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SEPTEMBER 19, 2012
Beverly W. Garofalo, Esq.
[email protected]
James F. Shea, Esq.
[email protected]
Jackson|Lewis LLP
Jackson Lewis LLP is dedicated to representing management
exclusively in workplace law and related litigation. With
over 700 attorneys practicing in 49 locations nationwide, the
firm has a national perspective and sensitivity to the
nuances of regional business environments.
Guided by the principle that a positive work environment
results in enhanced morale and increased productivity, the
firm devotes a significant portion of its practice to
management education and preventive programs. This
approach helps limit exposure to grievances, charges and
99,947 total charges filed directly with the EEOC nationally in FY 2011(down from
99,922 in FY 2010)
In FY 2011, EEOC collected $455 million from private employers
262 total charges filed with the EEOC out of CT in FY 2011(down from a high of
295 in FY 2010)
Federal Law &
Decisions of Note
Christopher v. Glaxo SmithKline Beecham, 132 S.Ct 2156
(June 18, 2012) – Pharmaceutical sales reps exempt from
overtime pay
FLSA exempts “outside salesmen” from overtime pay requirement.
The plaintiffs, two pharmaceutical sales representatives (PSR),
argued they do not fit that definition so entitled to overtime pay.
Specifically, claimed they do not make actual “sales” but could only
encourage doctors to prescribe their companies’ products.
Circuit courts split on the issue. Numerous collective actions pending
against pharmaceuticals.
U.S. Supreme Court held that PSR’s are exempt “outside salesmen” under
FLSA because they provide information to physicians in an attempt to
persuade them to prescribe their products.
PSR’s obtaining of a “nonbinding commitment from a physician to prescribe
one of respondent’s drugs” along with the indicia of salesmen was enough to
qualify as an “outside salesmen.”
Indicia included that they were:
hired for sales experience
worked away from office
minimal supervision
rewarded with incentive compensation based upon sales data
Supervisor Liability – Vance v. Ball State University: Whether under
the Title VII “supervisor liability” rule, an employer is vicariously liable
for severe or pervasive workplace harassment by those whom the
employer vests with authority to direct and oversee the victim’s daily
work, or whether only vicariously liable for harassers with power to
“hire, fire, demote, promote, transfer, or discipline” their victim.
Employee Benefit Plans – U.S. Airways v. McCutchen: Whether
ERISA Section 502(a) (3) authorizes courts to use equitable powers
to rewrite contractual language in employee benefits plans and refuse
to order plan participants to reimburse their plan for benefits paid by a
third party, even where the plan’s terms give it an absolute right to full
Townsend v. Benjamin Enterprises, 2012 U.S. App. LEXIS 9441 (2d
Cir. May 9, 2012) – adopting the theory of “proxy liability” in sexual
harassment cases
The plaintiff claimed she was harassed by her supervisor, who
was also vice president of the company and had decision-making
authority over corporate matters. The HR Director claimed she
was terminated in retaliation for conducting an investigation into
the plaintiff’s complaint.
The Court granted summary judgment on the HR Director’s
claim. Plaintiff Townsend’s claims went to trial and the jury found
in her favor.
On appeal, the defendant employer claimed it was entitled to a
“Faragher/Ellerth” affirmative defense and avoid liability since it took effective
remedial measures after the employee complained about the harassment
The Second Circuit affirmed the jury verdict, and in so doing recognized another
exception to the affirmative defense: proxy, or alter ego, liability.
In an issue of first impression, the Second Circuit decided that if a supervisor
was of “sufficiently high rank” in the company, such as a “president, owner,
proprietor, partner, or corporate officer”, s/he qualified as a proxy for the
company and the company is not entitled to affirmatively defend a sexual
harassment claim by demonstrating that it took reasonable steps to correct upon
notice of the issue.
The Second Circuit also affirmed the summary judgment decision, holding that
the investigation must be one by the EEOC to qualify under Title VII.
EEOC v. Fry's Electronics, Inc., (2:10-CV-1562) (9th Cir. Apr. 11, 2012) – Settlement
of sexual harassment and retaliation claim to former employees
Female employee was harassed by asst. store manager, including the sending
of sexually charged texts and inviting her for drinks to his home
Employee reported to her supervisor, who then took her complaint to corporate
Corporate office referred supervisor back down to store manager --- who was
friends with the accused harasser.
Manager never interviewed victim and, instead of disciplining accused
harasser, actually accused the immediate supervisor who reported the
harassment of sexually harassing the employee. Manager then fired
supervisor, and the female employee was terminated shortly thereafter.
