In this Summer 2012 Issue:
Last year, the General Assembly passed a new law that made significant changes to the Connecticut Commission on Human Rights and Opportunities (CHRO) process to allow the agency to do more with its decreased resources. Those changes have been largely under-reported, but employers are now seeing their impact. For example, under the so-called Merit Assessment Review, cases are now more unlikely to be dismissed early on and are more likely to go through a serious mediation procedure.
Perhaps the most significant change is that a party - particularly the employee (or the employee's attorney) - can seek an expedited legal review of the case that could send the case directly to public hearing. In other words, after a case has passed an initial Merit Assessment Review, the case could go to the public hearing stage without an investigation.
We are now starting to see cases using these new procedures.
In such a case, after a mediation is held and after a party has made a request, the CHRO has sent a letter notifying the parties that the case has been referred. It notifies the parties that the Commission itself may (or may not) be involved in the public hearing. Previously, the Commission would provide an attorney who would, in essence, act for the Complainant. (Recall that these public hearings are overseen by Human Rights Referees). Under the new procedures, the CHRO has discretion over whether or not to be involved.
As an example, one letter from the CHRO provides: "Your case is being sent directly to public hearing. Because the Complainant or the Complainant's attorney has made this request, the Complainant or the Complainant's attorney will be responsible for putting on the case at public hearing. The Commission may participate in the hearing at the discretion of the Commission attorney assigned to the case. A letter deferring prosecution is enclosed. You will receive a notice from the Office of Public Hearings scheduling the hearing conference."
In a companion letter, the CHRO reemphasizes the point that the Complainant is typically on his or her own. "While the Commission will appear at the hearing conference and may make whatever arguments or take whatever action it deems appropriate to protect the public interest, the Complainant and Attorney [for the Complainant] will be responsible to present the entire case in support of the complaint, unless the Commission later determines otherwise."
The public hearing has limited discovery (no depositions) and is typically more expedited than a trial. Thus, employers should take these hearings seriously and consider engaging counsel. Appeal rights from these hearings are limited, so, to the extent that employers handled the CHRO procedures by themselves, these new rules should make employers think twice about doing so.
Notably, the CHRO has also started to send materials only via electronic mail. This new procedure makes it critical that employers designate a knowledgeable person to receive such communications.
The U.S. Department of Labor has issued a new guide to the (federal) Family and Medical Leave Act (FMLA). Entitled “Need Time?”, the guide was issued late in June and is aimed at employees. Employers are also likely to find it useful.
In straightforward terms, the guide answers many common questions about FMLA. It has a clear explanation of what defines a “serious health condition.” Importantly, in several places the guide reminds employees of their obligations to follow employer policies and to communicate with their employer about the need for FMLA leave.
“Need Time? The Employee’s Guide to the Family and Medical Leave Act” may be downloaded as a pdf document from the U.S. Department of Labor website: http://www.dol.gov/whd/fmla/employeeguide.htm.
The federal FMLA applies to private employers with at least 50 employees. In Connecticut, employers with 75 or more employees must also comply with the Connecticut Family and Medical Leave Act, which has requirements that are different from the federal statute. A useful guide to some of the differences between the two statutes may be found on the Connecticut Department of Labor website at http://www.ctdol.state.ct.us/wgwkstnd/fmla/FMLA-Guidance.pdf.
Most employers and all human resources managers in Connecticut know the value of a clear statement to employees that employment is “at will.” Such a statement protects the employer from a breach of contract claim by a dissatisfied terminated employee. A recent decision by the Connecticut Appellate Court illustrates the scope of the risk of an employment contract claim, and shows that an employer may be held liable in a breach of contract lawsuit even when the employer did not intend to make a contract at all.
In Norma Cruz v. Visual Perceptions, LLC, an employee was hired as a manager in February, 2006. The employer created a document which described the rate of compensation, as well as commission opportunities, benefits and work schedule. (Such a written statement of terms of compensation is actually required under Connecticut Wage and Hour Law, Conn. Gen. Stat. §31-71f.) As early as April, 2006, the employee sought a raise in pay, resulting in a second document with revised terms of compensation.
Then in February, 2007, the employee again sought a pay increase. Apparently fearing that these efforts would continue, the employer created a third document (which unfortunately was labeled “Contract of Employment”) stating that it would cover a 36-month period from April, 2007, to March, 2010, and describing compensation for that period. When the employee was fired in 2008, she sued, claiming breach of an employment contract with a fixed term of three years.
Oddly, both the employer and the employee testified that they thought the purpose of their document was to settle the question of salary for the next three years, not to be a contract that guaranteed employment for a three-year period. This is consistent with court cases holding that compensation expressed in terms of an annual salary does not create a contract for employment of one year.
However, there is a legal principle that the intent of the parties in making a contract is to be found in the words they actually wrote, rather than what they say they had in mind. Thus a court only interprets a contract if it is ambiguous; if the meaning is clear from the text, the parties are stuck with it. Here, the court decided that the parties had simply written a contract agreeing to employment for a period of three years. If it sounds like the court made the contract rather than the employer and the employee, that is essentially what happened.
Fortunately for the employer, under another principle of Connecticut employment law, a contract for a specific duration is not the same thing as a guarantee. Rather, it is implicit even in contracts for a defined period of time that the employee can be fired for cause. That is, if the employee performs so poorly or otherwise misbehaves so that she is not filling her obligations as a good and faithful employee, the employer can terminate employment. This principle does not eliminate the risk of a lawsuit for breach of employment contract, it simply gives the employer the opportunity to defend the claim by proving that the employee gave cause for termination.
So there are really two steps in preserving the at will relationship. By all means have a contract disclaimer and a statement that employment is at will, but also try to refrain from any statements or writings that might inadvertently create an employment contract.
Pullman & Comley is pleased to continue its series on Labor & Employment Law with two complimentary half-day programs that offer Connecticut businesses practical, real world tactics to address the many labor and employment law issues they face today.
Topics to be discussed include: social media and privacy, absent worker strategies and free speech in the workplace in addition to key legislative developments and court decisions regarding labor and employment law. This program seeks to cut the complications businesses face and offer insights and solutions into how the law can help, while providing practical suggestions for implementing necessary changes.
The events will take place on October 4th at The Hartford Club in downtown Hartford and on October 18th at the Doubletree in Norwalk. For more information please email firstname.lastname@example.org
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