Author Archives: James Ingrassia

Second Circuit Rules That HR Director May Be Held Personally Liable Under the FMLA

In March, the Second Circuit issued a significant decision in ruling that a human resources director can be held personally liable under the FMLA.

 In Graziadio v. Culinary Institute of America, the Plaintiff sued her former employer, alleging that she was terminated in violation of the FMLA and the ADA after taking leave to care for her son’s medical issues. Specifically, the Plaintiff requested and was granted FMLA leave to care for her son’s diabetes. On the date of her return to work, her other son broke his leg. As a result, the Plaintiff requested additional leave, including intermittent leave. The Culinary Institute of America (“CIA”) countered that, despite several requests, the Plaintiff failed to provide medical information certifying the need for intermittent leave. When the Plaintiff asked for what specific information was needed, CIA’s Director of Human Resources allegedly refused to provide details and informed the employee that it was her responsibility to provide complete medical information without any guidance from CIA. Eventually, the Plaintiff was terminated for job abandonment.

 The Plaintiff filed suit, claiming retaliation and interference in violation of the FMLA, and discrimination on the basis of her association with her son in violation of the ADA. In addition to naming the CIA as a defendant, she also personally named its Director of Human Resources.

 The District Court granted summary judgment in favor of CIA and the Human Resources Director, which included a finding that the Human Resources Director was not an “employer” under the FMLA. The Second Circuit reversed, finding that the Human Resources Director could be considered an “employer,” and remanded the case for a jury trial.

 In support of its finding, the Second Circuit relied on the “economic realities” test utilized in Fair Labor Standards Act cases. Pursuant to this test, a manager may be considered an employer if they have the power to control the employee. In making this determination, courts consider the totality of the circumstances based on a set of nonexclusive and overlapping factors including whether the employer: (1) has the power to hire and fire the employees; (2) supervises and controls employee work schedules or conditions of employment; (3) determines the rate and method of payment, and (4) maintains employment records.

 Under this test, the Circuit Court found that there was adequate evidence to indicate that the Human Resources Director sufficiently controlled the Plaintiff’s employment to be subject to liability under the FMLA.

 The application of the “economic realities” test in the FMLA context is groundbreaking, and means an increased risk of individual liability for human resource professionals, managers, and supervisory personnel.

Connecticut Federal Court Denies Employer’s Motion for Summary Judgment in Transgender Discrimination Suit

Recently, a Connecticut Federal Court ruled that a transgender discrimination claim based on a failure to hire can proceed under both Title VII and Connecticut’s counterpart, the Connecticut Fair Employment Practices Act (“CFEPA”). Notably, during the pendency of the case, Connecticut passed a law prohibiting discrimination on the basis of gender identity.

The Plaintiff alleged that she was nearly hired as an on-call orthopedic surgeon at the Hospital of Central Connecticut, and relied on the impending finalization of her hiring, but that the hospital declined to hire her because she disclosed her identity as a transgender woman who would begin working after transitioning to presenting as female.

The hospital moved for summary judgment on several grounds, including that Title VII (and the CFEPA at the time of the alleged discrimination) does not prohibit employment discrimination on the basis of transgender identity.

The District Court denied summary judgment. In so doing, it read Title VII’s prohibition of discrimination “because of . . . sex” to include transgender discrimination. Examining the plain language of the statute, and in light of prior Supreme Court precedent acknowledging gender-stereotype discrimination as discrimination “because of sex,” Judge Stefan Underhill concluded that discrimination on the basis of transgender identity is cognizable under Title VII.

NLRB Rules That Employers Cannot Ban Secret Recordings At Work

In Whole Foods Market, Inc. 363 NLRB 87 (2015), the NLRB held that two rules prohibiting recording in the workplace violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”). The work rules at issue are quoted below:

In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company meetings: It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge. Please note that while many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery.

The second rule stated:

It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

Whole Foods advanced several arguments in support of these policies. The vice president testified that it was essential to Whole Foods’ core values that employees felt free to speak openly on issues, regardless of whether they were work related. For example, the vice president testified as to annual “town hall” style meetings, where work issues are discussed. The issue raised at the “town hall” meetings are later presented to management, but the identities of the employees who spoke up are not disclosed. The vice president also testified that the policies were vital to the integrity of store meetings, and other team meetings. In addition, Whole Foods argued that absent its recording prohibitions, its internal appeal process for employment termination decisions would be compromised, and that the policies were essential for the handling of employee requests to the Team Member Emergency Fund, which often involved confidential and personal matters.

