Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Data Privacy & Human Resources: A Match Made for a Seminar

Posted in Data Privacy, Highlight, Manager & HR Pro’s Resource Center

shrmprogramI’m pleased to announce an upcoming program that my firm, Shipman & Goodwin and the Connecticut State Council of SHRM are producing next month and that I’ve been planning for several months.

The program, entitled “Data Privacy & Human Resources” will be a unique endeavor for us.  First, we are planning on doing it in both our Hartford & Stamford offices at the same time.  Speakers will be in both locations (though obviously not the SAME speakers, for those grammar buffs).

On top of that, we will be broadcasting it live via a webinar.

What could go wrong?

Hopefully, nothing, because really, it should be very informative.  It’s scheduled for the morning of December 11, 2015.

The first hour will focus on the key things employers need to know about the revisions to the state’s new data privacy law. The second hour will talk about the very latest in human resources including the current status of the proposed overtime regulations and the state’s new social media privacy law.

It’s going to be fast-paced and informative. But space is definitely limited and within the first 48 hours of our e-mail alert, we’re already halfway to our in-person room capacity.

If you’re interested in attending, check out this link and register online. The cost is just $35, but this includes breakfast and the materials. (If you’re watching via webinar, breakfast is on your own — naturally.)

And if you’d like to see the flyer, you can download it here.

Employees Participating in Court Proceedings May Have Protection

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

My colleague, Jarad Lucan (who just won a New Leader of the Law award from the Connecticut Law Tribune!) returns today with a post about the protections employees who testify in court may have. 

Lucan_J_WebMost employers (at least those employers that read this blog on a regular basis) know that it is illegal to subject an employee to an adverse employment action, such as termination, because that employee raised a claim of discrimination or was absent from work due to a serious health condition.

But what if your employee is summoned to court to fulfill his or her civic responsibility as a juror or is subpoenaed to provide witness testimony during a criminal proceeding?  Is an employer similar restricted in the actions it takes against an employee for participating in such activities?

The answer is “Yes.”  There are numerous statutes applicable to Connecticut employers providing protections to employees who attend jury duty or appear in court.

  1. Connecticut General Statute §51-247a prohibits an employer from discharging, threatening to discharge, or otherwise coercing an employee for responding to a summons or serving on a jury.  In addition, any employee who serves eight hours of jury duty in any one day must be deemed to have worked a full day’s work and an employer cannot require an employee to work in excess of those eight hours.  Any employee who is discharged in violation of this statute may bring a civil action against his or her employer for up to ten weeks’ wages plus attorneys’ fees.
  2. Connecticut General Statute § 54-85b prohibits, among other things, an employer from discharging, threatening, penalizing, or coercing an employee who obeys a legal subpoena to appear before any court in the state as a witness in any criminal proceeding.

    Further, this statute was amended in 2010 to provide protection to victims of family violence who attend court proceedings and who participate in police investigations related to that crime.   These employees also may not be discriminated against for having a protective order issued on their behalf.

    An employee who is discharged, threatened, penalized or coerced in violation of this statute may bring a civil action for damages and for an order requiring the employee’s reinstatement or otherwise rescinding such action. If the employee prevails, the employee shall be allowed a reasonable attorney’s fee to be fixed by the court.

    Aside from any possible civil liability, employers that violate either statute may be guilty of criminal contempt, and upon conviction, may be required to pay a $500 fine and serve up to thirty days in prison, or both.

  3. Under federal law, 28 U.S.C. § 1875 prohibits employers from discharging or taking any other adverse employment action (threatening to discharge, intimidating, etc.) against a permanent employee because that employee provides jury services in federal court. Employers that violate this statute may be sued for back pay, reinstatement, and attorneys’ fees and may be fined up to $5,000.
  4. Lastly, employees who testify on behalf of another employee in a discrimination claim may also be protected under both federal and state anti-discrimination laws.  Dan reported on the U.S. Supreme Court’s case back in 2011 that discussed what this “zone of interest” may look like.

Everything Else from the ABA Labor & Employment Conference You Missed

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight

abalelconfI admit it. Misleading headline.

It won’t be EVERYTHING else. But….there were a few other nuggets from the ABA Labor & Employment Annual Conference last week that are worth sharing. For prior posts on the subject, go here and here.

