Kevin Greene is Chair of the Firm's Labor and Employment Practice Area. His practice includes advising clients with respect to the hiring evaluation, discipline, termination and layoff of employees, leave policies, employee manuals, and a variety of other workplace legal topics. He is also a skilled litigator with extensive jury and non-jury experience in state and federal courts and provides litigation counsel on claims of unlawful discrimination, sexual harassment, disability discrimination, retaliatory discharge and violations of the Family and Medical Leave Act.
Additionally, Kevin defends businesses, automobile dealerships, insurance companies, lending institutions and national chain retailers in tort and consumer cases. He handles matters pertaining to the consumer claims alleging breach of warranty, unfair trade practices, Lemon Law and Truth-In-Lending violations.
Kevin is involved in numerous legal organizations. He was appointed by Judge Quinn to be an Attorney Fact-Finder/Arbitrator for the Connecticut Superior Court. He was also elected to serve as a Representative of District 12 (Hartford) in the Connecticut Bar Association House of Delegates. Additionally, he is also a member of the Employment Practices Committee of the Council on Litigation Management.
In 2009, the Hartford Business Journal named Kevin to its list of Forty Under 40 business leaders in the region. He is also active in the community and is on the Board of the Bushnell Park Foundation.
New ADA Amendments Expand Definition of Disabled Worker
Labor & Employment E-Newsletter, 01/01/2012
On January 1, 2009, new amendments to the ADA became effective which have considerably broadened the definition of disability in the workplace. There is no question that these amendments will have an impact on how employers respond to disability issues. The amendments reject previous Supreme Court holdings regarding the scope of the term disability and specifically identify certain limitations which will now qualify as disabilities under the act. Any individuals that fit within the scope of the new ADA definitions are protected by the ADA and may be entitled to reasonable accommodations in performing their job duties. The most significant aspects of the new amendments are summarized as follows:
1. Definition of Disability Expanded
The amendments instruct courts to construe the definition of disability broadly to provide coverage to the maximum extent permitted by the statute. This is a response to court decisions which were more restrictive in applying the definition of disability.
2. The Term Major Life Activity is All Encompassing
Previously, the ADA did not enumerate what constitutes a major life activity which must be adversely affected in order to claim disability under the act. The new ADA specifically provides a complete list of life functions which have to be taken into consideration when determining whether a worker is disabled, including: caring for oneself; performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; lifting; bending; speaking; breathing; learning; reading; concentrating; thinking; communicating; and working. If one of these functions is adversely affected, then the worker may be entitled to the protection of the ADA.
3. Workers Suffering From Many Common Diseases and Ailments May Be Covered
The operation of any major bodily function is also considered a major life activity under the new amendments. The amendments define major bodily functions to include neurological; brain; respiratory; circulatory, endocrine; and reproductive functions. Based on the expanded scope of what is considered a disability, those workers with sleep disorders, digestive disorders, fertility-related issues, hearing problems (even if addressed with a hearing aid,) learning impairments and attention deficit disorder could be considered disabled.
4. Corrective or Mitigating Measures Cannot Be Considered
Under the amendments, an employer cannot consider corrective measures (such as medication, prosthetics or medical devices) when determining whether an employee has an impairment that makes them disabled under the ADA. The new amendments reject the 1999 Supreme Court decision inSutton v. United Airlines Incorporated, which held that an employee who is able to overcome an impairment through the use of corrective measures is not considered disabled under the act. The amendments require employers to largely ignore any and all mitigating measures used by the worker in assessing whether the worker is disabled. An employer is still able to consider eyeglasses and contact lenses when determining if someone is disabled, but not hearing aids.
5. The Amendments Change The Legal Requirements For Employees Who Are Regarded As Having An Impairment
Under the current ADA, an individual is only required to prove he/she is regarded as disabled by his employer and is no longer required to demonstrate that the perceived impairment actually substantially limits a major life activity.
6. Transitory And Minor Impairments Not Covered By ADA
On a positive note, the new amendments did make it clear that the ADA will not apply to minor and transitory impairments which last or are expected to last for six months or less. However, a condition that is episodic or in remission is still a disability if it substantially limits a major life activity when the condition is in an active stage (e.g., cancer or diabetes).
