Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

NLRB and the “Purple” Crayon: NLRB Rewrites Its Decision on Employer E-mail

Posted in Highlight, Human Resources (HR) Compliance, Labor Law & NRLB, Litigation

The NLRB, right now, is union-friendly. We know it. Employers know it. Politicians know it. The unions know it.

It’s stacked 3-2 with Democrat appointees so the NLRB taking its training wheels off and is doing what it has always done. It has shifted its decisions based on the politics.

Yesterday represented just the latest in a long line of decisions where the NLRB has suddenly “seen the light” from a prior decision and overrules itself without much real logic.

It’s not right or wrong. This is just how the NLRB works. When Republicans controlled the Board, it did the same thing.

The NLRB rewrites its decisions. And creates fantastical changes with the use of a crayon (or pen, or keyboard) — just like that childhood story about Harold.

So, yesterday’s decision in Purple Communications, Inc. regarding the usage of an employer’s e-mail system should come as no surprise (and won’t be if you attended my firm’s Labor & Employment seminar in October where we talked about this case coming down just like this.)

I asked one of our labor gurus and a frequent blog contributor Jarad Lucan, to first recap what is going on.  He talked about this case at our October seminar:

Oh, 2007. Those were the days for employers.

The Sopranos made their exit. The last Harry Potter was released.

And the NLRB issues the Register Guard decision (see Dan’s post from way back then).  

The decision said that employees had no rights under labor law to use an employer’s email system, let alone to use it for statutorily protected communications, such as union organization efforts, as long as the restrictions placed on the email system by the employer were nondiscriminatory. 

According to the Board:

Nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.   That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that the union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitation for Avon and the union. 

Yesterday, a divided Board overruled Register Guard declaring that it was incorrectly decided.  

In its Purple Communications Inc. case, the Board held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email system.” 

Put differently, if an employer has allowed its employees to use its email system for non-work related  reasons (i.e., incidental personal use), then an employer must also allow those employees to use its email system for communications protected under the Act, such as communications about union organization efforts or the scheduling of solidarity marches to protest the employer’s conduct. 

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The “Association” Game: How a Spouse’s Cancer May be Covered by the ADA

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Manager & HR Pro’s Resource Center

Last week, we talked about an employer’s obligations when it comes to an employee who has cancer. But what about an employee’s spouse? Does the employer have any legal obligations there?

Let’s start first with a story:

Jake and his supervisor, Alex, have had a great working relationship but lately, things seems to have changed. At least that’s how Jake sees is after he told Alex that his wife is suffering from a long-term disability — cancer.

Although Jake has been a good performer for years, Alex has recently expressed his concern that Jake will not be able to satisfy the demands of the job due to the need to care for his wife. Alex begins to set unrealistic deadlines for projects for Jake and even yells at Jake in front of co-workers about the need to meet the deadlines.

Alex also began requiring Jake to meet company policies that have never been strictly followed, such as giving 2 weeks advance notice of leave.  Now, Alex has removed Jake from team projects because Jake’s co-workers don’t think Jake can be counted on to complete his share of work “considering all of his wife’s medical problems.

Jake is frustrated. He’s complained to management but to no avail.  Now what?

At first glance, you might think this is a FMLA issue; taking time off for a family member’s serious health condition is one of the key points of the FMLA. But a deeper look shows that’s not really what’s going on.  This doesn’t have to do with leave.

Instead, it seems that the supervisor is treating an employee differently because of his relationship with someone who has a disability.   The question is — is there a legal claim?

According the EEOC, there is.

Indeed, given this above scenario, the EEOC concluded in Q&A release that “the employer is liable for harassment on the basis of [Jake's] association with an individual with a disability.” In other words, the employee may have a claim under the ADA.

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Who Needs Santa? All I Want for Christmas is a Visit From OSHA

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations

My colleague, Marc Herman, returns today with a holiday-themed post filled with — workplace safety issues? Read on.

Holiday season shopping . . . the home to nostalgic tunes, perpetual lines, frenzied bargain hunters, overflowing parking lots, and OSHA.

For those who can’t remember your government acronyms, it’s the United States Department of Labor’s Occupational Safety and Health Administration

Were you thinking, perhaps, of Santa instead?

