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

Secretary of State Susan Bysiewicz and Connecticut Healthcare Advocate Kevin Lembo released their own press release (download here) this afternoon regarding the investigation into Progressive Business Compliance. 

According to the press release, Bysiewicz and Lembo are  "warning Connecticut's business community about a deceptive marketing campaign that falsely claims there is a 'new' requirement that employers purchase compliance posters or face fines of $7500."  Bysiewicz is also investigating whether the company is operating legally in Connecticut. 

The Connecticut Employment Law Blog first broke the story of this marketing effort and discussed what the employer's real obligations were under the law yesterday (see previous posts here and here.)  Earlier today, I noted Attorney General Richard Blumenthal's statement. It is now available online here. 

The press release states:

“Today we are warning Connecticut business owners – do not be duped by the scare tactics of this unauthorized campaign and these phony “new” requirements,” said Bysiewicz. “My office has launched an investigation to determine if Progressive Business Publications is operating legally in Connecticut and I applaud Attorney General Blumenthal for his investigation of PBP for potential fraud. We urge anyone who has fallen prey to this scam to contact our offices.”

The marketing campaign, consisting of blast-faxes and emails from PBC, is entitled: "CONNECTICUT HEALTHCARE ADVOCATE, OFFICIAL NOTICE". This campaign is NOT authorized by the Office of the Healthcare Advocate, State of Connecticut. The promotion falsely states that this is a "NEW" requirement, and encourages the reader to purchase the poster under threat of "fines of up to $7,500." The solicitation gives potential buyers an option of purchasing a single compliance poster for $12.99 or a “Complete Connecticut State Kit” consisting of 11 posters for $89.99.

“As soon as we were notified of this scheme we took action,” said Lembo. This marketing campaign and solicitation are in no way authorized by the Office of the Healthcare Advocate. This scheme targets business owners trying to play by the rules. Business owners who are required to post health insurance information may contact my office and receive this poster free of charge.”

The Connecticut General Statutes (CGA 38a-1046) require that employers who offer a fully-insured health insurance product to their employees, "shall obtain from the Healthcare Advocate and post, in a conspicuous location, a notice concerning the services that the Healthcare Advocate provides." The notice/poster that fulfills this requirement is available, free of charge, by contacting the Office of the Healthcare Advocate at 1-866-466-4446 or healthcare.advocate@ct.gov.

As before, I'll update with any noteworthy developments.

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Yesterday, I broke the story about Progressive Business Compliance charging money for a free poster for a state and then highlighted the company's website which made certain representations about the state of the law in Connecticut. 

In my post yesterday, I indicated that one of my colleagues had received some marketing materials that suggested there were new requirements and that the company's website had indicated it was now effective February 2008.

I received an e-mail shortly after my post from Kevin Lembo, of Connecticut's Office of Healthcare Advocate, indicating that action would be announced soon relating to the poster and the company.  (He also posted a comment to the blog indicating that the poster that I made available yesterday was indeed the state-mandated poster.) 

HartfordBusiness.com now confirms that the Attorney General Richard Blumenthal has opened an investigation against Progressive Business Compliance and other companies that market these types of workplace posters. 

According to the HBJ, Blumenthal has issued a press release stating the following:

PBC deserves a state warning poster of its own about consumer protection laws... Deliberately deceiving consumers into purchasing posters - through false claims about legal requirements or a company's government affiliation - is plainly prohibited by our consumer protection laws.

This is a welcome step.  As companies in Connecticut are aware, Blumenthal has a knack for going after companies he perceives as violating the law. 

I should be getting some additional information from the State later today and will issue a followup when warranted.

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Only a handful of CHRO Human Rights Referee Decisions are issued each year -- a number that has seemed to slow to a trickle recently.   But this month, the CHRO issued a lengthy decision in an age discrimination case.  In that case, CHRO Referee concluded that the Town of Bloomfield, Connecticut discriminated against a police officer because of his age when it terminated him.   (The officer was later reinstated as a result of an arbitration so his damages have been limited.)

In CHRO ex. rel. Donald Rajtar v. Town of Bloomfield, the Town was ordered to pay over $100,000 in backpay, lost benefits and interest.  The facts of the case are detailed and too lengthy to summarize, but suffice to say that the police officer relied heavily on alleged ageist comments made by co-workers and non-decisionmakers and on the theory that the investigation and decision into whether his employment should be determinated was deficient. 

The Town had contended that it terminated the Complainant because of the way he conducted a criminal investigation.  The Town further argued that the Complainant was dishonest in his work product; the CHRO Referee discounted that saying that "The charge that the complainant had lied was never pursued with sufficient objectivity so as to allow it to be fairly established." 

Notably, the CHRO Referee doesn't dismiss the town's defense entirely but simply found that the town's explanation was far from bullet-proof (couldn't avoid the pun here).  

A review of [the] detailed written explanation of why [the decision-maker] ultimately concluded the complainant had lied reveals a “house of cards”, which could easily (although admittedly not with certainty) have been toppled if the complainant had been extended the degree of animus free evenhandedness the law requires.

It is easy to question now whether the Town's investigation into the Complainant before it terminated his employment was thorough. Certainly, in reading the opinion, it is clear that the town did more than a minimal investigation into such facts and from an outsider's perspective, you have to applaud an employer that takes steps to support their employment decision beforehand. 

However, the case reinforces the notion that in order for an employment decision to hold up -- you must be able to answer one question clearly: Was the employee treated fairly? The CHRO Referee here found "The complainant was entitled to more than a career ending 'surmise'"; it is not a stretch to say that he did not believe the decision was "fair" since there is nothing in the law that requires that something "more".  This may not necessarily be "right" (and it's probably not enough to appeal on) but appealling to a factfinder's sense of fairness, is always critical to litigation success. 

One other noteworthy aspect of the case is the CHRO Referee's decision to follow the "cat's paw" theory of discrimination.  What is this theory? In essence, a court will find an employer liable based on a subordinate’s discriminatory animus, even where the person who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee.  Here, the CHRO found that allegedly ageist comments and actions made by lower-level supervisors and co-workers "influenced" the actual decision-makers here.

The issue of the "cat's paw" theory's application was up for review by the U.S. Supreme Court earlier this year, but the case settled before the issue was ruled upon by the court.  Nevertheless, the theory has been previously supported by the Connecticut Appellate court five years ago in United Technologies v. CHRO (a case that has some parallels to this case).  Until the appellate courts see fit to revisit the issue, it is likely to remain the dominant theory in Connecticut state courts and at the CHRO. 

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