Robert Rhodes is an experienced trial and appellate lawyer who concentrates his practice in the area of Indian Tribal Law. Specifically, Robert represents clients, including the Mohegan Tribal Gaming Authority, in both Connecticut State Court and the Mohegan Gaming Disputes Trial Court on issues ranging from Tribal Sovereign Immunity, the Indian Civil Rights Act, Dram Shop claims, and wrongful death claims to claims arising from premises defects, motor vehicle accidents, defective products and negligent security. This practice includes numerous trials before the Gaming Disputes Trial Court and appeals before the Gaming Disputes Appellate Court.
Robert also represents municipalities, school boards and government officials in civil rights, education, employment and general liability matters. In almost 20 years of practice, he has defended municipalities, police officers, mayors, selectmen, building officials and other public officials throughout Connecticut. In civil rights cases, he has defended a wide range of claims in both state and federal court, including claims of false arrest and excessive force to claims alleging First Amendment violations and violations of Due Process and Equal Protection. Robert also represents both municipalities and private businesses in employment claims before the Connecticut Commission on Human Rights and Opportunities, the EEOC and both state and federal court.
In education law, Robert has provided legal counsel to school boards on issues such as redistricting, labor and employment disputes, civil rights claims and expulsions. Robert has extensive experience in appellate advocacy and has argued appeals before the Connecticut Appellate Court and the United States Court of Appeals for the Second Circuit.
Nice guys finish last . . . or do they?
M. Lee Smith Publishers Connecticut Employment Law Letter, 05/02/2003
In dealing with workplace disputes, every employer, boss, supervisor, and HR person must ultimately decided how to handle the situation. While employee manuals and policies may suggest or dictate a certain course of action, there's almost always room for discretion. In that event, you must decide how gently or harshly to deal with an employee who you suspect has engaged in some misconduct or illegal activity. Should you be the nice guy or the bad guy?
In dealing with any type of dispute, whether it involves the investigation of a complaint, disciplinary action, or a discharge, never abandon your common sense or your sense of fair play. Do a thorough investigation of every complaint, making sure that you peak with all parties and witnesses. Anyone who's suspected or accused of some type of misconduct should be notified of the allegation and given fair opportunity to present his side of the story, regardless of the provisions of your employee handbook. That'll go a long way toward preventing wrongful discharge claims and also be of great assistance on defending against them.
When you suspect an employee has engaged in criminal conduct, such as theft, assault, or drug dealing, you should probably contact the local law enforcement authority once you've completed your investigation. Obviously, that decision will depend on factors such as the amount of evidence you've obtained and the risk of adverse publicity to your business if you contact the police.
All too often, employers will decide to give the employee a break and simply fire him and leave it at that. That course of action is simple and easy and avoids the involvement of third parties and a prolonged criminal prosecution. But it's very common for an employee who's been fired for theft or other criminal conduct to file a lawsuit after his dismissal. Those lawsuits have been based on claims of wrongful termination, denial of due process, retaliation, and even false imprisonment.
In those cases, the former employee usually denies any criminal conduct ever occurred and argues that the allegations were merely a pretext for an otherwise unlawful firing. In those cases, a criminal complaint to the local police department by the employer likely would have prevented the lawsuit. Regardless of whether an arrest or a conviction was made, you would still have documentation of the incident to use in your defense against the fired employee's claim. Also, a conviction would obviously prevent a lawsuit or make it easily defensible.
Finally, a police investigation would strongly discourage the fired employee from pursuing the matter further. But you should always be sure that you have enough evidence of criminal conduct before contacting the police, or else you could be subjecting yourself to a lawsuit for malicious prosecution.
Some employers prefer to have fired employees sign releases, agreements not to sue, and agreements to make restitution in lieu of filing a criminal compliant. While those are wise steps to protect yourself from future claims, they aren't bulletproof. The fired employees can always deny that they signed the document or could even claim that the document was signed under duress such as the threat of physical violence or false imprisonment. Believe us, those kinds of claims have been made. In those instances, the employer always regrets not contacting the police.
When you're making personnel decisions, always exercise common sense. Whether it's a complaint of sexual harassment or theft, be sure to do a complete investigation and provide the accused employee with notice of the evidence against him and an opportunity to present his side of the story. When you have clear evidence of criminal conduct, you may want to contact the police - so long as a police investigation or arrest wouldn't adversely affect your business.
