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Typically, in our court system, we operate under the “American Rule” which means that parties have to pay their own attorneys’ fees in cases, regardless of whether they win or lose.  (Contrast that with the English Rule which is a “loser pays” system.)

But there is one big exception to the American Rule — and it can be found in lots of employment law cases.   In several instances, the governing statute allows the prevailing party (or, in some instances, just the Plaintiff — read “employee”) to collect attorneys fees.

This is often seen in wage & hour claims, where an overtime claim may get dwarfed by a claim for attorneys’ fees.  One blog pointed out a few years ago in an FLSA case on “how attorney’s fees can grow to be the tail that wags the dog.”

A recent case out of the District Court of Connecticut also shows the impact in employment discrimination cases too.

The decision flows from a jury trial that awarded damages in an employment discrimination case to an individual suing a major employer.  Afterwards, both parties engaged in extensive post-trial litigation concerning attorneys’ fees, damages and more.  Ultimately, the court issued a ruling and then a final ruling after both parties asked for reconsideration.

The court awarded the Plaintiff in the discrimination claim the following:

  • Compensatory damages: $125,000
  • Punitive damages: $175,000
  • Economic damages (back pay): $ $243,711.89
  • Pre-judgment interest (on back pay): $15,665.37
  • Reinstatement

So, ultimately, the verdict is a little more than $550,000.

But the court also awarded attorneys’ fees.  And these fees far exceeded the verdict itself.

Grand total?  $973,083.50 in attorney’s fees and $30,960.24 in costs.

Such awards make employment cases unique animals in the law.  They provide extraordinary incentives to attorneys to not only take such cases, but pursue them.

For employers, the case is a difficult reminder that even when you value the case as somewhat small based on damages, the award of attorneys’ fees can add a substantial amount to what a case is worth.

 

Today marks an important milestone in the development of the Connecticut Employment Law Blog.  It marks the second major redesign of the blog since it was launched 10 years ago (!) this month in 2007.

Back then, the iPhone was just announced and social media was something that a few college kids played around with.  And some of us used a feature called Google Reader to read RSS feeds.

(Don’t believe me? I even wrote a blog post about how to read blog posts on an RSS feed here!)

And the notion of using blogs or specialized websites to get employment law news was still in its infancy.  I would read “George’s Employment Blawg” — now defunct – and sometimes BNA’s Daily Labor Reports, but there wasn’t much else beyond that.

So much as changed in ten years. It was time to design and structure my blog to meet the 2017 world as it stands now.

First, because smartphones are a massive part of every day life, the blog needed to have a “Responsive Design” to make it easy for people to read on their phones. That’s been done now and the shape of this blog reacts to the platform you are reading it.  I don’t understand all the technicalities of it but it’s pretty cool.  Everything should be easier on the iPhone (or Android).

Second, there are now plenty of outlets that now cover breaking news at a national level.  I love reading things like the “Morning Shift” each day because I can get updated news from people who have the time to spend sourcing it and covering it.   So, the goal of the blog going forward is to do less chasing of headlines, particularly at the national level. Indeed, my firm already does a really good collective job reporting on things in online newsletters and alerts. Look for more of that from my firm later in 2017.

So what else does that mean instead? Hopefully more analysis. More insights from an experienced employment law attorney.

I’ve always tried answering the question for employers of “How Is This Important to Employers in Connecticut”. I will continue to have a laser focus on this question by focusing on issues of importance. This doesn’t mean that I won’t share things I learn from time to time that others should know about (the proposed CTFMLA post from earlier this month is a great example of this). But if you’re looking for who the latest appointee to the NLRB is, you should broaden your horizons.

My schedule is such that I just don’t have the physical hours in the day to do so and, if I’m being completely honest, I don’t have the desire to do so either.  I’ve always said I love employment law because at the end of the day this work is about PEOPLE.  And posts that focus on the practical aspects of the law and what can be meaningful to people who work at companies will always carry the day for me.

Third, because of social media and video, there are now more ways than ever to communicate. Watch for more posts using videos and supplemental posts on LinkedIn and Facebook that go beyond the corners of the blog itself.  Expect a Facebook live session or two as well.  The blog will serve as a hub for these adventures but it won’t be the only place to continue to find information.  And if there’s a next thing out there, I’ll probably try it.

