bills continue to be introduced. The Washington DC Employment Law Update has word of a new bill which would increase penalties to up to $50,000 per offense for employers who hire undocumented workers.  This bill seems unlikely to be on the administration's agenda in the near term, but it's worth tracking. 
   
• A blog I've followed for a while, the Evil HR Lady, had an interesting post this week about "super secret HR stuff" that she shared.  You'll be happy to learn, however, that there really isn't much super secret stuff out there.  But she also provides some helpful information about when an HR manager should act to save the company money in both the short and long term.  
   
• The Wait a Second blog (which reports on matters relevant to the Second Circuit Court of Appeals -- in which Connecticut is located) reports on a thorny case trying to determine what is protected free speech for employees and whether the filing of a retaliation claim can give rise to a free speech claim.  Although the specific case is out of federal court in New York, it touches on issues and cases directly relevant to Connecticut issues.  
   
• Never one to hide her true feelings, Connecticut Law Tribune columnist (and attorney) Karen Lee Torre suggests in a column this week that Lilly Ledbetter -- of recent U.S. Supreme Court fame -- is no victim.  Considering that Torre has represented plaintiffs in employment law cases for a living, her dismissal of Ledbetter is striking. It's well worth reading to understand that the Ledbetter case was more about statute of limitations, and less about sex discrimination.  Meanwhile, the bill is expected to be debated in the U.S. Senate today.
   
• Particularly for employment lawyers out there, the Workplace Prof reports on a recent NLRB decision that held that an attorney's question to an employees about their union activities, including whether they voted for the union, constituted an unfair labor practice. 
   
• Finally, with all of the focus on the new FMLA regulations, employers shouldn't forget about the new ADA amendments as well.The Delaware Employment Law Blog recently highlighted a resources that I've suggested for years, from the Job Accommodation Network (JAN) JAN has now updated its site with additional resources in compliance with the new law. 

For those who don't know about JAN, Molly DiBianca fills you in: 

All wise employers know about the power of JAN.  JAN is a treasure trove of accommodation-related information. If you have questions about what options there are for accommodating just about any disability, JAN is the place to look. And JAN provides not only the answer but actually gives you direct resources for purchasing the necessary goods and services.

 

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UPDATED 2/10/09

Sometimes, by coincidence, two unrelated decision get released in close proximity to one another that they bring some greater clarity to the law.

Yesterday, I discussed a Connecticut Superior Court case that found that certain discussions did not create an employment contract and that the employee was properly classified as "at-will".

Earlier this week, a federal court in Connecticut granted an employer's motion for summary judgment after finding that a Corrective Action memorandum did not create an employment contract either (and did not create any other claims).

In Ide v. Winwholesale, Inc. (download here), Judge Squatrito was asked to address whether the employee's termination -- after allegedly being "coerced" into signing a Corrective Action memorandum -- violated an important public policy. The court found that it did not and found that there was nothing inherently wrong with the memorandum either. 

The court indicated that, in essence, the plaintiff and a co-worker were engaging in a back-and-forth tit-for-tat that ultimately led to them both being disciplined.  The employer then issued a Corrective Action memorandum to address the issues.  The memo is similar to the type that many companies use to address disciplinary and performance issues with their employees: it spells out what was unacceptable and sets forth a plan to make sure the employee follows procedures on a going-forward basis. 

The employee blamed a fellow co-worker for his problems. But the court rejected that argument calling it the "But he started it!" defense.  This court did not stop there; the Court also found that the employee's argument that there was a "genuine issue of fact" concerning the Corrective Action memorandum forced the court to ask "So what?" 

The court then delivers the knockout punch to the plaintiff's case:

[The plaintiff] further argues that the Corrective Action memorandum constituted a contract, but, because he was coerced into signing the Corrective Action memorandum, the contract was void. The merit of this argument escapes the Court. There is no indication that the parties expected or intended the Corrective Action memorandum to be a “contract,” nor has Ide established in any way that the Corrective Action memorandum satisfies the legal standard for a contract (i.e., offer, acceptance, consideration).

What's the takeaway for employers here?

Courts will still use common sense in deciding employment cases.  Here, the employer had detailed the reasons for its decision is a clear and concise fashion and used a corrective action memorandum that backed up its reasoning.  The importance of documentation and, at least the appearance of, fairness, made this a fairly easy case for the Court to dispose of.

In essence, the employer did what would be expected of it. It learned about violations of the company's policies, addressed them, and then fired the employee when he failed to correct the deficiencies noted.

