Posts tagged with "harassment"

When Rites of Passage Turn Ugly A Study on School Hazing

If you have any questions regarding your school hazing, bullying or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Chuck Stenzel. Matthew Carrington. Jay Lenaghan. Garrett Watterson. Gary Devercelly, Jr. What do these individuals have in common?

Think Robert Champion.

In August 2000, Alfred University released the results of a nationwide survey[1] of American high schools on the prevalence of hazing rituals. Under this study, “hazing” was defined as “any humiliating or dangerous activity expected of you to join a group, regardless of your willingness to participate.” In essence, hazing is an initiation rite that goes over the line: while “[i]nitiation rites are comprised of pro-social behaviors that build social relationships, understanding, empathy, civility, altruism and moral decision-making,” hazing is marked by humiliation, harassment, or abuse. It includes:

  1. “Humiliation: socially offensive, isolating, or uncooperative behaviors.”
  2. “Substance abuse: abuse of tobacco, alcohol, or illegal drugs.’
  3. “Dangerous hazing: hurtful, aggressive, destructive, and disruptive behaviors.”

Other forms of humiliating and dangerous behavior include being singled out, physical humiliation, nudity, sexual acts, physical danger, and boundary testing.

Nearly half of those surveyed (48%) were subject to an activity that is considered hazing, though students appeared to be unable to distinguish between fun and hazing. “Only 14 percent said they were hazed… Most said they participated in humiliating, dangerous or potentially illegal activities as part of joining a group because those activities are ‘fun and exciting.’” Hazing starts at a younger age, before age 13, and continues through high school, and males with lower grade point averages were more likely to be the targets of hazing:

Sadly, the consequences of hazing are widespread and significant. Nearly three of every four students who reported they were hazed suffered at least one negative consequence:

As of November 2010, forty-four states had anti-hazing laws – Connecticut’s anti-hazing law is General Statutes § 53-23a.[2] Even with the statutory groundwork, what constitutes hazing behavior “relies on authorities’ subjective interpretation” of the law.[3] As Middlesex (Massachusetts) District Attorney Gerard T. Leone Jr. explained, “What some person finds as hazing, another is going to find as a childish prank.”[4] On the other hand, some coaches and school authorities “say they draw a hard line on any initiation rites – even activities that could seem fairly innocent. ‘I just don’t think there’s any place for it, because there’s always the chance someone is going to take it beyond or too far,’ said [a longtime football coach].”[5]

Even with laws in place, hazing is still prevalent: just yesterday, I learned of the assaults of “Billy” and “John” in La Puente, California. “[Billy and John] among several students allegedly attacked as part of a soccer team hazing ritual that involved sexual assault at La Puente High School said they were grabbed in a storage room by as many as 10 older team players.”[6] One student was sodomized with a pole;[7] the second “was able to escape, to run away before he got the worst of what his attackers were planning for him.”[8] Worse still, it appears the coach knew of the abuse and took no action to prevent or report it. Although several individuals have been arrested, parents are only left with unanswered questions: one parent asked, “Where was the supervision?”[9]

Written by Lindsay E. Raber, Esq.

If you have any questions regarding your school hazing, bullying or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.


[1] “Initiation Rites in American High Schools: A National Survey,” by Nadine Hoover, Ph.D. and Norman Pollard, Ed.D. August 2000, Alfred University: www.alfred.edu/hs_hazing/docs/hazing__student.pdf

[2] Connecticut General Statutes § 53-23a: http://www.cga.ct.gov/current/pub/chap939.htm#Sec53-23a.htm

[3] “Despite law, many still unsure when to sound hazing alarm,” by Stephanie Ebbert and Shelly Murphy. November 15, 2010: www.boston.com/news/education/higher/articles/2010/11/15/states_antihazing_law_still_stirs_confusion_25_years_later/

[4] Id.

[5] Id.

[6] “Victims in La Puente High sexual hazing say there are more attackers,” by Richard Winton. September 25, 2012: latimesblogs.latimes.com/lanow/2012/09/la-puente-soccer-sexual-hazing.html

[7] Id.

[8] “Alleged victims describe hazing at hands of soccer teammates,” by the CNN Wire Staff. September 26, 2012: www.cnn.com/2012/09/26/us/california-student-hazing/

[9] Id.

