Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

After Hours iPhone and Android Use By Employees Raises Wage/Hour Concerns (Again!)

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

bbolSo, you remember February 2009, right?

We were all aflutter over Liam Neeson in Taken (ok, I still haven’t seen it).  And we were listening to “My Life Would Suck Without You” by Kelly Clarkson (still a good song.)

And I had a Blackberry Bold and loved it. (I know; even lawyers can plead temporary insanity).

How do I remember this? Because I wrote about my mobile device back then.  (We called these devices “PDA”s.) 

Now you might be asking the next question: Why? Because I suggested that employers needed to get on top of the issue of employees using these devices outside the office.

At that time I said: “questions have been raised about the use of these devices by non-exempt employees — in other words, those employees who are eligible to receive overtime. If these employees are reviewing their messages outside of work, do they need to be compensated for that time?”

But enough people still hadn’t gotten the message, so I repeated that cautionary tale in 2012.  I even talked about best practices.

Now, over six years later, Blackberrys have almost disappeared (and the new iPhones are getting announced next month, right Siri?) but the issue of mobile device usage by non-exempt employees has not.

In fact, earlier this month, the U.S. Department of Labor indicated that it will seek public comment as to the after-hours usage of mobile devices by employees and its impact on wage & hour enforcement laws.

The Pennsylvania Labor & Employment Law Blog has a good recap here, but the essence of what the post says is similar to what I also said six years ago:

Determine whether and to what extent the operational benefits offered by giving off-hours access to work e-mail and telephone systems by non-exempt employees exceed the potential costs of class-based claims for unpaid overtime….[And h]ave in place a policy for non-exempt employees that addresses working remotely and outside of normal work hours.

I expect you will continue to hear a lot more about this as this becomes a priority for the USDOL.

Just don’t say I didn’t warn you.  It’s been an issue many years in the making.

Trivia Time for HR Professionals – Six Questions of the Day

Posted in CHRO & EEOC, Featured, Highlight, Manager & HR Pro’s Resource Center, Wage & Hour

trviaI recently was invited the join the “Learned League”, which has been described by the Washington Post as the “coolest, weirdest Internet community you’ll never be able to join.”

Needless to say, now that I’m participating in it, I’m wondering if I’m either cool or weird or both.

The league is a hodge-podge of various people who answer six trivia questions a day for a five week period during various contests.  No money is involved (think: pride not prize) but the competition includes people like Ken Jennings, who is the all-time champion on Jeopardy.

The biggest rule is “no cheating” — in other words, don’t Google the questions. It’s a bit addicting, so in the spirit of the contest, I thought I would provide you with six questions to answer.  Note that this is not multiple choice — rather it’s fill in the blank, which is oh so challenging.

1.  According to the EEOC Charge Statistics for Fiscal Year 2014, retaliation claims were the number one filed claim with the agency.  What protected class was number two?

2. One resource that is (or should be) often referred to by employers when addressing disability issues is nicknamed “JAN”.  What do the letters JAN stand for?

3. The federal Family & Medical Leave Act provides that eligible employees may take up to 12 work weeks of leave in a 12-month period for one or more of four separate reasons.  Two of the reasons are for: 1) the employee’s own serious health condition; and 2) tocare for a spouse, son, daughter, or parent who has a serious health condition.  Name one of the other two reasons?

4. In Connecticut, family violence victims who work at employers that have three or more employees, are entitled to time off for various reasons including seeking medical care or attending court.  How many days per calendar year is the employee entitled to?

5. In 1994, Michael Douglas and Demi Moore starred in a film that, among other claims to fame, brought issues of sexual harassment and “reverse” harassment to the public’s attention. Notably (?), Demi Moore was nominated as “Best Villain” for the MTV Movie Awards.    What was the name of the movie?

6.  The current minimum wage in Connecticut in $9.15 cents per hour.  What will the minimum wage in Connecticut be effective January 1, 2016? (And for a bonus point, what about January 1, 2017?)

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The Real Battle over Independent Contractors and the ABC Test In Connecticut

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

Governor Malloy with current CTDOL Commissioner Sharon Palmer

You’ve no doubt heard lots about how the U.S. Department of Labor is cracking down on independent contractors.  I’ve recapped it before and my former colleague, Jonathan Orleans, has a new post regarding Uber & electricians.

