Non-Compete Agreements (Restrictive Covenants) for Practicing Physicians in New York and Connecticut: Just How Enforceable Are They?

A restrictive covenant (often referred to as a non-compete clause or a covenant not to compete) is a clause contained in an employment contract through which the employee agrees not to pursue a similar profession or trade, placing them in competition with the employer, after the employment relationship is terminated.  This clause or covenant is often put in place to prevent a former employee from using information he or she obtained through the course of their employment to gain a competitive advantage over their former employer.  

If you are currently employed as a physician and your employment agreement contains a provision similar to the type of covenant described above, you probably want to understand how a Court will determine the validity of such a clause in order to understand how such a clause will impact your future as a physician after the termination of your current employment contract, joinder and/or partnership agreement.

Below is a summary on the way Courts are handling the non-compete clauses included in the employment contracts of physicians employed in Connecticut and New York.  This review and analysis consists of two separate, but related parts.  First, a Court must determine whether the non-compete clause is valid, and therefore enforceable.  Second, if a clause is valid, as a way to prevent you from pursuing your newly found employment opportunity, your employer may ask the Court to grant a temporary and/or permanent injunction.  The second section of this analysis focuses on whether a Court will grant your employer’s request for a temporary or permanent injunction.  If granted, this injunction would prevent you from obtaining employment in any manner which violates the restrictive covenant. 

The Validity and Enforceability of Physician Non-Compete Clauses in New York and Connecticut

The laws governing the validity and enforceability of non-compete clauses in New York and Connecticut are fairly similar.  In both states Courts seek to determine if the restraints provided for under the non-compete clause are reasonable.  In making that determination, Courts consider the following factors:  (1) the employer’s need to protect legitimate business interests (such as trade secrets and customer lists), (2) the employee’s need to earn a living and support his or her family, (3) the public’s need to secure the employee’s presence in the labor pool, and (4) the amount of time, and the area restricted under the covenant.

Employer’s Need to Protect Legitimate Business Interests: 

In general, Courts have found an employer to have a legitimate business interest in situations where the employer needs to protect against the former employee’s use of a trade secret or a highly valuable patient list.  If the employer is not able to protect the employee from using such things in the course of their future employment, the employer’s business will noticeably suffer.  This is what the Courts will try and protect against through the enforcement of the restrictive covenant.  In Connecticut, however, it is important to note that it is not the employer who needs to prove a legitimate business interest, but instead, the employee who needs to disprove the employer’s need to protect legitimate business interests through enforcement of the non-compete clause.

Employee’s Need to Earn a Living:  When considering the impact of the enforcement of a non-compete clause on the earning potential of a former employee, Courts will try to determine if enforcement of a restrictive covenant will unreasonably prevent the employee from earning a living, and therefore being able to support themselves.  Significantly, Courts noted, however, that this does not mean the operation of a covenant not to compete must maintain a former employee’s income at present levels in order to be found reasonable.  It is the burden of the former employee to prove that if the covenant is enforced it will substantially damage his or her ability to earn a living.

The Public’s Need to Secure Employee’s Services:  The principal objection to restrictive covenants in physician employment contracts is that they can potentially interfere with continuity of care for a patient.  Therefore, a Court is more reluctant to enforce a covenant if the covenant would impact the care of the former employee’s current patients.  There are however, many covenants that are drafted to allow a physician to continue providing post-operative, or other limited care, for current patients.  If a restrictive covenant will allow for such continuity of care, the Court is more likely to find its restrictions reasonable, and enforceable. 

Time and Area Restrictions:  The amount of time, and the area restricted under non-compete clauses varies greatly between different employment agreements, depending on the type of services involved and the location of the parties.  In making a finding, Courts will look to whether or not the time and area restrictions are reasonable.  Recent decisions held clauses limiting the former employee for up to a period of five years within a thirty mile radius reasonable.  Reasonableness depends, however, on the specific circumstances of the case. 

Other Considerations:  Courts also consider the bargaining power between the parties to the employment contract in determining the reasonableness of a restrictive covenant.  Some Courts may be more reluctant to find a restrictive covenant unenforceable where the employment agreement is created between partners to a practice, rather then when the agreement is held between an employer and an employee.  The Courts have explained this discrepancy on the parties’ ability to negotiate the terms of the employment agreement.  A partner will most likely have a greater ability to negotiate the terms of the contract, than will an employee.   

Injunctive Relief

 

An injunction is an equitable remedy in the form of a Court order, whereby a party is required to do, or to refrain from doing, certain acts. In this case, those certain acts would include being employed in a way which would violate the restrictive covenant.  When considering an employer’s request for a temporary or permanent injunction, the Courts in New York and Connecticut consider whether the employer has demonstrated that he or she would suffer irreparable injury in the absence of an injunction, that he or she is likely to prevail on the merits of the case, and that the balancing of equities favors the issuance of an injunction. 

