Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

No Right to Jury for Discrimination Claims Against State, Court Says

Posted in Discrimination & Harassment, Highlight, Litigation

My colleague, Chris Engler, joins us again with a post today about whether or not a jury trial is required for certain employment law claims.  I’ll have a full recap of my presentations on data privacy in an upcoming post soon.

While many of us spent last weekend celebrating Columbus Day, our neighbors to the north were (as my Quebec-born mother-in-law likes reminding me) busy celebrating their national Thanksgiving.

Perhaps in the spirit of the Canadian holiday, a state judge recently gave a public employer plenty to be thankful for.

The court’s decision in Beck v. UConn Health Center is short and sweet, less than a page and a half long.  (It’s so short that it offers very few facts, but we’ll get by without them.) 

Even so, the six paragraphs offer a variety of boons for the employer and revisits an issue that some may have forgotten about.  The court threw out the plaintiff’s claims of wrongful termination under several state and federal laws.  The court also held that an employer can’t be on the hook for punitive damages under the Connecticut Fair Employment Practices Act (“CFEPA”) or a federal analogue. 

But most importantly, the court determined that government employees suing under the state’s anti-discrimination laws are not entitled to jury trials.

“Hold up!”, some of you who remember your high school Civics class might be saying. 

Doesn’t the Constitution guarantee the right to a jury trial?  Not so, as it turns out – meaning that the public employer needn’t face the relative unpredictability of a jury.

The court apparently deemed its conclusions to be so obvious that the decision does not cite a single case.  However, for many readers, the reasoning behind denying a jury trial may not be so self-evident.  For those of you who are curious, the answer requires a brief journey through jurisprudential history.

Article first, Section 19, of the Connecticut Constitution states that “The right of trial by jury shall remain inviolate.”  What this means in practice is that jury trials are guaranteed for causes of action that existed prior to 1818, when the Constitution was made effective. 

To determine whether Article first, Section 19 applies, courts have to act as legal historians to determine if a plaintiff in the early nineteenth century could have sued for the same reason that the modern plaintiff is suing for. 

This is no easy task, because cases from that period were full of archaic terminology like replevin, trover, and detinue. (Editor’s Note: Must remember to ask Chris about “detinue”.)

Using this analysis, several Connecticut courts have concluded that employment discrimination claims simply didn’t exist in the 1800s.  (For reference, CFEPA didn’t become effective until the mid 1900s.)  Furthermore, even when early versions of such claims did exist, they were only applicable to private employers. Herein lies the salvation of government employers like UConn Health Center.

A Superior Court case from 1999 set the tone on this and said the following:

This court finds controlling Canning v. Lensink, 221 Conn. 346, 603 A.2d 1155 (1992), which was relied upon in a Superior Court case addressing the identical issue in the present case, Massey v. Connecticut Mental Health, Superior Court, judicial district of New Haven at New Haven, Docket No. 388542 (February 3, 1997) (Silbert, J.) (19 Conn. L. Rptr. 89).

In Massey v. Connecticut Mental Health, the Superior Court determined that no right to a jury trial existed pursuant to General Statutes § 46a-100 because the legislature did not expressly grant the right when it enacted § 46a-100. Determining that Canning v. Lensink controlled, the court stated that “[w]hen the state, by statute, waives its sovereign immunity to suit … the right to a jury trial cannot be implied, but rather, must be affirmatively expressed.” Massey v. Connecticut Mental Health, supra, 19 Conn. L. Rptr. 90. The Massey court determined that § “46a-100 contains no provision regarding trial by jury,” and therefore, “no right to a trial by jury exists in an action against the state under § 46a-100.” Id. The reasoning of Massey v. Connecticut Mental Health thoroughly and persuasively addresses the issues raised in the present case. The court concludes that no right to a jury trial exists pursuant to General Statutes § 46a-100. Accordingly, the defendant’s objection to the plaintiff’s claim for a jury is sustained, and the case is ordered stricken from the jury list.

Lawsuits always pose financial risks to public employers.  But decisions like Beck v. UConn Health Center make it a little easier. For private employers, though, you’ll have to look elsewhere for things to be thankful for.