But in my view, there is a larger, more important battle now being fought in Connecticut and you may not be aware of it.  I touched on it briefly in a post in July but it’s worth digging a little deeper.  Disappointingly, I have not seen anything written about this in the press (legal or mainstream).

A case recently transferred to the Connecticut Supreme Court docket threatens to cause lots of havoc to company usage of independent contractors in Connecticut. The Connecticut Department of Labor has taken an aggressive stance in the case which is leading to this big battle.

The case is Standard Oil of Connecticut v. Administrator, Unemployment Compensation Act and is awaiting oral argument.  You can download the state’s brief here and the employer’s brief here.  The employer’s reply brief is also here.

The employer (Standard Oil) argues in the case that it uses contractors (called “installers/technicians”) to install heating oil and alarm systems and repair and service heating systems at times of peak demand.  The state reclassified the installers/technicians as employees and assessed taxes and interest.  At issue is the application of the ABC Test which is used in Connecticut to determine if these people are employees or independent contractors.

As explained by the CTDOL:

The ABC Test applies three factors (A, B, and C) for determining a worker’s employment status. To be considered an “independent contractor,” an individual must meet all three of the following factors:
A. The individual must be free from direction and control (work independently) in connection with the performance of the service, both under his or her contract of hire and in fact;
B. The individual’s service must be performed either outside the usual course of business of the employer or outside all the employer’s places of business; and
C. The individual must be customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service performed

In the Standard Oil case, the employer is challenging the findings on various elements of this test. One of them – Part B , the “places of business” — is potentially far-reaching, according to the briefs filed in the case.  The issue is whether the customers’ homes are “places of business”; if they are, then the consultant cannot be said to be performing services “outside” the employer’s places of business.  The employer argued that viewing customers’ homes as places of business “does nothing to further the Act’s purpose and its practical implications are damning to Connecticut industry….”

Indeed, the employer argues that “it will be impossible for [the employer]-or any Connecticut business–to ever utilize the services of an independent contractor.”

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Grieving and Bereavement Leaves in Connecticut

Posted in Highlight, Human Resources (HR) Compliance

bobYesterday, I learned of the passing of a friend, Robert Gulomb, the beloved husband of Livia Barndollar – the former President of the Connecticut Bar Association, and a friend and mentor as well.   Robert passed away peacefully after a long illness.

I last saw Robert in the hospital earlier this month, but that’s not how I’ll remember him. 
My fondest memory of Robert was at a marvelous brunch we had last year in the Boston area.  He wasn’t in the best of health, but his wit, charm and smarts were never more evident.  The terrific food only added to the sense that this was something special.  My wife had been dealing with her own illness at the time and the four of us enjoyed a meal oblivious to the tolls that disease had taken on our families.  It was just good food and good company.
I remember talking about the blog and how writing was special to me.  He was inquisitive about it. So I can think of no better way for me to honor Robert from me than to dedicate this post about grieving and bereavement to him.
His passing is still yet another reminder that death is a way of life. It’s a cliché for sure but employers have to deal with this issue on an ongoing basis.
But what does the law tell us? For the most part, there aren’t any laws about it.  You won’t find the topic on Connecticut DOL’s wage and workplace standards pages. While FMLA leave is designed to provide leave to care for a family member (particularly in the end stages of life), an immediate death may not qualify and it does not seem to cover attending funerals. Indeed, do a search for “death” or “funeral” in the Connecticut FMLA regulations and your searches will come up empty.
Thus, employers have crafted their own set of rules. I covered this in one of my very first posts back in September 2007.  In that piece, I discussed several issues that employers may want to consider.
  1. Are your bereavement policies established? If so, are they non-discriminatory?
  2. What practices do you have to help the grieving worker communicate with colleagues? And do you have an employee assistance program that you can refer employees to?
  3. How can you help co-workers express their sympathy, particularly if the loss is actually in the workplace?
  4. How do you help the bereaved employee and his or her supervisor deal with any lingering productivity issues?

None of this is easy.

Usually, for immediate family members, many employers will provide employees two-three days off with pay, and no pay for any additional time, unless employees arrange to use personal days or vacation time. How you define “immediate family member” is up to the particular employer, but make sure that it takes into account the changes that have been made in Connecticut for same-sex marriages.

Sail on, Robert.  May his memory be for a blessing.

When Labeling An Employee “Male” May Not Be Good Enough Anymore

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

oedThe rapid pace of the country’s openness to discuss issues of gender identity (and no, this isn’t going to be an article about Caitlyn Jenner) has actually led to a rise in the use of words to describe situations that you may not have thought of before.

