Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

NLRB Ruling Will Allow Graduate Student Teaching Assistants To Unionize

Posted in Highlight, Labor Law & NLRB

Lucan_J_WebYesterday, the NLRB released an ground-breaking decision allowing  students to organize. My colleague, Jarad Lucan, recaps the importance of this decision not only for schools like Yale University in Connecticut, but beyond.

In its 2004 Brown University decision, the National Labor Relations Board held that graduate student teaching assistants were not employees because they were “primarily students” and their relationship with the University was educational rather than economic in nature.

On August 23, 2016, the NLRB reversed course in its Columbia University decision and held that  the unequivocal policy of the National Labor Relations Act is to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.”

Given this policy, coupled with the very broad statutory definitions of both “employee” and “employer,” the Board determined that it is appropriate to extend statutory coverage to students working for universities covered by the Act unless there are strong reasons not to do so.

The Board was not persuaded by the Brown University Board’s self-described “fundamental belief that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and would be inconsistent with the purposes and policies of the Act.”ColumbiaSeal

According to the Board in the Columbia University case, “[t]his ‘fundamental belief’ is unsupported by legal authority, by empirical evidence, or by the Board’s actual experience.  Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act.”

Although the Board did state that there may be “strong reasons” not to extend the protection of the Act to students working for universities, it did not specify what those reasons might be.

The Board did, however, reject Columbia’s arguments against recognizing their student workers as employees under the Act as detrimental to the pursuit of the school’s educational goals.  The Board did not find compelling Columbia’s claims that collective bargaining leads to strikes, grievances over classroom assignments and eligibility criteria for assistantships.

According to the Board,  “labor disputes are a fact of economic life—and the Act is intended to address them.”

Importantly, in the Columbia University  decision, the Board determined that a bargaining unit consisting of graduate and undergraduate teaching assistants is an appropriate unit for unionization.  In other words, the Board determined that undergraduate teaching assistants fell within the broad definition of “employee” under the Act and in this case had a common-law employment relationship with the University.

This determination greatly expands the potential “employees” at any private university that may now have the protection of the Act whether they unionize or not.

Perhaps referring back to its recent decision to decline jurisdiction over the grant-in-aid scholarship football players at Northwestern University, the  Board did state, “[w]e do not hold that the Board is required to find workers to be statutory employees whenever they are common-law employees, but only that the Board may  and should find here that student assistants are statutory employees.”

Your Employee, Worried About Zika, Has to Travel to Miami. Now What?

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

moquitobYour industry’s major conference is set for Miami Beach – the land of sun, beaches, and, now it seems, mosquitoes carrying the Zika virus.

Your key sales employee — the one who was setting up your booth for the conference — has come to you expressing concern about the Zika virus.  Perhaps she’s pregnant. Or perhaps he’s married with a pregnant wife expecting at home.

Now what?

The answers are still developing.  The Department of Labor’s OSHA division advises that:

Employers should consider allowing flexibility in required travel for workers who are concerned about Zika virus exposure. Flexible travel and leave policies may help control the spread of Zika virus, including to workers who are concerned about reproductive effects potentially associated with Zika virus infection.

The CDC has also issued advisories for the Miami-Dade area including that:

  • Pregnant women should not travel to these areas.
  • Pregnant women and their partners living in or traveling to these areas should follow steps to prevent mosquito bites.
  • Women and men who live in or traveled to these areas and who have a pregnant sex partner should use condoms or other barriers to prevent infection every time they have sex or not have sex during the pregnancy.

What can employers do?

First off, employers should not make any blanket decisions for pregnant employees about whether they should travel.  Rather, employers should educate all employees (including any pregnant ones) about the risks associated with the Zika virus.  If an employee refuses to travel, employers should evaluate the situation on a case-by-case basis.

But beyond that and considering that the transmission of the Zika Virus in Florida is still mainly with mosquitoes, employers can advise employees to use insect repellent and to reduce unnecessary outdoor work.

This is still a fluid situation but already there are already many other law blog posts on the subject — nearly all of which are repeating the same information. Any one of them can also be reviewed as well.

Employers should not overreact, but rather recall the lessons learned from prior disease outbreaks like H1N1 back in 2009.  Some flexibility in the short term is going to be required.

Firing Of Pot-Smoking State Employee Goes Up in Smoke by CT Supreme Court

Posted in Highlight, Human Resources (HR) Compliance, Litigation

pottYou might think that smoking pot on the job as a state employee would be justifiable grounds to get you fired.

