Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Cameras in the Workplace Among Topics in Latest “Employment Law Letter”

Posted in Human Resources (HR) Compliance, Labor Law & NRLB, Laws and Regulations, Wage & Hour

While you might think our department at Shipman & Goodwin LLP would be content to rest on just this blog, my fellow colleagues have actually been passing along tidbits for years in its quarterly Employment Law Letter publication.

The latest issue is now available online here.

I really like the cover article on cameras in the workplace — a topic I’ve touched on a little bit before here and here.

Our opinion is that we will probably see more and more litigation that in some way involves cameras. These days, most adults and many children carry phones or other electronic devices that are capable of recording images wherever they go, including the workplace. However, employers should think twice before prohibiting the taking of photos at work. Today’s activist NLRB has issued some decisions suggesting that such a prohibition may have the effect of interfering with employee rights to engage in concerted protected activity, for example by documenting unsafe working conditions,

The newsletter also focuses on other topics including non-compete agreements as well.  It’s definitely worth a read to catch up on things — particularly in the public sector.

Minimum Daily Earnings Guarantee (or Reporting Time) Already a Rule For Some Employers

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

Pizza workers may be covered.

This week, one of Connecticut’s own, Representative Rosa DeLauro introduced the “Schedules That Work Act” bill in Congress.  It would ostensibly help part-time workers secure stable schedules.

It would, among other things “ensure employees get two weeks notice about their work schedules, as well as extra pay to compensate for last minute changes”, as summed up by The New York Times.

I’m not going to spend time detailing all the nuances of the bill because, well, it has virtually no chance at all of getting passed in the gridlock that is Washington, D.C.  (If you want further details, the National Women’s Law Center has a good one here.)

One of the bill’s proposals, however, would establish a “reporting time pay requirement” which would entitle certain restaurant and retail workers to a minimum of four hours of pay even if the employer wanted to send them home early during a shift.

But what’s been missing in the discussion so far in the discussion is that Connecticut has long since had rules in place in the restaurant and mercantile industries that mandate something similar.  I first covered these rules back in 2011.

The problem for employers is that you won’t find those rules in the law itself.  Instead, you will find them in certain “wage orders” issued by the Connecticut Department of Labor. Thankfully, those orders are now available online.  (The mercantile trade order is here and the restaurant order is here.)

Both orders were updated in the last few months to take into account the minimum wage increases too.

(Speaking of minimum wage for a moment, did you check out Funny or Die’s Mary Poppins “quitting” because of her pay? Very well done.)

For restaurant workers, a two hour minimum rule (in 31-62-E1 (b)) applies, unless notice is given the day before and applies to the minimum rate, not the regular work rate.

An employee regularly reporting for work, unless given adequate notice the day before to the contrary, or any employee called for work in any day shall be assured a minimum of two hours’ earnings at not less than the minimum rate if the employee is able and willing to work for that length of time. If the employee is either unwilling or unable to work the number of hours necessary to insure the two-hour guarantee, a statement signed by the employee in support of this situation must be on file as a part of the employer’s records.

For mercantile workers, a four hour minimum rule (in 31-62-D2 (d)) applies, and its phrased slightly differently. Those employees get their “regular rate”.

An employee, who by request or permission of the employer, reports for duty on any day whether or not assigned to actual work shall be compensated for a minimum of four hours earnings at his regular rate. In instances of regularly scheduled employment of less than four hours as mutually agreed in writing between employer and employee, and approved by the Labor Department, this provision may be waived provided the minimum daily pay in every instance shall be at least twice the applicable minimum hourly rate.

What’s the practical application of this rule? Suppose you’re a retail store and have an employee who’s shift that day is from 1 p.m. to 9 p.m.  At 3 p.m., you realize that you have more than enough workers to cover the shift and send the employee home “early”.  Under Connecticut’s rule, that employee is entitled to a minimum of four hours of pay, even though they only “worked” for two.

And one more thing: For restaurant workers, the order also provides that on the 7th consecutive day at work , the employee is entitled to pay at time and a half.

So, ignore the headlines for the time being. Instead, use this summer to catch up on the rules that you may not have known about.

Quick Hits: EEOC Strikes Again, Desk Shenanigans, New Executive Order, Union Dues, Sharing Salary Info

Posted in CHRO & EEOC, Class Actions, Discrimination & Harassment, Labor Law & NRLB, Laws and Regulations, Litigation, Wage & Hour

Time for another installment of quick hits where I share a few stories that I had hoped to write further about and finally concede that, because of time limitations, I probably won’t.

