hartfordYears ago, I recall having a friendly conversation with another attorney in Connecticut where the topic turned to the notion of “At Will” employment.

When we couldn’t settle on an answer, we moved on to talking about whether the Hartford Whalers would ever come back.

I think we had a better answer for that question: Probably not.

But this is an employment law blog, not a sports one, so let’s get back to the topic.

Employment-at-will is, from a legal perspective, the notion that an employer may discharge an employee without restriction, that is, for any reason or no reason, without incurring any liability to the employee.

Simple enough, right?

Well, not quite. First off, Connecticut recognizes two major exceptions to this doctrine:

  1. The termination cannot violate an important public policy;
  2. The termination cannot breach an implied contract of employment if one as formed.

And, it should be noted, that there is the obvious exception that the termination cannot violate any other state or federal law — such as the laws prohibiting discrimination.

This again sounds simple enough, but in discussions with employers, there is another topic that comes up — fairness.  In other words, employers typically are wise the ask themselves whether a termination under the circumstances is “fair”.

Now that can mean a lot of things in a lot of situations.  For example, suppose an employer hires an employee, but 3 weeks later the employer loses a major contract and needs to layoff ten employees.  It may not be exactly “fair” to terminate this newly hired employee, but if the employer may be being “fair” by laying off newly hired employees first.

Sometimes, the “fairness” question is framed slightly differently.  Suppose you have a newly hired employee who is late to work a few times in the first 30 days and then shows up to work under the influence of alcohol.  Can you simply terminate the employee then?

Under most circumstances, yes, and most people would say this is fair because the employer is simply holding the employee accountable under its rules and a new employee shouldn’t get a lot of free passes.

But now suppose you have a 20 year employee who has an exemplary record of service.  The employee has no record of tardiness or misbehavior, but after a March Madness weekend, shows up at late to work with bloodshot eyes.  It should be noted, though, that a week before, the employee had complained to his boss that the machine he was working on seemed in need of repair.

Under the employment-at-will doctrine, the employers still has the same right to terminate the employee, but I think most people would think this situation ought to be looked at differently.  If the employer proceeds with the termination, it’s possible that it opens itself up to a threat of a claim.

Why? Because while the employment-at-will doctrine still applies, a judge or fact-finding would also then ask the same question — does this termination seem “fair”?

If the answer to that question is “no”, then judges and juries will look for alternative explanations.  Here, one could argue that it was the employee’s complaint that was the motivating factor in the termination and the employee was being retaliated against for complaining.  Otherwise, the termination seems a bit “unfair”.

That type of logic may not be “fair” either, but it goes to show that the employment at will doctrine should not simply be relied on in all circumstances.

I’ve yet to have an employer just say, “I didn’t have a reason for firing the employee. I just felt like it.” That may work under the “at will doctrine” but in the real world, it probably wouldn’t fly.

For employers, always try to look at your decisions through a neutral prism.  Or better yet, ask yourself: What would my neighbor think about this? If the termination seems unfair under those circumstances, it may be a clue to re-think your decision.

 

loveWhile the calendar may read Valentine’s Day, I’ve tackled more than my fair share of love-themed posts in the past filled with roses and chocolates.

So instead, I’m going to go in a different direction entirely: Guns. (Though query whether the music group Guns ‘n’ Roses would care to disagree with me.)

See, there was this employee who worked at a car dealership wasn’t in love with guns.  But he believed his supervisor was.  So much so that, according to a complaint filed in state court, the supervisor would sit in “his office looking at and ordering guns.”  The employee then observed that packages containing “guns, including AR-15s, clips, handguns, suppressors and [rifles]” were being delivered to work.

The employee raised the concern to the dealership’s owner. Later that date, the supervisor said allegedly told the employee to “stay the [expletive] out” of the supervisor’s business.  Two days later, the employee was fired.

The employee brought suit claiming that he was wrongfully discharged in violation of a public policy in consideration of Conn. Gen. Stat. 31-49 — which requires employers to exercise reasonable care to provide employees with a reasonably safe place to work.

The Superior Court found that such a claim could survive a motion to strike.   In doing so, it court concludes that there is an important public policy of having an employee “raising his concern over firearms in the employer’s workplace”.

The case, Schulz v. Auto World, is an important reminder that not all causes of actions are clearly spelled out in the law. Sometimes courts look to general principles to take the law in different directions.

