Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

In Employment Litigation, the Best Defense is a Good Defense

Posted in Discrimination & Harassment, Highlight, Litigation

It’s a busy week in employment law. Yesterday, the U.S. Supreme Court case decided Young v. UPS — a case about pregnancy discrimination. I’ll have more on that case in an upcoming post (in the meantime, check out Jon Hyman’s post on the subject). But in today’s post, my colleague Chris Engler talks about a new Connecticut Supreme Court case that discusses both harassment and discrimination claims in Connecticut. These issues are not frequently before the court and, as Chris explains, the case has some useful materials for employers in defending such claims.

englerAs the Madness of March season (“March Madness” is a trademarked name) continues, how many times will we hear a commentator repeat the old refrain that “the best defense is a good offense”?

In a new Connecticut Supreme Court case, a former employee tried flipping this adage on its head. Her motto seemed to be that “the best offense is a lousy employer defense.” Fortunately for Connecticut employers, the Supreme Court didn’t think much of this novel approach.

The case is Feliciano v. Autozone, Inc., and it will be officially released on March 31. Ms. Feliciano worked in the sales department of an Autozone store until she was fired by a regional manager for violating the company’s loss prevention policy. Her termination came after a computer program indicated that Ms. Feliciano was improperly using a customer’s rewards card for her own use and an internal investigation substantiated it.

Ms. Feliciano apparently disagreed, because she filed suit in state court. Her complaint listed five grounds: a failure to accommodate her claimed disability (which the court didn’t discuss); sexual harassment (which will be the subject of another post); and unlawful termination on the basis of her national origin (U.S. Virgin Islands), religion (Rastafarianism), and race (black). The lower courts granted summary judgment to Autozone.

At the Supreme Court, Ms. Feliciano relied on evidence that the store manager had repeatedly insulted her nationality and religion. He allegedly referred to her as “f’ing Jamaican” and stated that Jamaicans live in huts and eat cats and dogs, among other things. He also allegedly mocked Ms. Feliciano by wearing a dreadlocks wig and stated that all Rastafarians are thieves. The Court described his alleged behavior as “despicable.”

In its defense, Autozone pointed to the investigation of wrongdoing and also emphasized that the store manager had nothing to do with her termination, which was effected by a regional manager. Ms. Feliciano did not rebut this defense. Instead, she simply insisted that a jury could “disbelieve” Autozone’s claim that the store manager wasn’t involved.

If the Court had adopted this reasoning, it would have significantly altered the balance of responsibilities in discrimination claims. Instead of affirmatively proving that discrimination occurred, all a plaintiff would have to do would be to suggest that someone might not trust the employer’s denial of discrimination.

However, the Court wasn’t satisfied. In a fairly concise analysis, it reaffirmed the concept that a plaintiff bears the burden of proving intentional discrimination before the employer’s arguments even come into play. In other words, Ms. Feliciano couldn’t bypass her burden and jump straight to challenging Autozone’s defense.

Of course, that does not mean the Court sanctioned behavior such as that alleged of Ms. Feliciano’s store manager. As noted above, the Court called the conduct “despicable,” and it hinted that it would have held the conduct to constitute a hostile environment on the bases of religion and national origin. However, because Ms. Feliciano did not assert these claims, the Court did not consider them.

Although the outcome in this case should reassure employers, it shouldn’t change any employer’s best practices. Supervisors should still be coached on what is appropriate and inappropriate conduct. Complaints of discrimination should still be promptly and fairly investigated, and substantiated complaints should be acted on decisively.  And the employer should document all of its actions contemporaneously.

After all, in employment litigation, the best defense is, well, a good defense.

Free Speech in the Workplace Gets Another Day in Court

Posted in Highlight, Litigation, Wage & Hour

gavelTomorrow, the Connecticut Supreme Court will hear arguments in Trusz v. UBS. It’s case I’ve mentioned before and even made a prediction about the case back at the start of the year.

I’m not going to discuss it in detail because I and my colleagues here at the firm wrote an amicus brief on behalf of the Connecticut Business & Industry Association in the case last fall. You can read that brief here.

