Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Is Calling Your Boss “a Nasty Mother******” Protected Activity?

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

starrMy colleague Gary Starr returns today with a decision from the Second Circuit (which covers Connecticut) that may just surprise you. Then again, if you’ve been following this line of reasoning, perhaps not.

There are outer limits to insulting speech, but a recent decision seems to indicate that it is really really far out there.

The questions up for consideration: When can an employer fire an employee for profanity during a union organizing drive?  When does the employee who stoops to insult not only his supervisor, but his mother, lost the protection of the National Labor Relations Act?

The Second Circuit faced these questions and provided a glimmer of hope for employers.

During the course of a nasty union organizing drive at a catering company, an employee became very upset at what he considered the employer’s continued disrespect for the employees.

In response, Perez used his iPhone during a work break to post the following:  “Bob [his supervisor] is such a NASTY MOTHER F****R don’t know how to talk to people!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!”

Perez had about ten other employees as friends on Facebook, but the post was also available to the public. Management learned of the post, investigated, and then fired Perez, just days before the election.

An administrative law judge found that the firing violated the law as Perez was engaged in protected, concerted activities.  This decision was upheld by the NLRB.  The case was then appealed to the Second Circuit.

At the court, the question was whether the post exceeded the bounds of protection by using profanity and insulting the supervisor’s mother.

While the Court in NLRB v. Pier Sixty was disturbed by the language and by the Labor Board’s failure to adequately take into account the employer’s interests in assessing how to evaluate a social media posts, it nonetheless, found a violation of labor law by the employer.

The Court noted that the employer had not disciplined many others for profanity in the past, even though profanity was a common occurrence in the kitchen,  that the language was not used at a catered event or in front of customers, that the message focused on matters that are protected, concerns about respect, that the message concluded by urging readers to vote for the union, and that the discharge occurred two days before the voting.

While the Second Circuit upheld the Labor Board’s decision, it sent a message that these facts are on the “outer-bounds of protected, union-related comments.”   It cautioned the Labor Board that it needed to be sensitive to employers’ legitimate disciplinary interests and to properly balance the competing interests of employees, unions and employers.

The facts in this case presented the court with hurdles it could not get over.  Profanity was common in the workplace, employees had not been disciplined for using profanity in the past, and the incident was almost on the eve of the union vote.  The employer was unable to show that the posting online had harmed its business.  But in another context, using union organizing as a shield to insult supervisors’ mothers may not work.

The Dialogue: Workplace Complaints and Happy Endings As Rare As Unicorn Frappuccinos?

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

The Dialogue — one of the more popular recurring posts — returns for the third time. Does that mean the third time’s the charm? Or is it three strikes and we’re out? In any event, Nina Pirrotti of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, P.C. returns for this installment where an employee-side and employer-side attorney discuss the issues of the day. Today’s topic discusses the lay of the land when an employee files a complaint against his or her current employer. Well, that and Unicorn Frappuccinos….

unicornsNina Pirrotti: It is that time, once again for the two of us to lock horns, I mean engage in a spirited discussion about, how we both help our clients to navigate thorny issues which arise in the workplace.    One such issue is how to advise our clients when an employee has alleged discrimination while she is still employed with the very employer she is accusing of wrongdoing.  Wow.  I feel a knot forming in my stomach just contemplating it!   

There are many complexities inherent in this scenario at each stage, from how the complaint is initially expressed, to the manner in which it is investigated, to whether the employee who complains should stay or go (or something in the middle like a leave of absence) to various resolution options.  In fact, I feel so strongly that employees and employers often botch one or more facets of this fraught situation  that I proposed it as a subject for a panel at NELA’s annual employment conference this June and I will be speaking on that panel!

I think I will start the ball rolling by saying that my biggest fear is that clients who remain working in a hostile work environment often feel so powerless and outraged by their situation that they are vulnerable to doing everything wrong from making more frequent mistakes to lashing out at supervisors or peers or far worse.   I used to save my admonishments about refraining from such behavior for my less sophisticated clients until it became clear that my C-Suite executive clients were just as likely to partake.   Now, no matter who my clients are, a big part of my counseling session revolves around how they should conduct themselves in the workplace.  If anything, I want them to strive even harder to be consummate professionals, above reproach.   My most common refrain is:  Do not arm your employer with a legitimate justification for terminating you!

There is so much to territory to explore here, Dan, but, could you highlight for me one or more of your biggest concerns when a client comes to you and says one of its employees has alleged discrimination or harassment in the workplace?

Dan Schwartz: Locking horns, eh? Perhaps you’ve had one too many Unicorn Frappuccinos (R.I.P.)  from Starbucks.  Alas, I do tend to agree with you that this is one area where rainbows and happy endings are rare.