One important last note for employment law practitioners: The court takes the employer to task on one procedural issue -- namely the filing of a motion to strike portions of the plaintiff's affidavit that was filed in response to the motion for summary judgment. The court suggests that the federal rules of civil procedure do not allow for such a practice and "The parties to an action 'should have faith . . . that the court knows the difference between admissible and non-admissible evidence, and
would not base a summary judgment decision simply upon the self-serving ipse dixit of a particular party.'"

The court suggests that if a party wants to object to portions of an affidavit, that the party should argue it in the summary judgment briefing itself.

UPDATE: Portions of the underlying decision, which have no impact on the outcome of the case, have been redacted by request.

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The WWE has filed its reply brief (download here) in further support of its motion to dismiss yesterday contending that three former wrestlers "cannot escape the clear language of the booking contracts". For background on the case involving "Raven" and two other former wrestlers, click here. 

The brief is filled with lots of "smackdowns" (to borrow a wrestling phrase) chiding the wrestlers about not doing their research before filing their claims (p2, footnote 1),  about conducting a "fishing expedition" (p2, footnote 2), about pursuing futile claims (p3), about using "sleight-of-hand tactics" (p7, footnote 5), and, well, just about everything else.

The brief is a lawyers' dream -- and a wrestling fan's cure for insomnia. (The new movie, "The Wrestler" may be a better entertainment choice.) The arguments are thick with legal analysis that frankly will only excite those with an interest in this arcane area of law. But the gist of the argument is that the claims are filed too late and are barred by various legal theories.  And even when there might be viable claim under ERISA, the wrestlers never amended their complaint to add it (and WWE contends that it is too late to do so now).

Is there anything all that new or revealing? No, not really,  At the end of the day, the plain language of the booking contracts is what should control the outcome of the case, argues the WWE. It's not very different from the argument it made in its first brief.

Zach Lowe, of the AmLaw Daily blog, provided this delicious update on the case (and welcome to readers of the blog as well).

I would expect that a decision on the matter will not be forthcoming for several more months. Until then, the matter is likely to remain fairly quiet. 

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There's been some speculation this week that with the Republicans picking up an important 41st seat in the Senate in 2009 (thus having enough votes to filibuster theorhetically), the prospects for passage of the Employee Free Choice Act have gone down, at least in the short term.  I'd add to that notion that proponents will have a tough time passing a bill in this economic climate that its opponents will say will hurt U.S. jobs. 

Two other considerations: Today's unemployment numbers -- while not that unexpected if you've been reading the headlines -- still sound and look bad.  In additiion, there has been negative publicity for unions arising out of the U.S. car makers rescue plan (though an interesting counter to this is suggested by this article.) 

But employers are fooling themselves if they think that this bill (or some form of it) will disappear. It may end up being delayed, but it is certainly not dead. Indeed, it may be modified significantly, to make it more palatable to the Senate.

What this means for employers is that they may have some more time to prepare for EFCA's passage.  And employers who have not traditionally been targets of union organizing campaigns may find themselves unprepared.  Here are a few ideas to think about:

1.  Get HR Involved

• Bad economic times and uncertainty in the workplaces create situations that unions may seek to take advantage of.  Laying off staff -- particularly your front-line human resources employees -- may only make matters worse.  Thus, educating your HR staff now about the bill should be among the top priorities.  
• In doing so, review your current policies and practices to figure out where your vulnerabilities lay -- and your strengths as well.  Perhaps you have a weak anti-solicitiation provision or a policy that allow for unfettered e-mail distributions.  And perhaps, your company would welcome a union.  Either way, take a broad look at your situation to determine whether your company is positioned to handle a union organizing campaign. 

2. Emphasize Compliance and Fairness

• Make sure your HR staff AND your supervisors understand the importance of complying fully with applicable laws by treating employees fairly and in a non-discriminatory fashion.  Having prompt and effective communication is crucial in this process. In the absence of clear communications, employees will naturally insert rumor and speculation into it.   And don't forget to educate your supervisors about the do's and don'ts regarding unions.    Most importantly, make sure you aren't creating legal issues where they shouldn't exist; get outside counsel now to advise you on these types of issues and avoid potential pitfalls.

3. Develop a Strategy

• Once you've taken stock of your policies and procedures and worked with your HR staff to emphasize compliance, consider developing a business plan as to how you will respond to potential organizing campaign by the union.  Educating your employees about EFCA and the potential card check provision should obviously be part of that strategy.  And develop and use an open-door policy that gives employees a place to go to answer questions they might have (or even an internal webpage that might address FAQs). 
• Identify the people within the company who will be responsible for developing a quick-action response, if needed. Often times, employers learn about union organizing campaigns very late in the process.  Thus, develop a plan of action beforehand and work with outside counsel to be ready to go on a moment's notice one you learn of a campaign.

