With all the talk about the state’s implementation of medical marijuana laws, it’s easy to wonder what impact those laws will have on terminating employees who use marijuana on the job.

One recent Superior Court decision gave a pretty clear answer for state employees: None.  In other words, for employers: Fire Away.

That, of course, simplifies the decision and the result — employers should still exercise caution when disciplining employees for drug use to understand the facts and circumstances — but the court’s decision is yet another affirmation that the statestillhas a strong public policy against the use of marijuana, at least for its employees.

The case, State of Connecticut v. Connecticut Employees Union Independent, arises from the State’s challenge to an arbitration award reinstating an employee who was terminated for using marijuana while on the job.  The State contended that the award should be vacated on public policy grounds.

The Superior Court agreed with the State because it violates the state’s well established public policy on illegal drug use while on state duty.

The union argued that the award must be confirmed because the State is “currently implementing the legalization of medical marijuana.”  The court rejected that argument pretty simply by stating that even if that’s the case, there is “nothing in the records [to] indicate that grievant was prescribed marijuana.

Regardless, as I said back in 2012:

  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.

It remains to be seen whether other lower courts will follow this path and whether the appellate courts in Connecticut will confirm this logic. But for now, this decision from the Superior Court ought to make employers breathe just a little easier on that point.

 

Sometimes, cases that seem like a no-brainer are anything but.  Just ask the Town of Stratford which finally won an appeal to the Connecticut Appellate Court.

The case, Stratford v. American Federation of State, County and Municipal Employees, Council 15 (download here), will be officially released next week. 

Firing for lying? Caution ahead

The case arises from the town’s termination of a police officer.  After suffering an epilectic seizure and striking two parked cars, the officer was requested to go to a physician for a fitness for duty exam after his own physician cleared him for work.  

After the independent medical exam, the employer’s HR director “discovered discrepancies between the report and the medical information supplied to the town by [the employee’s] personal physician.”

The employer then charged the employee with violating police department policy for lying during the independent medical examination and he was subsequently terminated after a hearing.

The case went to arbitration. For those who are skeptical of arbitration, you can imagine what happened next.

The arbitration panel reinstated the police officer concluding that termination was “excessive” and that “lying about his physical and mental condition to doctors that could return (or prevent) [him] to work is understandable because [he] wants [his] job back.”

The employer moved to vacate the arbitration decision. Notably, its rationale was limted to police officers, arguing that Connecticut public policy encourages honesty by police officers. The Superior Court disagreed, but the town found a friendlier audience in its appeal to the Appellate Court. 

We agree with the town that these authorities plainly demonstrate a clear public policy in Connecticut in favor of honest police officers and, consequently, against lying by police officers in connection with their employment.

As a result, the Court overturned the arbitration result and the termination is allowed to stand. (No word yet whether this will be appealed to the Connecticut Supreme Court.)

What does this mean for employers? Two things. Continue Reading Lying to Doctors for Fitness for Duty Exam Can Still Get You Fired… But Only If You’re a Police Officer

Suppose you just defended against a discrimination and harassment lawsuit by two former female employees. The jury found that discrimination

Justice for all...including attorneys

and harassment had occurred. But the jury awarded one employee only $1600 in economic damages and nothing for emotional distress. For the other employee, the jury did not award any damages.

Most employers would take that result in a heartbeat after jury trial.

Are the employees’ attorneys entitled to attorneys fees? In the vast majority of cases, the answer is “yes”; an award of attorneys fees traditionally goes along with a finding of discrimination.

But how much? In one case, counsel for the employees sought fees around $160,000 (or about 100 times the actual award of damages).  The trial court disagreed and relied on the one-third contingency provision in the engagement agreement between counsel and the plaintiffs.  $533 if you’re playing at home.

However, in a decision to be officially released on December 13th, the Connecticut Appellate Court overruled that decision and instructed the lower court to recalculate the attorneys fees.  You can download the decision in Noel v. Ribbits here.

It turns out that the fee agreement between counsel and the employees had a bit more language that the trial court suggested. Specifically, the fee agreement states that:

In the event of a successful resolution of the case, I agree that my attorneys shall be compensated at the rate of one-third of the entire settlement or judgment I receive in connection with my claims or an award of reasonable attorney’s fees, whichever is greater.

The court said that the lower court goofed by not considering this additional language:

In fashioning its award, the court did not consider the provision in the agreements for a reasonable award that might be greater than one based solely on the jury’s award of damages. Because the court ignored that provision of the fee agreements, under which the plaintiffs clearly were pursuing their quests for fees, and failed to assess the reasonableness of their claim for fees, we must conclude that the court’s award was improper.

In doing so, the court rejected the defendants’ arguments that the fees should be commensurate with the nominal damages awarded.  Rather the court said that various factors — adopted from the 12-factor test in Johnson v. Georgia Highway Express — should apply.  The Appellate Court, in a footnote, refers readers to a decision a few years back (Ernest v. Deere & Co), that adopted this 12-factor test in Connecticut.  Central to this determination is a look at the “reasonableness” of the claim for fees.

Are the attorneys out of the woods yet? No. It’s hard to believe that a court will uphold fees 100 times greater than the actual damages.  But it’s a safe bet to suggest that the fees awarded will be more than $533 too.

For employers, this is yet another reminder that discrimination cases can be expensive. Even “victories” like the one above can turn into losses when attorneys fees are calculated.

My sincere thanks to the folks at the Hartford Business Journal for including me on this year’s 40 under Forty list for the central Connecticut area. It is truly an honor. (And be sure to check out the cover shot, which was taken by J. Fiereck Photography.)

Hopefully, you can also look at the list of all the winners. Many of them are involved in small business or community organizations that represent the best of the Hartford area.  I met several at the photo shoot a few weeks ago and remain impressed by the amount of good work being done by so many in the area.  I look forward to seeing them (and perhaps you) at the award dinner on September 30th. It promises to be a great event.