Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

BREAKING: Connecticut Department of Labor Commissioner to Retire At End of Year

Posted in Labor Law & NLRB, Legislative Developments, Wage & Hour

Sharon Palmer, the Commissioner of the Connecticut Department of Labor, will retire at the end of this year, news that was first reported by the CT Mirror website.

According to CT Mirror:

In an interview, she described her decision to retire as driven by age and circumstance, not politics or a consequence of overseeing the Department of Labor at a difficult juncture. She laughed and added, however, “It’s tired me out, that’s for sure.”

Governor Dannel Malloy issued a press release announcing the retirement and commending the service of Commissioner Palmer:

Governor Dannel P. Malloy today announced that Connecticut Department of Labor Commissioner Sharon M. Palmer has opted to retire from the agency at the end of this year.  Commissioner Palmer began her position as the head of the department in August 2012 and was reappointed earlier this year when the Governor began his second term in office.

“I have always known Sharon to be an advocate for helping others, and have been impressed with her focus on workforce and education issues in our state, because both create good jobs and deliver a strong economy for Connecticut,” Governor Malloy said.  “Under Sharon’s tenure, many successful employment programs and services were developed and launched. I thank her for her unwavering dedication and her service.”

While Palmer’s background was as a teachers’ union president and AFL-CIO offer, her tenure at the CTDOL was marked by the lack of any major new department worker initiatives similar to those announced on a federal level. Instead, the Department has continued to focus on grants and training programs.

Indeed, while the press release says that the department “ramped up efforts to fight misclassification” of workers as independent contractors, we haven’t seen nearly the same publicity or efforts that have been attached to the United States Department of Labor activities.

Malloy said that a search for her successor begins now and presumably one will be named before Palmer’s departure.

Harassment and “Terms & Conditions” Claims Up Big; A Look at CHRO Statistics Part 2

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight

chro2In yesterday’s post, I talked about how employment claims being filed are up big at the CHRO.

Indeed, in looking at the statistics further, I realized that it is the second highest number of claims being filed in the last 15 years.

So, FY 2015 was a very big year for claims.

But typically, in an improving economy, claims go down.  At least that’s the prevailing wisdom. So, what gives?

I wondered if the statistics could help explain the increase further?

In part, yes.

abacusIf you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — those claims are basically the same (1174 for FY 2015 vs. 1164 in 2014.)

Compared with 2003 – the peak year for employment claims at 2211 — discharge claims are actually down substantially.  Indeed, in 2003, there were 1385 claims.  Thus, discharge claims are actually down 15 percent since 2003.

So, where are these claims coming from? One is from an obvious source: Retaliation claims.

In 2003, there were 516 claims filed. In 2014, 625. And in 2015, 753.  A 46 percent increase in the last decade or so and 20 percent over the last year alone.

Another is from a not so obvious source: from the “terms and conditions” area.  That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment – however small.

In 2003, there were 411 such claims filed. In 2014, 782. And in FY2015 —  a spike to 941.  That translates to a 130 percent increase in such claims over the last 12 years and 20 percent over the last year alone.

In my mind, that means that many current employees are bringing discrimination claims against their employers based on the terms and conditions of their employment.

One other source? Harassment claims.  Notably, I’m not talking about sexual harassment claims which are actually down from last year and down 24 percent from 2003.

Instead, this is the catch all claim for “I’m harassed” because of some other reason.  503 claims were filed in FY 2015 vs. 380 in 2014 and just 175 in 2003.  That’s an increase of nearly 190 percent in the last 12 years and 32 percent last year alone!

Again, these are typically brought by current employees who may be dissatistifed with things at work and believe that they are being “harassed” by their supervisor.

Indeed, the notion of “workplace bullying” movement is premised, at least in part, on this idea.

So, what’s the takeaway here? You may be looking for claims in the wrong spot. Dismissal claims are fairly constant, but it is claims by current employees that are up substantially over past years.

And while we’ve talked about the increase in retaliation claims for many years, but harassment and “terms & conditions” claims are now the hot areas — at least in Connecticut.

Is there anything else to be gleaned from the statistics? Any other reasons why we’re seeing an increase? Stay tuned for the next post.

Employment Discrimination Complaints Up Over 11 Percent in 2014-2015; A Look at CHRO Statistics Part 1

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight
Numbers everywhere

Numbers everywhere

As I noted on Friday, the Connecticut Commission on Human Rights & Opportunities has, at long last, released case statistics for 2014-2015 fiscal year and has updated their statistics for the last several years.

