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.

urinals2Connecticut’s drug testing statutes applicable to employers have always been a bit tricky to follow.  I covered the basics of these laws back in 2010 (you’ve been reading that long, right?).

For job applicants, employers must follow certain rules. Once an applicant becomes an employee, a new set of more stringent rules apply.

But to what?

In a case earlier this year, a Connecticut Superior Court had to address that issue and more. In the case (Schofield v. Loureiro Engineering Associates), the plaintiff was forced to undergo drug testing of his hair by his employer, two weeks after starting. He was fired as a result of the test.

The employee claimed that the restrictive drug testing rules of Connecticut law should apply. However, the Superior Court said otherwise.  It found that the rules regulate urine-based drug testing only, not any OTHER form of drug testing.

[The drug testing statutes in question apply only to urinalysis testing and do not cover an employee who is subjected to other forms of drug testing. . . . While the logic of plaintiff’s position is readily understood and the seemingly irrational inconsistency which flows from the disparate protections made evident in this opinion are undeniable, “the task of changing the law lies with the legislature and not with the judiciary.”

So, does this mean that employers are free to engage in all sorts of drug testing? Well, perhaps not. While disallowing any claim under the state’s drug testing laws, the Court did allow a “wrongful discharge” claim to proceed.

Thus, what the court giveth, it also taketh away.

For employers, drug testing of current employees in particular is fraught with challenges. Be sure your program meets all legal requirements (both state and federal) and use this case as a warning sign. Things aren’t always what they seem.

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

It will come as no surprise to employers that summary judgment (essentially, throwing out a case before trial) in employment cases in state court is hard to get.  State judges are typically reluctant to grant such a motion, which means cases get scheduled for trial — an expensive and uncertain proposition at best for employers. 

When employers do get summary judgment, their victories may be shortlived. Just ask the employer in the case of Li v. Canberra Industires (download here), which will be officially released on March 27, 2012.

In that case, the employer had criticized the plaintiff for many months on her performance and the employer had the documentation to support it.  In fact, she was told that if her performance didn’t improve, she could be fired.  She was transfered to a new supervisor.

Continue Reading Court: Employee’s Complaint Trumps Performance Issues

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.

There is an unspoken truth about the Superior Courts in Connecticut: Summary judgment for employers in employment-related claims is typically a long shot. Of course, there are exceptions to the rule.

A case to be released by the Connecticut Appellate Court next week shows the difficulty but also shows that at least with regard to defenses of res judicata and collateral estoppel, an employer has a fighting chance. 

(What is res judicata or collateral estoppel? In simple terms, it is the civil equivalent of "double jeopardy" and typically prevents a party from relitigating an issue or case already decided in a similar case with the same parties.) 

The case is described by the court has being of the "most unusual of summary judgment cases" so the procedural history is bit convoluted but important to understand the outcome.

In Singhaviroj v. Board of Education of Fairfield (officially released October 5, 2010), the plaintiff was terminated in April 2004 for reasons that are not important. In March 2005, he filed an action alleging that he was denied equal protection and due process.  One month later, he filed a separate lawsuit (the subject of the appeal) alleging wrongful discharge.  

The cases were consolidated in February 2006 and about 18 months later, the court granted a motion to strike the entire first action in its entirety.  The Plaintiff did not replead and thus in March 2008, the court rendered judgment in favor of the Defendants in the first action.  

The Defendants then filed for summary judgment claiming that the remaining claims by the Plaintiff were barred by res judicata and collateral estoppel. With a trial date about 5 weeks away, at oral argument, the judge denied the summary judgment motion saying "I’m going to deny the motions for summary judgment, but I’m not making any findings that there are, in fact, issues of material fact.  I’m denying them because there is insufficient time…for the court to make that determination."  

The Defendants appealed. There were several issues that flowed from that.

1) The Appellate Court at first rejected the Defendants argument that the court erred when it didn’t find a material issue of fact, saying that it was within the lower court’s discretion generally to deny a summary judgment motion when a trial is close at hand. 

Lesson learned from that portion: If you have a summary judgment motion in state court, file it well in advance of any trial date.

2) Even though the Defendants never pleaded res judicata or collateral estoppel as a special defense, the court said it would consider those issues because the Plaintiff never objected to the issue and argued the merits of the issue in the court below.

Lesson learnedIf you’re defending the matter, be sure to plead res judicata or collateral estoppel as a special defense. 

3) The Court said the trial court’s fatal flaw was not considering the merits of the res judicata or collateral estoppel arguments which are more than just a run-of-the-mill defense:

Because a res judicata or collateral estoppel claim is the ‘‘civil law analogue’’ to a double jeopardy challenge, a court faced with such a claim must resolve that question before trial may commence.  We therefore conclude that the court improperly denied the defendants’ motions for summary judgment without determining whether a genuine issue of material fact existed with respect to their res judicata and collateral estoppel defenses.

Indeed, the court noted that the court never even allowed oral argument on that issue.  Because of that, the court remanded the matter back to the trial court for consideration of the merits of the issue. 

Lesson learned: If you have a res judicata or collateral estoppel defense, this opinion may be cited to suggest to the trial court that it is improper for the court not to rule on the merits of such a defense.

Time once again to bring back an occasional feature that takes a look at stories that have now fallen from the local newspapers’ headlines.  After all, have you ever noticed that it is somehow "big news" that a lawsuit is filed but you rarely hear about a lawsuit’s dismissal?

This installment updates the lawsuit that was brought against the Tribune Company by its former "watchdog", George Gombossy. I reported on the case last fall.  He claimed in the lawsuit that he was fired in retaliation for speech that was protected by the First Amendment (and its state law equivalent, Conn. Gen. Stat. Sec. 31-51q).

