Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Guest Post: When “Disruptive” Technology Hits Your Workplace, What Then?

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

Today, I’m pleased to highlight a guest post from Steven Scheinberg, the General Counsel of the Anti-Defamation League. I’ve known Steven for several years and was very happy when he offered to share his thoughts on this important topic.  Steve actually practiced at a prominent plaintiff’s employment law firm in Connecticut many years ago now so he’s got the background to talk competently on employment law topics.

My thanks to Steve for sharing his thoughts here. As you will see, it mirrors many of the issues I’ve been talking about lately on the blog — technology, privacy and cybersecurity.  HR personnel and employment lawyers need to be driving the conversations at business about this because the issues now overlap with issues relating to employees more and more.

A recent McKinsey report on twelve “disruptive” technologies included four that will fundamentally transform how employers relate to their employees: mobile Internet, automation of knowledge work, the Internet of things and cloud computing.

I would add to the list three results of these technologies: big-data, cybercrime and privacy.

From an employment law perspective, the common element here is data – data that flows to, is stored by, and is used (or misused) by employers, third parties and employees.

Employers

As new devices and technologies are deployed, employers will likely inadvertently gather information they probably do not want – for instance, protected health information (perhaps by detecting a disease-related app on a phone) or detailed records of employee movements (which can be very harmful in wage and hour litigation).

As employers look at these (and other) large pools of data (including applicant data), some will wish to “mine” this data using increasingly low-cost “intelligent” automated systems. Such work has to be carefully done – both algorithmic errors and poor statistical methodology can easily lead to significant errors in the information derived from the raw data. The results, from at least an EEO point of view, can be quite disastrous.

This data will likely be stored on third-party “cloud” storage systems –an arrangement that will raise new risks for employers.

Third Parties

Employers need to be concerned data in third party hands — whether it is there intentionally or not.

For instance, employers ask employees to use devices that are loaded with third party apps – and sometimes they even ask employees to use these apps. These apps routinely collect significant amounts of data, including location and unique device identifier information. Such data can be combined to create a very detailed profile on users.

This data – owned, protected and even sold by these third parties – can create a new window into an employer’s operations that litigants and corporate spies alike would love to see.

Next, data will inevitably end up in third party hands through litigation and discovery. As the cost of sophisticated analytics concerning that data is falling, there will be a sea-change in how employment cases are litigated – especially class actions.

And in the regulatory and EEO context, as a recent White House panel on so-called “big data” concluded, “the federal government should build the technical expertise to be able to identify practices and outcomes facilitated by big data analytics that have a discriminatory impact on protected classes.”

The use or misuse of this information by the government or litigants will require a very sophisticated legal response – one that will likely involve the world of statistical analysis and coding.

Information will also end up in third party hands through crime. Whether inadvertent or not, the primary source of data breaches is through an employee’s keyboard. As the breaches continue and the costs rise, employers will have to take radical approaches to data protection, including new levels of data segregation, radically shoring up security-related policies and treating mobile phones, whether company-owned or not, as on par with laptops.

Employees

As data is produced by more and different devices, there will be serious questions about who owns the data those devices store and generate.

Will an employee-owned, GPS-enabled app used on a “BYOD” device contain data that is owned by the employee (say, concerning their fitness activity) or, because it was worn during work, will it contain proprietary information (such as a record of where the employee visited)?

Employers must understand what data their employees are gathering – and update policies and executive employment agreements to deal with it.

In the social media context, employers will be forced to grapple with always-on devices, including those that constantly stream video.

It is unclear whether a simple workplace ban on such recording (as recently permitted under the NLRA) will survive video streaming’s convergence with social media –the latter of which the NLRB maintains can be a form of protected concerted activity.

Last, employers need to have action plans in place for data breaches caused by or impacting employees. Employers should also ensure that insurance policies cover employee-caused data breaches and incidents involving employee information.

Concerns about privacy cover all three areas, but this is well covered elsewhere.

Summary

This short survey illustrates that the world of the employer will more and more involve data-driven risk –placing their lawyers deep in the world of statistics, system design and security management.

*This post also appeared on the Technology Employment Law Blog; we are thankful for the permission of Mr. Scheinberg for publication of the post on this site as well. 

Watching Over Your Employees

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

With cameras on every smart phone and computers that can track your every click, it’s hard for employers to know what’s proper in the workplace when it comes to surveillance and monitoring.

