Labor Relations and Employment Law: Developments in Connecticut in 1990
| Pages | 134 |
| Publication year | 2021 |
65 CBJ 134. Labor Relations and Employment Law: Developments in Connecticut in 1990
In terms of "landmark" labor and employment law cases, 1990 was a relatively quiet year for the Connecticut appellate courts. Aside from Ford v. Blue Cross/Blue Shield of Connecticut, which set the parameters for workers' compensation "retaliation" cases, and Lieberman v. Board of Labor Relations, which temporarily ended seven years of litigation over the destruction of disciplinary records for public employees, most of the appellate courts' decisions merely clarified many of the causes of action established by the courts and the legislature in previous years.
This article briefly examines these and some of the other noteworthy decisions of the Connecticut Supreme Court, Appellate Court, Superior Court and the State Board of Labor Relations. Several of the more prominent pieces of 1990 legislation will also be reviewed.
In 1984, the legislature enacted § 31-290a of the Connecticut General Statutes, which prohibits employers from discharging or discriminating against employees who have filed a claim for workers' compensation benefits or otherwise pursued their rights under Connecticut's Workers' Compensation Act. (fn1). For the first time since the statute's enactment, the Supreme Court addressed how such cases are to be tried and what damages are available in Ford v. Blue Cross/Blue Shield of Connecticut. (fn2) The Court's opinion is instructive both for the legal structure it creates for these actions and for the lessons to be learned from the facts of the case which led a jury to award the plaintiff almost $200,000.
The claimant's workers' compensation claim was based on workplace stress which led to depression and anxiety for which she was out of work for approximately a month. Several months after returning to work, the claimant was confronted about her
unsatisfactory work performance. A transfer to another department and reduced workload did not resolve the situation and she received several disciplinary warnings. Her psychiatrist recommended a transfer from her current supervisor's department and although she was interviewed for several positions within the company, she was not selected for any of them. Eventually, she was terminated. She filed suit alleging that she was discharged in violation of § 31-290a and the jury agreed. The verdict consisted of $95,270 for payment of back wages, $3,703 for loss of employee benefits, $50,000 for other damages such as emotional distress, $49,657.66 for attorneys' fees and $962.50 for other costs.
On appeal, the Supreme Court rejected the company's argument that the evidence was insufficient to justify the jury's verdict. The Court did, however, reverse the verdict and order a new trial because of incorrect instructions to the jury. In so doing, the Court reached a number of legal conclusions regarding cases tried under § 31-290a: 1) these cases are properly tried to a jury; 2) these cases utilize the same allocation of burdens and order or presentation of proof as other claims of employment discrimination; 3) the Court determines whether punitive damages should be awarded; 4) damages for emotional distress are available and are determined by the jury; and 5) reasonable attorneys' fees are also available, despite the fact that the amount of these fees may also be awarded as punitive damages.
Lieberman v. Board of Labor Relations (fn3) constituted the final chapter (at least for now) in the continuing conflict between the State Board of Labor Relations (State Board) and the Freedom of Information Commission (FOIC) regarding the destruction of personnel records of public employees as part of the settlement of disciplinary matters. The central issue addressed by the Court was whether the destruction of public documents is a legal subject of collective bargaining.
The case, now in its seventh year of litigation, originated from a settlement agreement between the Town of East Haven and a police officer. In exchange for his resignation from the police force, the Town agreed to destroy all records, documents and statements pertaining to the officer's alleged violations of the rules and regulations of the department. Essentially, the FOIL ruled that the
Town could not destroy the documents without compliance with several public record retention statutes (fn4) while the State Board of Labor Relations concluded that the destruction of employee discipline records pursuant to collective bargaining agreements, arbitration awards or grievance settlements is a mandatory subject of bargaining and such agreements are legal and enforceable. Such destruction, in the State Board's view, did not conflict with the interests protected by the Freedom of Information Act (FOIA). (fn5)
In reaching its decision, the Court first noted that the FDIC placed an affirmative duty on each state agency and municipality to maintain all public records and allow free public access to these records. Further, Connecticut General Statutes Section 11-8(b) provides a procedure for disposal of public records and documents through the State Library Board or as provided by statutory law. The Court disagreed with the State Board's ruling that once a record is of no use to the employer or employee, the record loses its value. Rather, the Court stated that "the value or usefulness of a public employee's discipline record does not live and die with the employee dispute that gave rise to that record." (fn6)
The decision effectively precludes public employers from agreeing with public employees or their bargaining representatives to destroy disciplinary records as a part of a settlement agreement. Although the records do not have to be kept within the personnel file of the employee, they must be retained by the employer or destroyed only under the procedures established by the State Library Board.
The Supreme Court was asked to interpret certain of Connecticut's unemployment statutes in Latimer v. Administrator. (fn7) The plaintiff was an 88 year-old man who suffered a stroke in March, 1987 and needed personal care assistants (PCAs) on a daily basis in his home. He paid the PCAs an hourly rate and treated them as independent contractors for his federal income tax. However, the plaintiff through his attorney retained a right to discharge the PCAs and the PCAs reported their day-to-day activities to the attorney.
According to § 31-222(a) (1) (B) (ii) of the Connecticut General Statutes, a recipient of services is considered an employer for purposes of Connecticut's unemployment laws and, therefore, must pay unemployment taxes. The plaintiff appealed an assessment of unemployment compensation contributions owed to the unemployment compensation fund.
To determine whether an employer-employee relationship exists, the Court followed the so-called "ABC" test embodied in subdivisions (I), (II) and (III) of § 31-222(a)(1)(B)(ii). Under this test any service provided by an individual is considered employment, unless the recipient of the service has shown that:
(I) such individual has been and will continue to be free from control and direction in connection with the performance of such service both under his contract for the performance of service and in fact; (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed . . . . (fn8)
The Court concluded that an employer-employee relationship existed, as the facts clearly evidenced a right to control the PCAs by the plaintiff and his attorney even though each PCA had signed an agreement that he/she was an independent contractor.
Although a relatively specialized area of labor and employment law, the Supreme Court decided four cases in 1990 involving Connecticut's Heart and Hypertension Act. (fn9) This Act entitles disabled members of municipal police and fire departments to receive compensation and medical care in the same amount and the same manner as that...
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