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But what should happen to claims by job applicants that allege that rescinded job offers have caused emotional distress?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decisions in Connecticut in the last 15 years and found that “Connecticut courts have not squarely decided whether a rescinded job offer could serve as the basis for a negligent infliction of emotional distress claim”: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.

The short session of the Connecticut General Assembly is set to begin on February 5, 2014.

But the jockeying for items to get on the agenda is well under way. The Connecticut Commission on Human Rights and Opportunities is circulating a proposed bill that would followup on a failed bill from last year’s term.

I previously discussed this proposal in a post last May.

At the time, the proposed bill was thought to be close to passage, but time ran out in the session before it could be picked up.  Earlier versions the bill proved quite troublesome; this latest version still has issues that haven’t been addressed and it’s important for employers to speak up now before the changes are put into place.

So what are some of the changes this bill would bring?

Changes to “Mental Disability”

The bill expands the definition of a “mental disability” to not only “mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’”, but also to including having “a record of or regarding a person as having one or more such disorders”.

Put aside, for the moment whether including everything in the new DSM5 is worthwhile. The more troubling issue is that the proposed law would continue to cover “regarded as” claims for mental disabilities. The references to a “past history” of mental disability in existing law being removed by this bill are less significant because a “record” of disability would now be covered.

Why is that problematic? Becaues that the definition is inconsistent with how a “physical” disability is treated; where is the reference to being “regarded” as having a physical disability?

Rather than continue to treat mental and physical disabilities as distinct from each other, the legislature should take its cues from the ADA and match its definitions accordingly.  Otherwise, we’ll continue to have three different standards to analyze disability claims — one for ADA claims, and two for state disability-related claims.

Continue Reading Legislative Preview: Will the CHRO Bill Get Passed This Year?

Back in August 2012, I reported on a new lawsuit filed by the Town of Shelton which claimed that the CHRO was improperly denying Shelton its Due Process Rights by not allowing a federal jury trial on related federal claims and by not providing for discovery.  Ultimately, it challenges Conn. Gen. Stat. Sec. 46a-58 under the Supremacy Clause of the Constitution.

What’s happened since?

Well, the case has gone through an amended complaint and a motion to dismiss, for one. Now, 14 months later, the State has filed a new motion to dismiss to challenge the complaint.

The motion raises a number of alleged deficiencies in the complaint including that the town does not have standing to challenge the constitutionality of a state statute and that the town has not alleged an injury in fact.  It goes on to raise other issues such as ripeness, mootness, and the Eleventh Amendment’s bar against such suits.

You can download the State’s motion here. 

The court has now scheduled a telephonic status conference for November 15, 2013 to discuss the case in general and Shelton’s response to this motion is now due on December 2, 2013.  Stay tuned for more developments.

Shelton v. Collins – Motion to Dismiss by CHRO

Not every case can be a U.S. Supreme Court case filled with sweeping pronouncements on employment law.

Blowing the whistle on a notable court decision

Indeed, many times the law develops through under-reported cases that you’ll never hear about.  The pronouncements may not be sweeping on those cases, but those cases help clarify a point that had been left uncertain before then and may open the door to other arguments as well.

Take the case of Commissioner of Mental Health and Addiction Services v. Saeedi, a Connecticut Appellate decision (download here) that will be officially released on July 9th.

Its ostensibly a whistleblower case under Conn. Gen. Stat. Sec. 4-61dd, where — as part of the damages awarded to the whistleblower — the CHRO ordered agency personnel to undergo professional ethics training and to alter the personnel file of the employee.

But the court was asked to look at something greater: Under the state’s whistleblower statute, where the CHRO has the power to award “any other damages”, does that include equitable (or non-monetary) relief?

The Appellate Court, in reviewing the language of the statute and the legislative history, concluded “no”.  Thus, the ordering of training was improper under the statute. But notably, the court said that because the CHRO was empowered to order reinstatement, the altering of the personnel file was appropriate to achieve that result.

That conclusion is not entirely surprising.

But the Appellate Court goes on a bit further in language that employers may see again in the future and that opens the door a crack to arguments about whether the CHRO can award other relief (perhaps even emotional distress damages) in discrimination cases.  (For background, I’ve talked about the CHRO’s attempt to include emotional distress damages as part of the award of damages.)

Continue Reading Appellate Court Limits Relief for Whistleblowers But Opens the Door in Discrimination Cases

A new revised bill (in the form of an amendment) to amend the state discrimination statutes and amend the CHRO procedures has been posted on the Connecticut General Assembly’s site this afternoon.  The amendment (8532) can be found in the information for S.B. 1164

A review of the language shows a few changes, including the removal of the “Schedule A” requirements that I had highlighted last week. 