Fourth, you should see an increased emphasis on seeking input from outside sources. I’ve loved doing the Dialogue posts with Nina Pirrotti, a well-known Plaintiff’s attorney. And the interviews I’ve done with others are too irregular but are among the more well-read posts.  I’m hoping to do more of these.

Fifth, at the start of the blog, I tried to write nearly every day.  I would share links to articles and other things like that.  Then a few years ago, due to personal circumstances, posts became to several times a week.  Then as I was working with my firm on a re-launch of this blog and we were deciding its fate, the posts dropped even further. I think there was even a week without a post! Gasp. But that’s been resolved and this blog is alive and well.  So look for a big more regularity now that the new blog is in place.

Oh, and there’s the new design you’re seeing — easier to read, easier to search, easier to share, more visual, etc etc.

There are other changes I’ve got planned too, but I think that’s enough talking about myself and the blog for one post.

To those who have been with me since the start — thank you. To those just discovering this blog, I promise this isn’t like coming into the middle of Game of Thrones.  You’ll do just fine jumping in now.  We’ve got a lot of employment law left to discuss.

Day One of the Connecticut Employment Law Blog is ready to go.

Today marks Rosh Hashanah, the Jewish New Year and one of the holiest days of the Jewish year.

But it’s a day of business to many.

What should employers be doing for employees, though, that are celebrating the day?

There are actually a few different ways to answer the question.

The first answer, looking just at the legal obligations, is that the employer must provide an accommodation under Title VII.

But that standard is different than an ADA analysis.

Instead, the law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

Thus, giving an employee a day off to observe the holiday will, in many instances, be deemed to be a reasonable accommodation to the employee.

So that answers the legal obligation, but what else should an employer be doing?

Well, are you e-mailing that employee on their “day off”? Are you scheduling important meetings, even though you know that employee can’t attend?

Those things aren’t necessarily illegal.

And they aren’t always a bad idea either. Life moves on and conflicts are inevitable.

But a bit of sensitivity can help minimize those issues and some foresight can avoid the issue altogether.

I know that when a meeting gets scheduled, my own practice is just remind people of the holiday and leave it at that.

It happens. I just don’t get riled up about it

But I know others who when asked to attend something on holidays respond by saying: “How would you feel if I called you on Christmas?”

That only gets to part of the issue. Rather, pestering the employee out on a holiday, sends the wrong message to employees that their religious observances are something to be ignored. Meetings can go on but what can be put off for the day the employee is absent?

So before you decide to send multiple e-mails to your co-worker, or someone else observing the holiday, insisting on a response particularly when you know they don’t want to respond, think about the implications further.  It really reflects more on you than them.

An e-mail is an e-mail.

Except when it means something more.

Last week I talked about the new state law regarding pregnancy discrimination that is going into effect on October 1, 2017.  In that post, I mentioned a new notice that was required to comply with the law.

Although there is no set form that is required to be used, the Connecticut Department of Labor has created one that is available for employers to use that will comply with the state law.  It is free to download here.  

Because the content is useful, I’m using it down below so that employers can cut and paste it into a handbook or into a notice to be given to employee upon starting work too.  One can quibble with some of the word phrasings that are used, but overall — and stating the obvious — if you use this, you’ll be in compliance according to the state.

Covered Employers

Each employer with more than 3 employees must comply with these anti-discrimination and reasonable accommodation laws related to an employee or job applicant’s pregnancy, childbirth or related conditions, including lactation.

Prohibition of Discrimination

No employer may discriminate against an employee or job applicant because of her pregnancy, childbirth or other related conditions (e.g., breastfeeding or expressing milk at work).

Prohibited discriminatory conduct includes:

  • Terminating employment because of pregnancy, childbirth or related condition
  • Denying reasonable leave of absence for disability due to pregnancy (e.g., doctor prescribed bed rest during 6-8 week recovery period after birth)*
  • Denying disability or leave benefits accrued under plans maintained by the employer
  • Failing to reinstate employee to original job or equivalent position after leave
  • Limiting, segregating or classifying the employee in a way that would deprive her of employment opportunities
  • Discriminating against her in the terms or conditions of employment

    *Note: There is no requirement that the employee be employed for a certain length of time prior to being granted job protected leave of absence under this law.

Reasonable Accommodation

An employer must provide a reasonable accommodation to an Employee or job applicant due to her pregnancy, childbirth or needing to breastfeed or express milk at work.

