Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Connecticut Law May Force Employer to Transfer Pregnant Employee

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

Ms. Lora Wagner — see below

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

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

As it turns out, yes.

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

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

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

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

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

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

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

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

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The Pregnancy Discrimination Laws You Never Knew About

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

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

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

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

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

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

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

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

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

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

What’s the employer to do?

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

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

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

 

If the CHRO Ran the Legislature: Agency Proposals On Deck

Posted in CHRO & EEOC, Highlight, Legislative Developments

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

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

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

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

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

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

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

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

The Year of Religion and the Workplace

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

islamThe law works in mysterious ways.  (Cue the U2 song.)

Some years seem to get dominated by a particular type of issue, even though the law has been around for years.

This year, it seems as though issues of religion and the workplace are taking center stage.

Yesterday, the U.S. Supreme Court heard arguments in the EEOC v. Abercrombie & Fitch case that I talked about last month.  As usual, SCOTUSBlog has an excellent recap written “in plain English”.   The case involves the government’s suit against the retailer for failing to hire a Muslim teenager who wore a headscarf.

But notably, the issue in the case is slightly different than how it has been portrayed in the mainstream press.  The issue is “Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”

According to SCOTUSBlog, the judges seemed to be searching for a solution.

With the Justices apparently dissatisfied with both of the options presented to them by the parties, Justice Sonia Sotomayor offered a possible solution that would allow an employer like Abercrombie to inform a job applicant about its work rules without asking probing questions about the applicant’s religion:  if an applicant had a beard, for example, the employer could tell the applicant that its “Look Policy” prohibits beards (thereby notifying him of a possible conflict) and simply ask him whether he can comply with that policy.

Not all Justices were amenable to this proposal:  Chief Justice John Roberts complained that such an approach wouldn’t “cover anything that’s not readily apparent,” and Justice Scalia asked about the scope of such a rule – what if an applicant could comply, but it would make her uncomfortable?

I anticipate this decision will be among the last ones issued in June.

In the meantime, the EEOC yesterday released a new statement about religious accommodations in the workplace.  The statement reiterates the EEOC’s interest in the area.

I talked extensively about these issues in some prior posts here and here. 

If you’re still interested in the subject, stay tuned for details about a community forum program my law firm, Shipman & Goodwin is presenting on April 8, 2015 at our Hartford Office. Among the speakers: Steven Sheinberg, General Counsel of the Anti-Defamation League; Cheryl Sharp, Deputy Director of the Commission on Human Rights and Opportunities; and, Gabe Jiran of Shipman & Goodwin as well. I will be moderating.

 

The Perils of Social Media & Legal Considerations – Join Us!

Posted in Social Media

Instagram_Icon_LargeOn Thursday, February 26th, I’ll be speaking on a panel discussion for the Connecticut Bar Association, Young Lawyers Section discussing the legal considerations of social media.

The topic covers how the evolving world of new social media is constantly churning up interesting legal issues and problems. The panel will present insights on some of the hot issues related to cutting edge social media in a variety of sectors, including employment and law enforcement.

We’ll also talk about cases like the attorney who thought it was a good idea to post pictures of his, ahem, body part online. 

Among the issues we hope to address:

  • The unique legal challenges of new social media applications such as Vine, Snapchat and Instagram
  • Use of social media content in investigations by human resources and police departments
  • Examples of how practicing attorneys have run into legal trouble through their social media activity

I’ve grateful to be joined by author David Lat, who was the founder of the Above the Law blog and Lauri Stevens, of LAwS Communications.  Britt-Marie K. Cole-Johnson of Robinson+Cole will moderate.

It begins at 6p at the Quinnipiac Club in New Haven and the cost is just $10 for members and includes dinner.  A book signing by David Lat starts at 4:30p.

I am happy to sign David’s book as well, but I think I’ll probably stick to tweeting about the event.

Many thanks to my firm, Shipman & Goodwin and Robinson+Cole for sponsoring the program and underwriting a lot of its cost.  It’s not too late to register here.