Recently I came across the term “cisgender male” in a document where someone was asked the “gender” question.  Now, if you had heard of the term before, kudos.

But I suspect, based on my discussion with a few colleagues and friends, that there are still many of you that are unfamiliar with the term.  My guess is that you’re going to hear more about it and that it will trickle into HR departments — if it hasn’t already.

“Cisgender” is a term that has recently been approved by the Oxford English Dictionary. The term means “designating a person whose sense of personal identity matches their gender at birth.”  Thus, as Time said, “a baby designated male in the delivery room who grows up to identify as a man is cisgender.”

Why is the term useful to some? Because it provides an opposite and complimentary word to “transgender”.

According to news articles, the term has actually been in use for some time in academic circles.  And if you’ve been on Facebook, the term was added last year when the social network re-did its gender terminology.

Now, not everyone is a fan of the word. In a Slate post on the word, it notes that “there has been some pushback against the label and its connotations of privilege from certain feminists and members of the LGBTQ community. Even some linguists doubt the term’s longevity and usefulness.”

But it goes to say that “including the word forces us to reconsider ideas of default gender identities—the idea that everyone is considered properly aligned with their assigned gender until they say otherwise.”

The corporate world is slowly adapting to this change as well. Take a look at this Powerpoint from CIGNA from 2014 about “Gender Transition in the Workplace”, which highlights the use of the term.

And, with regard to transgender issues, we’re even seeing OSHA chiming in on bathroom use for transgender employees. 

Google Trends also shows an uptick on the use of the word as well.

Back in 2011, Connecticut added “gender identity or expression” as a protected category under the state’s anti-discrimination laws.  It’s fair to say then that change is happening as we speak.  It’s not just the legal issues but the language itself. Human resource departments would be wise to stay up with the latest.

When Cancer Strikes: What Happens AFTER You Run Out of Paid Time Off

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

healI’d much rather write about a legal topic than a personal one, but before I talk about the logistics of handling an employee who has exhausted their paid time off, I wanted to share a brief personal update.

Last November, I shared with you my wife’s diagnosis and treatment for cancer.  Because she is a fairly private person, I haven’t really posted an update since.  I’m pleased, however, to report that my wife has recovered well from surgery and the original cancer diagnosis.  We are now in the stage where you wait for each followup scan with a bit of anxiety — never quite feeling comfortable enough to declare yourself “cancer-free” but not worried about day-to-day survival.  Which is another way of saying that we’re doing ok right now.  Thank you all for your continued support.

Ok, back to business.

Suppose you run a business that has about 30 employees total — all in Connecticut. You’re not covered by the FMLA or CTFMLA or even the Connecticut Paid Sick Leave Act.  Charlie — your employee — has been battling cancer the last six months and has just used up his four weeks paid time off.  He is still dealing with the occasional chemotherapy treatment, but your policies — such as they are — don’t say anything about getting any more time off.

What are your obligations as an employer?

Well, you shouldn’t assume that you may not be covered at all by state or federal law.  The Americans with Disabilities Act requires that a reasonable accommodation be made for disabled employees — and that could mean that in some circumstances, an unpaid leave of absence may be suitable.  State law may have a similar imposition in some instances.

In the EEOC’s guidance on the topic, it states:

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability.  An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.  For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.

And indeed, that may be a solution that you stumble to regardless. But the fact remains that there are limits to the rights of an employee in this situation.  Charlie may not have the right to additional time off without losing his job.

So legally, an employer may decide (and again, consult with your lawyer about the specifics as not all cases are created equally) that it is within its rights to terminate the employee who has exhausted his paid time off.

But suppose you WANTED to give the employee additional time off — could you? Sure. You might give the employee time off unpaid but say that his job isn’t necessarily protected.

You may have to worry about the precedent this sets, but failure to treat your employee with additional courtesy may lead to bigger troubles of morale in the workplace and beyond.  On the other hand, giving an employee additional time off may get yourself some additional loyalty from that employee when he returns healthy.

It is these sorts of employment law questions that are the trickiest because while you may have some legal rights as an employer, you may feel that you have an obligation (moral perhaps?) to act otherwise.  For those, think carefully through each decision and seek appropriate legal help to guide you through it.  I’ve covered other issues with cancer in the workplace here, for example.

Implicit Bias: Is Expert Testimony Admissible in Discrimination Cases?

