Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

My thanks to my colleague, Mick Lavelle, who has drafted the following post on a noteworthy issue decided today by the Connecticut Appellate Court.  For employers with long-standing discrimination claims, it's worth understanding what the statute of limitations are on such claims.

Most employers know that claims of employment discrimination can be brought under two sets of laws: the federal anti-discrimination statute known as Title VII, and the State of Connecticut's Fair Employment Practices Act.

Both require an initial discrimination complaint to be filed with the Equal Employment Opportunity Commission or the Commission on Human Rights and Opportunities, after which employees have the option of removing the case from the commissions and starting a lawsuit.

But the federal and state laws have different statutes of limitations governing the time when employees must commence a lawsuit.

Under Title VII, employees have 90 days from the date that the EEOC issues a right-to-sue letter, no matter when the complaint was initially filed.

State law also requires that a lawsuit be filed within 90 days after the CHRO issues its equivalent of a right-to-sue letter, known as a release of jurisdiction. But this is also where the state law marches to a different beat. Connecticut's law, Conn. Gen. Stat 46a-102, has a maximum limitations period of two years from the initial filing of the complaint with the CHRO in which a lawsuit must be initiated.

Earlier today, the Connecticut Appellate Court released Wright v. Teamsters Local 559, which re-emphasized that limitation.  (The case will be officially released next week.) 

In Wright, the plaintiff filed his initial complaint with the CHRO in October, 2004, alleging race discrimination when he was replaced as a union steward, but did not get his release of jurisdiction and file his lawsuit until November, 2006, which was outside the two-year period.

To try to preserve his claim, the plaintiff pointed to an amended complaint he had filed earlier in 2006, alleging age discrimination in addition to the race discrimination claim he had made in his first filing. But the Appellate Court ruled that the statute of limitations applied because all his claims of discrimination derived from the single incident of being replaced as a steward, and they all related back to his initial filing in 2004.

Because the costs of defense and potential damages are far greater in lawsuits than in complaints left with the CHRO for adjudication, employers can at least count down from the date of initial filing to the two-year anniversary, after which they will very likely be immune from suit.

Employers now have the additional comfort of knowing that amendments to the initial complaint will not reset the time period, at least where the amendment derives from the same incident as the initial complaint.

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Another day, another story about an employee in hot water over Facebook posts. 

It's becoming so commonplace that I must admit a bit of Facebook Fatigue on the subject.  I mean, how many stories do we need about an employee who says something that they think is private on Facebook only to later discover that what goes on Facebook, just doesn't stay on Facebook anymore?

So, I'm ready to call it: Social media has officially taken over the workplace. You may not have seen the signs, but it's here and it's here to stay. 

If your workplace doesn't have a social media policy, you need one.  Not 2 years from now. Now. Employees (particularly those with smart phones) can access Facebook anytime, anywhere and without guidelines, misuse and abuse is bound to occur. (Do you really think those firewalls you've set up are stopping much of anything anymore?)

But beyond that, I'm also calling for a bit of restraint now on the reporting of such incidents. It just doesn't seem as newsworthy anymore. Employees get into trouble for a whole host of reasons and we don't highlight those situations each and every time they occur. It strikes me that the "Facebook posting syndrome" is falling into the category of things we ought to expect in a workplace.

In other words, it's the new norm. The novelty of an employer having to deal with an employee's Facebook post that has consequences in work is wearing off.

And for employers, it should as well.  These types of episodes (to generalize) show more of a lack of common sense and discretion than anything else.  That's not to say that you shouldn't take them seriously -- you should. But we also need some perspective on this; it's often not the worst offense that occurs in the workplace and often times that behavior can be easily modified through some counseling and warnings.

Think back to 10-15 years ago when e-mail was introduced; in some instances, employees were misusing it through the sending of inappropriate jokes or offensive pictures and stories.  Employers went through a period of re-educating the workforce about how e-mail should and should not be used in the workplace setting.

I think we're going through the same learning process on social media.  So use this time period as a way to educate your employee population of your expectations as an employee in this social media age.  And anticipate the Facebook issue in your workplace. With 500 million users on it, it's not likely to go away anytime soon.

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I had anticipated that my post last week would be my final word on the so-called "National Sexual Harassment Registry". But on Monday, the ABA Journal linked to my articles and conducted an interview with the founder of the registry.  In the interests of fairness, you can read the interview for yourself.

I don't have a lot to add from my prior posts. The creator of the registry keeps modifying it, adding disclaimers and trying to suggest that it is not nearly as nefarious as he originally intended.