Irreparable Harm:  In considering the irreparable harm an employer may suffer, a Court will rely on factors such as the employer’s revenues, patient flow and the employer’s ability to maintain their business on a long-term basis.  Such calculations will consider only the employer’s losses, and not the former employee’s gains.
Balancing of the Equities:  When balancing the equities, Courts consider the following: the effect the injunctive relief will have on the employer’s business, the effect that the injunctive relief will have on the employee’s earning potential, and the effect that an injunction will have on the public.  In determining the effect on the employer, the Court analyzes how the employer will benefit from the injunctive relief.  As for the effect on the employee, the Court considers the options available to the employee if the relief is granted.  If the employee can reasonably continue to earn a living, Courts are more willing to grant the employer’s injunctive relief request.  In considering the public interest, Courts look at factors such as the hardship the injunctive relief would have on a doctor’s existing patients and the doctor’s contributions to the surrounding community that would be limited by the granting of injunctive relief. 

Connecticut – Adequate Remedy at Law:  In addition to the above factors, Connecticut Courts consider whether the employer has no other adequate remedy at law available to them.  Although some Connecticut Courts have held that the lack of an adequate remedy at law is presumed to be established where a party seeks to enforce a covenant not to compete, not all Courts have relied on that.  The Courts that do rely on that theory, however, state that it is only a rebuttable presumption; meaning that it may be possible for the employee to convince the Court that this presumption does not apply in a certain situation.  The Connecticut Courts that have not followed that presumption have held the presumption to apply only in the limited instances where the calculation of damages may be difficult or impossible and therefore limits the employer’s potential remedies.  These Courts have found that employers have an adequate remedy at law where they are in a position to bring a breach of contract claim, meaning that the employer is able to calculate the damages suffered as a result of the former employee’s actions. 
Physician Restrictive Covenant Cases in Connecticut   

As a way of bringing together the above information, and to demonstrate the effects of certain factual situations on an outcome, the following illustrations provide examples of restrictive covenant cases heard and decided by the Connecticut Courts in recent years.  

Restrictive covenant valid, Injunction denied:

Opticare, P.C. v. Zimmerman, 2008 Conn. Super. LEXIS 759 (2008).

In this Connecticut case, a doctor entered into an employment contract with physician practice group which provided, among other things, that in the event the doctor voluntarily left the practice but intended to continue practicing medicine he would be prohibited from practicing the type of medicine he practiced with the group, within a specific area for a period of 18 months.  The restricted area was in the shape of a hexagon and ranged from between fifteen to thirty miles from the locations in which the doctor had been employed with the practice group.

After 22 years of employment, the doctor left the physician practice group and opened his own office, practicing the same kind of medicine as he had been, before the 18 month time period had passed and less than four miles away from his former employer’s office.  Upon learning of the physician’s new practice, the practice group asked the Court to grant injunctive relief to prohibit the physician from continuing his practice in violation of the restrictive covenant. 

In denying the group’s request, the Court determined that although the restrictive covenant was valid, the group did not establish a showing of irreparable harm.  The practice group was still in business, and it had failed to demonstrate that the practice was permanently harmed in any way.  The Court also determined that the employer had available to them an adequate remedy at law because the employer had the ability to calculate the damages incurred as a result of the physician’s actions.  Finally, the Court found that the equities balanced in favor of the former employee, due in part to the fact that the doctor frequently donated his time to assisting uninsured premature infants at local hospitals and that an injunction would place an undue hardship on his current patients. 

Restrictive covenant valid, Injunction granted: 

Fairfield County Bariatrics v. Ehrlich, 2010 Conn. Super. LEXIS 568 (2010).

The case of Fairfield County Bariatrics v. Ehrlich, is a case in which the restrictive covenant was deemed valid and injunctive relief was granted to the employer.  It involved a situation where a physician developed a very prominent practice performing bariatric surgeries for the physician practice group with whom he was employed and was a one-third shareholder.   

As part of his employment with the physician practice group, the physician signed an employment agreement which, among other things, provided that for a period of two years following the termination of his employment, the physician could not practice medicine or general surgery within 15 miles of the practice’s office, and that he could not practice bariatric surgery in five local hospitals. 

Following his termination from the group, the physician retrieved a list of the patients he had treated during his employment with the physician practice group.  The physician contacted each patient and informed them that he was no longer associated with the group and directed them to contact him at his new office.  

The physician’s new office was located within the restricted area provided for in the employment agreement.  Additionally, the physician continued to perform bariatric surgeries at the hospitals restricted under the restrictive covenant in the employment agreement. 

