In prior posts, I’ve talked about the fluctuating work week and how it can be a useful tool for employers in limited circumstances. 

You might need a calculator

Yesterday, a federal court in Connecticut had a very interesting ruling that addressed whether an employer — when faced with a suit for

I’ll be the first to admit that the words “Sarbanes-Oxley Act” are likely to induce a big collective yawn from many of you out there.  Even the acronym “SOX” doesn’t liven things up.  (Then there are people, like Doug Cornelius at the Compliance Building blog who eat this stuff up.)

But here’s what you need to know as an employer: Terminated employees can bring a whistleblowing claim under SOX without using the words “fraud” but just by complaining about what they perceive to be as a violation of federal law.  Indeed, the caselaw on these claims is starting to mirror the pattern of retaliation claims — and we all know how notoriously difficult it is to defend against those types of claims.

SOX, not socks.

A relative new case out of the federal court in Connecticut illustrates this issue.  In Barker v. UBS AG (download here), the employer’s motion for summary judgment was denied on a SOX whistleblower claim. 

What does a terminated employee (who, the employer contends, was terminated during a reduction in force) have to show to get her case to trial? Initially, to establish a prima facie case, the plaintiff must demonstrate by a preponderance of the evidence that: (1) she engaged in protected activity; (2) the employer knew of the protected activity; (3) she suffered an unfavorable personnel action; and (4) circumstances exist to suggest that the protected activity was a contributing factor to the unfavorable action.

If the plaintiff meets her burden, the employer can then avoid liability if it can prove by clear and convincing evidence [a much higher standard of proof] that it would have taken the same personnel action in the absence of the protected activity.

And what is “protected activity”? This is where things differ slightly from retaliation claims. Here, as the court explains it.  the employee must she “had both a subjective belief and an objectively reasonable belief that the conduct [s]he complained of constituted a violation of relevant law” and  the employee’s communications “must definitively and specifically relate to [one] of the listed categories of fraud or securities violations” in SOX.


Continue Reading Pull Up Your SOX: The New Whistleblowing Claim Grows Up

George Clooney famously made business travel look (somewhat) cool in the movie, Up in the Air.

Clooney’s character was single (really, would you expect otherwise?) and business travel was a bit glamorous (though a bit tedious as well).

Perhaps not surprisingly, absent from the movie was a discussion of whether business travel could be the

 Today, my colleague Jonathan Orleans makes a return engagement to the blog, updating us on a decision released by the District Court of Connecticut yesterday that has relevance to various ADA cases in the state.  The Defendant was successfully represented by another colleague of mine here at the firm, Marcy Stovall.  

A decision issued yesterday by a federal district court in Connecticut provides some useful guidance on the distinction, for purposes of the Americans With Disabilities Act, between impairments that merely affect major life activities and those that substantially limit such activities. 

The decision by Judge Janet Arterton also clarifies that in determining whether the plaintiff is substantially limited in important life activities, the plaintiff is compared to “most people,” not to any subgroup of the general population.

In Rumbin v. Association of American Medical Colleges (download here), the plaintiff sought various accommodations, including extra time, to take the Medical College Admission Test (the “MCAT”), claiming to be disabled because he was severely limited in the major life activity of seeing. 

He submitted to the Association, which administers the MCAT, reports from his treating ophthalmologist and a behavioral optometrist who said that he had various vision-related impairments, including glaucoma, ocular misalignment, convergence insufficiency, binocular dysfunction, and oculomotor dysfunction. 

The Association nonetheless denied his request for accommodation after having his application reviewed by its own expert, the Executive Director of the National Board of Examiners in Optometry, who found the reports of plaintiff’s doctors unconvincing on a variety of grounds. 

(Interestingly, the Association presented evidence at trial that the MCAT is intentionally designed to be arduous and time-pressured, and that it is reluctant to grant requests for extra time because studies show that scores on tests where extra time is given are not equivalent to scores on tests using the standard timing.) 

The Defendant was also represented by Robert Burgoyne of Fulbright & Jaworski in Washington, DC.


Continue Reading Impairments That Merely Affect Major Life Activities Not Covered by ADA, Says Federal Court

A former Branford Facilities Manager’s claims that his employment was terminated due to protected speech and his political affiliation were effectively dismissed on Friday, February 25th when a federal court granted the employer’s motion for summary judgment.

The 40-page opinion provides good roadmap for employers (and their attorneys) to understanding such claims and what is