As a result, there are lots of new numbers to pore over and information to be gleaned.

The biggest takeaway? The number of discrimination complaints filed with the agency is up — and up big over the last few years.

For the fiscal year ending June 30, 2015, 2482 complaints were filed state-wide, up from 2172 the year before and up from a low of 1838 just three years ago.

For those playing at home, that translates to a whopping 35% increase in discrimination complaints from FY2012 to FY2015.

Now, not all complaints filed with the CHRO are employment-related. But even those employment discrimination complaints are also up big.  In FY2015, 2017 employment complaints were filed, up from 1817 the year prior and up from 1559 three years ago.

Thus, employment complaints are up 29 percent in the past three years, and up 11 percent in the last year alone.

Given the improving economy and the corresponding drop in claims at the federal level, these state statistics are pretty surprising.

Diving deeper in the numbers, raises more eyebrows.  Where is this increase coming from?

  • Age claims? 503 in 2014 vs. 505 in 2015. Nope.
  • Sexual orientation claims? 62 in 2014 vs. 51 in 2015. A decrease.
  • Sex claims? 544 in 2014 vs. 575 in 2015. A modest increase.
  • Physical disability? 450 in 2014 vs. 484 in 2015. Again a modest increase.

But a few areas stand out:

  • Ancestry? 133 in 2014 vs. 189 in 2015. A huge increase of 42 percent!
  • Color? 409 in 2014 vs. 480 in 2015. Another big increase of over 17 percent.
  • Race? 538 in 2014 vs. 596 in 2015.  An increase of 11 percent, consistent with the overall trend.
  • National origin? 218 in 2014 vs. 258 in 2015.  A corresponding increase of over 18 percent.

Thus, while the statistics can only tell part of the story, it is apparent that claims for race, color, ancestry and national origin all account for a substantial part of the increase.

What does this mean for employers? What else can we glean from the statistics? Why are complaints going up in a relatively good economy?

I’ll tackle these questions and more in upcoming posts.

The CHRO Complaint Process Needs A Reboot

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Laws and Regulations, Legislative Developments
The CHRO is screaming for a reboot - like Star Trek

The CHRO Complaint Process is screaming for a reboot – like Star Trek

Lately, I’ve been hearing a lot of complaints about the Connecticut Commission on Human Rights & Opportunities from both attorneys and clients. And I’ve come to one conclusion:

The CHRO Complaint Procedure needs a reboot.

Now, before you dismiss this as a critical column – let’s be clear. I like many reboots.  Sure, the Superman Returns movie paled in comparison to the Christopher Reeve version, but I thought the new Star Trek reboot was pretty snazzy.

Why do movies go through reboots? Because the formula that had worked for the movie series for so long has just stopped working.

Think George Clooney in Batman & Robin and then the reboot with Christian Bale.

And right now, the process that the CHRO has created is just not working. It’s not working for individuals, it’s not working for companies and, I believe, it’s not really working well for the agency itself.  (And note too that I’m not suggesting the agency itself needs a reboot — though some have argued for that — rather, it’s the process as mandated by the law that this post is addressing.)

A reboot doesn’t mean failure; it doesn’t mean to throw out the entire formula. The agency has made some good strides on public outreach, for example, under the new leadership team.  It is closing cases at a good clip and the mediation process seems better than in years past with dedicated staff just for mediations.

And I wouldn’t go so far as to say we live in a post-modern age where it has completely outlived its usefulness.

But the complaint procedure which was reworked a few years ago just isn’t working for anyone. Here’s why:

Continue Reading

Lucky You: Workplace Gambling Webinar Set for October 20th

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

football1My New York Football Giants are 0-2 so far this year.  It’s been ugly.

But all is not lost for me. Why? My fantasy football team — the Hartford Hotspurs (with a wink to my favorite soccer team, the Tottenham Hotspurs) — is 2-0 so far.

Now, you may be wondering what this has to do with employment law.  Well, as it turns out, lots. (And, in fairness, I’ve covered this topic before in posts such as here, here and here.)

Fantasy Football and March Madness have made it into the workplace like never before. (Note to my fellow partners — my fantasy team is strictly an outside endeavor).  Indeed, some employees are bound to make a friendly bet or wager (or enter a “daily fantasy league”) on company time while on company property and with company equipment.