Court Gives Plaintiff in Bullying Case Green Light to Proceed to Trial

In August 2006 Robert and Louise Dornfried filed suit against the Berlin Board of Education, its former and current superintendents,  the principal, the athletic director and the coach of Berlin High School football team on behalf of their minor son, Robby.  Robby’s parents alleged on their son’s behalf that, while a student at the high school and a place-kicker on the varsity football team, he was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.

The parents further alleged that they complained of the misconduct to various school administrators, who, despite their knowledge of the behavior, did nothing to stop it.  As a result, Robby was allegedly forced to seek “medical care and treatment” and, halfway through his sophomore year, transferred to Northwest Catholic High School. Robby’s parents brought suit alleging negligence against the various defendants, claiming they knew or should have known that Robby was subjected to incessant bullying, harassment, intimidation, threats and/or acts of violence, but failed to take any action to prohibit, prevent, or even deter such conduct.

In a separate count, the parents claimed the principal, the athletic director and the football coach were reckless in their failure to stop the inappropriate behavior of Robby’s teammates, claiming they exhibited “a blatant and utter disregard for [Robby’s] safety and wellbeing.”  Notably, as permitted by Connecticut law, the plaintiff sought punitive damages under this count. The defendants initially attacked the plaintiff’s suit filing a motion to strike the negligence claims.

Granting the defendants’ motion, the Court held that the principal of governmental immunity barred the negligence claims because, as a general rule, a municipal employee has qualified immunity in the performance of acts that are discretionary in nature.  Although there is an exception when the injured party is an “identifiable person subject to imminent harm,” the Court held that Robby did not fall within that exception, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that, although participation in school sponsored athletic programs is most likely encouraged, participation is on a purely voluntary basis and, therefore, any resulting liability is barred by the doctrine of governmental immunity.  Significantly, although Robby was foreclosed from pursuing his negligence claims, his claim under a theory of recklessness, allowing for the recovery of punitive damages, was left intact. More recently, however, the defendants filed a motion for summary judgment attempting to eliminate that cause of action as well.  The defendants essentially claimed that, with respect to the plaintiff’s recklessness count, there are no factual issues in dispute and that as a matter of law, they are entitled to a judgment in their favor.

The court denied the defendants’ motion, however, preserving the plaintiff’s case, as well as the potential for punitive damages.  Explaining its decision, the Court first noted that Robby’s parents alleged the defendants had actual knowledge of the bullying yet failed to act, resulting in further escalation of the bullying, and that the defendants knew their failure to act would result in further harm to Robby.  Significantly, the Court then explained that summary judgment should not be used in cases that concern important public issues or questions of inference as to motive or intent, or ones that involve subjective feelings and reactions.

Citing various factual disputes in this particular case, the Court ultimately held that it is “suffused with subjective impressions, intent, motive and pubic issues which do not easily conform to the standards of summary judgment.” This ruling is significant, in part, because, as mentioned, the plaintiffs alleged that the school system, as well as various administrators, were not just negligent, but were actually reckless in their failure to respond to the bullying in question, thus exposing the school system not only to actual or compensatory damages, but punitive damages as well.  This decision is also significant because, although there is always a potential that such rulings will be appealed, the Court effectively gave the plaintiffs a green light to proceed to trial.

By:       Michael DeMeola, Esq.

If you have any questions regarding a school bullying case, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

 

Growing Awareness Surrounding Bullying of Students with Disabilities in Fairfield County

If you have any questions regarding bullying of students with disabilities, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Bullying has gained the attention of the media over recent years, but despite the focused spotlight, bullying is rampant in our society.  Among the easiest targets are children with special needs.  They are, on average, at a greater risk to be bullied than their non-disabled counterparts.  This is in part because special education children make easy targets. It is often harder for children with disabilities to recognize which behaviors are socially appropriate and those that are not.

Many organizations are stepping up to the challenge of educating the community and parents on the complex issues surrounding bullying of students with disabilities. The Stratford Special Education Teacher and Parent Association recently held a presentation on “Bullying of Students with Disabilities.” The presentation focused on how to help schools avoid litigation stemming from the targeting of children with special education needs. The hope is to set up systems in schools that address bullying before it becomes a problem.  Interestingly, the presentation also focused on teaching parents how to work with the school system to effectively develop plans to prevent harassment of their children.  It is important that parents work with school administrators to develop Individualized Education Programs (IEPs) that encourages students to learn, develop self-advocacy, and social and life skills necessary to reduce disability related harassment.