There are plenty of other sources on the topic this week, including the Labor and Employment Law Blog and EFCA Updates, (And for more on the provisions of EFCA itself, Walter Olson has added his thoughts).  Obviously, there is much more to this topic than can be summarized briefly in a post. But for employes who don't have unions, the time is now to start thinking about the effect that the bill's passage may have on their businesses. 

(H/T for some links, Ohio Employer's Law Blog)

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Many weeks after the WWE filed its motion to dismiss the lawsuit brought by three former WWE wrestlers ("Raven" and "Kanyon" and others -- otherwise known as Scott Levy, Chris Klucsartis and Michael Sanders ), the wrestlers have fired back filing their papers opposing WWE's motion.  (For full coverage of this lawsuit, click here.) 

The papers, filed late Wednesday afternoon, are available for download here.  There aren't, as some much have hoped for, any more source documents attached to it (such as the wrestlers contracts that were attached to WWE's original motion) so readers will just have to make do with legal arguments.

For those following the matter, the opposition papers use much of the same theory that was advanced in the complaint -- that the WWE is pure entertainment, not sport, and the WWE controls everything about it.

Specifically, the wrestlers claim that the WWE exercises:

virtually complete dominion and control over its wrestlers -- determining when and where the wrestlers will perform, where and how they will train, scripting the fight and wrestlers' pre- and post-fight interviews, controlling the wrestlers' costumes, props and personas and pre-ordaining the results of each fight.

The wrestlers argue that the court should look to the specifics of the relationship, not the contracts themselves.  They contrast themselves with professional boxers, an interesting comparison.   Moreover, they argue that its too early for the court to decide the issues -- and that the case should proceed with discovery (in other words, each party asking the other party questions and for certain documents). 

Interestingly, the wrestlers also bring up the fact that in 2001 WWE argued that a former wrestler (Nicole Bass) should be barred from bringing certain claims because she was an employee, not an independent contractor -- the reverse position argued here.   

However, the wrestlers highlight an interview given to a British newspaper in August 2008 about the case that suggests a bit more complicated of a picture. While the result is the same -- she was treated as an employee, not an independent contractor, it appears the WWE argued that she was not an employee. 

In the interview, K&L Gates attorney Jerry McDevitt noted that the only time WWE litigated the issue - it actually lost on the legal argument (though ultimately prevailed in the case on other grounds).

The independent contractor v employee situation has only come up once before in litigation in the long history of the WWE, when they were sued for sexual harassment by former female wrestler Nicole Bass.

Jerry reveals: “The sexual harassment laws, of the United States at least, are purposely designed to protect employees and do not extend to independent contractors.

“However the interpretation given under Title VII of the Civil Rights Act which covers sexual harassment is very broad, as it wants to include in it as many people as possible.So a preliminary issue that came up was whether she was an employee, for Title VII purposes, or an independent contractor. 

She was determined to be an employee.

As I've often said, you can't do complete justice to an argument in a short post, so review it for yourself to get a complete picture.

The WWE will now have 10 days to file a reply to this, if it wishes (and I can't imagine that it will leave this argument unchallenged). After that, the court will rule on the motion. Don't expect a decision overnight, however. It is likely that a decision won't be forthcoming for at least 2-3 months.

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The Mashantucket Pequot Gaming Enterprise (more widely known as Foxwoods) and the UAW at Foxwoods have issued a joint press release moments ago that they have "reached a historic agreement to negotiate a union contract under Tribal Law, without either party waiving their rights under federal law."

The agreement comes after the parties agreed earlier this month to discuss the matter without waiving rights under federal law.  (For additional background, click here.)

As I indicated in an earlier post, an agreement by the UAW to negotiate under tribal law represents a major victory for Foxwoods in their quest to maintain tribal sovereignty and to have tribal law apply instead of federal law.  However, the agreement to negotiate a union contract still represents a solid victory for UAW because it will effectively end years of potential litigation (with no assurance of a victory at the end either).

According to the joint press release:

 

In resolutions passed Tuesday, the Mashantucket Pequot Tribal Council certified the UAW as the exclusive representative of a unit of table games, poker and dual-rate dealers and addressed other concerns raised by the union.

Both parties recognize the historic significance of this agreement and appreciate the fact that it could not have been accomplished without mutual respect for the legitimate concerns of all affected parties.

While today’s agreement is not a collective bargaining agreement, it permits the negotiations to start. Both parties are optimistic that it will result in a constructive dialogue leading to successful negotiations.