Reasonable accommodations include, but are not limited to:

  • Being permitted to sit while working
  • More frequent or longer breaks
  • Periodic rest
  • Assistance with manual labor
  • Job restructuring
  • Light duty assignments
  • Modified work schedules
  • Temporary transfers to less strenuous or less hazardous work
  • Time off to recover from childbirth (prescribed by a Doctor, typically 6-8 weeks)
  • Break time and appropriate facilities (not a bathroom) for expressing milk

Denial of Reasonable Accommodation

No employer may discriminate against employee or job applicant by denying a reasonable accommodation due to pregnancy.

Prohibited discriminatory conduct includes:

  • Failing to make reasonable accommodation (and is not an undue hardship)**
  • Denying job opportunities to employee or job applicant because of request for reasonable accommodation
  • Forcing employee or job applicant to accept a reasonable accommodation when she has no known limitation related to pregnancy or the accommodation is not required to perform the essential duties of job
  • Requiring employee to take a leave of absence where a reasonable accommodation could have been made instead
    ** Note: To demonstrate an undue hardship, the employer must show that the accommodation would require a significant difficulty or expense in light of its circumstances.

Prohibition of Retaliation

Employers are prohibited from retaliating against an employee because of a request for reasonable accommodation.

Notice Requirements

Employers must post and provide this notice to all existing employees by January 28,2018; to an existing employee within 10 days after she notifies the employer of her pregnancy or related conditions; and to new employees upon commencing employment.

Complaint Process

CHRO:

Any employee aggrieved by a violation of these statutes may file a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). Complainants have 180 days from the date of the alleged act of discrimination, or from the time that you reasonably became aware of the discrimination, in which to file a complaint. It is illegal for anyone to retaliate against you for filing a complaint. CHRO main number: 860-541-3400 CHRO website: www.ct.gov/chro/site/default.asp CHRO link “How to File a Discrimination Complaint”: http://www.ct.gov/chro/taxonomy/v4_taxonomy.asp? DLN=45570&chroNav=|45570|

DOL:

Additionally, women who are denied the right to breastfeed or express milk at work, or are discriminated or retaliated against for doing so, may also file a complaint with the Connecticut Department of Labor (DOL). DOL phone number: 860-263-6791 DOL complaint form: For English: http://www.ctdol.state.ct.us/wgwkstnd/forms/DOL-80%20fillable.doc For Spanish: http://www.ctdol.state.ct.us/wgwkstnd/forms/DOL-80S%20fillable-Spa.doc

“President Trump is a Big Fat Idiot” or, for that matter, “Secretary Clinton is a Sore Loser.”

Let’s suppose you see one of your employees tweeting one of these expressions on Twitter during non-work hours from a personal account.

Can you discipline or even fire your employee over that tweet?

That, in essence, is at the heart of an issue that has been circulating in the sports pages (and in the President’s press briefings) over the last week due to the tweets of ESPN Sportscenter Anchor Jemele Hill from her personal account that were critical of the President.

The New York Times, in fact, ran a story on Saturday discussing the legal ramifications; it was nice to be quoted in the article.

While that article does a good job of summarizing the law in part, there’s a bit more to the story that is useful exploring (however briefly) in a blog post.

First off, people do not generally have a First Amendment protection for things that that they say that their employer finds out about.

Say you go to a white supremacist rally in, oh, Charlottesville and your employer finds out about your speech at the rally. You can be fired because of that generally.

But but but.

A state like Connecticut has a law that says that gives employee a right to sue their employer if the employer disciplines or fires the employee because of that employee exercised their free speech rights under both the First Amendment to the U.S. Constitution, AND the Connecticut Constitution.

Importantly, the speech has to be of a matter of “public concern” and courts will look to see if the person is speaking in his or her capacity as a concerned citizen; criticisms of your own personal workplace will often times not satisfy this standard.

Political speech is almost always the type of speech that courts will consider of a “public concern”.

The Connecticut Supreme Court said in 1999 (not 2015 as The New York Times indicated) in Cotto v. United Tech. Corp. that Connecticut’s free speech statute applied to speech made at an employer’s premises.

Continue Reading Calling President An Idiot May Be Protected Speech (But Maybe Not)

Update August 16th: Late yesterday, I received further confirmation that the provisions regarding FMLA were withdrawn entirely from the proposed Democrat-led budget bill. Moreover, the General Assembly early this morning voted on a Republican version of the budget implementer, which now goes on to Governor Malloy (who has indicated he will veto the bill). That version did not contain language on the FMLA changes either. So for now, employers can stand down. However, employers should continue to track the changes both this year and next. FMLA changes may make a return at some point.   