What an Employment Lawyer Can Learn From Minecraft (or Not)

Posted in Highlight, Human Resources (HR) Compliance

Over the last few years, my kids have started to get interested in this “thing” called a blog. “What do you write about?”

Um, employment law issues, I’d reply. And then I’d say something about how I talk about things that happen at work.

Recently, they asked if I had written about their passion.  (Disappointingly, when I said I had already written about the Yankees, they said that wasn’t what they were talking about.)

No, they were talking about Minecraft.

Which led me on down a strange path of asking myself why any self-respecting employment lawyer would write about a computer game in the first place?  (Though I’ve written about such games before). But also asking whether employers should even care about this game.

I think I have the answers to both, but let me first fill you in on what  I’m talking about.

Continue Reading

Accommodating Employees’ Religious Beliefs: A Primer on “Sincerely Held”

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

In the wake of the United States Supreme Court’s ruling in the Hobby Lobby case, holding that the Religious Freedom Restoration Act provides protection to closely held corporations to refuse, for religious reasons, to provide birth control methods and services to employees under the Affordable Care Act’s contraceptive mandate, the issue of accommodating an employee’s religious beliefs has also been called into question.

In light of that, my colleague Jarad Lucan returns to the blog this morning with this post on reviewing Connecticut’s Fair Employment Practices Act’s (“CFEPA”) religious antidiscrimination provisions.

Let’s start with a “simple” proposition.

Generally speaking, Connecticut’s anti-discrimination laws make it illegal for an employer to discriminate against an employee because of that employee’s religious belief or practice.

While not explicit in the statutory framework, it is also illegal for an employer to refuse to accommodate an employee’s religious belief or practice that may run contrary to an employment requirement, unless such accommodation would cause an undue burden on the operation of the employer’s business.

Sounds simple enough, right?

So what’s the problem? Well for most employers, the problem is determining whether an employee’s religious belief is bona fide. In other words, is the employee’s religious belief “sincerely held?”

Indeed, if a religious belief is not sincerely held, then an employer does not have to provide an accommodation.

For example, an employer may rightfully question the sincerity of an employee’s request to wear a beard as an accommodation from the employer’s grooming policy based on his religious belief, if the employee is a long time employee, has never changed his religion, and has never worn a beard in the past.

While there is no bright line test (there rarely is in employment law) for determining the sincerity of an employee’s religious belief, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance in this area. As a reminder, Connecticut courts often look to federal antidiscrimination decisions and guidance when interpreting the CFEPA.

According to the EEOC, when questioning an employee’s belief, employers should begin with the assumption that any request for accommodation is based on a sincerely held religious belief, even if the employer is unfamiliar with the particular belief or practice.

If the employer has an objective basis to inquire about the employee’s sincerity, the employer may seek additional corroborating information, according to the EEOC. Such additional information does not have to be in a specific form, and it may be a written first-hand explanation without third-party verification. When third-party verification is needed, the third-party does not have to be a religious official or member, but can be another who is aware of that employee’s belief.

Employers are cautioned, however, not to demand unnecessary or excessive evidence to support an employee’s claim that he or she has a sincerely held religious belief.  An employer who improperly demands information may be liable for denying a reasonable accommodation request, and may have its actions challenged as retaliatory or as a pattern of harassment.

After receiving information from the employee, an employer may seek to provide an employee with an accommodation or deny a request for an accommodation based on a determination that the employee’s asserted religious belief is not sincerely held.

Although there are only a handful of court decisions dealing with the issue of sincerity, the following factors, may help determine the sincerity of an employee’s religious belief:

  • Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Of course, no factor is dispositive, and as always, an employer should seek additional guidance from a legal professional before making any determination that may lead to a claim of religious discrimination.

The Employment Law Exemption for “Religious Corporations” You Never Knew About

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations

Over the past month, after the Supreme Court’s Hobby Lobby decision, much has been made in the press about how it is unprecedented for the court to consider a company’s religious beliefs in making its decisions.

The issue of taking into account a corporation’s religious belief in the workplace has been also catapulted to the center of the discussion regarding consideration of the Employment Non-Discrimination Act (ENDA), a bill which would prohibit discrimination in employment on the basis of sexual orientation on a federal level.