If the parties are unable to reach an agreement within five months, either of the parties has the right to have unresolved issues submitted to binding arbitration under the tribal system which provides for a final decision by a neutral party agreed to by the employer and the union.

I'll have more details soon as they become available, including expected press comment by Senators Dodd and Lieberman, Attorney General Blumenthal and the NLRB. 

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While most people are focusing on Connecticut's ruling legalizing same-sex marriages, word leaked out late today that the UAW and Foxwoods agreed to enter into discussions for a possible labor agreement.   (For background on the UAW/Foxwoods dispute, see prior blog coverage here.) 

The joint press release -- issued at 4:30 EST -- is brief but dramatic in its wording. 

Today - The UAW and the Mashantucket Pequot Gaming Enterprise agreed to enter into discussions for 30 days to determine if an agreement can be reached to bargain under tribal law without either party waiving any of their rights or legal positions under the National Labor Relations Act. 

The parties further agreed that they will not discuss the status of negotiations during this 30-day period.

If you blinked, you probably missed the biggest news contained here.  It's not that the parties agreed to enter into discussions; it is that the parties are working on an agreement under tribal law.  This is a major victory for Foxwoods and a major concession by the UAW, both of which have been fighting for nearly a year over tribal sovereignty and whether federal or tribal law should apply to UAW's efforts to organize workers at Foxwoods.

Foxwoods has long claimed that it is willing to negotiate -- but only if tribal law applied.  Why? Because Foxwoods believes that it has tribal sovereignty and that federal labor laws should not apply to it. 

The press release further notes that such discussions and negotiations are being done without "either party waiving any of their rights or legal positions" under federal law -- presumably referring to Foxwoods' appeals of various NLRB rulings. But it is likely that if the parties reach an agreement -- which is still a big if -- they will then agree to withdraw any further appeals.

Despite the apparent concession by the UAW, this announcement does have some potential to be a win-win situation for both. Foxwoods can avoid potentially damaging rulings by federal courts applying labor laws to it, and UAW can start representing workers -- albeit under tribal law.  

I'll have more analysis next week when I return from travels but in the meantime, feel free to post your comments below.

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At a conference of the American Bar Association this morning, UC Irvine Law Dean Erwin Chemerinsky reviewed the last term of the U.S. Supreme Court and gave a sneak preview of the 2008-2009 term that starts on Monday.  Besides being an official law school dean (opening fall of 2009), this Constitutional Law guru is not shy about sharing his views of the current Court. 

Among his observations from the last term:

• The Supreme Court is definitely turning into a "pro-business" court.  He noted that issues like preemption of state laws were not falling along some ideological lines, but rather reflected a overall view that tends to remove restrictions on businesses.We''re likely to see this theme repeated this year.
• The Supreme Court's caseload continues to decline noting that the court decided less than 70 cases.  As a result, he said, the decisions are becoming wordier and longer.  He did note, however, that the Court is likely to increase its caseload this year based on the numbers of cases it has already agreed to hear.
• He said that although court eras are typically named after the Chief Justice, he said he viewed the current court as the "Kennedy" Court.  He noted that in virtually all of the 5-4 decisions decided by the Court, Justice Kennedy was in the majority.
• Despite the number of employment law cases decided last term, Professor Chemerinsky didn't highlight those cases has having particular significance, pointing rather to the Court's decisions in the gun-rights case or the Guantanamo Bay detainees, for example, as noteworthy.  

As for the upcoming term, he indicated that there were a few cases that would be interesting, but nothing as ground-breaking as last term.  He noted that a case involving FDA-approved warning labels and an FCC cases involved "fleeting expletives" were likely to receive the most press. 

Lastly, he highlighted the fact that the upcoming Presidential election may decide whether the Court becomes conservative or remains split among ideological lines.  He noted the obvious: that two of the oldest justices (Stevens and Ginsburg) are likely to retire soon.  If McCain is elected President, he may have the opportunity to appoint two conservative justices to serve on the court for years -- if not, decades -- to come. 

The Workplace Prof blog has a noteworthy post this afternoon as well about the upcoming Supreme Court term.  They predict that it may very well be a "blockbuster" year.  But as with box-office predictions, the best bet is to wait and see how the Supreme Court decides.

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Buried deep, deep, deep within revisions to the federal Consumer Product Safety Commission Act ("CPSCA") is a new cause of action designed to protect whistleblowers of product safety (available here).

This new law, entitled The Consumer Product Safety Improvement Act of 2008,  will afford protection to both public and private employees in retail and manufacturing sectors to those employees who disclose perceived violations of CPSCA (or related acts) to a State Attorney General, a regulatory agency or their employer. 

