Connecticut Supreme Court reverses Lyon v. Jones! Yipee!!

Contrary to my fellow blogger’s opinion, this decision is not a” yawner.”  In Lyon, our Appellate Court had ruled  that the State of Connecticut could not be sued in court under the Connecticut Fair Employment Practices Act (our anti-discrimination law) unless the Claims Commissioner gave permission.  This ruling ignored the plain language of the statute and ignored decades of practice by employment attorneys and judges.  

The effect of Lyon was that employees of the State could not bring their discrimination claims to court and were forced to accept as their sole remedy a hearing at the CHRO.  This forum deprived them of a right to a jury trial and the right to obtain reimbursement for their attorneys’ fees, among other limitations.  

The Supreme Court got it right in reversing this terrible decision.  Almost every practicioner I know predicted that Lyon would be reversed.  Even the Attorney General’s office agreed that the Appellate Court’s reliance on the doctrine of sovereign immunity was incorrect.

Far from being a boring case, this ruling restores the important right of a jury trial in Superior Court to employees of the State of Connecticut.

New Haven Fire Fighters case triggers debate

I have been waiting to blog about this case (Ricci v. DeStefano), not to be dramatic, but because I wanted to understand the complex issues that it presents.  My patience has been rewarded, and so have you.  George Will (Connecticut ties include being a Trinity College graduate) and Attorney David Rosen (a New Haven lawyer who brought race bias cases since the 70s) have provided the two sides of this coin far better than I ever could have. 

Mr. Will writes:

“Racial spoils systems must involve incessant mischief because they require a rhetorical fog of euphemisms and blurry categories (e.g., “race-conscious” measures that somehow do not constitute racial discrimination) to obscure stark facts, such as: If Ricci and half a dozen others who earned high scores were not white, the city would have proceeded with the promotions.” 

Attorney Rosen writes, in the Hartford Courant:

“It should recognize that it is not discrimination for New Haven to try to comply with the same civil rights law that led to more equal employment in the first place. The federal law against employment discrimination was intended to encourage employers like New Haven to act voluntarily to end group disadvantages. It was not intended to be a trap, damning employers when they act to head off possibly unlawful exclusion of minorities as well as when they don’t.”

Of course, the devil is always in the details.  I tend to think that Attorney Rosen has it right.  We are not yet in that “promised land” that Dr. King dreamt about where we can simply move forward without thinking about our racist past.  I do not believe that New Haven refused to promote Mr. Ricci because he is white.  I believe that it simply concluded that the test must have been biased.  If true, this is simply not discrimination.  Lets hope the Supreme Court gets it right!

More Assistant Managers win overtime claims!

On April 2, 2009, Judge Sarah Vance for the United States District Court for the Eastern District of Louisiana issued an Order and Reasons following a bench trial in favor of two Assistant Managers at Big Lots Stores, Inc.  Johnson, et al v. Big Lot Stores, Inc. 2009 wl 886232 (E.D.La. April 2, 2009).  They were awarded over $63,000 each, including bad faith liquidated damages.  They will also be awarded attorneys fees at a subsequent hearing. 

Judge Vance followed the recent 11th Circuit decision of Family Dollar Stores (see my recent post) in issuing this ruling.  These cases are important to the hard working retail assistant managers in Connecticut because the FLSA (the law applied in these cases) applies in Connecticut, too. 

The take away is that retail assistant managers are frequently misclassified as exempt executives when in fact their primary duty is not management.  Employers may not deny overtime pay under the Executive exemption of the FLSA unless the employee’s primary duty is management.  More and more, courts are recognizing this important law and awarding employees the compensation they have earned. 

There are several cases currently pending in Connecticut, including cases against CVS Caremark and Staples and it will be interesting to see how our District Judges apply this important law.  Nice job to Mr. Johnson and Mr. Burden, the plaintiffs, and to their attorneys and to Judge Vance.   Lets hope our Connecticut judges rule in a similar fashion!

Schering “sales reps” entitled to overtime!!

When is a “sales rep” not a sales rep?  When they don’t actually make sales, says the United States District Court for  the District of Connecticut (Arterton, J).

The Fair Labor Standards Act requires that overtime premiums be paid (time and a half) for all non-exempt employees.  Schering Corporation had designated its Pharmaceutical Sales Representatives (PSAs) as exempt under the FLSA’s outside sales exemption.  A group of these employees brought suit, claiming that they were not actually sales reps because they didn’t actually sell anything.  Kuzinski, et al v. Schering Corporation(2009 WL 807572 (D.Conn. March 20, 2009).  Judge Arterton bought the plaintiffs’ argument and denied Schering’s Motion for Summary Judgment.  The case is an interesting read, if for no other reason than to see how the pharmaceutical industry actually works.  In effect, these sales reps spend their days promoting the drugs with the goal of having the doctors prescribe their drug instead of the competition.  What the reps don’t do is actually consumate a sale.  That happens after the doctor prescribes the drug and the patient goes to the drug store. 

The opinion contains great employee friendly language, including references to the 2d Circuit about the remedial nature of the FLSA.  It can be used as a reference in almost any FLSA litigation.  And, as usual, Judge Arterton’s logic and analysis is impeccable.  She distinguished the defendant’s argument that their work is “incidental” to sales beautifully, indicating that this argument fails if you aren’t the person who actually makes the subsequent sale. 

The take away is that you have to actually sell something to be an exempt outside sales person under the FLSA.  The larger question is why didn’t Schering’s executives and attorneys get this simple question right when they misclassified these workers?  I hope the plaintiffs and their lawyers (Hurwitz, Sagarin, Slossberg & Knuff, LLC) go on to win double damages in this interesting case.