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

One of the underlying fears that many employers have is that anti-discrimination laws will eventually be interpreted so broadly, that they will be open to litigation even for the most remote possibilities.   Thus, the idea of "standing" (in essence, who has the "right" to sue another party) is one that can sometimes be used to prevent overreaching in employment law cases.

The Connecticut Supreme Court, in a decision to be officially released next week, has held that only employees (and not surviving spouses of employees) have standing to sue under the state's anti-discrimination laws. In McWeeny v. City of Hartford, the Court fairly readily disposes of the claims by saying, in essence, the employment anti-discrimination laws cover, well, employees.

By its plain and unambiguous terms, § 46a-60 (a) (1) prohibits an employer from firing or refusing to hire or discriminating against any employee or prospective employee in the terms, conditions or privileges of employment. Thus, § 46a-60 (a) (1) pertains only to those persons who have sought or obtained an employment relationship with the employer alleged to have engaged in a discriminatory employment practice. The plaintiff does not fall within either of those categories.

In this case, a state court judge, Robert F. McWeeny sought various benefits as the surviving spouse of another state court judge.  The Supreme Court drops these facts to footnotes and discards the relevance of it : "The plaintiff is a judge of the Superior Court. His judicial position, however, is not relevant to this appeal."  That said, it's certainly not everyday that a group of judges dismisses an appeal of one of their colleagues.

For employers, the case demonstrates an important rule of thumb: Not everyone who complains about discrimination is even covered by a state statute.    That is not to give employers a free pass to treat people unfairly, but it also means that to not overlook the obvious argument of standing when defending against a claim like this.

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I've returned from vacation today with hundreds of e-mails to dig through and about 3000 posts in various RSS feeds.

But one e-mail I received relating to the Connecticut Supreme Court's decision earlier this month in Curry v. Allan S. Goodman, bears some immediate discussion. The comments are from Attorney Richard Hayber, the attorney representing the employee in that matter.  He has authorized me to re-publish his comments in part here, which I'm pleased to do so and I thank Richard for taking the time to comment. 

[Y]our coverage of this case has failed to point out the most disturbing fact of the case. The employer had a policy of only permitting injured workers to return to work if they had been cleared to "full duty." When asked at a deposition how the company applied this policy, it stated that it would not return an employee to work even if the only restriction he had was to take a 60 second break during the day to stretch his back!!! The Supreme Court held this policy, which foreclosed an individualized analysis of each disabled worker's request for accommodation, to be illegal.

I greatly appreciate Richard's comments and as I've suggested before, readers should read the lengthy decision to get a full appreciation for the contested facts.  Because the case is at the summary judgment stage, however, many of the facts remain disputed.

In my defense, reading the decision again, I do not see the deposition referenced, nor do I believe that the Court placed a particular emphasis on the "full duty" clearance requirement.  In fairness to Richard, however, the Connecticut Supreme Court, in footnote 23, did say that the Court's newly imposed "interactive process" requirement  creates a parallel requirement that assessments of a disability be done on an individualized basis. 

A policy—whether express or by application—that eliminates the individualized assessment of each disabled employee for purposes of reasonable accommodations is for all the reasons articulated in this opinion necessarily illegal. ... Whether the plaintiff ultimately will prevail after an individualized assessment will depend on the interactive reasonable accommodation process.

Ultimately, I agree with Richard that with the Connecticut Supreme Court's imposition of an interactive process for small employers will require those employers to conduct an individualized assessment of an employee's capabilities and abilities.  Because each case is unique and may also have some relationship to workers compensation injuries, employers may want to seek legal assistance in these types of determinations, at least until Connecticut law becomes more settled.

Richard also notes that "most superior court judges had already interpreted our Fair Employment Practices Act to require reasonable accommodations. Employers reading your Blog should not
be as alarmed as you would have them be."  A fair enough point, though there were hardly a significant number of cases in this area to begin with and I don't believe the law was as settled as Richard suggests.  In any event, I think the Curry decision's broad application to employment law warrants the concern that I have sounded.

