Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

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.

Reflections on Early Labor Relations & Anniversaries

Posted in Highlight, Labor Law & NRLB

As I take some extended time off from the office, frequent guest poster Chris Engler takes a look back at some of the earliest background on labor history.

Because I majored in history in college, I’m a firm believer that understanding history is of great benefit when planning for the future.

Early “Workers”

Autumn is in many ways a time of heritage and traditions.  With the trifecta of Columbus Day, Veterans Day, and Thanksgiving, we have numerous opportunities to step back and reflect on our predecessors and forefathers.

I have always enjoyed pondering the effects of their actions and considering where we’d be, for better or for worse, without them.

That’s a worthwhile exercise to do with employment law as well.  To better understand the current state of the law, as Dan said above, it’s helpful to know what the workplace was like in the days of old.

As fate would have it, this is also the perfect time of year for this type of reflection.

They didn’t exactly make the front page, but the anniversaries of three important milestones in the development of American labor relations recent came and went.

The late summer and early fall marked the 180th anniversary of a pair of cases involving Thompsonville Carpet Manufacturing Company, late of Enfield.  In one of the first recorded strikes in Connecticut, carpet weavers had walked off the job.

The company sued them, claiming that they were illegally interrupting the company’s business.  One of the strikers returned the favor and sued his employer on the grounds that the first lawsuit was just an attempt to get him arrested.  (Back then, civil defendants without property to cover their potential liability were often imprisoned.) 

A win for the employer in these important early cases might have crippled the nascent labor movement.

However, the jury in the first case sided with the strikers, empowering and emboldening workers in other industries.  (The second lawsuit was eventually withdrawn, presumably when the striker was released from jail.)

However, this did not end the question of the legality of strikes and unions.  That question was dealt with again by the Clayton Antitrust Act, which celebrated its centennial on October 15.

Antitrust law generally has no place on an employment blog, but the Clayton Antitrust Act had one nugget of relevance for us.

Clever employers (or clever employers’ clever lawyers) had taken to using earlier antitrust laws against striking unions by claiming that they were cartels and restricted trade.

The Clayton Act sought to put an end to this by specifically exempting unions from the act’s provisions.

Both of these developments arguably came at the expense of employers.

The third development pointed the other direction and limited the behaviors of unions.  The case was Steele v. Louisville & Nashville Railroad Co. which turns seventy in a few weeks.

In this case, the U.S. Supreme Court recognized for the first time the duty of fair representation.  This duty requires unions to be diligent and fair in representing the interests of all members of the bargaining unit.  While the case involved racial discrimination (white union members were trying to keep their African-American coworkers out of the union), the doctrine has since expanded significantly.

The merits of these three legal developments are still debated.  Regardless of one’s viewpoint, however, there can be no doubt that they have had profound impacts on American labor relations and, by extension, on society as a whole.

Just think what the workplace will look like in another 180 years.

Background Check Settlements Still Costing Employers Big Dollars

Posted in CHRO & EEOC, Class Actions, Highlight, Human Resources (HR) Compliance, Litigation, Manager & HR Pro’s Resource Center

My colleague Peter Murphy and I have been talking a lot about background checks lately.  It’s easier than ever to run a basic Internet search on someone, but what information do you find? And are there any limts?

Today, Peter talks about two recent settlements of background check claims against employers. Both cost the employers big dollars. Here’s what you can learn from them.

Peter Murphy

 

Back in March, Dan noted that plaintiffs’ lawyers were brining an increasing number of lawsuits under the Fair Credit Reporting Act (“FCRA”).

This seems to be occurring for two reasons. First, the FCRA contains very specific steps an employer must follow when obtaining and then using a background check for employment related purposes, including the following:

  1. Make a clear and conspicuous written disclosure to the job applicant that a consumer report may be obtained for employment purposes;
  2. Have the applicant authorize in writing the procurement of the report;
  3. And, before taking any adverse action based in whole or in part on the report, provide the applicant with:
    1. a copy of the report; and
    2. a description in writing of the employee’s rights under the FCRA.

If one of these steps is being systematically violated by an employer, then there is the potential for a lawsuit involving multiple plaintiffs or even a class of plaintiffs across the employer’s operations.

The second reason for the increasing number of FCRA lawsuits is that they expose employers to damages for each FCRA violation, as well as punitive damages, costs, and significant attorney’s fees.

Thus, unless employers review their hiring practices and ensure FCRA complaint, they could be exposed to costly lawsuits, as Dan and others warned back then.

Their warnings were prescient, as demonstrated by two recent settlements in FCRA cases.

