Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Hiring Without Headaches – A Possibility or Fantasy?

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

So this week, I’ll be speaking at our firm’s semi-annual Labor & Employment Law seminar.  Amazingly, we have reached capacity for this event and are now taking names for a waiting list! Many thanks to all who have signed up.  It should be a lot of fun.

Frequent blog contributor (and, well, a colleague) Chris Engler and I will be talking about the nuts and bolts of the hiring process.  Hiring is, after all, the engine that runs companies.  And making good hiring decisions can yield a ton of benefits in the long run.  Moreover, hiring good employees can help avoid lawsuits from arising too.

So what are we going to talk about? Well, we’re going to look at some of the new laws on hiring.  “Ban the Box” is the latest law to arise — limiting the ability of employers to ask about criminal histories on job applications.  Limits on the use of credit reports is another relatively recent law in the last few years.

After I put together the presentation, though, I came across a really interesting article in the Wall Street Journal about how some companies are using quirky interviews in their hiring process.    In doing so, the companies are striving for “culture fit”.

At Zappos, an online retailer famed for its offbeat office culture and corporate values, veteran employees size up candidates’ ability to blend in—and have veto power over those who miss the mark. The culture experts ask candidates questions that seemingly have little to do with the job, such as “If you were to write your biography, what would the title be?”

Rick Jordan, who leads talent acquisition for the nearly 1,500-person company, says longtime employees sometimes have a “gut feeling” about who is likely to succeed. About 1 in 8 don’t make the cut, he notes. “People who are true fits to the culture and believe what we believe—they’ll do anything for the business.”

But as the article notes, “culture-fit interviews raise concerns among employment experts, who warn that such screenings may be rife with potential for bias. Though these screenings haven’t been at the center of a major employment lawsuit, legal experts are concerned that they could put companies at risk.”

Indeed, there’s already a backlash against such interviews. Facebook, the article notes, “discourages its managers from using culture fit as a criteria in hiring, and calls the term ‘a bias trap,’ according to a spokeswoman.”

Where to from here? Well, employers should continually look at their hiring processes to ensure that the message of fair, non-discriminatory hiring is getting across to those who are making the decisions.

We’ll discuss this and more at the upcoming seminar. If you’re coming, please feel free to introduce yourself to me (during a break!).  See you then.

(P.S. Many thanks to Jon Hyman who alerted me to the hilarious video of President Obama’s “job interview” with Stephen Colbert. Worth a watch.)

Overtime Rules Still On Track — Are You Ready?

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Manager & HR Pro’s Resource Center, Wage & Hour
USDOL Headquarters in DC

USDOL Headquarters in DC

Over the last few weeks, there’s been a lot of bluster about lawsuits filed that are challenging the new overtime rules that are set to take place in just a few weeks. And there was also news that Congress was considering a law restricting the law as well.

Both seem unlikely to come to pass and employers that have been postponing action in the hopes of a “white knight” on the issue should think twice.

I covered the new rules in several prior posts (here and here, for example). But as a reminder, the rule becomes effective December 1, 2016. Note that December 1 is a Thursday, so employers will have to make sure that the entire pay period is compliant with the new rule.

So, that leaves you with precious few weeks to get into compliance.  There are a number of different approaches to take and its definitely not a one-size-fits-all type of law.

One suggestion though is to have your trusted attorney or HR consultant take a look at any questions you have.  We have done this for several and there are some challenges that may seem unique to your business that other companies have struggled with as well.

If the court suspends implementation of the new rules, you can still decide then, but it may be a game-time decision given how late we are in the process.

And About “Embarrassing” Student Teaching Assistant Handbooks….

Posted in Human Resources (HR) Compliance, Labor Law & NLRB, Social Media

Lucan_J_WebMy colleague Jarad Lucan returns today with an update on a post regarding the impact that recent labor law decisions are having on colleges and universities.

Two years ago, my colleagues and I reported on the case before the National Labor Relations Board (the “Board”) related to the Northwestern University’s scholarship football players seeking the right to unionize.

The Regional Director in that case determined that the players were employees under the National Labor Relations Act (the “NLRA”) and therefore could vote to be represented by a Union in connections with negotiating terms and conditions of employment with the University.

Ultimately, the Board refused to exercise jurisdiction over the players  and therefore left open whether they are employees under the NLRA or not.

At the time we reported on the case,  we discussed some of the impacts of the decision beyond the ability of players to unionize, including that the Board may scrutinize the University’s policies to see if those policies complied with the NLRA.

