Posts tagged with "Employment law"

Contractual Rights for Teachers: An Overview

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Contracts for School Teachers

The law of contracts applies to contracts between teachers and school districts. This law includes the concepts of offer, acceptance, mutual assent, and consideration. For a teacher to determine whether a contract exists, he or she should consult authority on the general law of contracts. This section focuses on contract laws specific to teaching and education.

Ratification of Contracts by School Districts

Even if a school official offers a teacher a job and the teacher accepts this offer, many state laws require that the school board ratify the contract before it becomes binding. Thus, even if a principal of a school district informs a prospective teacher that the teacher has been hired, the contract is not final until the school district accepts or ratifies the contract. The same is true if a school district fails to follow proper procedures when determining whether to ratify a contract.

Teacher’s Handbook as a Contract

Some teachers have argued successfully that provisions in a teacher’s handbook granted the teacher certain contractual rights. However, this is not common, as many employee handbooks include clauses stating that the handbook is not a contract. For a provision in a handbook to be legally binding, the teacher must demonstrate that the actions of the teacher and the school district were such that the elements for creating a contract were met.

Breach of Teacher Contract

Either a teacher or a school district can breach a contract. Whether a breach has occurred depends on the facts of the case and the terms of the contract. Breach of contract cases between teachers and school districts arise because a school district has terminated the employment of a teacher, even though the teacher has not violated any of the terms of the employment agreement.

In several of these cases, a teacher has taken a leave of absence, which did not violate the employment agreement, and the school district terminated the teacher due to the leave of absence. Similarly, a teacher may breach a contract by resigning from the district before the end of the contract term (usually the end of the school year).

Remedies for Breach of Contract

The usual remedy for a breach of contract between a school district and a teacher is monetary damages. If a school district has breached a contract, the teacher will usually receive the amount the teacher would have received under the contract, less the amount the teacher receives (or could receive) by attaining alternative employment. Other damages, such as the cost to the teacher in finding other employment, may also be available.

Non-monetary remedies, such as a court requiring a school district to rehire a teacher or to comply with contract terms, are available in some circumstances, though courts are usually hesitant to order such remedies. If a teacher breaches a contract, damages may be the cost to the school district for finding a replacement. Many contracts contain provisions prescribing the amount of damages a teacher must pay if he or she terminates employment before the end of the contract.

Source: FindLaw

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If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

This case was not handled by our firm. However, if you have any questions regarding this case, or any employment law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

***All posts for the MayaLaw.com blog are created as a public service for the community. This case overview is intended for informational purposes only, and is not a solicitation of any client.***

Teacher Evaluations in Connecticut

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Connecticut Teacher Evaluations

Under Connecticut General Statute §10-151b, each year teachers in Connecticut must be evaluated by either the Superintendent of Schools or by someone appointed by the Superintendent.  The evaluations shall include, but is not necessarily limited to, strengths, areas needing improvement, strategies for improvement, and multiple indicators of student academic growth.  In the event that a teacher does not receive a summative evaluation during the school year, the teacher must receive a “not rated,” designation for that school year.

The Superintendent shall report both the status of teacher evaluations to the local or regional Board of Education on or before June first of each year, and the status of the implementation of the teacher evaluation and support program, including the frequency of evaluations, aggregate evaluation ratings, the number of teachers who have not been evaluated, and other requirements as determined by the Department of Education, to the Commissioner of Education on or before September fifteenth of each year.

If a teacher believes that the proper procedure was not followed during their review and/or evaluation, the teacher should look to the collective bargaining agreement maintained within the School District, as Connecticut defers to such agreements for grievance procedures on evaluations.

Each local and regional Board of Education must adopt and implement a teacher evaluation and support program.  If a local or regional Board of Education is unable to develop a teacher evaluation and support program through mutual agreement with a Professional Development and Evaluation Committee, then the Board of Education and the Professional Development and Evaluation Committee shall consider the Model Teacher Evaluation and Support Program adopted by the State Board of Education as a rubric and can adopt the model if agreed upon.  C.G.S. §10-151b(b).