In the first case, the employer accepted online job applications–just like almost all employers. The applicants alleged that the employer’s online application system did not comply with the FCRA’s procedural provisions addressing authorizations for a background check, or provide FCRA mandated disclosures to the applicants.

These procedural violations could have been enough to expose the employer to liability under the FCRA.

According to the applicants, however, the employer also was taking adverse employment actions based on information in the background checks without providing them a copy of the report or the required opportunity to correct or explain any discrepancies.

Although the employer denied any wrongdoing, it ultimately agreed to a $5.053 million settlement that recently was approved by a district court judge.

The only ones getting rich as a result of this settlement, though, were the plaintiffs’ lawyers, who received about $1.52 million in attorneys’ fees in comparison to the $50 payment to each of the eligible class members.

Plaintiffs’ attorneys were just as pleased with a district court’s preliminary approval of an FCRA settlement in a case pending in Virginia. Just like the prior case, the claims in this case stemmed from allegations that the employer violated the procedural protections of the FCRA, and then also failed to give job applications the ability to respond to adverse information in the background check.

Under the judge’s recent order, the plaintiffs’ attorneys would get 25 % of the $4,000,000 proposed settlement, and each potential class member would receive statutory damages of $53.

The numerous procedural and substantive provisions of the FCRA can be difficult to decipher, and as the above examples demonstrate small compliance mistakes can lead to costly and time consuming lawsuits.

Although we may sound like a broken record, employers should therefore consult with trusted counsel when necessary to ensure that their job application process can survive a FCRA challenge, and that their authorization forms and disclosure notices comply with FCRA’s requirements.

It’s not as easy as it first appears.

Willful Misconduct and Unemployment Compensation: The Quiz (Part 2)

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

In yesterday’s post, my colleague Chris Engler discussed the “wilful” misconduct standard and how it applies when your employee is otherwise eligible to receive unemployment compensation.

Today, Chris returns and has a quick quiz to review some recent cases of how this standard has been applied.

So, you think you know what the “wilful” misconduct standard is. But do you know how it is applied?

Consider a handful of cases decided by the Connecticut Unemployment Board of Review in the last few weeks, and try to guess how they came out under the standards we outlined in yesterday’s post.

Case 1: A box truck driver had signed a last-chance agreement under which he would be terminated if he failed a drug or alcohol test.  The driver, who had admitted to an opiate addiction, later tested positive for cocaine.  Because this violated the last chance agreement, he was fired.

(Decision: not disqualified, because his addiction was the basis for his misconduct.)

Case 2: A cleaner at a gym was fired for repeatedly failing to clean properly and generally being negligent in his duties.  He explained that he did his best and occasionally missed candy wrappers and spills.

(Decision: disqualified, due to his “history of loafing” and “pattern of negligence.”)

Case 3: A nursing facility employee was discharged for allowing a patient to possess cigarettes inside the facility.  The decision does not mention whether the patient ever used the cigarettes.  The facility prohibited possession of cigarettes due to the risk of fire near patients’ oxygen machines, but the employee said that the policy was not usually enforced.

(Decision: disqualified, because the employee knew of the policy and the seriousness of the risk.)

Case 4: An operator of a picker (similar to a forklift) crashed his machine twice in four months – once into another picker and once into a pole.  The employer’s policy called for discharge after two at-fault accidents.

(Decision: not disqualified, because the Board consider the employee merely negligent.)

Case 5: A restaurant server was fired after she engaged in a conversation with a customer and the restaurant’s bartender about the customer’s inability to pay a tip.  The record is not clear whether the server was argumentative with the customer.

(Decision: disqualified, because she was “recklessly indifferent to the employer’s interests.”)

As these cases indicate, it is difficult to identify a pattern or generalize about the outcome of unemployment cases.

However, because the Board of Review’s inquiries are so fact-specific, it is important that the employer properly investigate and document the facts underlying its decision to fire.

That might be the difference between a clean break and an ongoing financial obligation.

“Wilful” Misconduct and Unemployment Compensation: What Is It? (Part 1)

Posted in Highlight, Laws and Regulations

My colleague, Chris Engler, is back today with post getting into the ins and outs of the willful misconduct standard at the Connecticut Department of Labor. Last week, we had a senior CTDOL official speak to our Labor & Employment seminar about this and other pressing topics of interest to employers. 

The bottom line: When you fire an employee, the employee is probably going to get unemployment compensation unless you can show “wilful misconduct”.  Here’s how:

You have caught an employee red-handed engaged in some misconduct.  Or perhaps the employee has violated some rule on numerous occasions or in a particularly problematic manner.  Either way, you investigate and decide to fire the employee. 

Barring some sort of lawsuit for wrongful discharge, your ties with the employee are cut, right?

Wrong.  You might still be on the hook for unemployment benefits.