More specifically, whether the policies were written in a way that would either expressly or implicitly prevent the players from engaging in protected concerted activity.

Apparently, someone did challenge the “Football Handbook” and on September 22, 2016, The Board’s Office for the General Counsel issued an advice memorandum related to that charge advising against the issuance of a complaint.

The memorandum assumed that the football players were employees, and indicated that:

[i]t would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.

According to the memorandum, Northwestern modified its handbook pertaining to social media use striking portions of the rules, in most cases replacing with new language.

In particular, Northwestern took out language barring student-athletes from posting things online that “could embarrass you, your family, your team, the Athletics Department or Northwestern University.”

The new text is more specific, telling the athletes not to post things that “contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity.”

The memorandum also pointed to changes with the University’s rules on disclosing injury information, which had told players to “[n]ever discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone” saying the “team is a family and what takes place on the field, in meetings or in the locker room stays within this family.”

The new rule says football players should not reveal injuries because of “the need to ensure that teams with whom we compete do not obtain medical information about our student-athletes” but says the rule does not “prohibit student athletes from discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.”

According to the memorandum, “[t]hat modification struck the proper balance of maintaining players’ confidentiality and protecting football team information while at the same time allowing players to speak out on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.”

The memorandum further noted that the school eliminated a dispute resolution policy for student-athletes to bring a “complaint or grievance concerning personal rights and relationships to the athletic program,” which required the players to first bring such issues to the director of football operations.

So if the memorandum advised against an issuance of a complaint, why should you care about it?

Well, as was recently reported, in the Columbia University case, the Board held that student teaching assistants were employees covered by the NLRA.  These employees not only have the right to unionize, but also have the right to engage in protected concerted activity even if they do not unionize.  Any handbook or policies, therefore, governing the terms and conditions of the relationship between the teaching assistants and the college or university will likely come under the NLRB’s scrutiny.

So, employers beware (again): You should review, or have your attorney review, your current policies and handbooks to ensure compliance with the NLRA.

Trump’s So-Called “Locker Room Talk”: Would It Count Towards a “Hostile Work Environment”?

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


I’ve always tried for this blog to be apolitical.  That doesn’t mean I don’t have political views — I obviously do — but I don’t think that they should play into how we look at certain legal issues.

But we need to talk about the recorded comments from Donald Trump because I think employers need to understand that a workplace that tolerates or condones those types of comments — particularly on a regular basis — is just allow a foundation for a sexual harassment “hostile work environment” lawsuit to be established.

I’m not going to rehash the comments here — the definitive Washington Post story on it does that more than adequately — but I wanted to look at it from the legal context.  Trump’s comments at the debate last night that his comments were mere “locker room talk” isn’t going to cut it.

If you’re wondering, first of all, whether the actual grabbing (as opposed to extremely lewd talk) of female anatomy is sexual harassment, the plain answer is absolutely yes.  It’s also sexual assault, as noted by Anderson Cooper last night.

Notably, a lot of the cases that looked at such “physical touching” incidents were from back in the late 1980s and early-to-mid 1990s, when cases around “hostile work environment” were just coming out.

A case is point is Hall v. Gus Construction from 1998, which had this awful set of facts  “In addition to the verbal abuse, male coworkers subjected [the plaintiffs] to offensive and unwelcomed physical touching. Male crew members would corner the women between two trucks, reach out of the windows and rub their hands down the women’s thighs. They grabbed Ms. Hall’s breasts. One crew member picked up Ms. Hall and held her up to the cab window so other men could touch her.”

And that was just from co-workers.  The supervisors and the company were responsible because they ignored it.

But what about “extremely lewd” talk from supervisors. Can that be enough?

First, it’s important to understand the standard for hostile work environment claims allegedly created by supervisors.  Employers are generally liable for such harassment by supervisors.  What does this mean?

It means that if, over a four-month period, an employee endured almost daily sexual comments and advances from her direct supervisor, including requests for dates and telling her that her “butt looks good” — that may be enough for a hostile work environment claim.

They key to such a claim is whether the actions were severe or pervasive enough to change the conditions of employment and create an abusive environment, judged either by an objective standard (in other words, any reasonable person would find the conduct abusive); and a subjective standard (in other words, the employee in question found the conduct abusive).”

Thus, if a supervisor made isolated comments, it typically isn’t enough (though sometimes it is so bad that it can be).  Rather, what courts are looking for is an environment where these types of comments are more the norm, rather than the exception.