Update at 2:06 p.m.: Since publishing this article, I’ve now heard from three people who work at or with the legislature that while they can’t find fault with my analysis of the proposed legislation as described below, the section on FMLA was intended to address a separate issue.   As a result, it appears that the section on CTFMLA changes discussed below may be withdrawn this afternoon.

What the motives were for this language are far beyond the scope of this blog; this blog has always tried to provide an apolitical analysis of the law and legislation.  For employers, just take note that the budget implementer bill language on FMLA is now likely to be withdrawn when the final bill is considered. 

Late this morning, the proposed bill implementing the state’s budget (a so-called “budget implementer”) was finally released. And like years past, the bill contains some nuggets that are seemingly unrelated to a budget.

As the proposal is a monstrous 925 pages (download here), I’m still reviewing it but employers in Connecticut need to be aware immediately about some proposed changes to the state’s FMLA provisions.  First, a caveat: This is still very much a work in progress so employers should keep a close eye and contact their legislators if interested.

  • First, the bill would expand the scope of relationships covered to include siblings and grandparents/grandkids.  Thus, if you needed to take time off to care for a grandparent, that would now be a covered leave.
  • Second, the bill would revise the definition of employer to now include the state, municipalities, public schools and private schools which means the CTFMLA would now apply to all of them.
  • But then things get even a bit more confusing. The bill changes the definition of “eligible employee” presumably to exclude state workers who are subject to collective bargaining. BUT the bill’s language is far more imprecise and would seemingly exclude ALL workers who are subject to collective bargaining (whether private or public).  Specifically, the definition of “eligible employee” would now mean an employee “who is exempt from collective bargaining…” It does not have the qualifier that perhaps the drafters intended, though, given the speed in which this has been prepared, readers take caution.
  • Next. and quite significantly, the bill would seemingly extend the leave parents get upon the birth of a child or for placement of a child for adoption of foster care.  Specifically, it indicates (line 8472!) that:

Leave under subparagraph (A) or (B) of subdivision (2) of subsection (a) of this section may be extended up to sixteen workweeks beyond the expiration of such leave due under subdivision (1) of subsection (a) of this section.

  • Thus, Connecticut employers would seemingly need to provide up to 32 weeks (16 + 16 more) of unpaid leave for new parents.
  • But the bill goes beyond that too — for leaves for birth, adoption placement, care of a family member or self or to serve as a organ or bone marrow donor, the bill expands the leave too.  Specifically, in line 8529:

An eligible employee may extend his or her personal leave provided under subparagraph (A), (B), (C), (D) or (E) of subdivision (2) of subsection (a) for up to twenty-four workweeks after the expiration of any accrued paid vacation leave, personal leave, or medical or sick leave with proper medical certification.

  • In addition, the bill goes on to add in line 8534, that for leaves for serious health conditions of self or family member, or for donor leaves:

The use of sick leave by an eligible employee for leave provided under subparagraph (C), (D) or (E) of subdivision (2) of subsection (a) of this section shall not be deemed an incident or occurrence under an absence control policy.

The changes are coming fast and furious and it is possible that this proposed bill won’t get passed in its current form.  It’s certainly far beyond the paid FMLA program that was originally under discussion by the legislature.  These changes would be effective in two weeks — October 1, 2017 — which doesn’t given employers almost any time to revise their policies or train their employees.

And I must confess that I’m still a bit surprised by the breadth of this and scratch my head as to whether this language was intended to mean what it appears to say.  I’d like to see a the office of legislative research recap this bill too.

In the meantime, I’m still reviewing the remainder of the bill for other changes relevant to private employers.  (It’s 925 pages and 26452 lines long so bear with me.)  Have you spotted anything else? Add it in the comments below.

If you’ve ever tried a case in federal or state court, you know that picking a “jury of your peers” is often a challenge for all.  Sometimes, otherwise qualified prospective jurors say that they have conflicts with their schedules, while others are all too happy to feel like they are participating in a Law & Order episode. (Lifted from a real-life experience.)

But there’s a bigger issue in play too — jury diversity.

What does it really mean to have a jury of our peers? And is jury diversity still an issue?