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Reading the Connecticut Supreme Court case of Curry v. Allan S. Goodman, Inc. decided last week,  I'm struck by how many questions the decision seems to raise -- and how many are left unanswered. I've discussed the case and some questions it raises before, most recently here. 

The case appears to stand for the proposition that an employer must engage in an interactive process with a disabled employee who requests some type of reasonable accommodation.  But another question that arises is: What types of "disabilities" are within the scope of this reasonable accommodation duty under state law? 

The Americans with Disabilities Act has a plain definition of "disability" that reviews the person's condition in relation to a major life activity.  Connecticut's anti-discrimination scheme, however, is different.

In many ways, Connecticut's anti-discrimination provision of Conn. Gen. Stat. Sec. 46a-60(a)(1) is broader in scope because it includes "present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness." Broadening the scope even further are the definitions of these categories in Conn. Gen. Stat. Sec. 46a-51.

So what answer does the Supreme Court say about what types of "disabilities" are covered? It appears to say: All of the above (with emphasis noted below):

Because the text and legislative history illustrate that the intent of the legislature is to stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability, and mental retardation), we must not interpret the statute in a way that would thwart this purpose. ....

Accordingly, we adopt the commission’s time-tested interpretation construing § 46a-60 (a) (1) to require employers to make a reasonable accommodation for an employee’s
disability.

This leads to more issues.  For example, the definition of a "mental disability" in Connecticut is essentially anything that is defined as a disorder within the Diagnostic & Statistical Manual IV, which includes diagnoses such as "Pathological Gambling" and "Exhibitionism". 

Some strange questions then arise.  Do employers now need to accommodate "Pathological Gambling" because it falls within the definition of a "mental disability" and perhaps provide an employee with a "break" to play online poker or take a visit to Foxwoods?   Or even more bizarre, does an employer need to provide a "reasonable accommodation" to someone who suffers from Exhibitionism and what would that entail?

As for providing reasonable accommodations to people with "learning disabilities", suppose an employee suffers from dyslexia.  Suppose that this employee is computer programmer, but can't read all the instruction manuals. Must the employer provide an audio version of the same manuals as a "reasonable accommodation" or how about a person who must be available to read those manuals to them? How must an employer provide a reasonable accommodation for others who suffer from similar types of learning disabilities?

While the analysis of the Curry case thus far has noted that it now applies the reasonable accommodation provisions normally found in the ADA to small employers (who were not covered by the ADA),  there is a flip side too: Employers who were covered by the ADA, might need to contemplate reasonable accommodations to disabilities that are much broader than covered by the ADA. 

Is this settled? No.  And it may be that Superior Courts reviewing this case will take a narrow approach to the decision.

But after reading the Curry case over several times, I'm convinced that the importance of this case and its potential scope cannot be understated.   Absent some legislative intervention and oversight, this case has the potential to create lots of work for employment law attorneys in the years to come.

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The Connecticut Supreme Court is full of employment-related cases this month.

This next one is a bit more technical but it has some real-world implications -- namely, do employers (or frankly, anyone who is sued) have some protection for vexatious lawsuits.  The Court decision suggests that they don't have as much as one might think. 

In Bernhard-Thomas Building Systems, LLC v. Dunican, the Supreme Court was asked to decide whether a prejudgment remedy application is the same thing as a civil action.  (A prejudgment remedy action allows a party to show "probable cause" to prevail in an actual lawsuit, and thus having the ability to "attach" -- or more commonly known as a "lien" -- on property.) 

The answer to this question is important because if the court determined that it was the same thing, then the party who defeated the application could potentially bring a claim for vexatious litigation. 

The Court determined that an prejudgment remedy (PJR) application is not a civil action for purposes of a subsequent claim for vexatious litigation. 