Even so, there may a limited defense. To assert this defense, employers must be able to show that:

  • No tangible adverse employment action was taken against the plaintiff.
  • The employer exercised reasonable care to prevent and promptly correct the harassing behavior.
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid the harm.

This defense must be proved by the employer.  But again, in cases where the supervisor is the one who is alleged to be the harasser, it’s a tough burden to meet.

Now, this does not mean that the workplace must be free of all lewd talk; that’s not the law.  An isolated comment, even from a CEO, about a person’s appearance is just not enough to be actionable.

But talk about sexual assaulting women is just something more.   And if employers are thinking that this talk goes on all the time in their workplace and it’s no big deal, it’s probably worth a call to your lawyer — because a lawsuit may just be right around the corner.

Is Hiring Without Headaches Even Possible?

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

In the course of my litigation cases, I’ve had a good-natured argument at times with a few counsel who represent employees about the mindset of employers.  The argument I’ve heard from them is that employers are too cavalier in firing employees and just go about hiring someone else (someone younger, they argue).

headahbBut what I’ve heard from my clients over the years is something different.

Typically, the decision to fire an employee is tough, made only after a series of internal conversations.  Employees with performance issues weigh on the supervisor’s minds — the struggle between trying to help the employee improve while still making sure that the needs of the business get done.

Mostly they get it right. But firing a poor performer doesn’t typically solve the issues for employers. Rather, they then need to find the RIGHT person to fill that position.

Hiring the right person is hard.   Just the process of searching for that person can sometimes feel like the proverbial needle in the haystack.  Online resumes come in by the dozen and business pressures make it difficult for employers to just find the time to parse through the resumes and interview candidates.

The headaches with hiring have only gotten worse over the last decade as well.

New laws have been put in place that place restrictions on what employers can and cannot ask and when they can ask those questions. And further restrictions on things like non-compete agreements in certain professions make hiring the right person all the more important.

For example, “Ban the Box” is now the law in Connecticut. Have you amended your employment applications to address this issue? Restrictions on the use of credit reports were put in a few years ago. Have you revised your process accordingly? And how can you search social media without running afoul of laws that ban “shoulder surfing”?  Do you give employees an “offer letter” that outlines the terms of their employment as Connecticut law requires?

I’ve talked about some of these things in prior posts, but I’m going to expound upon it further at our firm’s upcoming Labor & Employment Law seminar later this month.  You can register for the program here; space is very limited at this point.

Are there other topics related to hiring that you’d like to hear addressed at the seminar or on the blog? Be sure to post a comment so we can incorporate that in our free presentation.

Joining Connecticut, Paid Sick Leave Now Mandated for Federal Contractors

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Manager & HR Pro’s Resource Center, Wage & Hour

As Connecticut employers of a certain size know, Connecticut implemented Paid Sick Leave recently which affords employees up to five days off a year.   Now, federal contractors (including those in Connecticut) have another layer to deal with. As my colleague Ashley Marshall explains below, paid sick leave will now be a requirement later this year.  Thanks too to my partner Gary Starr who helped pull this together today on short notice.

marshall If we travel back in time to September 2015, President Obama signed Executive Order 13706 (EO) which established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.

Today, the Secretary of Labor has issued regulations to implement President Obama’s Executive Order that established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.  The regulation goes into effect on November 29, 2016.

Here are some of the highlights:

  1. The Final Rule covers new contracts and replacements for expiring contracts with the fdoctorederal government that result from solicitations on or after January 1, 2017.
  2. Employees will accrue 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered federal contract.
  3. Paid sick leave is capped at 56 hours (7 days) in a year.
  4. Employees may use paid sick leave for their own illnesses or other health care needs, for the care of a loved one who is ill, for preventive health care for themselves or a loved one, for purposes resulting from being the victim of domestic violence, sexual assault, or stalking, or to assist a loved one who is such a victim.
  5. The Final Rule allows for coordination with existing paid time off policies and labor agreements
  6. Employers may require that employees using paid sick leave provide certification from a health care provider of the employee’s need for leave if they use 3 or more days of leave consecutively.

