Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Punitive Damages Not Authorized for State Employment Discrimination Claims, Says Court

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Litigation

gavelIn yesterday’s post, I talked about the case of Tomick v. UPS in looking at the prima facie case for disability discrimination.

But the new Appellate Court case may be even more significant for its discussion of punitive damages.  In doing so, the Appellate Court attempts to resolve a split that had developed at the Superior Court level on whether Conn. Gen. Stat. Sec. 46a-104 authorizes an award of punitive damages in state law employment discrimination cases.

First, the statute.  It states that a court “may grant a complainant… such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney’s fees and court costs….”

The Appellate Court held that the statute does not authorize an award of punitive damages. If upheld by the Connecticut Supreme Court, it could significantly impact whether employees decide to file discrimination claims in state court versus federal court.

The court noted that the language “does not expressly provide for punitive damages”, only for an award of attorney’s fees and court costs.  And the court noted that the Connecticut Supreme Court ruled ten years ago that where a statute does not expressly provide for punitive damages, courts should not interpret the statute to include such relief.

Even if the language of the statute were “sufficiently broad” to provide for punitive damages, the court concluded that such a reading would be “contrary to our established law.” It noted that in Connecticut, punitive damages are typically “restricted to cost of litigation less taxable costs of the action being tried”.  Thus, if the employee were to prevail on his argument here, he would effectively be allowed to double his recovery of litigation costs because the statute already authorizes an award of attorney’s fees and costs.

While the decision isn’t THAT much of a surprise, I would be surprised if this were the end of the issue.   Given the procedural history of this case, I would think it’s quite possible we’ll see this case go up to the Connecticut Supreme Court on appeal now. So, before thinking that the issue of punitive damages in employment discrimination cases is resolved, stay tuned.

Being “Qualified” Doesn’t Necessarily Mean Being Able to Perform “Essential Functions” of Job

Posted in Discrimination & Harassment, Highlight, Litigation

UPSairBack in September 2013, I reported on a seemingly never-ending case of Tomick v. UPS and mentioned that it was headed to its second appeal at the Connecticut Appellate Court. (I talked about the history of the case and the first appeal back in 2012 too.  Amazingly, it dates to a termination decision way back in 2004!)

Well, it’s back. Today, the Appellate Court officially released its newest decision looking at a particular issue: Namely, is an employee required to show that he was qualified to perform the essential duties of his position at the time of an adverse employment decision?

To establish the basic elements (or a “prima facie case”) of a disability discrimination, an individual must typically show that he was “qualified for the position”.  UPS argued on appeal that it “is fundamental, under both state and federal law, that a plaintiff bringing a claim of disability [discrimination] must be capable of performing his/her essential job functions as of the date of the adverse employment action being challenged”.

The Appellate Court disagreed.  In doing so, it indicated that the requirement of “qualification” is necessary only when it is “germane” to the issues involved.  It cited Curry v. Allan S. Goodman, Inc. where the “plaintiff’s qualifications were essential in determining whether the employer could in fact employ the plaintiff with or without a reasonable accommodation.”

But the court went on. If the “question of qualification is not relevant to the main question of whether there was discrimination, our Supreme Court holds that no such showing is necessary….”.

In this case, because the plaintiff was already an employee of the defendant and his qualifications for the position held were not being challenged, the court said that the question of whether the plaintiff was qualified to perform the essential functions of his position at the time of termination was not relevant.

Interestingly, the court did suggest a different result in a different case.  If the defendant, for example, asserted that it could no longer continue to employ the plaintiff, with or without reasonable accommodations, on the basis of his unsatisfactory performance or lack of qualifications as a result of his disability, then the qualification element might come back into play.

For employers, the case is a notable play on legal theories.  But from a practical perspective, it’s hard to see how this will change the advice typically given to employers.

The Appellate Court went on to address another interesting aspect: Punitive damages. I’ll tackle that in an upcoming post.

Be Smarter than the Average Bear: ADA Accommodations at Camp

Posted in Discrimination & Harassment, Highlight

campSo “bear” with me on this one.