Teacher Evaluation and Support Program Guidelines

As of July 1, 2012, the State Board of Education has adopted, in consultation with the Performance Evaluation Advisory Council, guidelines for a Model Teacher Evaluation and Support Program. Such guidelines include, but are not limited to:

(A) the use of four performance evaluations designators: Exemplary, Proficient, Developing and Below Standard;

(B) the use of multiple indicators of student academic growth and development in teacher evaluations;

(C) methods for assessing student academic growth and development;

(D) a consideration of control factors tracked by the state-wide public school information system that may influence teacher performance ratings, including, but not limited to, student characteristics, student attendance and student mobility;

(E) minimum requirements for teacher evaluation instruments and procedures, including scoring systems to determine Exemplary, Proficient, Developing and Below Standard ratings;

(F) the development and implementation of periodic training programs regarding the teacher evaluation and support programs to be offered by the local or regional Board of Education or Regional Educational Service Center for the school district to teachers who are employed by such local or regional Board of Education, whose performance is being evaluated, and to administrators who are employed by such local or regional Boards of Education and who are conducting performance evaluations;

(G) the provision of professional development services based upon the individual’s or group of individuals’ needs that are identified through the evaluation process;

(H) the creation of individual teacher improvement and remediation plans for teachers whose performance is developing or below standard, designed in consultation with such teacher and his or her exclusive bargaining representative for certified teachers and that (i) identify resources, support and other strategies to be provided by the local or regional board of education to address documented deficiencies, (ii) indicate a timeline for implementing such resources, support, and other strategies, in the course of the same school year as the plan is issued, and (iii) include indicators of success including a summative rating of proficient or better immediately at the conclusion of the improvement and remediation plan;

(I) opportunities for career development and professional growth; and

(J) a validation procedure to audit evaluation ratings of exemplary or below standard by the department or a third-party entity approved by the department.

C.G.S. §10-151b(c)(1).

Confidentiality Rule and its Exceptions

After a teacher has received their performance evaluation, Connecticut General Statute §10-151c ensures confidentiality from the public. “Any records maintained or kept on file by the Department of Education or any local or regional board of education that are records of teacher performance and evaluation shall not be deemed to be public records…provided that any teacher may consent in writing to the release of such teacher’s records by the department or a board of education.”

However, Connecticut does provide certain exceptions to the confidentiality rule, providing that records maintained or kept on file by the Department of Education or any local or regional Board of Education that are records of the personal misconduct of a teacher, shall be deemed to be public records and shall be subject to disclosure in certain circumstances.  Further, disclosure of such records of a teacher’s personal misconduct shall not require the consent of the teacher.

Despite confidentiality, the teacher is allowed access to his or her personnel file and its contents under Connecticut General Statute §10-151a.  The teacher shall be entitled to knowledge of, access to, and, upon request, a copy of supervisory records and reports of competence, personal character and efficiency maintained in their personnel file with reference to evaluation of performance.  If a teacher would like to investigate the contents of their personnel file, that is their right under Connecticut law, but must make a request to the Board of Education of the town in which he or she is employed.

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This case was not handled by our firm. However, if you have any questions regarding this case, or any education matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

If you are an employer or teacher and are faced with the possibility of termination, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

Proxy/Alter Ego Liability for Sexual Harassment

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Liability in Workplace Sexual Harassment

The United States Court of Appeals for the Second Circuit (that includes Connecticut and New York) addressed for the first time whether the so-called Faragher/Ellerth affirmative defense is available when an alleged sexual harassment attacker holds a sufficiently high position within an organization so as to be considered the organization’s proxy or alter ego.  The Second Circuit joined the other Circuits that have considered the issue in concluding that under those circumstances, the affirmative defense was unavailable to the employer.

