Earlier this week, it seemed that a bill requiring employers to conduct additional training on sexual harassment matters was a no-brainer to pass the General Assembly.
After all, Senate Bill 132 passed 31-5 in the state Senate and in this #metoo environment (not to mention local elections in the fall), the House looked to
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 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
So last week I provided a recap of a few of the labor & employment law bills still being kicked around the legislature. From talking with a few folks in on the process, here are some other bills to keep an eye on (whether in this original form or as an amendment to an existing
It’s Baseball Season; a time for the Sox to come out and play.
Not the Red Sox — this is, after all, a legal blog (run by a Yankees fan, no less). No, today, we’re talking about Sarbanes-Oxley (SOX) Whistleblower Protection.
Still with us.
My colleague, Clarisse Thomas, has taken a look back at the
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
Since the publication of my post last week on House Bill 6667 on free speech in the workplace, there’s been a lot of followup press coverage. Two that I would highlight include this Patch.com article, and this blog post by Mara Lee at the Hartford Courant.
The CBIA also highlighted the post on
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:
The legal rulings
Reading the headline, I’m sure a few of you rolled your eyes. Dodd-Frank? Sarbanes-Oxley? Those statutes are seen as dull and tedious. But a new federal court decision in Connecticut should start to change that, and it has implications for employers nationwide.
The case is Kramer v. Trans-Lux, which you can download here. It addressed an employer’s motion to dismiss a claim of whistleblower retaliation under the Dodd-Frank Act. Ultimately, the court allowed the employee’s claim to proceed, noting that under the facts alleged, the employee has a viable claim.
What was the case about? According to the applicable complaint (which the court assumed as true for purposes of deciding the motion), the plaintiff was a Vice-President of Human Resources with responsibility for ensuring that the company’s benefit plans were in compliance with applicable law. He claimed that he expressed concern about the makeup and number of people on the pension plan committee and that he did not believe the company was adhering to its pension plan.
He claimed that he contacted the audit committee and, importantly, claimed that he sent a letter to the SEC regarding the company’s failure to submit a 2009 amendment to the board of directors. He then claimed that he was reprimanded and the subject of an investigation. Shortly thereafter, he was stripped of his responsibilities and later terminated.
Continue Reading A New Whistleblower Retaliation Statute Grows Up: Dodd-Frank is the new Sarbanes-Oxley.
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.
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
It’s FINALLY a nice spring day outside in Connecticut (see the picture of the Connecticut River taken this morning) so no need to spend a minute more than necessary to catch up on some other employment law-related items you might have missed during the week: