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

A bill to provide mandatory paid sick leave to employees and a bill to provide greater protection to state whistleblowers were among the employment law-related bills that were not voted upon in the final day of the legislative session -- effectively killing them. 

The Paid Sick Leave bill, S.B. 217, had passed the Senate last week, but the House did not bring the measure up for a vote. As I indicated yesterday, nearly 25 amendments had been proposed on it -- a sign that the bill was going to be in for a long fight.  My earlier coverage of the bill is available here. CT News Junkie has a report on it as well.

The Whistleblower bill, S.B. 335, had also passed the Senate, but again, the House did not act on that provision either. My earlier coverage of the bill is available here.

Other bills that were not acted upon by the legislature include: a Workplace Bullying bill; a bill protecting child in the entertainment industry from child labor abuses; and a bill to allow workers to be paid by a pay or debit card.

One bill that did pass this week allows for the regulation of various professional service organizations and about employee misclassification (H.B. 5113).  I'll cover that in further detail in an upcoming post.

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I realize this blog has been a little top heavy of late with legislative developments, but it always seems that a whole year's worth of developments occur within a 2-3 week period at the end of the short General Assembly session. With this year's session scheduled to close at the end of the day on Wednesday, the developments are fast and furious. The court updates will return in force soon.

In the meantime, here's the brief recap of some of the developments from the last day or two (more to follow if and when necessary):

15-Year-Old Workers

The House late today passed a bill today that reinstates the labor law permitting 15-year-olds to work in grocery stores and similar positions. I expect the Governor to sign it shortly.  I've covered the bill in detail, most recently yesterday.  The bill, S.B. 216, can be downloaded here.  It will become effective immediately upon signature by Gov. Rell.  It amends Conn. Gen. Stat. Sec. 31-23. 

Jury Duty

The provision on jury duty were amended in a few subtle ways through a bill passed by the House on Monday and expected to be signed by the Governor.

First, House Bill 5918 (download text here) allows persons who have served on jury duty in the last three years to request the opportunity to serve again even though they would otherwise be excused.  (It amends Conn. Gen. Stat. 51-217a(a) in doing so.) 

Second, the bill also provides additional protection to workers on jury duty.  Specifically, it makes it clear that "any juror-employee who has served eight hours of jury duty in any one day shall be deemed to have worked a legal day's work as that term is used in section 31-21...and an employer shall not require the juror employee to work in excess of eight hours." 

What does this mean? In practical terms, it means that jurors cannot be required to work while they are also serving full days on jury duty.  Employees can, it appears, voluntarily work -- after hours, for example -- since the language prohibits requiring the employee to do so.  Because Connecticut does not have a daily overtime rule, the employee may not even be entitled to overtime for simply working in addition to jury duty.

This jury duty law will go into effect on October 1, 2008, assuming Gov. Rell signs the bill.

Child Performer Protection

The House has yet to address House Bill 5677, which would institute a whole new range of protections for children who act (or "perform").  You can download the bill here, but the lack of action on the bill so far indicates that time may run out on this provision. 

Whistleblower Protection

S.B. 335, which expands the protection of state whistleblowers has yet to be considered by the House. I looked at Senate Bill 335 in an earlier post. 

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With the legislative session coming to a close next week, developments are heating up at a fast and furious pace.  I'll do some quick updating and then provide a more through review when time permits.

First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements.  The Senate has been working off of some amendments as well, which can be located here.

The Hartford Courant has coverage here.   The CT News Junkie blog has a report earlier this week about it as well.

Second, the State Senate also passed amendments to the state's whistleblower law.  You can find my previous coverage here and you can view the Courant's coverage today of it here.

The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases.  The bill now moves on to the House for a vote. 

As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling.  The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.  As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?

Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward.  Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.

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Yesterday, I summarized a proposal by Connecticut Attorney General Richard Blumenthal to revise the state's whistleblowing laws. The Hartford Courant reported on Wednesday that Blumenthal testified before members of the General Assembly's black and Latino caucus on that issue.  Today, I'll take a look at it in more detail.