In addition to parents and school administrators working together to reduce and bring awareness to bullying and its drastic effects, it is also important to be familiar with the laws that protect children with disabilities.  At Maya Murphy, P.C., we have experience dealing with Education Law, harassment or bullying, Special Education Law, and discrimination.

By Leigh H. Ryan, Esq.

If you have any questions regarding bullying of students with disabilities, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Bullying In Schools: Are We Doing Enough to Protect Children?

Bullying In Schools: Are We Doing Enough to Protect Children?

On September 22, 2010, Seth Walsh should have been skateboarding or playing baseball, listening to his new favorite song, perhaps, or talking on the phone with friends.  He should have been happy and care free.  After all, Seth was only thirteen years old, an age when children should be laughing and dreaming of the endless opportunities that lie ahead.  Instead, Seth Walsh was lying beneath a tree in his backyard unconscious, no longer breathing.  He had just hung himself.  After spending the next week on life support, with his mother looking on, Seth ultimately died.

And just days earlier on the other side of the country, Tyler Climenti, an eighteen year old student at Rutgers posted what would be his last Facebook message, “Jumping off the gw bridge sorry.” Later that night Tyler took his own life as well- throwing himself into the dark and frigid water of the Hudson River.

In September, 2010, within nineteen days, four teenagers from around the country committed suicide.  William Lucas, from Greensburg Indiana was only fifteen, Asher Brown from Houston Texas was thirteen.  Like Seth, Billy hung himself.  Asher shot himself in the head with one of his step-father’s guns.  The common link?  All four had been relentlessly tormented at school.  Shining new light on what has become a national epidemic, these cases illuminate the devastating and increasingly deadly effects of bullying.  There is some debate over whether bullying is a new phenomenon or whether children are simply reacting differently.  Whatever the case may be, one thing is clear- we must take action to protect the destruction of more innocent lives.

The Department of Education recently entered the fray, releasing a “Dear Colleague” letter in which it urged school districts to address bullying within the classroom, providing school administrators with guidance on how to end harassment.  Additionally, within the last couple of years, many states, including New York and Connecticut, have passed anti-bulling legislation.  At what point should a school district be held liable when it fails to prevent bullying?  The answer to that question is not clear-cut.  Indeed, parents face several legal challenges when they pursue a case.

For instance, in 2008, the Superior Court at New Britain held that parents of a Berlin High School student could not maintain a negligence cause of action against the school district, the administrators or the child’s coach.  In Dornfried v. Berlin Board of Education, et al, Robby Dornfried’s parents alleged that while a freshman and sophomore at the high school, and a place-kicker on the varsity football team, their son was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.  They further alleged that school administrators, the guidance counselor, even Robby’s coach, knew of the problem, but did nothing to stop the behavior.  Robby eventually sought medical treatment and ultimately transferred to Northwest Catholic High School halfway though his sophomore year.

Analyzing whether the principal of governmental immunity barred suit, the Court recited the general rule that a municipal employee may be liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts- those performed wholly for the benefit of the public and supervisory or discretionary in nature.  Agreeing with the defendants, the Court found that the supervision of school children, not only during school hours, but at extra-curricular events such as football practice or a football game is a discretionary matter.  It next addressed whether it was appropriate to apply any of the exceptions to the immunity doctrine.  Generally, there are three:

  1. Liability may be imposed for a discretionary act when the alleged conduct involved malice, wantonness or intent to injure.
  2. Liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws.
  3. Liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.

Ignoring the first two exceptions, the Court addressed whether Robby was an “identifiable person subject to imminent harm” under the law.  Citing Supreme Court precedent, Judge Trombley, found he was not, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that although participation in school sponsored athletic programs is most likely encouraged, the participation is on a purely voluntary basis and, therefore, governmental immunity barred Robby’s negligence claims.

Earlier this year the Superior Court at New Haven reached a different conclusion in a bullying case.  In Esposito v. Town of Bethany, et al, the father of an elementary school student brought suit against the Town of Bethany, the Board of Education and the Bethany Public School District alleging negligence.  The student, Christina, was allegedly teased on a regular basis and at one point another student threw a ball at the back of her head during recess.  Christina sustained severe injuries “leaving her with an acquired brain injury and severe optical dysfunction.”