A no-brainer, right?

(Let’s save a discussion for eating brownies and swearing at your cat for another blog post.)

After all, even the Connecticut Supreme Court is stating that the “statutory, regulatory and decisional law of Connecticut evinces an explicit and well-defined public policy against the recreational use of marijuana, particularly in the workplace.”

So why is the result of today’s Connecticut Supreme Court decision (in State of Connecticut v. Connecticut Employees Union Independent) that a pot-smoking employee gets his job back?

Well, the answer is based on a few facts that I think tipped the decision of the court and that are important to understand about the case.  (And for more background, the CT Mirror released a post today too.)

First off, the court was not reviewing the underlying decision to fire the employee. Rather, it was reviewing an arbitration decision that had reinstated the employee but with a number of sanctions and conditions, including imposing an unpaid suspension, a last-chance status, and random drug testing.  As I’ve noted before, Connecticut courts will review public policy and a number of factors including whether the employee is “incorrigible”.

Put more simply, courts do not like reversing arbitration decisions, even if those decisions are flawed. (See Brady, Tom.)

And that leads to the next factor: here there was a 15 year, relatively low-level employee with a clean record.  His union argued that he was “dealing with serious personal struggles” and believed that “smoking marijuana helped to alleviate stress and anxiety”.   The court thought that the employee’s past history was worth consideration.  And, it should be noted, the court’s decision was unanimous.

Third, I think the court was reviewing whether an employee who smoked pot COULD be terminated versus MUST be terminated. And on that issue —  namely whether public policy dictated an employee be fired for smoking pot — the court said public policy wasn’t definitive.  Rather, the court found that an array of responses may be appropriate.

So, what does this case mean? First off, it does NOT mean that private employers can’t fire an at-will employee for smoking pot. In fact, the above-language from the court suggests that such terminations are going to be upheld by the courts in most instances.

And, for public employers, it also does not mean that all terminations of drug-using employees are going to be invalid either.  An arbitrator could find the employee’s termination justified in other instances based on the circumstances or the type of position that the employee held (such as a teacher or bus driver, one could imagine).

Rather, the decision means that arbitrators will have some breathing room in reviewing the facts of a situation and fashioning a solution that may be less than a termination in some instances.

For lawyers, the concurrence by Justice Espinosa is worth reviewing; she would have the court revisit its decision that set forth the standards for the court to review in such instances.

Facebook’s Campus: A Workplace Reality Like Virtually No Other

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

facebook81Could this place be real?  Or is it just a Disney World for work?  I mean, people don’t actually get work here, do they?

Those were my initial thoughts walking through the campus of Facebook on a recent trip.  It wasn’t the first time I visited — but its a changed world from even six years ago.  

I was kind enough to be a social guest of a long-time family friend and he invited me to have lunch with him and gave me a very unofficial tour of the campus.  It’s located in Menlo Park, California and has been the subject of many news articles.  

First off, I didn’t see any secrets and even if I did, I’m not about to talk about them on a blog. All my experiences were those that every other guest to the campus can see publicly.

But there were several things that were striking about the visit. First off, the campus is gorgeous. It’s a series of interconnected buildings with a pedestrian plaza in the middle. There’s a ping pong table, and a mini-library, and just about every amenity you could think of.  And when you drive up – there’s complimentary valet parking. (And trust me, I discovered there’s a strong no tipping policy!)

Then you walk into one of the many restaurants that populate the campus. Where are the cash registers? There are none, because breakfast lunch and dinner is on the company tab.  And GOOD food too — we had Texas BBQ for lunch.

And a walk through the offices shows open space surrounded by tons of small conference rooms. The ones I walked by were named after Muppets.

And don’t even get me started on the little snack bars on each floor — filled with every snack you could think of. They rotate them often.   Again, free of charge.

Why would you ever leave?

And that perhaps is the point. My own impression of the office workspace is of a place that is more than just work; it’s a place to socialize, to hang-out, and relax.  Don’t get me wrong — they work hard there.  The expectations it seems to me are just like every other workplace — get the job done.  But Facebook is also aiming for something more — collaboration on a massive scale.

Share the workspace and share ideas.

It’s remarkable.

And of course, entirely unrealistic of many businesses.  Many businesses simply can’t afford to feed their workers 24/7 — let alone create this kind of open space.  Perhaps it is not in the company’s culture. Or perhaps the weather is not particularly suited for the outdoor life.