Employers often assume that having a good reason for firing someone is enough to ensure that the employee doesn’t receive benefits. 

But the law requires something more than just a good reason.  (Dan discussed an example of this last year.)

The standard is “wilful misconduct.”  (Yes, the regulations use “wilful” with only two Ls.) 

This term has three subspecies: (1) deliberate misconduct in wilful disregard of the employer’s interest, (2) a single knowing violation of a reasonable and uniformly enforced rule or policy, and (3) absenteeism without good cause. 

Of course, each of these subspecies has detailed definitions, but the terms are already fairly self-explanatory.

Although these terms might seem very legalistic, the Unemployment Board of Review (which reviews decisions of unemployment eligibility) employs a fairly fact-specific analysis.

In tomorrow’s post, we’ll look at five cases and see if we can draw any lessons from each.

Your Workplace Is Going Viral #AlexfromTarget

Posted in Human Resources (HR) Compliance, Social Media

For employers, the power of the Internet is pretty scary at times.

The latest meme to hit the Internet won’t change that view.

Sometime yesterday (Sunday) afternoon, someone tweeted a picture of a worker from a Target store.

His name is “Alex”. We know this because of his name tag. And apparently he’s cute and teenagers started retweeting his picture and lots of other tweets with his name.

Like hundreds of thousands of times.  And within 24 hours, his name has become one of the top 10 hashtags on Twitter – #AlexfromTarget.

There’s even a Buzzfeed article just devoted to him.  And Time magazine.  I’m sure we’re only hours away from The New York Times treatment too.

You might be scratching you head at this point.  Are you missing something?

As far as I can tell, no. He’s just a worker from Target. That’s it.

Target, to its credit, has been watching the social media streams and by this morning, had a tweet of their own.  “We heart Alex too”, it posted.

Cute.

For employers, though, this latest meme is still yet another example of how the trivial can become the viral. How your retail stores are just one more place where average teenagers can become internet superstars literally overnight.

By now, I’ve preached about having a social media policy. But that policy really wouldn’t cover #AlexfromTarget.  What you also need is a social media response plan.

Andrea Obston, of Andrea Obston Marketing Communications, Inc., often preaches about how employers need to make sure to protect your brand during a crisis.

So far, Target is learning the lessons of the past by staying ahead of the curve.

Before your employees turn into internet memes, make sure you have a social media response team designated ahead of time.  Knowing who will respond and how, can be critical in preventing an internet meme from ruining your workplace.

Will Alex continue working at Target after all of this media scrutiny? We shall see.

The Surprising Answer on Whether Employees Can Record Your Workplace Conversation

Posted in Data Privacy, Highlight

Your employees are probably NOT using this to record anymore. A mere smartphone will do.

On Friday, I talked to over 150 attendees of our Labor & Employment seminar about workplace surveillance and monitoring.

Some of the discussion focused on whether employers can do the recording; but what about employees?

This is not some theoretical question. More and more employees are recording conversations at their workplaces on smartphones, according to recent articles.

If you do a search on the Internet, you’re likely to discover that Connecticut is a “two-party” state when it comes to recording telephone conversations.

What does that mean? In plain English, it means that both parties to a phone conversation must consent to the recording for it to be legal.  You can read the law (Conn. Gen. Stat. Sec. 52-570d) for yourself here.

Fair enough.

But if you read these materials, you’ll also see that the vast majority of them say that Connecticut is a two-party statement when it comes to all communications.

Unfortunately, don’t believe everything you read on the Internet.

For ordinary, in-person communications, Connecticut is a one-party state — meaning that only one party’s consent is needed to record a conversation.  (You can find the law regarding eavesdropping at Conn. Gen. Stat. Sec. 53a-189.) 

What does this mean in the workplace? It means that your employees can legally record conversations with their bosses and then try to use those communications as evidence to prove a discrimination claim or another employment-related claim.

Employers can set up reasonable rules in the workplace prohibiting the taping of conversations and tell employees that they cannot record it, but that only means that the records violate theemployer’s rules, not Connecticut law.

And what this also means is that the employee cannot record a conversation between two other people; one party must always consent to the conversation.

The NLRB has spoken out on whether rules on workplace recordings violate federal labor law, which I’ve covered in a prior post.

The takeaway for employers, though, in Connecticut is a simpler one: Assume that your conversations with your employees can be recorded.

Are you comfortable about what has transpired if those conversations ever get leaked to TMZ.com? If not, then use this post a wake-up call.

Of course, there are other laws that may apply as well and it’s questionable whether an claim for invasion of privacy might be able to proceed, so before you tackle this subject, talk with your preferred counsel about all the implications on a complex subject.