Reprinted with permission of publisher. First appeared in Connecticut Employment Law Letter (May 2003). For subscription information, call (800)274-6774.Settlement ... What's In It For You?
M. Lee Smith Publishers Connecticut Employment Law Letter, 02/02/2003
In the modern day of the litigious workplace, any employer, no matter how fair or professional, is bound to be sued or be the subject of some type of complaint or grievance. When that happens, the usual outcome is some type of settlement. No matter how frivolous or meritless the claim, most get settled for various reasons. Sometimes it's less expensive to settle the claim than to fully litigate the matter. Other times, the disruption to the business caused by litigation far outweighs the costs of a settlement. No matter what your motivations are for settling, you should make sure you get as much from the settlement as possible. The question is, What can you get from settling a claim?
Tips for settlement
The obvious answer is a withdrawal or dropping of the claim or lawsuit. That's the primary goal of any settlement. But there are other important goals that can be achieved. For example, if the employee has any other claims pending, including but not limited to lawsuits, Connecticut Commission on Human Rights and Opportunities claims, or demands for unpaid wages, overtime, unused sick time, or vacation time, the settlement process should be used as a vehicle for resolving all those outstanding issues. You should be sure that the settlement documents, commonly known as releases, covers all types of claims that have been made or could be made by the employee.
If the complaining individual is still employed, you may also want to condition any settlement on his separation or retirement from your business. Lawsuits usually create a great deal of animosity between the parties, and it's usually in everyone's interest (especially yours) to have the complaining employee leave his position. The basic goal is to have the parties (employer and employee) part company and get on with the future. This goal usually can't be achieved if a disgruntled employee remains with the business.
In furtherance of that goal, you should also be sure that the settlement documents contain a clause stipulating that the employee will never seek employment with your business in the future and that any such employment will be denied. While this clause may appear unnecessary, you want to be sure that the relationship between the parties is forever severed and that the employee will have no possible grounds to file a lawsuit in the future.
You also need to make sure that, to the extent that any settlement isn't paid through your normal payroll, the settlement documents contain a clause in which the employee accepts full responsibility for any taxes that may be due on the settlement. While lawyers like to characterize any settlement as compensation for pain, suffering and humiliation, the federal government tends to take a different approach. In dealing with settlements from employment disputes, the IRS usually attempts to categorize everything as taxable wages. Therefore, it's always helpful to explicitly spell out in the settlement agreement that the employee will be responsible, and hold you harmless, for any tax liability that could result from the settlement.
Finally, in any lawsuit, there's bound to be bad blood and ill will on both sides. The employee will naturally seek employment in the future, possibly in the same or a similar field. He won't want any negative comments, information, or stories floating around that could jeopardize his ability to obtain employment. As for the employer, you naturally don't want to have disgruntled former employees badmouthing your business to the public, competitors, or other companies with which you transact business.
To achieve that goal, you need to incorporate a nondisparagement clause into your settlement documents. That type of clause contractually binds the parties and prohibits them from making negative or disparaging statements about each other. A violation of the agreement will normally result in monetary penalties, which are also incorporated into the settlement documents. For example, such clauses usually state that if the former employee makes disparaging comments about you or your business, he must pay you $5,000 or whatever amount is agreed to in the settlement documents.
The primary goals of any settlement are to (1) resolve the pending claim or lawsuit; (2) resolve any other claims that have been made or could be made, (3) prevent any future lawsuits, (4) end the relationship between the employee and employer when desired and possible, and (5) allow the parties to move into the future without any lingering effects from the claim or lawsuit. You should try to achieve as many of these goals as possible when settling a claim. Remember, as the party paying the money, you have some leverage in trying to achieve the goals, so it's in your interest to take full advantage of the settlement process.
Reprinted with permission of publisher. First appeared in Connecticut Employment Law Letter (February 2003). For subscription information, call (800)274-6774.Legal Discrimination in Four Letters: BFOQ
M. Lee Smith Publishers Connecticut Employment Law Letter, 03/01/2002
Can discrimination be legal? The short answer is yes. In this age of political correctness and an overabundance of litigation based on age and gender discrimination, don't you wonder if there are rules about the age of the person flying the airliner that you're sitting in? Or whether the law permits certain restaurants to hire only female waitresses ... or why you don't see 80 year old police officers running down the streets after purse snatchers? These are some of the everyday instances in which we observe blatant discrimination, but it seems to make sense. So how can such discrimination be legal?