In response to Connecticut’s anti-bulling legislation, which became effective July, 2002, the Town of Bethany adopted a comprehensive anti-bullying policy.  The Plaintiff’s pointed to that policy arguing that the school failed to follow it and, thus, their acts were ministerial rather than discretionary in nature.  The Court framed the issue as whether, “…a detailed method of behavior was laid down for administrators and teachers for dealing with bullying depriving them of any judgment or discretion, or that, actions were dictated to deal with the problem that involved merely the execution of an established policy.”  Leaving this question unanswered, the Court ultimately erred on the side of caution, allowing the plaintiff an opportunity to present the facts at trial.

Later in its decision the Court addressed whether the “identifiable person subject to imminent harm” exception would apply if the school’s actions were in fact discretionary.  In doing so, the Court hinted at expanding its view of the doctrine in the context of school bullying.  The Court interpreted prior case law as suggesting that the only identifiable class of foreseeable victims is that of school children attending school during school hours, but went on to suggest, “[b]ut if a clearly identifiable person, child or adult, is exposed to imminent harm then the exception could apply also if that individual is exposed to imminent harm,” continuing, “an individual may be identifiable for purposes of the exception to qualified immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.”

In ruling in Christina’s favor, the court also noted that the appellate courts have relaxed the “identifiable person” portion of the analysis as it pertains to school children stating simply, “they are a foreseeable class to be protected.”  The Court concluded it must assume a similarly protective attitude will be applied in examining the “imminent harm” requirement stating, “bullying is condemned by state statute, children must attend schools, children are not as capable of defending themselves, they are vulnerable in the entire school area where unsupervised conduct prevails, and the bullying concept includes… a particular child subject to these acts.”

Whether a victim of bullying will be successful in bringing a claim against a school district will depend heavily on the facts and circumstances of the case as well as the theory of liability, the state in which the claims are made and the causes of action asserted.   As set forth above, in Connecticut governmental immunity may preclude recovery altogether unless the victim can demonstrate the application of an exception is appropriate.

By: Michael D. DeMeola

If you have any questions regarding bullying in schools, or any special education law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

What is the enforceability of an employment contract in Connecticut?

In Connecticut, the enforceability of an employment contract is based on general contract principals. This contract can be verbal, written or a combination of the two. In addition, employment contracts in Connecticut can be either express or implied. An employment contract is an express contract if it is written and signed by both parties. A valid express employment contract will contain wording that describes the job duties, working conditions, compensation, benefits and other employment details.

If, alternatively, an employment contract is implied, the terms of the contract would come from the conduct of the parties, verbal promises made before employment started, information stated in an employee handbook, promises made in an offer letter, and other sources.

Today, most employers have their employees sign a document agreeing to at-will employment as opposed to a defined term in an employment contract. This way, either the employer or the employee may end the employment relationship at any time, and usually for any reason.

In any case, Connecticut courts regularly find employment contracts enforceable against both parties. Such agreements will be upheld by Connecticut courts as long they do not violate any laws and were not entered fraudulently, under duress, or by mistake of the parties. If valid, both parties to the contract will be held responsible for abiding by its terms and liable for any breach. Frequently, allegations of breach of an employment contract involve issues of compensation and termination of employment.

If you are interested in drafting an enforceable employment contract, or interested in determining whether an employment contract you have already signed is binding, please feel free to call the Employment Law Group of Maya Murphy, P.C. in Westport, CT at 203-221-3100 or email Ask@mayalaw.com today.

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Termination Does Not Invalidate a Non-Compete Agreement