And yet still, there are now thousands of workers going through this place (and, it should be noted, similar workplaces at Amazon, Apple, Google, etc.).  What happens when they leave? What workplaces will they create?

The workplace that Facebook is creating is setting new norms for what workplaces should look like. It’s still imperfect ; a recent Wall Street Journal article notes that it is still struggling with diversity despite incentives that it has established. But it is throwing a bunch of ideas at the wall and seeing what sticks.  How many of those ideas get transferred remains to be seen.

I do know one thing — if this really IS the future of work, I’d sign up for the adventure.

New Model Rules Make It Unethical to Discriminate

Posted in Discrimination & Harassment, Highlight, Laws and Regulations

abahod1As I have for over a decade now, I attended the American Bar Association’s Annual Meeting last week serving on the ABA’s House of Delegates – the organization’s main governing body.  My exact position is actually State Delegate — a position that nominally makes the lead delegate of Connecticut’s delegation, though in practice it’s much more democratic than that.

Among the items up for deliberation was a change to the model rules of professional conduct — the set of guidelines advanced by the ABA that are used as guides to set ethics rules in various states.

We considered a change to Model Rule 8.4 that would make it an ethical violation for a lawyer to discriminate or harass on the basis of various protected categories.  You can watch the debate here. 

The actual proposed rule went through several iterations as it was debated before the meeting.  The rule that was voted on changed the language to better match other rules by making it a violation to engage in conduct that the lawyer “knows or reasonably should know” is harassment or discrimination.

One of the issues, for example, that was discussed was whether the addition of a protected category of “socioeconomic status”.  In fact, during one of our caucuses, I asked one of the sponsors about the inclusion of this language. While he said that there was some mild disagreement about its inclusion, he noted that various states had already included it and pointed to an Indiana ethics matter from 2009 where it was used the basis for a grievance. He said to remove it now could send the wrong message.

Ultimately, the matter was approved nearly unanimously on a voice vote as any opposition to it melted away.

The model rule has a number of comments attached to it, the most interesting of which is that “The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of [the new model rule].”  On its face, that seems to suggest that caselaw in employment discrimination cases can help provide guidance — though there still remain open questions about how that might apply in a non-employment context.

But from my perspective, the rule is a step in the right direction.  Lawyers behaving badly — such as to opposing counsel — have no place in our profession and this new rule can hopefully make it clear that such behavior will not be tolerated.

Unpaid Volunteers Are Not “Employees”, Says Court

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

ambulanceThe CHRO is no stranger to taking aggressive positions in the court system.

So, it can really be no surprise that the agency wanted to expand who is covered by the state’s anti-discrimination laws.

But the Connecticut Supreme Court, as it has done before, was having none of it.  The end result of the case is one that frankly is of interest more to employment lawyers than to the clients we serve.

The newest case, CHRO v. Echo Hose Ambulance, will be officially released this week. But we have an advance release opinion which makes it clear that unpaid volunteers — even those that serve in the volunteer ambulance corp — aren’t entitled to coverage under the state’s anti-discrimination laws.

Of course, the issue framed is slightly different; the court said it was called upon to determine “what test” should be applied to determine whether an unpaid volunteer is an ‘‘employee’’. “More specifically, we must decide whether a volunteer must satisfy the predominant ‘‘remuneration test’’ used to resolve similar federal causes of action or Connecticut’s common-law ‘‘right to control’’ test.”

The court concludes that the remuneration test is appropriate. The remuneration test instructs courts to ‘‘conduct a [two step] inquiry by requiring that a volunteer first show remuneration as a threshold matter before proceeding to the second step—analyzing the putative employment relationship under the [common-law] agency test. Remuneration may consist of either direct compensation, such as a salary or wages, or indirect benefits that are not merely incidental to the activity performed.”

The case isn’t that much of a surprise after last year’s Appellate Court decision which held the same thing.  As my colleague, Gary Starr, wrote back then that what matters is how the person is remunerated.  As he noted then, “for employers and organizations, the decision provides a notable reminder to review the status of your volunteers to ensure that you haven’t transformed any of them into “employees”.”

Sex Harassment in the Workplace: An Uptick in Cases, Awareness or Both?

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

Are Things Getting Better or Worse?

