Category Archives: Employment Law

The Importance of Carefully Drafting Work-related Documents


Grammar, punctuation and language are critically important to the proper drafting of all work-related documents, including employment agreements; collective bargaining agreements; workplace policies, procedures and handbooks; settlement agreements; and separation agreements. While we all remember grammar lessons from middle school and beyond, it is important to put those lessons to good use when drafting important documents. The First Circuit Court of Appeals recently issued a stark reminder of the importance of grammar – and the consequences of ignoring grammar rules. In this case, the failure to recognize the important use of punctuation could cost an employer an estimated $10 million for unpaid wages.

Employees sued their employer claiming that they were due overtime wages, while the employer responded that the relevant Maine statute exempted them from the payment of overtime. The statute at issue exempts from overtime:

the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

The exact portion of the statute in question involved the phrase “packing for shipment or distribution of” the enumerated products, and the grammar rule in question is called the Oxford comma (because it derived from the Oxford University Press style guide) or the serial comma. The employees argued that what was exempted was the packing ‘for shipment or distribution’ (and that the comma was required to resolve ambiguity) while the employer argued that what was exempted was the ‘packing for shipment’ or the ‘distribution of’ the enumerated goods (and that the comma was unnecessary because there was no ambiguity). The employees also argued that all other items in the series were verbs ending in ‘ing’ and that the term ‘distribution’ did not fit within the series that was set-off with commas (adding, as a result, to the ambiguity of the statute).

The Circuit Court analyzed two grammar rules and their interpretation on the use of the Oxford comma, both of which can be considered correct depending upon how you were taught or the rules that you follow. The following style guides call for the use of the Oxford comma: The MLA Style Manual; The Chicago Manual of Style; and The US Government Printing Office Style Guide, among others. The following style guides do not call for the use of the Oxford comma, except to reduce ambiguity: The Associated Press Style Guide; The New York Times stylebook; and The Cambridge Guide to English Usage, among others.

The Circuit Court also analyzed the writing guidelines for the Maine legislature, which instructs that ambiguity should be resolved by rewording a series and not through use of the Oxford comma. In fact, the Maine Legislative Drafting Manual specifically instructs legislators to avoid using the Oxford comma when listing a series of items. The guidance instead suggests that laws and rules be worded to avoid ambiguity, stating that “[a]lthough authorities on punctuation may differ, when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.”

The Circuit Court held that the phrase as written was ambiguous and that a comma was necessary to resolve the ambiguity. The absence of the comma created ambiguity, and this ambiguity favored the employees. The Circuit Court ultimately overturned the previous ruling, which granted summary judgment to the employer, and has remanded the matter back to the District Court. However, when the matter returns for a trial, the District Court will be bound to the finding that the statute exempted from overtime the activity of ‘packing’ – for shipping and for distribution – certain goods (and not the ‘packing for shipping’ of certain goods or the ‘distribution’ of those same goods). Because the employees who brought the claim were drivers – who did not pack goods – it is probable that the ambiguity will result in a verdict potentially costing the employer millions of dollars.

Ryan & Ryan, LLC understands the importance of carefully drafting employment agreements, labor agreements and workplace policies. We understand that agreements and policies must be precisely drafted to avoid the unintended consequences of ambiguity, and take great care to address the needs of each client. Our practice is dedicated to the representation of employers throughout Connecticut and the United States in a wide range of industries, including banking, insurance, advertising, health care, construction, manufacturing, technology, hospitality, financial services and professional services. We also represent municipalities, boards of education, educational institutions, associations and other not-for-profit organizations.

If you have questions about drafting or the reviewing of employment documents, please contact William Ryan at or by telephone at 203-752-9794.

State Legislature Passes “Ban the Box” Bill

In early May, the Connecticut legislature passed H.B. 5237, which prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law; or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment. Significantly, the bill does not prohibit requesting arrest, criminal charge, or conviction information beyond the initial employment application. The bill also provides that complaints as to alleged violations are to be filed with the Labor Commissioner.

Employers have until January 1, 2017 to update their application forms to comply with the new law.

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.

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.

“An Act Concerning Employee Online Privacy” Goes Into Effect on October 1, 2015

On October 1, 2015, “An Act Concerning Employee Online Privacy” goes into effect. The Act prohibits employers from:

1) requesting that an employee or job applicant reveal their user name, password, or other way to access the employee or job applicant’s personal online account;

2) requesting or requiring that an employee or applicant authenticate or access a personal online account in the employer’s presence; and/or

3) requiring that an employee or applicant invite their employer or accept an invitation  from the employer to join a group affiliated with any personal online account of the employee or applicant.