Four Things To Do Now BEFORE An Employee Data Breach

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

We’ve come a long way since “The Net”

With the headlines coming out seemingly daily about data breaches at companies, there’s a tendency to feel a bit overwhelmed with the problem.

And while a data breach regarding your employees is something that may not be as imminent as one involving credit cards, it still represents a major threat to your business.

This week, I have two presentations on the subject. But in case you can’t make it, here’s a sneak peek at four things you can do now before you have a data breach.

  • Establish and implement a written data breach response policy.  This policy will be more blueprint, than policy.  The best ones I’ve seen are in a spreadsheet format and identify a team of individuals who are already identified in case of a data breach, with roles and responsibilities clearly defined.  Notably too, you should also have outside IT consultants and a legal team identified as well.
  • Conduct a review of your systems and data, and understand where your confidential information resides.  You won’t know if you keep your data (particularly data regarding your employees) secure unless you figure out what you have and what protections are in place.
  • Conduct regular risk assessment for your company, your contractors & vendors and other business partners.  Don’t just stop at figuring out where your data resides, but understand where you data goes.  If data is sent outside the company, is it encrypted when it is sent? For example, how is employee benefit information transmitted?
  • Establish frequent privacy and security awareness trainings as part of an ongoing program.  Telling employees when they start about privacy policies isn’t good enough anymore. Regular training and followup is needed to ensure that your employees don’t provide an easy back door for your data to exit from.

If you’re interested in the subject, I would recommend attendance at one of the two programs I’ll be at.

On Wednesday, I’ll be at the National Retail Federation’s HR Executive Summit in Chicago speaking at “Protecting Your Digital Secret Sauce” at 10:15a along with representatives from Walgreens and McDonalds.  Moderated by Miller Canfield’s Adam Forman, the program description is as follows:

High profile credit card data breaches at several prominent retailers have recently made national headlines, impacting the retailers’ brand and shaking their customers’ confidence. Credit card data breaches, however, are only the tip of the iceberg. There are a whole host of related issues that are bubbling beneath the surface, many of which are within the direct control of your employees. This panel of industry experts will discuss these issues and identify practical steps to take should your organization data become compromised.

On Thursday, I’ll be at the joint program between Shipman & Goodwin and the Connecticut chapter of SHRM entitled “Raiders of the Data Ark: Data Privacy and Cybersecurity Summit.”  There are still a few spots open for registration. Attendance is strong for this program, please be sure to sign up today or tomorrow so we can lock in the space.

Court’s Decision on Severance Agreements Avoids Central Issues

Posted in CHRO & EEOC, Class Actions, Human Resources (HR) Compliance

Just a quick followup today on a post from last month.

As I reported then, a District Court judge dismissed a closely-watched EEOC lawsuit against CVS challenging a pretty standard severance agreement.  But the grounds for the dismissal were unknown back then.

The wait is over; the written decision was released yesterday.  For those that were hoping that the court might shut this issue down, you will be disappointed because the court decided the case largely on procedural grounds.  The Court found that the EEOC had not exhausted its conciliatory efforts required by law.

Yawn.

And so, we’re back to where we were at the start of the year.  The EEOC is likely to continue to push this issue.

Still, I remain unconvinced by the merits of the EEOC’s arguments.  Courts have, for example, routinely upheld enforcement of severance agreements — albeit in different contexts.  But the arguments raised by the EEOC appear to be a stretch to me.

So, for now, employers should continue to stay alert on this issue but until we hear otherwise, it also seems that many will find it best to continue to use these agreements without further modification.

Employees Can Break Data Privacy Rules Too

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

When we think about protecting customer and employee data, we often think that the biggest hazards are outside hackers.

But a recently publicized incident involving AT&T shows that the threats may also be from within. As The New York Times reported:

“[I]t serves as a cautionary tale about the types of information that employees at technology and communications companies can retrieve just by breaking the rules, no hacking required.”

What happened? According to the Times, “AT&T, the telecommunications provider, said on Monday that it had fired an employee who inappropriately gained access to customer information this year, possibly including Social Security and driver’s license numbers.”