While seemingly harmless, gambling, whether legal or illegal, is a huge pastime in the US and often creates unwanted legal issues. In some states gambling can range from a Class B misdemeanor to only a social relationship.

Employers may also open themselves to liability by sponsoring or permitting gambling in the workplace.

On October 20th, the American Bar Association is producing a webinar on the topic.  And I’ll be one of the panelists to discuss the employment law implications.

As a whole, the program will discuss:

  • Legality of the most common forms of workplace gambling
  • Ethical guidelines to consider
  • Enforcing/developing policies
  • Liability and organizational risk
  • Preventing disruption at work if office pools are allowed

It promises to be an entertaining and informative talk. Be sure to join us.  You can register from the program, which will run from 1-2:30p ET, here.


A Yom Kippur Reflection: What You Can and Should Do as an Employer

Posted in Highlight, Human Resources (HR) Compliance

Flickr_-_Government_Press_Office_(GPO)_-_“Slichot”_Prayer_(2)Today is Yom Kippur – the holiest day in the Jewish year. It’s a time for reflection and a day for atonement as well.

So today I thought it would make sense to share with you something I’ve shared with clients over the years: It is the difference between what the law requires or allows, and what you — whether you’re a business or you’re acting as a supervisor — should do.

Let me give you this example: An fifteen-year employee has lately been having some troubles at work. The performance is ok but nothing that will win awards. The employee doesn’t show up for work for three days and is not responsive to phone calls. A classic no-call, no-show at work.

It is issues like this that pose two different types of questions that employers should be asking themselves. What does the law require us (or allow us) to do? And what SHOULD we do in this situation?

Sometimes, the answers will be obvious and the same for both.  Perhaps you will conclude that in the above example, a termination of employment may be appropriate.

But suppose I tweak the above example to indicate that the employee has not been feeling well of late and there’s a good possibility to believe the employee may simply be home sick or perhaps even hospitalized.  The employee has never failed to call during an absence and has ten days of paid time off remaining for the year.

Going back to the questions above, it starts to get a little messier.

The law may allow you fire the employee — though query whether perhaps the employee should be FMLA eligible.   But in answering the question of whether you should fire the employee, that’s where things get messier.

Often times, its the “should” question that is more of a business decision than a legal one.  In other words, do you want your business to be the type of employer that will be known for taking a hard stance when employees are sick?

That may not be fair — after all the employee still has an obligation to show up.    But in answering the “should” question, you can go deeper than simply looking at what the law requires or allows.  Perhaps it means sending a followup e-mail or even letter to the employee.

Now, I’m not naive enough to think that employers need to bend over backwards to treat employees with kid gloves when those employees can’t take care of themselves and can’t follow rules.  But I do think, on this day of atonement, that the urge to rush to judgment ought to be tempered more often.

Yes, you as an employer may have the power to terminate an employee, but that doesn’t mean that every situation really warrants it.  Consider the law for sure, but also consider the facts and circumstances and ask yourself if what you are doing would seem “fair” to your neighbor.

If not, then rethink the decision. Just because the law may allow you to make a decision, doesn’t mean that its always the best decision to make.

Data Privacy Continues to be a Hot Topic in HR

Posted in Data Privacy, Highlight, Human Resources (HR) Compliance

lock1Last week, I had the opportunity to speak to the Corporate Compliance Forum for the Connecticut Community Providers Association. My thanks to Gayle Wintjen, General Counsel of Oak Hill, for the invitation to speak.

The topic was a familiar one to this blog — Data Privacy.  In the session, we tackled the new Connecticut law that should be keeping at least some employers up all night figuring things out.

As I said in my talk, employers that have had to adopt HIPAA compliance rules should be in a good shape to get into compliance with Connecticut law. Things like two-factor authentication aren’t nearly as intimidating when you’ve already adopted it for other areas.

Now, the rules don’t need to be adopted by everyone. But those employers who do business with the state of Connecticut are typically covered.

The Privacy and Data Protection Group of my firm put together a FAQ to inform current and potential state contractors of Connecticut’s data privacy and security requirements and to answer the most commonly asked questions about applicable Connecticut law and compliance with it. This article also includes our recommendations for analyzing compliance under applicable Connecticut law and, if necessary, developing a plan to satisfy the pertinent legal requirements.

You can download it free here.

For human resources, I think this is one of the more complicated times to be in HR. Between privacy, discrimination laws, wage & hour laws alone, there are many issues to keep on top of. Make sure data privacy is on your list of things to pay attention to for this year.