According to several legislative sources, this revision follows some give-and-take between the agency, legislators and other outside groups to develop a bill that was not as controversial as the one that was proposed.  I shared my concerns with several individuals as well, after posting them first on the blog over the last few weeks. 

I applaud the agency for revising the CHRO bill to remove some of the more substantive changes until they can have an appropriate hearing and consideration. 

In the meantime, passage of this revision is now expected — if the legislature can work its way through the typical year-end mess it has created. 

After the bill passes, I hope to do a recap of some of the changes (I’ve touched on it in posts here and here).  If passed, the changes will become effective July 1, 2013.  In the interim, however, employers should familiarize themselves with the provisions. 

 

Two quick updates to items I’ve covered before.

Yesterday, the state Senate approved of an increase to minimum wage by 75 cents, over two years.  The bill would raise the minimum wage to $8.70 on January 1, 2014 and $9.00 an hour the following year. The Governor has pledged to sign the bill but it will now go on to the House first for a vote.

The CHRO revision bill has seen a few changes since I covered it last — mostly for the better. The latest version of the bill under consideration eliminates the possibility of emotional distress damages.

However, the new version includes a default mechanism and a requirement that employers respond to the so-called “Schedule A” questions by the CHRO.  Hopefully, the legislature will reconsider.

The Schedule As are a series of interrogatories asked by the CHRO for every investigation. Some questions are mundane — the name for the company’s agent for service — while others ask about similarly situated employees or more detailed questions. Employers have, at times, had the discretion in responding to these inquiries by raising an objection to the scope of the question.

The new legislation could change that as it mandates that employers respond to these requests.

(As an aside, the legislation allows the agency to grant a 15-day extension of time to respond to a complaint but NOT to the Schedule As.  That too should be remedied.)

This would be a mistake; the scope of the Schedule A questions are broad and mandating a response will only lead to more substantive and substantial challenges by the employer.   The Schedule A has never been treated as the same as a subpoena yet by elevating it in legislation, it will suddenly have even more power.

Moreover, what prevents the CHRO from changing the Schedule A to make it even more detailed or overbroad?

The legislature should reconsider this small portion before passage of S.B. 1164.

Whenever someone tells you that a proposed bill “clarifies” something or “simplifies” existing law, you should view such talk with a dose of healthy skepticism.

Indeed, viewing the written testimony of CHRO Executive Director Robert Brothers in support of Senate Bill 1164, you could be left with the impression that the changes being proposed to the state’s anti-discrimination laws were nothing more than technical in nature. 

But a more detailed review of the proposed bill reveals significant changes to how the state processes anti-discrimination complaints and what the scope is of such laws.   It would seemingly add emotional distress damages, for example, to the relief available at a public hearing for the first time. 

To be fair, some of the changes really are technical in nature, such as to make the statute more gender neutral. The problem is that such innocuous changes are lumped together with the significant ones.

The Office of Legislative Research’s summary of the bill is far more complete than the CHRO testimony and highlights some of the substantive changes, but even that office’s summary misses some troubling changes. 

Here are three (among many) notable items from the bill worth a review, illustrating why this rushed bill is a bad idea at this time. 

Changes to “Mental Disability” – The bill expands the definition of a “mental disability” to not only “mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’, but also to including having “a record of or regarding a person as having one or more such disorders”.  

Continue Reading Revisions to CHRO-Related Statutes Under Consideration Include Damages for Emotional Distress

A new lawsuit filed last Thursday in Connecticut state court by an employer alleges that the employer’s due process rights are being violated by “inherently conflicted and irreparably unfair proceedings” at the Commission on Human Rights and Opportunities (CHRO) — the state agency responsible for investigating and enforcing the state’s anti-discrimination laws. 

In the lawsuit, NERAC v. Krich, a copy of which can be downloaded here, the employer alleges (among other things) that that the administrative law judge (a human rights referee) is a client of the presenting attorney (Commission Counsel) in a federal court lawsuit that has similiar issues to the ones that the employer is facing. 

Because of that attorney-client relationship and other due process violations, the employer alleges that the five cases it has before the ALJ must be dismissed.

There are lots of details to this lawsuit that can’t be neatly summarized in one short blog post, but several allegations jump out upon a quick review:

  • First, for those employers, that think the CHRO hearing process is quick and cheap, the lawsuit shows that the employer in this case has been dealing with allegations for over five years and many weeks’ worth of hearings in five consolidated cases.
  • Moreover, the employer sought to recuse the human rights referee (Michele Mount) on the grounds that she had applied for an associate position at the employer’s lawfirm (Jackson Lewis LLP) and was denied a position from the employer’s specific counsel (Victoria Woodin Chavey) in January 2012.   Ms. Mount denied the recusal motion, the lawsuit alleges, on the ground that “‘administrative adjudicators”‘are not required to meet the same standards of impartiality as judges.”  
  • On the date that the motion for recusal was denied, the lawsuit also alleges that Ms. Mount “had reviewed the LinkedIn profile of a senior officer of [the employer] whose alleged remarks had been the subject of a motion in limine” that had been denied.  When the employer sought to preclude reliance on information outside the evidence admitted at the hearing, the referee also denied that motion as well.
  • The lawsuit alleges that the CHRO is also pursuing an agenda of allowing attorney’s fees or emotional distress damages despite “no statutory authority to award such damages pursuant to Conn. Gen. Stat. Sec. 46a-58(a).”  It cites to the City of Shelton lawsuit that I covered back in August 2012.