By way of background, Faragher/Ellerth held that a company could escape vicarious liability for sexual harassment by taking certain steps directed toward reporting and eradicating sexual harassment in the workplace.  Left open was the issue of the employer’s direct liability where the actor was deemed to be the proxy/alter ego of the company.  Under that doctrine, an employer is liable in its own right for wrongful harassing conduct, as opposed to being vicariously liable for the actions of company agents.

A Company’s Proxy or Alter Ego

But who is the company’s proxy or alter ego?  Prior cases clearly place the company president and other sufficiently senior corporate officers within that category, and refer to “that class of an organization’s officials who may be treated as the organization’s proxy.”  Understandably, the courts do not want to draw a bright line around who may be considered an employer proxy, so that unusual cases can be determined on their peculiar facts without being constrained by particular titles.

All that is required is for the supervisor to occupy a sufficiently high position in the management hierarchy of the company for his actions to be imputed to the company.  When the official’s unlawful harassment is thus automatically charged to the employer, it cannot raise the Faragher/Ellerth affirmative defense, even if the harassment did not result in an adverse employment action.

The result is a settling of the law in the Connecticut federal court; the Faragher/Ellerth defense is unavailable when the alleged harasser is the employer’s proxy or alter ego.  Both employers and employees now know better where they stand.

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The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about Title VII and workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

A Quick Guide to Separation Agreements and Severance Packages

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Separation Agreements

Today’s report on the lagging unemployment numbers serves as a stark reminder that the state of the economy, though on the upturn, continues to move at a slow pace and that unemployment is a very real problem facing too many people.  Attorneys in our Westport office continue to see a high number of Separation Agreements and severance packages by employees who have been laid off.  What those employees should know is that experienced employment law attorneys, such as those at Maya Murphy, P.C., can review those agreements to negotiate an enhancement or increase of the benefits received.

Because there is no such thing as a standardized severance package, each and every term is crucial and should be carefully scrutinized.  As such, no employee should feel obligated to sign a Separation Agreement and return it to his or her employer without subjecting it to further review and negotiation by employment attorneys with a wide breadth of knowledge in the field.

Severance Packages 

Severance pay refers to a voluntary offer of payment from an employer to an employee who has recently been laid off.  No law requires an employer to offer a terminated employee a severance package.  However, employers offer severance packages, among other reasons, to maintain goodwill with past and future employees, to prevent employees from appropriating trade secrets, customer lists, and other proprietary information, and to ensure that employees refrain from engaging in professional associations with competing companies or businesses, or “non-competition agreements,” a separate issue on which Maya Murphy attorneys are well-versed.

It is crucial to remember that the time in which to respond to and agree to a severance agreement can be very limited, often to no more than one or two weeks, meaning it is in a terminated employee’s best interest to consult with an attorney as soon as possible after receipt of an agreement.

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In sum, it is vital to have an attorney experienced in employment law take the lead on reviewing your Separation Agreement, negotiating with your company or business, and vigorously advocating on your behalf.  Should you be confronted with a Separation Agreement, contact an attorney at our Westport office at 203-221-3100.

Enforcing a Non-Compete Agreement in a Medical Partnership

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Fairfield County Bariatrics and Surgical Associates, P.C. v. Ehrlich, 2010 Conn. Super. LEXIS 568
Employment Background

Doctors Neil and Craig Floch created Floch Surgical Associates in 1999 in Norwalk, Connecticut to provide medical and surgical services to patients.  They decided to gear their practice toward bariatric surgery and hired Dr. Timothy Ehrlich, a board-certified general surgeon and graduate of Louisiana State University School of Medicine, in 2002.  He was granted surgical privileges at Norwalk Hospital and St. Vincent’s Hospital (in Bridgeport, CT) and operated as the only member of the medical group to perform bariatric surgeries exclusively.  On January 1, 2006, the two Floch doctors and Dr. Ehrlich formed Fairfield Bariatrics and Surgical Associates, P.C. (FCB).

