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

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.

A few weeks ago, I pointed out an old employment law prohibiting minors from operating elevators was still on the books.  The Connecticut Law Tribune picked up on the story with a reference to the blog (though its hidden behind a paid registration page so you’ll have to take my word on it).  So are there other employment laws out there that may have seen better days?

Of course. 

Let me pose a scenario first.  Suppose you work for a mid-size employer in the state and decide to run for a local or state office.  Perhaps against the public’s better judgment, you even win a full-time elected position — for two terms.  But then – after eight years in office — you decide to leave office. 

Can you get your job back with your prior employer? Well, under state law, the answer is likely yes.

And you can get credit for your time in office.

Sounds a little absurd right?  After all, new parents who leave the workforce for years to raise their kids don’t get this protection, nor do people who suffer from long-term illnesses who have to leave their jobs for some years. 

But, it’s all there in black and white. Indeed, in Conn. Gen. Stat. 31-51l, any person employed by a private employer of 25 or more people who leaves such employment to accept a full-time elective municipal or state office must be granted a personal leave of absence for two consecutive terms.

Upon reapplication to the employer, the employer must then reinstate that employee to his or her original position or a similar position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits. 

There is one exception to the general rule. If the employer’s circumstances have changed as to make it impossible or unreasonable to do so, the employer is not required to do so. But how often is it "impossible" for an employer to rehire an employee to at least a similar position?

I’ll leave it to others to debate the legislative history behind this, but I think most of the workforce would love to have this deal. However, the only group that benefits from this are elected officials, and it’s not like they need a lot of protection.  (Before you start berating our current legislators for preserving their own interests, remember that they are part-time legislators so this statute does not apply to most of them.) 

Certainly, we want to encourage public service, but it’s not like we have a shortage of people running for full-time elected office.  In other words, is there really a problem that needs a fix like this statute?  Moreover, why should employers bear the burden when a person seeks elected office for their own personal growth?  And why should an employer have to rehire someone who may no longer have the skills necessary for the position or whose actions while in office lead the company to believe that it does not want to be associated with that person?

Ultimately, this statute is a trap and bad deal for the unwary private employer and boon to elected officials.  The solution: Eliminate the law and let elected officials seek jobs like the rest of the workforce. 

Is this likely to happen? Probably not.  The law has been on the books for nearly 35 years.  I can’t imagine a lobbyist who is going to advocate eliminating this law.  But this is another law that has had its time and if someone wanted to clean up employment laws on the books, this is another one to add to the list.