The NLRB rejected Whole Foods’ arguments, instead finding that the policies violated Section 8(a)(1) because the policies explicitly restricted activities protected by Section 7 of the NLRA, and would “reasonably chill the employees in the exercise of their Section 7 rights.” Specifically, it found that the policies at issue would reasonably be construed by employees to prohibit Section 7 activity. Relying on Rio All Suites Hotel & Casino, 362 NLRB 190 (2015), in which the NLRB held that, absent overriding employer interest, recording in the workplace is protected by Section 7 if employees are acting for their mutual aid and protection, the NLRB deemed Whole Foods’ recording policies unlawful because they did not differentiate between recordings protected by Section 7 and those which are not. In this regard, the NLRB cited to testimony wherein Whole Foods’ vice president admitted that the rules applied regardless of whether the employee was engaged in protected activity.

The NLRB also distinguished Whole Foods’ reliance on Flagstaff Medical Center, 357 NLRB 65 (2011), wherein it held that an employer policy prohibiting the use of cameras in a hospital did not violate the Act. The NLRB noted that the Flagstaff decision was based on patient privacy interests and the employer’s HIPAA obligations, and therefore employees would reasonably interpret the rule as legitimate means of protecting those interests as opposed to prohibiting protected activity. Finding the present case “plainly distinguishable,” the NLRB stated that Whole Foods’ business justification was based on narrow circumstances which were “not nearly as pervasive or compelling as the patient privacy interest in Flagstaff.”

In light of this decision, employers should review any policies restricting recording by employees to ensure that they are tailored only to the extent necessary to accomplish business objectives.

Connecticut Union Representation Increased in 2015

According to the Federal Bureau of Labor Statistics, 15.7% of Connecticut’s total approximate 1,564,000 workers were represented by a union in 2014. In 2015, while the total number of workers increased to approximately 1,587,000, the percentage of those workers represented by unions jumped to 17.4%. This 1.7% swing translates to an increase of approximately 30,590 workers gaining union representation from 2014 to 2015.

Court Grants Summary Judgment In Favor Of Ryan & Ryan, LLC Client In Federal Discrimination Case

The United States District Court for the District of Connecticut recently granted the summary judgment motion that Ryan & Ryan, LLC filed on behalf of its client, a machine and metal component company in Milford, Connecticut.

In the lawsuit, the Plaintiff alleged that she was subject to discrimination based on her disability, that her employer refused to provide a reasonable accommodation for her disability (wrist and knee injuries), and that she was retaliated against on account of her filing a worker’s compensation claim.

Ryan & Ryan, LLC conducted fact discovery and marshaled support for the defense theories that (a) the Plaintiff failed to demonstrate a prima facie case; (b) there were legitimate non-discriminatory business reasons for altering the plaintiff’s job duties; (c) the employer reasonably accommodated any alleged disability; and (d) the plaintiff failed to establish conduct sufficient to support a claim for intentional infliction of emotional distress.

Thereafter, Ryan & Ryan, LLC submitted a written motion for summary judgment. Judge Victor Bolden granted summary judgment in favor of Ryan & Ryan, LLC’s client as to all of the Plaintiff’s claims.

Second Circuit Upholds NLRB Ruling Against Employer

In Sprain Brook Manor Nursing Home, Ltd., Board Case No. 02-CA-040231 (reported at 361 NLRB No. 54) (2d Cir. decided, November 18, 2015), the Second Circuit Court of Appeals found that substantial evidence supported the Board’s findings and enforced the Board’s order in full.

Specifically, the  Board concluded that Sprain Brook Manor told a Union member that she would have “trouble” if she left the room during her discharge meeting to find a Union representative, finding it “objectively reasonable for [the Union member] to have believed that the threatened consequences were serious and negative and thus sufficiently coercive to violate Section 8(a)(1).”

Next, the Second Circuit upheld the Board’s finding that the Union member’s discharge was retaliatory and motivated by Union hostility in violation of Sections 8(a)(3) and 8(a)(1). In this regard, the  Board found that Sprain Brook Manor terminated the Union member on account of her prior participation in highly visible union activities such as picketing and collective bargaining negotiations.