In this instance, employers should take notice of the public policy articulated by the court that guns in the workplace in Connecticut are still to be considered unusual.

pottYou might think that smoking pot on the job as a state employee would be justifiable grounds to get you fired.

A no-brainer, right?

(Let’s save a discussion for eating brownies and swearing at your cat for another blog post.)

After all, even the Connecticut Supreme Court is stating that the “statutory, regulatory and decisional law of Connecticut evinces an explicit and well-defined public policy against the recreational use of marijuana, particularly in the workplace.”

So why is the result of today’s Connecticut Supreme Court decision (in State of Connecticut v. Connecticut Employees Union Independent) that a pot-smoking employee gets his job back?

Well, the answer is based on a few facts that I think tipped the decision of the court and that are important to understand about the case.  (And for more background, the CT Mirror released a post today too.)

First off, the court was not reviewing the underlying decision to fire the employee. Rather, it was reviewing an arbitration decision that had reinstated the employee but with a number of sanctions and conditions, including imposing an unpaid suspension, a last-chance status, and random drug testing.  As I’ve noted before, Connecticut courts will review public policy and a number of factors including whether the employee is “incorrigible”.

Put more simply, courts do not like reversing arbitration decisions, even if those decisions are flawed. (See Brady, Tom.)

And that leads to the next factor: here there was a 15 year, relatively low-level employee with a clean record.  His union argued that he was “dealing with serious personal struggles” and believed that “smoking marijuana helped to alleviate stress and anxiety”.   The court thought that the employee’s past history was worth consideration.  And, it should be noted, the court’s decision was unanimous.

Third, I think the court was reviewing whether an employee who smoked pot COULD be terminated versus MUST be terminated. And on that issue —  namely whether public policy dictated an employee be fired for smoking pot — the court said public policy wasn’t definitive.  Rather, the court found that an array of responses may be appropriate.

So, what does this case mean? First off, it does NOT mean that private employers can’t fire an at-will employee for smoking pot. In fact, the above-language from the court suggests that such terminations are going to be upheld by the courts in most instances.

And, for public employers, it also does not mean that all terminations of drug-using employees are going to be invalid either.  An arbitrator could find the employee’s termination justified in other instances based on the circumstances or the type of position that the employee held (such as a teacher or bus driver, one could imagine).

Rather, the decision means that arbitrators will have some breathing room in reviewing the facts of a situation and fashioning a solution that may be less than a termination in some instances.

For lawyers, the concurrence by Justice Espinosa is worth reviewing; she would have the court revisit its decision that set forth the standards for the court to review in such instances.

roadcircleIf you like getting lost on roads with your head spinning on which way to go, this is your post.  (Everyone else, well, try to keep up.) I recap a case for companies with unions to pay attention to.

Let’s start with this example:

Employee X is required by law to report suspected abuse in her job. She fails to do so for a few days, but ultimately does.  After investigation, employer terminates employee for her failure to report the suspected abuse and notes that she had been on “final” warning for previous misconduct. Employee and her union appeal.  After a hearing, an arbitrator reinstates the employee while similarly stating that she should be subject to a one month unpaid suspension. Employer appeals saying the arbitration decision violates the important public policy of reporting suspected abuse.

That’s the ground work for a new Connecticut Supreme Court decision (Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199) that will be officially released next week.

The court said that it was not readily disputed that Connecticut has a clear, well-defined public policy of protecting nursing home residents from abuse.  Thus, the sole issue for the court was whether the arbitration decision violates that important public policy.

In doing so, the court emphasized that a party seeking to vacate an award reinstating a terminated employee “bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. ”  But the court was quick to note that a consensus on how to handle such claims was “elusive” from its prior decisions.

Thus, the court said it was using this case to “take this opportunity to clarify the factors a reviewing court should consider when evaluating such a claim.”

When a court speaks like this, it’s probably worth listening to.  And what are those factors? This is where it gets complicated with factors upon factors. First:

Specifically, in determining whether termination of employment was necessary to vindicate the public policies at issue, both the majority and the dissenting opinions of this court have, either expressly or implicitly, focused on four principal factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible.