A few other tidbits:

  • Whether an employee has to work a certain number of hours  for coverage depends on whether they work “on” a covered contract or “in connection” with a covered contract.
  • Employees that work “on” a covered contract are those that are performing the specific services called for by the contract. They are covered, regardless of the number of hours worked in a year and regardless of whether they are full or part time.
  • Employees that work “in connection” with a covered contract are  those that perform work activities that are necessary to the performance of the contract, but are not directly engaged in the specific services called for in the contract.  An employee who spends less than 20% of his or her hours working “in connection” with a covered contract in a particular workweek is not covered.

As with many new benefits, employees may try to take advantage of the new regulation, particularly since no medical excuse needs to be provided until the employee is out of work 3 or more days.  Employers are going to need to be vigilant against abuse.

The Final Rule will be published in the Federal Register September 30, 2016, and will go into effect exactly 60 days after its publication. More information can be found on the U.S. Department of Labor’s website in its Fact Sheet and Overview.

“Well” Look What We Have Here: EEOC Regulations on Wellness Programs (Part II)

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

Continuing his posts on wellness programs, my colleague Marc Herman fills us in on what’s the latest.  

hermanI return today with the second part of a two-part post on wellness programs.

Reference to my prior post is not to be braggadocious, but to remind you that both posts ought be read in tandem.  Shameless, I know.

As I mentioned last time, the EEOC has finally published its long-awaited regulation that attempts to clarify the meaning of a voluntary medical examination.

Why long awaited? I hear you ask.

Well, if you recall, over the past couple of years, the EEOC has embarked on a slightly manic litigation spree against wellness programs.

In its typical altruistic self, the EEOC set-out to remind us that involuntary medical examinations are largely prohibited under the ADA.  I call this the No Exam Rule.

nurseNow, let’s get to the regulation itself.

According to the regulation, a voluntary medical examination (i.e., a lawfully incentivized wellness program) means that an employer:

  1. Does not offer an incentive that, in monetary terms, exceeds 30% of the total cost of self-only coverage for an employee;
  2. Does not deny an employee access to a health plan on the basis that the employee declined participation in a wellness program; and
  3. Does not retaliate against those employees that otherwise choose not to participate.

My self-proclaimed cynicism aside – please, I am English (Editor’s note: Too true!) – the above rules set forth a pragmatic, and dare I say workable, framework.  Employers that are considering such programs or that already have such programs, should be mindful of the regulations.

One thing to keep in mind — the regulation applies prospectively.  Thus, it will apply only to wellness programs that begin on or after January 1, 2017. With that said, the shake-up (or shake-down) due to take place in Washington D.C. very soon could relegate this new regulation to the history books.

Watch this space. Because I have a feeling we haven’t heard the last about wellness programs regulations.


Well Well: Court Sides with Employer in Latest Wellness Program Battle (Part 1)

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

hermanMy colleague Marc Herman returns today to bring back the story of wellness programs and whether they will continue to pass legal muster. In the first post of a two-parter, Marc updates us on some litigation. Read on.  

Here’s one for you:  Did you hear the one about the employee that turned down the opportunity to have his annual health insurance premiums waived?   Not a joke, unfortunately.  And there’s not much of a punch line either.

Way back in 2014 –– a time when Donald Trump’s entry into politics was confined to an episode of the Simpsons –– the EEOC embarked on a relentless, and unexpected, crusade against wellness programs.

“Why!?” I hear you cry.  Let me remind you.

The EEOC took issue with various employer-sponsored wellness programs because, according to the EEOC, many such programs violated the Americans with Disabilities Act (the “ADA”).  [Enter smoke, stage left].

Among those employers side-swiped by the EEOC was Orion Energy Systems, Inc. – a Wisconsin-based manufacturer that employs around 250 people.

According to the EEOC, Orion’s incentive-based wellness program violated the ADA by unlawfully subjecting employees to involuntary medical examinations.

What are those? Well, in plain English, involuntary medical examinations are a big no-no under the ADA — consider it the No Exam Rule.  Remember this.  It is important.

Orion had told its employees that if they participated in a wellness program, they would have their annual health insurance premiums waived (a saving of over $400).


Wait, not so fast.

Participation in the wellness program also obligated employees to undergo something called a “Health Risk Assessment”  – a fancy name for a medical exam.

Ah, now enter from Stage Right — the No Exam Rule.

You might say – “What’s the big deal!?” “The employees had a choice!”  “How is this involuntary!?”

Well, yes, in a technical sense, the employees had a choice.  They could decline participation if they so wished.  But that’s not the way the EEOC viewed it.