The Laconic Law Blog has the details of the bill which was signed by President Bush on August 14, 2008.

For employers in the manufacturing and retail area, many states, including Connecticut already afforded employees who complained about some of these issues state law protection.  But this new bill will allow employees to bring claims under federal law through a new administrative procedure; it does not allow the employees to bring their claims directly in court. 

It's yet another reminder to treat complaints by employees of wrongdoing with appropriate seriousness and notify supervisors that adverse employment decisions should not be based on the complaints.

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While a generic post today about sick leave might be more appropriate today given my absence for a few days, there are some actual updates in the labor and employment law arena that need telling.

One such story is the ongoing saga in between the UAW and the Mashantucket Pequot Trial Nation, which runs the Foxwoods Resort Casino in Connecticut.

As readers will recall, in mid-July the NLRB issued a new Complaint against Foxwoods for its alleged refusal to bargain with the UAW over a new labor contract.

On late Friday, August 1st, Foxwoods issued its formal answer to the complaint, along with a press release. 

But as longtime readers should know, there really is nothing new in either.  Foxwoods continues to insist that it is willing to bargain with the workers under tribal law, just not under federal law.  Foxwoods continues to insist, as it has from the outset, that tribal sovereignty must apply to it.  And so, its answer was really a mere formality.

Both sides show no sign of deviating from the projected path; the next obvious step will be an appeal in the federal courts of appeal later this year.  Until then, both sides will likely to continue issuing press releases touting one occurrence or another. None of it matters much at this point until the appeal is decided. 

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There's been lots of good posts out there the last week and another round of stories that I haven't gotten around to writing about for one reason or another. 

But that shouldn't stop you from getting caught up on these notable stories on labor & employment law:

• Workplace Horizons reports on a Second Circuit decision from last week  that narrowly construes a non-employee's right to to access an employer's property. 
   
• Delaware Employment Law Blog clarifies the issues relating to what I-9 forms should be used.
  
• World of Work blog has a post about new guidance from the NLRB on employee political activity. 
  
• Golden Practices blog has a very interesting post about the proper way employers can engage employees and repeats a provocative question: Are Employees Really an Audience?

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Just days after the UAW suffered a defeat in trying to organize off-track betting workers at Foxwoods, the UAW has decided to withdraw its petition to represent a group of about 80-120 slot technicians.  The decision also came just hours before a hearing was to be held on the subject.  The withdrawal allows the UAW to re-file a petition again, though none is expected anytime soon. 

The Day continues its excellent coverage of the ongoing labor battles at Foxwoods with an article about the election in today's paper.

As you will see, although I am not involved in the matter, I have provided some observations for the article.  There may be several reasons why the union withdrew its petition, but with neither side commenting on it, the most likely reason is that the UAW believed that it did not have support among the slot technicians and would likely lose the election. 

If that occurred, there would be a one-year bar to trying to re-organize.  Moreover, it would have been the third straight defeat for union organizing efforts at Foxwoods -- not a pattern that the unions would like to have publicized.

Perhaps the observation by The Day is correct:

The withdrawal signals a slowing in the momentum that labor unions appeared to have been gaining at Foxwoods ever since the UAW won the right to represent nearly 3,000 poker and table-game dealers in November.

I'll repeat what I said last fall when the organizing efforts first became public: This event is likely to take several years with lots of ups and downs between now and then.  Right now, both Foxwoods and UAW can claim some victories but the ultimate battles still lie ahead.

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The ongoing labor battles at Foxwoods took an interesting turn on Friday.  For the second time in a month, a group of workers at Foxwoods rejected efforts by a union to represent them.

This time, it was the off-track betting workers who decided that they did not want the United Auto Workers (UAW) to represent them.  It was a small group to be sure -- only 40 workers in the eligible group -- but the election was not that close: 13 voted in favor, 23 voted against (with 4 not voting).

Foxwoods was understandably pleased, as reported in The Day:

”We are very pleased that another group of employees has shown faith in Foxwoods management and their continued efforts to keep Foxwoods as a great place for employees and guests,” said Foxwoods President Barry Cregan in a prepared statement. “I am very pleased with the way our Race Book team members have conducted themselves.”

Given the UAW's victory in November to organize the poker and table game dealers (prior coverage here), it's loss here is a bit surprising.  Does this signal a shift in momentum? Much to early to tell, but it can't be a good sign for the unions that workers have rejected two efforts by unions to represent them in less than a month.

As for UAW's efforts to organize the poker and table game dealers, that efforts remains mired in appeals.  After the ALJ's decision, Foxwoods filed its exceptions to the decision in late March, which is available here. The union filed its response (not available online) and the parties are now awaiting a board decision.   Even after that decision, further appeals are likely. 