Termination Does Not Invalidate a Non-Compete Agreement

Built In America, Inc. v. Morris, 2001 Conn. Super. LEXIS 2953

Mr. Michael Morris was the owner of Built In America, Inc. until he sold his entire stock in the company to Mr. Marc Costa in October 2000. The parties executed a Purchase and Sale Agreement that legally transferred the stock and ownership of the company. The transaction included an employment contract for an initial period of two years and a non-compete clause that became effective upon Mr. Morris’s termination from the company. The company terminated Mr. Morris in April 2001 and he proceeded to work in direct competition with his former employer. Mr. Costa and Built In America sued Mr. Morris for violation of the non-compete agreement and asked the court to enforce the agreement’s provisions. Mr. Morris argued that the restrictive covenant was null and void because the company had breached the employment agreement when it unlawfully terminated his employment.
The court found in favor of Built In America, ordered the enforcement of the covenant not to compete, and issued an injunction. There was no dispute over the reasonableness of the covenant, only a dispute over whether it became void when the company allegedly improperly terminated Mr. Morris. Built In America cited previous Connecticut cases, most notably Robert S. Weiss & Associates, Inc. v. Wiederlight (208 Conn. 525 (1988)), where the court held that termination did not invalidate a non-compete agreement. Furthermore, the court concluded that the company was justified with respect to its decision to terminate Mr. Morris’s employment, stating that his “behavior was so outrageous that one is left to believe he was inviting his discharge”. The court ultimately concluded that the covenant was legally binding and ordered its enforcement.
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.

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Non-Compete Invalidated Due to Unnecessary Restrictions on Future Employment

Non-Compete Invalidated Due to Unnecessary Restrictions on Future Employment
Connecticut Bathworks Corp. v. Palmer, 2003 Conn. Super. LEXIS 2193

Connecticut Bathworks Corporation was a company servicing New Haven, Fairfield, and Litchfield counties that remodeled bathrooms via the installation of prefabricated acrylic bathtub liners and wall systems. The company employed Mr. Palmer from approximately the beginning of April 2001 to February 28, 2003 at which point Mr. Palmer voluntarily terminated his employment. He began to work for Re-Bath of Connecticut, a company in direct competition with Bathworks, the next day. The issue in this case is that Mr. Palmer signed a “Company Confidentiality Agreement” when he began to work for Bathworks that contained a covenant not to compete that prohibited him from “being employed by any business in competition with the plaintiff [Bathworks] within any county in which the plaintiff is doing business for a period of three years from the termination of his employment with the plaintiff”. This created a three-year prohibition on working for a competitor with the tri-county area of New Haven, Fairfield, and Litchfield.
Bathworks sued Mr. Palmer in Connecticut state court and requested an injunction to enjoin him from further violations of the non-compete agreement. The court analyzed the facts of the case, held in favor of Mr. Palmer, and denied Bathworks’s request for injunctive relief. The court’s decision ultimately came down to the issue of whether Mr. Palmer’s employment with Re-Bath would negatively affect Bathworks’s interests and business operations. Bathworks carried the burden of establishing the probability of success on the merits of the case and the court held that it failed to present sufficient evidence to indicate it would be directly and immediately harmed due to breach of the restrictive covenant.
Bathworks argued that Mr. Palmer acquired valuable trade secrets and information during his employment with the company and that his continued employment with Re-Bath would harm its operations. The court however found that Mr. Palmer, as an installer, did not have access to Bathworks’s confidential information or any trade secrets that would put the company at a competitive disadvantage. The court further noted that while Mr. Palmer was a skilled laborer, he was not a high-level executive, nor did he provide “special, extraordinary, or unique” services. Bathworks also failed to present any evidence to show that Mr. Palmer knew of or took part in the company’s sales/marketing activities or the development of a business strategy.
The court stated that its role in deciding the case was to balance the parties’ interest to fairly protect Bathworks’s business while not unreasonably restricting Mr. Palmer’s right to seek employment elsewhere. This agreement however, according to court, unnecessarily restricted Mr. Palmer’s right to work at another company because there was nothing about that employment which would disadvantage Bathworks in the industry. The non-compete agreement went beyond what was reasonably necessary to protect the company’s interests and as such, the court denied Bathworks’s request for an injunction.
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.

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What’s In a Separation Agreement?

With the economy where it is, the employment lawyers in the Westport, Connecticut office of Maya Murphy, P.C. are frequently asked to review and negotiate separation agreements for terminated employees.  These agreements often appear similar in form and content but must be carefully scrutinized, as they can contain hidden “trip wires” that can have a profound and long-lasting effect on the former employee’s job prospects.  Here are some of the things to look out for.

Most separation agreements contain restrictive covenants—confidentiality, non-solicitation, or non-competition clauses.  The first two—confidentiality and non-solicitation—are typically non-controversial, as they often confirm pre-existing obligations owed an employer by a former employee.  The last—non-competition—is usually a point of contention, as it impacts directly the employee’s ability to find a new position.  We have blogged extensively on non-competes, their interpretation and enforceability, etc. and readers are invited to review those prior posts.  But other terms and conditions of a separation agreement deserve your attention, as well.

