Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

The New York Times recently ran an informative article about NBC’s late night television woes. Low ratings and pressure from affiliates have made NBC move Jay Leno from 10 pm to 11:35 pm, thereby bumping Conan O’Brien’s The Tonight Show to 12:05 am (actually, wouldn’t that be tomorrow?)

Mr. O’Brien issued a respectful but witty statement expressing his thoughts and disappointment. He also remarked on the speculation that a rival network is wooing him. But the Times suggests that O'Brien's contract with NBC includes a non-compete clause that could prevent him from jumping to another network.

Time to call in the lawyers.

As an attorney, I don’t practice in entertainment law but I find the story raises some interesting general contract issues. Of course, the terms of the contract are not public, so I can only draw some general inferences. Mr. O’Brien signed a contract with NBC to take over The Tonight Show. According to the Times, although the contract did not specifically state that the show will begin at 11:30 pm, for 60 years it has immediately followed the local nightly news. In order for O'Brien to extricate himself from the contract, he would have to show that the time change constitutes a breach. Or, he could leave and possibly breach the contract.

The article states that NBC executives are confident they have not breached Mr. O’Brien’s contract, since he still will be the host of The Tonight Show.

What does this story teach us about contracts? First, a decision to breach a contract is usually a business decision, not a moral one. But, if a contract is enforceable, the breach is going to cost. The question is whether the cost of the breach is greater than the cost of faithfully carrying out the contract.

Secondly, a contractual right provides certain protections. But, it doesn’t protect individuals or a management team from sabotaging their own interests. As I’ve told clients numerous times, it may seem attractive to play “hardball,” but it’s not always the best alternative.

A case in point is the subplot mentioned in the article concerning the Fox network. I’m curious as to whether Fox, which, according to the article, has the contractual right to impose a new late-night program on its affiliates, would actually enforce its contractual right if that action jeopardized its long-term relationship with the affiliates. Those "Seinfeld" re-runs are reportedly very lucrative.

Finally, aggrieved employees should follow Mr. O’Brien’s example and take the high road. Don’t burn any bridges or publicly lash out at those you believe wronged you.

Incidentally, another Celebrity vs. Network case was put to bed today. The AP reports that New York's top court rejected Dan Rather's bid to reinstate his $70 million breach-of-contract lawsuit against CBS. Apparently, the court ruled that since he was paid, there was no breach of contract.

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As I’ve said before, I am not an economist but occasionally play one on this blog (though I’m always conscious of my amateur status in the field).

Imagine my pleasure, therefore, of attending the informal “seminar” conducted by a REAL economist, Nicholas Perna, at the Ridgefield Chamber’s “Rise & Shine” breakfast earlier this week. Dr. Perna was able to side-step ideology and talk “real” economics, not only in an understandable fashion, but also with humor.

Our law practice, like any small business, is directly impacted by key economic trends. We also have to manage our practice around those trends. For example, last year, there was a drop in real estate transactions, while there was an increase in employees contacting us to review severance agreements. In Big Law, outright layoffs and the rescinding of job offers to graduates were even better evidence.

So, in addition to being informative and entertaining, the Rise and Shine breakfast was directly on point. My thanks to Dr. Perna and the Chamber.
 

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Good news, bad news.

Bad news first:  Health officials are warning there will be another H1N1 virus outbreak this fall, potentially worse than last year’s.

Good news: The Center for Disease Control (CDC) anticipates that an H1N1 vaccine will be ready for distribution by mid-fall of 2009. Connecticut Governor Jodi Rell announced that she will be making the flu vaccines free for all Connecticut residents. (The Ridgefield VNA is already planning flu and pneumonia clinics).

If there is flu pandemic, big business will likely go on as usual. However, according to a national survey recently conducted by the Harvard School of Public Health, only one-third of businesses believe they can sustain operations without severe problems, if half their workforce were on sick leave for two weeks due to swine flu. Those in a smaller workplace should take precautions now.

Business Week suggests that employers update employee contact information and develop a “pandemic preparedness plan.” The Connecticut Employment Law Blog (CELB) offers specific steps from the CDC’s website, including encouraging sick workers to stay home, and providing flexible leave policies.

Employers should consider consulting an attorney for potential issues that may arise: what are the confidentiality guidelines for disclosing information about an employee’s health? How much sick leave do you have to provide?  We hope it would not be often needed but, in case of complications triggered by the flu, the Family and Medical Leave Act provides eligible employees with certain provisions of unpaid leave. CELB discusses other legal issues that may be of interest to employers.

According to the CDC, the best advice regarding H1N1 is relatively simple: cover your mouth when sneezing or coughing, wash hands well, and stay home when sick.
 

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As indicated by a recent Employee Rights Post, firing an employee on trumped-up charges in retaliation for filing discrimination charges is a definite no-no.

The story illustrates the importance of context. For example, New York and Connecticut are both “at will” states. This means that employees can be fired at any time for any reason, even “trumped up” reasons. But, there are always exceptions, prohibited discrimination being one of the biggest, and retaliation being another.

When employer and employee are covered by non-discrimination laws (not all are), the firing can’t be for a discriminatory reason. And, even if the firing is for a seemingly legitimate reason, it can’t be in retaliation for filing discrimination charges.

Retaliation occurs when the employee has already made a complaint about some kind of discrimination and the employer takes an adverse action, such as firing the employee. Retaliation can also involve actions other than firing, such as demotion, unfavorable assignments and general harassment.

To be clear, an employee can still be fired or transferred for legitimate reasons. But, as suggested by Ellen Simon, those reasons will need to stand up to scrutiny because of the context - - a pending discrimination complaint.