  • At one of the programs, an EEOC attorney suggested that no re-hire clauses in separation agreements may be unlawful. Philip Miles — who I co-presented with at one of the conference programs — has a full recap on his site but the gist is that such a position is unsupported. As Philip posted, “The EEOC attorney’s position was not well-received at the conference, and she acknowledged that zero case law supports the position. One audience member “politely” suggested that if they couldn’t find a single court to side with them in 50+ years, perhaps it was time to move on. The EEOC attorney responded that the agency often seeks to move the law and alter the status quo.”
  • At a program on wellness plans, the speakers highlighted a new development this month — proposed regulations from the EEOC to encompass such plans. As Jon Hyman recapped on his blog, “[T]he EEOC announced that it plans to amend its regulations to the Genetic Information Nondiscrimination Act to permit employees to provide health information about their spouses in exchange for certain financial and other incentives as part of employer wellness programs.”  Employers who use these plans should be particularly mindful that new regulations are on their way.
  • The Wall Street Journal finally got around to writing about the delays in overtime regulation revisions — days after I first reported it. NBC News also picked up on it and quoted me.
  • The EEOC is also in the news for its continuing press on systematic cases. EEOC Chair Jenny Yang said at the conference that the agency had been “transformed” with, as Bloomberg BNA reports, “markedly more agency investigations and litigation aimed at employer policies and practices that operate on a company-wide, industry-wide or nationwide basis.”
  • dinicsThe FMLA continues to be a challenge for employers to enforce properly. At one session, speaker Jeff Novak gave a helpful tip when you outsource FMLA to a 3rd party administrator. Look at their forms to ensure they comply with DOL regs.
  • And finally, Reading Terminal Market has to be one of the best food sites in the country. I would highly recommend getting the roast pork sandwich at DiNic’s. It may not be kosher, but it’s definitely a treat. Don’t forget to add some sharp provolone and broccoli rabe to it. Delish.

What is “Actionable” for Harassment Claims To Succeed

Posted in Discrimination & Harassment, Highlight

lelconfAs I continue recapping various sessions from the ABA Labor & Employment Law Annual Conference last week in Philadelphia, it’s time to turn to what makes claims “actionable” under today’s harassment laws.

In other words, is the single use of an offensive word such as the “n-word” enough to survive a motion to dismiss or even get to trial?

The speakers at this particular program noted the caveat at the beginning: A lot of these cases are fact-specific.

In other words, whether or not a case gets to a jury may depend on the context in which the words that are said.

Here’s my twitter recap of the presentation below.

One key takeaway from this session is that employers still have a duty to investigate claims — whether or not the claims establish a hostile work environment claim.  But not all claims are going to have merit.

Some employees claim that they are being “bullied” by a supervisor, or that they are “uncomfortable” in the workplace.  As courts, though, have said: Federal laws are not civility codes. And not every workplace is going to lead to a “feel good” moment.

That said, having a workplace where employees feel valued and where employees are treated with respect is certainly a laudable goal.  It’s just good knowing that when that goal can’t be reached, it doesn’t mean a lawsuit will succeed either.

USDOL Final Revisions to White Collar Exemptions Coming in 2016

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour
USDOL Solicitor Smith speaks at ABALEL conference

USDOL Solicitor Smith speaks at ABALEL conference

Over the next few days, I hope to provide a few updates from attending last week’s ABA Labor & Employment Law Annual Conference in Philadelphia.  There were many good, substantive programs there and lots to be gleaned for employers.

One of the sessions focused on the proposed revisions to the white collar overtime exemptions that were released for comment earlier this year.  The Department of Labor Solicitor Patricia Smith provided some insights in a panel discussion about where things were headed.

(For more background on these proposed revisions, see my prior post here.)

The solicitor indicated that the DOL received over 270,000 (!) comments to the proposed revisions and that more than 3,000 of those were “substantive” in nature. That unprecedented number of comments means that a good deal of time must be spent by the DOL to review those comments. She indicated the DOL was still reviewing the comments.

As a result, she indicated that the final version of these white collar revisions would not come out until sometime in 2016.

You might be asking: When exactly?

Well, she didn’t indicate that other than to say that she hint opaquely that it might be “late” in the year.

