PROTECTING YOURSELF – JUNE 2008

Employees Protected From Retaliation – Recent Supreme Court decisions provide workers with better protection from retaliatory conduct.

$950,000 Settlement – Paid by Town of Greenwich to a Casper & DeToledo client as a result of a fall on an icy sidewalk causing significant injuries.

Preventing Brain Injury In Sports & Recreational Activity – Find out more about sports related head injury.

Statutes of Limitations – Learn about the deadlines in Connecticut by which various types of claims must be filed.

Noncompetition Agreements: What You Need To Know



Employees Now Have Better Protection From Retaliation

Workers now have better protection from retaliation, thanks to two new Supreme Court decisions.  On May 27, justices voted on the side of employees who had faced retaliation after complaining about race and age discrimination, citing the Civil Rights Act of 1866 (specifically Section 1981) and the Age Discrimination in Employment Act of 1967.

In CBOCS West v. Humphries, the Supreme Court granted a black Cracker Barrel employee the right to bring a lawsuit under Section 1981.  This worker was not limited to filing suit under Title VII of the Civil Rights Act of 1964, which has a shorter deadline (90 days versus 4 years) and limits the amount of money that a plaintiff can receive.  The Supreme Court decided that, while Section 1981 does not explicitly prohibit retaliation for exercising one’s rights under the statute, such prohibition was implied.

A Postal Service employee, Myrna Gomez-Perez, had complained about age discrimination.  Once she filed a complaint with the Equal Opportunity Employment Commission, she suffered a significant number of retaliatory acts from her supervisors.  She had not been specifically covered by the law, which disallowed discrimination against private sector employees but not federal employees.  In the decision of Gomez-Perez v. Potter, however, Justice Alito confirmed that the law applies to both.  He explained that, “The key question in this case is whether the statutory phrase ‘discrimination based on age’ includes retaliation based on the filing of an age discrimination complaint.  We hold that it does.”

These decisions were based in part on a 2005 Title IX decision, which prohibited retaliation against complaints of discrimination in public schools, even though the law had omitted any specific ban on retaliation.  There the Court explained that retaliation itself is discriminatory, and thus is banned under our anti-discrimination laws: “Retaliation is . . . a form of ‘discrimination’ because the complainant is being subjected to differential treatment.”

Employees now have clear protection if they decide to exercise their rights and protest discriminatory treatment.

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$950,000 Settlement for Fall on Greenwich Sidewalk

A Casper & DeToledo client was recently paid $950,000 to settle a claim against the Town of Greenwich as a result of her fall on an icy sidewalk on a driveway to a town parking lot.  Read more about the case: Sharon Sanders v. Town of Greenwich

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Preventing Brain Injury In Sports & Recreational Activity

Warmer weather brings about an increase in physical activity.  With that comes an inevitable number of injuries, including head injuries.  Many people, young and old, suffer concussions during physical activities such as playing football, soccer, lacrosse as well as other sports.  Make no mistake about it, a concussion is a brain injury.  It can cause the same sort of unfortunate consequences that may result from a head injury suffered in a motor vehicle crash or a fall.  There are specific guidelines that apply to health care providers, trainers, coaches and faculty/administrators of schools when an athlete has been injured.  The Center for Disease Control has recently released a package of information so that everyone can learn more about the epidemic of sports related head injury.

You can order this information free of charge at http://www.cdc.gov/TraumaticBrainInjury/index.html

 

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Statutes of Limitations

Connecticut Personal Injury Statutes of Limitations
Generally the Connecticut statute of limitations requires that a suit be filed within two years from the date of the incident in order to preserve your right to pursue such a claim.

In some instances, if you are injured on public property or your injury was caused by the acts or omissions of a public employee or official, there may be a strict written notice requirement.  Failure to comply with such a notice requirement may defeat your claim.  For example, if your injury was caused by a defective highway or sidewalk, the written notice in statutory form must be filed within ninety (90) days of your injury.  Notice of intent to file a claim against a municipal employee must be filed within one hundred eighty (180) days of the incident.

If your claim involves a medical malpractice or other healthcare malpractice claim in Connecticut, then the applicable statute of limitations is two years from the date of the malpractice or two years from the discovery of the malpractice, whichever is later, but in no event, later than three years from the date of the malpractice.  Under some circumstances, if you have continued to be treated by the healthcare provider after the date of the malpractice, then the statute of limitations applicable may be extended to two years from the date of the last treatment rendered by the healthcare providers.  In addition, Connecticut law governing healthcare malpractice claims requires that no such lawsuit may be filed without a certificate of merit validating that a proper inquiry has been made and that the claim is meritorious.  Every potential claimant in such a claim is entitled to secure from the Clerk of the Superior Court an extension of time on the statute of limitations of ninety (90) days in order to properly investigate the claim.