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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)

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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."

With all the training requirements that exist for employers, employers should add this to their list if they are in the business of doing construction or repair work for the State of Connecticut. 

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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.

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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.

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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.

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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.

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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. 

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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.

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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.

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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. 

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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.)

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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.

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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. 

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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.

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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.

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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)

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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.

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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. 

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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)

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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.

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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.

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The battle over unionization at Foxwoods casino moved a bit closer to resolution early this morning.  The Day reports that dealers voted in the United Auto Workers union by by a vote of 1,289 to 852.

As I suggested over two months ago, the vote tally itself is comparatively meaningless because Foxwoods would likely challenge the results on jurisdictional grounds. After all, if the unions get a foothold at Foxwoods, many of the tribal casinos nationwide would also be susceptible to unionization. 

Foxwoods, all but confirmed this strategy earlier today.

Despite the win by the UAW, Foxwoods President John O'Brien said this morning that the company and its owners, the Mashantucket Pequot tribe, would examine all their options, including a legal fight, before letting the UAW in the door.

“We are disappointed with the preliminary tally, however, these results will not be official until all legal issues, including jurisdiction, are resolved,” O'Brien in a statement. “We continue to believe as we have from the very beginning that the labor board lacked jurisdiction and that any election should have been governed by tribal laws.

When the dust settles this week, expect a continued challenge by Foxwoods. With thousands of other employees susceptible to further unionization efforts, the stakes are simply too high -- for them and others.

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A few days ago, I reported on the summary judgment decision of Tucker v. Journal Register East.  While the case is notable for its discussion of the whether an employee who expresses reluctance to testify has actually "participated" in a protected activity for Title VII purposes, the case also has a discussion of a claim arising from her First Amendment rights.

Now, your first question may be -- "I thought the First Amendment only applied to government employees.  Isn't she at a private employer?"  Well, in Connecticut, employees at private employer do have First Amendment rights; those rights happen to be dictated by a state statute, Conn. Gen. Stat. Sec. 31-51q.  That statute states:

Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution ..., provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages .....

There is, however, a limitation on the employee's rights.  Section 31-51q “applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen.”  Thus, if the employee is speaking on purely personal concerns, then the speech is not protected.

In the Tucker case, the court had to decide whether the employee, in relaying her reservations about testifying on the behalf of the company was speaking “as a citizen upon matters of public
concern” or “instead as an employee upon matters only of personal interest.”

The court, in denying the employer's motion for summary judgment, held that the employee's speech may constitute a matter of public concern, and therefore she may be entitled to relief under C.G.S. 31-51q.

A jury could reasonably find that Tucker’s speech “was part of an overall effort . . . to correct allegedly unlawful practices or bring them to public attention.” Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d. Cir. 1993) (internal quotation marks omitted). Tucker’s speech relating to her impending testimony did not concern the terms or conditions of her own employment, but rather the change in her views regarding the merits of [another employee's] sexual harassment complaint before the CHRO. She was not speaking strictly from her role as an employee; a jury could believe that she was speaking as witness who was concerned about her testimony at an upcoming proceeding. ...[A] jury could believe that Tucker was not furthering only her private interest, but instead the interest of a fellow co-worker, whose allegations Tucker felt were more trustworthy. Tucker’s speech was not in response to any personal aggrievement.

Whether the employee will prevail at trial is, as always, an open question. But for employers, this case is another indication of the difficulty that exists in getting summary judgment on employment claims. 

Also noteworthy here is the fact that the employee's reluctance to testify (if that is, in fact, what happened) formed the basis of not one, but two separate employment claims -- even though that employee was not the victim of sexual harassment herself.

For employers dealing with non-testifying co-workers, this case illustrates the perils of taking any action against them. Seeking legal advice when disciplining or discharging such an employee may avoid the potential pitfalls that may arise.

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As I noted nearly a month ago, the historic battle for recognition by UAW at Foxwoods Casino was likely to be a long drawn-out affair.  As with any boxing match, it can be foolish to to draw any conclusions by what happens when the first few punches are thrown. 

The UAW landed a soft punch first with the decision this afternoon of NLRB Regional Director Peter Hoffman that Foxwoods must hold an election and that the NLRB has the authority to oversee the vote. 

The decision, however, cannot come as a surprise at all based on recent NLRB and court decisions.  Specifically, in February 2007, in the San Manuel Indian v. NLRB case, the D.C. Circuit Court of Appeals affirmed the National Labor Relations Board’s (NLRB) ruling that the National Labor Relations Act (NLRA) applied to tribal enterprises, such as casinos.  It would've been highly unlikely that a Regional Director would go against such precedent here. 