Fortunately, Mara Lee from the Hartford Courant does a good job recapping the issues in an article today. At issue is whether the Connecticut Constitution affords greater protection to employees than the U.S. Constitution.

The Connecticut Supreme Court will hear arguments Tuesday on one narrow issue in the case: Are employers free to discipline or fire employees for complaints inside the workplace, even if employees’ concerns are on a matter of public interest?

The U.S. Supreme Court, in a 2006 decision, rejected the argument that public employees deserve whistle-blower protection for internal protests, but Trusz’s lawyers are arguing that judges interpreting the Connecticut Constitution are not bound by that precedent.

When this issue was last before the court (in a case I was involved with), it took the court nearly a year to decide it after oral argument. Will we get a decision before the end of 2015? Stay tuned.

Consistency in Arguments is Key for Labor Arbitrations

Posted in Labor Law & NLRB, Litigation

Lucan_J_WebMy colleague, Jarad Lucan, returns today to recap a notable labor case that the Connecticut Appellate court decided this week (but officially released on March 24, 2015).  It’s worth a read, even for non-union types, if only to show the importance of consistency in arguments.

A recent Appellate Court case, AFSCME, AFL-CIO, Council 4, Local 2405 v. City of Norwalk et al., reminds us that there are some subtle textual differences between the National Labor Relations Act (NLRA) and the Connecticut Municipal Employee Relations Act (MERA) that municipal employers and labor practitioners should keep in mind.  The case also reinforces the notion that consistency in the arguments a party makes before a court is vital to the potential success of those arguments.

I will give you a bit of a warning though: the decision includes a very technical analysis. But  I will try my best to summarize the key points without losing everyone’s attention.

It is common practice for Connecticut courts and the State Board of Labor Relations (SBLR) to look to the NLRA when interpreting and applying the State’s employee relations acts, including the MERA.  There is certainly nothing unusual about this practice, and given the similarities between the Federal and State acts, it simply makes sense.

For example, Section 8(a)(1) of the NLRA and Section 7-470(a)(1) of the MERA prohibit employers from interfering, restraining or coercing employees in the exercise of their rights guaranteed by either act.  In addition, both Federal and State law prohibit employers from discriminating, harassing, or retaliating against employees who engage in protected activity.  While this later prohibition is specifically set forth in the Section 8(a)(3) of the NLRA, the MERA does not include a statutory analogue.  Instead, the SBLR has interpreted Section 7-470(a)(1) to encompass this prohibition.

Good so far?

When a union raises a claim that an employer has discriminated, harassed, or retaliated against an employee because of his or her protected activity, the central question is whether any adverse employment action taken against an employee was motivated by anti-union animus.   This means that the employer’s intent is generally at issue.

In order to determine the employer’s intent, a burden-shifting framework first established by the National Labor Relations Board (NLRB) in its Wright Line decision is utilized at both the Federal and State level.  Under this framework, the union must make a prima facie showing that an employee’s protected activity was a motivating factor in the employer’s adverse employment action against the employee.

The elements of this prima facie case are (1) the employee engaged in protected activity; (2) the employer knew of the employee’s protected activity; and (3) the employer acted as it did on the basis of anti-union animus.

In contrast, when a union raises a claim that the employer’s actions simply tend to have the effect of coercing or interfering an employees exercise of their rights, whether they are actually coerced or not, the employer’s intent is not at issue and therefore the Wright Line standard is not applicable.  Still with me?

This seems straightforward enough when dealing with claims brought under the NLRA.  Claims that an employer discriminated or retaliated against an employee because of that employee’s protected activities  are brought under Section 8(a)(3) of the NLRA, and all parties understand that the Wright Line standard will apply.  Claims that the employer’s actions simply coerced or interfered with an employee’s exercise of his or her rights (for instance the implementation of a social media policy that prohibits an employee from making disparaging comments) are brought under Section 8(a)(1), and all parties generally understand that the Wright Line standard is not applicable.  In other words, two different sections are in play.