First of all, do not be surprised by the length of a separation agreement.  A federal statute called the Older Worker’s Benefit and Protection Act requires the inclusion of extensive release language, and such things as a 21 day review and seven day revocation period.  Here are some of the other things you should be on the lookout for:

  • Consideration:  Make sure all of the severance benefits are correct and clearly stated.  This includes severance pay, COBRA coverage, etc.  Do not leave anything to inference or implication.
  • Confirmation that No Claims Exist/Covenant Not to Sue: Notwithstanding the comprehensive release language, some separation agreements will also require the employee to state that he/she is not aware of any factual basis to support any charge or complaint and that the employee will forego suit, even if such a claim exists.
  • Non-disparagement: Both sides often agree that neither will say anything to disparage the other.  Sometimes (particularly in the financial industry), a separation agreement will contain a “carve out” for employer reporting to FINRA or the SEC.  In such a case, it is important to have the agreement state that as of the employee’s separation date, the employer was not aware of any reportable event or information that would warrant comment or notation on a Form U-5.
  • Governing Law:  Employment law does not travel well across state lines.  For example, California law is much different than Connecticut’s.  Large companies will sometimes have their separation agreements governed by the law of the state where it has its headquarters, irrespective of the actual place of work of the departing employee.
  • Acknowledgement of Non-Revocation: An employee has seven days within which to revoke acceptance of a separation agreement.  Some companies adopt a “belt and suspenders” approach and require the employee to acknowledge in writing a negative—that they have not revoked such acceptance.

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.  203-221-3100.

 

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Non-Compete Enforceability: Must Protect Legitimate Interest & Not Be Punitive

Non-Compete Enforceability: Must Protect Legitimate & Not Be Punitive
Ranciato v. Nolan, 2002 Conn. Super. LEXIS 489

Historic Restoration and Appraisal, LLC (HRA) was engaged in the business of restoring primarily detached single-family homes that had suffered casualty damage from fire and/or water. The company employed Mr. Timothy Nolan to work as a project manager for jobs located throughout the state of Connecticut. Mr. Nolan’s employment began on November 18, 1996 and the company informed him shortly thereafter that his employment was contingent on the execution of a non-compete agreement. The parties signed the restrictive covenant on November 21, 1996 and it prohibited Mr. Nolan from performing the same services offered by HRA in the states of Connecticut, Massachusetts, and Rhode Island for a period of three years. The agreement did not affect Mr. Nolan’s ability to offer painting or home improvement services that were not in connection to fire and/or water damage. In exchange for this employment restriction, the agreement stipulated that Mr. Nolan’s annual salary would be $48,500. He felt that he would be fired if he failed to sign the agreement and signed it without consulting a legal professional.
HRA fired Mr. Nolan on January 24, 1997 after repeated incidents of discovering that he was receiving lewd and inappropriate materials via the company’s fax machine. He began to work for McGuire Associates shortly after HRA discharged him and performed marketing and business development services in the capacity of his new position. Unlike HRA, McGuire is a preferred builder and the court held that it did not compete with HRA. The company sued Mr. Nolan in Connecticut state court and asked the court to enforce the non-compete agreement that the parties had executed. The Superior Court of Connecticut in New Haven rejected HRA’s request and held that the company “suffered no financial loss as a result of the defendant’s employment by McGuire”.
According to the non-compete agreement, Mr. Nolan can be in breach only if he works at a company that is “in competition with” HRA. While the court acquiesced that HRA and McGuire were both in the construction industry, it held that they performed significantly different services and were not in competition with each other for clients or projects. The industry classified HRA as a “fire chaser” because it received most of its jobs by monitoring police reports and fire scanners to alert them of individuals that needed repairs for fire and/or water damage. McGuire however was a preferred builder and provided services for not only single-family homes, but also commercial and municipal buildings. The courts interpreted the significant differences between the two companies as adequate evidence that Mr. Nolan was not “in competition with” HRA because of his new employment with McGuire.
Furthermore, the court discussed the reasons why a court would enforce a non-compete covenant, specifically referencing the legal system’s desire to balance and protect the parties’ interests. Courts generally grant injunctions to enforce a non-compete agreement when the plaintiff employer can provide adequate evidence that the former employee’s breach will result in adverse financial consequences. The court noted that this policy did not apply to the case since HRA had not suffered any financial loss or hardship and Mr. Nolan did not have any access to confidential information that would be harmful to the company should it be disclosed.
Additionally, the court concluded that the time and geographical restrictions in the agreement were unreasonable given the facts of the case. HRA did not have anything to lose because of McGuire employing Mr. Nolan because of the differences in their business operations and the court held that the restrictions, if enforced, would only serve to prevent Mr. Nolan from employment at another company. The policy to enforce non-compete agreements focuses on protecting the interests of the employer and not to punish the employee and excessively restrict future employment opportunities. Specifically, the court cited that HRA could only “benefit from protection in the New Haven area” and that the “tri-state restriction imposed on the defendant was not necessary to protect any legitimate interests of the plaintiff and, therefore, [the agreement] was not ‘reasonably limited’”.
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.

