In a few weeks, the Connecticut Supreme Court will begin it’s next session. As I looked at the calendar assignment for the first term, what I began to realize is something that’s been gnawing at me for a while — there’s not an employment law case to be found on the docket.
Then I started to look back at last year’s session (2018-2019). Term after term. Where were the employment law cases? Unless I missed something, there wasn’t an employment law case to be found anywhere on last year’s case docket. (The only two that were even in the same neighborhood concerned a procedural requirement of the Municipal Employee Indemnification Statute, and a Labor Arbitration issue.)
In fact, I had to go back to the summer of 2017 to find the last major employment law case that the Connecticut Supreme Court considered. That case — on the fluctuating workweek — at least gave us some guidance on a thorny wage & hour issue even if very few employers actually use that method of calculating overtime.
But the stream of cases that we used to get from the Connecticut Supreme Court seems to have dried up for now.
The big questions, then, are why have there been no cases and will this continue?
As to why, the answers are not self-evident. If I had to guess, there are probably a variety of factors in play including: a decent economy, the increasing cost of cases that don’t have a “bet the farm” need to them, employment practices liability insurance (and the insurance companies’ reluctance to risk), settlements, the rise of mandatory arbitrations and a bit of chance.
All those factors help answer the second question as to whether this will continue? That’s a bit harder to predict but all of the above trends that have been in place for the last two years (except, perhaps, a decent economy) are all long-term plays. Arbitration agreements are, no doubt, taking away some of the cases that would otherwise see their way to courts. Moreover, class action waivers are removing some of the big ticket cases from the court system too.
Add to that the continued legs of the #metoo movement — and companies’ aversion to adverse publicity as a result of any sexual harassment claims — and you still have a recipe for less cases at the state’s highest court.
Of course, trends like this are easily reversed — a few cases could bubble up this year and the trend will be popped. But overall, it’s been pretty quiet.
For employers, there are a few takeaways from this.
First, it’s unlikely we’ll get judicial resolution of some of the issues that remain a bit unsettled in the employment law area. Companies will have to take calculated risks in some of those areas of confusion. Second, if you haven’t been involved in litigation in the last ten years, you should understand that the ground has shifted; cases are more expensive than ever with items such as electronic discovery picking up steam. That makes the incentive to settle for business reasons strong.
Lastly, if you have insurance, understand that the insurance company may ultimately want to settle for the cost of litigation and avoid an uncertain and costly appeal. That decision — however unpopular it is with employment law attorneys — may decide the fate of more cases than you realize.