EEOC filed suit, alleging sexual harassment and retaliatory conduct.
Fry’s agreed to settle case, and pay out $2.3 million to former employees among the highest amounts ever on a per-claimant basis.
Federal judge also ordered Fry’s to:
offer ongoing sexual harassment training to all employees and management
Post a notice for all its employees regarding the settlement,
Pay $100,000 for withholding information in the investigation of the case and
destroying relevant evidence.
EEOC statement noted that “Fry’s did just about everything wrong that they
possibly could have done.”
Robert v. Board of County Comm’rs of Brown County, KS (11-3092) (10th Cir.
August 29, 2012) – How much leave, beyond FMLA and employer policies, must
employer give a disabled employee as reasonable accommodation under ADA?
Court held there were two (2) limits to bounds of reasonable leave of absence:
Definite Estimate by Employee: Employee must provide employer with
estimated date when s/he can resume essential duties.
Durational: Leave request must assure an employer that employee can perform
essential functions in “near future.”
Plaintiff here failed to provide definite estimate, so any exemption beyond six
months of accommodation was unreasonable. Court cited Eighth Circuit case which
held a six-month leave request was too long to be a reasonable accommodation.
Samper v. Providence St. Vincent Med. Ctr. (10-35811) (9th Cir. Apr. 11, 2012) –
Duty to show up for work trumps ADA accommodations claim
Neonatal intensive care nurse with fibromyalgia exceeded allowed unplanned
absences in attendance policy for 8 years, and was terminated on that basis.
Nurse sued employer under ADA, alleging failure to reasonably accommodate.
9th Circuit upheld granting of summary judgment in employer’s favor, finding
that employer had met its burden of showing that regular attendance was an
essential job function of a NICU nurse.
Court found that attendance policy was attempt to balance employee’s needs
for unplanned absences against its own need to provide patient care. The
employer “was under no obligation to give [the nurse] a free pass for every
unplanned absence,” especially since employer accommodated for years.
Daniel v. Sargent and Lundy (E.D. Ill) (March 2012) – Joint Employment
with Customers
Customer outsourced its janitorial services to vendor.
Customer monitored plaintiff’s daily cleaning performance; could
direct Plaintiff to perform additional tasks; monitored complaints about
plaintiff by customer employees.
After receiving complaint about plaintiff sleeping in a conference
room; customer notified vendor that plaintiff was no longer allowed on
its premises and could find no other position.
Plaintiff sued both customer and vendor for race discrimination.
Although Customer did not pay Plaintiff, based on extent of direction and
control, it could be a common-law employer and allowed case against
Customer to go to a jury.
If joint employment found, Vendor and Customer can be held jointly and
severally liable for each other’s actions.
Vendors should take steps to avoid joint employment by:
Directing and controlling its own workforce through its on-site managers – establishing
wall between Customer managers and Vendor employees.
Managing all HR issues involving its workforce.
Working in cooperation with Customers on personnel issues that may creat liability or
impair relationship.
Federal law does not prohibit use of criminal history in hiring decisions
BUT employer must show that exclusion is “job related and consistent
with business necessity” for position in question
− Guidance discourages use of criminal conduct inquiries on
applications, recommending that such inquiries be addressed later in
the process.
− Develop “Targeted Screen”: Based on nature of crime, time elapsed,
and nature of job.
− Provide for “Individualized assessment:” In order to determine
whether the policy “as applied” to a particular candidate is “job related
and consistent with business necessity.”
Guidance lists possible topics of consideration in an individualized assessment,
all of which generally require a dialogue, including:
Facts and circumstances surrounding the offense
Number of offenses for which individual was convicted
Age at time of conviction or release from prison
Evidence that individual performed the same type of work, post-conviction,
with the same or a different employer, without incidents of criminal conduct
Length and consistency of employment history before and after the offense
Employment, character references, and other information about fitness for
Guidance Lists Best Practices for Employers Who Use Criminal Background
Checks in Hiring Process
- Develop a narrowly tailored written policy and procedure for screening
applicants and employees for criminal conduct.
- Policy should identify essential job requirements and the actual
circumstances under which jobs are performed
- Determine the specific offenses that may demonstrate unfitness for
performing such jobs
- Train managers and hiring officials on how to implement policy consistent
with Title VII
Age Discrimination in Employment Act (“ADEA”) prohibits age discrimination,
including employer practices which have the effect of harming older workers
more than younger workers (“disparate impact”) even if employer’s policy is
neutral on its face.