While the breach was relatively small (1600 people affected), the company dealt with the breach by sending out letters to those affected and paying for credit monitoring services.

What else should you do in a breach? Well, next week, I’m heading up a major Data Privacy & Cybersecurity Summit where we will discuss exactly that topic — particularly as it applies to employee data. The summit is scheduled for October 16th in Cromwell.  Co-sponsored with the Connecticut chapter of SHRM, the program includes speakers from GE, ESPN and the Connecticut Attorney General’s office.  The cost is just $75 and includes breakfast, lunch and materials.  You can register here.

For more details, click here. 

 

Is “Name, Rank, Serial Number” The Best Policy on Job References?

Posted in Highlight, Human Resources (HR) Compliance

Photo courtesy of Library of Congress circa 1939

Your former employee wants a job reference.  Do you provide just the basics to his potential employers — namely, confirming dates of employment and his last position — or something more? And what are the legal risks of doing so?

The topic is far from new on this blog (see this post from 2007 here, for example).  But Suzanne Lucas (a/k/a @realevilHRlady on Twitter) has a new column out in Inc. that gathered feedback from lots of prominent attorneys about the subject. It’s definitely worth a read to gain some differing perspectives.

As you will see, Suzanne was kind enough to seek my input too. Here’s what I said:

Here’s what happens in real life: For “good” employees, employers give recommendations. For “bad” employees, they say that they can just confirm dates of service and titles. There’s a wink and a nod, and everyone is supposed to understand the code.

But some states, like Connecticut, have created a privilege for employment references of current or former employers that were solicited with the employee’s consent. That means the employee can’t file a suit against the employer for giving a “bad” reference. What the court said is that “the integrity of employment references not only is essential to prospective employers, but also to prospective employees, who stand to benefit from the credibility of positive recommendations”. The rule is the same in at least 20 states.

So, if you’re an employer in one of those states, I think the key part of this is getting consent from the current or former employee to give the recommendation. Once that is done, the employer should have a good deal of protection–even if it gives a “bad” reference. If you’re not in one of those states, I would exercise some caution and seek legal counsel to figure out where the “safe” zone lies.

But even with the protection under the law, many employers will still want to subscribe to the “name, rank, serial number” theory of references. That’s fine, just don’t be disappointed when the employee you hire is a “dud” because another employer also subscribed to same theory.

Job references remain a tricky subject for employers to navigate.  Make sure you have a consistent policy and practice at your company so you don’t run into the issues highlighted in Suzanne’s column.

The Five Questions You Can’t Ask At A Job Interview

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

Six years ago, posts about layoffs were in vogue.  But it’s been a long while since we focused on posts about hiring.

With the economy generally stable (or shall we dare say improving?), it seems appropriate to talk about job interview questions.

There are lots of posts about the “best” job interview questions you can pose as an employer. (Where do you want to be in five years?)

So are there any questions that are off limits?

Yes, plenty of them. And I’m not talking about ridiculous hard ones like the ones posed by Google. Rather, the questions that have the potential to get you and your company into hot water.  Are they always illegal? Not necessarily. But there are just better ways to frame your question.

But first, a caveat: These types of lists have been done before. It’s hard to be original because the so-called “banned” questions don’t really change over time. So I’m going to pick five that I think are among the trickiest but commend you to posts like this that have much more detail.

1) Do you belong to a club or social organization?  Ok, perhaps this isn’t fair to start with this one. After all, it’s a fairly innocuous question.  However, ask yourself how the information you receive will be relevant to whether the applicant is qualified to do the job.  It has the potential of revealing information that you shouldn’t be considering about a person’s religious affiliation or sexual orientation.

What can you ask instead? Are there any professional or trade association groups you belong to? 

2) Do you have or plan to have children? This falls into the “just trying to make conversation” trap.  Most of the time, it’s not done for nefarious reasons. But it could be viewed that way.  And so long as the applicant does the job, his or her family obligations should not be a consideration.  If overtime is a consideration, ask specifically about that. Or travel.

What can you ask instead? Can you work overtime? Have you worked overtime in the past? And if the job requires travel, are you comfortable with traveling several days a month for business? 