Under MERA — Connecticut’s law — however, both discrimination and retaliation claims and coercion and interference claims are brought under the same statutory section, Section 7-470(a)(1).  Thus, it is up to the parties, particularly the party bringing the complaint, to identify under what theory the case will be litigated.  That is precisely the issue in the City of Norwalk case.  I know it  took us a while, but I think we got there in one piece.

Here’s where the new case gets interesting.  In that case, the Union claimed that the Supervisor of the  City’s Department of Public Works retaliated against employees in the Department because of their protected activities.  Thus, when the Union presented its case to the SBLR, the Union argued that the employer’s intent was at issue and the case should be analyzed under the Wright Line standard.  That is exactly what the SBLR did.  Under that framework, the SBLR determined that the City did not subject the employee to any adverse employment action and therefore the Union failed to establish that the City acted on the basis of anti-union animus.   The SBRLR dismissed the complaint.

The Union appealed the case to the Superior Court, which upheld the SBLR’s decision as being supported by substantial evidence.  On appeal, the Union shifted gears and argued that the SBLR applied the wrong legal standard in deciding whether it met its prima facie burden.  Specifically, the Union contended that it may meet its obligation to prove anti-union animus merely by demonstrating that the employer’s conduct coerced employees from engaging in protected activities.

The Appellate Court rejected this argument stating, “[b]y electing to cast its claims as falling under the Wright Line standard before the [SBLR], the trial court, and this court, the union may not attempt to import a test that is fundamentally inconsistent with the Wright Line standard. . . . The [SBLR] decided the case on the theory on which the union advanced it.  Accordingly, the [SBLR] cannot now be faulted for not applying a standard that is inconsistent with the overall standard the union urged it to use in adjudicating its claim of discrimination.”

For employers and their attorneys, it is critical to understand both the differences in state and federal law and fashion a defense to the particular claim that is being brought. Here, the procedural posture of the case allowed the employer to prevail — merits of the underlying case notwithstanding.

BREAKING: NLRB’s General Counsel Office Issues Important Report On Employer Rules

Posted in Highlight, Human Resources (HR) Compliance, Labor Law & NLRB, Manager & HR Pro’s Resource Center, Social Media
Bans on taking photos at work are addressed in the NLRB report.

Bans on taking photos at work are addressed in the NLRB report.

The NLRB’s General Counsel’s office today released a lengthy report “concerning recent employer rule” cases.

That sounds generic. It’s not.

Rather, the NLRB is now outlining its views on otherwise-neutral employer policies and whether they could be deemed to violate federal labor law.  While part of the report is a recap of existing caselaw, this is probably the most comprehensive approach I’ve seen in a while. And more importantly, it provides policies that were approved by the NLRB in a recent settlement with Wendy’s.

This is an issue I’ve talked about before, whether policies on photos and videos, or social media, or confidentiality.

There’s a lot to take in but this should provide employers with guidance should they wish to avoid the NLRB’s steely gaze.

The “model” policies it approves of may not be your preferred language (and indeed, in one area, it would seem to almost encourage union-related activities), but employers who want to stay well within the limits of the law will certainly want to use this as a guide.

I’ll have more on this in an upcoming post after a more comprehensive review.

Hat tip: Jon Hyman.

The Legal Ramifications of…. Your Workplace Kitchen?

Posted in Highlight, Human Resources (HR) Compliance
Photo: Courtesy of Library of Congress

Photo: Courtesy of Library of Congress

I was listening the other day to one of my favorite podcasts (well, favorite besides Serial) called The Gist.  Mike Pesca, formerly of NPR, spends about 30 minutes each day on topics both big and small.

And on a recent podcast, he tackled….wait for it….the workplace kitchen.

Turns out there’s another podcast — the Sporkful – which has devoted several episodes to the politics of the office fridge.

Both are really quite amusing.  There’s a discussion about whether condiments are fair game, or how best to keep your food safe (put it in a plastic bag).