Cabbie’s Fear of Dogs Doesn’t Trump Requirement to Allow Service Dogs

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

Back in 2012, I posted about a lawsuit filed by a cab driver who claimed he suffers from cynophobia (a fear of dogs), who was fired after he refused to pick up a blind customer with a service dog.  The cabbie claimed that his termination violated the Americans with Disabilities Act because he has a disability — namely a fear of dogs.

Back then, I tried to frame what I thought the issues would be in the case.

Assuming that the plaintiff has a cognizable disability under the ADAAA, the case at first blush seems to put one disability against another.  Does a patron’s need for a service dog trump an employee’s fear of dogs?

But it’s more than merely a patron’s “need”.  Indeed, the law mandates that guests with service dogs be permitted in all modes of public transportation.  Refusal to do so is a misdemeanor.

The U.S. Department of Justice has a recently released guidance on service dogs too.  The guidance speaks directly to the issue of fear of dogs.

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

So perhaps the case will also look at another ADA issue: Is picking up a passenger with a service dog an “essential” part of the job?  Given the legal requirement noted above, it would seem so.  And if the cab driver couldn’t do this “essential” function because of his disability with or without a reasonable accommodation, he may not be able to seek protection under the ADA.

The case took several turns but ultimately, the driver’s claim was heard in state court alleging violations of Connecticut’s anti-discrimination laws.

Earlier this month (h/t Connecticut Law Tribune), the Superior Court dismissed the complaint.  And wouldn’t you know, but the court dismissed it on the exact grounds I highlighted three years ago — namely that picking up blind passengers with service dogs is an essential function of being a cab driver.

Since under state and federal law, taxicab drivers are required to provide transportation to disabled individuals and their service animals, this constitutes an essential function of their job….[F]ederal case law resolves a difficult conundrum: that employers should not be forced to violate state and federal laws and regulations, in this case, discrimination laws relevant to one protected class, in order to avoid discriminating against another protected class.

The case is an important one to keep in mind for employers who have to comply with various state and federal regulations.  It reminds employers that the ADA won’t trump those requirements in many instances.  This will come in handy, for example, when employers have to address the issue of employees who use medical marijuana and the obligations that they may have to keep a drug-free workplace.

Less May Be More When It Comes To Job References

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

locplane[1]My colleague Chris Engler returns today with a recap of a new case in Connecticut that is of particular interest to employers who provide (or don’t provide) employment references.

We have all heard the admonition that “less is more.”

In an opinion that will be released next week, the Connecticut Appellate Court reminds us just how true that admonition is.  In fact, the court’s decision gave one employer more than 400,000 reasons to heed the adage in the future.

The case, Nelson v. Tradewind Aviation, LLC, arose from a defamation lawsuit.  According to the court’s opinion, the plaintiff had worked as a pilot for Tradewind Aviation for a summer back in 2007.  At the end of the season, the company needed to downsize for the winter.  The plaintiff and others were laid off.  His termination paperwork indicated that he had been laid off due to lack of work.

A few months later, the plaintiff was offered a job by another aviation company.  In accordance with federal regulations, this company had the plaintiff request his employment records and other forms from Tradewind Aviation.  Unlike the termination paperwork provided to him when he was laid off, on the new forms Tradewind Aviation’s representatives wrote that the plaintiff was involuntarily terminated and had had performance issues.

Tradewind Aviation then sent a letter to the prospective employer elaborating on these performance issues.  The next day, it faxed over a copy of a drug test report (which concluded that plaintiff had not taken any drugs) along with a note that allegedly tied the supposed performance issues to drug use.

When the prospective employee rescinded its job offer to the plaintiff, he filed suit against Tradewind Aviation.  He claimed that his former employer had engaged in defamation with malice.  A few years later, a jury wholeheartedly agreed, to the tune of over $407,000 in damages.

Not surprisingly, the employer quickly appealed the verdict.

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Government Gets Cold Shoulder to “Hot Goods” Provision Usage

Posted in Wage & Hour

Walter Olson, who has been blogging at Overlawyered longer than just about anyone, has a very notable story about the Obama administration’s efforts to expand wage & hour law and intensify its enforcement.

In so doing, the U.S. Department of Labor has invoked a little known provision under the Fair Labor Standards Act called a “hot goods” order, “which freezes the physical output of an employer that it suspects of having violated wage & hour law.”