Today is Yogi Berra’s 90th birthday. The Yankee great is famous for not only his play as a baseball player but also for his sayings, such as “Half the lies they tell about me aren’t true.”

He was so popular he was said to inspire the name of Yogi Bear, a popular cartoon character who lived in Jellystone Park. And what did he like saying? He was “smarter than the average bear!”

But here’s where we come full circle: Jellystone Parks are now a real-life camp/resort too!

And that brings me to today’s topic: Camps.  (I realize that’s a long way to go for this introduction, but so be it.)

Tomorrow, my partners Linda Yoder and Leander Dolphin present a webinar entitled: “Top Tips for Accommodations under the ADA – Who’s Ready for Summer Camp?”

Indeed, with summer just around the corner, summer camps and youth services providers are making preparations for the fast-approaching camp season. This webinar will discuss the Americans with Disabilities Act’s (ADA) application to camp and other youth programs, and a review of top tips to consider, including accommodations, modifications of policies and procedures, provision of auxiliary aids, and safety concerns.

The webinar will cover frequently asked questions such as:

  • Who is considered “disabled” under the ADA?
  • Is our summer camp or youth services program required to comply with the ADA?
  • How do we determine if our organization’s programs, buildings and grounds are ADA accessible?
  • How do we respond to requests for accommodation?
  • Are we required to modify policies and procedures?
  • How do we determine whether an accommodation is reasonable?
  • What if there are competing and conflicting requests for accommodation?
  • How do we respond to safety concerns?
  • What steps can we take to ensure that our contracts protect us from liability or other concerns?

It’s scheduled for 1p Eastern Time. To sign up, you can click here.

And lest you think you can’t learn a lot from a webinar, remember this quote from Yogi Berra: “You Can Observe a Lot By Just Watching.”



Quick Hits: Transgender Workplaces; Proving Emotional Harm; “Digital Natives”; Labor History in Schools

Posted in CHRO & EEOC, Discrimination & Harassment, Labor Law & NLRB, Legislative Developments, Wage & Hour

bitsWith Twitter, I’ve been doing less “recap” posts of late. Why? For the simple reason that you can get all of the posts I’ve read of late on Twitter.

We didn’t have that when I started the blog nearly 8 years ago.

(Side note: It was eight years ago this week that I came up with the idea of doing a labor & employment blog after attending an ABA conference with Kevin O’Keefe in Montreal. Time flies.)

But from time to time, I still think its useful to recap some interesting developments in labor & employment law without a dedicated post. So, here are a few items I’ve read lately that you might find of interest.

  • With Bruce Jenner’s recent interview, the issue of transgender employees in the workplace is moving to the forefront again. This Employment Law360 story recaps the state of affairs.
  • Attorneys who represent empl0yees are looking for new ways to help prove emotional distress damages in discrimination cases.  As BeLabor the Point points out: “For example, doctors can now use functional magnetic resonance imaging (fMRI) and positron emission tomography (PET) scans to measure and visibly observe the effects of emotional distress on the brain.” This may represent a new area of the law in the upcoming years.
  • Many bloggers have been writing on code words for age discrimination that pop up from time to time in job advertisements.  Suzanne Lucas, of Inc., talks about one such example — the use of of the phrase “digital native”.
  • In past years, I’ve talked about how the legislature keeps considering a bill that would force Connecticut schools to teach labor history.  That bill is still alive this year.  And may be making more progress than people realize.

“Pay Secrecy” Bill Goes Above and Beyond Other Proposals

Posted in Class Actions, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Legislative Developments, Wage & Hour

As I said before, the notion that this might be a quiet year for employment law legislation at the Connecticut General Assembly has long since left the train station.

Indeed, we’ve appear to be swinging completely in the opposite direction. Anything and everything appears up discussion and possible passage this year — including items that really stood no chance in prior years.

GA2I’ll leave it for the political pundits to analyze the why and the politics of it all. But for employers, some of these proposals are going to be very challenging, at best, if passed.