But if his original Rate My Boss site is any indication, it remains a gossip site that hardly contains the type of fair, accurate information you would want about a workplace.  

Want an example? Go to "Boss Review" and search for all the "CT" bosses.  It comes up a list of 99 people, including "kmokjgfa kmokjgfa" which, going out on a limb, is not even a person (and has been posted since 2009).  Way to monitor the reviews to ensure its accuracy.

And of the list, at least 95 percent of the people listed have a 100% dissatisfaction rate -- mainly from one person.  Hardly a good sampling of a boss or a place to work.

It is eBossWatch founder's own words, though, which show the lack of utility of the information on his site.  When asked if he had heard from any people who have avoided "bad bosses" because of the site, he could not even mention one.  

The founder also claims that he is a bit "confused" about what isn't "fair" about the Registry -- a criticism I've leveled before. So here goes:

• The National Sex Offender Registry, which the eBossWatch's registry is based on, relies on convictions in a court of law. The registry does not; it relies on allegations and has no checks and balances to followup on individuals listed. 
• The site had (and likely continues to have) information on a supervisor who allegedly committed sexual harassment, even after a jury exonerated that person (and only took down that information after I raised the issue). 
• The site posts information without providing the "offender" the chance to respond or even be notified about his or her inclusion, nor does the registry track cases to determine the status of them.
• The site isn't open to scrutiny -- in the sense that it doesn't disclose disclosed the size of the database or how it has been compiled.  It also does not allow for searches by state (only by name or company name), unlike even the "Boss Review".
• In short, the registry remains veiled in secrecy and cloaked as if it were "authentic".  

So, there you have it.  I remain unconvinced that the Registry is a site worth looking at for job-seekers or employers. 

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My sincere thanks to the folks at the Hartford Business Journal for including me on this year's 40 under Forty list for the central Connecticut area. It is truly an honor. (And be sure to check out the cover shot, which was taken by J. Fiereck Photography.)

Hopefully, you can also look at the list of all the winners. Many of them are involved in small business or community organizations that represent the best of the Hartford area.  I met several at the photo shoot a few weeks ago and remain impressed by the amount of good work being done by so many in the area.  I look forward to seeing them (and perhaps you) at the award dinner on September 30th. It promises to be a great event.

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Newspapers this week seem enraptured with the idea that an employment discrimination lawsuit is news.

It shouldn't be.

Why?

Because all that a discrimination lawsuit is -- by its fundamental nature -- is a set of allegations against an employer. Nothing more, nothing less.

That doesn't mean, of course, that each lawsuit that is brought is frivolous.  But it also doesn't mean it has merit.

You might think that filing a lawsuit claiming discrimination means the complaint must have passed some sort of test. But you would be mistaken.

In Connecticut, to file a lawsuit in state or federal court claiming employment discrimination, a person need only file a complaint with the Connecticut Commission on Human Rights and Opportunities or the federal equivalent, the Equal Employment Opportunity Commission.  

Once that is done, and after a period of time elapses, the aggrieved employee can ask the agency to end its investigation and to issue a "release of jurisdiction" -- in other words, permission from the agency to file a lawsuit in state or federal court, which is virtually automatically granted.  The agency -- while in some instances retaining the case for investigation because the complaint is not "frivolous on its face" -- never passes final judgment on many of its cases.  

There is, of course, more to employment law and the procedures involved, but at its core, a state or federal lawsuit is still nothing more than a set of allegations that have yet to be proven before a judge or jury.

And a recent study of job discrimination claims show that only six percent of those bringing discrimination claims even get to a trial and only have a one-in-three chance of winning.  It's not unusual for a defendant employer to offer an early "token" settlement, said an author of the study, but "most cases don't get anywhere near trial".

So, the next time you hear about a lawsuit being filed, check back in a few months or years to find out what happened to the lawsuit; that's when there's really news to report.

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Connecticut employers have long since had to deal with Conn. Gen. Stat. 31-40w which has stated that every employee who wishes to express breast milk or breastfeed at work can do so during a meal or rest period. Employers are obligated to find a suitable room or other location (other than a toilet stall) where the employee can express her milk in private.

(For a fuller description of Connecticut law, check out one of my earliest posts here.)

But back in March, the Health Care bill contained a little-noticed provision that modified the Fair Labor Standards Act (FLSA) and required that employers provide reasonable break times for mothers to express their milk for one year after the child's birth. I've previously summarized those new requirements here. 