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

gavelSo yesterday, I said that while the topic of implicit bias was important to understand, I indicated that it was far from settled in the legal context.

One recent case demonstrates why.

The plaintiffs in an age discrimination case in Pittsburgh attempted to introduce testimony from Dr. Anthony G. Greenwald, who has developed the “Implicit Association Test” or IAT.  The plaintiffs wanted Dr. Greenwald to be able to testify about processes that function outside of conscious awareness.

The judge, however, rejected the testimony in part because Dr. Greenwald did not visit the employer or speak with any current or former empoyees or subject any of those individuals (manager or employees) to his “self-invented IAT”.  Therefore, the court found that there was insufficient facts and data to base his opinion in this case.

The case, Karlo v. Pittsburgh Glass Works, is an important one because it shows that just because someone’s research may be credible, it’s the application of that research to a particular situation that can (and perhaps should) be called into question.

However, the court in Karlo was not persuaded that the research is credible either:

The Court also finds that Dr. Greenwald’s methodology is unreliable, to the extent that the IAT informed his analysis and provided a basis for his opinion that most people experience implicit bias. Although taken more than fourteen million times, Dr. Greenwald cannot establish that his publicly available test was taken by a representative sample of the population—let alone any person or the relevant decision-maker(s) at PGW. Dr. Greenwald also fails to show that the data is not skewed by those who self-select to participate, without any controls in place to, for example, exclude multiple retakes or account for any external factors on the test-taker. Perhaps to compensate for these shortcomings, Dr. Greenwald explains that his test is widely-used by “[m]any social cognition experts as a method in their own research” and that “[t]here exists near unanimous agreement among social psychologists as to the validity of the IAT as a method for implicit measurement of attitudes and stereotypes.” Be that as it may, the IAT still says nothing about those who work(ed) at PGW.

And it’s that last sentence that is critical. It is all fine to conclude that implicit bias may exist in society, but the court was cautious about applying it to the employer in this case.

But lest employees think that it can fix this testimony for use in other discrimination cases, the court said it had serious concerns about that too. (I’ve removed the cites for easier reading).

One final point bears mentioning: the Court doubts that Dr. Greenwald’s testimony regarding implicit bias is even relevant in deciding ADEA disparate impact or disparate treatment claims, which are analytically distinct from each other.  Where, as here, a plaintiff asserts a disparate treatment claim, he or she must “prove that intentional discrimination occurred at th[e] particular [employer], not just that gender stereotyping or intentional discrimination is prevalent in the world.” Moreover, disparate treatment claims require proof of a discriminatory motive, which seems incompatible with a theory in which bias may play an unconscious role in decision-making. In a disparate impact claim, evidence of implicit bias makes even less sense, particularly because a plaintiff need not show motive.  Accordingly, the Court finds that Dr. Greenwald’s opinion does not meet the requirements of Rule 702, and therefore, it will bar his testimony at the trial of this action.

So what does the future hold for implicit bias in legal cases? That remains to be seen. The American Bar Association is putting on a presentation about implicit bias next week if you’d like more information.

For now, employers should continue to be aware of this issue and not dismiss it out of hand simply because the courts have yet to adopt it fully.  Something tells me we are still figuring out where implicit bias fits in the legal analysis of discrimination claims.

Implicit Bias: What We Can ALL Learn About It in the Workplace

Posted in Discrimination & Harassment, Highlight

norwood1After the longest break away from this blog in 8 years (some purposeful, some not — and albeit not very long), it’s time to break from the summer doldrums and start thinking again.

Last week, I had the opportunity to introduce a former law professor of mine — Professor Kimberly Norwood — at my firm’s In Community Event.  Professor Norwood (you never feel comfortable calling a former professor by their first name) spoke eloquently on the way bias — and specifically implicit bias — can play a role in the legal system.

She was outstanding and if you ever get a chance to hear her (and YouTube provides several examples like this one and this one), I would recommend it.