Finally, the Second Circuit upheld the Board’s determination that Sprain Brook Manor committed four violations of Section 8(a)(5) of the Act by unilaterally rescinding or altering employee benefits. Specifically, it found that Sprain Brook Manor eliminated free lunches, on-site check cashing, free physical examinations and tuberculosis tests required for continued employment, and a monthly payment to employees who declined health insurance, without first bargaining with the Union.

Connecticut Supreme Court Rules Records Of Misconduct By Public School Teachers & Professors Subject to Release Under The Freedom Of Information Act

The Connecticut Supreme Court recently ruled that records of alleged misconduct by teachers at public schools and universities in Connecticut are public records that are subject to release under the Freedom of Information Act.

The case came about by way of a former UConn Health center professor who attempted to bar the release of a report containing allegations that he mistreated staff, on the basis that the documents be deemed evaluations of performance, which are exempt from release.

Taking a narrow view of the performance evaluation exemption, and relying in part on legislative intent of the Freedom of Information Act, the Connecticut Supreme Court disagreed, holding that the Freedom of Information Commission and the lower court were correct in concluding that the exemption applicable to performance evaluations does not apply to records of misconduct.

Second Circuit Rules Facebook “Likes” Protected by The NLRA

The Second Circuit Court Appeals, in Three D, LLC v. NLRB, recently held that a Connecticut sports bar violated the National Labor Relations Act (“NLRA”) when it terminated two employees for due to their commenting on and ‘liking’ a Facebook post critical of the owner of the sports bar. Specifically, one employee ‘liked’ an ex-employee’s status update stating, “[m]aybe someone should do the owners of [Three D] a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…wtf!!!!”; and 2) another employee’s comment on the status referencing the owner, “I owe too. Such an a******.” Three D management found out about the posts and terminated both employees.

The Second Circuit agreed with the NLRB that the comment and the ‘liking’ of the post constituted activity protected under the NLRA because they “clearly disclosed the ongoing labor dispute over income tax withholdings . . . ” Further, the Second Circuit agreed that the employees’ Facebook activity was neither “so disloyal as to lose the protection of the [NLRA]” because [the employees] did not make reference to or disparage Three D’s products or services. In addition, the Second Circuit agreed that the comments were not defamatory because there was no basis to conclude that the statements “were maliciously untrue.”

The Second Circuit rejected Three D’s argument that post was not entitled to protection because it contained obscenities that were viewed by customers, distinguishing the instant scenario from a prior decision that the use of obscenities in the presence of customers in customer areas may not constitute protected activity. Specifically, the Second Circuit reasoned that applying that same standard to a Facebook post that customers may potentially see could lead to a chilling effect on online speech. The Court reasoned that although the Facebook posts contained obscenities, they were “not directed toward customers and did not reflect the employer’s brand,” and therefore were within the protections of the NLRA.

Court Grants Summary Judgment In Favor Of Ryan & Ryan, LLC Client In Federal Discrimination Case

The United States District Court for the District of Connecticut recently granted the summary judgment motion that Ryan & Ryan, LLC filed on behalf of its client, an automobile rental company at Bradley Airport in Hartford.

In the lawsuit, the Plaintiff alleged that he was subject to discrimination and harassment due to his national origin, and that he was subsequently retaliated against on account of his opposition to said discrimination and harassment.

Ryan & Ryan, LLC conducted fact discovery and marshaled support for the defense theories that (a) the Plaintiff failed to demonstrate a prima facie case of discrimination; (b) a number of the alleged discriminatory events were untimely; (c) the Plaintiff failed to demonstrate that the Defendant had knowledge of any opposition to any alleged discrimination of the basis of national origin; (d) the Plaintiff failed to establish a causal connection between any protected activity and his termination of employment; (e) any alleged harassment was not sufficiently severe or pervasive so as to rise to the level of a hostile work environment; and (f) the Defendant promptly undertook measures to combat any harassment to which the Plaintiff had allegedly been subjected.

Thereafter, Ryan & Ryan, LLC submitted a written motion for summary judgment. David A. Ryan, of Ryan & Ryan, LLC presented oral argument in support of the motion. Judge Stefan R. Underhill granted summary judgment in favor of Ryan & Ryan, LLC’s client as to all of the Plaintiff’s claims.