The Court held the restrictive covenant valid, finding the length of time and area of coverage to be within reasonable limitations.  Furthermore, the Court determined that the physician practice group had legitimate business interests that needed the protection of the restrictive covenant.  In that finding the Court relied on the practice’s fear that because of the extremely large amount of bariatric surgeries the physician performed on a yearly basis, if the physician were allowed to continue practicing bariatric surgeries at the hospitals within the county, it would drastically dilute the number of surgeries performed at the hospitals in which the practice performed those surgeries.  Additionally, the Court determined that the physician’s ability to earn an income was not so restricted by the covenant as to make it unreasonable.  Under the covenant, the physician was able to perform surgeries throughout the majority of the county in which he resided, and was able to continue providing post-operative care for his current patients.  Finally, the Court determined that the public’s need to secure the physician’s services would only be slightly impacted and that because the physician was still able to provide post-operative care, the public’s need did not render this covenant invalid. 

Continuing in their decision, the Court granted the practice’s request for injunctive relief as the Court believed the practice was likely to prevail at a trial.  In its decision the Court found the physician practice group would suffer irreparable harm if injunctive relief were not granted as it was able to demonstrate the physician had the ability to drastically dilute the number of available surgeries.  As for the balance of equities, the Court determined the harm the physician practice group could potentially suffer if their request was denied was much greater than the harm the physician would suffer if the relief was granted. 
Restrictive covenant invalid, Injunction denied: 

Merryfield Animal Hosp. v. Mackay, 2002 Conn. Super. LEXIS 2628 (2002).

In this Connecticut case, the Court determined that the restrictive covenant included in the employment agreement was invalid.  Consequently, the Court denied the employer’s request for injunctive relief.  The doctor in this case had been employed under an employment agreement that contained a non-compete provision.  This provision restricted the employee from owning, managing, operating, controlling, participating in, or being employed or in any way connected with an organization providing the services provided by the employer for a period of two years after his termination, and within a seven mile radius from the employer’s locations. 

Shortly after his termination the physician obtained employment with a different practice group performing the same services he had been for his former employer. His new employment was located within the seven mile radius restricted under the restrictive covenant.  The employer turned to the Court, seeking a temporary injunction which would order the doctor to comply with the specific provisions of the restrictive covenant.

Although the Court found the time and area restrictions provided for in the restrictive covenant reasonable, it ultimately determined that the covenant was unenforceable and therefore denied the employer’s request.  In doing so the Court relied exclusively on its finding that the restriction under the covenant was overly broad and not reasonably necessary for the fair protection of the group’s business.  If enforced, the language of the covenant would have prevented the doctor, not only from his new position, but even from employment that could in no way bring him in competition with his former employer.         Finding the expansive limitations provided for by the language of the restrictive covenant unreasonable, the Court determined the covenant unenforceable, and consequently denied the employer’s request for injunctive relief. 

Restrictive covenant invalid, Injunction denied: 

Merryfield Animal Hosp. v. Mackay, 2002 Conn. Super. LEXIS 4099 (2002).

A Connecticut Court determined the restrictive covenant at question in this case to be overly protective of the employer’s interest, and therefore determined that the covenant was invalid.  Pursuant to the terms of that clause the doctor in this case agreed he would not involve himself with or be employed by a business providing the professional services he provided for the practice within a seven-mile radius of the practice, and for two years after his employment contract terminated. 

After providing written notice of his termination, the doctor accepted a position with another practice, located slightly less than seven miles from his former employer’s office.  During the course of his new employment the doctor did not solicit any of his former employer’s patients and even rejected any patients he knew to have been patients of his old practice.  The Court, therefore found no evidence of a legitimate business interest that the practice needed to protect.  Furthermore, the practice was unable to demonstrate it suffered or would suffer any loss as a result of the doctor’s actions.  Consequently, the Court determined the restrictive covenant was unenforceable and denied the practice’s request for injunctive relief. 

  

Physician Restrictive Covenant Cases in New York

As a way of bringing together the above information, and to demonstrate the effects of certain factual situations on an outcome, the following illustrations provide examples of restrictive covenant cases heard and decided by New York Courts.  

Restrictive covenant valid, Injunction denied:

Millet v. Slocum, 4 A.D.2d 528 (1957).

Following the termination of his employment as a partner in a physician partnership, the physician in this case brought an action before the Court asking the Court to render the restrictive covenant contained in his employment agreement unenforceable.  Under the terms of his employment agreement, following his termination, the physician was barred from practicing medicine or surgery within a 25 mile radius from the city in which the partnership was located for a two-year period.  The partnership, in response, asked the Court for injunctive relief which would prevent the physician from practicing in contravention of the employment agreement. 

