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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A few weeks ago, I posted on a decision by the Connecticut Supreme Court that ruled that an order denying class certification is not an appealable final judgment. I said back then that the case, Palmer v. Friendly Ice Cream Corporation, gives employers and other defendants in class actions, "an important arrow in their quiver of defending against class action cases."

This week,the Hartford Business Journal discussed the case in some detail with some good information about the underlying claims raised by the wait staff. 

The dispute between the food servers and restaurants hinges on the differences in the hourly wages paid to waiters and other non-wait staff. Restaurants are allowed to pay waiters below minimum wage levels, reducing wait staff pay by a 29.4 percent “tip credit,” which is based on the assumption that waiters are expected to earn much of their income from tips.

Food servers claim that their wallets take a hit when employers assign them tasks that don’t include waiting tables, such as brewing coffee, rolling napkins or cleaning restrooms.
For that reason, servers employed by T. G. I. Friday’s and Friendly’s want to be paid for the extra tasks they perform while on the job, so they have been working together to form class-action groups to fight restaurants.

The reporter from the story happened to call me for my views on the case, which I was happy to share with her. You can check out my quotes from the story here.  

Without sounding like I'm trying to fawn over them, the HBJ really is an under-appreciated publication that fills a good niche on business news in the state.  If you aren't looking at their site, you are really missing out on some great little nuggets about Connecticut business.

The case also highlights the importance of following wage rules carefully. The application of a "tip credit" isn't exactly the easiest formula for employers to apply in practice. Employers who may pay under minimum wage for one reason or another should consider themselves targets for potential claims and should ensure that they are in full compliance with the wage and hour laws.

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As one blogger posted over the weekend: Its tough to try employment cases around Christmas time. Just ask the City of New Haven.

Late last week, a jury in the Superior Court jury awarded $500,000 to a man who was turned down for a job in the city public works department.  He never actually lost his job, mind you.  But  The New Haven Independent has the details in a report:

Wrapping up a trial in New Haven Superior Court Wednesday, a jury found that members of the city public works department violated the constitutional rights of Casper Vollero Jr. when they turned him down for a laborer position in 2003. Vollero, who is white and lives in North Haven, filed an age and race discrimination suit after he was passed over for the job in favor of two younger black and Hispanic applicants.

Vollero, who’s 63, wept in relief upon hearing the verdict, according to his attorney, Diane Polan.... Vollero currently works for the city parks department. ...

“In this case, the jury found that Mr. Vollero was the victim of illegal race discrimination because the Public Works department maintained an unwritten quota system, in which one-third of the jobs went to white applicants, one-third went to black applicants and one-third went to Hispanic applicants,” Polan wrote in a press statement.

For the record, the City denied the charges and indicated it will appeal in this report from AP report:

City spokeswoman Jessica Mayorga called the verdict ``an egregious ruling.''
   
``We do not agree with the judgment, and we believe the amount is excessive. We will appeal the decision,'' Mayorga said.

Because the employee does not appear to have been fired, the amount of his damages -- mainly compensatory (pain and suffering) and punitive damages -- is certainly high.  However, because the Superior Court dockets are not available online, its difficult to find out additional specifics at this time.

Nonetheless, the decision highlights another important point for employers engaged in litigation: Juries can be unpredictable. Even cases that do not appear to have any significant financial value can turn into significant cases in front of juries. 

Thus, in employment matters, anytime you, as an employer, are willing to "go to court to prove our point", just be prepared to take your lumps if the jury disagrees with you. 

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