LEGAL PITFALLS IN EMPLOYMENT

LEGAL PITFALLS IN EMPLOYMENT Presented by: Michael J. Rose, Esq. Rose Kallor, LLP 750 Main Street, Suite 606 Hartford, Connecticut 06103 860-748-4660 ...
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LEGAL PITFALLS IN EMPLOYMENT Presented by: Michael J. Rose, Esq. Rose Kallor, LLP 750 Main Street, Suite 606 Hartford, Connecticut 06103 860-748-4660 (phone) 860-241-1547 (fax) [email protected] www.rosekallor.com © ROSE KALLOR, LLP

Overview  This seminar will highlight areas in employment in which

employers may face difficult decisions that have legal consequences.

 The Pregnancy Discrimination Act (and its interplay with Workers’ Compensation    

and the ADA) Prevarication in Law Enforcement Free Speech Concerns Medical Marijuana (and its interplay with the ADA) Transgender Employees

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The Pregnancy Discrimination Act (and its interplay with the ADA and Workers’ Compensation Act)

 Case study: Female police officer advises she is pregnant. Her

doctor indicates that she cannot perform her full duties, therefore the officer requests a light duty assignment.  Do you have to give her an existing light duty position?  Do you have to create a light duty position if one does not exist?  Young v. UPS, 135 S. Ct. 1338 (2015).

Compare requests from non-pregnant workers to ensure that pregnant workers are not treated differently.  Evaluate how light duty requests are treated to determine if the employer’s current policy “significantly burdens” pregnant workers.  Employer must have a “sufficiently strong” justification for its accommodation decision if different from non-pregnant workers, but “cost” and “convenience” may not suffice. 

 What if rather than being pregnant, the employee was injured on the job and

broke her arm?

 ADA & Workers’ Compensation Provisions apply.

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Prevarication in Law Enforcement  Case study: A police officer is dishonest concerning his

involvement in an alcohol-related domestic dispute.

 While dishonesty/untruthfulness is not per se just cause for termination

of a police officer, there remains a public policy against intentional police officer dishonesty in connection with official duties because integrity and trustworthiness are integral to performing these duties.  Town of Stratford v. Am. Fed’n. & Mun. Emps., 315 Conn. 49, 55 (2014).

 Potential impeachment evidence of a testifying officer must be disclosed in a

criminal trial.

 Brady v. Maryland, 373 U.S. 83 (1963).  Giglio v. United States, 405 U.S. 150 (1972).

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Free Speech in Employment  First Amendment: Garcetti v. Ceballos, 547 U.S. 410 (2006).  When employees make statements pursuant to their official duties, the employees are not speaking as

citizens for first amendment purposes, and the constitution does not protect their speech from employer discipline.

 Conn. Gen. Stat. § 31-51q: Trusz v. UBS Realty Investors, LLC, SC 19323, 2015 Conn. LEXIS 282 (Oct. 1, 2015).

 Speech pursuant to state constitution is not analyzed under Garcetti.  The employee can prevail if “he speaks on a matter of unusual importance and satisfies high standards

of responsibility in the way he does it.”  Specifically, only an employees’ “comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor when an employee is speaking pursuant to official job duties.”  However, speech pursuant to an employee’s official duties regarding a mere policy disagreement with the employer is not protected, even if it pertains to a matter of public concern and has little effect on a legitimate employer interest.

 Blanket Rules on Speech © ROSE KALLOR, LLP

Medical Marijuana (and its interplay with the ADA)

 Requirements for pre-employment illegal drug screening  ADA does not protect employees who are currently engaging in the illegal use of

drugs.  Be careful: Drug tests could reveal information about disabilities that are protected.

 But while marijuana is illegal under federal law, the palliative use of

marijuana is permitted by CT law.

 Conn. Gen. Stat. § 21a-408p(b)(3): "No employer may refuse to hire a person or may discharge,

penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver [of medical marijuana, unless required by federal law or required by federal funding]. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”

 Zero tolerance drug policies  On the job vs. off the job  Safety concerns

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Transgender Employees  The Connecticut Fair Employment Practices Act, Conn. Gen.

Stat. § 46a-60 et seq. prohibits discrimination, harassment and retaliation on the basis of:  gender identity: a person's private sense, and subjective experience, of his or her

own gender.  sexual orientation: an enduring personal quality that inclines people to feel romantic or sexual attraction (or a combination of these) to persons of the opposite sex, the same sex, or to both sexes.

 There is no express federal law concerning transgender employees,

but the EEOC has advised that Title VII of the Civil Rights Act of 1964 includes protection of transgender employees.

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Additional Legal Updates  In your packet, you will find an update with respect to recent

court decisions that affect employment law.

 We have also included a summary of this year’s legislative

enactments that affect municipal employers.

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DISCLAIMER This seminar is intended to be for informational and educational purposes only and does not constitute legal advice. If you have any questions about the content of these materials, or are in need of legal advice, please feel free to contact Attorney Michael Rose at Rose Kallor, LLP, 860-748-4660 or [email protected].

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