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Non-Compete Enforceability: Must Protect Legitimate Interest & Not Be Punitive

Non-Compete Enforceability: Must Protect Legitimate & Not Be Punitive
Ranciato v. Nolan, 2002 Conn. Super. LEXIS 489

Historic Restoration and Appraisal, LLC (HRA) was engaged in the business of restoring primarily detached single-family homes that had suffered casualty damage from fire and/or water. The company employed Mr. Timothy Nolan to work as a project manager for jobs located throughout the state of Connecticut. Mr. Nolan’s employment began on November 18, 1996 and the company informed him shortly thereafter that his employment was contingent on the execution of a non-compete agreement. The parties signed the restrictive covenant on November 21, 1996 and it prohibited Mr. Nolan from performing the same services offered by HRA in the states of Connecticut, Massachusetts, and Rhode Island for a period of three years. The agreement did not affect Mr. Nolan’s ability to offer painting or home improvement services that were not in connection to fire and/or water damage. In exchange for this employment restriction, the agreement stipulated that Mr. Nolan’s annual salary would be $48,500. He felt that he would be fired if he failed to sign the agreement and signed it without consulting a legal professional.
HRA fired Mr. Nolan on January 24, 1997 after repeated incidents of discovering that he was receiving lewd and inappropriate materials via the company’s fax machine. He began to work for McGuire Associates shortly after HRA discharged him and performed marketing and business development services in the capacity of his new position. Unlike HRA, McGuire is a preferred builder and the court held that it did not compete with HRA. The company sued Mr. Nolan in Connecticut state court and asked the court to enforce the non-compete agreement that the parties had executed. The Superior Court of Connecticut in New Haven rejected HRA’s request and held that the company “suffered no financial loss as a result of the defendant’s employment by McGuire”.
According to the non-compete agreement, Mr. Nolan can be in breach only if he works at a company that is “in competition with” HRA. While the court acquiesced that HRA and McGuire were both in the construction industry, it held that they performed significantly different services and were not in competition with each other for clients or projects. The industry classified HRA as a “fire chaser” because it received most of its jobs by monitoring police reports and fire scanners to alert them of individuals that needed repairs for fire and/or water damage. McGuire however was a preferred builder and provided services for not only single-family homes, but also commercial and municipal buildings. The courts interpreted the significant differences between the two companies as adequate evidence that Mr. Nolan was not “in competition with” HRA because of his new employment with McGuire.
Furthermore, the court discussed the reasons why a court would enforce a non-compete covenant, specifically referencing the legal system’s desire to balance and protect the parties’ interests. Courts generally grant injunctions to enforce a non-compete agreement when the plaintiff employer can provide adequate evidence that the former employee’s breach will result in adverse financial consequences. The court noted that this policy did not apply to the case since HRA had not suffered any financial loss or hardship and Mr. Nolan did not have any access to confidential information that would be harmful to the company should it be disclosed.
Additionally, the court concluded that the time and geographical restrictions in the agreement were unreasonable given the facts of the case. HRA did not have anything to lose because of McGuire employing Mr. Nolan because of the differences in their business operations and the court held that the restrictions, if enforced, would only serve to prevent Mr. Nolan from employment at another company. The policy to enforce non-compete agreements focuses on protecting the interests of the employer and not to punish the employee and excessively restrict future employment opportunities. Specifically, the court cited that HRA could only “benefit from protection in the New Haven area” and that the “tri-state restriction imposed on the defendant was not necessary to protect any legitimate interests of the plaintiff and, therefore, [the agreement] was not ‘reasonably limited’”.
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.

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