So, remember back in February where I noted that employers ought to “consider having an attorney review some of your [employment] agreements … [because sometimes,] poor drafting can sometimes be avoided by having an attorney involved”?

We have another appellate court case that emphasizes that point quiet well in Stratford v. Winterbottom.

The case involves a town and one of its employees.  The town gave the employee an employment agreement that stated:

Based upon the annual performance evaluation, and at the [m]ayor’s sole discretion and recommendation, the base salary may be increased on July 1 of each fiscal year, subject to the approval of the [council], which by Charter fixes the salaries of all mayoral appointees.

The issue? The town reduced the employee’s salary.  The question for the Appellate Court was whether the town had permission to do so.

No way, says the Appellate Court.  By including increases but not mentioning decreases, the employer is reading too much into the agreement; it simply does not have the power to do so.

Yes, the court acknowledged, the employee was at-will but that at-will clause was never used by the employer and the employee never consented to the change in salary.

Ken Adams of Adams on Contract Drafting, did a quick post about this from a contract drafting perspective last night after I mentioned it on Twitter.  I recommend the whole post, but here’s the key point:

A grant of discretion to do one thing doesn’t necessarily equal a prohibition against doing other things. If a mother tells her son that he may play video games, it wouldn’t necessarily follow that she’s thereby forbidding him from engaging in any alternative activity.

But the presumption that a grant of discretion doesn’t also entail prohibition comes up against what this manual refers to as “the expectation of relevance.” (Relevance is a principle of linguistics. According to The Cambridge Grammar of the English Language, at 38, “A central principle in pragmatics . . . is that the addressee of an utterance will expect it to be relevant, and will normally interpret it on that basis.”) The more specific a grant of discretion is, the more likely it is that the reader would conclude that the discretion is limited—otherwise there would be no point in being so specific. And the more likely a court would be to invoke the arbitrary principle of interpretation expressio unius est exclusio alterius—the expression of one thing implies the exclusion of others.

So, what’s an employer to do? Well, a salary clause can be written in a variety of ways. Consider that the employer may “revise” the salary at any time or “change” it. Or perhaps the employer can be more direct that it may “increase or decrease” the salary based on a variety of factors.  Some employers may choose to avoid discussing it altogether which would be an interesting question of contract interpretation then.

Whatever you choose, make sure the agreement accurately reflects what you intend.  Otherwise, you may not have the discretion to change something that thought was implied.

That headline sort of says it all, doesn’t it?

Yes, as of this morning, I am now a partner at Shipman & Goodwin LLP in Hartford, CT in its Labor, Employment & Benefits Practice Area.

It’s big for a partner to change firms in Connecticut.  Not nearly as big as, say Nate Silver and his FiveThirtyEight blog leaving the New York Times to go to ESPN.  But still pretty big.

So why the change?

I wish there were some magical story, but in many ways, it comes down to the typical reasons why people change jobs: new opportunities, fresh challenges, bigger platform. Shipman has attracted some of the brightest legal minds in this state and I’m grateful they reached out to me to join that growing team.

Growing up in Connecticut, I can’t say that I paid a lot of attention to lawfirms, but the “Shipman” name was one that I knew even as a kid.  In part, it was because I grew up in Glastonbury, where the Shipman name went back generations. But it was also due to the fact that my mother was involved in education and Shipman & Goodwin was her schools’ attorneys.

The labor & employment group, led by Brian Clemow, has a particularly deep bench, but there are so many that I’m not going to even mention them by name for now for fear that I’ll leave a few out.  It was recently ranked as a “Tier 1” firm for Employment Law-Management in one rankings, and “Band 1” Labor & Employment Law Department in another.  I think they bring considerable experience to the table for companies and I’m eager to work with them.

Any talk of the future, however, also demands a look back.  I would be remiss if I did not thank my former law firm of Pullman & Comley for their years of strong support of my practice and of this blog.  The partners, associates and staff there are among the nicest group of people you’ll find anywhere in addition to being mighty fine lawyers.    Joshua Hawks-Ladds, Tim Shearin, Eliot Gersten, and Brad Mondschein deserve a special shoutout for their advice and friendship over the years.   I’m appreciative of staff members like Sally Laroche, who provided the tools for this blog to grow.  I hope to continue collaborating with them on bar projects and be able to refer them work when I may have conflicts. I will miss working with them.

So what will this mean for the blog? In the short term, not much, though you’ll see some more introductory posts as I learn my way around the new firm.  For instance, watch for a post on how changing jobs gives you a new perspective on the advice lawyers give for new hires (hint: There’s a lot of paperwork involved!).   In the long term, I hope to add a few new voices to this platform and I’ll be working on an update to freshen things up around here.

