Category Archives: Labor 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 william.ryan@ryan-ryan.net or by telephone at 203-752-9794.

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.

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.

The Plainfield Board of Education Wins the Right to Privatize Bus Drivers

In a rare outcome at the State Board of Mediation and Arbitration, a panel has issued an award which allowed the Plainfield Board of Education (“Board”) to subcontract all 47 positions in its bus drivers union. The Board was represented by David Ryan of Ryan & Ryan, LLC.

Like many Connecticut municipalities, Plainfield faced severe economic difficulties, including prolonged decline in tax revenue, unfunded pension liabilities, and rising unemployment. In addition, the Board faced difficult budgetary constraints, especially with regard to transportation. As a result, the Board looked into outsourcing its busing function in order to achieve substantial monetary savings. Attorney David Ryan represented the Board in what were contentious negotiations and in the subsequent arbitration before the State Board of Mediation and Arbitration. There were twenty-two issues in dispute. In its statement of last best offer, the Board submitted language granting to the Board the sole and exclusive right to subcontract the work of the bargaining unit.

Attorney Ryan demonstrated a multitude of benefits to outsourcing the Board’s transportation function, including a 10% savings on the $2.6 million budgeted for transportation, as well as an additional 12-14% savings in fuel costs; increased student safety; and a more reliable bus fleet.

The Panel awarded the Board’s language. The award marks one of four subcontracting awards in Connecticut history which granted the right to outsource a bargaining unit in its entirety. Since the award, two other Boards of Education have retained Attorney David Ryan to assist them with subcontracting and privatization issues.

If you have any questions, please contact Attorney David Ryan at (860) 460-7139.

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.

The United States Department of Labor Expands the Definition of ‘Spouses’ in the Family Medical Leave Act

The Department of Labor published its Final Rule defining ‘spouse’ in the Federal Register. The Final Rule expands the definition of ‘spouse’ by focusing on whether individuals are ‘spouses’ based upon the occurrence of a marriage rather than the location of residence, which may not recognize that marriage. As explained in the Federal Register, “[t]he Department is moving from a state of residence rule to a rule based on the jurisdiction where the marriage was entered into (place of celebration) to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live. 79 FR 36448.” The term ‘jurisdiction’ includes the several States as well as other countries so long as the marriage could have been entered into in at least one of the several States. The change was made by the Department “in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.” The Final Rule takes effect on March 27, 2015.

It should be noted that the rule as to ‘common law’ marriages did not change, and that FMLA rights are extended to an employee married by ‘common law’ even though not recognized in the State in which the employee is employed. Thus, while Connecticut does not recognize ‘common law’ marriage arising in Connecticut, it should generally be considered to exist when the ‘common law’ marriage arises lawfully pursuant to the law of one of the several States or an international jurisdiction (so long as the marriage could have been entered into in at least one of the several States).

The general eligibility criteria of FMLA still apply. As before, FMLA generally covers employers with 50 or more employees. In order for an employee to be eligible to take a leave of absence pursuant to FMLA, an employee must have: (1) been employed by a covered employer for at least twelve (12) months; (2) worked the requisite number of hours during that twelve (12) month period prior to the start of the leave of absence; and (3) worked at a location where the employer, within a seventy-five (75) mile radius, employed at least 50 employees.

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