Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Connecticut is an at-will employment state, meaning that employers can terminate an employee's employment for any reason at any time, with or without cause. Employees are also free to leave their jobs at any times.   There are exceptions, of course, to that general rule.  But overall, when an employer's offer letter to an employee confirms that the employee is "at-will", that should do it. 

However, some employers -- while contending that they are keeping the at-will status -- have language in their handbooks that suggests that the first 90 days of employment are "probationary." 

A decision by U.S. District Court Judge Mark Kravitz released late yesterday in Defontes v. Mayflower Inn suggests that this language could potentially turn an at-will employee into something else. I use "potentially" because the court does not conclude this definitively; rather, the court suggests that this is an issue for a jury -- not a court -- to decide.

The District Court, in denying a motion for summary judgment by the Mayflower Inn, found that it was a disputed issue whether the handbook provisions changed an employee's at-will status into something else.  The Court did not conclude that the handbook did, in fact, make definite promises to the employees -- only that it could not decide that issue in the absence of a jury trial. 

It is not at all clear what the Handbook promised the Inn's employees. For example, does the use of the term "Probationary-At-Will Period" imply that after 90 days an employee is no longer at will? It is undisputed that [the employee] worked at the Inn for more than 90 days. Did he then become something other than an at-will employee? Was he, at a minimum,
entitled to a performance review before termination? It is undisputed that [the employee] was summarily fired without any explanation of the reasons for his termination or whether his performance was inadequate in any way. Given the ambiguity of the Handbook language (coupled with the fact that no party has provided the Court with any evidence regarding the Inn's course of performance under it), the question of whether the Handbook gives rise to an implied promise that after 90 days employment will not be terminated without cause, is one for a jury, not this Court. As the Connecticut Supreme Court stated in Gaudio, "In the absence of [express contractual] language . . . the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact. Because it is an inference of fact, determining the intent of the parties is within the province of the jury . . . ."

Could the employer have done more to prevent this claim? Monday-morning quarterbacking on cases like this is easy so I'll resist the urge and leave it to you, as readers, to analyze the court's decision. (I would suggest, however, that you ponder the decision it over a meal at the Mayflower Inn, which was written up by the Hartford Courant just last week or so.) 

What I take away from the case are lessons that are applicable for all sorts of employers, such as:  

• Updating an employee handbook. I previously discussed the need for vigilance at this earlier post. 
• Ensuring that a handbook has an appropriate disclaimer that the policies do not change an employee's at-will status.
• Consider eliminating the "probationary" period language for the "introductory" period of employment. Instead, consider adding that an employee's performance will be reviewed after 90 days. If an employee's employment needs to be terminated, that will be an opportune time -- with or without a "probationary" period. After all, if an employee is at-will, then they can be terminated without necessarily being on "probation". 
• Ensuring that the employee not only receives the handbook but signs an acknowledgment of receipt.

While this list is not intended to be exhaustive, updating policies and procedures may be one of the easiest ways for an employer to reduce their exposure to liability. Cases such as this one show the importance of doing so.

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Next time you're driving on the highway, take a look at the road signs. Not for what they say, but how they say it.  Are they new or worn? Easy to read or difficult to see? Straightforward or confusing?

If you drive down I-95 around Fairfield and Westport, you'll notice something different lately. The signs are fresh, easy to see and clear.  In fact, when you start getting down to Norwalk or so, you'll be struck by how worn out the signs are in that area of the state and how unreadable some are.  (A terrific article in the New York Times from August 2007 discusses the nationwide change in signs to a new "Clearview" font, if you're curious.)

I was thinking about this after I had a discussion with a client recently about the benefits of reviewing their employee handbook.  "It's fine; we've had it for 15 years without an issue," they said.  But it turns out it wasn't "fine", the handbook lacked some of newer or updated provisions that have been drafted to comport with changes in the law.  Indeed, the handbook was a confusing hodge-podge of policies that were, at times, unclear, outdated, and confusing.

If your company's handbook is as old as some of the road signs out there, here are four areas to re-examine.

1. At-Will Disclaimers -  This disclaimer will notify employees that they are at-will and that this handbook does not change that relationship.  Disclaimers should be displayed prominently and be sufficiently specific.  The disclaimers should also be able to draw attention to a reasonable person.  Lastly, the disclaimer should explicitly reserve the right of employers to change the policies at any time, with or without prior notice.
   
2. Anti-Harassment Policies -  The Supreme Court decisions of nearly a decade ago told employers two important lessons: a well drafted policy and well-drafted complaint procedures to deal with harassment issues will go a long way to reducing an employer's liability for many types of sexual harassment.  Indeed, the EEOC has suggested that employee handbooks are an excellent vehicle for notifying employees about such policies.  Thus, a review of the anti-harassment policies and procedures is a good idea to make sure they take advantage of this important defense provided by the Supreme Court.
   