Each doctor became a third shareholder in the professional corporation and signed identical employment agreements that outlined the compensation schedule, termination protocols, and included a non-compete agreement.  The non-compete prohibited each doctor, for two years after termination, from practicing general medicine/surgery within fifteen miles of FCB’s main office in Norwalk and barred performing bariatric procedures at hospitals located in Stamford, Norwalk, Greenwich, Danbury, and Bridgeport.

Doctors Neil and Craig Floch voted to terminate Dr. Ehrlich in July 2009 and notified him of the decision in a letter dated July 30, 1999.  They justified his termination by claiming that he repeatedly “misrepresented the group” and had lost his surgical privileges at Norwalk Hospital due to non-compliance with the hospital’s Trauma Service requirements.

Violating the Restrictive Covenant

Dr. Ehrlich proceeded to form his own limited liability company, Ehrlich Bariatrics LLC, on October 22, 2009 and opened offices in Waterford and Trumbull.  Both of these municipalities are located outside of the prohibited area created by the non-compete agreement but he also continued to perform operations at St. Vincent’s Hospital in Bridgeport, an activity expressly prohibited by the restrictive covenant.

FCB sued Dr. Ehrlich in Connecticut court and requested that the court enforce the provisions outlined in the non-compete agreement dated January 1, 2006.  The court found in favor of FCB, determined that Dr. Ehrlich had violated a valid non-compete agreement, and enforced the provisions of the covenant not to compete.

The court stated that the challenging party (Dr. Ehrlich for this case) bore the burden of proof to demonstrate that the agreement was unenforceable.  He asserted that he had not been properly terminated and that the agreement itself was unreasonable, and therefore unenforceable.  The court rejected both of these arguments and concluded that the agreement was valid and enforceable.

Improper Termination Argument

Dr. Ehrlich advanced the unconvincing argument that he was the victim of improper termination because the shareholders meeting at which the vote was taken to terminate his employment was not properly noticed pursuant to the corporation’s by-laws.  He essentially contended that the “lack of notice renders his termination a nullity”.

The court however disagreed with Dr. Ehrlich because a physician whose termination is being voted on is not entitled to cast a vote.  The lack of voting power for this matter meant that his presence was not required and he was not entitled to notice of the special shareholders meeting where the vote was taken.  The court ultimately concluded that Doctors Neil and Craig Floch had taken the proper and necessary steps in accordance with the corporation’s by-laws to terminate Dr. Ehrlich’s employment with FCB.

Unreasonable Provisions Argument

Next, Dr. Ehrlich unsuccessfully contended that the agreement contained unreasonable provisions and therefore the court was not obligated or permitted to order its enforcement.  Discerning the reasonableness of a non-compete agreement required the court to balance the competing needs of the parties as well as the needs of the public.

Furthermore, the challenging party must show that the provisions are unreasonable in scope.  First, the court established that FCB did in fact have a legitimate business interest that necessitated protection.  The company was entitled to protect potential new patients within a reasonably limited market area.  FCB was only concerned with future patients and did not seek to prevent Dr. Ehrlich from providing follow-up services to current or past patients.

Enforcing the Non-Compete Agreement

Next, the court addressed and cited a variety of case law that showed Connecticut courts’ history of enforcing non-compete agreements when they protect against “something other than mere competition”, including the use of customer lists, impaired of purchased good will, confidential data/trade secrets, use of information concerning potential clients in a limited area, or some other advantage the former employee acquired while working for the plaintiff company.  The court found that Dr. Ehrlich had greatly benefitted from his association with FCB and that his continued actions would negatively affect the reputation and business operations of his former employer.

Lastly, the court took time to address the differences between non-compete agreements for an employer-employee relationship and those for partnerships.  It held that since there was not unequal bargaining power or impaired ability to earn a living, the provisions were not unreasonable in scope.