What's the background? Bernhard-Thomas Building Systems, LLC employed Chet Dunican
from April, 2002, until February, 2004, as an at-will employee. According to the decision, "On December 19, 2003, ... Jacques J. Parenteau, an attorney representing Dunican filed an application for a prejudgment remedy on behalf of Dunican against [BTBS] in the amount
of $3.5 million in anticipation of a wrongful discharge litigation against the plaintiff. "

The Superior Court then held a hearing over the course of several days and on March 10, 2004, denied the application. Specifically, the court stated that it had applied the probable cause standard and concluded that Dunican had failed to sustain his burden with respect to any of his claims. . . .

The employer then brought a lawsuit that claimed, among other things, vexatious litigation and that it had expended substantial attorney’s fees in response to Dunican’s application.  It sued both the former employee who had brought the lawsuit and the attorney.  The lower court threw out the vexatious litigation claims leading to this appeal. 

The Supreme Court reviewed the structure of PJR applications and found that they were fundamentally different than the act of bringing an actual "lawsuit". 

The case has important ramifications for not only employment law cases, but all cases where a PJR is sought.  The cost of litigation -- even for a PJR -- continues to be significant. If a PJR application is not a lawsuit, and yet the person defending the application has to spend money just like a lawsuit, shouldn't there be a way to recover their fees and costs if the lawsuit is without merit?  The Supreme Court seems to suggest no, leaving attorneys to think about other ways to protect their clients.

Is the result sensible here? Probably.  The decision by the Court may be influenced by the fact that vexatious litigation claims -- particularly against an attorney who brought the claim -- are typically disfavored as a matter of public policy.  By allowing PJR applications to be more immune from attack than normal complaints, the Court allows the process to play out. 

And importantly, most of these PJR applications lead to lawsuits anyways, so it becomes a moot point later.

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When a worker is injured on the job, it's tragic.  It's even more tragic when that employee is left a paraplegic.

When that same worker and his wife are awarded $41 million by a jury against a general contractor, it's noteworthy.  It's particularly noteworthy in Connecticut, which is not known historically for its high jury awards.

When the Connecticut Supreme Court throws out the entire jury award and directs a verdict for the defendant -- a contractor -- it's remarkable.

Yet, that's exactly what happened on Monday in Pelletier v. Sordoni/Skanska Construction Co. (download here).  The Connecticut Law Tribune has the details here (available free):

A defense judgment directed by the Connecticut Supreme Court has saved a New Jersey contractor more than $41 million in legal liability to a paraplegic who was injured when a defectively-welded girder fell on his head.

In addition to the setback the high court dealt Norman Pelletier and his wife Reine, the unanimous verdict also found contractor Sordoni Skanska wasn’t liable because the accident was not foreseeable.

Peter T. Zarella, writing for the court, found that Waterbury Superior Court Judge Jon Alander improperly found that Connecticut’s construction code created a non-delegable duty for the contractor to make sure the welds were inspected for the benefit of welder Pelletier, among others.

The decision will have more impact for those in the construction industry, than employment, because it allows some contractors to delegate duties without risk of liability.  But one obvious reason why workers sometimes try to sue parties other than their employer is the fact that workers compensation acts as a bar to such claims.

Kudos to Dan Krisch, the current chair of the Connecticut Bar Association's Young Lawyers Section for his representation of the defendant in this case.

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The blog and press coverage of the Connecticut Supreme Court's case of Curry v. Allan S. Goodman, Inc. continues this week with two additional shout-outs to this blog.  In addition, another resource cited to the decision that is worth mentioning.

First up, the well-run and informative Point of Law blog, edited by Walter Olsen, discusses the case today with a references to this blog.  There are lots of other employment law issues discussed at the site so I would recommend it for a different perspective on the legal system.    

In addition, the Connecticut Law Tribune (subscription required) has a detailed article in this morning's paper on the Curry decision.  The reporter contacted me last week and I provided him with some additional insights in the case. The reporter was also kind enough to quote this blog as well.

"This is a very significant decision," said Daniel A. Schwartz, an employment lawyer at the Hartford office of Pullman & Comley, who writes ctemploymentlawblog.com. He is not personally involved in this case, but said the ruling is "mandatory reading" for all employment law practitioners.