I’ve talked on the blog before about Connecticut’s Electronic Monitoring Act. But there are several other laws and theories that employers should be aware of before pushing the “power” switch on that hidden camera.

Take, for example, Conn. Gen. Stat. Sec. 52-570d.  That law prohibits the taping of a private telephone conversation without the consent of all parties to the conversation.  That can come in handy if you believe an employee is recording a phone call without your permission.

The addition of social media in the workplace has added another layer to the analysis in some states too.  While Connecticut hasn’t yet passed a law that would restrict employers from asking for the passwords of employees’ social media accounts, it wouldn’t be surprising to see that issue come up again in the new session.

What else is there? Well, for that you’ll have to come to our free labor & employment law seminar this Friday where I will be speaking on this topic with my colleague Peter Murphy.  Details are available here.  If you’re interested, just sign up. 

And we promise we won’t play this song, however tempting as it might be.

 

Your Company’s Wellness Program May Violate The Law, Says the EEOC

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

I’ve talked about wellness programs from time to time here on the blog.  Robin Shea, on her great blog, first brought this up back in August. But since then, there are some new developments from the EEOC that employers should keep an eye out on. 

Today, my colleague Marc Herman joins us for the first time to guest post on the latest and greatest on wellness programs, with a  warning that your wellness program may be more of a liability than a benefit.

“I’m stuck in between a rock and a hard place.”

You’re familiar with that phrase. So how about this one?

“I’m stuck in between participating in a wellness program and having to fork out a fortune on health insurance. . .”

Sure, it doesn’t quite have the same ring to it (check out English-Idioms.com — a real thing — for more), it does convey a relevant message for Connecticut employers––your organization’s wellness program may not pass muster under the Americans with Disabilities Act.

At least according to the EEOC.

This is no small issue.   94% of employers with over 200 workers according to the EEOC, offer their employees wellness programs. Wellness programs have many perceived benefits-–they assist employers in promoting healthier lifestyles which, in turn, leads to healthier, happier, and more efficient employees. (And who said that there is no room for sentimentality in the world of employment?)

But, their advantages aside, wellness programs are being challenged when participants are required to undergo some form of medical examination as a condition of enrollment.

This month and back in August, the EEOC has filed suits against two Wisconsin employers for alleged violations of the Americans with Disabilities Act (ADA).

In both suits, an employer offered its employees a “voluntary” (a poignant word choice) wellness program, that required a medical examination as a condition of participation. Employees that participated in the program received a heavily subsidized health insurance premium; non-participating employees, on the other hand, did not.

According to the EEOC, the employers violated the ADA because employees were subjected to involuntary and arbitrary medical examinations.

The EEOC contends that the biometric testing and health risk assessment constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA). These alleged actions and severe consequences for not providing prohibited information as part of its “wellness program” violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.

Importantly, under the ADA, employers may conduct truly voluntary medical examinations as part of an employee health program available to all employees.

But, involuntary employee medical examinations are a no go, unless such examination is shown to be “job-related and consistent with business necessity.”

According to EEOC, a wellness program is voluntary as long as an employer neither requires participation nor penalizes non participation. In these cases, the EEOC suggests that incentivizing participation is merely a euphemism for punishing non participation, and is thus a violation of the ADA.

What’s the Takeaway for Employers?

It’s still too early to see whether the EEOC’s position will find support in the courts. The EEOC has overreached on some issues this year such as the challenge to CVS’s standard severance agreement.

But these suits should remind employers that wellness programs must truly be voluntary to succeed.  As we go into open enrollment season, it’s a good time to take a look at the language you use to promote these wellness programs.  Your experienced legal counsel is certainly a good option to help on this too.

Bully For You? Not When It Comes To Workplace Bullying

Posted in Human Resources (HR) Compliance, Legislative Developments

One of things I try to do on this blog is look through our crystal ball and focus on topic that may be on the horizon.

For some time now, workplace bullying has seemed to be one of those issues. I’ve touched on it before, but today my colleague Chris Parkin is back with some further discussion on it. 

In the meantime, we’ll be discussing this more in-depth at our FREE Labor & Employment Law Seminar on October 31st.   Please be sure to sign up ASAP if you’re interested because we are starting to get close to our capacity. 

Workplace bullying is real.  It happens every day in offices and on job sites throughout Connecticut.

Does an employer have an obligation to prevent or stop it? Is bullying illegal? The answer surprises HR managers and bullying victims alike: there’s no federal or Connecticut law against bullying in the workplace.