As I indicated yesterday, the Hartford Courant and others reporting on the case used the term "strengthen" to describe the changes to the laws. Although I'm not one for word-smithing articles, that term strikes me as a bit loaded for a few reasons.

First, it suggests that the state's whistleblower protection laws are "weak" -- which I'm not sure is the case. Second, it begs the question: how would it "strengthen" the laws and from what perspective? Third, what does it even mean to "strengthen" a law? And fourth, would this "strengthen" or affect existing constitutional retaliation claims that already exist to protect employees who report matters of public concern? The Courant's article, unfortunately, does not address these issues.

One issue that ought to be looked at, for example, is the proposal is to create a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

Moreover, such a proposal ignores what courts have been concluding over the years (see cases here and here for two recent examples): it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.

The U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two (and even highlighting cases that say 3 months is too long), what is the rationale behind the proposed legislation assuming such a connection up to 36 months later?

Another question that should be examined is whether the proper role of the AG's office is preserved.  For example, on the AG's website, the AG's Department of Employment Rights indicates that it is designed to defend "state agencies and state officials in employment related litigation and administrative complaints and provides legal advice and guidance to state agencies on employment issues."  Obviously, if the AG is interfering in whistleblowing cases, the AG's office cannot serve in a dual capacity -- representing the employees and the agency as well. How will such a determination be made if the AG's office is allowed to intervene as proposed?

Certainly a review of existing laws to update them and to ensure protection to whistleblowers is appropriate.  And none of the issues I raise above are unresolvable. But before the legislature takes action, it should vet the provisions thoroughly. What makes for good headlines may not make for good law.

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On Friday, Connecticut Attorney General Richard Blumenthal proposed new legislation to change the state's whistleblower laws.  Video from the press conference is available on Senator Edith Prague's website. 

Before the changes are discussed, it is useful to understand the state already has an existing whistleblower statute, Conn. Gen. Stat. Sec. 4-61dd and that enforcement of the statute falls within the purview of the Connecticut Commission on Human Rights and Opportunities. The CHRO has a portion of their website devoted to this area.

So what are the proposed changes? The changes would include:

• Allowing the Attorney General to intervene on behalf of whistleblowers in an administrative hearing on retaliation;
  
• Extending the time period for the rebuttable presumption that adverse personnel action is retaliation to three years from the date the whistleblower filed a complaint pursuant to the whistleblower statute;
  
• Authorizing the hearing officer to grant temporary relief to rescind a retaliatory action during the pendency of the hearing and to grant motions to amend the complaint if additional incidents of retaliation occur during the hearing.
  
• Requiring the hearing officer to send any finding of retaliation to the supervisor of the person found to have committed retaliation as well as the governor, head of the agency and the Commissioner of Administrative Services. Such individuals shall take appropriate personnel action.
  
• Requiring that the hearing officer's decision and any subsequent personnel action against the person who engaged in retaliation be a public record and shall be posted on the Department of Administrative Services' website

The Hartford Courant provides some additional background for the proposed changes as well including reference to an ongoing complaint against the Department of Corrections. 

Tomorrow, I will analyze the proposal and highlight some issues that the legislature ought to consider when it debates the bill.

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A U.S. District Court decision today by Judge Janet Arteron provides a bit of clarity on some first amendment retaliation issues that may be helpful to some employers. The case, Milardo v. City of Middletown (Dec. 20, 2007), is by no means groundbreaking; the facts of the case allow the court to sidestep some issues by simply finding a lack of evidence to support some of the claims.

Nevertheless, the case addresses, for example, the common argument of retaliation claims that mere temporal proximity should be sufficient to state a claim for retaliation.  (Click here for prior posts on the issue of temporal proximity for retaliation.)   The court here finds that the passage of nearly a year between an alleged complaint and the ultimate termination is insufficient to support a claim of retaliation.