Of course, each of these factors have their own set of considerations as well. For example, on the relative “egregiousness” factor, the court said it encompasses “myriad considerations” including, but not limited to:

(1) the severity of the harms imposed and risks created by the grievant’s conduct; (2) whether that conduct strikes at the core or falls on the periphery of the relevant public policy; (3) the intent of the grievant with respect to the offending conduct and the public policy at issue; (4) whether reinstating the grievant would send an unacceptable message to the public or to other employees regarding the conduct in question; (5) the potential impact of the grievant’s conduct on customers/clients and other nonparties to the employment contract; (6) whether the misconduct occurred during the performance of official duties; and (7) whether the award reinstating the employee is founded on the arbitrator’s determination that mitigating circumstances, or other policy considerations, counterbalance the public policy at issue.

And what does it mean to be “incorrigible”? Well again, the court sets forth various considerations:

Here, relevant considerations include whether, on the one hand, the grievant has committed similar offenses in the past and has disregarded an employer’s prior warnings or clear policy statements; or, on the other hand, whether the grievant: (1) has generally performed his work in a competent and professional manner; (2) has demonstrated a willingness to change and an amenability to discipline; (3) has exhibited remorse and attempted to make restitution for past offenses; and (4) is likely to benefit from additional training and guidance.

But that’s not all.  “We also consider whether the penalty imposed by the arbitrator is severe enough to deter future infractions by the grievant or others.”

So if you’re keeping track at home, that’s over a dozen considerations for the court (and the parties) to address. 

Ultimately, the court in this case upheld the arbitrator’s original decision reinstating the employee applying all of the factors set forth above.

For employers, this case provides a roadmap on challenges to an arbitrator’s decision reinstating a terminated employee.  But beware: This map shows a lot of different paths for courts to follow.  Many of those several ways lead to the same conclusion: Challenging an arbitrator’s final decision remains an uphill battle at best.

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

In a post from earlier this week , I indicated that a new Appellate Court decision had some interesting points on wrongful discharge claim that were worth exploring. At the same time, the U.S. Supreme Court released a FMLA decision that made a few headlines.

But what I didn’t mention was this: the takeaways from these cases are something only your company’s lawyer is going to love.

First, the Supreme Court case (Coleman v. State of Maryland).  It answered the “burning” question of whether public employees could sue under the “self-care” provisions of the FMLA. 

Not that many of us were asking the question in the first place.  Continue Reading Decisions Only Your In-House Lawyer Could Love

Nurse's Claim Fails

The Connecticut Appellate court, in a decision that will be officially released next week, affirmed a dismissal an employee’s wrongful discharge claim in violation of “public policy” where the employee did not tie it to an explicit statutory or constitutional provision. 

The case, Armshaw v. Greenwich Hospital, can be downloaded here

Here’s what you need to know as an employer:

Connecticut is an as at-will state in the absence of a contract.  Most employment law claims against employers, however, derive from a specific violation of law — like Title VII which prohibits employers from discriminating because of race or gender. 

But the Connecticut Supreme Court has recognized a “common law” (as opposed to statutory law) claim of wrongful discharge.  In order to win such a claim, the employee has to show that the wrongful discharge violated some important public policy that the legislature highlighted (like keeping the food supply safe). 

In this case, the employee claimed she was discharged “because she consistently advocated and acted to support proper critical patience care in an emergency situation” and cited to various statutes. 

However, the court said that it could not find any “explicit statutory mandate, constitutional provision or judicial determination that prevents a hospital from discharging an at-will nursing employee, who has been the subject of previous disciplinary action, for failing to follow conduct and quality of work protocols…”

Result: Dismissal of employee’s case is affirmed.

For employers, it’s important to keep in mind that there are claims out there that are far removed from the traditional notions of discrimination.  But some claims are too far out there even for a court to support.   

(Kudos to my former law partner for his successful defense.)

"The United States is recommending U.S. citizens defer all non-essential travel to Bahrain."

Have you seen this headline? It’s from 20 years ago.

But strangely, that same headline made a reappearance this week. Don’t remember the last time it happened? Well, you should because a major Connecticut Supreme Court case arose out of it. 

And that case may have a significant impact on how Connecticut employers handle employees in the Middle East, and and in Japan.

In Parsons v. United Technologies, a helicopter pilot was allegedly assigned to work to provide training at Bahrain’s main military base, which was going to serve as the main staging area for allied warplanes after Iraq had invaded Kuwait.  

Allegedly, "the plaintiff became aware of a travel advisory issued by the United States Department of State (State Department), which was in force throughout the relevant period and provided in part: ‘Due to the Iraqi military invasion of Kuwait and continuing unstable conditions in the region, the Department of State advises all Americans to defer all non-essential travel to … Bahrain….’"