It’s perfectly legal to be an abrasive, even abusive, supervisor or colleague.  That doesn’t mean it’s a good idea.

And indeed, just because bullying may not be completely outlawed, it does not mean that employers are off the hook entirely.  Indeed, workplace bullying conduct may nevertheless give rise to claims of discrimination, retaliation, intentional infliction of emotional distress, and negligent supervision, among others.

To date, few of these bullying-type claims have been brought in Connecticut but the potential for claims is real, particularly when the alleged victim is a member of a protected class.

In addition, there is a national effort to lobby state legislatures to pass anti-bullying legislation.  Despite years of lobbying, only California has passed a major bill relating to bullying.  Just last month, the state passed a bill that expands their sexual harassment training requirement to include “prevention of abusive conduct” as a component.

Anti-bullying legislation has been proposed in Connecticut on several occasions.  The most recent effort to curb bullying in Connecticut (in 2012) would have required public sector employees to report all complaints of abusive conduct and workplace violence on an annual basis.

Like its predecessors, it failed to make it through the legislative process.  The recent passage of the California training requirement may be a look into Connecticut’s future though.  Like California, Connecticut is among the three states to mandate sexual harassment training.  The California law provides a template for a adding a bullying training requirement here in Connecticut.

We’ll talk about all of this at the seminar next week. Hope to see you there.

Not Every Action By Employers Can Be the Basis of a Lawsuit

Posted in Discrimination & Harassment, Litigation

My colleague, Jarad Lucan, returns today with a primer on what it takes to establish a “prima facie” case of discrimination — the bare minimum to get the case to be considered by a court.  Today, we focus on the third element — the “adverse employment action”. What is that, you ask? Read on.

If an employee hopes to have any chance of succeeding on a discrimination claim, she must first be able to establish a prima facie case.

Generally, this means that an employee must establish that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subjected to an adverse employment action; and (4) the adverse action took place under circumstances permitting an inference of discrimination.

Given that there are so many protected classes recognized by state and federal law (including race, gender, religion, gender identity, disability, sexual orientation, and veterans status), establishing the first prong is not particularly difficult.

In fact, in many cases (except for disability cases) an employer may concede an employee’s protected status.

Likewise, an employee can usually establish the second prong with ease. After all, employers generally do not hire individuals who are not qualified for the position.

Where an employee is likely to run into difficulty is with the fourth prong. Unless an employer chooses to openly flout the anti-discrimination laws, there is rarely obvious proof of a discriminatory action.

Now, for those of you keeping tally, you may notice that I skipped over the third prong. This was not accidental. When an employee is terminated, suspended or not promotes, there is no question that she suffered an adverse employment action.

But what about when the employee suffers some other action short of the foregoing examples? Are there certain actions an employer can take that do not amount to an adverse action as the term is understood in employment discrimination parlance?

Two recent cases, one from a Superior Court and one from the Connecticut District Court, answer that question in the affirmative.

In Powell v. Connecticut Department of Mental Health and Addiction Services, a registered nurse who was terminated after she failed to take sufficient disciplinary action against a staff member who had violated a work rule by sleeping on the job. On the day she was terminated, the nurse’s supervisor sent an e-mail to the staff notifying them of her termination. The nurse grieved her termination under the collective bargaining agreement and was reinstated.

The nurse also filed a discrimination claim not based on her termination, but based on the e-mail sent announcing her termination. According to the nurse, the employer had never announced a termination in such a manner and typically did so at a staff meeting.

In granting DMHAS’ motion for summary judgment the Superior Court indicated that the e-mail announcement as opposed to an announcement at a staff meeting was not an adverse employment action. Such an action is not a significant change in employment status.

In Avino v. Stop & Shop Supermarket Co., LLC, an employee was suspended without pay after he contacted several managers, despite instructions not to do so, having called one of them a “puppet” and another a “liar.” The employee, however, never served the suspension, instead taking advantage of vacation and sick days and an extended leave of absence before voluntarily retiring.

According to the District Court, a suspension that is never served is not an adverse employment action.  For support, the court also relied on a 2005 case out of Illinois that came to a similar conclusion.

For employers, defense of discrimination claims isn’t a one-size-fits-all proposition. Be sure to consult with your counsel about the best way to defend yourself even before a claim may be filed.

 

 

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

Posted in Discrimination & Harassment, 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.