The EEOC said:  Whoa!  No sane employee would choose to forego a waiver of their annual health insurance premium.  Put another way, no employee would voluntarily choose to pay the annual health insurance premium (i.e., opt-out of the wellness program).

The EEOC reasoned that employees have no meaningful choice to opt-out of the program.  Participation would be coerced.  The Health Risk Assessment would be involuntary.

So who’s right?

Well, last week, we finally go through round one: a federal court sided with the employer, Orion.

The court explained that while there “may be strong reasons to comply with an employer’s wellness initiative,” the employee still has a choice.

Orion’s wellness program did not subject employees to involuntary medical examinations.  It was lawful.

Now, before we crack open the cigars and champagne, let us pause.  The decision, while helpful, ought be put in context.

In May, 2016, the EEOC published its long-awaited regulation regarding wellness programs.  The regulation defines exactly what a voluntary wellness program is.  However, it only applies to wellness programs commencing on or after January 1, 2017.  This means that the new regulation did not apply to Orion’s.  The decision should, as they say, be taken with a heavy pinch of salt.

I shall return with part 2 to further explore the new regulation.  Stay tuned.

Election 2016: Three Employment Law Debate Questions for Hillary Clinton

Posted in Highlight, Legislative Developments

clinton2013Yesterday, I offered up three questions for moderators to use during the Presidential Debates to question Donald Trump on employment law issues.

Today is Secretary Hillary Clinton’s turn.

  1. Secretary Clinton, the National Labor Relations Board has been quite active in the Obama years; in fact, despite the failure of Congress to pass the Employee Free Choice Act (of which you were an original co-sponsor), many of the ideas from that bill have made its way to regulations from the NLRB including new speedy elections.  You have indicated that you will “fight to strengthen the labor movement” on your website.  What additional changes would you like to see to the nation’s labor laws and why isn’t what we have now enough?
  2. You have indicated that you will also “protect workers from exploitation, including employer misclassification, wage theft, and other forms of exploitation.”  Yet our federal and state laws already prohibit the use of independent contractors as employees and cover the so-called “wage theft” examples. What are you going to do differently, if anything?
  3. In a speech yesterday, you spotlighted a constituency that we haven’t heard much about during this election cycle — those with disabilities.  And you have indicated that you want to fulfill the promise of the Americans with Disabilities Act.   Beyond eliminating the sub-minimum wage that is allowable under current law, would you make any changes to the ADA itself? And in “fulfilling the promise” of the ADA, would you ask the Department of Justice make enforcement a top priority of its strategic plan?

I’m under no illusion: These topics are unlikely to get discussed.  We’ll probably hear more about e-mails and taco trucks.  But perhaps someone somewhere will press the candidates on these important issues.

Election 2016: Three Employment Law Debate Questions For Donald Trump

Posted in Highlight, Legislative Developments

trumpphotoEach election cycle, I hope that employment law issues will move front and center to the Presidential campaign.

And each cycle, I’m slightly disappointed that such issues only get short shrift.  Sigh.

But as I’ve done before, it would be nice to fantasize about employment law questions that could be posed to the candidates at the upcoming Presidential debates.

So, just in case Lester Holt or the other moderators are brainstorming ideas on the internet, here are three questions I’d like to see asked of Donald J. Trump.

(I’ll have a followup post for Hillary Clinton.)

  1. The U.S. Department of Labor has recent proposed raising the salary threshold requirements for employees to receive overtime. As a result, millions more workers may start to get overtime in December of this year.  But this week, various states and business groups have filed suit to block its implementation. You have previously said that you support a rollback of these new rules.  Why? What specific changes would you propose to the overtime rules if you were going to roll back the current proposal.  Be specific.
  2. You recently said you would advise your daughter Ivanka to “find another career or find another company” if she faced the same harassment as alleged in the sexual harassment lawsuit against former Fox chief Roger Ailes.  Can you explain why you think your daughter should leave a company if faced with harassment? Doesn’t the company bear some responsibility to its employees to stop the harassment and ensure a safe working environment for its employees?
    Followup question: Given the allegations against Roger Ailes and Fox’s payment of $20M to resolve allegations by one of its former employees of sexual harassment, how do you justify consulting with him and what message (if any) do you think it sends to your female workers on your staff?
  3. States like Connecticut have passed a version of Paid Sick Leave. Do you support such a law? As a followup, you recently said you would support a six-week paid maternity leave program.  Why are fathers excluded from your proposal? Do you think fathers should have any paid time off after the birth or adoption of a child?