And stay tuned for more information on an upcoming program in November.

Trusting Human Resources: A Fantasy or a Necessity?

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

papersA few weeks back, one to the best bloggers you may not be reading — Robin Shea — posted about the scathing press that Amazon had been receiving about its workplace and posed this question: Can Employees Trust Human Resources?

It’s not a trick question.

As Robin deftly points out:

Part of the problem, I think, comes from the fact that HR really cannot be an “advocate” for the employee — not like the employee’s lawyer, or his mother, or his best friend. The HR rep works for the company and has to do what’s right for the company. I think this is where the “HR doesn’t care” perception comes from.

But Robin goes on to say that “just because HR isn’t an employee advocate doesn’t mean HR doesn’t care about employees.”  Indeed, the HR person typically have to worry about compliance and recruitment — two areas that, if handled correctly, can be the “best way to stay out of legal trouble.”

Of course, other bloggers like Suzanne Lucas, tackle this issue on seemingly a daily basis. After all, Suzanne’s moniker is the “Evil HR Lady”.  Why?

All HR people are evil, it’s in our job description. Or at least, that seems to be the prevailing theory. In reality, there’s just more going on behind the scenes than most people know.

Now, before all the HR people reading this pat themselves on the back for a job well done — let’s not get too ahead of ourselves.  Human Resources doesn’t have to be evil, but that’s not to say that incompetence — or, more accurately, missteps — should be fostered either.

HR is under scrutiny all the time and missteps can often lead to misunderstandings and mistrust too.  Suppose, for example, an employee comes to HR with a “confidential” harassment complaint.  The HR person fails to tell the employee that they have an obligation to report it and followup; thus, when the HR person begins an investigation, the complaining employee may be surprised to find out that confidentiality is not something that can be promised.

Now let’s suppose that the HR person actually provides the caveat that confidentiality will be preserves where possible. But in the course of the investigation, the HR person divulges personal information to witnesses and is cavalier with the information.  No matter how good the investigation is, it will still be perceived as being improper.

One issue that may come up is training. Some companies hire HR people with little experience figuring that “anyone” can do that job.  But the problem is that these people (to generalize) may not even know the questions to ask.  They have little familiarity with the law and therefore make decisions that may seem good in theory, but are just not allowed.  The intersection of the ADA, FMLA, Paid Sick Leave, and Workers Compensation is a huge issue that is difficult to get right.

In my experience, most of the HR people I’ve dealt with are bright, well-intentioned people who just want to “get it right”.  It can be a thankless job, made only tougher when the HR people are asked to take the lead on a layoff or termination.  I can tell you that no one takes pleasure in having to fire an employee. The conversations I’ve had with HR people in those instances start off clinical — just the facts — but many times, it’s the “personal” side of the decision that gets tough. The families that may be impacted or the other difficulties that the person has.

In those cases, HR plays a crucial role in ensuring decisions are handled with care and, if the situation warrants, compassion.  HR can advocate for a severance package, or outplacement counseling, or other pieces to a separation.  HR should — and often times, does — try to get decisions “right”.

And ultimately, HR should be trusted. But that trust is difficult to be earned. To the HR people who read it, just keep plugging away.

Remember: HR will typically get blamed for any workplace employee issues and not get credit for the successes.  That just comes with the territory.

Eight Years Later: Three Big Changes in Employment Law

Posted in CHRO & EEOC, Highlight, Human Resources (HR) Compliance, Labor Law & NLRB, Laws and Regulations, Litigation, Social Media

HallofFame200pxV32007 seems like yesterday.

And yet, eight years after I started this blog and over 1800 posts later (and a Hall of Fame entry), I’m pretty sure 2007 WASN’T yesterday.

So for this year’s anniversary post, I thought I would capture what I think are some of the biggest storylines from the last eight years.  This isn’t definitive, but there are a few things that stand out.

1.  Social Media – Well this first one was easy, right? What’s amazing is that I didn’t even talk about Facebook and its impact on employers until fall 2008.  In that post, I talked about whether employers should use those sites in their hiring practices.  Since then, there seems to be no corner of the workplace that hasn’t been touched by social media. And yet, I’m also struck by the fact that there is a perceptible sign that we’re seeing this area mature. Less discussions about whether to have a social media policy. And less handwringing about whether social networking site posts are discoverable.  Yes, there are still unsettled areas on this  — the NLRB’s guidance continues to shift — but social media isn’t nearly as foreign as it was back in 2007.