One such bill, which appeared this week on the “GO” list (meaning its ready for considering by both houses) is House Bill 6850, titled “An Act on Pay Equity and Fairness”.  Of course, you won’t find those words in the bill itself which is odd.  There is nothing about pay equity in the bill; indeed, it is much much broader than that.

It stands in contrast to, say, the Lilly Ledbetter Fair Pay Act, which tried to tackle gender discrimination in pay directly.

This bill would make it illegal for employers to do three things. If passed, no employer (no matter how big or small) could:

  • Prohibit an employee from disclosing, inquiring about or discussing the amount of his or her wages or the wages of another employee;
  • Require an employee to sign a waiver or other document that purports to deny the employee his or her right to disclose, inquire 1about or discuss the amount of his or her wages or the wages of  another employee; or
  • Discharge, discipline, discriminate against, retaliate against or otherwise penalize any employee who discloses, inquires about or discusses the amount of his or her wages or the wages of another employee.

You might be wondering: Isn’t this first bill duplicative of federal law? And the answer is yes, and then it goes beyond it.  Federal labor law (the National Labor Relations Act) already protects two or more employees discussing improving their pay as a “protected concerted activity”.  It’s been on the books for nearly 80 years. So, as noted in an NPR article:

Under a nearly 80-year-old federal labor law, employees already can talk about their salaries at work, and employers are generally prohibited from imposing “pay secrecy” policies, whether or not they do business with the federal government.

This provision goes beyond that by making it improper for an employer to prohibit an employee from even disclosing another employee’s pay.

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Predicting the Future? Proposal Would Require Set Schedules by Employers Or Else

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

calendar1Over the last few weeks, I’ve heard lots of grumbling about the employment law proposals being floated at the Connecticut General Assembly.  But it wasn’t until recently, that I understood how serious one proposal is.

Last week, proponents of House Bill 6933 held a press conference to have the legislature pass a measure requiring employers to post employee schedules 21 days in advance —or pay a “predictability tax” if that schedule is changed in any way. CBIA has more details here and describes it as a “Catch-22″ for employers.

From an employment law perspective, the proposed bill would add yet another serious of layers for employers to have to address. The bill would require employers to provide employees with a minimum of 21 days notice of their schedules. Any changes to those schedules would result in the employer having to pay a “predictability” tax/penalty of anywhere of 1 hour of pay to 4 hours of pay or perhaps more.

Employees who are unhappy with the results could then file a claim with the Connecticut Department of Labor.

But that’s not all. Employees who believe that they should be compensated for the “predictability” pay could then file a claim in Superior Court for treble (read: triple!) damages and attorneys’ fees.

And under the bill, the employer could not defend itself by saying that the employee and employer have agreed to waive the predictability pay; in other words, the employee cannot say “I don’t need the three weeks’ notice”.  It would be mandatory.

Obviously, this is a class-action lawsuit bonanza waiting to happen.  All employers in the state — no matter how large or small — would be subject to this new law, if passed.

Putting aside the politics of such a proposal, I have little doubt that this proposal would be very onerous for employers to follow.  At the public hearing on this measure, there were many examples provided by non-profit employers and others that describe the difficulties that such a proposal would have.  Even the state’s judicial branch expressed serious reservations.

If this is an issue of concern to your workplace, you may want to contact your local legislature to share your opinion before the measure comes up for a possible vote something this year.

Cleaning Up Your Employee Handbooks, NLRB-Style

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

Last month, I had the opportunity to speak to the American Law Institute for a CLE program on the latest guidance from the NLRB on various employee handbook policies.

When I first wrote about it in March, I had expected to followup shortly thereafter with another recap. But in the meantime, I found that much of what was contained in the reports was already discussed in other blog posts. As such, it seemed kind of silly to just write a “me too” blog post.

The best of these articles was written by Eric Meyer – who actually is a partner of one of my CLE presenters from last month.  In it, he provides a detailed summary of the policies that the NLRB found objectionable and, just as importantly, those that the NLRB has blessed.

Another longstanding blog, “World of Employment”, also recaps the report as well and notes that it is important for both union and non-union employers alike:

Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies.  Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.