As retailers get in full swing shopping extravaganza mode, OSHA ––a federal agency charged with regulating the health and safety of employees in the workplace–– has been issuing press releases noting that they are keeping a close eye on the wellbeing of retail employees this holiday season.

In a recent one, OSHA forewarned large retailers of the acute dangers faced by retail employees this holiday shopping season “if the proper safety procedures are ignored.”

(For those who enjoy the Internet’s dark side, you can also check out the “Black Friday Death Count.”)

The warning comes six years after a Walmart employee was tragically trampled to death amidst a mob-like rush by frantic, bargain-hungry, shoppers on Black Friday; receiving a citation for “inadequate crowd management,” Walmart Stores, Inc. received a $7,000 fine from OSHA.

Emphasizing the risks posed by ruthless shoppers, OSHA has provided major retailers with “Crowd Management Safety Guidelines.”

Those guidelines implore retailers to adopt measures such as: providing trained security personnel, having emergency procedures in place, and ensuring that emergency exits remain unlocked and accessible––undoubtedly pragmatic advice.

Ultimately, though, perhaps this will be a relic of a by gone era.  The crowds at Black Friday this year seemed the thinnest in years. 

It seems that perhaps Santa is doing more of his shopping on the internet from the warm confines of the North Pole.

Supreme Court: Employees Need Not Be Paid For Post-Shift Security Checks

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Litigation, Wage & Hour

When the U.S. Supreme Court rules on an issue in a 9-0 fashion — with a decision penned by Justice Thomas, no less — you can fairly conclude that the issue is not all that difficult.

Indeed, the SCOTUSBlog summed up the employment law decision today pretty succinctly:

Workers who are required to stay after their normal hours on the job to undergo a security screening are not entitled to overtime pay while they wait for that process and then go through it, the Supreme Court ruled unanimously on Tuesday.

The case of Integrity Staffing Solutions v. Busk involved screenings of employees at Amazon.com warehouses after their shifts concluded.

The screenings, which could take up to 25 minutes, were deemed by the court to not be “integral” to the employee’s job.  Those screenings could have been eliminated and it would have had no impact on the employee’s ability to do the job itself.

Contrast that with the “Donning and Doffing” case of earlier this year, where the putting on of personal protective equipment could be seen as necessary for employees to do their jobs (but that some clothes might not be.)

In Connecticut, the decision should have minimal impact.

The Second Circuit has been pretty consistent in its reading (essentially in concurrence with the Supreme Court’s conclusion) and even the U.S. Department of Labor had said that the employee’s arguments were contrary to the established reading of the law.

It’s not very different that the employees who are required take shuttle buses to parking lots after their shift. That is not compensable either.

Nevertheless, if you are an employer that requires your employees to come into work early or stay after and go through some type of screening or process, this is definitely a decision to review to make sure your practice falls within the applicable state and federal laws.

Court: Breach of Anti-Harassment Policy in Company Handbook — Titled “Employee Agreement” — Can Be a Viable Claim Without Disclaimer

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Litigation, Manager & HR Pro’s Resource Center

I’ve talked many times before about the importance of a well-drafted disclaimer in your employee handbook (here and here, for example).

This is not a new thing and in Connecticut dates back to an important case back in 1995 .

Without such disclaimers, employers can be subject to a breach of contract claim by your employees.

Yesterday, a federal judge in Connecticut was the latest to reinforce this message by allowing a breach of contract claim to proceed based on the employer allegedly failing to comply with its own anti-harassment policy, even though the federal legal claim of harassment was time-barred.

You can download the decision denying the employer’s motion for summary judgment on this issue in Mariani v. Costco Wholesale Corp. here.

One important note at the outset. This decision does not mean Costco is liable for a breach of contract; all the court decided is that the employee’s claim can proceed to a trial.  (In doing so, the court threw out many other claims of the employee.)

The facts on this issue seem straightforward. Costco seemingly has an employee handbook that it titles “Employee Agreement”.  It requires the employees to acknowledge receipt.  Costco conceded to the court that this “Agreement” could create a contractual obligation to its employees.

But, according to the court, Costco’s anti-harassment policy created an additional contractual responsibility that it did not disclaim. In other words,  the court said that while the employer was under no obligation to have tougher anti-harassment policies than state or federal law — having said it would abide by stronger language, it must follow that or face a breach of contract claim.

