Think You Have An Employment Contract? Better Check

, The Connecticut Law Tribune

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By not hiring a lawyer, Rocky Hill optometrist Robert Aube might have thought he was saving a bit of time and money when, in March 2007, he wrote a letter to his optical lab manager, Norma Cruz, about her employment. What was supposed to be a simplification has become a story about the limits of labor-saving devices in employment contracts.

To date, unsnarling this do-it-yourself agreement has cost the doctor $80,000 in legal fees, as he tries to make the point that he never had a binding contract with Cruz and shouldn't have to pay her the $60,000 she was awarded in a wrongful termination lawsuit. The state Supreme Court recently gave Aube a partial victory, ordering a new trial with additional evidence after concluding the letter agreement alone was too ambiguous to be enforceable.

That assessment is not held by Associate Justice Andrew McDonald, who in dissent accused his colleagues of engaging in "linguistic origami" in finding ambiguity in a document he judged to be perfectly clear.

The agreement begins: "Norma Cruz Employment Contract: This will cover the 36 month period starting April 1, 2007 and ending March 31, 2010." It goes on to specify Cruz's responsibility for "all the eyeglasses produced in this office" and details work time to the hour, a $59,800 salary, and a one percent bonus if monthly receipts exceed $65,000.

The letter also covers Cruz's retirement account, health and dental benefits, and adds: "Any increase in health insurance premium will be absorbed by Visual Perceptions LLC for the duration of the contract."

Both Aube and Cruz signed the agreement. But after Cruz took more than two weeks of time off in October 2008, Aube fired her. He contended it was for cause, and that she was an at-will employee who could be terminated without cause.

In a wrongful discharge trial before Hartford Superior Court Judge A. Susan Peck, attorney Richard Carella of Updike, Kelly & Spellacy represented the employer, and Andrew Houlding, of Rome McGuigan, represented Cruz.

For Peck, it was simple contract construction. She found all the necessary elements for a contract for a set period of time. That's important. Connecticut's "default mode" for employment agreements is the employment-at-will doctrine. As three courts spelled out in this case, an employer or employee can end an "at-will" agreement any time, for any or no reason. The few exceptions include a firing in violation of some important public policy (like racial discrimination, or whistleblowing) or if the contract is for a definite time period.

The letter said it "covered" a 36-month period. Aube's argument, advanced by Updike lawyer David Makarawicz on two levels of appeal, was that "covering" the 36 months did not create a guaranteed period of employment. It simply defined the duration of her at-will employment.

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