My new contact information is:

Dan Schwartz

Shipman & Goodwin LLP

One Constitution Plaza 

Hartford, CT 06103-1919 

dschwartz@goodwin.com 

860.251.5038

Fax: 860-251-5216

www.shipmangoodwin.com

Please feel free to drop me a note. I’d love to hear from you.

Today is a new beginning at Shipman & Goodwin LLP.  I look forward to sharing where this path leads us.

 

Throw out the release?

The situation is a common one.

  • Employer terminates the employment of an employee.
  • Employer provides a severance agreement with its signature already affixed. 
  • Employee signs it and returns the agreement to the employer.
  • Employer, likely reviewing just the signature, pays the severance.

But here’s where things get interesting. Employee then sues the employer for discrimination. Employer says, “wait a minute”, the employee already signed a release.

Except the employee has the equivalent of baseball’s hidden ball trick up her sleeve.

Before the employee signed the agreement, she re-typed the entire page with the general release using the same font and margins. (You can download the agreement here.)

And, most importantly, she changed the word “including” (when referring to specific claims she was releasing) to “excluding” (thereby trying to exclude the laundry list of claims that typically follows an “including” clause).

She signed the agreement and returned it to the employer.  (There is some dispute as to whether the employee attached a yellow sticky note to the change.)

Those facts are described in a remarkable new case out of a federal district court and were first reported in the Employment Law Daily briefing

The employer argued that the employee, under either version of the release, had settled “all claims” against the employer. The court raised its own issue suggesing that the waiver was not knowing or voluntary — at least at this stage of the litigation.

Here, by changing the word “including” to “excluding” prior to the list of claims covered by the Chanel Separation and Release Agreement before signing the agreement and returning it to Defendant, Plaintiff manifested an intent to preserve her right to file a discrimination claim. Thus, Plaintiff did not knowingly, willfully, and voluntarily waive her right to file a discrimination claim, regardless of whether the Chanel Separation Release Agreement, Plaintiff’s Release, or neither represents the agreement of the parties.

The case will proceed with discovery now and it remains to be seen whether there will be additional facts gleaned during the case that could change the court’s analysis.

Regardless, the decision is a stark reminder to employers that things may not always be what they seem and that, unfortunately, it is up to the employer to police the agreements.  

When a severance agreement is returned to the employer, the case now emphasizes a need for employers to make sure that what was signed was actually the version that was sent to the employer in the first place.  

I tend to disagree with the court’s decision that a party should profit from such trickery but the court — at least in this case — refused to come down harshly on the employee.

Ultimately, it’s a scary decision for employers — particularly those that may process dozens of such agreements during a reduction in force.

Five years is a long time.

In the time span of the Internet, it might as well be a lifetime.

And Justice For All

So, after five years of doing this blog on nearly a daily (ok, business daily) basis, it’s time for a change.

Now, I’m not retiring like other bloggers have.  But it’s time to recognize that the world of reporting on employment law has changed so much since I started the blog in September 2007.  

Back when I started, there were a handful of us.  Now, there are dozens of employment law blogs chasing the same nugget of news; a few are great, some are good, and many others are just chasing Google’s SEO approval.

Five years ago, the news competition was a printed Daily Labor Report by BNA and, well, not much else.  A lawyer who blogged could often be the first to report on a case simply because there was no one else out there.

Even then, given the slowness of the news cycle, there was time for a bit of analysis.  Twitter wasn’t heavily used and Facebook was still mainly for college kids. (I didn’t even reference social networking’s impact on employment law until 2008.)

Now, Twitter demands an immediate post on what is happening THIS MINUTE.  And Facebook has turned into key part of people’s lives.  And don’t get me started on the rapid rise in the use of smartphones. 

(For more on this phenomenon, see this article in The New York Times).

I was reminded of this last fall when I was on vacation and the Connecticut Supreme Court came out with a decision on how many Connecticut-based employees a company needed to have before being covered by Connecticut’s FMLA.

I got an e-mail from a friend and lawyer letting me know about this and hoping I would blog about it.  And there I was, feeling compelled to update the blog about it — while waiting on line at Disney World, using my smart phone.

A lawyer practicing at a (great, if I may say so) mid-size Connecticut-based law firm is not a news reporter.  We have clients to care for, for one reason. 

And family is another reason. One of my loyal readers — my mother-in-law — has been ill of late and life requires some changes to meet her (and the rest of my family’s) needs.  