3. Vacation/PTO Policies - Some employers have re-evaluated their vacation packages and other days off to avoid some of the hassles and abuses that have taken place at their companies. Some have moved to a strict "Paid Time Off", which looks less at the reasons for taking time off, and more at the overall attendance of the employee in general.  Some have also added a provision to make it clear that employees earn only a pro-rata share of the vacation time during each month, to prevent employees who leave at the beginning of the calendar year to be paid for unused vacation time for the entire year.
   
4. Electronic Communications - With the rise of the Internet and web-based e-mail, computer access and misuse have only multiplied in the last decade. Moreover, employees who use e-mail and instant messaging are prone to using it informally.   A comprehensive policy to address what conduct is appropriate will give employees some guidance into the do's and don'ts of e-mail and IM.  With Connecticut's passage of an Electronic Monitoring Act,  employees must also be notified if employers are tracking their computer systems, which may involve keystroke reviews or internet firewall tracking.  

Handbooks may not be as glamorous as addressing the "hot" issues of the day, but updating a handbook will pay dividends for years to come. With clearly marked signs for employees on how to proceed, it's less likely that one will get lost on the way. 

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The Connecticut Appellate Court today unofficially released a Per Curium decision that affirms the general principle that a contract for an indefinite term is a contract for at-will employment, even in the apparent absence of express terms. 

In Ward v. Distinctive Directories, Inc., (officially released on October 23, 2007), the Court was asked to review a lower court's decision finding at an at-will employment existed and that the Plaintiff has failed to present evidence of misrepresentation.

The facts are straightforward:

The plaintiff accepted an offer for employment as a sales representative on a commission basis. The defendant agreed to guarantee that the plaintiff’s income would be at least $4583.33 per month for the first six months of employment. The defendant terminated the plaintiff’s employment after less than three months for nonperformance. The plaintiff construed the employment contract as entitling her to compensation for six months, whether or not her relationship with the defendant had been terminated.

The court notes that because the contract was for an indefinite duration (despite highlighting her compensation for the first six months), she was an at-will employee for the company. (The company produces items such as The Valley Book and West Hartford Book.) The court readily disposes of rest of the Plaintiff's claims that she had been misled.

It suffices to note that the plaintiff had the opportunity to persuade the trial court that she had been misled and misused. She does not claim that the court made evidentiary rulings that precluded her from proving her case. She does not deny the authority of the court to make determinations of credibility. Because we are not persuaded that any of the court’s findings were clearly erroneous, we cannot sustain the plaintiff’s appellate claims.

The Court, however, reserved its harshest criticism for the Plaintiff's apparent failure to understand the significance that an at-will employment finding has on her employment claims.

As Judge Bryant noted, the plaintiff’s appeal manifests her failure to grasp the significance of [an earlier] ruling that, as a matter of law, her employment contract with the defendant was terminable at will. Having agreed to such a contract, the plaintiff took the risk that her employment would end earlier than she had anticipated. The defendant did not have to justify its termination of their relationship.

The case is a good reminder for practitioners that although the at-will doctrine may be eroded in some instances, it is far from a toothless doctrine.  Moreover, for HR professionals, the decision is a reminder that an at-will disclaimer on any offer letters is a best practice worth following. 

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"You're hired. No wait, you're fired."

That's essentially what happened in the case of Petitte v. DSL.net, a decision recently handed down by the Connecticut Appellate Court.  The Appeals Court rejected Mr. Petitte's claims that the company should be estopped from firing him.

The background is fairly straight-forward:

• Mr. Petitte applied for a position as regional sales manager. The Company offered him a position, including an offer letter, after which he resigned from his then-current job. 
  
• Upon his first day of work, however, his supervisor told him to go home. 
  
• Later that day, the Company informed him that it had changed it mind about hiring him, as a result of information they received while checking his references.
  
• Shortly after that, Mr. Petitte filed suit alleging breach of contract, negligent misrepresentation and infliction of emotional distress.
  
• DSL.net argued that because Mr. Petitte was an at-will employee, it could terminate him at any time for any reason -- even if it occurred before his start date.
• The trial court concluded that DSL.net was correct and dismissed Petitte's claims.
  

The Appellate Court held that logic dictates that there is no distinction between the offer of employment and the actual act of employment when the employment relationship is at will. Because of this, the employment-at-will doctrine applies to the entire employment situation, including offers of at-will employment. The court noted that prospective employees should now be on notice of the risks they face when resigning from an existing job to accept employment elsewhere.

For employers in Connecticut, it's a common sense decision.  But this case shows that even if you are in the "right" at the end, it may be a costly fight to fight.  In addition, offer letters should always note that the offers are contingent upon background checks.  This will ensure that employers have an additional argument if, in the unlikely event, the offer has to be withdrawn.

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