2. The Return of the NLRB – Any discussion of the last eight years certainly must discuss the NLRB under the Obama Presidency.  There are those who complain about the political nature of the agency, but it’s always been a creature of various Presidential administrations.  But what we’ve seen over the last few years in particular is use of cases and regulations to chart new ground (or reverse older ground) in elections, workplace communications, and, last month, joint employer status. As such, we’ve seen union membership increase in several states, like Connecticut.  Make no mistake: On this day after Labor Day, unions and labor law have received a big old proverbial shot in the arm the last several years.  The election in 2016 will be a pivotal year in determining whether this changes continue.

3. The Battle Over Disabilities – True, there are plenty of other noticeable changes since 2007, but one that barely gets mentioned is the Americans with Disabilities Act Amendments Act.  It was one of the last employment law bills signed by President Bush and became effective January 1, 2009.  The Act changed the debate on litigation involving employees with disabilities. Instead, the Act said that courts should interpret the act to provide the coverage to individuals “to the maximum extent permitted.”  For example, previously, courts and employers had to determine a person’s disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids. Now, employers and courts must ignore those measures.   As a result, ADA cases have moved from “threshold” issues (whether the person has a disability) to “liability” issues (whether the person was actually discriminated against).

While EEOC disability charges increased markedly from 2008 to 2010 – that probably had more to do with the economy than anything else. Claims have levelled off since then and have even dropped from their peak in 2012.

A lot has changed since I started this blog in 2007.  I thank you all for your continued readership.  We’ll see what the next year brings.

The Art of the Apology: Saying “Sorry” in the Workplace

Posted in Highlight, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center
Have you hit the target with your apologies?

Have you hit the target with your apologies?

The Jewish holiday of Yom Kippur is quickly approaching.  While most people know that Jews are supposed to fast on that holiday (and ask G-d for forgiveness for their sins), one of the other traditions of the holiday is that Jews are supposed to apologize to all those we have wronged in the previous year.

I must confess I hadn’t thought about that much until I listened to a great podcast recently from Unorthodox, which brought in the publisher of “SorryWatch”, a blog about the art of the apology, to talk about saying you’re sorry.

(And another confession: Sure, I have this blog on employment law in Connecticut — talk about niche! — but the brillance of a blog devoted to apologies is divine! Seriously, it is just an awesome read.  They have lots of posts on why an apology is meaningful.)

The podcast was a terrific listen for those who are, and are not, Jewish.

It got me to thinking about the art of the apology in the workplace.  Now, I’m not the first one to write about this on an employment law blog. My friend, Molly DiBianca from the Delaware Employment Law Blog, touched it with her three rules for work apologies: Own It. Don’t Overdo It. And Offer a Solution.

The Harvard Business Review has its own advice on the work apology.

[L]eaders should not apologize often or lightly. For a leader to express contrition, there needs to be a good, strong reason.

But in the right way, an apology can help resolve workplace disputes as this post from the JAMS ADR Blog details. Indeed, in mediation, there are ways to use a mediator to get to an apology as well:

Formal face-to-face expressions of regret and responsibility,
while potentially powerful, are rare. By the time the parties
explore settlement, the animosity generated by their litigation
makes it difficult to express anything directly other than

Communication through a neutral is easier. Messages
can be passed to the other side, such as an employer’s
regret that an employee’s skills were not better utilized, a
manager’s admission of ineffective coaching or a supervisor’s
acknowledged failure to appreciate the workplace hostility
experienced by an employee. Acknowledgement of shared
responsibility for the failure of the employment relationship,
coupled with empathy for the hardship caused by the
termination, can convey the employer’s respect for the
terminated employee. Once the employee feels respected
and validated, his or her focus can shift from challenging the
employer’s decision to moving on.

Reference letters can substitute for apologies. Positive,
factual statements about the employee (excerpted from past
performance reviews or deposition testimony) communicate
respect and confirm the value of the employee’s contributions.

But I liked the advice given in the podcast. The five-step approach to the apology.

  1. Say you’re sorry.
  2. Say the thing you are sorry for. (As an aside, this is notoriously hard for my kids.)
  3. Say you understand the import of what you did.
  4. Make amends.
  5. Figure out what steps to take so it doesn’t happen again.

It’s not a perfect list, but it’s a pretty good step to start.  Workplaces aren’t always about being right; sometimes, it’s saying you’re sorry for the little things, to avoid bigger things down the road.