Earlier this month, a Superior Court judge threw out the lawsuit concluding that Gombossy’s legal claim was without merit.  Gombossy has detailed the decision on his new website.   

In doing so, the Court rather easily dismisses the notion that Gombossy had any First Amendment right to have his columns published by the Hartford Courant and notes that he has no First Amendment rights when the speech was "on the job".  The court also dismisses his claim that his company made certain promises about his job to him. 

But as with all of these types of claims, the lawsuit is far from over. Gombossy filed an amended complaint last week again raising claims of wrongful discharge and promissory estoppel. Whether this new complaint will survive another motion will have to be the subject of another "What Ever Happened To…" column later this year or next.

Employment Practices Liability Insurance (EPLI) is, at times, viewed by some employers as a way to control costs.  (For a primer on EPLI, check out my prior posts here and here.) Why? Because employers believe that these policies will cover all of their wrongful discharge claims and the insurer will not read its policy narrowly to exclude such claims. 

But after a case by the Connecticut Supreme Court that will be officially released next Tuesday, employers should understand that EPLI policies have real and identifiable limits and that not all claims will be covered. Indeed, understanding what is and is not covered should be at the forefront of employer’s discussions with an insurance agent when discussing a policy. Moreover, employers ought to discuss prior claims with the insurer so as not to be surprised if they resurface.

Indeed, in National Waste Assoc. v. Travelers Casualty & Surety Co. (download here), the Court found that an insurer was not responsible for covering a new wrongful discharge lawsuit filed in the coverage period because there had already been unemployment benefits hearing regarding that same employee before the coverage period began.  The court found that this prior claim for unemployment benefits was a prior "administrative" hearing and fell within one of the policies exclusions.

The basic facts of the case are straightforward: 

  • Employer purchased EPLI for the period of 2/15/07 to 2/15/09 that included a "claims-made" provision (which provides liability coverage for any claim first made during the coverage period). 
  • On 5/12/07, former employee filed wrongful discharge claim.
  • Insurer denied coverage relying on a standard provision in such agreement that precluded prior litigation:

This [l]iability [c]overage shall not apply to, and the [defendant] shall have no duty to defend or to pay, advance or reimburse [d]efense [e]xpenses for, any [c]laim . . . based upon, alleging, arising out of, or in any way relating to, directly or indirectly, any fact, circumstance, situation, transaction, event or [w]rongful [a]ct underlying or alleged in any prior or pending civil, criminal, administrative or regulatory proceeding, … against any [i]nsured as of or prior to the applicable [p]rior and [p]ending [p]roceeding [d]ate set forth in [the policy declarations].

  • As it turns out, the former employee and the employer had been involved in a Department of Labor proceeding in 2005 regarding a claim for unemployment benefits by the individual.

The employer here argued that it did not believe that the prior unemployment proceeding should count as an administrative hearing. The Supreme Court disagreed saying that unemployment benefit hearings are squarely adminsitrative hearings. Case closed.

So, what’s the takeaway for employers? If you do have EPLI, understand your policy limits. And if you’re considering EPLI, understand that having a policy is not a panacea.  And never presume that a claim will be covered just because the lawsuit occurs during the coverage period. 

Insurance companies are like any other business; they look for ways to control costs. Thus, the fine print that you may otherwise glance over before signing the policy agreement? Read it; that fine print just may dictate whether you have coverage or not.

 

It’s the stuff of television shows.  

In the middle of trial, a plaintiff (who is claiming his employment was terminated, among other reasons, in retaliation of his exercise of FMLA rights) drops a bombshell:

[In the prior October], I learned that I had — have stage III prostate cancer with a metastatic brain lesion."

While the cancer may have been known in the abstract, the "metastatic brain lesion" is not.  The employer’s counsel moves for a mistrial and the court orders an immediate hearing (and disclosure of medical records) to receive some additional facts.

During the hearing, however, there’s another another unexpected development: The medical records show that the employee did not have (and never had) a metastatic brain lesion.  Because the jury already heard the testimony, the court grants the request for a mistrial. 

But the fireworks continue.  Counsel for the employer says that a dismissal of the whole claim may be appropriate and asks the court to allow for some discovery.

And in a deposition, the plaintiff/employee discloses that some six months before trial, he knew that he definitely did not have a brain tumor.

What then? 

Dismissal, according to a federal court decision released on Friday.

In Radecki v. GlaxoSmithKline (download here), the court concluded that the plaintiff committed perjury in his testimony and that because the perjury was so serious, dismissal was the only appropriate mechanism.

Having "concluded that the plaintiff willfully provided false testimony for the improper purpose of causing the jury to feel sympathy for him", the Court discussed how perjury during trial is "intolerable."  Any sanction other than dismissal would give the appearance of the court’s tacit approval of such conduct:

To have the plaintiff in this case pay a monetary penalty and then return to court and present his case before a new jury would give the appearance of tolerating “a ‘flagrant affront’ to the truth-seeking function of adversary proceedings,”, even if (or perhaps especially if) the court allowed the defendant to use the plaintiff’s perjurious testimony from the first trial to attack his credibility. Therefore, the court concludes that the most appropriate sanction in this case is a sanction of dismissal with prejudice.

As the court noted, this situation is extraordinarily rare. Indeed, the Court struggled to find comparable cases from which to draw its conclusion. (For a case out of Ohio, check out this post by the Ohio Employer’s Law Blog.)

But the message the court sends through this case is anything but muddled: If you think real-life trials are just like television shows, where perjury is either condoned or is a plot device, think again.