If at first you succeed, try it again. 

Well, that may not be how the saying goes, but the first back-and-forth post between me and Nina Pirrotti, an employee-side attorney, was so well received that we’re back for another conversation. 

Today’s topic: What legislation are we both keeping our eyes out for at the Connecticut General Assembly?  

The Dialogue Begins

Dan Schwartz: So Nina, our first post was such a hit that I think we’re due for an encore.  Thanks for being up for this.

It has only bewn a few weeks, but it feels like we’re moving at warp speed on developments.  We could spend another post just on The Donald, sorry, Mr. President. Somehow I think we’re likely to talk about that again soon.

But let’s focus today on some of the legislative items we’re keeping an eye on, particularly in Connecticut. Each year, it seems like our General Assembly likes to roll out fresh employment law ideas.

Is there a particular bill that you’re keeping your eye on now from an employee-side perspective?

nina_t_pirrotti1-150x150Nina Pirrotti: I’m so glad you asked!   Yes, let me tell you about one bill that has been on my mind on the federal level (I am speaking about it at an ABA conference in sunny Puerto Vallarta really soon) and then I will give you a couple of highlights from our backyard.  

The federal bill that looms large for me right now (although concededly perhaps not as large as the prospect of sitting on the beach, tequila based beverage in hand) is the misleadingly named  Lawsuit Abuse Reduction Act (“LARA”) which would force judges to respond to Rule 11 motions in a particular manner. 

Rule 11 allows for the possibility of sanctions to be imposed on attorneys or parties who submit (or later advocate for) pleadings which have been filed for an improper purpose or which contain frivolous arguments or claims. 

While Rule 11 motions rear their ugly heads relatively rarely in litigation, a newly invigorated Republican majority in Congress has proposed LARA which would amend the sanctions provisions in Rule 11 to remove all judicial discretion – – regardless of the circumstances of the individual case- – in two critical respects. 

First it would require the court to sanction any attorney, law firm, or party who violates the rule.  Second it forces judges who find the rule has been violated to order the offending party to pay  the other party’s attorneys’ fees and costs.  Those in my world who oppose LARA say that there is no proof Rule 11 is not working in its current form, that the changes would burden the courts and that  its “once size fits all” mandatory sanctions would unfairly penalize employees in civil lawsuits.

Closer to home, two bills come to mind.  The first is a proposed modification of C.G.S.A. 31-51m, a statute which bars employers from retaliating against employees who report  employers’ unethical or legal wrongdoings to public bodies. 

The modification seeks to  protect employees who complain about such conduct internally or who refuse to participate in an activity they believe to be in violation of the law.   It also seeks to extend the timeline to bring an action under the law (employees now have only 90 days to file) and to provide for a greater array of damages if the employer violates the statute.

The second is a proposal to provide eligible employees with paid Family and Medical Leave Act leave.  The proposed legislation would require employees to contribute 1/2 of 1% of their wages to it (there would be no employer contribution) and employees cannot opt out it.   

We plaintiff employment lawyers would welcome both pieces of legislation as long overdue and reasonably tailored to protect Connecticut’s workforce.

What are your thoughts from the other side of the aisle, Dan?    Or is there other proposed legislation that has captured your attention?

Continue Reading The Dialogue: What Legislation We’re Keeping Our Eyes On

U.S. Supreme Court

Much will be written about the new First Amendment free-speech-in-the-workplace case decided by the U.S. Supreme Court today.

But frankly, I wouldn’t be surprised if most of them say nearly the same thing — that testimony by an employee who has been subpoenaed outside the course of his or her job responsibilities is now protected by the First Amendment.  I predicted as much last month.  Yawn.

Yet that’s the general proposition that comes out of the case of  Lane v. Franks today.  This was a unanimous decision  — and written by Justice Sotomayor.  This was not a close call in the court’s view — something that was foreseen by the questions at oral argument.  No one should really be surprised.

Another way to look at the case is to see that the court was asked to revisit the scope of its holding in Garcetti v. Ceballos.  Some courts had interpreted the rule in that case  — that employee speech made “pursuant to official job duties” is not protected — pretty broadly.

The Supreme Court rejected the view that almost any speech by an employee doesn’t deserve First Amendment protection.

Rather, the court said:  “The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

Justice Thomas wrote a concurrence to basically say the same thing.  He goes on to say what this case is not about:

We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities.  For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.

I’ve talked before about how Connecticut has an equivalent state law that adopts First Amendment precedent.  So for Connecticut employers, it’s important to understand that employees who are subpoenaed to testify about work (but outside their official job duties) will now have some protection.

But the Lane case always seemed like an outlier case to begin with; if you’re disciplining employees for testifying truthfully under a subpoena in a corruption case, you probably have other issues as well.

Connecticut’s whistleblowing statute (Conn.Gen. Stat. Sec. 31-51m) protects employees who have made a complaint to a “public body”.

But what exactly is a “public body”? Well, there is a definition but a recent Superior Court case had to look beyond that to determine if a complaint to a special ombudsman would count.

The facts of the case are somewhat unique but can highlight the law of unintended consequences.

In 2003, the Plaitniff filed a federal lawsuit alleging sex discrimination and harassment.  In 2008, the parties settled that case. The settlement agreement called for the appointment of an ombudsman, employed by the town who was charged with investigating the plaintiff’s discrimination, harassment and retaliation claims.

In February 2010, she filed a complaint under the ombudsman protocol highlighted in the settlement agreement.  On February 10, 2010, the ombudsman released a report substantiating the claims of retaliation and finding that the employer “continue[d] to be impacted” by the prior litigation.

From there, the relationship between the employer and the plaintiff continued to deteriorate, at least as referenced in the court’s decision, and in September 2010, she was terminated from her employment as a police officer.

The threshold question for the court was whether the special ombudsman was a “public body” under state statute. The court concluded that it was, relying on the definition of a public body that “any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law” can be one. The court held that the lawsuit in this case met that standard (whether she will ultimately prevail at trial is a different question altogether).

For employers, the case is significant because it suggests that a “public body” can be both broad and created by the parties themselves.  For public employers in particular, caution should be exercised when creating an ombudsman-like program.

The decision also addresses whether Connecticut’s anti-retaliation statute, Conn. Gen. Stat. Sec. 46a-60(a)(4) pre-empts other statutes, such as Connecticut’s whistleblowing statute, under Sec. 31-51m. The court fairly easily dismisses such an argument concluding, in part, that because the legislature knew of the anti-retaliation provisions at the time it enacted the whistleblowing statute, it must have intended both statutes to exist concurrently.

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.