Employers, management and human resource professionals must recognize that there will likely be an increase in requests for accommodations made by workers who now have an easier burden of proving they are entitled to that relief. Employers will need to be more cautious in considering requests for accommodations and should involve counsel in the fact-gathering and decision-making process. The new amendments also would signal that it is a good time to review job descriptions, disability policies and handbook provisions to prepare for the impact of the ADA amendments. Companies should provide training to their HR staff and managers to limit risk for workplace disability issues. The new amendments will likely increase litigation as more workers will fit within the ADA protections.Update Regarding New Connecticut General Assembly Laws Regulating Employers Which Became Effective October 1, 2011
Labor & Employment E-Newsletter, 12/01/2011
In this past session, the Connecticut General Assembly passed several new bills which impact employers. These bills became effective on October 1, 2011, except the paid sick leave bill which is effective on January 1, 2012. If you have questions regarding the legal requirements of these new provisions or how they impact your business, please contact one of the employment attorneys at Halloran & Sage:
Public Act 11-12 increased the administrative penalties for violating Connecticut's Personnel Files Act and provides that employers can be liable even for unintentional violations of Connecticut's personnel and employment files, laws and regulations. The first violation will result in a $500.00 penalty and subsequent violations can be fined at the rate of $1,000.00 per violation.
Public Act 11-36 now clearly provides that unemployment compensation appeals can be filed by claimants after the 21 day deadline if the claimant can demonstrate a legitimate and bona fide reason for not having filed within the deadline.
Public Act 11-52 requires companies that employee more than 50 people, with some limited exceptions, to provide all service workers as defined by federal regulations, at least 1 hour of paid sick leave for every 40 hours worked up to a maximum of 5 paid sick days per year. This bill and the various legal requirements were addressed and outlined in an earlier article on this website. As noted above, this Act will become effective on January 1, 2012.
Public Act 11-55 now prohibits employers from discriminating on the basis of gender identity or expression. This means that an employer cannot take adverse job action against an employee who exhibits through appearance or behavior a gender-related identity that is different from that traditionally associated with that person's physiology or assigned sex at birth.
Public Act 11-223 prohibits employers from requiring that an employee or job applicant consent to a credit check as a condition of employment unless (1) the employer is a financial institution; (2) the employee will be employed in certain specified financial occupations; or (3) a credit check is required by some other provision of state or federal law. The law states that employers can only use credit reports when making hiring decisions when the information contained in the credit report is substantially related to the job functions that will be performed by that employee.Connecticut Mandates Paid Sick Leave To Service Workers Causing Headaches For Employers
Halloran & Sage E-News Alert, 07/01/2011
On July 1, 2011, the Governor signed Public Act 11-52 which requires certain employers to provide 5 paid sick days per year to service workers in the State of Connecticut commencing on January 1, 2012. In becoming the first state in the nation to pass such a law, Connecticut has created an issue which must be addressed with caution by Connecticut employers who face significant potential penalties for non-compliance.
Some highlights of this new law are set forth below:
This law only applies to employers who have 50 or more employees in Connecticut during any one quarter of the prior year. There are specific exemptions for certain types of manufacturing or tax exempt organizations that provide recreational, child care and education services. It is important to note that the 50 person threshold is satisfied if the employer has 50 employees regardless of how many of them are actually designated as service workers entitled to sick leave benefits under the law.
Paid sick leave benefits are only required to be provided to service workers. The term service worker is defined as hourly, non-exempt employees who work in 1 of 68 broader detailed occupation code numbers and titles as specified in the law by reference to the Federal Bureau of Labor Statistics Standard Occupational Classification System. This particular provision could be troublesome for Connecticut employers and requires legal consultation as appropriate classification is difficult.
The legislation requires that each service worker accrue 1 hour of paid sick leave for each 40 hours worked up to a maximum of 40 hours per calendar year. The accrued sick time can be carried over from one year to the next but only 40 hours of paid sick leave can be used in any one year.
The paid sick leave mandated by this legislation can be used for the medical diagnosis care or treatment of a service worker's own illness, an injury or health condition of that of a service worker's spouse or child; for preventive medical care for the service worker or the service worker's spouse or child or for victims of family violence or sexual assault to attend medical appointments, counseling or court appearances.
It is important to note that if an employer already provides its employees with at least 5 days paid time off per year, for example vacation, personal days or paid time off, the employer is already in compliance with the law.
An employee is entitled to use accrued paid sick leave after completing the 680th hour of employment after January 1, 2012, if that employee was hired prior to January 1st. If the employee begins employment after January 1, 2012, they can use accrued paid sick leave upon completion of the 680th hour of employment from the date of hire.
The law has very specific notice provisions which can be satisfied by displaying a poster in English and Spanish in any place accessible to workers, but should also be included in employee handbooks.
The legislation contains strong protections for those workers who believe they have been retaliated against for using paid sick leave and allows an employee to file complaints alleging a violation of the paid sick leave law with the Connecticut Department of Labor which has the ability to award the employee of all appropriate relief including payment of paid sick leave, re-hiring, reinstatement payment of back wages and benefits.
