Jottings By An Employer's Lawyer

Saturday, April 17, 2004

Connecticut Supreme Court Rejects Compelled Self Publication

Since I don't often read the opinions of other states, I would not have caught the case of Cweklinksky v. Mobil Chemical Co. (Conn. 1/6/04) [pdf] except that it was answering a certified question from the 2nd Circuit which duly accepted its answer and applied it in Cweklinsky v. Mobil Chemical Co. (2nd Cir. 4/13/04) [pdf]. The plaintiff who had not been terminated for allegedly altering a doctor's note sued claiming defamation among other causes of action and testifying that the publication occurred because he felt obligated to tell employer's he was applying for work when they asked why he was terminated. Since that was primarily a decision of state common law which Connecticut had not addressed, the 2nd Circuit tossed it to them. After conducting their own survey of other states' law the court found:
Our own jurisdictional survey leads us to agree with the Court of Appeals' assessment that "most jurisdictions have yet to recognize compelled self-publication defamation or have expressly rejected it." ... Furthermore, although as many as seven state appellate courts have adopted the doctrine; ... the highest appellate courts of only two states, Colorado and Minnesota, have adopted it. Moreover, in both those states, the legislatures responded by eliminating or restricting the doctrine's application.
The Court went on to reject it primarily because of the harm it would do to open communications between employers and employees if employers were afraid that anything they said to an employee could be "retold" and serve as a basis of liability. A clearly reasonable fear, and thus, a totally reasonable decision.

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