Labor Relations and Employment Law
| Jurisdiction | Connecticut,United States |
| Publication year | 2021 |
| Citation | Vol. 75 Pg. 108 |
| Pages | 108 |
75 CBJ 108. Labor Relations and Employment Law
BY JOSHUA A. HAWKS-LADDS(fn*)
This article reviews the major 2000 employment-related decisions of the Connecticut Supreme, Appellate, and Superior courts, and the State of Connecticut Board of Labor Relations, as well as important 2000 employment-related legislation. While the Supreme Court's 2000 term could be considered notable for the paucity of employment-related decisions compared to other years, three of its eight employment decisions stand out. In Burnham v. Karl and Gelb,(fn1) the Court limited the tort of wrongful discharge in violation of public policy when a limited (the plaintiff argued that the remedy was not only limited, but also inadequate) statutory remedy exists. In Schoonmaker v. Cummings and Lockwood,(fn2) the court determined that a trial court reviewing an arbitration decision that purportedly violates public policy must utilize a de novo standard of review and, therefore, is not bound to the facts established by the arbitrator. The court decided Groton v. United Steelworkers of America, twice % with opposite results.(fn3) The final decision modified existing evidentiary rules to permit the admission of a plea of nolo contendere to embezzlement to support an employer's decision to terminate an employee % without any other evidence % in a subsequent labor arbitration.
The Appellate Court decided many more employmentrelated cases than the Supreme Court; however, only a few stand out. In Petronella v. Venture Partners,(fn4) the Appellate Court affirmed a verdict against two individual consultants and their partnership for unpaid wages, double damages, and attorneys' fees under Connecticut's wage laws, finding the
consultants to be "employers" under General Statutes section 31-72. In Ezikovich v. Commission on Human Rights and Opportunities,(fn5) the Appellate Court, utilizing Americans with Disabilities Act standards, evaluated what constitutes a reasonable accommodation of a disability under the Connecticut Fair Employment Practices Act.(fn6)
I. SUPREME COURT DECISIONS
Burnham v. Karl and Gelb(fn7) is one of those rare decisions where the court took the opportunity to limit a cause of action, when it could have affirmed the Appellate Court without doing so. Here, the court decided to limit the tort of wrongful discharge when a limited statutory remedy exists even though it had an "alternative basis upon which to affirm the judgment."(fn8) This decision could be viewed as a reaction to the Court's expansive 1997 decision in Parsons v. United Technologies Corp.(fn9) Here, the Court decided to restrict the tort where a statutory remedy exists % albeit one that the dissent feels is inadequate and places too much discretion in the hands of a public agency.(fn10)
Burnham, an office manager in the defendant's dental office, filed an anonymous complaint with the Connecticut State Dental Association ("dental association") claiming that the defendants' practices violated OSHA standards.(fn11) Soon after she filed the complaint, she was terminated. The plaintiff then filed a complaint with the Occupational Safety and Health Administration ("OSHA"), claiming she lost her job in retaliation for the complaint she filed with the dental association. After several months, the department closed the complaint due to a "lack of response" from the plaintiff. Burnham then filed a superior court complaint. Among other claims, she alleged that her employer's conduct constituted a wrongful discharge under Sheets v. Teddy's Frosted Foods, Inc.(fn12)
and its progeny by violating the public policy embodied in Connecticut General Statutes section 31-51m (Connecticut's so-called "whistle blowing" statute) and 29 U.S.C. section 660(c). The trial court granted a summary judgment for the defendants,(fn13) and the Appellate Court affirmed.(fn14)
In affirming, the Supreme Court first determined that the plaintiff could not bring a wrongful discharge claim for an alleged violation of the public policy embodied in Connecticut General Statutes section 31-51m.(fn15) The Court agreed with the Appellate Court's conclusion that the plaintiff had failed to present sufficient evidence to support her claim that her employer had violated the public policy embodied in section 31-51m: a dental association simply does not qualify as a "public body" and the plaintiff did not present any evidence that created a material issue of fact that it was a public body as defined in the statute.(fn16) Therefore, the employer could not have violated the public policy embodied in that law.(fn17)