Walter tracks an Oregon case in which the Labor Department labeled an estimated $5 million worth of fresh blueberries as forbidden to enter the commerce stream.  The growers were offered a deal: “fork over a demanded cash settlement [and] this is the kicker — agree not to appeal.”  Given that blueberries are a perishable crop, the growers took the deal and agreed to pay $240,000.

But a federal court threw out that settlement ruling that the government had overstepped its power.   And last month, the government dropped the case against the growers.

The Department of Labor has released its own fact sheet though on the subject, as of October 2014.   In doing so, it has put employers on notice that this is still in play.

While this provision isn’t likely to be used often against employers, it’s worth reading Walter’s post about it.

CBIA Says New Bill Could Be “Double Trouble” for Businesses

Posted in Class Actions, Discrimination & Harassment, Legislative Developments, Wage & Hour

Well, so much for a slow legislative session. New proposals keep popping up with changes big and small for employers.

The latest was reported on by the CBIA in a post entitled “Double Trouble for Businesses?” and talks about Senate Bill 106, which you can download here.

The bill purports to protect immigrants, but as noted by the CBIA, a good portion of it is preempted by federal law.  It would create a new class of discrimination and retaliation complaints entitled “unfair immigration-related practice” that would allow employees to file claims for a variety of reasons, including if an employer “contacted” immigration authorities.

But perhaps most concerning relating to these new immigration-related claims is a presumption that an employer has retaliated against an employee if any action occurs within 90 days of the employee “exercising” his or her rights.  That would create a whole new class of retaliation claims far beyond what even the courts have been willing to do.

Despite its label as a immigration-related bill, the proposal would also amend the state’s wage & hour rules to remove “a judge’s discretion to award less than double damages in a civil action to collect unpaid regular and overtime wages.”

The CBIA notes:

What is gained by mandating double damages when a judge already has the power to impose the penalty on truly bad-acting employers?

Could the answer be that it is to make the penalty so harsh that employers would be forced to settle wage disputes every time, even when the employer believes they did nothing wrong?

If the business doesn’t cut its losses and settle, even when in the right, the only other option is to undergo the expense of defending themselves through costly litigation. In other words, even when the employer is right, they lose.

Hard to argue with the CBIA on this point.  Wage & hour complaints have been one of the biggest areas of growth in employment law in the last decade and are outstripping all other class actions.

Again, it seems like a solution in search of a problem. Stay tuned.

 

 

 

Paid Family and Medical Leave is What’s Hot in Connecticut

Posted in Legislative Developments

Here we go.

Last December, I talked about how a legislative proposal to bring paid family and medical leave to Connecticut was likely.

Turns out, not only was it likely, but that there would be a big public relations push on it as well.

The bill is still in its formative stages at the legislature, but the essence of the proposal is an employee-funded system with employers withholding a percentage of the employee’s pay.  The Hartford Courant reported on this push this week.

In yesterday’s CT News Junkie, Carolyn Treiss, the Executive Director of the Permanent Commission on the Status of Women, posted a notable piece on why the time is right for paid family & medical leave.

The Permanent Commission on the Status of Women (PCSW) and the Connecticut Women’s Education and Legal Fund (CWEALF), two organizations that worked on the original FMLA legislation, are teaming up in leading the charge on this expanded version of family and medical leave, because women are still the primary caregivers in times of need. To be sure, paid leave would benefit everyone, regardless of gender. But the reality is that too many women of childbearing age see their careers derailed just as they are taking off. Women in their mid-20s to early 40s are the demographic employers seek most often, and yet the biological clock has its own imperatives. And what of women at the prime of their careers who must increasingly act on behalf of aging parents, or who suddenly find themselves dealing with an illness of their own (or that of a spouse)? It’s hard to “lean in” when there’s no employer-sponsored provision to lean against.

The CBIA has previously issued a report noting that this type of program would be similar to an unemployment compensation scheme — and very expensive to implement.

I’ll be talking about this and more at a presentation tonight at the Connecticut Bar Association’s Labor & Employment Committee meeting. My talk — really more of a discussion — will be on three “hot” items in employment law for 2015.  Hope to see you there.

For the rest of you, keep a close eye on this important legislative development this year.