Defense to ADEA disparate impact claim is now employer’s ability to provide
“Reasonable Factors Other than Age” (RFOA) as reason for its policy
(employer need not prove plaintiff-friendly “business necessity” reason as
Rule applies to all private employers with 20 or more employees, state and
local government employers, employment agencies, and labor organizations.
An employment practice is based on RFOA when it is: “reasonably
designed and administered to achieve a legitimate business purpose”
List of considerations relevant to assessing reasonableness:
Extent to which the factor is related to the employer’s stated business purpose
The extent to which the employer defined the factor accurately and applied the
factor fairly and accurately, including the extent to which managers and supervisors
were given guidance or training about how to apply the factor and avoid
The extent to which the employer limited supervisors’ discretion to assess
employees subjectively, particularly where the criteria that the supervisors were asked
to evaluate are known to be subject to negative age-based stereotypes;
The extent to which the employer assessed the adverse impact of its employment
practice on older workers; and
The degree of the harm to individuals within the protected age group, in terms of
both the extent of injury and the numbers of persons adversely affected, and the extent
to which the employer took steps to reduce the harm, in light of the burden of
undertaking such steps.
EEOC released new and aggressive SEP draft on September 4, 2012.
Stated Plan Priorities:
- Target systemic class-based recruiting and hiring discrimination.
- Protection of immigrant and migrant workers from discrimination.
- Investigation of emerging issues such as: common ADA defenses
invoked by employers, protecting members of LGBT community from
employment discrimination, and pushing employers’ to accommodate
pregnant women.
- Other particular employment practices of interest include “preemployment tests, background screens, and date of birth screens in
online applications”.
- Plan also states that EEOC will focus on “channeling/steering of
individuals into specific job due to their status in a particular group.”
- Link:
“I further agree that the at-will employment relationship cannot be
amended, modified or altered in any way.”
- Invalid: NLRB reasoned that it could be seen to prohibit rights of
employees to engage in concerted activity.
“I understand my employment is ‘at will’” and “I acknowledge that no
oral or written statements or representations regarding my
employment can alter my at-will employment status, except for a
written statement signed by me” and executives.
Removed by employer after NLRB complaint and settlement
Social Media Policies in Employee Handbooks - NLRB focus
on whether social media policy language could “reasonably” be read as
restricting employees’ rights to engage in protected concerted activity.
Examples of unlawful language in NLRB report:
Telling employees that if they are in doubt about whether to post something, “DO NOT
POST” but rather check with company’s attorney or legal department.
A policy that suggests that employees not “pick fights” online and to communicate in a
“professional tone.”
Advising employees that they are “encouraged to resolve concerns about work by
speaking with co-workers, supervisors or managers.”
Telling employees that they can’t publish online “material non-public information” or
“confidential or proprietary” information.
Prohibiting employees from making “disparaging or defamatory comments.”
Banner Health System d/b/a/ Banner Estrella Med. Ctr., 358 NLRB 93 (July 30,
2012): Hospital’s request that employees interviewed in connection with an
internal investigation not discuss the matter with co-workers while the
investigation was ongoing held by NLRB to be violation of National Labor
Relations Act.
NLRB’s position is that even a “mere suggestion” to employees that they not
communicate regarding an internal investigation could interfere in the
exercise of the rights of both union and non-union employees to engage in
“concerted activities” and to discuss terms and conditions of employment.
Bottom line: Supervisors and investigators need to assess the precise need
for secrecy and restrictions on employee discussion before demanding, or
even suggesting, that employees keep information confidential during the
course of an investigation.
NLRB issued a final rule on “Notification of Employee Rights under
National Labor Relations Act” on August 25, 2011: Requires all
employers covered by NLRA to post a notice which:
- Informs employees of right to organize
- Provides contact information for NLRB
- Describes basic enforcement procedures
Posting obligation is stayed pending further Court action stemming
from legal challenges form employers:
- Federal District Court: Found NLRB has authority to require posting
- Appeal pending before D.C. Appeals Court, which heard argument on
September 11, 2012
- District Court of South Carolina: Found NLRB exceeded authority
• Appeal currently pending in Fourth Circuit Court of Appeals
Connecticut Law &
Decisions of Note
Legalization of Medical Marijuana
- Cannot base employment decisions “solely” on the basis
of user or caregiver status
- Use not allowed “in the workplace”
- No restriction on employer’s ability to “prohibit usage
during work hours or to discipline for being under the
influence during work hours”
- CFEPA implications
Legalization of Medical Marijuana
ADA implications: “Current Users of Illegal Drugs” exclusion no
longer applicable?