The court’s “money” quote is this:

The Employment Agreement does not contain any disclaimer language to the effect that its “super” anti-harassment provisions do not create legally enforceable protections beyond the protections of background law. Today’s corporate employers compete not only on grounds of their raw ability to make, deliver, and sell goods and services at a low or reasonable cost but also on grounds of their corporate self-image as “good” corporate citizens. They likewise compete on grounds of their ability to attract employees by means of promises of innovative management practices that foster dynamic workplaces that are comfortable and safe. This is not to fault the fact that Costco has adopted progressive anti-harassment policies but only to make clear that these policies, as framed without disclaimer, may give rise to legally independent and enforceable obligations for the benefit of employees that rely on them

How can Connecticut employers avoid this same result?

This case should be yet another reminder of the importance of a disclaimer in any company handbook that these policies.  Remind employees that no provision of the handbook creates an employment contract or any other obligation in regard to employment.  And consider using this language in the acknowledgment of receipt.

And, without stating the obvious, consider calling your employee handbook, well, a handbook instead of an “agreement”.  If you call it an agreement, a court isn’t going to disagree with you.

With the year coming to a close, this is the perfect time to have your handbook reviewed by an attorney.  Otherwise, you could be facing an employment law claim that you created yourself.

 

Costco Contract Claim

Cancer and the Workplace: Tips for Employers

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center

Hope you all had a wonderful Thanksgiving weekend.

Last week, I shared my family’s personal story about how cancer has impacted us.  With that in mind, I thought I would share a few tips for employers.  Even if you don’t presently have an issue with an employee, it’s worth familiarizing yourself with some of the rules of the road.

First off, to no one’s surprise, cancer is very likely a “disability” under the ADA.  Even if an employee is in remission from cancer, they can still fall within the statute’s protections as having a “record of” a disability (cancer).

It is so common, that the EEOC has released set of questions and answers to address cancer-related employment issues.  It’s a good starting point for employers when facing these issues.

The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, his actual performance is the best measure of ability to do the job.

One question that the EEOC addresses, for example, is “When may an employer ask an employee if cancer, or some other medical condition, may be causing her performance problems?”

The EEOC does not bar such questions in their entirety.  Indeed:

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as extreme fatigue or irritability, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.

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A Thanksgiving to Remember: When Cancer Strikes

Posted in Featured, Highlight

The moment when you learn your wife has cancer gets imprinted on your brain in a hurry.

At least for me, it did.

That happened back in February of this year.  I haven’t talked about it on the blog yet for several reasons including that my wife is much more private online than I am.

But she suggested that I talk about it publicly on the blog now, if only to let others to know that they are not alone in having cancer affect them or a family member.  And to raise awareness of this very common type of cancer.

You see, my wife is young — if you still count the early 40s as young — with no history of colorectal cancer in the family.  So, when she was diagnosed, it came as a shock to her. And our entire family.

As the much-used phrase goes, life hasn’t been the same since then.

Getting diagnosed with cancer is both scary and frustrating.  Scary for the obvious reasons, but also frustrating, because medicine moves at its own pace. Doctors are careful and cautious, making sure to get the treatment plan right.  And treatments typically take many months.

It’s also both physically and mentally exhausting not only to the person who is diagnosed, but to the entire family.

My wife’s cancer wasn’t caught early, but the doctors told us that they believed they didn’t catch it too late either.  However, they outlined a long and fairly new treatment protocol that we have been living with ever since the diagnosis.

We have been fortunate to work with local doctors at Hartford Hospital (a terrific client of my firm as it turns out) and super specialists in New York at Memorial Sloan Kettering.  She underwent four grueling months of chemotherapy earlier this year followed by nearly 2 more months of chemo with radiation.

That, however, was just the warm up.

Early this month, she underwent a planned 15-hour complex surgery with three surgical teams at Memorial Sloan Kettering Cancer Center.  Her recovery from such a major surgery has been slow, but steady.  She finally returned home in the last few days for further rest and recovery.  The care we received at MSKCC was outstanding.

And yet, despite the difficult nature of the surgery, we are thankful for the news we recently received: After several more weeks of recovery, the doctors have given her (and us — since cancer really is a “family” disease, as the doctors have reminded us time and again) a very good prognosis going forward.