Some are now asking that ENDA, if passed, have an exception for religious organizations.  In response, a number of prominent civil rights groups have withdrawn their support for the bill.

A joint statement issued by several organizations, including the ACLU, said the following:

ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations – including hospitals, nursing homes and universities – a blank check to engage in workplace discrimination against LGBT people. The provision essentially says that anti-LGBT discrimination is different – more acceptable and legitimate – than discrimination against individuals based on their race or sex.

Here’s the thing, rightly or wrongly, the notion of a religious exemption in an employment discrimination law isn’t unprecedented; Connecticut passed one 23 years ago.

And it hasn’t been amended since.

I can now hear from many of you: Wait, what?

Yes, right there in Conn. Gen. Stat. Section 46a-81p is a specific exemption for religious corporations to the prohibition of sexual orientation employment discrimination.

The provisions of sections 4a-60a and 46a-81a to 46a-81o, inclusive, shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.

Now, before you start reading “religious corporation” to include companies like Hobby Lobby, the answer may not be that simple.

For one thing, the sexual orientation anti-discrimination laws don’t define what they are explicitly; elsewhere in state law there is a reference however, to “religious corporations” and societies.  Conn. Gen. Stat. § 33-264a states that: “Three or more persons uniting for public worship may form a corporation or a voluntary association. Such a corporation shall be called a religious corporation and such a voluntary association shall be called a religious society.”

So perhaps including a company like a Hobby Lobby into this definition may not fit.

But what IS meant by ”religious corporations” in this particular section on employment law? How do courts define it? Is it just a church or something more, like an organization’s for-profit bookstore? Well, I haven’t located a court case that has confronted the issue head on.

The Connecticut Supreme Court has only cited the statute by off-handed refereces that the legislature made an exemption for “religious organizations.”  But that too is a bit odd, because the word “organizations” isn’t in the statute itself. (See, for example, the court’s use in Patino v. Birken Manufacturing.)

I’ve taken a look at the bill analysis from the Office of Legislative Research from its passage in 1991 and it isn’t all that helpful. It states merely that “the bill exempts religious organizations from these employment provisions but only as to their employment of people to carry out their work.” (There’s that use of “organizations” again.)  An earlier version of the bill had a narrower exemption too, but that was expanded through a bill amendment at the time.

The Connecticut legislature has considered amendments, over time, that would, for example, put the sexual orientation anti-discrimination laws into the more general provisions prohibiting discrimination, but even this year’s Senate Bill 385, which would make that type of change, would keep the language of the “religious corporation” exemption as is.

I suppose that the lack of litigation on the state’s law exempting “religious corporations” from compliance with the anti-discrimination law may be indicative of its general acceptance here in Connecticut or its narrow application. And perhaps a court looking at this will find that for-profit corporations are just inherently different than religious ones and that the use of the language here precludes a broader interpretation.

But I suspect that the lack of discussion of this exemption is also due to the fact that many people are unaware of its existence or the specific language of the exemption either.

Either way, in light of the Hobby Lobby decision from the Supreme Court, perhaps we will see the Connecticut General Assembly revisit this statute. While an exemption for a “religious corporation” may have been a necessary compromise in 1991 at the time of the bill’s original passage, I wonder if legislators believe it should be construed as broadly as some might argue after Hobby Lobby.

After all, if corporations are “people” too, it’s not that far of a leap for someone to argue that they can be “religious corporations” as well.

EEOC Declines a “Pregnant” Pause; New Guidance Awaits Supreme Court Decision

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Legislative Developments

Last week, my colleagues Peter Murphy and Harrison Smith, offered to write about the latest developments in the law regarding pregnancy.  The post was scheduled to come out today, when, much to our surprise, the EEOC yesterday afternoon released long-awaited guidance on the subject.

So much for that post!

After a quick rewrite last night, here’s the very latest that includes both my comments and additional sourcing from Peter & Harrison….

Just a few short weeks ago, the U.S. Supreme Court announced that next term it will once again tackle an issue that raises strong feelings in many women (and men)–how pregnant women are treated in the workplace in comparison to non-pregnant employees. 