Exception to exclusion: “so long as drug is taken under supervision of
a licensed health care professional, or other uses authorized by the
Controlled Substances Act or other provisions of federal law.”
James v. City of Costa Mesa, No. 8:10-CV-00402-AG-MLG (9th
Circuit, decided May 21, 2012) provides some insight into how courts
may approach this issue
− A bill allowing government agencies to negotiate labor
agreements on construction projects
− A bill providing collective bargaining rights to certain home
care and daycare providers in programs funded by the
Paid Sick Leave (as of Jan. 1, 2012):
Mandates 40 hours of paid leave per calendar year for covered absences
Prohibits retaliation against employees who request or use sick leave
Posting requirement
What we have learned so far:
The “safe harbor” provision is not so safe
Mandating work before or after a holiday in order to get paid may be alright
Attendance reward programs may be alright
Management training is key
Bills that came close to passing (and are thus reflective of
trends to watch):
More amendments to the Personnel Files Act
Minimum Wage hike
Adding “unemployed” to the list of protected classes
Clarifying that CT FMLA applies to employers with 75 or more
employees in the state. The CT Supreme Court will soon decide this
issue in Velez v. CT Department of Labor (argued January 31, 2012)
Perez-Dickinson v. City of Bridgeport, 304 Conn. 483 (May 1, 2012) –
clarifying the definition of actionable free speech vs. speech in an official
capacity as an employee of a public employer in Connecticut
The plaintiff school principal sued the defendants, the Board of Education
and two public school administrators, for violating C.G.S. Sec. 31-51q
(CT’s “free speech” law) and inflicting emotional distress after she filed 2
reports of suspected child abuse and subsequently was demoted and
allegedly wrongfully accused of abusing students herself.
The jury found in the plaintiff’s favor and awarded her $2 million.
The CT Supreme Court reversed the jury verdict and directed a
verdict in the employer’s favor.
The Court found that a public employee reporting suspected child
abuse is not engaging in protected, actionable free speech but
instead in an official, mandated capacity.
The Court also found that no reasonable juror could have found that
the plaintiff suffered severe emotional distress where there was no
evidence she was in distress for an extended period of time or that
she sought medical treatment for the alleged distress.
Schumann v. Dianon Systems, Inc., 304 Conn. 585 (May 1, 2012)
- clarifying the definition of actionable free speech vs. speech in
an official capacity as an employee of a private employer
- The plaintiff was a laboratory pathologist working for the
defendant. He refused to use certain diagnostic codes for lab
tests that were being performed, claiming that their use would
impact patient safety.
- He brought suit under C.G.S. Sec. 31-51q, claiming his refusal
was protected free speech. The jury awarded him $10 million.
The Court reversed the jury verdict and ordered a new trial.
Employees cannot bring “free speech” claims under CT law when the
allegedly protected speech arises in the course of their job duties. The Court
found that the plaintiff here was engaging in speech that was “part and
parcel” with his job duties and, therefore, the speech was not protected by
The Court reached same conclusion under CT Constitution, finding the
speech unprotected because it was “extraordinarily disruptive” to his
employment – it led him to refuse to perform a significant portion of his job
duties, to the point of being insubordinate, and it strained his relationships
with other employees.
Patino v. Birken Manufacturing Co., 304 Conn. 679 (May 15, 2012) –
expanding hostile work environment claims to include sexual orientation
The plaintiff was employed by the defendant as a machinist. He
claimed he overheard some of his coworkers calling him derogatory
homosexual names. He initiated suit alleging the defendant violated
C.G.S. Sec. 46a-81c – the section of the CFEPA prohibiting
discrimination on the basis of sexual orientation – by failing to prevent
its employees from creating a hostile work environment for him on the
basis of his sexual orientation.
The jury found for the plaintiff and awarded him $94,500 in noneconomic damages.
The Court affirmed the jury verdict. In so doing, the court noted that
discriminatory conduct does not need to be directed at the plaintiff or to his
face to be actionable.
The Court also found that though not apparent on the face of the statute in
question - which states nothing more than a prohibition on discrimination on
the basis of sexual orientation in “the terms, conditions and privileges of
employment” – does provide a basis upon which to bring a “hostile work
environment” claim.