When I hear about current employees who bring suit against their employers, I tend to think an apt comparison may be the spouse that files for divorce but the couple still has to live in the same house.  It’s awkward.  Everyone is walking on eggshells.

The fact is that one big concern I have for employers in this situation is to avoid a retaliation claim.  You say you encourage employees to be “above reproach” and I wish that were always the case, but sometimes employers will get these types of claims and they’re in the midst of either terminating or disciplining an employee — what then? If they do so after the claim, they’re opening themselves up to a retaliation claim. And we know how nasty those can be.  (Documentation is critical.)

But if it’s a harassment complaint that the employer gets, it typically becomes a real fire drill — drop everything and begin an investigation. That investigation may or may not need your client’s help, Nina. So what do you do in that situation where an investigation pops up?

Nina: Ok – you got me.  I couldn’t resist looking up the Unicorn Frappuccino on Google after my husband assured me you weren’t making it up.  This is how Starbucks describes it:  “Magical flavors start off sweet and fruity transforming to pleasantly sour. Swirl it to reveal a color-changing spectacle of purple and pink.”    It sounds like a liquid nightmare.  Hmmm could the Unicorn Frappucinno’s “magical flavors” be a metaphor for the very type of employer-employee relationships of which we are speaking?! Continue Reading

Starting May 1, 2017 USCIS Will Issue Redesigned Green Cards and Employment Authorization Documents

Posted in Highlight, Human Resources (HR) Compliance, Immigration

Part of an employer’s job is to review I-9 documentation at the start of employment, including Green Cards. But for employers, knowing what is real vs. fake, can be an issue.  My colleagues have prepared this update to one form of documentation that you should be on the lookout for.  The change is happening sooner than you might think.  

Understanding USERRA

U.S. Citizenship and Immigration Services (USCIS) just announced a redesign to the Permanent Resident Card, commonly known as the Green Card, and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. Although USCIS will begin issuing the new cards on May 1, 2017, both existing and new cards will be valid until their expiration date.

The new designs use enhanced graphics and fraud-resistant security features so that the resulting cards are more tamper-resistant and secure than those currently in use.  The new card designs demonstrate USCIS’ commitment to continue taking active measures to reduce the threat of document tampering and fraud. They are also part of an ongoing collaborative effort among USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.

The Redesigned Cards

The new Green Cards and EADs will display the individual’s photo on both sides. In addition, there will be unique graphic images and color palettes (Green Cards will bear an image of the Statue of Liberty on a predominantly green palette and EAD cards will display an image of a bald eagle on a predominantly red palette).  Each will have embedded holographic images and neither will display the individual’s signature anymore. Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017 may still display the existing design format, as USCIS will continue using existing stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, please visit the Temporary Protected Status and American Competitiveness in the 21st Century Act web pages on uscis.gov.

Both versions are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE). Some older Green Cards do not have an expiration date at all–these dateless ones will remain valid. Individuals who have Green Cards without an expiration date, however, may want to consider applying for a replacement card bearing an expiration date, so as to reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

Relaunch of Blog Coming Soon

Posted in Uncategorized

As you might have noticed, things have been a bit slower around these parts.  There are a bunch of reasons for that (clients, cases, family, commitments, etc.), but in part, it’s because I’ve been thinking about the next generation of the blog and there’s been a lot going on behind the scenes.  Only so many hours in the day, as they say.

In fact, it’s been many years since this blog has gotten a redesign. So, I’ve been working to get that into a high gear. Along with the redesign will come some additional voices — attorneys at Shipman & Goodwin who have been writing guest posts for this blog — that I think have a lot to offer for loyal readers.

The blog will also get a lot easier to read on smartphones and tablets.  It’ll have a responsive design with (hopefully) some newer typefaces and graphics too.

One thing that won’t change will be my commitment to ensuring that you are kept up to date on new and noteworthy developments in Connecticut.

But in the meantime, I ask for your patience in getting this relaunched blog off the ground.  This blog will have its tenth anniversary later this year, and my hope is that it enters the next decade stronger and better than ever.

Thanks as always for your continued interest and patience while I get this project off the ground.

Pay Equity Bill Passes House; Awaits Senate Vote

Posted in Legislative Developments, Wage & Hour

GA2Yesterday, the Connecticut House of Representatives voted to pass legislation that would promote pay equity among men and women. However, the bill lacks a key provision that would have barred prospective employers from inquiring into an applicant’s salary history.