Last week, the United States Department of Labor chimed in with a new "Fact Sheet", further explaining these new rights.  These rights were effective March 23, 2010.  Besides discussing the requirements, the Fact Sheet is notable for its descriptions on the coverage and scope of the law, and contains some important limitations on the law (which I've emphasized):

Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7, they may be obligated to provide such breaks under State laws.

Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See WHD Fact Sheet #22, Hours Worked under the FLSA .

If you do have a situation in your workplace with a new mother, make sure you understand the scope and limits of this new law and how it interacts with Connecticut law.  Its not as easy as it appears. 

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Continuing the summer series on the basics of various employment laws in Connecticut, one of the issues that employers have questions on is the withholding of wages.

Connecticut's rule -- under Conn. Gen. Stat. 31-71e -- states that employers may not withhold wages unless one of three exceptions apply:

1. the employer is required or empowered to do so by state or federal law,
2. the employer has written authorization from the employee for deductions on a form approved by the commissioner, or
3. the deductions are authorized by the employee, in writing, for medical, surgical or hospital care or service, without financial benefit to the employer and recorded in the employer's wage record book.

Therefore a related question is: Can an employer advance vacation pay to an employee and then have the employee be required to pay it back?

Yes, according to the Connecticut Department of Labor. Indeed, it provides an online sample form for an employer to use on its website.  But note that to use this in your company, you must complete it and submit it to the Department of Labor for approval.  Once you receive notice back, this authorization then qualifies under the second exception listed above.

There may be other types of authorizations that you may wish to consider, such as a uniform rental/laundry service. If so, contact the Department of Labor to determine if the agency will bless those deductions.

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Yesterday, I had the opportunity to speak to a large group at the Connecticut Community Providers Association in Rocky Hill about social media and compliance issues.

The Connecticut Community Providers Association represents organizations that provide services and supports for children and adults with disabilities and significant challenges including people with substance use disorders, mental illness, developmental and physical disabilities.

It was a very energetic crowd and from the questions that were asked, it is clear that social media has made it to the mainstream.  No longer can companies believe that the firewalls that they have on the workplace computers will keep them "protected" from social media.

Why? In part, due to the influx of smart phones (iPhones, Androids, Blackberrys etc.).  Now, individuals can access Facebook, LinkedIn, Twitter, Foursquare from their phones completely circumventing the work.

The problem is compounded in part because some of these smaller organizations allow (and may encourage) people to buy their own smart phones to use for work-related calls.  This saves the company money, but it also complicates matters because employers feel that they cannot "regulate" someone's personal phone.

There are different ways to tackle this and companies seeking to update their "Acceptable Use" or "Electronic Communications" policies should seek some additional legal guidance. 

One way to address the issue may be that, in exchange for the privilege of allowing an employee to access work computers through their personal smart phone, the employee has to give the company access to the phone as well and be subject to workplace rules.  This can be done through a written consent or notice.

Another issues that may arise is in the course of a lawsuit. Is the content of that personal smart phone subject to discovery rules? And if so, how is the company supposed to get the data?

Using personal smart phones for work may be a cheaper, more efficient way to run the organization, but without thinking through all of the implications and developing a strategy for usage, it may create more headaches for a company in the long-term. 

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UPDATE: My final words on the subject are in this recent post. 

Last week, I let you know about a so-called "National Sexual Harassment Registry" that was both inaccurate and misnamed.  That post received a lot of publicity, including a link this morning from the influential Overlawyered blog. 

Earlier this morning, the folks over at eBossWatch, who have compiled the "Registry", took down some of the links I had highlighted in my earlier post, without explanation.  Moreover, they revised their descriptions and posted new information about the sexual harassment registry.

If one were being polite, you could say that they listened to the criticisms. If you're a cynic, you could say that they got caught and are now trying to cover up their tracks, particularly since there is no accompanying explanation as to the reasons for the change.

With the update, no longer is one of the purposes of the registry -- at least in one area of the site -- to "help people avoid sexual harassers" (see cached version).   And though it says that it was inspired by the National Sex Offender Registry, it still highlights the main difference between this registry and the government's one  -- "[N]ot all of the people listed in the eBosswatch registry have been found by a jury to have committed sexual harassment."

And there you have it, a "registry" of allegations. This "registry" is nothing more that a meager list of some people accused of sexual harassment with no real attempt at completeness, fairness or accuracy. 

(At least, after my earlier post, the site had the grace to remove Steve Paulus from the registry and post an update about the case on its site; a jury had absolved him of sexual harassment allegations.)

For employers and employees, there are simply better, more accurate places to find information than this site. 

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