As anyone interested in employment law knows, both Congress and the EEOC have focused extensively in recent years on getting employers to provide reasonable accommodations to disabled employees.  Although what constitutes a reasonable accommodation remains a difficult determination in certain circumstances, the need to engage in an interactive dialogue with disabled employees over accommodations now is well established. 

What to do with pregnant employees under the Pregnancy Discrimination Act, however, has been less clear.  The EEOC yesterday chimed in with new guidance on the subject.

But let’s not get ahead of ourselves. First, the background.

The Federal Courts of Appeals are split on whether, and in what situations, an employer that provides work accommodations to non-pregnant, disabled employees with work limitations must also provide work accommodations to  pregnant employees who are “similar in their ability or inability to work” as the non-pregnant employees.  

In the case coming to the Supreme Court, Young v. United Parcel Service, the trial court and the Fourth Circuit held that the PDA does not require employers to provide accommodations to pregnant employees.  

The Fifth, Seventh and Eighth Circuits agree with the Fourth Circuit, while other courts, such as the Tenth Circuit and the Sixth Circuit, hold otherwise.

Since 2012, the EEOC has been kicking around the subject of revising its guidelines on the subject.  By a 3-2 vote, the EEOC decided that it could not wait until the Supreme Court gave birth to a clarifying decision, and so yesterday the EEOC issued its final pregnancy discrimination guidelines. Continue Reading

Married Men with Stay-at-Home Wives Have Negative Attitudes Of Working Women, Study Says

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

Gender bias in the workplace is the subject of hundreds of scholarly articles and even more cases by courts.

But a recently-published study looked at whether the working status of a married man affects the man’s attitude of women in the workplace.

The conclusion? It’s not pretty.

We found that marriage structure has important implications for attitudes, beliefs, and behaviors related to gender among heterosexual married men in the workplace. Specifically, men in traditional marriages—married to women who are not employed—disfavor women in the workplace and are more likely than the average of all married men to make decisions that prevent the advancement of qualified women.

Results show that employed men in traditional marriages tend to (a) view the presence of women in the workplace unfavorably, (b) perceive that organizations with higher numbers of female employees are operating less smoothly, (c) perceive organizations with female leaders as relatively unattractive, and (d) deny qualified female employees opportunities for promotions more frequently than do other married male employees. Moreover, our final study suggests that men who are single and then marry women who are not employed may change their attitudes toward women in the workplace, becoming less positive.

So, are married men with stay-at-home wives ogres in the workplace — walking around mindlessly discriminating against women? Not quite, say the authors:

It is entirely possible that men in traditional marriages are unaware of their implicit gender biases, and their implicit attitudes about women in the workplace may be operating at an unconscious level. It is also possible that they may perceive their explicit biases to be privately held, and they may hold the erroneous belief that these explicit biases have no effect on attitudes or behaviors of consequence in the workplace. Either way, it is conceivable that men in traditional marriages are not intentionally being punitive toward women in the workplace

But the notion that even men who don’t show any “outward” signs of hostility towards women may still discriminate against them is still unsettling.

Even if you disagree with the premise, it’s still an interesting study that was brought to my attention by a column in this morning’s Hartford Courant.

So what’s an organization to do? Well, refusing to hire married men with stay-at-home wives is not the solution, according to the study’s authors.  Instead, the study suggests that an emphasis on diversity can blunt the effects of this unconscious bias.

A critical response…  is to establish responsibility for diversity. …  According to Kalev, Dobbin, and Kelly (2006), responsibility can entail (1) assigning accountability for setting diversity goals, devising means to achieve those goals, and evaluating progress; and (2) appointing full-time staff members or creating diversity committees or task forces composed of people from different departments, professional backgrounds, and management levels to oversee diversity initiatives, brainstorm to identify remedies, and monitor progress. Of course, these forms of responsibility pertain to promoting the representation of any protected class of workers, not just women, and as we have urged, they should not focus on men embedded in traditional marriages but instead reflect an awareness of where subtle prejudices and negative stereotypes may lie.

To be sure, even the study’s authors acknowledge the limitations on their research, noting that ”we need to exercise some caution in interpreting our results.”  The authors go on, for example, to note that “While our results are consistent with the proposition that being in dual-earner marriages activates more egalitarian values in male employees, we had longitudinal data to support this hypothesis in only one of the studies.”

So, the study isn’t proof that discrimination is running rampant in Fortune 500 companies. But it is a reminder that despite all the progress that companies have made to fight discrimination, it remains important to be vigilant.

