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.

“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.

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.