Before working with this partnership, the physician never worked as a physician in New York State.  During the time the physician served the partnership he developed a professional reputation for competence and earned the trust of the partnership’s patients.  As a result, the Court concluded that if the physician were able to directly compete with the partnership, the remaining partners would suffer a loss of patients and good will.  Considering next, the physician’s ability to earn a living, the Court decided that the hardship imposed on the physician was not, when balanced with the needs of the partnership, sufficient to invalidate the covenant.  The physician had the ability to practice medicine and surgery anywhere outside of the 25 mile radius, and the Court noted that since he had been able to come to New York and build such a strong professional reputation when beginning his work with the practice, it would not be so unreasonable for him to do so again.  The Court therefore, concluded that the restrictive covenant was valid and enforceable. 

Despite the validity of the restrictive covenant, the Court denied the partnership’s request for injunctive relief based on its finding that the partnership breached the partnership agreement when it expelled the physician from the partnership without justification, as was required pursuant to the agreement.  The Court held the partnership’s actions constituted such a breach of the partnership agreement as to not entitle the partnership to the injunctive relief requested. 

Restrictive covenant valid, Injunction granted: 

Gelder Medical Group v. Webber, 41 N.Y.2d 680 (1977).

After a few years of employment as a partner to a partnership practice, the physician in this case was expelled pursuant to the partnership agreement.  Under the terms of the partnership agreement, the physician had agreed not to practice his profession within a radius of 30 miles of the village in which the partnership was located for a period of five years.  Disregarding the restrictive covenant, the physician resumed his surgical practice as a single practitioner, practicing in the same village as the partnership and within two months of his expulsion.  The partnership, in an effort to protect its practice, asked the Court to enforce the restrictive covenant and grant injunctive relief. 

The Court ultimately determined this restrictive covenant was valid.  Its decision was due, in part, to the small size of the village in which the partnership was located and had built its practice.  In such a small area, the threat of competition from the physician, if allowed, could result in serious damage to the partnership’s number of patients and its revenues.  The Court also considered the impact that the covenant could have on the physician’s ability to earn a living and found that throughout the course of his career, this physician had repeatedly changed professional associations within a range of thousands of miles.  Therefore, the Court did not credit the physician’s argument that relocating his practice would unreasonably impair his ability to earn an income.  Finally, the Court considered the interest of the public and noted the public would not be affected by the enforcement of this covenant, as they could easily obtain the services provided by the physician elsewhere.  Granting the employer’s injunction, the Court noted that the damage the partnership would suffer without injunctive relief, when balanced with the losses the physician may face if the covenant were enforced, justified the enforcement of this restrictive covenant. 

Restrictive covenant invalid, Injunction denied:

Michael I. Weintraub, M. D., P. C. v. Schwartz, 131 A.D.2d 663 (1987). 

The physician in this case had been employed by a certain professional practice group for a period of two years at the time his employment contract was terminated.  Pursuant to the terms of his employment agreement, the physician was restricted from engaging in the type of services he performed for the physician practice group within a five mile radius from the professional practice’s office, and within a five mile radius of any hospital at which he had worked at on behalf of the professional practice for a period of one year after the effective date of his termination.  Before that one-year period lapsed the physician established an office to perform the restricted type of services within five miles from a hospital where the physician worked on the group’s behalf.  The professional group initiated an action against the physician to enforce the restrictive covenant and prevent him from breaching his employment agreement. 

In reviewing the restrictive covenant, the Court determined the provision restricting the physician from practicing within five miles of the group’s offices was reasonable and enforceable.  The Court, however, found the portion of the covenant prohibiting the physician from practicing within a five-mile radius of any hospital where he worked on the group’s behalf was overly broad and oppressive, and thus unenforceable.  If the physician had been required to follow the terms of the covenant it would essentially prohibit him from practicing at or near any of the major hospitals in the two nearest counties.  The Court furthered noted an absence of evidence indicating the group’s business related concerns were implicated in any manner through the physician’s breach of the restrictive covenant.  Consequently, the Court denied the group’s motion for injunctive relief.

Restrictive Covenant Severed:

Karpinski v. Ingrasci, 28 N.Y.2d 45 (1971).

In the following case the Court held even though the restrictive covenant contained an unreasonable provision, the remaining restrictions provided for under the agreement would be enforceable against the former physician employee.  In essence, the Court severed the unreasonable restriction from the restrictive covenant, and held the remainder to be valid.  This situation involved a dentist employed by an oral surgeon.  As part of his employment with the oral surgeon he agreed to never practice dentistry or oral surgery in any of the surrounding counties except in association with the oral surgeon.