With Thanksgiving upon us, we certainly have a lot to be thankful for.

Careful readers might notice a lot more posts from my colleagues here at Shipman & Goodwin this year. That’s not an accident. My colleagues have been so supportive in both substantive work and for the blog.  I’m so thankful for their support.

I’m also thankful for the support of countless others who have brought meals to our house, or helped in other ways.  And thankful for the world-class care my wife has been receiving both here in Connecticut and in New York.

I’m thankful as well to have this bully pulpit.  I hope to use it in an upcoming post or two to talk about the employment law issues related to this topic from a more personal experience.

But my wife didn’t want this post to be about her.

As I said at the top, we wanted to raise awareness of the issue.  Colorectal cancer is the second leading cause of cancer deaths in the United States.  Over 135,000 people will be diagnosed with colorectal cancer this year alone.

Yet, compared with other types of cancer, it receives less publicity. I won’t debate the causes here, but it’s time we recognize how serious this disease is here in the United States.

So here are three things you can do right now.

First, get screened for colorectal cancer.  Make your appointment today if necessary.  From a colonoscopy to at home tests, screening remains the single best way to beat this disease. When caught early, the survival rate is significantly higher.  And you’re never too young to start thinking about it.  Colonoscopies are quick and painless.  If Katie Couric can do it, so can you.

And trust me, colonoscopies are a lot easier than dealing with months of chemotherapy.

Second, follow one of the many groups focused on this issue such as the Colon Cancer Alliance.  Take the time to understand this issue.  And the spread to word to others.  And please consider donating to them as well.  There may not be an ice bucket challenge associated with it, but you’re over 25 times more likely to get diagnosed with colorectal cancer as you are to be diagnosed with ALS.

Third, and here is the lawyer in me speaking, consider updating your will, health care proxy, and other estate planning documents — particularly if you’re otherwise healthy. You don’t want to have to worry about them when you get diagnosed with a life-threatening illness.  My firm does this work, but there are many others who provide this service as well. And, at a minimum, consider one of the self-help legal sites to get the basics done if you don’t think you can afford to pay an attorney.

My posts here will remain somewhat sporadic for a while as I balance being a caregiver with work obligations as well.  But if this post causes just one of you to take the action steps outlined above, I’ll know that we can make something positive happen from such a tough diagnosis.

And if we can make something good happen from this post, I will be thankful.

Happy Thanksgiving to all.

Three Times a Charm

Posted in CHRO & EEOC, Human Resources (HR) Compliance

Today, my colleague Marc Herman writes a follow up to his post on October 27th regarding wellness programs.

Continuing its publically waged war against wellness programs, the EEOC has, once again, dragged another employer into the litigation minefield of the Americans with Disabilities Act.

This time, Honeywell, Inc.––a Minnesota-based technology manufacturer––has, excuse the pun, got itself into a sticky situation, becoming the most recent, yet presumably not the last, victim of this purge.

The alleged wrong? Nothing we haven’t seen before––according to the EEOC, Honeywell’s wellness program violates the ADA because it unlawfully penalizes non-participating employees––it requires workers and their spouses to undergo biometric screening.

Bloomberg.com reports that nonparticipants are assessed a $500 surcharge and risk losing Honeywell’s HSA contributions.

On November 3, 2014, a U.S. District Judge denied the EEOC’s request for a temporary restraining order against Honeywell. Prophetic significance? We eagerly await and see.

With three litigations pending, no authoritative guidance, and an abundance of wellness programs nationally, there is doubtless a sense of apprehension––for the cynical, perhaps impending doom––in the air.

Notwithstanding the uncertainty, we can be sure of one thing: the stage is set for 2015 to usher in a cathartic, and long-awaited, finale.

Expanded Data Breach Duties for Unionized Companies

Posted in Data Privacy, Labor Law & NRLB

Company data breaches are becoming far too common.  Today, my colleague Jarad Lucan talks about the steps company’s need to take, both pre and post-breach.  If your company has a unionized workforce, you may need to adhere to additional duties.