The court noted that Dr. Ehrlich’s offices in Trumbull and Waterford did not violate the agreement and there were numerous hospitals located outside the prohibited area where he could find employment as a board certified surgeon specializing in bariatrics.  He had actually received encouragement from several doctors to apply for privileges at permissible hospitals, including the Hospital of St. Raphael in New Haven.

In light of Dr. Ehrlich violating a legally binding non-compete agreement that protected a legitimate business interest, the court ordered the enforcement of the restrictive covenant.

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The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment and corporate law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.  If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Four-Prong Test Applied to Enforce Non-Compete Provision in a Franchise Agreement

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Money Mailer Franchise Corporation v. Wheeler, 2008 Conn. Super. LEXIS 2260
Case Details

Mr. Douglas Wheeler entered into a Franchise Agreement with Money Mailer Franchise Corporation on February 28, 2003, wherein he was assigned a mailing territory comprised of thirteen zip codes in Fairfield and New Haven counties.  Money Mailer was a business that franchised a system of providing direct mail order advertising and related services.  The Franchise Agreement contained a non-compete covenant.

The non-compete prohibited Mr. Wheeler from engaging “in any Competitive Activities with the Territory [his thirteen zip codes] or within the territory of any other “Money Mailer” franchise then in operation” for a period of two years following termination.  This essentially obligated Mr. Wheeler to not engage in any competing business enterprise within fifty miles of any Money Mailer franchise.

Mr. Wheeler sold his franchise to Mr. Javier Ferrer on October 31, 2007 for $130,000.  He executed an additional non-compete agreement in connection with this transaction wherein he promised not to compete for three years following the closing of the deal.  In February 2008, he began to work as an Independent Contractor for Direct Advantage, a direct competitor engaged in the same business(es) as Money Mailer.

Money Mailer sued Mr. Wheeler for breach of the Franchise Agreement and requested that the court enforce the provisions contained in the non-compete agreement.  Mr. Wheeler acknowledged that he was involved in the exact same business addressed and prohibited in the non-compete agreement and admitted to soliciting several of Money mailer’s previous and current customers.

The Court’s Decision

The Connecticut state court granted Money Mailer’s request for injunctive relief and ordered the enforcement of the restrictive covenant.  The court stated that the purpose of injunctive relief was to preserve the status quo of the parties until the case was definitively decided.

It further noted the relevant standard of review for granting a request for an injunction and specified four factors: 1) no adequate remedy at law, 2) plaintiff would experience irreparable harm if the request was not granted, 3) plaintiff was likely to prevail on the merits of the case, and 4) an injunction would sustain the balance of the parties’ equities.  The court concluded that Money Mailer’s case met all of these requisite factors and its complaint warranted relief in the form of a temporary injunction.

The court concluded that an injunctive order was necessary to balance the parties’ interests during the legal proceedings and that the temporary injunction would essentially restore the parties to their relative positions before the alleged violation of the non-compete agreement.  Money Mailer was able to demonstrate that Mr. Wheeler’s actions had a detrimental impact its business interests.

Additionally, the court found that Money Mailer was likely to prevail on the merits of its complaint, specifically citing that Mr. Wheeler’s own testimony provided abundant evidence of activities that should trigger the enforcement of the restrictive covenant.  For these enumerated reasons, the court granted Money Mailer’s request for an injunction restraining Mr. Wheeler from further violations of the non-compete provisions contained in the Franchise Agreement executed between the parties in 2003.

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The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment and corporate law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.  If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Five Things You Need to Know About Connecticut Separation Agreements

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As a result of the state of the economy, in general, and in Fairfield County, in particular, we in the Westport, Connecticut office of Maya Murphy, P.C. have seen a spate of Separation Agreements brought to us by recently terminated employees.  Our experienced employment-law attorneys review and critique these Agreements, and often advocate on behalf of our clients to enhance a separation package.