So, it’s time for a change.  Here are a few things you will see this year (at least if I can hold my resolutions down):

  • 2-3 posts a week, scheduled to come out around mid-morning.  I still need to play around with the days but you’ll start to see more of a regular pattern soon.
  • The posts will continue to have a primary focus on items of interest for Connecticut employers, recognizing that some stories of national significance have a local impact too. But the ordinary NLRB decison from Arkansas is just not something this blog can or should cover.
  • The posts will still try to answer the most important question for employers: How does this thing (a court decision, a new bill) impact employers? 
  • In place of additional posts, particularly on breaking news, I will be making more use of this blog’s Facebook page.   Facebook has taken a more prominent role for businesses and its time to move it into a more central position to keeping updated.  This blog will not chase the search engines for approval simply by having meaningless breaking news posts.
  • In addition, if you haven’t been following me on Twitter, now’s a good time. There’s already 3200 (!) of you doing so, but the more the merrier.  I tend to send Twitter updates a few times a day, mainly on Connecticut or employment law-related stories.  (But Red Sox fans be warned: Come baseball season, you may also see a Yankees post mixed in, in the evening or weekends.)
  • If you like something a little more different, we can also connect on Google+.  I’m planning on starting some employment law Hangouts later this month.  Watch for more details later this month.  You may also see a few more videos and webinars in place of posts too.
  • And finally, if you’re still a little tentative about social networks, we can always connect on LinkedIn.  (And if that is too much, well, then there’s always just the blog.)

Each of these outlets provides a more efficient way for you to keep updated on the information you’ve gleaned from this blog.   Put another way, this blog will serve as a home base for more analysis and leave the breaking news for the social media platforms. 

Change is never easy, but hopefully these changes will bring you the information you need for your business in a more direct way without having to rely on longer-form blog posts each day. 

Let me know what you think in the comments. Suggestions are always welcome.  Criticism is accepted too.

Happy New Year.

The Connecticut Supreme Court, in Board of Education v. State Board of Labor Relations, (a decision that will be officially released next week), clarified when it is appropriate for education officials to deal directly with employees and when the union needs to be brought in.  The court adopted federal NLRA principles in doing so.

The decision is a complicated one because it finds for the school board in part and for the union in another. In one part, the court upholds the school’s decision to assign work to other teachers following a resignation but says that the school should have brought the union in to discuss some changes at a later point in time.

For public employers in Connecticut, the case is worth a read in understanding how and when a union should be consulted with.  In particular, the discussion of "direct dealing" lays out when schools can deal with employees directly on workplace issues.

Of course, for school boards dealing with difficult budgets, the decision could also be seen as courts adding just one more procedural roadblock to trying to deal with some these fiscal matters. 

UPDATED

My earlier post on the Obama Transition Team’s pledge not to discriminate on the basis of gender identity has been picking up some press.  As I indicate, it is likely that this pledge will form the basis of an executive order when the new administration starts.

NPR interviewed me earlier this afternoon. You should be able to check it out at the top of every hour or, better still, go online and listen to the news. It should be up after 3 p.m. here.

I’ll update this thread with additional press references as I learn about them.

4 p.m. Update: In addition to the radio interview, it is also listed in NPR’s "News in Brief" section. 

11/8/08 Update: The ACLU has issued a statement praising the policy.  The Daily Kos picked up on the press release as well. 

Looking to make a change? Or curious about what the new Obama administration will have on its agenda?

Then the new administration website, Change.gov, is for you. It’s now up (but as of 2 p.m., barely running — likely due to the massive traffic the site is facing so give it a little time).   Parts of the site are also still under construction, including a fascinating "America Serves" section.

You can sign up for information, get information about seeking a position in the new administration or get detailed information on the agenda that the new administration is setting in a variety of areas. 

Lest you think that Obama will shift course, the agenda is identical to what he had on his campaign site, but it’s important to revisit it in light of all the ink that’s been spilled on where his priorities will be.  A look at the Economy area lists his "labor" agenda as follows: 

  • Obama and Biden will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama and Biden will ensure that his labor appointees support workers’ rights and will work to ban the permanent replacement of striking workers. Obama and Biden will also increase the minimum wage and index it to inflation to ensure it rises every year.
  • Ensure Freedom to Unionize: Obama and Biden believe that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA’s passage and sign it into law.
  • Fight Attacks on Workers’ Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB’s "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
  • Protect Striking Workers: Obama and Biden support the right of workers to bargain collectively and strike if necessary. They will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
  • Raise the Minimum Wage: Barack Obama and Joe Biden will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.

In the "Work/Family" arena, he lists the following as his top priorities:

  • Obama and Biden will double funding for after-school programs, expand the Family Medical Leave Act, provide low-income families with a refundable tax credit to help with their child-care expenses, and encourage flexible work schedules.
  • Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama and Biden will expand it to cover businesses with 25 or more employees. They will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children’s academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
  • Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers. …
  • Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama and Biden will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
  • Expand Flexible Work Arrangements: Obama and Biden will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

Before employers and employees get too worked up about all of the above, remember that we are in the midst of the worst recession in at least a generation.  The problems weren’t created overnight and it’s unrealisitc to expect all of the above to be passed in the first 100 days — and probably not the first 500 days.