The CT Mirror and Hartford Business Journal do a good job reporting on the developments. The bill would:

  • “Ban employers from using a worker’s previously earned wages as a defense against a charge of pay inequity;
  • Protect employees from losing seniority based on time spent on maternity or other family or medical leave;
  • Strengthen the requirement that employers provide “comparable” pay for workers performing similar duties;
  • Clarify the state Commission on Human Rights and Opportunities’ ability to investigate complaints of discrimination when wages are involved.”

The Senate remains split along party lines, but the changes made to the bill make passage much more likely now.

The bill, House Bill 5591, can be downloaded here.

It’s unclear how much of an impact the bill will have. For example, the bill changes Conn. Gen. Stat. 31-75 that bars discrimination for work performed under “comparable” working conditions. Previously, the standard was “similar”.

But even the Office of Legislative Research was skeptical about this change noting “It is unclear whether this change has any legal effect.” After all, one definition of comparable is “(of a person or thing) able to be likened to another; similar”.

Moreover, many employers do not base pay on a “seniority system” but instead focus on merit instead. Thus, any changes to the statute on the “seniority system” will have minimal impact.

In any event, before employers act, it’s wise to wait to see what happens in the Senate. Any changes to the law would be effective October 1, 2017.  

 

 

Title VII and Sexual Orientation Debate Largely Moot in Connecticut

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Litigation
U.S. Supreme Court

U.S. Supreme Court

Over the last week or so, there have been two prominent Circuit Court decisions addressing whether Title VII (the federal law prohibiting employment discrimination on the basis of race, color, sex, religion and national origin) can be interpreted to also protect employees from being discriminated against because of their sexual orientation.

The Second Circuit, which covers Connecticut, basically said no in a decision last week in Christiansen v. Omnicom Group.  The court did open the door a bit to a claim that an employee was discriminated against because of sex stereotyping.

Yesterday, the Seventh Circuit created the first split at the appellate level, finding that Title VII does cover such claims in the Hivley v. Ivy Tech Community College case.   Jon Hyman, of the Ohio Employer’s Law Blog, does a good job addressing the historic nature of the case here.

Back in 2016, I wrote that it was somewhat disappointing that we were still having these battles at the federal level, considering that Connecticut already had state laws prohibiting discrimination on the basis of sexual orientation.  “Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.  Until then, the battles over the scope of Title VII will continue.”

Indeed, the battles are now going to get bigger. One or more of these cases are now likely to get heard at the U.S. Supreme Court level where it is far from certain whether Title VII can really be read so broadly.

Of course, Congress could end these debates once and for all by passing a bill prohibiting employment discrimination on the basis of sexual orientation as I discussed way back in 2008.

But unfortunately, we seem to be no closer to passage of a bill than we were a decade ago.

Connecticut employers should largely ignore the press reports about Title VII and instead focus on their obligations to comply with state law.  Eventually the federal courts will work these issues out, but the issue is mainly moot in Connecticut.

HR’s Increasing Role in Ensuring Data Privacy

Posted in Data Privacy, Highlight, Human Resources (HR) Compliance

lock1Last night I had the opportunity to speak to the Colonial Total Rewards Association on the topic of Data Privacy and HR.  I titled the presentation “Is Your HR Data Going Rogue” and really focused on the role that Human Resources professionals should play in ensuring that company data is secured.

For those who have been following the blog for a while, you know that I’ve spoken a bit about this before (see some posts here and here).

Lest you think, this could NEVER happen at your company, the headlines from the last few weeks show otherwise. Company after company keep reporting major  data breaches — in part due to a W-2 scam that keeps claiming victims (see here, here, here and here if you’re not convinced).

Even technology companies are not immune. My favorite blurb from the last month was the following:

On Thursday, March 16, the CEO of Defense Point Security, LLC — a Virginia company that bills itself as “the choice provider of cyber security services to the federal government” — told all employees that their W-2 tax data was handed directly to fraudsters after someone inside the company got caught in a phisher’s net.

Oops.

So if even tech companies are victims of data breaches, is there any hope for the rest of us? Well, yes. It’s not easy but there are several steps that employers can take.

  1. Learn – This is NOT simply IT’s role; rather, HR professionals should have a key role at the table in discussing a company’s data privacy culture and practice.  And the first step in that is that HR should learn the basics of data privacy.
  2. Assess – HR has access to lots of data; where is it and who has access?  Where are you “leaking” data when it comes to your employees?
  3. Develop – Develop policies and your data privacy program; and develop the teams of people that will respond in the event of a data breach
  4. Educate – Data privacy and protection ought to be part of sustained training program, just like anti-harassment training
  5. Monitor – Figure out risks and review areas; when breach happens, HR needs to be at table to discuss employee impact
  6. Inform – When (not if) if you have a data breach, inform those affected and gov’t officials and implement your data breach plan.