Personal Data on Your Workers Next Target for Hackers?

Posted in Data Privacy, Human Resources (HR) Compliance

Back in May, I talked about how data privacy was becoming a bigger issue for companies. Included in that, is the notion that human resources will play a key role in protecting information.

Today comes work of a massive coordinated effort by Chinese hackers to seek personal information on tens of thousands of government workers.  The New York Times lead article for today states:

Chinese hackers in March broke into the computer networks of the United States government agency that houses the personal information of all federal employees, according to senior American officials. They appeared to be targeting the files on tens of thousands of employees who have applied for top-secret security clearances.

The article goes on to note that private companies, particularly those in the defense industry, have continued to see an increase in cyber attacks on items such a personnel data.

In Connecticut, there are hundreds of government contractors and subcontractors who work on defense contracts.  But there are many more that remain a target as well.

There should be little doubt now that the personal information about your employees remains an at-risk area for companies.

I’ll have details soon on a symposium coming this fall on data privacy and workplace issues. For now, save the date of October 16h and watch this space for more information.

 

Law Tribune’s Editorial on “Downright Coercive” Employment Arbitration Clauses Is Off-Base

Posted in Class Actions, Highlight, Human Resources (HR) Compliance, Litigation

It’s hard to read the Connecticut Law Tribune’s Editorial this week on “The Problem of Workplace Arbitration Clauses” with a straight face. It is dripping with sarcasm, filled with sweeping generalities, and reserves its greatest enmity for employers and the lawyers that represent them.

If the editorial is to be believed, employers and their lawyers apparently routinely use “deceptive” arbitration clauses — often pushed by a “third assistant personnel clerk” — that are hidden until “defense counsel raises the jury waiver or arbitration agreement from its dusty grave in the company’s personnel files.”

But perhaps I’m overreacting. So let’s review the editorial more closely and try to separate fact from fiction.  The editorial, in its full unedited version, is in italics. 

Over the last decade, employers have more and more often incorporated jury waiver or mandatory arbitration clauses into their employment arrangements to avoid the perceived horror of facing jury review of the way they treat their employees. These clauses are often presented in circumstances that many argue are deceptive, if not downright coercive.

On the first premise — that employers are using arbitration agreements more – the editorial doesn’t provide numbers. But I’ll tend to agree with the notion that the use of arbitration agreements are increasing. However, most employers are not concerned with ”jury review.”  Just a handful of cases ever see a court room. Only 2.9 percent of federal employment cases even reach trial! The reasons for their use are complicated but part of it is that the cost of defending cases has skyrocketed. Indeed, from 2010 to 2013, the median time from filing to trial of a civil case in federal court in Connecticut has risen from 27.9 months to 35.7 months (nearly three years!).  Arbitration is much quicker and more cost effective for both sides.

As to the second premise — that the clauses are presented in circumstances that are “coercive” — I suppose that is up for debate. But it depends on your definition of “coercion”.  The legal definition of coercion typically means through “force” or “duress”.  The classic law school example of being forced to sign a contract at gunpoint is clearly “coercion.”  But an employee who wants a job and signs an agreement if he wants the job? In my view (and many courts), that is not ”coercion.”

But let’s agree to disagree on this point and move on.

Despite the significance of an employee signing away a legal right that lies at the very base of our civil justice system, there is almost never any effort to explain to the employee what the waiver or arbitration agreement means or even that they are giving up any right at all. In fact, quite the reverse is the rule.

“Almost never”?  That statement barely deserves any credence.  There is no evidence to support this statement.  And additionally, what does it mean to “explain to the employee what the waiver” means? Typically, the provisions state that any claim out of an employee’s employment must be submitted to arbitration instead of the courts. Isn’t that enough? (Yes, say the courts.)

Regardless, employers have been advised to make sure that arbitration agreements are highlighted and not merely stuck in page 32 of a handbook.

And the editorial seems to ignore the positive attributes that alternative dispute resolution can bring to the employee as well.  Arbitration has a place in our “civil justice system” too.  (Indeed, in a 2012 editorial, the Law Tribune voiced its support for passage of the Uniform Arbitration Act. The drafters of that act noted that “the enforceability of arbitration agreements cannot be treated any differently from the enforcement of contracts generally under state contract law” and avoided specific references to employment agreements.)

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