But they brought up a semi-serious point and one worth thinking about.  To semi-quote their exchange on the podcast:

If you’re ever on a job interview, and suppose you’re trying to evaluate how good of an employer they are and how well do they take care of their employees? If you want quick and dirty answer, you can get it by looking in their lunch room. When you see the amenities they provide to their employees, it’s a signal.

What kind of amenities?

They talked about how free coffee — and even the milk FOR the coffee — goes a long way towards making your employees happy.

What else makes for a good kitchen? A second microwave. It might only be in use 20 minutes during the day, said Pesca, but those are 20 minutes where a co-worker is not angry with a co-worker.

So I wondered if there was any truth to that?

Well, unfortunately, most Google searches for the benefits of employee lunchrooms, come up with “cafeteria plans.”

Not helpful.

I was able to find one case where the office refrigerator played a starring role in a discrimination claim. In a 2007 case, an employee who had a co-worker post “sexually related materials in the office kitchen on the refrigerator for all employees and customers to see” was able to state a hostile work environment claim.

But I think this all goes back to a point I’ve made before on the blog: How you treat your employees overall may make a big difference in how your employees perceive your workplace. True, this isn’t rocket science, but even the little things like your employee lunchroom, can make an impact.  Happy employees are employees that don’t sue you for every perceived slight.

The employee who has their salad dressing “borrowed” by their co-workers is just going to be angrier at his or her employer.

So what do you think? Can you judge an employer by its lunchroom? And if so — aside from Google’s insane cafeteria — what makes for a good break room?

 

Proposed Bill Would Double Damages for Overtime Violations

Posted in Uncategorized

In one of my very first posts way back in 2007, I said this:

For employment lawyers and HR professionals, it’s “old” news that overtime lawsuits are a major concern.  Business Week picks up on that trend in next week’s Cover Story entitled: “Wage Wars: Does your Boss Owe You Overtime”.

According to the article:

No one tracks precise figures, but lawyers on both sides estimate that over the last few years companies have collectively paid out more than $1 billion annually to resolve these claims, which are usually brought on behalf of large groups of employees.

Yes, you read that right. A BILLION dollars.

Since that time, the numbers of lawsuits have only increased.  Indeed, during the 2013-2014 year, a record 8126 federal wage & hour cases were filed. That is up over 436 percent since 2000.

The attorneys’ fees and the existing potential for additional damages have long been a large incentive for attorneys representing employees to bring these claims.

Heck, fellow blogger and Connecticut lawyer Richard Hayber alone lists 18 class action claims on his site for people to get involved with (you’re welcome, Rick.).

And yet, for some reason, the Connecticut General Assembly thinks that this is somehow an underrepresented area of litigation.

Why do I make that conclusion? Because last week, the Labor & Public Employee Committee approved of a bill (Raised Bill 914)  that would mandate double damages in cases of a failure to pay overtime wages unless the employer could prove that it had a “good faith belief” in its underpayment.

Let’s be clear: That good faith belief standard — which isn’t defined in the bill — would be a very high hurdle to clear.  And it would make settlement of cases much more expensive.

For that reason, the CBIA has opposed the bill stating it “discourages employers from ever being able to challenge employee wage claims, because the only possible results would be to pay double damages if wrong on the claim or pay high legal costs to be proved right.”

Whatever the legislative intention, this is yet another bill in search of a problem.  Indeed, if anything, the wage & hour lawsuit craze is booming right now.  Passage of the bill would only create additional incentives for litigation.

There’s still a long way to go in this legislative session, but bills like these are giving employers in Connecticut a good deal of heartburn.

Vacation Daze: Leave ‘Em Alone

Posted in Highlight, Human Resources (HR) Compliance

vacationLast week was the first time in the seven year history of this blog that no blog posts were uploaded. Why?

Vacation.

It’s been a long cold winter and my wife and I were able to corral our kids for some much needed warm-weather rest and relaxation — after a very challenging year.

As it turns out, way too many American didn’t take any vacation days last year — whether by choice or necessity.

Vacation days have a way of making their way into litigation too. There was this story of an employee who was fired for accruing too much vacation days.