Here are five things you need to know about Separation Agreements:

  1. They are here and more may be on the way. 

    Companies are scrutinizing their bottom lines to try to increase profits, decrease expenses, and improve share value or owner’s equity.  If sales can’t be increased or cost-of-goods-sold decreased, one alternative is to cut personnel.  Often senior (and more highly paid) employees are let go in favor of younger (i.e., “cheaper”) employees, thereby also raising the specter of an age discrimination claim (a topic deserving of its own post).

  2. They are complex. 

    For an employee over the age of 40, a federal statute known as the “Older Workers Benefit Protection Act” requires that your Separation Agreement contain certain provisions, including a comprehensive release of all claims that you might have against your employer.  The statute also gives you specific time periods to review the Agreement prior to signing, and even to rescind your approval after you have signed.  It is not uncommon to have Separation Agreements exceed 10 pages in length.  All of the language is important.

  3. They are a minefield. 

    Separation Agreements frequently contain “restrictive covenants,” usually in the form of confidentiality, non-solicitation, and non-competition provisions.  These can have a profound effect on your ability to relocate to another position and have to be carefully reviewed and analyzed to avoid potentially devastating long-term consequences after the Agreement has been signed and the revocation period has expired.

  4. They are not “carved in stone.”

    Although many companies ascribe to a “one size fits all” and a “take it or leave it” policy with regard to Separation Agreements, such is not necessarily the case.  Often, Maya Murphy employment attorneys can find an “exposed nerve” and leverage that point to obtain for a client more severance pay, longer health benefits, or some other perquisite to ease the client’s transition into a new job with a new employer.  Every case is factually (and perhaps legally) different and you should not assume that your severance package should be determined by those that have gone before you.

  5. You need an advocate.

    You need an experienced attorney to elevate discussion of your Separation Agreement above the HR level.  HR directors have limited discretion and are tasked with keeping severance benefits to an absolute minimum.  Maya Murphy’s goal is to generate a dialogue with more senior management to drive home the point that a particular client under certain circumstances is equitably entitled to greater benefits than initially offered.

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If you find yourself in the unfortunate position of having been presented with a Separation Agreement, you should contact an experienced employment law attorney in our Westport, Connecticut office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Employer Not Liable for Doing “Stupid” or Even “Wicked” Things

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Case Background

Employment discrimination laws protect employees from discrimination.  They do not protect against “ordinary workplace experiences” that offend one’s sensibilities or result in hurt feelings.  A Connecticut woman found that out the hard way when a Court of Appeals affirmed the trial court’s grant of summary judgment against her.  There was no dispute as to any material fact and the employer was entitled to judgment as a matter of law.  Thus, there was no need for a trial on the merits.

The employee in question was fired from her “at will” position as Public Relations Coordinator for a large corporation because of her volatile workplace behavior spanning three years.  She claimed that she was fired because of her age, and that she had suffered intentional infliction of emotional distress as a result.

Establishing a “But For” Cause

Under the applicable law, the employee must first establish a prima facie case of discrimination.  If she does, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action.  Assuming such a reason, the employee may then prevail if she can show that the employer’s action was in fact the result of discrimination, i.e., that the stated reason is “pretextual.”

The employee must further prove that age was a “but for” cause for the challenged action and not merely a contributing or motivating factor.  In this case, the employee was unable to show that her age was the sole, i.e., “but for” cause of her termination.

Conclusions

In fairness to the employer, the employee’s insubordination was evident from the record.  On one occasion, the employee asked her manger if she had “stopped taking her medication.”  Nor did some favorable evaluations raise a genuine issue of material fact as to pretext.  The court concluded that isolated positive feedback was entirely consistent with the explanation for her termination: sporadic inappropriate behavior over the course of several years.  A reasonable jury would have no reason to doubt the employer’s explanation for the employee’s discharge.

The employee also complained about the “tone” that was used with her and that she was “distraught” about negative comments she received.  This formed the basis for her claim of intentional infliction of emotional distress.  The court had no trouble dismissing this claim, as well.  “These ordinary workplace experiences clearly do not rise to the level of being ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’”

It was in this context that the court made the observation that employers are not liable for doing stupid or even wicked things in the absence of a sufficient connection between the employee’s age and termination of her employment.