My own speculation (and let me be clear that it is just that) is that the final revisions may not come out until after the 2016 Presidential election.  If they are released beforehand, it is possible, and perhaps probable, that they will become a campaign issue.

In any event, when the final revisions come out, the DOL solicitor indicated that employers will have 60 days to comply.  Thus, at this point, the very earliest employers can expect to implement these revisions is March or April 2016 – and again, that’s not likely.

So what are employers to do now? The usual things: Keep up to date on what is going on; review your existing positions for compliance and with an eye towards the revisions; consider your salary range for people that are close to the $50k proposed threshold.

Heading to ABA Labor and Employment Conference

Posted in Human Resources (HR) Compliance

Kind of ironic that the ABA Labor and Employment Law Section Conference is in Philadelphia this week.  After all, one of the most famous employment law movies is, in fact, “Philadelphia” with Tom Hanks.

Alas, Tom is not scheduled to appear at the conference.  However, for better and/or worse, I will.  In fact, I’ll be talking on a panel regarding social media on Friday afternoon.

Its amazing to to think of how far we’ve come with social media since the time I started this blog.

If you’re going to be at the conference, please let me know.  I always enjoy talking with readers.  See you then.

Frightened by Employment Law? Just Think About “Naughty Nurses”

Posted in Discrimination & Harassment, Highlight

Scary stuff.

It’s that time of year again. When employees dress up in inappropriate outfits and engage in general stupidity.

I am speaking, of course, about Halloween.

Don’t believe me? I’ve got several blog posts to prove it.

For example, in prior years, I’ve warned you to be on the lookout for “Naughty Nurses”.  Yes, somewhere out there some employee is thinking this is a good idea.

But costumes aren’t the only source of trouble.  Buying an employee Halloween presents with a “lustful” look in your eyes, led to another lawsuit.

Then there was the supervisor was fired after he “responded to a question about his stated intention to dress as a woman for Halloween by saying that he was a hermaphrodite who menstruated and used to wear a bra.”  You’ll have to read that one for yourself.

In any event, Halloween doesn’t have to be the source of trouble.  Even though one judge told one litigant that Halloween was going to be a “pain in the neck”.

Employer Strikes Out; Facebook Likes Protected by NLRA, Says Second Circuit

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

yankees-300x300On Friday, at my firm’s annual Labor & Employment Law seminar, I’ll be talking about the NLRB and Employee Handbooks with my colleague, Chris Engler.  Among the topics we had planned to discuss was the ongoing Triple Play Sports Bar & Grille case that I had previously posted about here and here.

So of course yesterday, the Second Circuit released an long-awaited decision on that very case. And it’s a strikeout for the employer.

The case involves a mix of old and new concepts. Old: Employees have the right to improve the terms and conditions of their workplace — so called “Section 7″ rights to protected concerted activity under the National Labor Relations Act, even if they are not “unionized”.  New: It applies to Facebook and other types of social media.

And now, even to Facebook “likes”.

In the case, Jillian Sanzone and Vincent Spinella, two employees of Triple Play Sports Bar and Grille, located in Watertown, discovered that they owed more in State income taxes than they had originally expected. One of the employees discussed this issue with co-workers, and complaints were made to the employer.

The discussion continued on Facebook, and a former employee, Jamie LaFrance, posted the following “status update” to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . W[*]f!!!!”

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When Employee Models for Playgirl, Harassment May Be “Because of Sex”

Posted in Discrimination & Harassment, Highlight, Litigation

justiceLate last month, a federal court in Connecticut took another look at the prohibition of discrimination “because of sex” with a case that has all the elements of a “can you believe it” fact-pattern that will surely be used for harassment training going forward.

The case involves a male employee posed for Playgirl nearly two decades prior and who, according to the decision, faced harassment from male and female co-workers.

But what does that phrase “because of sex” mean in today’s workplace climate?  And should it be extended when we’re looking at issues of same-sex harassment?

The case, Sawka v. ADP, can be downloaded here, and I’ll talk about it a bit more below.

The EEOC has been pushing an expanded view of this language, particularly as efforts to prohibit employment discrimination on the basis of sexual orientation have been floundering at the federal level.