The last few weeks it seems that I’ve been reading about sexual harassment in the workplace issues a lot more. Here are a few examples:

So what’s going on? Is sex harassment increasing? Or is this just another round of increased focused placed on a problem that still persists?

Well, if you look at the statistics, you can see part of the story — and part of the problem trying to glean trends from the numbers too.

Last year, I reported on some statistics from the state level about harassment claims.  Indeed, sex harassment cases were down significantly, but general “I’ve been harassed” claims were up nearly 200% over the last decade or so.

The EEOC statistics show slightly different numbers. Sex harassment claims went up by a modest 4 percent in fiscal year 2015, though more generalized “harassment” under Title VII claims also increased by 6 percent.

So, which is it? Up or down? Statistics on case filing don’t tell the full story.  Surveys (yes, including the one in Cosmopolitan magazine) show that women still think some workplaces have issues.

But I would argue that chasing statistics is missing the point. Rather, it’s the perception of whether this is a hot issue that will drive the discussion.  And to that, we’re definitely seeing renewed interest. For example, a few weeks ago, the EEOC issued some findings and statements from a select task force calling on stakeholders “to double down and ‘reboot’ workplace harassment prevention efforts“.  This increased focus on the area will once again bring the issues of sexual harassment to the forefront.

What’s an employer to do? Well, start with the obvious.  Review your existing policies. Are they strong enough? Do they need to be updated to reflect current practices?  And then review your existing training.  Is it updated? Or is it still stuck in the 1990s?   And then look at how your workplace is actually functioning.

Beyond that the EEOC has a whole list of suggestions for employers to follow. You can view the entire compilation, but here are a few examples:

  • Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted. Employers should communicate and model a consistent commitment to that goal.
  • Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
  • Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.
  • Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership’s commitment to creating a workplace free of harassment.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction. In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.
  • If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.

HR personnel have a lot on their plate now; be sure harassment prevention remains there as well.

Another Day, Another Reversal by the NLRB

Posted in Highlight, Labor Law & NLRB

By now, it’s really not a big surprise when the NLRB reverse course on a prior decision. This week, the NLRB did it again.  My colleague, Jarad Lucan, provides this quick update on temporary/contract employees being allowed to join unions.  Read on.

Lucan_J_WebIn 2004 the National Labor Relations Board in its Oakwood Care Center case said that temporary and permanent workers must bargain separately unless the employer gives consent.

Yesterday, however, the NLRB overturned that precedent stating, “[b]y requiring employer consent, Oakwood has . . . allowed employers to shape their ideal bargaining unit, which is precisely the opposite of what Congress intended.”

Now, after a ruling in Miller & Anderson, temporary workers provided by staffing agencies do not need an employer’s permission to join unions that include its full-time employees as long as they share a “community of interest” with full-time workers.

In dissent, board member Philip Miscimarra said that along with the NLRB’s 2015 joint employer decision in Browning-Ferris Industries Inc, the NLRB’s latest ruling would create issues for  companies that use contract labor and force many staffing firms to bargain with unions that represent the full-time workers of other companies.

As we have discussed previously, in Browning-Ferris, the NLRB said companies may be deemed joint employers of contract workers if they have the potential to control working conditions.  Previously, the board required proof of actual, direct control.

With its latest decision, it could now be easier for workers found to be joint employees under the Browning-Ferris standard to unionize.   Of course, the actual impact of both decisions still remains to be seen.

My former colleagues who write the Management Memo blog also shared this tip for employers as a result of the decision:

At a minimum, a detailed risk assessment of an employer’s workforce and its reliance upon its own employees and temporaries, leased and contract labor employed and controlled, in whole or in part, by so-called supplier employers is in order. “User” employers should determine the goals and risks associated with a relationship and determine whether it is possible and/or desirable to attempt avoid a joint employer relationship or embrace it but attempt to control liability. Both “supplier” and “user” employers should look for contractual provisions regarding defining the relationship, including who controls and does not control certain aspects, indemnification provisions, provisions related to responses and responsibilities related to union organizing and collective bargaining and similar concerns. Experienced labor counsel should be consulted to assist in these issues.

With Your Social Media Policy, It’s “Live” and “Go” Time

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

pokemonRecently, I had the opportunity to revisit a social media policy I had reviewed several years ago.  (Check back to this post from 2008 to see how far we’ve really come.) In doing so, I was reminded — once again — how quickly the tech world is changing and how policies need to continually adapt.  It seemed so quaint — with references to MySpace, Foursquare, and even LiveJournal.  No mention of Snapchat, Instagram, or Vine.