Connecticut Employment Law Statutes of Limitations
If your claim involves employment discrimination, there are very short time periods for filing claims. If you believe you have been discriminated against because of race, gender, national origin, religion, age, disability, pregnancy or marital status, your claim must be filed with the Connecticut Commission of Human Rights and Opportunity and the Equal Opportunity Commission within 180 days of the discriminatory act. If you work for the federal government, your claim must be filed within 90 days.

If you believe you have been subjected to sexual harassment, that same 180 day time period applies.  And, if you believe you have been retaliated against because you protested discrimination against you or someone else, that same 180 day time period also applies.

Connecticut Product Liability Law Statutes of Limitations
If your claim arises under Connecticut product liability law and involves a defective product, whether a consumer product including an automobile, industrial equipment, or pharmaceuticals, your claim must be brought within three years from the date when the injury or death is first sustained or discovered or in the exercise of reasonable care should have been discovered. In the event that the injury or death occurs as a result of the use of a product in the course of employment, the product seller and manufacturer may be insulated from responsibility if the injury or death occurs more than ten years after the manufacturer or seller parts with possession or control of the product.

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Noncompetition Agreements: What You Need To Know

Let us say, for example, that a man named John Doe works for the ABC Corporation. He would like to transfer to a rival company on the other side of town, the XYZ Corporation, perhaps because the location is more convenient, perhaps because they will offer to pay him more, or perhaps because he likes that work better. No matter the reason, he fills out an application, gets the job, and is ready to move on when suddenly he gets a notice from the ABC Corporation’s legal department. It claims that, because of a clause he signed called a noncompetition agreement, if he wants to quit, he is going to have to wait two years before he is legally allowed to join the XYZ Corporation, or any other company using the same market in a fifty mile radius from his current job. How is that possible?

Noncompetition agreements exist to protect employers from former employees’ knowledge of their business practices and customers. They provide specific restrictions on where and when the former employees can work for rival companies. When a company suddenly loses a seasoned employee, it often feels that loss in a variety of ways. The company no longer has John Doe or his experience, nor does it have his connections and relationships with the customers. Oftentimes rival companies will gain all these benefits from hiring the employee, not to mention possible knowledge of the original employer’s business practices and trade secrets. Noncompetition agreements serve to dissuade employees from making career choices that will greatly harm their employers. Problems arise, however, when certain agreements become too restrictive and stifle the former employee’s ability to earn a livelihood.

Although many noncompete agreements are drawn up in businesses ranging from internet advertisers to manicurists, not all of them are held up in court as enforceable. The fairness of noncompetes are judged by five criteria. Employers must first establish a reasonable time and geographic limit to the agreement. Most restrictions lasting longer than two years are deemed unenforceable. The definition of a reasonable geographic limit is generally in an area where the former company does business; thus, a company that exclusively conducts its business in Fairfield County would not be justified in restricting its employees from jobs in all of Connecticut. These two criteria are judged together and therefore larger geographic areas with shorter time restrictions and smaller areas with longer time restrictions are more likely to be upheld in court. The third criterion is the overall fairness of the protection and the fourth is the extent of the employee’s opportunity to pursue his or her occupation. The fifth and final criterion is the extent of interference with the public interest, meaning that if a certain area is short on, for example, certain types of physicians or security personnel, noncompetition agreements for these occupations would not be enforced. Overall, the time and geographic restrictions are the most important factors for consideration; if these two are found to be reasonable, generally the agreement is enforced. However, if any one of these criterion is found to be unreasonable by the court, the entire agreement is generally thrown out rather than revised, so employers must take special care in preparing them.

Additionally, there arguably has to be some sort of consideration for the employee in exchange for signing the agreement, although this is a loose condition: the ‘consideration’ could be merely the job a person is applying for, or part of a regular pay raise. Whether a company can fire someone for refusing to sign a noncompete is still legally fuzzy, not to mention counter-intuitive considering the intent of the agreement is to retain employees. The enforceability of noncompetition agreements continues to be battled out in courts throughout the country, and new legislature revolving around the issue has appeared in Connecticut as recently as last year. Noncompete agreements, however, are still largely considered on a case-by-case basis.

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Have a great summer and be safe.

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