Once you’ve made it through, it’s time to start back at the beginning. Learn from your mistakes in a data breach and re-assess your vulnerabilities.

Data privacy and the need for companies to view it as a key part of your company’s culture should be an integral part of your employee onboarding and training.  My thanks again to CTRA for the invitation to speak to the group and the great conversation we had last night.

BREAKING: Connecticut Supreme Court Rules Restaurant Cannot Apply Tip Credit to Pizza Delivery Drivers

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

file0001835967537The Connecticut Supreme Court, in a unanimous decision that will be officially released April 4, 2017, has ruled that employers may not use the “tip credit” for pizza delivery drivers and therefore, the employees must be paid the standard minimum wage.

You can download the decision in Amaral Brothers, Inc. v. Department of Labor here.  The decision is no doubt a disappointment to employers who believe that the Connecticut Department of Labor’s regulations in this area far outstretch the plain language of the applicable wage/hour statute.

The case arises from a request by two Domino’s franchises for a “declaratory ruling” from the Connecticut Department of Labor (DOL) that delivery drivers are “persons, other than bartenders, who are employed in the hotel and restaurant industry, …who customarily and regularly receive gratuities.” The request arises from Conn. Gen. Stat. §31-60(b), which has been amended over the years.

Why would the employer make such a request? In doing so, the employer wanted to take advantage of the “tip credit”, in which employees are paid below the conventional minimum wage, but his or her salary is supplemented by tips from customers.

Originally, as noted by the employer’s brief to the Court: “The DOL denied Plaintiff’s Petition for the following stated reasons: (1) the regulations were valid because they served a remedial purpose, were time-tested and subject to judicial scrutiny…; and (2) the only act of “service” was handing the food to the customer at the customer’s door and so delivery drivers’ duties were not solely serving food as required under Regulations of Connecticut State Agencies § 31-62-E2(c). The DOL’s decision was that only employers of “service employees” as defined by the DOL could utilize the credit, and Plaintiff’s employees were not service employees.

A lower court upheld the DOL’s conclusions “agreeing that the regulations were ‘reasonable’, ‘time tested’, and had ‘received judicial scrutiny and legislative acquiescence’. The court also determined that the ‘minimum wage law should receive a liberal construction.'”  (You can also view the DOL’s brief to the Court here.)

The Connecticut Supreme Court upheld the Department of Labor’s interpretations here finding that the regulations issued by the agency were “not incompatible” with the enabling statute.  In doing so, the Court noted that this is a bit unusual because the employer was contending that the regulations were originally valid when issued, but repealed by implication when there was an amendment to the statute at issue.

The Court’s decision traced the origin of the tip credit in a portion of the decision that only lawyers will love. But then they get to the heart of the matter: “It was reasonable for the department to conclude that the legislature did not intend that employees such as delivery drivers, who have the potential to earn gratuities during only a small portion of their workday, would be subject to a reduction in their minimum wage with respect to time spent traveling to a customer’s home and other duties for which they do not earn gratuities.”

While the court’s decision directly implicates delivery drivers, it only impacts those employed directly by the employer (see also: UberEats, GrubHub etc.).  Nevertheless, in upholding the DOL’s interpretation here, the scope of who falls within the tip credit at restaurants is going to be further challenged in the courts.

Before employers make any further conclusions, Connecticut businesses should also be aware that the scope of the tip credit and of tip pooling is being debated at the federal level as well.  The National Restaurant Association has joined many others in asking the U.S. Supreme Court to hear a case on the subject. We should hear shortly whether the Court will accept such a case.

The Court’s decision is yet another reminder that restaurants in Connecticut should review the situations in which the tip credit is being utilized. Issues regarding tip pooling should be reviewed as well.  This case doesn’t answer all the questions that come up in the restaurant context. But in terms of figuring out the scope of the law, it helps to answer (albeit in a manner not helpful to employers overall) some outstanding questions.

What Does “At Will” Employment Really Mean?

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

hartfordYears ago, I recall having a friendly conversation with another attorney in Connecticut where the topic turned to the notion of “At Will” employment.

When we couldn’t settle on an answer, we moved on to talking about whether the Hartford Whalers would ever come back.

I think we had a better answer for that question: Probably not.

But this is an employment law blog, not a sports one, so let’s get back to the topic.

Employment-at-will is, from a legal perspective, the notion that an employer may discharge an employee without restriction, that is, for any reason or no reason, without incurring any liability to the employee.

Simple enough, right?