The Act defines “Personal online account” as any online account that is used by an employee or applicant exclusively for personal purposes, and unrelated to any business purpose of the employee or applicant’s employer or prospective employer. The Act specifically excludes accounts created, maintained, used, or accessed by an employee or applicant for a business purpose of such employee or applicant’s employer or prospective employer.

In addition, the Act prohibits discriminating against, retaliating against, or otherwise penalizing any employee who exercises their rights under the Act. With regard to applicants, the Act prohibits employers from failing or refusing to hire an applicant as a result of the exercise of their rights under the Act.

Free Speech in the Workplace

Earlier this week, the Connecticut Supreme Court heard argument regarding the extent of free speech protections in the Connecticut workplace. Specifically, the Connecticut Supreme Court will determine whether an employee’s speech occurring during, or arising from, the course of that employee’s job-related duties is protected by the Connecticut Constitution. The United States Supreme Court has held that an employee’s speech occurring during, or arising from, the course of that employee’s job-related duties is not protected by the First Amendment to the United States Constitution. If the Connecticut Supreme Court answers in the affirmative, then it will have determined that the free speech protections in the Connecticut Constitution – at least as to an employee’s speech in the course of that employee’s job-related duties – are broader than the free speech protections in the First Amendment.

The Plaintiff sued his former employer alleging that it retaliated against him, in violation of CGS § 31-51q, by terminating his employment because he expressed his opposition to that employer’s alleged practice of overvaluing its clients’  real estate investments. The Plaintiff alleged that the Defendant’s practice was a matter of public concern, and therefore that his disclosure of that practice constituted speech on a matter of public concern that should be protected by the Connecticut Constitution and CGS § 31-51q, a whistleblower statute.

The Plaintiff’s position asks the Connecticut Supreme Court to find that the United States Supreme Court reasoning in Garcetti v. Ceballos is inapplicable to the Connecticut Constitution. In Garcetti, the United States Supreme Court held that the First Amendment to the United States Constitution does not protect a governmental employee’s speech on matters occurring during, or arising from, the discharge of that employee’s job-related duties. In other words, the United States Supreme Court held that in such a situation a governmental employee is not speaking as a citizen, to whom the First Amendment would presumptively apply, but as an employee, to whom the First Amendment would not apply. The Garcetti decision does not expressly apply to the Connecticut Constitution.

The Plaintiff’s position, therefore, also asks the Connecticut Supreme Court to decide that Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012) does not apply to the Connecticut Constitution. It was in Schumann that the Connecticut Supreme Court held that Garcetti applies to a § 31-51q claim brought against a private employer by an employee who speaks on a matter occurring during, or arising from, the discharge of that employee’s job-related duties. Notably, however, Schumann did not address whether Garcetti should be extended to § 31-51q claims based on the free speech provisions of the Connecticut constitution. The instant case, therefore, seeks to have the Court differentiate between the protections afforded by the First Amendment to the United States Constitution and the protections afforded by the Connecticut Constitution, and to have the Court find that the free speech protections under the Connecticut Constitution are broader.

Please contact William Ryan for more information, or to see how we can help you.

Perceived Disability Claims in Connecticut

Until December 2014, the State of Connecticut allowed disability discrimination claims only when the discriminatory conduct was allegedly perpetrated in response to an actual disability. On December 16, 2014, the Connecticut Supreme Court issued its opinion in Desrosiers v. Diageo North America, Inc., 314 Conn. 773 (Conn. 2014), broadening the disability discrimination claims that may be brought to include claims premised upon whether the employer perceived the employee to have a disability (without regard to whether the employee had an actual disability). The Court reasoned that “the legislature’s overarching intent to ‘stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability, and mental retardation)’; Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 412; coupled with its efforts to be as inclusive as possible in defining the term physical disability, is consistent with interpreting § 46a-60(a)(1) to protect individuals who are perceived to be physically disabled.”

In Desrosiers, the Plaintiff alleged discrimination on the basis of race, color, age, physical disability and perceived physical disability. Ms. Desrosiers’ perceived disability claim asserted that the employer believed that she suffered from a disability after she informed it of her need to undergo a tumor removal surgery, and that it then discriminated against her based upon this belief because it subsequently (and quickly) terminated her employment. The perceived disability claim was dismissed by the trial court because prior precedent required the employee to have an actual disability. In other words, prior precedent confirmed the position that Connecticut did not recognize claims of discrimination premised upon a perceived disability. Notably, all other claims were tried to a jury, which decided in favor of the employer. The Plaintiff appealed only the dismissal of the perceived disability claim to the Court of Appeals, which affirmed the trial court’s dismissal of the claim. However, those decisions were reversed by the Connecticut Supreme Court, which held that perceived disability claims were within the public policy expressed by the Connecticut Fair Employment Practices Act. Consequently, perceived disability claims are now permitted in Connecticut.

Please contact William Ryan for more information, or to see how we can help you.