(It should be noted that Connecticut law explicitly prohibits sexual orientation discrimination but there are case of male on male, or female on female harassment that don’t involve sexual orientation — like this case.)

But this case touches on same-sex harassment unrelated to the employee’s sexual orientation.  The case came to my attention by David Wachtel in a detailed post that is worth a read.  In it, Wachtel notes that in cases of same-sex harassment, there have been limited theories for employees to pursue.

Based on Supreme Court precedent in the Oncale case, a plaintiff would have to show either that:

  1. The harasser was motivated by sexual desire;
  2. The harasser was expressing a general hostility tto the presence of one sex in the workplace;
  3. One sex was treated differently from the other;
  4. Defiance of a sexual stereotype.

Wachtel argues that there is another kind of motivation that should also be covered by the “because of sex” principle.  Likening it to the “Fifth Beatle”, he says that a court should focus on the employee’s sexual characteristics and that this case seems to expand on it.

For employers, though, the case is easier to understand without the legal theories, notwithstanding the complicated facts that involved, among other things, teasing by both male and female coworkers for nude photos that the employee has posed in Playgirl for nearly two decades ago.

Ultimately, the federal court said that there was sufficient evidence to send the case to a trial (thereby denying the employer’s motion for summary judgment at least partially).

For example, one woman referenced “the existence of pictures or searching for Mr. Sawka online” and said she saw “everything”.  Another said that everyone had seen the pictures and that he had a “beautiful c***” and she just wanted to “f*** the s*** out of you.”

The court said that these comments and behavior (and other) could be viewed by a jury as being motivated by sexual desire and thus “because of sex”.  And the comments by male co-workers about the “size and state of his genitals” could also be harassment “because of sex”.  Thus, the court said, the employee could proceed with his hostile work environment claims.

It’s not a full victory for the employee however. The employee resigned and claimed that he was “constructively discharged.”  The court rejected that claim because to proceed, the employee must produce “evidence of even more severe conditions” than those that create a question of fact on a hostile work environment claim.

Nevertheless, the case is a notable one that reinforces something that I talk about in sex harassment prevention training.  Sex-based jokes, comments, and teasing by EITHER gender can lead to liability for an employer if that behavior interferes with an employee’s ability to do his or her job.

You’re Fired! What Back to the Future Can Still Teach Us About the Workplace

Posted in Highlight, Human Resources (HR) Compliance

Confession: Back to the Future is my favorite movie (though ask me in two months and I’ll probably say it’s actually Star Wars — employment lawyer’s prerogative).

So, how could I let “Back to the Future” day pass without an employment law-related post!

For those (strange) people who don’t know what I’m talking about — today’s the day that Michael J. Fox (or at least his character “Marty McFly”) travels to in “future” in the Back to the Future trilogy.

Most news outlets are focusing on the lack of hoverboards as a “failed” prediction on the future. (And the Cubs winning the World Series now seems a bit far fetched today too).

But something else that hasn’t been mentioned much — the workplace. There’s a notable scene in Back to the Future Part II in which an older Marty McFly engages in some type of illegal transaction on the evening of October 21, 2015.  He scans a card — seemingly for a black market product.  fired

Only problem? Marty’s boss — Ito Fujitsu — is monitoring the illegal scan.  He immediately sets up a video telephone call with Marty at his home. And tells Marty he’s fired. To reinforce that fact, he sends Marty a fax reading “YOU’RE FIRED!!!” to all the fax machines in Marty’s house.

I remember watching this scene when the movie came out and two things still stand out: 1) It seemed pretty awful to fire someone via telephone call; and, 2) How cool is it that Marty had fax machines in bunch of different rooms!

(I also thought how strange it would be to wear two ties — thankfully that fashion trend went nowhere.)

Now that we’ve reached the date — how does it hold up?

Well, in some ways, not well at all.  Fax machines are nearly extinct and no one has them in various rooms in their house.

But in other ways, I still think we feel the same way about firing someone “over the phone”, or now e-mail — it seems pretty harsh.  Recall the outrage that people felt with Radio Shack laid off people via e-mail nearly a decade ago.

And so, one lesson we can still learn from the movie today? It’s still best to do important employment decisions in person.

And whatever you do, don’t send a fax saying “You’re Fired!!!”  After today, that’s history.