These will be among the issues that will be on the table in an “In Community” program that my law firm is producing on September 27, 2017 along with the George W. Crawford Black Bar Association.  I sit on the firm’s Diversity and Inclusion committee and have been among the people charged with pulling this together.  I’m excited to see this program come together.

You can find more information about the program here.

The panel includes:

  • The Honorable Victor A. Bolden, United States District Judge, District of Connecticut
  • Allison M. Near, Partner and Litigator, Sheehan, Reeve & Near, LLC
  • Edward P. Schwartz, Ph.D., Jury Consultant, DecisionQuest
  • Robert R. Simpson, Partner and Litigator, Shipman & Goodwin LLP
  • James W. Bergenn, Moderator, Partner and Litigator, Shipman & Goodwin LLP

For those that think the issue is one of the past, I need only point you to a September 5th concurring decision at the Appellate Court by Judge Douglas Lavine.

The case is a criminal one, State v. Holmes, but the notion that the process of peremptory challenges in picking juries is working smoothly is one that he takes issue with.

The U.S. Supreme Court’s decision in Batson years ago, which held that removing potential jury members is unconstitutional, only is the start of a solution, not the end point:

It is my view, however, that no amount of judicial diligence and oversight can remedy a problem that has become embedded in the Batson procedure itself unless that procedure is revised. I write separately because this case brings into sharp relief a serious flaw in the way Batson has been, and can be, applied. Batson is designed to prevent lawyers from peremptorily challenging prospective  jurors for manifestly improper reasons based on race, national origin, and the like.

It was not designed to permit prosecutors—and other lawyers—to challenge members of suspect classes solely because they hold widely shared beliefs within the prospective juror’s community that are based on life experiences.

This flaw is in plain sight for all to see and must be remedied if the jury selection process is to attain the goal of producing juries representing all of the communities in our state and gaining their confidence and trust. I believe a blatant flaw that significantly disadvantages black defendants—and people belonging to other suspect classes—has become part of the Batson process itself. I conclude that Connecticut should reform its jury selection process to eliminate the perverse way in which Batson has come to be used.

The panel discussion later this month will address these and other issues.

For employers, jury trials are becoming rare; but jury diversity is essential to ensuring that justice is administered fairly.  Ultimately, everyone involved in the system should be supportive of.

Yesterday, I made a spectacular dive.

Unfortunately, it was not in a pool. It was in the middle of the street.

But it’s what happened AFTER that unfortunate fall, that I find most compelling.

Let me first say, however, that I’m FINE. Really, I’m fine. I’ve said that over and over the last 24 hours but really, well, you get the point.

The incident itself was a classic case of just a plain old accident. I was crossing the street on my way to lunch and didn’t happen to notice the pothole, ditch, depression, or whatever you want to call it in the street.

My ankle turned, I lost my balance, thought I regained it, then realized I hadn’t, and came crashing down mostly (and thankfully) on my hand, shoulder and knee.

End result: A scratched up hand, a bruised shoulder, broken glasses, wrecked suit.  But fortunately no broken bones or anything of the sort. No need for ambulances, hospitals, or taxi-rides home.

It happened to be right outside my work so I got up to get out of the road, took quick stock of myself, and walked (limped?) back inside to find the first aid kit.

In a bit of luck, I also ran into one of our office staff who mobilized our internal first aid health/safety team. Turns out, they are always ready for this.

Within minutes, I had an ice pack, bandages, and a chair.  Someone else offered to return a call for me for an upcoming appointment.  And 30 minutes later, there were still others who stopped by to see how I was doing and encouraged me to recuperate at home. (Advice taken.)

Here’s what I didn’t have: Endless questions about whether this was a “work-related” injury or what the “policy” was on these types of injuries.

Was it on a lunch break? Was it work-related? Those questions don’t really matter in the moment.

Indeed, this wasn’t the first time I’ve seen our health and safety team in action; a year ago, a colleague was choking on some food on my floor. The alerts came fast and furious and they sprung into action — without thinking.

And so, out of a spectacular dive comes your employment law tip of the day:

Your policies are important.

But the way you treat your employees and how your employees treat each other are even more important.  Train those employees to do the “right thing” in the moment and you’ll get glowing returns in spades.  Having a health/safety team for these types of matters is a crucial, and overlooked part of your company.

Policies are helpful in dealing with the unknowns.  But building your company’s culture so that your employees act instinctively, is far more important in the long run.