3) Do you smoke? You may want a healthy workplace, but with limited exceptions, Connecticut law actually prohibits employers from discriminating against employees on the basis of their outside-the-workplace smoking habits.  If the concern is that it will interfere with a job or that employees have been violating company policies, be more specific. Ultimately, these types of questions probably won’t give you the answers you are seeking.

What can you ask instead? Have you ever been disciplined for violating employer policies on smoking in the workplace? 

4) Do you have a disability?  Perhaps the applicant has a visible disability. Don’t get carried away by your curiousity. Focus on the job qualifications.

What can you ask instead? Can you perform the job and, based on what you know about the position, how would you do so?

5) How much longer do you plan to work before you retire? I understand why you would want to know this information: You’re trying to stay away from hiring an older worker who will want to leave in a few years.  But the law says you can’t do so.

What can you ask instead? What are your long-term career goals?

And avoid word association tests.

One final cautionary note: It should be obvious, but don’t ever give Word Association tests. A classic late-night skit demonstrates that point.

(Caution: Even though it’s just from Saturday Night Live the language is now generally considered NSFW in this clip.)

A Decade Later, Breastfeeding in the Workplace Laws See Healthy Adoption

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

Over ten years ago, Connecticut became one of the first states to mandate that employers “make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.”

I’ve discussed that law in depth in a prior post here.

So, how’s the law holding up? Well, if a recent news report is to be believed, the answer is “pretty well”.

“Turns out, many companies provide clean, comfortable lactation rooms,” said the report.

Still, there appears to be room for improvement and sometimes the conditions vary wildly.

Thus, the March of Dimes has just started a “Healthy Babies Healthy Business initiative, raising the awareness of business benefits of a family-friendly work environment.

Companies can sign-up on for access to a free Intranet service that complements human resources departments. It provides standards for workplaces to support maternal and infant health, as well as education about nutrition and stress relief. Employees can access this system, currently used by Cigna, Ebay and Walmart, from work or home.

It’s a notable initiative and, having helped out the March of Dimes in the past, it’s nice to see that organization continuing its mission while providing support to businesses in the state.

Even if employers do not adapt that program, make sure you remain vigilant in ensuring access to private rooms for new mothers.

It’s not only good business. It’s the law too.

Data Privacy: Protecting Your Employees’ Data Is Critical

Posted in Data Privacy

Last month, I wrote about the Home Depot credit card data breach and the importance of protecting company data.  But the issue of protecting employee data is far from new.

Back in 2011, one legal publication had this to say about employee data:

Employers collect a substantial amount of personal information about their employees. Companies need to be aware of their obligations under the profusion of data protection laws and regulations that govern the collection, use and transfer of personal information. This is an especially daunting task for companies that have operations subject to the laws of multiple jurisdictions, as requirements vary widely from country to country and even from state to state. …

Companies use employees’ personal information for a variety of purposes—from evaluating applicants during the hiring process to administering payroll and employee benefit plans to managing separation and other post-employment benefits. And as more employers adopt enterprise-level information management systems and outsource certain human resources administration functions, increasing amounts of personal data is being transferred and shared within and between organizations. Maintaining compliance with applicable data privacy laws is a responsibility employers cannot afford to overlook.

I couldn’t say it better myself.  But don’t take my word for it. There are a whole host of experts coming to speak later this month at a Data Privacy and Cybersecurity Summit that I’ve been planning.  People from companies like ESPN, UTC and GE. And respected government officials from the Connecticut Attorney General’s office and the FBI.

The summit is co-sponsored by my law firm, Shipman & Goodwin LLP and the Connecticut chapter of SHRM.  It is scheduled for October 16th at the Crowne Plaza in Cromwell, CT. You can register for it here. Don’t miss out.

Opt In or Opt Out or Both? Collective and Class Actions in Wage & Hour Cases

Posted in Class Actions, Highlight, Litigation, Wage & Hour

A limo driver believes that he should be paid overtime.  He brings a lawsuit on both state and federal wage & hour laws.  But he believes that other similarly situated drivers should also be part of his lawsuit.

How does that happen? Well, he asks the court to represent all the other drivers as well. Most people know that as a “class action” but in wage & hour cases, there is also a significant difference too.