Upon voluntarily ending his employment with the oral surgeon, the dentist opened his own office in violation of the restrictive covenant.  After the competition created by the dentist’s new office forced the oral surgeon to close one of his offices, the oral surgeon asked the Court to enforce the restrictive covenant.  The Court ultimately held the employer was entitled to an injunction barring the dentist from practicing oral surgery in the five specified counties named in the covenant, but that the covenant’s restriction on the practice of dentistry was too broad.  Since the oral surgeon’s business consisted only of performing oral surgeries and related operations, a dental practice providing only dentistry services, and no oral surgery services, would provide no direct competition.  The Court, therefore determining the restriction on the practice of dentistry to be too broad, severed that restriction from the covenant, but enforced the remaining provisions of the agreement. 

Situations involving these restrictive covenants, or non-compete agreements, are very fact specific, requiring case by case analysis and determinations.  Determining the consequences of your employment agreement and your options will require an in-depth review.  A violation of a restrictive covenant, if such covenant is in fact enforceable, may result in other contractual claims being brought against you by a former employer.  If you have any questions relating to your restrictive covenant or would like to discuss any element of your employment agreement, please contact Joseph Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Is a Bonus a ‘Wage’?: Not According to a Recent Connecticut Supreme Court Decision

Is a Bonus a ‘Wage’?:  Not According to a Recent Connecticut Supreme Court Decision

Are you currently employed in Connecticut and have been promised a year-end bonus or had been promised a year-end bonus and never received it?   A recent Connecticut Supreme Court decision may affect the amount of protection you are afforded under Connecticut law if your employer defaults or has defaulted on that promise.

This recent case addressed the question of whether a year-end bonus promised by an employer is considered a ‘wage’ for the purposes of the Connecticut Wage Act.  Answering that question in the negative, the Supreme Court denied a Connecticut employee the ability to proceed with a wrongful withholding of wages claim that he had initially pursued after his employer failed to pay out what the employee had thought to be a promised year-end bonus.

Under this recently decided Supreme Court case, the amount of liability your employer will face for failing to pay out a promised year end bonus will hinge upon how your employer defined the conditions under which a bonus would be paid.  If the conditions are specific goals set for you as an individual employee (e.g. a certain number of billable hours need to be reached), then under the Connecticut Wage Act your employer will be required to pay out that bonus as wages in accordance with their promise.  If they do not, you are afforded the protections of the Wage Act and can bring an action against your employer for wrongfully withholding wages.  If successful, it is possible that you could receive, by way of damages, twice the full amount of your bonus and any attorney fees incurred in pursuing the action.  In addition, due to the serious nature of such an offense, your employer could potentially be fined and/or imprisoned for their actions.

Unfortunately, however, if your employer was more ambiguous about the requisite conditions for a bonus, under this new case law, it is likely that they will be able to avoid liability for wrongfully withholding your wages.  If that is the case, while you can still pursue other causes of action against your employer, you will not be able to receive twice the full amount of your bonus or attorney fees.

The events of this recently decided case unfolded as follows:   At the beginning of the employment relationship between an employee and a Connecticut law firm, the parties agreed that the employee’s annual compensation would consist of a base salary and a year-end bonus.  The employment contract called for this year-end bonus to be based on factors such as seniority, business generation, productivity, professional ability, pro bono work and loyalty to the firm.  The employee remained at the firm for several years and each year he received his salary and the promised year-end bonus.  When the employee left the firm he discovered that he was not going to receive the year-end bonus for that last year of his employment.  To try and recover what he had thought was a promised bonus; the employee commenced an action against his employer alleging breach of contract and wrongful withholding of wages.

The trial court dismissed the wrongful withholding of wages claim, determining that the year-end bonus was not ‘wages’ as defined by the Connecticut Wage Act.  The breach of contract claim, however, went to trial.  The Trial Court found in favor of the employee and awarded him damages in the amount of his year-end bonus plus interest.  On appeal, the Appellate Court upheld the Trial Court’s finding as to the breach of contract claim, but reversed the Trial Court’s decision to dismiss the wrongful withholdings of wages claim.  The Appellate Court determined that the structure of the agreement as to the year-end bonus meant that the bonus could have been classified as ‘wages’ under the Connecticut Wage Act and therefore held that the employee could proceed with his wrongful withholding of wages claim.

The issue of the wrongful withholdings of wages claim was appealed to the Connecticut Supreme Court where the Court decided that because the employee’s bonus was discretionary, (not ascertainable by applying a formula) it did not constitute ‘wages’ under the Connecticut Wage Act.  The employee therefore was not able to proceed with his wrongful withholding of wages claim.

Although the employee did recover some monetary damages through his breach of contract claim, it was not anywhere near as much as he would have received if he had been able to proceed with his wrongful withholding of wages action.