"There have been attempts in recent years to create this reasonable accommodation language with legislative changes, but those bills did not pass," Schwartz said.

The decision — officially released April 15 — puts employers on notice to be responsive to needs of disabled employees and to actively engage in communication once a problem is identified. "They can't just take a hear-no-evil, see-no-evil, speak-no-evil attitude," Schwartz said in an interview.

Lastly, as part of the press coverage, I also stumbled on to a very good site today that I'm sure others have known about for years: the Connecticut Judicial Branch Law Libraries Newslog.  The site keeps readers updated on  "Connecticut legislative developments, new court decisions, online legal research tools, new law library resources, and other topics of interest to the Connecticut legal community."  I would definitely check the site out.

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Like the television show, Lost, reading the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, Inc. will leave readers with more questions than answers at the end of the day.  (For more background on the case, see this prior post.)

Those unanswered and indeed, troubling questions arise from the suggestion by the Connecticut Supreme Court that an employer's duty to accommodate an employee (and engage in the interactive process) may arise even after the employer has already terminated the employee. 

For example, if the employee makes a request for reasonable accommodation after the employee has already been terminated, does the employer have to listen to this request? And more importantly, does the employer then have to reinstate the employee with the new accommodations in place?  And what if the request for accommodation comes a month after the employee has already been terminated, must the employer still consider the request? The decision appears to say "yes" to these questions.

In order to understand this, some background facts on the case are needed as described by the Court:

The plaintiff  began working as a driver for the defendant, a distributor of wines and liquors, in September, 1986. In that position, the plaintiff had to lift cases of liquor  weighing between forty and seventy pounds on and off his truck. On or about August 26, 1998, the plaintiff  injured his back during work when lifting a case of liquor. ... [He] returned to work in September, 2000, but was restricted by his physician, Charles B. Kime, to working four hours a day, lifting a maximum of fifteen pounds at a time, and avoiding prolonged periods (more than thirty minutes) of sitting or standing. ...

When the plaintiff returned to work, the defendant negotiated with the plaintiff’s union and placed him in a night shift position, working the ‘‘split line’’ in the  warehouse. Although employees normally bid on these positions every six months on the basis of their seniority, because he was injured, the plaintiff temporarily was given the split line warehouse job pursuant to the agreement between the plaintiff’s union and the defendant. ..
When the defendant first placed the plaintiff on the split line, he was required to do only light duty tasks and was not required to replace empty cases with full cases [part of the job of a night-shift position]. ...

[By] March 7, 2001, however, [Plaintiff's physician] indicated that the plaintiff had not improved as expected and that his light duty restriction— ten hours a day with no repetitive bending or lifting of objects more than twenty-five pounds—likely would be ‘‘permanent.’’ ...

Subsequently, the plaintiff placed his name on the bid list for a night shift warehouse position. Although the plaintiff attests that he was high enough on the seniority list to qualify for this position, he did not receive the position. The defendant terminated the plaintiff’s employment, informing him by letter dated April 17, 2001, that it had determined that there was no suitable position for him. Approximately two days later, the plaintiff’s attorney sent a letter to one of the defendant’s managers, Richard Conroy, advising him of the defendant’s obligation to provide reasonable accommodation under the law, asking to be provided with a cost-benefit analysis of the decision to terminate the plaintiff, and requesting that the defendant reconsider its termination decision. The record does not reveal that the defendant took further action or reconsidered its decision.

As the Supreme Court recognized, it is up to the employee to initiate the request for a reasonable accommodation, not the employer.  Here, the Court found that the employee's placing his name on a "bid list" for a warehouse position and the letter from the employee's attorney after the employee was terminated was sufficient to start the request for reasonable accommodation. 

In the present case, the plaintiff made an affirmative request to continue working the warehouse night shift in March, 2001. In addition, the plaintiff’s counsel, in his April 19, 2001 letter to the defendant, requested that the defendant: (1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions. These actions satisfy the plaintiff’s burden of initiating the interactive process.