A new federal district court case in Connecticut illustrates that exact point fairly well.  (You can download the decision in Lassen v. Hoyt Livery here.)   In doing so, it also shows the key difference between federal law and state law.

A federal wage & hour claim on behalf of other employee is known as a “collective” action.   As the Supreme Court has said, a collective action is “fundamentally different” from a class action brought by the procedural rules set up for federal courts.

Unlike typical class action in which putative class members must opt out in order to remove themselves from the class, a FLSA collective action requires employees to affirmatively opt in to the case in order to join the collective action group.

But here’s where things get interesting, under Connecticut law, an employee who believes he is entitled to overtime, can also bring a claim. These claims can sometimes be brought in federal court too as a supplemental claim to the federal one.

In doing so, these claims are class actionsand not collective actions.  Thus, for state wage & hour class actions, the classes are opt-out.

Why is this important? Because in most instances, people do not typically opt out of class actions and are much more likely not to opt in.

In the limo driver case cited above, the court adopted both the collective and class actions into the case, thus requiring an opt-out notice for the state claim, and an opt-in notice for the federal claim.

How that shakes out in that particular case is anybody’s guess, but no doubt it’s a position that employers do not want to be in the first place.

Compliance with wage and hour laws — something I’ve preached for years — should remain a top priority for employers in the coming years.

Are You a Joint Employer? It May Depend on the Court’s Test

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

Can an employee work for more than one employer at the same time? Under a theory of law called “joint employment”, the answer is yes.

But how do you make that determination?

Suppose a private bus company provides services all over Connecticut. It’s largest customer happens to be a very large private university in the state. The company provides both interstate and intrastate service for the university, as well as shuttle bus service for the campus.

Are the bus drivers employees of both the bus company and the university?  A recent case in the federal court in Connecticut set forth the various tests that the courts in Connecticut use to make that determination.

(Ultimately, the court denied the drivers’ claims that they were employees of the university.)

The court’s decision in Velez v. New Haven Bus Service can be downloaded here.

The Tests

Where a plaintiff claims multiple simultaneous employers, or “joint employers” under the FLSA, “the overarching concern is whether the alleged employer possessed the power to control the workers in question . . . with an eye to the economic reality presented by the facts of each case.”  In this so-called “economic reality” test, a court must first evaluate whether the alleged joint employer exercised formal control over a plaintiff’s employment.

The Second Circuit has recognized a four-factor joint-employer test to establish formal control, which asks whether an employer: (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.

Simple enough, right?

Well, not exactly.  In fact, the Second Circuit ”did not hold . . . that those [four] factors are necessary to establish an employment relationship” as the court said in another case (Zheng v. Liberty Apparel Co.).  That decision applied a “functional control” test.

In doing so, a court may also consider the following factors:

(1) whether [the putative employer’s] premises and equipment were used for the plaintiffs’ work; (2) whether [the direct employer] had a business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which plaintiffs performed a discrete line-job that was integral to [the putative employer’s] process of production; (4) whether responsibility under the contracts [between the direct and putative employers] could pass from one [entity] to another without material changes; (5) the degree to which the [putative employers or its] agents supervised plaintiffs’ work; and (6) whether plaintiffs worked exclusively or predominately for the [putative employer].

As the District Court recognized in the Velez case, the Second Circuit has not announced a definitive set of factors to establish functional control, recognizing that there will be “different sets of relevant factors based on the factual challenges posed by particular cases.”

How many of those factors will need to be met to satisfy a claim? That’s still unclear, but in the Velez case, two was not enough to establish joint employment.

The Takeaway?

Of course, longtime readers will know that this is not a new topic. 

Employers should always be vigilant in making it clear who is and is not an employee of theirs. If you contract out certain work (food service, for example), make sure that you are not crossing the lines that seem like you are more their employer than a customer. For example, if you set these contractors’ hours and discipline them and they only worked for you, that might be closer to the joint employment relationship than you may have intended.

Contracts may help, but as you can see from the above, the courts will look past the language and look to either the “economic realities” or the “functional control” to make that final determination.