Sometimes, cases that seem like a no-brainer are anything but.  Just ask the Town of Stratford which finally won an appeal to the Connecticut Appellate Court.

The case, Stratford v. American Federation of State, County and Municipal Employees, Council 15 (download here), will be officially released next week. 

Firing for lying? Caution ahead

The case arises from the town’s termination of a police officer.  After suffering an epilectic seizure and striking two parked cars, the officer was requested to go to a physician for a fitness for duty exam after his own physician cleared him for work.  

After the independent medical exam, the employer’s HR director “discovered discrepancies between the report and the medical information supplied to the town by [the employee’s] personal physician.”

The employer then charged the employee with violating police department policy for lying during the independent medical examination and he was subsequently terminated after a hearing.

The case went to arbitration. For those who are skeptical of arbitration, you can imagine what happened next.

The arbitration panel reinstated the police officer concluding that termination was “excessive” and that “lying about his physical and mental condition to doctors that could return (or prevent) [him] to work is understandable because [he] wants [his] job back.”

The employer moved to vacate the arbitration decision. Notably, its rationale was limted to police officers, arguing that Connecticut public policy encourages honesty by police officers. The Superior Court disagreed, but the town found a friendlier audience in its appeal to the Appellate Court. 

We agree with the town that these authorities plainly demonstrate a clear public policy in Connecticut in favor of honest police officers and, consequently, against lying by police officers in connection with their employment.

As a result, the Court overturned the arbitration result and the termination is allowed to stand. (No word yet whether this will be appealed to the Connecticut Supreme Court.)

What does this mean for employers? Two things. Continue Reading Lying to Doctors for Fitness for Duty Exam Can Still Get You Fired… But Only If You’re a Police Officer

The Connecticut Supreme Court, in a decision that will be officially released next week (but released this morning), held that an animal control officer for several towns, was an employee of each of the towns. 

Because of the creation of an employer/employee relationship, her claims that she was injured on the job (she suffered a serious ankle injury) are barred by the Workers’ Compensation Act.

The case, Rettig v. Town of Woodbridge (download here), has important implications as municipalities in Connecticut — looking to share expenses — move to regionalization of services. 

In this case, the employee had already settled a workers compensation claim against the district animal control for $800,000.  Nevertheless, she continued to bring negligence and nuisance claims against the towns as well. 

The employee claimed that the structure of the animal control district meant the towns were trying to insulate themselves from claims. The Court rejected that argument saying that the towns were responsible for all of the expenses of the animal control district, including the employee’s employment. 

As a result, the plaintiff could not pursue claims against the town; her claims were barred by the Workers’ Compensation Act exclusivity provisions. 

The Court concluded that there was no real difference between, say, board of education employees, and regional district employees; both are still employees of the town. 

For towns that continue to look to regionalization of services, this case provides them with strong support for that approach with the understanding that they will not be on the hook for claims by employees, aside from the workers compensation act.

A recent California Appellate decision spells out Reference - Morgue File (public domain)a possible defense for some banks in discrimination cases.  Specifically, the court held that state discrimination laws are preempted by the National Banking Act for certain national bank employees.  For national banks in Connecticut (and indeed in other states), the decision is worth a review to determine if it applies.

In Ramanathan v. Bank of America, No. A113611 (Cal. Ct. App. Sept. 25, 2007), the Appellate Court was asked to review whether a "Vice President" was an "officer" under the National Banking Act, such that his state law claims, including race discrimination claims, would be preempted.  The Court held that because the employee was not actually performing the duties of his "Vice President", he should not be considered an "officer". Therefore, it reversed summary judgment to the bank and remanded for further proceedings.

The Court provided the following background:

Section 24 (Fifth) of the National Bank Act (“NBA”) provides the following powers to a duly organized national banking association: “To elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.” (12 U.S.C.A. § 24 (Fifth).) Courts have long recognized that the power conferred by Section 24 (Fifth) on national banks to dismiss its officers “at pleasure” is protected by the doctrine of preemption from all state law claims filed by their former officers for breach of an employment agreement. …

Courts have also acknowledged the doctrine of preemption protects national banks that dismiss their officers under Section 24 (Fifth) from state law discrimination claims filed by their former officers, although in this regard, courts have differed on whether such preemption is total or partial. …

In our view, the key issue on appeal is whether [the plaintiff] was an “officer” of the Bank under Section 24 (Fifth). … 

[W]e hold that where an employee asserts his or her position as “Vice-President” is not vested with any of the duties or responsibilities normally associated with such a positio … then to obtain summary judgment on preemption grounds under Section 24 (Fifth) the Bank must show the employee is “an officer” of the bank….

The court then followed four broad factors to review whether an employee is an officer.

  1. First, he or she holds an office created by the board of directors and listed in the bank’s bylaws.
  2. Second, he or she is appointed by the board of directors, either directly or pursuant to a delegation of board authority set forth in the bylaws.
  3. Third, he or she has the express legal authority to bind the bank in its transactions with borrowers, depositors, customers, or other third parties by executing contracts or other legal instruments on the bank’s behalf.
  4. Fourth, his or her decision-making authority, however it might be limited by bank rule or policy, relates to fundamental banking operations in such a manner as to affect potentially the public’s trust in the banking institution.

For national banks out there, this case discusses at length a valuable defense for employment claims. But one cautionary note, the preemption of state laws may not apply to federal discrimination claims.  And recall that this applies to national banks, not state banks.

For attorneys who represent indivdiuals, filing a federal discrimination charge (bypassing state law) may be one way to avoid this whole area entirely.  Nevertheless, given the power of preemption, this defense is worth exploring further when representing a national bank.