Skillful readers may recall a post a year ago that she wrote here on this blog in the aftermath of the events in Ferguson.   But she is also compelling in her discussions about implicit bias.  In her speech and in an article she wrote last year, she notes that studies show that we ALL have implicit biases.  As she said,

Because there is a clear link between automatic stereotypes and behavior, it is important to untangle automatic associations that can do harm. Part of what social psychologists are doing now is helping us expose our biases
so that we can separate the good from the bad and make more informed and correct decisions.
What does this mean in the workplace? Well, suppose an overweight job candidate comes into your office for a job interview.  Is your implicit bias giving you bad vibes despite the superior credentials and great interview? Studies like this one show a bias in various aspects against overweight.  So, perhaps being aware of this, what then?
Professor Norwood doesn’t suggest any easy answers. And really, how could she? It’s tough to battle against and even when you don’t want those biases to prevail, you may be fighting against the biases of others too.
Now, this is not to suggest that the conclusions regarding implicit biases are settled; there are important legal questions to be decided on this too which I’ll cover in a future post tomorrow.  Whether courts accept this theory and whether it’s scientifically proven remains to be seen.
But that doesn’t mean we should ignore the topic.  Overall, the topic of implicit bias is an important one to keep discussing. These biases don’t make us bad people. But they do require us to continually challenge ourselves too.

CHRO Presents Leaders and Legends Awards

Posted in CHRO & EEOC

This afternoon, the CHRO will present its first annual Leaders and Legends Awards ceremony.  I’ll be there.

But more than that, I have the honor of presenting one of the six awards (you’ll just have to come to find out which one).

The Awards, which are dedicated to the late David S. Stowe, a civil rights advocate and activist who passed away this year, will be held from 3-5p at the State Capitol. The six awards are as follows:

  • The Alvin W. Penn Award for Excellence in Leadership – Senator Eric Coleman
  • The Katharine Hepburn Award for Using Media as a Platform for Social Change – The Artists Collective, Inc.
  • The Constance Baker Motley Award for Excellence in Business or Law – Karen DeMeola
  • The Maria Colon Sanchez Award for Community Activism – Michelle Duprey
  • The Edythe J. Gaines Award for Inclusive Education – Darryl Burke
  • The Mario and Janet Vigezzi Award for Social Justice – Eleanor Caplan

The event is free and open to the public and, even better, light refreshments will be served.  Unfortunately, I’ve learned that the event has reached its capacity!

Congratulations to all the award winners and I look forward to seeing you all then.

When Your Model Employee Isn’t Anymore

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

437px-BillCosbyI loved Bill Cosby.

When we first got cable TV as a kid, I must have watched his movie “Himself” a few dozen times after school. His “Chocolate Cake” routine was even something I showed my kids a few years ago.

And I don’t think I missed many episodes of his sitcom either.

When the accusations about him popped up, I did what many people did – just thought they couldn’t be true. I mean it’s BILL COSBY.

And now? I’m just so thoroughly and completely disgusted by him. Repulsed.  The New York magazine article with testimony from so many women is just sickening to read.  The pain that they have endured through the years and the courage they have now is hard to fathom.

But here’s the thing: I shouldn’t have been that surprised. Time and again, my colleagues and I will hear of clients with their own “Bill Cosby.”

I don’t mean it from the drugging women sense. That’s horrible in its own twisted way that hopefully isn’t repeated.  Thankfully that’s one story I haven’t heard in the workplace.

What I mean, though, is the teflon person. The person in your workplace that just couldn’t be what a rumor suggests perhaps they might.  That person who is the complete opposite of what you’re now suspecting.

And what might such a rumor look like? It might be that their resume doesn’t add up. Or those corporate expense account bills aren’t making sense anymore.  Or someone is looking at child pornography on your system, but it seems to linked to your top sales person.

That couldn’t be true. I mean it’s “Joanna!” or “Mike!”

But as I’ve seen and I’m sure other employment lawyers have seen, in our careers, there will be a time or two when it is true.

It’s a kick in the gut. It’s that sickening feeling that you’ve been duped.  You’ve been lied to in your face.

And then you have do the most important thing you can for your company: Instead of ignoring it or getting angry, you need to get your wits about you and investigate.  Get to the bottom of it. Sooner rather than later.

You probably won’t like the findings. But then comes the interesting part: You can decide what to do from there. In some instances, you’ll have to go to the police (in fact, the police may be brought in as part of the investigation even before then).  Or you can work out a deal with the employee. Perhaps allow them to resign with an agreement to repay funds. Or maybe it’s just a straight firing and lawsuit against them.

But the fact is you do have options.

Obviously, it should go without saying that bringing legal advice in to assist is critical. But that’s besides the point here.

May you be lucky to avoid a situation of a model employee who may not be what everyone thinks they are. If you do, though, remember that feeling many of us felt when we learned that even Bill Cosby isn’t who we thought he was.