Note, too, that the original discrimination claims can be dismissed while the retaliation claim survives.
 
 

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Blogs are buzzing about a lawsuit brought by a 27-year-old woman against Monroe College to get her $70,000 tuition payment back because she claims the school hasn’t done enough to help get her a job.

Through this lawsuit, she and her legal advisors have raised the question: to what degree (yes, the pun is intended) is an educational institution responsible for a student’s post-academic success?

Not surprisingly, Monroe College spokesman Gary Axelbank claims the lawsuit is without merit.

News accounts, although numerous, tell us very little about the specific facts or the legal theories behind the lawsuit. We are not in the business of trying to handicap pending cases, especially based on pure speculation. However, we are curious, so we checked out the Monroe website for background. Here’s a sampling:

According to Monroe College’s Mission Statement, the school provides “caring and effective teaching and sustain faculty who…are dedicated to student success. We build on these strengths to prepare graduates for successful careers.” The College’s Office of Career Advancement helps with career assessment, resume writing, job search and strategy, employer recruitment and placement, interviewing skills, and other job search guidance. Monroe provides every student with a Career Advisor and offers access to online and web-based career resources.

We will continue to follow this case as it develops in the judicial system. In the meantime, the court of public opinion, despite not having all the facts, seems to be readily in session.
 

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The nature of an “adverse employment action” is discussed by Daniel Schwartz in the Connecticut Employment Blog (CEB) in a post entitled Court: Denial of Transfer Is Not Race Discrimination.  The post discusses a Connecticut District Court case, Charles v. State of Connecticut Judicial Branch, decided only a day or so ago (hence, no citation available yet), for which a link is provided in the CEB post.

In this case of alleged discrimination based on race, the Court decided a “truly” lateral transfer with “no significant changes in an employee’s conditions of employment” is not an adverse employment action. The decision still leaves open possibilities where the transfer is not “truly lateral” and where “significant changes” in employment conditions might be identified and argued. That’s a discussion for another case and another time.

The CEB post, after reviewing the case, makes two points: (1) that a small number of employees may sue for anything and (2) a good human resources practice should be about positive options for employee career paths, not just discipline and discharge.

Well said. We would add one other point: “good human resources practice” is not the concern of a specialized department of a large organization but of the management and principals of any organization of any size.   In the 16^th page of the 20 page decision, the Court reminds the parties that the issue in a discrimination case is whether an employer discriminated not whether the employer is “wise, shrewd, prudent or competent.” However, unwise, imprudent and incompetent actions are nothing to be proud of and, among other consequences, invite lawsuits.

For a fuller discussion of the case, we recommend the CEB post.

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Partner Beverley Rogers led a lively discussion of Employment Law, primarily hiring practices, at the “Brown Bag Lunch” sponsored by the Ridgefield, CT Chamber of Commerce on Thursday, February 21. Our other partner, Angelo Tartaro, also attended and provided light assistance. The questions raised by attendees highlight issues of concern to the Ridgefield business organizations.

Our goal is to keep our clients and readers out of litigation, if possible. With that in mind, in leading the discussion Beverley did not dwell on technical distinctions and defenses such as the varying definitions of “employer” and “employee” under federal and state statutes and caselaw. Rather, the focus, as in this Blog, was on “best or at least better” practices of good management to avoid tangles of a legal dispute over hiring and other employment practices.

With that in mind, Beverley presented and discussed a series of questions that may and may not be asked at an employment interview. For example, an interviewer is asking for trouble when questions involve childcare arrangements but not whether a frequent travel schedule will be acceptable to the applicant. An interviewer should never ask whether an applicant has ever been arrested but it is perfectly acceptable to ask whether the applicant was ever convicted of a crime. Questions relating to sexual preference, religious practices, national origin (such as the derivation of your last name) have not place. Questions relating to whether the applicant can perform the essential functions of the position, with or without a reasonable accommodation, are acceptable. Of course, the interviewer should not suggest that a reasonable accommodation might be necessary; the applicant must request it. The examples discussed are too numerous to review here in detail; to download her handout, click here.

The attendees were very interested in how to handle a situation where the applicant volunteers information about a “forbidden subject.” The interviewer should state that the information is not appropriate to discuss any further and return the discussion to the essential functions of the position. And, the interviewer’s notes should not reflect any information about the inappropriate subject matter.

Beverley advised that notes of the interview should be kept separate from the job application. An attendee volunteered a humorous anecdote that reinforced the point. It seems the organization’s Human Resources auditors wanted to know why a notation of “W” was made an a job application. The implication was that the notation meant “White” or “Woman.” In fact, it denoted the “Western” division of the hiring organization. The better practice is not to have any notations that could be misinterpreted for a discriminatory purpose. Beverley presented and discussed a sample employment application from ____________________, which can be downloaded by clicking here.

Moving on from employment to other practices, Beverley explained that Connecticut and New York are still “employment at will” states in which an employee can be terminated for any reason but that protected classes of employees cannot be terminated for a discriminatory reason or under other circumstances covered by specific statutes or for specific conduct that is actionable under federal or state common law. An example of the latter was illustrated by one of our firm’s recent cases in which a client received a favorable settlement after suing an employer for defamation because he was wrongfully accused of stealing without an investigation.

In that case, an investigation was promised by the Employee Manual but the management largely ignored its manual. Attendees were very interested in Employee Manuals and the nuances of what they should or should not include as policies. That discussion was too extensive for this article but two general points stand out: (1) the better practice is to issue a manual and obtained a signed receipt when first issued and when updated; and (2) the manual does not do much good if actual practices deviate from those promised in the manual.

We may not be the most objective observers but we came away with the impression that the attendees found the event to be enjoyable, informative and topical.

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