Well, not quite. First off, Connecticut recognizes two major exceptions to this doctrine:

  1. The termination cannot violate an important public policy;
  2. The termination cannot breach an implied contract of employment if one as formed.

And, it should be noted, that there is the obvious exception that the termination cannot violate any other state or federal law — such as the laws prohibiting discrimination.

This again sounds simple enough, but in discussions with employers, there is another topic that comes up — fairness.  In other words, employers typically are wise the ask themselves whether a termination under the circumstances is “fair”.

Now that can mean a lot of things in a lot of situations.  For example, suppose an employer hires an employee, but 3 weeks later the employer loses a major contract and needs to layoff ten employees.  It may not be exactly “fair” to terminate this newly hired employee, but if the employer may be being “fair” by laying off newly hired employees first.

Sometimes, the “fairness” question is framed slightly differently.  Suppose you have a newly hired employee who is late to work a few times in the first 30 days and then shows up to work under the influence of alcohol.  Can you simply terminate the employee then?

Under most circumstances, yes, and most people would say this is fair because the employer is simply holding the employee accountable under its rules and a new employee shouldn’t get a lot of free passes.

But now suppose you have a 20 year employee who has an exemplary record of service.  The employee has no record of tardiness or misbehavior, but after a March Madness weekend, shows up at late to work with bloodshot eyes.  It should be noted, though, that a week before, the employee had complained to his boss that the machine he was working on seemed in need of repair.

Under the employment-at-will doctrine, the employers still has the same right to terminate the employee, but I think most people would think this situation ought to be looked at differently.  If the employer proceeds with the termination, it’s possible that it opens itself up to a threat of a claim.

Why? Because while the employment-at-will doctrine still applies, a judge or fact-finding would also then ask the same question — does this termination seem “fair”?

If the answer to that question is “no”, then judges and juries will look for alternative explanations.  Here, one could argue that it was the employee’s complaint that was the motivating factor in the termination and the employee was being retaliated against for complaining.  Otherwise, the termination seems a bit “unfair”.

That type of logic may not be “fair” either, but it goes to show that the employment at will doctrine should not simply be relied on in all circumstances.

I’ve yet to have an employer just say, “I didn’t have a reason for firing the employee. I just felt like it.” That may work under the “at will doctrine” but in the real world, it probably wouldn’t fly.

For employers, always try to look at your decisions through a neutral prism.  Or better yet, ask yourself: What would my neighbor think about this? If the termination seems unfair under those circumstances, it may be a clue to re-think your decision.

 

Second Circuit Rejects Employee’s Trypanophobia Claim

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Litigation

shotYou don’t need to look for a needle in a haystack to figure out this latest case from the Second Circuit.

But you do need to know what “trypanophobia” is.

Ready? Fear of needles.

That becomes important in a Second Circuit court decision yesterday holding that an employee’s fear of needles prevented that employee from performing an essential function of his job and rejecting his disability discrimination claim.

The background of Stevens v. Rite Aid Corp. (download here)  is fairly straightforward as cases go.  As you’ve probably noticed of late, many of the big pharmacy chains have been requiring pharmacists to perform immunizations in order to fill an unmet need for vaccinations in the health care market.

In April 2011, Rite Aid revised its job descriptions for pharmacists to require them to hold a valid immunization certification and noted that immunizations were part of the pharmacists’ essential duties and responsibilities.

The plaintiff in the above case worked as a pharmacist for 34 years.  When the job description was changed, he received a note from his physician explaining that the employee was “needle phobic and cannot administer immunization by injection.”  When he refused to perform that role (and I’m simplifying for purposes of a blog post), Rite Aid terminated his employment.

A trial did not go well for Rite Aid.  A jury determined that the employee had been discriminated against and awarded over $2M in damages.

Hence the appeal.

In reviewing the matter, the the Second Circuit rejected an employee’s disability discrimination claim because the evidence “compels a finding that immunization injections were an essential job requirement.”

While “it is understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia”, “his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence”.

The court also looked at whether there was a reasonable accommodation that could have been provided to him.  But the court said that the employee failed to show a reasonable accommodation existed at the time.  An accommodation does not require elimination of an essential function of the job.

The court case is a very helpful decision in clarifying whether an employer can insist on having its employees perform the essential functions of a job. Too often, employees suggest accommodations that would have them avoid an essential function of the job altogether. This court case should put a damper on such arguments.

For employers, the case is also a helpful reminder on having clear descriptions on what the essential functions of a job are and being able to explain why the duties are created that way.   Nonetheless, employers should still engage in an interactive process with an employee about whether there are any reasonable accommodations that can be provided.