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The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact our Westport office at 203-221-3100.

The Older Workers Benefit Protection Act of 1990

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Being laid off from a job is enough of a confusing and disheartening experience.  Adding to the complexity of severance packages and Separation Agreements is the potential for an age discrimination claim, a prospect that companies go to great lengths to prevent.  It is not infrequent for companies to lay off senior workers in favor of younger employees who will cost less to the company. In doing so, companies may open themselves up to an age discrimination claim.

If you believe that you have been laid off due to your age, it is vital to explore your options before signing the Agreement, as a signature often means a release of all potential claims against your employer. The employment attorneys at Maya Murphy, P.C. have experience in these types of claims and can take the lead in reviewing and negotiating a Separation Agreement.

The Older Workers Benefit Protection Act

In response to a 1989 landmark Supreme Court decision, Congress passed the Older Workers Benefit Protection Act of 1990 (“OWBPA”), requiring that a Separation Agreement contain certain provisions and amending the Age Discrimination in Employment Act (“ADEA”), which prohibits employers from discriminating against employees 40 years of age or older, to include employee benefits. Specifically, the statute gives a terminated employee a time period in which to review the Agreement before signing and the opportunity to rescind approval of the Agreement subsequent to signing.  It ensures that no employee is pressured into signing legal waivers of their rights under the ADEA.

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Connecticut’s Commission on Human Rights and Opportunities (CHRO) website (http://www.ct.gov/chro/site/default.asp) as well as the U.S. Equal Employment Opportunity Commission’s site (http://www.ct.gov/chro/site/default.asp) provide valuable information and resources on the topic of age, and other types, of discrimination.

In addition, the attorneys at Maya Murphy, P.C. have extensive employment experience and are ready to assist with any issues relating to employment contracts, severance packages, and potential discrimination claims.  Should you have any questions, please contact the Maya Murphy office located in Westport at 203-221-3100.

For Want of a Comma, Wal-Mart Can Fire Medical Marijuana User

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Case Background

Medical marijuana is legal in Michigan.  When Joseph Casias was 17, he was diagnosed with sinus cancer and an inoperable brain tumor.  When Michigan legalized medical marijuana in 2008, Casias’ oncologist recommended he use marijuana for relief of pain and side effects of other pain medications.  Casias used marijuana while employed at a Wal-Mart in Battle Creek, Michigan, although he made sure never to be under its influence while at work.

When Casias was injured on the job, company policy required that he be administered a drug test.  He tested positive for marijuana and was fired a week later.  Michigan’s Medical Marijuana Act states that “a qualifying patient . . . shall not be subject to arrest or . . . disciplinary action by a business or occupational or professional licensing board or bureau . . . .”  Casias sued Wal-Mart for wrongful discharge and violation of the Act, claiming that the law proscribes “disciplinary action [against a medical marijuana patient] by a business.”

The Court’s Decision

A federal District Court and Court of Appeals disagreed, holding that the statute, as written, refers to three types of licensing boards or bureaus—business, occupational, and professional.  The appellate court reasoned that the statute precluded disciplinary action by only the specified licensing boards, and not by a private business.  Since the law offered Casias no protection from termination, the court saw no reason to overturn Wal-Mart’s firing of Casias notwithstanding his immunity from criminal prosecution related to possession or use of marijuana.

This is a case of the court’s holding that a legislature meant what it said, irrespective of what it might have meant to say.  More careful drafting or punctuation of the Michigan Act might have saved Casias’ job.  Perhaps the Michigan legislature will amend its Medical Marijuana Act to state more clearly that an employee who is a legally permitted user may not be disciplined by an employer for its use.  Until then, casually drafted statutes will remain a trap for the unwary.

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The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of workplace-related claims and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield and resolving such issues.  (203) 221-3100.