The Day, of New London reports this evening that Foxwoods has issued a statement strongly disagreeing with the decision.  In doing so, the tribe signaled a possibility that an appeal to the NLRB would follow in the next 14 days:

“We strongly disagree with the regional director’s decision.  The UAW would like people to believe that this issue is about the right to organize; this is not the case. The issue is one of respecting the Tribe as a government. The Tribe has enacted a Tribal Labor Relations Law which gives employees the right to organize and bargain collectively if they choose. Tribal employees are government employees, in the same way that State employees are government employees and the Tribal law was modeled after other government’s labor laws, including Connecticut’s.

“We strongly believe that the NLRB does not have jurisdiction as the Tribe is the governing body which has the inherent authority to regulate employment on its reservation and it has historically done so. The UAW would like people to believe that the Tribe is not being fair-in fact it is the Union that is not being fair. There is a simple way to respect the Tribe as a government and at the same time address any organizing interests of our employees. That would be to file the petition pursuant to Tribal law. The UAW would prefer to litigate this for years to come in their attempt to undermine Tribal government, instead of respecting what they claim are employee concerns and addressing their issues in the tribal forum.”

The Day, went on to report that UAW representatives were "ecstatic" when they learned of the news. 

While Union officials can certainly be pleased that they made it through this straightforward first step, it is worth noting that union officials in the San Manuel case were probably happy when they first filed their papers...in 1999.  Yes, you read that correctly; it took nearly eight years for the San Manuel case to make its way through the NLRB and then the courts.  The Tribe's reference for litigation "for years to come" is certainly on the mark. 

Will this case move more quickly? Probably. But not THAT quickly. That's not how the NLRB typically works. Indeed, given the snail's pace that the NLRB often seems to work at, its unlikely that either side will see a quick resolution to this issue  -- certainly not in the next few months.

What to expect next? Expect to hear that an appeal has been filed and then expect to wait much longer than that to find out the results of such an appeal.  Absent some major changes or developments, the battle is just beginning.

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A few upcoming programs and events in Connecticut have crossed my desk lately that are worth sharing.   The first two programs are FREE, but the sponsors have asked for RSVPs to be made beforehand.

• On November 2, 2007, the Connecticut Law Review is sponsoring a symposium entitled, "Unconscious Discrimination Twenty Years Later: Application and Evolution".  A program brochure can be downloaded here.  According to the Law Review:

Twenty years ago, Professor Charles Lawrence wrote one of the most influential pieces in critical race theory, entitled The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism. Professor Lawrence noted that the purposeful intent requirements found in antidiscrimination laws failed to provide adequate protection because many forms of racial bias are unconscious. He argued that laws should be reformed to encompass more subtle forms of discrimination. ...

This fall, The Connecticut Law Review will host a Symposium focusing on the twentieth anniversary of Professor Lawrence’s piece. The Symposium will draw together a multidisciplinary group of academics, practitioners, and community activists to discuss the evolution of Professor Lawrence’s piece. It will also look at the psychological studies that Professor Lawrence’s work encouraged and will examine the influence of his theory on “unconscious racism” twenty years later. Panelists will discuss the application of his theory to a variety of practice areas such as criminal justice, employment discrimination, and juvenile law. Featured speakers will include: Prof. Charles Lawrence, Prof. Mari Matsuda, Prof. Gowri Ramachandran, Hon. Janet Bond Arterton, Prof. Catherine Smith, Prof. Amy Wax, Prof. Samuel Bagenstos, Prof. Devon Carbado, Prof. Valerie Purdie-Vaughns, Prof. James Forman Jr., Prof. Elizabeth Emens, Prof. John Tehranian, and Ms. Eva Jefferson-Paterson.

The program is being held at UConn Law School, in Hartford, Connecticut. You can RSVP by calling 860-570-5331 or e-mailing connlrev@law.uconn.edu.

• On November 13th, 2007, ConnACCA and GC New England magazine are sponsoring a free seminar entitled, "To Catch a Thief".  The program is designed to discuss issues related to protecting a company's people, products and services. Among the topics to be covered:
  
  • Preparing enforceable confidentiality agreements and restrictive covenants
  • Creating policies for information ownership, protection and retention
  • Minimization of risk when recruiting individuals or groups of employees.
  • The need to quickly investigate and respond to thefts of trade secrets or other types of unfair competition.
  • Pursuing and defending litigation involving restrictive covenants, trade secrets, employee raiding & more.