As we have reported in the past (the very recent past), it seems like there is a new headline regarding a company data breach almost daily (at the very least, weekly).  For instance, this week Coca-Cola Co. was hit with a putative class action in federal court contending that it failed to properly protect employee information contained on 55 laptops that were stolen between 2007 and 2013.  According to the complaint, the information contained on these laptops included personal identifying, motor vehicle, and financial information about employees that was subsequently used by the thieves to make fraudulent purchases, among other things.  The complaint also alleges that Coca-Cola failed to notify effected employees promptly of the data breach.  In the past, we have also identified four things a company can do before an employee data breach occurs including, establishing an implementing a written data breach response policy, conducting a review of systems and data to understand where confidential information resides, conducting regular risk assessments for the company, vendors and business partners, and establishing frequent privacy and security awareness trainings.

In addition to pre-breach steps a company should take, there are numerous post-breach steps that a company in Connecticut must take (if you have employees out-of-state, check those state requirements), including notifying employees and the Attorney General’s office of the breach, if the breach involved employees’ financial or motor vehicle information and/or social security numbers.  Employers with unionized workforces may also have an additional requirement; bargaining over the impact of such a breach.

You may have heard that hackers recently broke into some of the Postal Services computer systems and may have stolen sensitive date on more than  800,000 postal employees.  What you may not have heard is that the American Postal Workers Union has filed a charge with the National Labor Relations Board accusing the Postal Services of keeping the union in the dark about that breach.  According to the charge, “[t]he Postal Service did not give the Union advanced notice [prior to the official November 10th announcement] that would enable it to negotiate over the impacts and effects of the data breach on employees.”  Essentially, the union is claiming that it should have been kept in the loop regarding the breach as soon as the Postal Service knew about it, and that the Postal Services should have sat down with the union to discuss, among other things, the Postal Services’ response to the breach to the extent that response effected the unionized workforce.  In fact, it appears that the union also takes issue with the Postal Services’ offer to provide free monitoring services to the effected employees; a common position taken by a company after a data breach.  Indeed, the charge goes on to allege that “the Postal Service unilaterally changed wages, hours and working conditions by, among other things, providing free monitoring services to employees.”  As a remedy, the union is seeking injunctive relief in this case.

It is too early to determine how the NLRB will respond to this charge.  The NLRB may dismiss it, or it may decide that it is has enough teeth to issue a formal complaint.  Whatever the NLRB does, given the prevalence of data breaches effecting companies, this is an issue to keep track of if you employ a unionized workforce.  We will certainly update you on any developments.

Losing an Election May Entitle Officials to Former Jobs

Posted in Laws and Regulations, Legislative Developments

Since we just an election last week, I thought it would be fun to revisit one of my earliest blog posts from back in November 2007 (!).

Let me pose a scenario first. Suppose you work for a mid-size employer in the state and decide to run for a local or state office. Perhaps against the public’s better judgment, you even win a full-time elected position — for two terms. But then – after eight years in office — you have been voted out of office.

Can you get your job back with your prior employer? Well, under state law, the answer is likely yes.  And you can get credit for your time in office.

Sounds a little absurd right? After all, new parents who leave the workforce for years to raise their kids don’t get this protection, nor do people who suffer from long-term illnesses who have to leave their jobs for some years.

But, it’s all there in black and white. Indeed, in Conn. Gen. Stat. 31-51l, any person employed by a private employer of 25 or more people who leaves such employment to accept a full-time elective municipal or state office must be granted a personal leave of absence for two consecutive terms.

Upon reapplication to the employer, the employer must then reinstate that employee to his or her original position or a similar position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits.

There is one exception to the general rule. If the employer’s circumstances have changed as to make it impossible or unreasonable to do so, the employer is not required to do so. But how often is it “impossible” for an employer to rehire an employee to at least a similar position?

(Before you start berating our current legislators for preserving their own interests, remember that they are part-time legislators so this statute does not apply to most of them.)

Certainly, we want to encourage public service, but it’s not like we have a shortage of people running for full-time elected office. In other words, is there really a problem that needs a fix like this statute? Moreover, why should employers bear the burden when a person seeks elected office for their own personal growth? And why should an employer have to rehire someone who may no longer have the skills necessary for the position or whose actions while in office lead the company to believe that it does not want to be associated with that person?

Ultimately, this statute is a trap and bad deal for the unwary private employer and boon to elected officials. The solution: Eliminate the law and let elected officials seek jobs like the rest of the workforce.