It is quite possible that after the release of this opinion many employers will revisit their bonus polices to make the language a little less precise or announce that their bonuses are discretionary in order to take advantage of the protections afforded under this recent case.  It is important, therefore, that as an employee you are aware of what kind of bonus you have been promised so that you know how strongly to rely on that promised bonus and what options are available to you if the employer refuses to pay.

If you have already been denied your year-end bonus and believe that it was a discretionary bonus, there are still ways in which you can potentially recover that lost income, such as the breach of contract claim pursued by the employee in this recent case.  If you have been denied a year-end bonus that was not discretionary and you had met the required conditions for receiving that bonus, you are still protected under the Connecticut Wage Act and can bring a wrongful withholding of wages action against your employer.  This action may allow you to receive damages in the amount double your bonus and possibly receive any incurred attorney fees.

If you have any questions regarding employment and labor law in Connecticut, please contact Joseph C. Maya, Esq. He can be reached at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com. Mr. Maya handles cases involving employment contracts, separation agreements, non-competition agreements, restrictive covenants, union arbitrations, and employment discrimination cases in New York and Connecticut.

Sexual Harassment in the Workplace: Defeating an Employer’s Defenses

A victim of sexual harassment in the workplace has certain available protections and remedies under Title VII of the Civil Rights Act of 1964, with respect to unwanted amorous advances, inappropriate touching, or an outright physical assault by another employee or co-worker.  Essentially, a victim of sexual harassment must prove in a civil lawsuit that the harassment was “sufficiently severe or pervasive” to alter the conditions of her employment, and that there was a specific basis for imputing the resulting hostile work environment to her employer (and not merely to the harasser).

Under what has become known as the Faragher/Ellerth defense, employers since 1998 have been permitted by the courts to put forth and establish an affirmative defense to victims’ lawsuits against inappropriately behaving employees, so long as they are able to prove one of two things: A) that the victim unreasonably failed to take advantage of a company’s established procedures and opportunities to prevent sexual harassment (such as policies, training, and complaint mechanisms through human resources), or B) that the victim employee complained about the conduct and the employer took prompt and appropriate corrective action (such as an investigation, discipline, and/or termination of the harasser).

If a defendant company succeeds in proving one of these two elements, that company may not be held liable for the sexual harassment of one of its employees, even under some egregious circumstances.  Today, many companies have policies and procedures in place, and in most circumstances, a company can successfully claim that it would have been “unreasonable” for a victim not to complain about a harasser’s misconduct and to put the company on notice when something untoward occurs.

However, sometimes victims do not complain right away.  In some cases, the harassment is committed by a supervisor – someone in a position of power over the victim, with a stranglehold on the victim’s voice, on her employment, on her will.

Our law makes adjustments accordingly.  Therefore, where the harassment is committed not just by a co-worker of the victim, but by the victim’s work supervisor, the standard shifts dramatically – the employer company is “presumptively responsible” for the harasser’s conduct.  In that instance, also, there is a proscribed limitation under which an employer can put forth the Faragher/Ellerth defense and potentially escape liability.  Specifically, the test becomes whether the supervisor’s harassment (or unwanted sexual advance) culminated in what is known as a “tangible employment action” – such as a demotion, a denial of a promotion, a change in job responsibilities, or a termination of employment.

In other words, in cases of supervisor-subordinate harassment, a trial court applies a test to determine whether the tangible employment action is “linked” in some fashion to the supervisor’s discriminatory harassment.  If indeed a connection is found – if a supervisor, for example, ultimately fires his victim of sexual harassment for fear she will disclose his reprehensible conduct to others – then the Faragher/Ellerth affirmative defense is not available to the employer company.  The purpose of this rule is to insure that, despite the procedures they might put in place to protect their employees from sexual harassment, companies may and often will be held liable and accountable for the actions of supervisors who harass their subordinates and then utilize their positions of power to remove their victims from the workplace.

If you are the victim of sexual harassment in the workplace, we urge you to seek legal advice immediately and to learn your rights.  Our firm has decades of experience in successfully handling sexual harassment and discrimination cases throughout New York and Connecticut, in both state and federal courts.  Our clients present us with the facts; we arm them with the law and the aggressive, informed advocacy to seek justice on their behalf.

If you have any questions about this posting or confidential inquiries concerning the subject matter, please contact Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

The Best Employment Discrimination Lawyers in Connecticut and New York

Employment Discrimination Lawyers in New York and Connecticut

State and national laws protect employees from being subjected to discriminatory treatment and termination in the workplace because of the employee’s gender, race, age, national origin, religion, pregnancy, sexual orientation, or disability. If you have reason to believe that you have experienced discrimination on the job, you should contact Joseph C. Maya, Esq. right away. Mr. Maya has a national reputation for successfully handling employment discrimination matters. He can be contacted via e-mail at JMaya@Mayalaw.com or by dialing (203) 221-3100 in Connecticut or (212) 682-5700 in New York.