Your company will have someone like me who just trips and falls, or maybe they’ll be choking, or perhaps something even worse; what you do next will be important to who you are as a company.

And so today, I’m back at work, a little sore, a little bandaged up on my hand.

But thankful, I work at a place that puts its people first.

For those unfamiliar with the way a lot of Connecticut laws get implemented, October 1st could seem like just another day.  (Though for my kids, they would be impressed that it was a different October 1st in 1982 that EPCOT opened at Disney World.)

But a lot of bills that are passed by the Connecticut General Assembly go into effect on October 1st each year. This year is no exception.

For employers, the biggest of these bills is the new law concerning “Pregnant Women in the Workplace”.  I’ve previously recapped the law for pregnant employees in a prior post way back in May, but because we’re getting close to implementation, it’s time for a little refresher.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those rules remain unchanged. But the new law revises some other provisions and adds more to the protections. Effective October 1st, it will now also be unlawful to:

  • Limit, segregate or classify the pregnant employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • Discriminate against an employee or job applicant on the basis of her pregnancy in the terms or conditions of her employment;
  • Fail or refuse to make a reasonable accommodation for an employee or job applicant due to her pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship;
  • Deny employment opportunities to an employee or job applicant if the denial is due to the request for a reasonable accommodation due to her pregnancy;
  • Force an employee or job applicant affected by pregnancy to accept a reasonable accommodation if she (i) does not have known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • Require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of the leave; and
  • Retaliate against an employee in the terms, conditions or privileges of her employment based upon the employee’s request for a reasonable accommodation.

The changes don’t stop there. The new law also explains that the word “pregnancy” will also include “pregnancy, childbirth or a related condition, including but not limited to, lactation”.  It also expands the definition of “reasonable accommodation ” and “undue hardship”.

  • “Reasonable Accommodation” means, but is not limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignment, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk; and
  • “Undue Hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of the accommodation upon the operation of the employer.

Continue Reading Two Weeks Until New Protections for Pregnant Employees Become Effective

A lot has been made of the recent district court decision on legal job protections for qualifying medical marijuana patients.

But the decision has another piece that has been overlooked and which may cause employers some heartburn as well.

The “Negligent Infliction of Emotional Distress” cause of action has been on life support for the last decade or so as courts have limited its applicability for claims arising in the workplace.

Indeed, the Connecticut Supreme Court held back in 2002 that a claim for negligent infliction of emotional distress cannot arise from conduct occurring in an ongoing employment relationship, as distinguished from conduct occurring in the termination of employment.

But what should happen to claims by job applicants that allege that rescinded job offers have caused emotional distress?

The recent decision by Judge Meyer allows that claim to continue and denied an employer’s motion to dismiss.

It found that the allegation of the complaint — and specifically, that the employer knew that plaintiff suffered from post-traumatic stress disorder (PTSD) and then waited to rescind her job offer until one day before she was scheduled to begin work (and after she had already left her prior job), was sufficient to establish a possible claim. The allegations of the complaint were that such actions caused plaintiff to experience severe emotional distress, including anxiety, sleeplessness, and loss of appetite.

The Court, in its ruling, analyzed the decisions in Connecticut in the last 15 years and found that “Connecticut courts have not squarely decided whether a rescinded job offer could serve as the basis for a negligent infliction of emotional distress claim”:

The practical,workplace-related reasons … for precluding a claim for negligent infliction of emotional distress on the basis of events occurring in an ongoing employment relationship do not apply in the context of an employer who rescinds a job offer before the prospective employee can begin work. … Because the withdrawal of a job offer is more akin to termination than to conduct occurring in an ongoing employment relationship, it seems consistent … that a claim for negligent infliction of emotional distress could arise from the withdrawal of a job offer.

Although the decision itself shouldn’t necessarily change how employers manage their job offers (or withdrawals of job offers), it is a reminder to treat job applicants with some care.  If an employer does need to withdraw the job offer, it should be done in a way to minimize the harm to the applicant.

The worry, of course, with the court’s decision is that there are going to be cases that allege that the mere withdrawal of the job offer is sufficient to state a claim; the court’s decision doesn’t go that far and it seems that the plaintiff’s allegation of PTSD was a significant factor in allowing the claim to proceed.

But employers who face such claims in the lawsuit should be sure to review the circumstances to see where on the spectrum the particular claim falls.