And stories of those employees who went on vacation after their boss told them to cancel their plans.  And were fired.

A few companies are now moving to an “unlimited” vacation policy where employees can take as much as they need. But only 3 percent of companies have adopted such a practice.

And it works best for those in upper management who have a tough time taking vacation.

Which leads me to this point: Vacation actually improves productivity.  Indeed, a study by Oxford Economics in 2014, found the following:

Our research finds that employers and employees perceive significant benefits to taking PTO. For the employer, benefits include more productive, focused and dedicated employees. For employees, time away from work reduces stress with notable benefits to relationships and health. Most employees report coming back to work feeling renewed and refreshed, and ready to focus on work.

However, despite most workers earning paid time off—and an apparently supportive corporate environment—many US workers do not use all of this entitled time. More than 4 of 10 employees finished 2013 with unused PTO.

So, after this long winter, encourage your employees to take their vacation time. It’ll help both y our employees AND your company in the long run.

Connecticut Law May Force Employer to Transfer Pregnant Employee

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Litigation, Manager & HR Pro’s Resource Center
Ms. Lora Wagner -- see below

Ms. Lora Wagner — see below

So, in yesterday’s post, I alerted you to a portion of the state’s pregnancy discrimination law that you may not have been aware of, namely Conn. Gen. Stat. Sec. 46a-60(a)(7)(E).  If you haven’t read it yet, I’d suggest you do so for background for today’s post.

But after yesterday’s post, you may be wondering, is this a theoretical issue? In other words, have their been any lawsuits that employers should perk up their ears to?

As it turns out, yes.

One such case (Fenn Mfg. v. CHRO) began in 1983, when an pregnant employee complained to the CHRO that her employer, Fenn Manufacturing, had violated her rights under Section 46a-60(a)(7)(E) by refusing to permit her to work outside her normal work area whenever a co-worker at a nearby work station spray painted aircraft housings with an aerosolized paint primer containing aromatic hydrocarbons. Claiming that she had suffered ill effects when the primer was first used in her area, and that her doctor had later instructed her to avoid all exposure to aerosols and hydrocarbons during pregnancy, the pregnant employee insisted that she had come “reasonably[to] believe[ ] that continued employment in [her current]position m[ight] cause injury to [herself] or [her] fetus.‘

On that basis she contended that upon informing Fenn in writing of her belief and of the basis therefor, she became entitled under Section 46a-60(a)(7)(E) to have Fenn ‘make areasonable effort to transfer [her] to any suitable temporary position which may [then have] be [en] available‘ for her.

Claiming that at least one such ‘suitable temporary position‘was indeed ‘available‘ for her — that being a modified version of her existing position in which, during the first part of her pregnancy, Fenn had admittedly allowed her to work outside her normal work area during spray painting — the employee argued that Fenn had violated Section 46a-60(a)(7)(E) by refusing to allow her to work in that or some other suitable temporary position until the birth of her baby. As a result of Fenn’s refusal to make this accommodation, she argued, it should be required to compensate her for the wages she lost and the emotional distress she suffered when, as a result of that refusal, she was forced to leave her job to protect the health of her unborn child.

The CHRO sided with the pregnant employee and Fenn appealed. The case went all the way to the Connecticut Supreme Court on the issue of emotional distress damages, but as to the underlying discrimination claim, it was upheld without comment.  Indeed, it’s the lower court’s decision that is instructive.

The court addressed what “reasonable belief” in injury means.

The text of Section 46a-60(a)(7)(E) gives much useful guidance as to what the legislature intended when it conditioned the availability of the statute’s transfer remedy on a pregnant employee’s “reasonabl[e] belie[f]” that continued employment in her current position may cause injury to herself or her fetus. Of special note in this regard are three distinct features of the statute’s triggering mechanism.