 

Laws Protect Employees from Sexual Harassment in the Workplace

These laws also protect employees from sexual harassment , a hostile work environment, and from being touched in an offensive manner in the workplace by supervisors, coworkers, or even clients. Employees have a right to stop discriminatory conduct in the workplace. If an employee tries to stop that conduct or notifies a supervisor that discriminatory conduct has occurred, that employee also has protection, under state and national laws, from retaliation by the supervisor or employer. In fact, any person who complains to his or her superior or employer has protection from the law against retaliation by his or her employer. If you feel you might be a victim of racial, gender, or sexual discrimination on the job, you should contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or by dialing him at (203) 221-3100 or (212) 682-5700. Let our experience guide you and protect your legal rights at work.

Serving Stamford, Greenwich, Norwalk and surrounding communities including Darien, New Canaan, Westport, Wilton & Weston; the greater Bridgeport area including Fairfield, Stratford, Monroe & Redding; the greater Danbury area including Ridgefield, Newtown & Bethel; and the communities surrounding Milford and New Haven. We also serve all of Westchester and New York Counties.

Litigating Non-Compete Agreements in Connecticut

In Connecticut, the breach of an employment agreement by an employer is a recognized defense to the enforcement of a covenant not to compete.  The breach must be material. For example, if the employee were promised a bonus or stock options and the employer refused to honor the promise. In order for the breach to effectively waive the non-compete restriction, the employee must timely object to the breach by the employer, otherwise the breach is waived. For more information, or to discuss an employment contract, non-compete, stock options, or bonus situation with an attorney, please contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or (203) 221-3100.

Fairfield County Employment Law Attorneys

Did your employer refuse to honor a promise made to you?

Have your rights been violated in the workplace?

Your should seek immediate legal help to protect your rights before the statute of limitations expires on your potential claims.

At the Westport, Connecticut law offices of Maya Murphy, P.C. we represent executives, directors, managers, and other employees throughout Connecticut, including Fairfield and New Haven counties who are involved in disputes with their employers. We have a great deal of experience in the area of employment law and a record of success in getting employers to live up to their legal obligations.

We can help you in your employment-related dispute.

Our Trial Attorneys Can Make the Difference.

Our firm has shown the ability to take these cases to trial and to win judgments on behalf of our clients. We handle a variety of employment law concerns and litigation related to:

• Severance package disputes
• Executive compensation disputes
• Non-compete agreements
• Trade secrets and confidential information
• Director’s, officer’s, and manager’s contracts and disputes
• Executive employment agreements
• Executive retirement plans

Over the last twenty years, we have represented thousands of satisfied clients in employment related cases. In fact, the quality of our work in this area of practice is so high that the majority of our work in the area of employment law comes solely from the referrals of other clients and attorneys who are familiar with what we do.

Employment contracts and Non-compete agreements in Connecticut

Employee Representation

Our firm enjoys a strong national reputation for representing employees, executives and partners in all areas of employment law. From representing senior executives in employment contract and severance negotiations, to protecting individuals’ civil rights in the workplace. Maya Murphy is a recognized leader in the field of employment law. As employment lawyers, we take great pride in our innovative approach to the practice of law and our firm’s focus on protecting and promoting employee rights.

Employer Representation

We represent employers in connection with all the various problems and issues involving their relations with their employees. Our clients include every form and size of organization, ranging from multinational corporations to local public schools, and cover the spectrum of the nation’s economy. We are particularly active in the financial, cultural, transportation, retailing, entertainment, professional sports, telecommunications, manufacturing, health care, publishing, philanthropic, governmental, and educational sectors. On a daily and continuing basis, we provide advice and participate in strategic planning concerning all aspects of the employment relationship, including: ·         collective bargaining   ·         reductions-in-force and other corporate restructurings   ·         employee discipline and discharge   ·         development of employment policies and procedures   ·         preparation of employee handbooks   ·         negotiation and drafting of employment agreements   ·         equal employment opportunity, affirmative action and occupational safety and health requirements   ·         compliance with immigration regulations and procedures   ·         wage and hour practices and audits   ·         delicate employment situations, such as allegations of sexual harassment; workplace drug abuse and employee privacy Our employment and labor law experience is frequently sought in connection with corporate transactions, mergers, acquisitions, reorganizations and bankruptcy proceedings.

Year End Employment Contract Bonus Payments in Connecticut: Enforceable Promises?

Employment Contracts in Connecticut: When is a promise to pay a year-end bonus enforceable against an employer?