The defendant’s response to this request was merely to reject it. Conroy, the defendant’s manager, stated during his deposition that, upon receiving the letter from the plaintiff’s counsel, he did not reconsider his decision, confer with anyone else, review any records, or conduct any investigation or cost-benefit analysis of the hardship that the proposed accommodation would cause the defendant. The record reflects no effort by Conroy or any other representative of the defendant to contact the plaintiff or his counsel to engage in any additional, meaningful discussion. We conclude that this response is clearly not the dialogue envisioned by the interactive reasonable accommodation process and the defendant’s duty of good faith compliance.

From an employer's perspective, this is a disturbing because it seems to suggest that an employer's obligations to provide a reasonable accommodation continues after an employee has already been terminated.  Moreover, it suggests that "demand letters" (in which an attorney demands that the employer take certain action, like paying severance or reinstating the employee) can also be a requests for reasonable accommodation.

In addition, this decision suggests that even though the employee may not make a reasonable accommodation while employed (and only applies to be considered for a position with the company without explanation), the employer must still consider any request by the employee made after the employee was terminated.

It is unclear whether the employer will be filing a motion for rehearing in the case to rule on this issue. But if left unchallenged, this part of the Court's decision could be the real legacy of the case and set the stage for lots of demand letters for disabled workers even after they've already been fired.

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In a case that automatically vaults to the top of important disability discrimination cases in Connecticut, the Connecticut Supreme Court today held, in an issue of first impression, that employers have a duty to provide a reasonable accommodation to disabled workers under state law, even though the law does not explicitly say so. 

While the Americans with Disabilities Act applied this rule to employers under federal law for employers of 15 or more employees, small employers have been exempt from it, leaving workers only with the protection of a vague state law (Conn. Gen. Stat. 46a-60(a)(1)) prohibiting "physical disability" discrimination. 

The case, Curry v. Allan S. Goodman, Inc., was released earlier today, although practitioners are cautioned that it is not "officially" released until April 15, 2008. 

Although the Connecticut Commission on Human Rights and Opportunities has applied this rule for years to their view of cases, the Connecticut Supreme Court had yet to decide the issue, leaving employers (to which the Americans with Disabilities Act did not apply) with the thorny question of whether or not they had an obligation to provide a reasonable accommodation.  Certainly, some did; but others may not. 

The court's rationale is fascinating and I'll explore it more in upcoming posts.  Although the Connecticut statute was put in place almost two decades, the court said it was appropriate to still look to federal law for guidance. Since the reasonable accommodation requirement appeared in federal law, it was appropriate -- in part -- to add it here. There's more to the decision, of course, and I'll recap more later.

While the decision itself should be one that employers can follow, what's fascinating is that the Court has ignored various bills that have been proposed over the years at the legislature to add reasonable accommodation language to the statute.  After all, if the legislature "thought" such a requirement was already there and that was its "intent", why are there bills proposing adding such language?

For example, a 2004 bill would have changed the definition of "physical disability" to mirror the language.  A 2002 Senate bill called "the Preservation of Disability Rights" would have introduced language of a "qualified individual with a disability" that would have required reasonable accommodation. 

I'm not suggesting that its bad policy to add this; that's up to the legislature and/or the courts. But it seems a stretch to add a "reasonable accommodation" requirement to state law, when legislature never thought it important enough to do so itself. 

The Court then applies federal reasonable accommodation provisions (such as the interactive process) to the case at hand.  It also addresses the issue regarding light duty accommodation and what an undue hardship is.  I'll explore these provisions in future posts as well.

Until then, the case should be required reading for small employers in the state and their attorneys. 

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Continuing a very busy Wednesday in employment law (where were all these cases earlier this month?), the Connecticut Supreme Court issued a noteworthy decision on a few different wage issues. Because of time limitations, I'll address the case in a few separate posts.

The case, Ravetto v. Triton Thalassic Technologies, Inc. et al. , was argued to the Court in February 2007 (that is not a typo) and finally released on Wednesday (though it won't be "official" until March 4, 2008). 