We strongly urge all employers to immediately determine whether this new law applies to their organization, review their sick leave policies and update employee handbooks to address the new sick leave law.
If you have any questions regarding the applicability of this new paid sick leave legislation, please contact Mr. Greene.Non-Solicitation Agreement Missing Operative Language Causes Litigation Headache for Employer
Labor & Employment E-Newsletter, 07/01/2007
A recent Connecticut Appellate Court case underscores precisely why employers should ensure that their non-solicitation clauses comply with the requirements of Connecticut Law. In Hilb Rogal & Hobbs Co. et al. v. Randall, 115 CA 89 (2009), the plaintiffs, Hilb Rogal & Hobbs Company and Hobbs Group LLC, went through over three years of litigation with their former employee and defendant, Uta Peters Randall, over the enforcement of a non-solicitation agreement in an employment contract missing operative language.
The employment contract was signed by the defendant in October 1997 when the defendant had been employed by Hobbs for over ten years. The agreement included a non-solicitation provision which had two subparagraphs specifically outlining what an employee could and could not do during and after their employment with the company. However, the non-solicitation paragraph was without any promissory language and therefore did not set forth any express promise by the employee not to engage in the activities described in the subparagraphs. In 2002, Hobbs was acquired by Hilb, Rogal and Hamilton Company, which became Hilb Rogal & Hobbs Company. In connection with the transaction the defendant signed an acknowledgment and amendment agreement recognizing the original employment agreement and providing that it remained in effect. The acknowledgment and amendment repeated the language of the non-solicitation paragraph of the original employment agreement without mention of the paragraph's lack of promissory language.
In September 2005, the defendant informed the plaintiffs of her resignation effective in October 2005. In December 2005, the plaintiffs filed a complaint against the defendant for actively soliciting business from the defendant's customers after her employment in violation of the non-solicitation clause of the employment agreement. In January 2008, the trial court found that the defendant did not breach the employment agreement because the contract was missing the promissory words necessary to make provisions found under the non-solicitation paragraphs of the employment agreement enforceable. Additionally, because the plaintiffs failed to request a reformation of the contract to add the operative language, the court held that they could not supply needed language and make the contract enforceable. In April 2008, after the plaintiffs moved for articulation of the court's decision, the court explained that it did not find the non-solicitation paragraph ambiguous, but in the absence of the promissory language, the paragraph was meaningless.
The plaintiffs appealed the court's decision asserting that the court failed to enforce the plain meaning of the non-solicitation agreement in the employment contract. The plaintiffs argued that although the non-solicitation paragraph erroneously omitted prohibitory language, the non-solicitation obligations were evident in the context of the entire contract and the defendant had breached such obligations. Ultimately, the Appellate Court held that when interpreting a contract, the language should be read in light of the situation of the parties and the circumstances connected with the transaction. Additionally, the court stated that because contracts are construed as a whole all relevant provisions are considered when determining the intent of the parties.
Based on this reasoning, the Appellate Court found the non-solicitation agreement of the employment contract enforceable. The court held that despite the missing language from the non-solicitation paragraph, it was clear from the title of the employment contract, Employment, Non-Solicitation, and Confidentiality Agreement, and the language of the non-solicitation paragraph, that the parties intended that the defendant would be prohibited from engaging in solicitation for the time period specified in the paragraph. Additionally, the fact that other paragraphs of the employment contract imposed fees for violations of the non-solicitation agreement evidenced that the non-solicitation paragraph was intended to prohibit certain conduct. The Appellate Court also held that Because the intent of the non-solicitation agreement is plain from an objective reading of the contract, a request for reformation is not necessary to enforce the provision. Therefore, the employment contract did not need to be reformed in order for the court to supply the obvious missing terms that made the non-solicitation agreement enforceable.
Non-Solicitation agreements are an effective way for employers to ensure that their talented employees will not be recruited by competitors, and if they do leave, they will not compete directly against their former employer and company. Although the end result for this employer was a favorable one, it certainly was costly and time consuming for them. However, it is important that the agreement is drafted in a manner enforceable under Connecticut law while still providing the restrictions, guidelines and protections employers want and need. This case is an example of a situation where a poorly drafted contract resulted in headaches for all involved. At Halloran & Sage LLP, we routinely draft and review non-solicitation and non-compete agreements for employers to ensure that their agreements are tailored to their specific needs and enforceable under Connecticut law.U.S. Supreme Court Makes It Clear That Employees Alleging Age Discrimination Must Prove that Age Bias Was Actual Cause of Adverse Job Action
Labor & Employment E-Newsletter, 07/01/2007
In a 5-4 decision authored by Justice Clarence Thomas in the case of Gross v. FBL Financial Services, the United States Supreme Court clarified that the plain language of the federal Age Discrimination in Employment Act (ADEA) requires that an employee affirmatively establish that age was the but for cause of the employer's adverse decision and not simply one motivating factor underlying the action taken by the employer. This June 2009 opinion holds that a plaintiff claiming age discrimination must prove the challenged decision was made because of age - effectively eliminating mixed motive cases where an employee could show that age was a motivating, but not the sole reason, for the adverse job decision. Although the decision is strongly grounded in the text of the ADEA and reflects a strict construction of the because of' statutory language, it is inconsistent with the standard that is applied in Title VII litigation (which governs sex, race, ethnicity claims) which only requires a showing that a prohibited bases for discrimination was a factor in the employer's decision.