Given the down turn in the economy, millions of employees recently lost their jobs at the end of last year. Many of those jobs were based upon a compensation structure including a base salary and a bonus to be paid at the end of the year, or early this year, as in now. If you are one of those individuals who recently lost your job, you are probably wondering whether you are entitled to the bonus you thought you were promised. The Connecticut Appellate Court recently answered this question in favor of employees.

Here are the facts of the case recently decided. An employee worked for a small Connecticut employer for several years. At the outset of the employment relationship, the employee agreed to accept a lower salary in consideration for the employer’s promise to pay a year-end bonus. This arrangement continued for several years. Eventually, the employee left the firm and the employer decided to pay only his base salary, but no year-end bonus. The employee sued.

In the lawsuit, the employee alleged breach of contract and wrongful withholding of wages. After trial the court entered judgment for the employee on the breach of contract count awarding damages.  In reviewing the case, the Connecticut Appellate Court found that the trial court properly looked at the employment contract, and parole evidence – circumstances outside of the employment contract - to determine the appropriate compensation, including a bonus payment, for the employee during the last year of his employment.  The Connecticut Appellate Court determined the parties entered into a written employment contract setting forth the criteria upon which annual compensation would be based and therefore, the employee had a viable claim to a bonus payment.

The Court found the written employment contract only set forth the timing and basis for calculating the amount of annual compensation. The written employment contract did not set forth the expression of the parties intent as to the timing, form and amount of payment, which are essential terms to an employment contract. The trial court concluded that the employer had agreed by either words or deeds pursuant to the compensation clause in the contract to pay a bonus to the employee for that portion of the year the plaintiff was employed with the employer. The Appellate Court further found that even though the employer and the employee were indefinite as to the amount of the bonus, this did not render the bonus promise unenforceable. The employer’s promise of a yearly bonus was supported by the consideration of the employee accepting a lower salary throughout the year.

The Appellate Court also reversed the trial court and found that the claim for wrongful withholding of wages should not have been dismissed. The Court determined that under the employment agreement the bonus could have been classified as wages under Connecticut Labor Law.

If you have any questions regarding this article, or would like to discuss an employment contract, severance package, non-competition agreement, non-solicit agreement, or any other issue related to your employment, please contact Joseph C. Maya, Esq. at JMaya@Mayalaw.com or (203) 221-3100.

 

 

Labor & Employment Law – What to consider after losing your job

     So you’ve lost your job.  Now what?  Depending on the circumstances, there are several legal issues to explore before moving on with your career.  Here is a basic summary of five issues to consider:

     First, file for unemployment as soon as possible so you don’t miss any deadlines.  There is no guarantee that you will be eligible for unemployment benefits but it doesn’t hurt to try.  You may be eligible for unemployment benefits depending upon the circumstances surrounding your job loss and whether you receive any compensation as severance on the way out the door. 

     Second, consider whether you have a contract with your former employer, either individually or through a union.  Today, at will employment is very common.  Generally, employers and employees each have the option to terminate the employment relationship at any time for any reason or for no reason at all.  However, an employee may have the right to enforce a contract if his or her employer failed to uphold the agreed upon terms of employment.  The provisions of a written contract are more likely to be enforceable but even an oral promise may have legal ramifications.   

     Third, make sure you are fully paid by your employer.  It is not unusual for an employer to fail to pay wages or to withhold a commission payment to a former employee.  Employers may face stiff penalties for neglecting to make these payments.  An employee may have several options to pursue a claim through the state or the court system. 

     Fourth, check to see if your former employer has any written policies or an employment handbook that may apply to you.  While the terms of a policy or handbook provision may not be legally enforceable against your employer, it doesn’t hurt to bring the relevant provision to the attention of your employer to see if they will honor it.  An example of a relevant provision would be a severance policy guaranteeing separation pay based upon years of service.

     Fifth, verify what happens to your employment benefits now that you’ve lost your job.  Health insurance is the most common benefit to consider here.  Make sure to confirm when your employer will stop providing benefits.  Also, consider whether you want to continue any benefits through an individual plan.  You may be eligible for continued medical and dental benefits through The Consolidated Omnibus Budget Reconciliation Act (“COBRA”) as well.   

     This five-point list is not meant to cover all the possible issues that may arise when you lose your job but it is a starting point.  Under some circumstances, more complicated matters concerning deferred compensation, employment discrimination and whistleblower claims must be considered.  If you have any questions about your rights, please consult with an attorney.         

A Woman’s Right – 3 who fought back and won

A cleaning woman, who speaks no English, is raped by a supervisor. A plumber’s boss insists that she change into work clothes in front of male employees. A proofreader is fondled by a coworker. Other employees tell obscene jokes and make sexist remarks.

All three women filed complaints with the New York City Commission on Human Rights – and won. [Read more]

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