I will be speaking at that program, along with some of my other colleagues.  A complete flyer can be downloaded here.  In House Counsel can RSVP for free online at: www.gcnewengland.com .  You can also RSVP by emailing lawtribune@alm.com, sending a Fax Registration to (860) 527-7815 or calling (860) 527-7900.  The program starts at 3 p.m. at The Hartford Club. 

• The Connecticut Bar Association is holding a similar seminar on November 8th, 2007 entitled, "Hey! You Stole My Business! Litigating Against a Former Employee or Partner".  Details can be found at the bar association's website, www.ctbar.org.    This Continuing Legal Education class is $75 for CBA members, and $125 for non-members. 

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The Connecticut Appellate Court today unofficially released a Per Curium decision that affirms the general principle that a contract for an indefinite term is a contract for at-will employment, even in the apparent absence of express terms. 

In Ward v. Distinctive Directories, Inc., (officially released on October 23, 2007), the Court was asked to review a lower court's decision finding at an at-will employment existed and that the Plaintiff has failed to present evidence of misrepresentation.

The facts are straightforward:

The plaintiff accepted an offer for employment as a sales representative on a commission basis. The defendant agreed to guarantee that the plaintiff’s income would be at least $4583.33 per month for the first six months of employment. The defendant terminated the plaintiff’s employment after less than three months for nonperformance. The plaintiff construed the employment contract as entitling her to compensation for six months, whether or not her relationship with the defendant had been terminated.

The court notes that because the contract was for an indefinite duration (despite highlighting her compensation for the first six months), she was an at-will employee for the company. (The company produces items such as The Valley Book and West Hartford Book.) The court readily disposes of rest of the Plaintiff's claims that she had been misled.

It suffices to note that the plaintiff had the opportunity to persuade the trial court that she had been misled and misused. She does not claim that the court made evidentiary rulings that precluded her from proving her case. She does not deny the authority of the court to make determinations of credibility. Because we are not persuaded that any of the court’s findings were clearly erroneous, we cannot sustain the plaintiff’s appellate claims.

The Court, however, reserved its harshest criticism for the Plaintiff's apparent failure to understand the significance that an at-will employment finding has on her employment claims.

As Judge Bryant noted, the plaintiff’s appeal manifests her failure to grasp the significance of [an earlier] ruling that, as a matter of law, her employment contract with the defendant was terminable at will. Having agreed to such a contract, the plaintiff took the risk that her employment would end earlier than she had anticipated. The defendant did not have to justify its termination of their relationship.

The case is a good reminder for practitioners that although the at-will doctrine may be eroded in some instances, it is far from a toothless doctrine.  Moreover, for HR professionals, the decision is a reminder that an at-will disclaimer on any offer letters is a best practice worth following. 

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In an important decision to be officially released next week, the Connecticut Supreme Court has found that a qualified privilege exists to employers giving job references.

Specifically, in an issue of first impression, the court has now "recognized a qualified privilege for the employment references of current or former employers that were solicited with the employee’s consent."

In Miron v. University of New Haven Police Department, a unanimous Court rejected a former employee's defamation claim against the employer even if the employer -- in the course of providing a good-faith assessment -- issues false statements.

Why? Justice David Borden (who incidentally is now a Judge Trial Referee) writes:

We believe that the integrity of employment references not only is essential to prospective employers, but also to prospective employees, who stand to benefit from the credibility of positive recommendations. ...

It also would encourage a ‘‘culture of silence’’ not to afford a qualified privilege
to employment references that are made in good faith and without improper motive.

The decision, which adopts the rule set out in the Restatement of Torts and 19 other states, has the potential to have a dramatic impact on employment references in the state.

Many employers subscribe to the "name, rank and serial number" theory of references: just confirm the dates of employment and position, and nothing more.

For those employers, not much will change. But for those employers who wish to provide something more, this decision provides a safe harbor of sorts.  (Savvy employers who wish to get information about prospective employers can also use this decision to try to persuade the former employer to give up more information than "dates of employment and position" as well.) 

The key to establishing this privilege appears to be found not only in the court's language that the references be made "in good faith" and "without improper motive" but also that the references be sought with the employee's "consent".   

For prospective employers, written authorization from the applicant should be sought in the hiring process to check references. For former employers, getting a copy of that written authorization, while perhaps not required, may not be a bad idea in particular cases.  But how this will play out in practice remains to be seen. 

The court's decision contains several other important nuggets for employment practitioners that I'll touch on in the upcoming days.  But for now, because the Court speaks so rarely on employment issues, the decision is worth a look at as sign as to how the current court views such cases.  For employers, its certainly an encouraging sign. 

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