The first of these is the use of the term “belief” to describe the measure of conviction which the employee must have as to the existence of a workplace danger before she can invoke the statute’s protections. A “belief” that one faces a particular danger is clearly different from “knowledge” that such a danger exists. Whereas “knowledge,” in common parlance, is a subjective state of certitude as to a fact that is demonstrably true, “belief” is but a firm commitment to or acceptance of the truth of a given proposition, with or without the corresponding ability to prove by any standard that it is true. Though a person cannot “know” what he doubts or cannot prove, he can readily “believe” it, notwithstanding his uncertainties. Therefore, by expressly providing that an employer’s obligation to accommodate an employee under this statute is triggered by the employee’s reasonable “belief” that continued employment in her current position may cause injury to herself or her fetus, the legislature must be found to have intended that pregnant employees should be entitled the statute’s protections even when they cannot prove, by objective, scientific evidence or otherwise, that the dangers they seek to avoid are real and substantial.

In other words, this is a much lower standard for a pregnant employee to meet.

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The Pregnancy Discrimination Laws You Never Knew About

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

pregnancy1With all the talk about the Supreme Court deciding a pregnancy discrimination case this term and what it means for federal law, there is a separate Connecticut law on the subject — a portion of which you are probably unfamiliar with.

Yes, you probably know that if you’re an employer with three or more employees, you can’t fire an employee because of her pregnancy or even refuse to grant that employee a reasonable leave of absence for disability resulting from her pregnancy.

You may even know that you have to reinstate an employee to her original job or an equivalent position unless the circumstances have so changed as to make it impossible or unreasonable to do so.

But buried deep in a paragraph of Conn. Gen. Stat. Sec. 46a-60(a)(7) are these clauses which makes it illegal to:

  • (E) to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus;
  • (F) to fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or
  • (G) to fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position.

The last two of these provisions are fairly straightforward and requires the employer to provide notice in some instances.

But it’s the (E) provision that is the trickiest.  It requires an employer to make a “reasonable” effort to transfer a pregnant employee to any “suitable” temporary position which “may” be available where the employee gives written notice and either her employer or she “reasonably believes” that the current position “may” cause injury to the employee or fetus.

If you haven’t noticed, that’s a lot of “may”s and “reasonably”s.  And it creates a great deal of uncertainty.

Suppose a pregnant employee works at an amusement park and the park just had an limited outbreak of measles.  She works as a cashier with lots of interaction with the public.  The employee asks to be transferred to a “back office” position on a temporary basis because she believes that — even though she has the vaccine — working as a cashier may expose her and her fetus to contact with measles. And besides, no vaccine is fool proof.  She even has her doctor write up that the employee should avoid extensive contact with members of the public while pregnant due to the measles outbreak.

What’s the employer to do?

So, looking at the statute, note that it is the employee’s “reasonable belief” of possibly injury to her or her fetus that dictates what needs to occur.  How is that determination made? What standards should apply”? Is the CDC’s website on the subject enough?

And does an employer have to create a temporary position? What is “suitable” in these circumstances.

Lest you think this is a mere hypothetical, a significant case arose under this statute over 20 years ago — Fenn Mfg. v. CHRO. And earlier this year, a federal court looked at this same statute.  We’ll talk about that in a followup post.

 

If the CHRO Ran the Legislature: Agency Proposals On Deck

Posted in CHRO & EEOC, Highlight, Legislative Developments

capitoldasAs the legislative session continues to roll around, sometimes you can get caught up in bills that have no chance of getting passed.

For example, the General Assembly — as presented structured — will never pass a bill making Connecticut a Right to Work state.

But when the Connecticut Commission on Human Rights and Opportunities makes proposals to the legislature, it’s worth taking a closer look at their proposals.  Why? Because sometimes (though not always), their proposals get adopted.

Two significant proposals, which are being being floated through the Judiciary Committee, not the Labor & Public Employee Committee are as follows:

The CHRO has also proposed language that would impact employers less than the others.

These proposals are still in their formative stages; you won’t find them in the bill record book yet or on the CBIA bill tracker site.

But it’s important for employers and their counsel to review them to understand what is being vetted.

So far, this legislative session is proving to be far busier than was first anticipated.   Stay tuned.