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

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.

• Print
• Comments
• Trackbacks (2)

During the holiday period, the Second Circuit issued a long (and I do mean LONG -- 77 pages!) decision regarding whether Connecticut corrections officers could belong to the Outlaws Motorcycle Club. 

The Second Court upheld the dismissal of First Amendment and other constitutional claims brought by several fired corrections officers who had challenged their firings. They contended, in Piscottano v. Murphy (download here) that their participation in the Club, which the government regards as a criminal enterprise, violated their rights to Freedom of Association.  The Court rejected that claim.  (The Hartford Courant's report can also be read here.)

Wait a Second Blog, has the initial details:

As the Court of Appeals likes to do, it uses this case to flesh out the state of the law on the right of association under the First Amendment, outlining how the Supreme Court has made it easier over the years to allow the government to restrict certain First Amendment freedoms among public employees.

The Court of Appeals first reviewed the Supreme Court's latest pronouncements on the regulation of a public employee's outside activities. Citing San Diego v. Roe, 543 U.S. 77 (2004), the Court stated that the government has leeway to discipline an employee whose outside speech or associations are detrimental to that operation. It is true, the Second Circuit held, that the plaintiffs in this case engaged in a "protected" association with the Outlaws in that their involvement with the organization raised a matter of "public concern" under the First Amendment. This is because, while the Outlaws Motorcycle Club does not as an organization engage in "public concern" speech, that organization's questionable existence itself would raise concern among the public.

But while "public concern" speech is protected by the First Amendment, the analysis does not end there. The government can still win the case by showing that this associational relationship can hurt governmental operations. Since the plaintiffs are corrections officers associating with an organization with a mission at odds with law enforcement, they can be fired for that association, overriding the First Amendment claim. Moreover, since membership in a large and non-selective social club like the Outlaws does not represent the kind of intimate (family) relationship for which you cannot be punished at work, the right of "intimate association" under the First Amendment does not help the corrections officers, either.

There are a few other notable aspects to the case to point out briefly.

• The case was argued in February 2006 -- thus, the case took nearly two years to decide. The next time you have an appeal before the Second Circuit, don't presume the wheels of justice will move quickly.
  
• It appears to judges focused to some extent on the corrections officers' denials of their knowledge of the criminal activities of the Outlaws group and their seeming denials of actually participating in the group:

In sum, on this record, we think it plain that Piscottano,Kight, and Vincenzo, by, inter alia, repeatedly consorting with the Outlaws and wearing Outlaws colors and apparel in public--even at such times as they were not members of the Outlaws--engaged in expressive activity approving of the nature of the Connecticut chapter of the Outlaws, of the national Outlaws organization, and of other Outlaws chapters.

The fact that law enforcement agencies believe the Outlaws and many of its chapters engage in criminal activity is sufficient in itself to make the nature of those entities a matter of public concern.

• An interesting question is whether courts would come to the same result for a private employer. After all, Conn. Gen. Stat. Sec. 31-51q purports to apply the reach of some constitutional claims to private employers.   It is plain from reading the decision that the particular position held by the corrections officers (semi- law enforcement) was a factor in the Court's decision.  Would the Court reach the same result for a newspaper delivery person?  That's simply an open question at the point.  But at least under Sec. 31-51q, the employer would have an additional defense that such actions may "substantially interfere" with the employee's performance or the working relationship.

• Print
• Comments
• Trackbacks

A few posts this week caught my eye:

• First, the HR Carnival has a great post this week about various HR issues, including how to train managers better.  And, best yet, you'll find a link back to this blog.  Thanks to the writers of the Carnival for the reference.
  
• Kris Dunn, over at HR Captialist,  has an interesting post about how HR professionals can help their companies keep benefit costs down. As Kris says, "If You Don't Have a Meaningful Answer to this Question From Your CEO, Update Your Resume..."
  
• Evil HR Lady, has an informative post as to how employers can prepare for terminations and how to educate managers about the right ways to do so.
  
• Workplace Horizons has been right on top of the Congress' consideration of ENDA, the Employment Non-Discrimination Act.  Near daily updates about the rumors of various amendments have been going up and its a useful site to keep track of certain pieces of legislation. 
  
• And finally, The Employment Blawg has been posting a series of hypotheticals on different workplace situations including violence, workplace and overtime.  As stated on the blog "Read Trucks and Guns: An Employment Law Fable, Part I (Overtime for Truck Drivers) for the whole story. . . . It ends with an HR manager getting shot by the driver (just hypothetically)."

• Print
• Comments
• Trackbacks

"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.

• Print
• Comments
• Trackbacks (1)