A few days later, the pilot wrote a memo that said that he refused to travel to Bahrain "because of the perceived threat to his health, safety and welfare, evidenced in part by the State Department travel advisory and in part by news reports about the situation in the Persian Gulf region generally. Within two hours of the plaintiff’s refusal, the defendant terminated the plaintiff’s employment and removed him from the building under security escort."

He sued alleging wrongful discharge.  The Superior Court struck that count of the complaint stating that "the statutes cited by the plaintiff do not express a public policy which would prohibit an employer from requiring an employee to travel to a foreign country where there may be some type of instability or military threat."  The Connecticut Supreme Court overturned that decision.

In doing so, the Court held: 

As a result of our careful review of the language, history, and public policy underlying the statutory provisions cited by the plaintiff in support of his claim, we conclude that this body of law expresses a clear and defined public policy requiring an employer who conducts business in Connecticut to provide a reasonably safe workplace to its employees.

The court continued:

We do not find support for the trial court’s conclusion that, even if the relevant statutes do establish a public policy requiring employers to provide a safe workplace, the policy only applies to a workplace that is: (1) located in Connecticut; and (2) controlled, maintained, or owned by the employer. …

Rather than expressing a safe workplace requirement that is limited to the confines of the state and to a work site exclusively controlled by the employer, these statutes simply and firmly prohibit employers who conduct business in Connecticut from exposing their employees to known hazards while they are performing their duties. A Connecticut employer is not relieved of the obligation to provide a safe workplace to its employees because that employer decides to send an employee to a work site outside Connecticut over which the employer has no control. The only relevant inquiry is whether the employer directed the employee to work in a place or condition that poses an objectively substantial risk of death, disease or serious bodily injury to the employee.

The 1997 decision has a good bit of resonance today and raises substantial questions.  Can an employee refuse to go to Bahrain today because the conditions pose an "objectively substantial risk of death, disease or serious bodily injury" just because of the travel advisory? 

And what about Japan? Can an Connecticut employee refuse an assignment to Japan because the potential for radioactivity poses the same or similar substantial risk? 

These are the questions that Connecticut employers with overseas business are having to face now. They’re not easy questions to answer and depend on the particular facts and circumstances of each situation. 

But regardless, employers faced with such questions should tread carefully before they terminate an employee based on their refusal to go to such a place and should seek legal guidance.

There’s a reason for the expression: Those who cannot remember the past are condemned to repeat it.

Don’t be one of those employers.

An employee who contended that he was fired after complaining about a physically threatening co-worker cannot bring a wrongful discharge claim, in a decision released by the Connecticut District Court.  The case, Ferrer v. T.L. Cannon Management Corp. (download here), does suggest, however, a way for employees to bring such claims in the future — with some artful language in the complaint. 

Readers of this blog will be aware  that Connecticut is an at-will employment state, absent some contractual promises or some other exception that may apply. In general terms, that means is that an employee can quit any time for any reason and that an employer can fire the employee at any time for any reason (so long as it’s not an illegal one such as race, gender, etc.) 

Two Connecticut Supreme Court cases are required reading for this concept: Sheets v. Teddy’s Frosted Food, Inc. 179 Conn. 471, 427 A.2d 385 (1980), and Parsons v. United Technologies Corp. 243. Conn. 66, 89, 700 A.2d 655 (1997).  [Disclosure: I worked on the Parsons matter.] 

Those cases created a notable exception to the at will standard:

  • In Sheets, the Court held that an at-will employee may sue for wrongful discharge if he is fired for complaining about, or refusing to participate in, his employer’s violation of public policy.
  • In Parsons, the Court ruled that the public policy embodied in the state statute requiring employers “to exercise reasonable care to provide for [their] servants a reasonably safe place in which to work,” Conn. Gen. Stat. § 31- 49, provides grounds for a wrongful discharge claim when an atwill employee is fired for refusing to work in conditions posing
    an “objectively substantial risk of death, disease or serious bodily injury.”

So, in the Ferrer case, the District Court was asked to extend the Parsons exception to a situation where the employee was allegedly discharged after informing his manager that a co-worker threw a punch at him and missed. The complaint also alleged that the co-worker assaulted another employee about a year earlier.

Continue Reading Court Examines The Parameters of the Public Policy Requiring Employers to Provide a Reasonably Safe Workplace