This decision will certainly make it easier for an employer to prevail in age discrimination cases at the motion to dismiss and summary judgment stage and will provide greater leverage in negotiations. In addition, employers may see a decrease in the number of claims made in situations where multiple potential causes may have played a role in an employee's termination. However, it will be interesting to watch whether Congress and the new administration take action to introduce a bill to amend the ADEA so that it tracks the same standard in Title VII requiring an employee to only show that age was a motivating factor in the employer's decision-making. Thus far, the Obama administration has been proactive in introducing employment reIn a 5-4 decision authored by Justice Clarence Thomas in the case of Gross v. FBL Financial Services, the United States Supreme Court clarified that the plain language of the federal Age Discrimination in Employment Act (ADEA) requires that an employee affirmatively establish that age was the but for cause of the employer's adverse decision and not simply one motivating factor underlying the action taken by the employer. This June 2009 opinion holds that a plaintiff claiming age discrimination must prove the challenged decision was made because of age - effectively eliminating mixed motive cases where an employee could show that age was a motivating, but not the sole reason, for the adverse job decision. Although the decision is strongly grounded in the text of the ADEA and reflects a strict construction of the because of' statutory language, it is inconsistent with the standard that is applied in Title VII litigation (which governs sex, race, ethnicity claims) which only requires a showing that a prohibited bases for discrimination was a factor in the employer's decision.
This decision will certainly make it easier for an employer to prevail in age discrimination cases at the motion to dismiss and summary judgment stage and will provide greater leverage in negotiations. In addition, employers may see a decrease in the number of claims made in situations where multiple potential causes may have played a role in an employee's termination. However, it will be interesting to watch whether Congress and the new administration take action to introduce a bill to amend the ADEA so that it tracks the same standard in Title VII requiring an employeelated legislation. to only show that age was a motivating factor in the employer's decision-making. Thus far, the Obama administration has been proactive in introducing employment related legislation.
News & Events
Kevin Greene Presents Employment Seminar to CARA
Kevin Greene recently presented a seminar entitled Consumer and Employment Law Issues for the Connecticut Auto Dealerat the Annual Symposium for the Connecticut Automotive Retailers Association. Approximately 75 auto dealers from across Connecticut attended the event. The group was also welcomed by Attorney General George Jepsen who offered some introductory remarks to the group.Kevin Greene Elected Delegate of the Connecticut Bar Association
Kevin Greene was recently elected to serve a three-year term as a Delegate for District 12 on the House of Delegates of the Connecticut Bar Association (CBA). His appointment is based on his many years of commitment to the practice of law, as well as his volunteer service and support of the CBA.
The Connecticut Bar Association is a membership organization of Connecticut attorneys working to advance the principles of justice, the practice of law and the public understanding of the law.HBJ Selects Kevin Greene as recipient of Forty Under 40 Award
Halloran & Sage is pleased to announce that Kevin Greene, the Chair of Halloran & Sage's Labor and Employment Practice Group, has been selected as one of the recipients of the Hartford Business Journal's 40 Under Forty Award for 2009. The Hartford Business Journal has selected 40 young, energetic entrepreneurs and business leaders with exceptional energy and vision.
In his fifteen years of practice, Kevin has tried nearly fifteen jury cases and over fifty court trials. Kevin's practice includes defending local businesses, automobile dealerships, insurance companies, lending institutions as well as national chain retailers in employment, tort and commercial cases.Kevin Greene Named Chair of Firm's Labor and Employment Practice Group
Halloran & Sage is pleased to announce that Kevin Greene has been named Chair of the firm's Labor and Employment Practice Group.
Kevin defends and counsels employers in litigation alleging unlawful discrimination, sexual harassment, disability discrimination, retaliatory discharge and violations of the Family and Medical Leave Act. His broad practice also includes the defense of businesses, automobile dealerships, insurance companies, lending institutions and national chain retailers in employment, tort, and consumer cases. He has extensive jury and non-jury trial experience in state and federal courts.