These examples of Bona Fide Occupational Qualifications, otherwise known as BFOQ's. A BFOQ is a defense to acknowledged discrimination, usually based on the existence of a facially discriminatory policy, such as individuals over the age of 50 shall not be hired as police officers. Title VII permits you to discriminate on the basis of religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise. This narrow exception has also been extended to discrimination based on age through the Age Discrimination in Employment Act (ADEA). This exception does not apply to discrimination based on race.
Whether a particular policy amounts to a Bona Fide Occupational Qualification requires an analysis of the facts of each particular case. The EEOC does have a list of BFOQ's which it has recognized. However, just because a particular policy or rule does not appear on the EEOC's list, does not mean that the policy or rule cannot be a BFOQ. This is ultimately a factual determination for the court or jury.
In determining whether a discriminatory policy constitutes a BFOQ, one must first look at the particular job and what it requires. You must then look at the discriminatory policy and determine if it is necessary to performing the job. For example, the FAA has a rule which requires that airline pilots are not allowed to serve in the capacity of captain after reaching the age of 60. This rule is obviously based on the probability that a pilot's skills have deteriorated with age and that the safety of the crew and passengers depend most heavily on the captain. This rule only pertains to the position of captain and does not preclude pilots of 60 years of age or older from serving as flight engineers, because age is not a BFOQ for the position of flight engineer.
In claiming the defense of BFOQ, the employer has the burden of proving the discriminatory policy is a valid BFOQ. The employer must demonstrate plainly and unmistakably that its discriminatory employment practice meets the terms and spirit of the Title VII exception. In other words, you must demonstrate that a discriminatory practice is reasonably related to an essential operation of your business. There is no requirement that formal studies be conducted to ascertain the need for a BFOQ. A BFOQ can be demonstrated through the use of expert witnesses, empirical data or just plain common sense.
BFOQ in Age Discrimination Claims
The courts have developed a two step test for analyzing BFOQ defenses in dealing with policies which preclude a certain age group from a job. An employer must show that there is either (1) a substantial basis for believing that all or nearly all employees above a certain age lack the qualifications for the position in question; or (2) that reliance on an age classification is necessary because it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job. These BFOQ's usually apply to jobs which involve driving, flying or physically demanding jobs.
BFOQ in Gender Discrimination Claims
While BFOQ's related to gender discrimination do not have a specific two step test, the analysis does require that the discriminatory practice is reasonably necessary to the normal operation of a particular business or enterprise. In other words, gender discrimination is valid only when the essence of the business operation would be undermined if the business eliminated its discriminatory policy.
For example, corrections facilities and mental institutions which maintain gender segregated wards usually have rules requiring at least one staff member of the same gender as the patients to always be on duty. This policy was found to be a valid BFOQ because the privacy rights of the individual patients necessitated that a staff member of the same sex be available to assist patients in toileting, showering and disrobing. Another example would be the argument that the essence or identity of a restaurant is based on its exclusive employment of female waitresses and bartenders, and the business would be undermined if it were forced to hire male waiters and bartenders.
Surprisingly, gender discrimination based on an employers concern for the safety of its female employees is not a recognized BFOQ. In that case, a battery manufacturer enacted a policy which prohibited women who were pregnant or capable of bearing children from being placed in jobs involving lead exposure. The purpose of this rule would be to protect against any risk of harm to fetuses which female employees might conceive. While this policy was well intended, it was found to be illegal because the policy was not reasonably necessary to the normal production of batteries. To put it another way, fertile women were as efficient in the manufacturing of batteries as anyone else.
How effective is the BFOQ defense?
The BFOQ is a defense which is very narrowly restricted to limited instances and should not be relied in most situations. In determining whether a discriminatory policy can be justified as a BFOQ, you must think about the nature of your business, the requirement of the specific job in question and whether the discriminatory practice is necessary to preserving the normal operation of your business and the essence of your business. Would Hooters be Hooters if the person taking your drink order were a 300 lb. man? Or would it become a nondescript hamburger joint? Does the safe operation of a school bus reasonably require that the drivers be under 65 years of age? Are drivers above this age more likely to get into accidents? Should male corrections officers in a female facility be limited to certain duties? Should police officers or firefighters be a certain age?
There is no single answer or test which can be applied to these various situations. Each and every situation must be examined individually, taking into account the many factors concerning the nature of the business, the goods or services to be provided and the duties and responsibilities of the job in question.
Reprinted with permission of publisher. First appeared in Connecticut Employment Law Letter (March 2002). For subscription information, call (800)274-6774.