Not My Brother’s Keeper: Varley v. Regional School District No. 4 and A School District’s Responsibility For “Free Speech” Claims Involving a Vendor

by Pullman & Comley - School Law
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When entering into contacts with vendors,  school districts hope that 1) the vendor will comply with the law, and 2) in any event, the vendor will be responsible for its own employment-related disputes.  In Varley v. Regional School District No. 4, 2014 WL 1814187(Conn. Super. April 4,  2014), a Superior Court judge held that a school district could not be held liable under a statute protecting employees against deprivation of “free speech” rights as the consequence of a bus contractor terminating of one of its drivers.

In Varley, the plaintiff had been hired as a bus driver by a company that provided transportation services to a regional school district.  Due to parental complaints, the district requested that the bus contractor remove the driver from providing services to the district’s students and routes, as was permitted by its contract.  After her removal, the plaintiff/driver then quit her job.  Subsequently, the driver filed suit against the school district, asserting (among other things) that her resignation was compelled by “intolerable conditions” caused in part by the school district retaliating against her for her exercise of free speech rights, as protected by Connecticut General Statutes §31–51q.  The alleged free speech was based upon the fact that on two occasions, the plaintiff appeared at school district committee meetings to comment about her job duties.

The school district asserted, among other defenses, that it could not be liable under Connecticut General Statutes §31–51q because it was not the employer of the plaintiff.  The Superior Court agreed and entered summary judgment for the school district.  The court relied upon the express wording of this statute, which provides for liability for “any employer  … who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed” by the free speech provisions of the United States and Connecticut Constitutions  (emphasis added).  While this statute does not expressly define “employer,” the court relied upon both accepted and prior case law definitions of that term in finding that the bus contractor, and not the school district, was the employer. The court noted that the district did not pay the wages, and did not have the authority to hire or discharge the plaintiff.; rather, the district merely had the contractual right to request removal of the driver from the district’s routes.

The court further observed that when a customer (or client) purchases a good or service, its money “may indirectly pay the wages of countless workers. Yet, the customer does not assume the duties of an employer to those workers.”  In addition, the “control” that the district had over the plaintiff was also typical of that usually exercised by a client or customer, and noted that a “client does not become an employer under §31–51q merely by giving the actual employer feedback about an employee.”

The court also rejected a claim that the school district “tortiously interfered” with contractual relations between the plaintiff/driver and the bus company, noting that absent some evidence that the school district fabricated the parental complaints, the school district’s expression of dissatisfaction with the plaintiff had a valid basis, was permitted under its contract, and was not motivated by malice.

Lessons learned (and why should I care about this decision)? You can usually have some comfort that when you contract with a business to provide services, you do not become the “employer” of that business’s employees for purposes of all legal obligations customarily owed by an employer to its employees.  For example, if you told a law firm not to assign to you a particular attorney, you should not have to worry about facing litigation if the law firm subsequently “disciplined” or fired that attorney, unless there was some malicious attempt by you to cause harm to the attorney, as opposed to a legitimate expression of your preferences as a client.  There also is a difference between having a contractual right to request that a vendor not assign one of its employees to perform services for you and having the power to fire that employee.

That being said, you should include provisions in contracts with vendors indicating that nothing in the contract is intended to establish an employee-employer relationship with the contractor or with any of its employees. When it comes to insulating oneself from potential liability, it clearly is better to be safe than to be sorry.

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