One other interesting aspect is whether the filing of a Freedom of Information Act (FOIA) request is sufficient to form the basis of a First Amendment claim.  The court says that the answer generally is no and that Plaintiff did not show that his case falls within the very narrow exception to that general rule. 

As a general matter, courts have held that there is no First Amendment right to access government information, even by way of the FOIA. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 8–9 (1978) (plurality opinion) (“Neither the First Amendment nor theFourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.”); id. at 16 (Stewart, J., concurring) (“The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government.”); McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (“As a general rule, citizens have no first amendment right of access to traditionally nonpublic government information. A litigant seeking release of government information under FOIA, therefore, relies upon a statutory entitlement — as narrowed by statutory exceptions — and not upon his constitutional right to free expression.”)

To the extent there is a limited constitutional right of access to some types of information held by the government, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)
(recognizing a First Amendment right to access certain aspects of criminal proceedings), Plaintiff has failed to show how what he requested through the FOIA falls within that exception. See Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 934–36 (D.C. Cir. 2003) (summarizing the limited ways in which the Constitution guarantees access to criminal trials).

Milardo argues in his brief only that, although “the mere filing of a FOIA request is not necessarily ipso facto the exercise of a protected First Amendment right, the nature of the request in this case does merit First Amendment protection.” (Pl.’s Opp’n at 6.) In his request, Plaintiff sought information which he believed would reveal evidence of improper conduct by city employees, but he has not shown how this is the type of exceptional request that merits constitutional protection.

Moreover, the undisputed evidence shows that the city produced the documents he sought and that his request played no part in the city’s ultimate decision to terminate his employment ten months later. Thus, no reasonable fact-finder could conclude that Plaintiff was subjected to an adverse employment decision in retaliation for making any constitutionally-protected request.

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How do you avoid retaliation lawsuits? The true answer is by a bit by luck.  Despite all measures that some employers take, the inevitable fact is that some employees will file suit regardless. 

But all hope is not lost for employers.  There are steps that employers can take to reduce the likelihood of a suit.  Indeed, the single most important factor that an employer can apply is following the letter and spirit of the law.  The Pennsylvania Employment Law Blog recently posted a few of its tips that are worth considering.  Among them:

• Investigate even the Half Baked Complaints: Hindsight is 20/20 and its what employers are judged by in court. If an employee takes the time to complain about "illegal actions" then you take the time to make an investigation. First, ask the employee make a complete report of his suspicions. If the complaint involves you, let someone else do the investigation, please.

• Make a Written Finding: In the event of whistleblower type complaints, make a written finding that they were investigated and played no part in the termination decision and why.

• Manage the Appearance of Retaliation: Examine the timing of the whistleblower complaints and any discipline or termination decisions.

In Connecticut, there are specific laws that address whistleblowing and retaliation, including Conn. Gen. Stat. Sec. 31-51m.  As a result, employers who are aware of employees who have made complaints will need to be particularly cautious before making any employment related decisions that are unrelated to such complaints.

Two ideas for employers to consider in such event are:

• If action is necessary against the employee for reasons other than the protected activity, how has the employer treated similarly situated employees? Is the employer over-reacting here? Past precedent can be a good indication whether the decision is fair here.  Look to any internal policies that the employer may have to ensure that the policies are being applied in the same way.
  
• While the employee may have made complaints, such employees -- but not all -- are looking for an ear within the company.  If they feel that their concerns are being listened to, it may go a long way to resolving the issues that they may face in ways that are palatable to the company.  Maintain an open line of communication with the employee even when its difficult.  Treating that employee as a pariah will typically only make matters worse.

Of course, whistleblowing complaints in particular industries such as health care or product safety raise particular issues.  Before adverse action is taken against such employees, a thorough analysis of the risks involved (with human resources and an attorney reviewing the matter) will help ensure that the decision being made is done fairly and properly. 

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