Rather than stopping there, however, the Court went on to conclude that even if it assumed that the termination violated the public policy embodied in section 31-51m, the statute itself provides an adequate remedy, and therefore, a wrongful discharge tort is precluded.(fn18) Further, even if a dental association is not a "public body," and a failure to file a claim under section 31-51m did not preclude her claim, the Court determined that 29 U.S.C. section 660(c)(2) also provided a remedy for the plaintiff, thereby precluding a wrongful discharge action.(fn19)
In going beyond deciding that the plaintiff's evidence
was inadequate, the Court took the opportunity to circumscribe the tort of wrongful discharge. It held that even though the remedies available under the applicable state and federal laws involved in this case are not equivalent to the remedies available through a tort action, they do not have to be in order to preclude a wrongful discharge claim.(fn20) The tort of wrongful discharge is a "narrow" exception to the general rule of at-will employment that allows an employee to sue for damages when the dismissal was for a "'demonstrably improper reason %, a reason whose impropriety is derived from some important violation of public policy.'"(fn21)
Here, the plaintiff argued that a wrongful discharge claim could lie even when state law and OSHA provide a remedy, because the remedy was claimed to be inadequate to address the plaintiff's harm. The court disagreed, deciding that the remedies provided by section 31-51m and 29 U.S.C. section 660(c) are adequate: "[I]t is not the plaintiff's preference for a particular remedy that determines whether the remedy%is adequate%and an administrative remedy, in order to be adequate, need not comport with the plaintiff's opinion of what a perfect remedy would be."(fn22) Rather, in balancing the narrow public policy exception to the rule of employment at-will, the Court stated that "'sound policy dictates that the statutory remedial scheme be adhered to since we can presume that the legislature would have provided additional relief in the statute if it thought necessary.'"(fn23)
This decision leaves open an important question: when is a statutory remedy sufficiently inadequate to allow a wrongful discharge claim? Employees will obviously argue that it must be answered on a case-by-case basis, while employers will claim that this decision represents a blanket rule that when a statutory remedy is available % no matter how inadequate it might be % a narrow wrongful discharge claim must fail.
The Supreme Court addressed a number of appeals dealing with arbitration awards. In Schoonmaker v. Cummings and Lockwood,(fn24) the Supreme Court decided for the first time that a trial court reviewing an arbitration decision that purportedly violates public policy must utilize a de novo standard of review.
In Schoonmaker, the plaintiff, a former partner in the defendant law firm, was subject to the firm's partnership and employment agreements.(fn25) Under those agreements, he was eligible for post-employment compensation upon his retirement. (fn26) The agreements broadly defined retirement to "include all circumstances (other than by death) under which an individual ceases to be a Partner of the firm."(fn27) Upon reaching age sixty, a retiring partner, no matter the reason for leaving the firm, became eligible to receive post-employment payments, conditioned on the former partner's compliance with the agreements' noncompetition covenants.(fn28) Those covenants provided that any partner who retired before age seventy and continued to practice law within three years of said retirement within a certain geographical area would forfeit the payments.(fn29)
The plaintiff resigned at the age of sixty in order to begin his own practice within Fairfield County % part of the restricted area.(fn30) Despite the fact that the plaintiff satisfied the requirements to receive post-employment benefits under the agreements, the firm refused to pay because he continued to practice law in the restricted area, thereby violating the noncompetition covenants in the agreements.(fn31)
As provided under the agreements, the plaintiff filed for arbitration, claiming he was entitled to the benefits regardless of the fact that he continued to practice law in Fairfield County.(fn32) He argued that the noncompetition provision in the
agreements violated both Rule 5.6 of Connecticut's Rules of Professional Conduct for attorneys, which prohibits noncompetition covenants in most instances, and a public policy that favors a client's ability to choose an attorney(fn33) The arbitrator found that the agreements did not violate the rule or any public policy, and as a result of his violation of the noncompetition covenants, he forfeited his benefits.(fn34)
The parties filed motions to vacate and confirm the arbitration award, respectively. The plaintiff argued that the trial court should review the decision utilizing a de novo standard of review to determine whether the agreement violated public policy.(fn35) In affirming the award, the trial court refused to review the decision de novo...
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