The employer sought an ex-parte injunction, which was denied, but the court did schedule a hearing on the motion shortly.  The CHRO — through the attorney general’s office — has not yet filed a response and just filed an appearance in the matter on Friday.

For employers, the lawsuit should be carefully watched.  Some employers have been suspicious of whether they are able to get a “fair shake” at the CHRO and this lawsuit will certainly bolster those suspicions.  Whether a court will ultimately intervene, however, is an entirely different question that is simply impossible to answer at this early stage. 

Regardless, if employers have any hearings at the CHRO where the agency is seeking emotional distress damages on behalf of a complainant, they should continue to monitor this case and the Shelton case previously mentioned.

(Disclosure: I previously worked with the employer’s counsel, Ms. Chavey, at our former firm, Day, Berry & Howard up to 2005 or so.  I have no involvement, however, in the above proceeding.)

NERAC v. CHRO

Some cases are easy to explain in a short blog post.

This is not one of them.

But a new Connecticut Appellate Court case released today, Grasso v. Connecticut Hospice, Inc. (download here)  has too many nuggets of information to pass up.  It is an example to employers about how cases never truly seem to be over in this litigious climate and that details are important — even in settlement agreements. 

Background Facts

Here are the background facts:

  • Plaintiff employee worked as an employee for the hospice from 1998-2010. 
  • In 2009, she filed two complaints with OSHA regarding some defective chairs.  The administration ordered the hospice to repair the chairs.
  • Later that year, the Plaintiff then filed a whistleblower complaint with OSHA claiming that she had been retaliated against and harassed since the filing of the OSHA complaints. The administration found “reasonable cause” to believe a violation had occurred.
  • Thus in January 2010, the Hospice and Plaintiff entered into a settlement agreement on the whistleblower complaint where she worked as a part time employee in two offices.  The agreement contained a release of future claims for events that occurred prior to the execution of the agreement.
  • End of story, right? Wrong. One week later, the Plaintiff-Employee wrote to the company and alleged that they were breaching the settlement agreement.  Later that year, she quits.
  • You know what happens next, right? She filed a six-count complaint in Superior Court alleging a whistleblower violation, breach of the settlement agreement, breach of the employee handbook and claims of intentional infliction of emotional distress.   The defendant filed a counterclaim asking for declaratory judgment on the release she signed.  The Superior Court granted summary judgment to the employer.

The legal rulings

Over the years, I’ve openly questioned whether the CHRO has been improperly awarding emotional distress damages and attorneys fees in employment discrimination claims.  

Indeed, back in February 2009, I noted “Nearly 15 years ago, the Connecticut Supreme Court came out with a pair of decisions that seemed to put to rest the question of whether the CHRO was authorized to award emotional distress damages to employees who filed suit and prevailed in state law employment discrimination cases.”

And one of my law partners followed that up in October 2010, also discussing the disconnect between what the courts have said, and what the CHRO has been doing. 

Then in June 2011, the Connecticut Appellate Court dropped a footnote in a case that again called into question the CHRO’s practice.

Last week, the City of Shelton filed a federal lawsuit (download here) against the CHRO challenging that practice. 

The suit, which was first reported by the Connecticut Law Tribune this week (subscription needed), claims that the CHRO is improperly denying Shelton (and other defendants) their Due Process Rights because the case will also address federal damages too without a right to a jury trial. 

Interestingly, the case presents a bookend to a Second Circuit case from 2006 (Nestor v. Pratt & Whitney — of which I was involved with earlier in my career), which allowed a plaintiff to proceed in federal court on her Title VII claims after a CHRO public hearing because emotional distress damages and attorneys fees were not available at the CHRO.  

Indeed, in that case, the Second Circuit noted matter of factly that the “CCHRO was not authorized to award, including compensatory damages (presumably in addition to-and not duplicative of-the back pay already received), punitive damages, attorney’s fees, and prejudgment interest.”

The Shelton case is still very early in the process but if the case proceeds to a decision, it could help provide some more clarity to an area that has become quite unclear over the last 15 years.  Employers should certainly watch this case closely.

City of Shelton v. CHRO