And then I thought of the technology news from the last week demonstrating the dramatic rise and use of Facebook Live and Pokemon Go.

Facebook Live is a capability to broadcast — live — from anywhere (at least with a cell phone connection) at any time.  It was used in dramatic effect in the shootings in both Minnesota and Dallas.

Pokemon Go is something different.  It is a brand-new mobile game app with social media capabilities (you can join a “team”) where users search the real world for virtual monsters that appear on your cell phone in an augmented reality way.  In just a week, it has nearly as many users as Twitter.

Both are going to cause employers big headaches in the months ahead — for differing reasons of course.

There’s no doubt that the rise of livesteaming apps is something new and revolutionary.  And your social media policy should definitely be updated to reflect that. Imagine your workforce broadcasting live from your office — all under the guise of engaging in “protected concerted activity”.  How should the employer react when such events are occurring in real-time?

A policy can help to provide some answers but it’s the exercise of thinking about what your response will be that can be just as helpful.

And then there’s apps like “Pokemon Go” — which are nearly unparalleled in their adoption.  We’ve already had our first firing related to Pokemon Go and that’s no doubt the beginning.  Forbes reports that employers are “nonplussed” with it.

But the response to this app is a bit easier.  If it interferes with an employee’s workplace productivity or is a drain on your resources, it’s appropriate to limit it.

If your policy hasn’t been updated in a few years, use the rise of new apps as an excuse to bring it up to speed.  You can’t keep up with everything but that doesn’t mean you should ignore them either.

And now, if you’ll excuse me, I need to go look for Drowzee.

(Photo credit: Imgur.)

New Pay Secrecy Law Finds a Place in Court With Lawsuit

Posted in Highlight, Laws and Regulations, Litigation, Wage & Hour

Well, it was bound to happen.  After nine years of writing the blog on a near daily schedule, some work and personal commitments interfered with my blog writing schedule. But never fear, more new posts from me are now right around the corner.

In the meantime, one of our summer associates, James Joyce, joins the blog today to give an update on a a law passed last year regarding pay secrecy. My thanks to James for his work on this.  James is finishing up his law degree at University of Connecticut.  

joyceLoyal readers may recall that about a year ago, Connecticut’s “Act Concerning Pay Equity and Fairness” Public Act 15-196, became law.   Dan has already blogged about the nuts and bolts of the “Pay Secrecy Bill” and its potential impact on employers.

And, as Dan highlighted, employers need to be mindful of this legislation because it created a private cause of action in court for any violation.  That is where today’s post comes into the picture.

One of the first lawsuits alleging violations of the “Pay Secrecy Bill” was recently filed in Superior Court in Stamford (the case has since been removed to Federal District Court).   The lawsuit raises other issues as well, but for today’s post, we’ll focus on the “Pay Secrecy” claim.

So what’s in this lawsuit? Well, the plaintiff alleges that her former employer maintained a “Pay Secrecy Policy” forbidding employees from discussing their salaries despite the enactment of the “Pay Secrecy Bill” in July 2015.

Specifically, the allegations include a run-in with the human resources (HR) department due to comments the Plaintiff made about salaries and her former employer’s view that this was inappropriate and none of the plaintiff’s business.  The plaintiff received an “Employee Warning Notice” from HR and HR went on to tell the plaintiff she could not discuss her wages or her co-workers’ wages.

Additionally, in February 2016, it is alleged that a former co-worker of the plaintiff was reprimanded for a conversation she had with another employee about the company’s paid time off/holiday policy.  The former co-worker was allegedly told directly by the CEO and by HR that this conversation or any similar conversations violated the company’s policy prohibiting employees from discussing compensation with other employees

Obviously, whether or not these facts are true — or rise to a level of violating the law — will play out in court.  But these types of incidents are just the sort of things that employers need to be aware of to avoid “Pay Secrecy” violations.  The law prohibits employers from implementing policies that prevent employees from, or disciplining employees for, engaging in conversations about salary-related information.

Because this case was recently filed there is no way to predict how the court will rule.  Nevertheless, that does not mean this case should be ignored until it is decided.  Employers should remind their human resources staff and managers of this new Connecticut law.

The downside will be cases like this where the employer may have to spend time and money investigating and defending themselves against the alleged “Pay Secrecy” violations.  Employers also risk being found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper related to the alleged violations.