Armshaw v. Greenwich Hospital, 134 Conn. App. 134 (March 6, 2012) –
Reiterating the standard for sustaining wrongful discharge claims
The plaintiff, an at-will nursing employee of defendant hospital, was discharged after
multiple performance warnings when she continued to refuse to follow conduct and
quality of work protocols designed to ensure the safety and proper care of hospital
She sued under a theory of wrongful discharge, claiming in essence that she was
discharged because she consistently advocated and acted to support proper critical
patient care in emergency situations.
The CT appellate court affirmed the trial court’s grant of summary judgment for the
defendant, holding that to sustain a common law wrongful discharge claim, the
employee must show the discharge violated some important public policy that had
been highlighted by the legislature, and the plaintiff here failed to do so.
Young v. City of Bridgeport, 135 Conn. App. 699 (May 22, 2012) – clarifying that
independent contractors cannot assert claims under C.G.S. Secs. 31-51q and
The plaintiff was a city sheriff, elected to hold office for a term of 2 years, and had held
the position for 18. He had no affirmative duties, no scheduled work hours and no
office space in a city building. His role was to serve process on behalf of the city,
something he also did for private individuals and entities.
He brought suit alleging violation of CT’s statutory protections against employers
retaliating against employees for engaging in protected speech and for whistleblowing.
The plaintiff alleged the city had terminated all of his employment duties and had
stopped giving him process to serve after he reported suspected violations by the city
of state laws and municipal ordinances.
The trial court directed a verdict in the city’s favor.
The Appellate Court affirmed, holding that the plaintiff was an independent
contractor, not an employee and, as such, did not have standing to bring
claims under either C.G.S. Sec. 31-51q or 31-51m as he was not an
“employee” of the city, but rather was an independent contractor.
The Court reiterated that the “employee-control” test set forth in the 2004
Nationwide Mutual Ins. Co. v. Allen case still applied when determining
whether an individual is an “employee” under CT law.
Eagen v. CHRO, 135 Conn. App. 563 (May 22, 2012) – post-employment actions
may be actionable
The plaintiff, an attorney for UCONN, appealed to the trial court from a decision made
by the defendant CHRO. The decision in issue related to the termination of
employment of a UCONN veterinarian. The plaintiff offered to supervise the packing
and mailing of this veterinarian’s belongings to his home after termination.
Over 1 month post-termination, the plaintiff sent the veterinarian 24 boxes of his
personal items. 1 month later, the veterinarian filed a whistleblower retaliation claim at
the CHRO alleging that the plaintiff’s failure to return all of his personal belonging was
in retaliation for whistleblower activities in which he had engaged while employed.
3 weeks after this filing, the plaintiff had an additional 11 boxes delivered, then 1 month
later, delivered still more items to him.
The CHRO found in favor of the veterinarian and awarded him $5,000 in
damages for emotional distress for the plaintiff’s actions in delaying
transmission of his belongings to him. On appeal to the Superior Court, this
holding was upheld, finding that the behavior in question could be viewed as
an “employment action” under applicable law.
Tomick v. UPS, Inc., 135 Conn. App. 589 (May 22, 2012) – Clarifying “reasonable
suspicion” under the CT Drug Testing statute and when “qualified individual”
assessment are made under the ADA
Among the issues decided by the Court involved whether an employee has a
cause of action under the CT drug testing statute where s/he never actually
takes a drug test (is just asked to do so by the employer but refuses). The
Court concluded that the mere fact of making the request was sufficient to
give rise to a claim under this law.
The Court also assessed when the analysis of whether an employee is a
“qualified individual” within the meaning of the CFEPA disability discrimination
prohibition is made, and found that occurred when the adverse employment
action occurred, not the date when the termination process began.
Desrosiers v. Diageo North America, 137 Conn. App. 446 (August 14, 2012) –
Rejecting “perceived disability” cause of action in Connecticut
Federal law prohibits an employer from taking adverse action against an
employee on the basis of a perception of the employee as being disabled, i.e.
a “perceived disability.”
The plaintiff was terminated the day after she requested time off for surgery.
The company’s stated reason was for inadequate performance reviews. She
brought suit on a theory the company discriminated on the basis of her actual
physical disability and/or a perceived disability.
The trial court granted summary judgment to the employer on the plaintiff’s
perceived disability claim, holding that “a cause of action based on a
perceived disability is not a legally recognized action in Connecticut.”
The Appellate Court affirmed, holding that Connecticut’s anti-discrimination
laws do not cover a “perceived disability” claim by an employee.
The court found that Connecticut law “protects those who are physically
disabled, and no language is used to support an interpretation that it also
protects those who are regarded as physically disabled.”

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