There are lots of interesting employment issues in the case, but what immediately jumps out at me is the court's holding that an employee who is provided advances on commissions, does not need repay those advances when that employee's employment ends, even if the actual commissions did not amount to the advances.  The Court's ruling assumes that the employment agreement in place is silent on the issue of repayment.

The Court, in a 4-1 decision, adopts a view in a majority of other states that says that simply using the words "draw" or "advance" in an employment agreement is insufficient to establish a contractual obligation to repay those advances upon the end of employment.

We agree with the majority of courts that the mere use of the terms ‘‘draw’’ or ‘‘advance’’ in an employment agreement is not sufficient to establish the parties’ intent that the employee is obligated to repay the excess advances.

In arriving at the general rule that an employer may not recover excess advances unless an express or implied agreement to repay is established, many courts have reasoned that because the employer usually drafts the employment agreement, it easily may include language in the agreement obligating the employee to repay any advances that exceed commissions. ...

We therefore agree with the majority of jurisdictions that ‘‘absent a contractual provision expressly holding [an employee] personally liable for advances, [an
employer] must show that [the employee], by his [or her] conduct, exhibited an intent to be held personally liable for the repayment of the advances.’’ ...This rule is consistent with the ‘‘well settled judicial reluctance to cause a forfeiture of money already received unless it convincingly appears that such a result was intended by the parties. . . .’’

This decision has the potential to have a significant impact for employers in Connecticut.  What the court appears to be saying is that it is fine for an employer to say explicitly in an offer letter or employment agreement that the employee must repay the advances on commissions upon termination of employment, but in the absence of that provision, the employee is not obligated to do so. 

For employers in Connecticut, the case suggests an obvious course of action as well. Employers may want to consider having an explicit "repayment" provision in their offer letters and employment agreement for those employees who receive an advance or draw on commission.  Does this mean that existing agreements should be modified to add this provision? It may be something to consider.

There's more to this topic, and the decision in general. And, when time permits, I'll provide some additional thoughts.

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In an important decision to be officially released next week, the Connecticut Supreme Court has found that a qualified privilege exists to employers giving job references.

Specifically, in an issue of first impression, the court has now "recognized a qualified privilege for the employment references of current or former employers that were solicited with the employee’s consent."

In Miron v. University of New Haven Police Department, a unanimous Court rejected a former employee's defamation claim against the employer even if the employer -- in the course of providing a good-faith assessment -- issues false statements.

Why? Justice David Borden (who incidentally is now a Judge Trial Referee) writes:

We believe that the integrity of employment references not only is essential to prospective employers, but also to prospective employees, who stand to benefit from the credibility of positive recommendations. ...

It also would encourage a ‘‘culture of silence’’ not to afford a qualified privilege
to employment references that are made in good faith and without improper motive.

The decision, which adopts the rule set out in the Restatement of Torts and 19 other states, has the potential to have a dramatic impact on employment references in the state.

Many employers subscribe to the "name, rank and serial number" theory of references: just confirm the dates of employment and position, and nothing more.

For those employers, not much will change. But for those employers who wish to provide something more, this decision provides a safe harbor of sorts.  (Savvy employers who wish to get information about prospective employers can also use this decision to try to persuade the former employer to give up more information than "dates of employment and position" as well.) 

The key to establishing this privilege appears to be found not only in the court's language that the references be made "in good faith" and "without improper motive" but also that the references be sought with the employee's "consent".   

For prospective employers, written authorization from the applicant should be sought in the hiring process to check references. For former employers, getting a copy of that written authorization, while perhaps not required, may not be a bad idea in particular cases.  But how this will play out in practice remains to be seen. 

The court's decision contains several other important nuggets for employment practitioners that I'll touch on in the upcoming days.  But for now, because the Court speaks so rarely on employment issues, the decision is worth a look at as sign as to how the current court views such cases.  For employers, its certainly an encouraging sign. 

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