But as another blog pointed out, even the most innocuous policies can be struck down by the NLRB.  A recent case involving T-Mobile struck down a policy like this:

 This Handbook is a confidential and proprietary Company document, and must not be disclosed to or used by any third party without the prior written consent of the Company.

Why? Because its being deemed as “chilling” free speech.

So, for employers, it’s yet another reminder – maintaining the status quo on employee handbooks may not be good enough anymore.

If you’d like to learn more, feel free to listen to the webinar on ALI’s website.

Don’t Worry, Be Happy: Supreme Court’s Decision on Conciliation a Yawn for Connecticut Employers

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

DontWorryBeYesterday, the U.S. Supreme Court ruled that the EEOC has a duty to conciliate that has go a bit beyond words before filing suit as a party.  In the case, EEOC v. Mach Mining (download here), the employer argued that the EEOC cannot just say that it has tried to resolve the matter through conciliation; the Supreme Court agreed, but barely, saying that in many cases, an affidavit from the EEOC attesting to its efforts is going to be sufficient. And even if it isn’t, the EEOC can get a do-over (my words, not the courts) if a court finds that its conciliation efforts did not meet the statutory minimum.

To some, this decision is a huge deal: “The implications for employers as a result of this decision cannot be overstated.”  Why? Because the EEOC will have to revisit its litigation strategy and focus on being able to show its conciliation efforts before a “third party”.

To others, the decision is disappointing “because the Court declined to authorize dismissal of the EEOC’s lawsuits if conciliation efforts were not undertaken.”

What are the implications though for Connecticut employers?

For the overwhelming majority of Connecticut employers, my take is different from both of these and is essentially the title to a Bobby McFerrin song: Don’t Worry, Be Happy. 

Sure, be happy that the Court agreed that the EEOC cannot pay lip service to conciliation efforts.  It’s a small “victory” for employers.  It could be worse.

But don’t worry about this decision because you’re very likely to never have to deal with this issue.

Why? Because in Connecticut, the state agency — the Connecticut Commission of Human Rights and Opportunities — mainly calls the shots.  Indeed, in the last ten years since April 2005, the EEOC has brought suit only five times against Connecticut employers in federal court here (though, 3 of those suits are in the last 2 years).

Quite simply, the EEOC plays a very very small role in how employment laws in this state are enforced.  Thus, any decision that affects how the EEOC handles the small numbers of cases it brings against employers is going to have just a minimal impact in Connecticut.

To be sure, in the unlikely event you end up being the subject of an EEOC investigation, you should take your efforts to conciliate with the EEOC seriously and document them. But most employers here will never have that happen. Indeed, you’re much more likely to get a lawsuit by an employee.

So, read the decision if you must. But focus on other areas of compliance instead of getting caught up in the latest and greatest from the Supreme Court.

And feel free to whistle with the earworm that is “Don’t Worry Be Happy” below.

When Reviewing a Reinstatement Decision by an Arbitrator, Consider Over a Dozen Factors

Posted in Highlight, Labor Law & NLRB, Litigation

roadcircleIf you like getting lost on roads with your head spinning on which way to go, this is your post.  (Everyone else, well, try to keep up.) I recap a case for companies with unions to pay attention to.

Let’s start with this example:

Employee X is required by law to report suspected abuse in her job. She fails to do so for a few days, but ultimately does.  After investigation, employer terminates employee for her failure to report the suspected abuse and notes that she had been on “final” warning for previous misconduct. Employee and her union appeal.  After a hearing, an arbitrator reinstates the employee while similarly stating that she should be subject to a one month unpaid suspension. Employer appeals saying the arbitration decision violates the important public policy of reporting suspected abuse.

That’s the ground work for a new Connecticut Supreme Court decision (Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199) that will be officially released next week.

The court said that it was not readily disputed that Connecticut has a clear, well-defined public policy of protecting nursing home residents from abuse.  Thus, the sole issue for the court was whether the arbitration decision violates that important public policy.

In doing so, the court emphasized that a party seeking to vacate an award reinstating a terminated employee “bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. ”  But the court was quick to note that a consensus on how to handle such claims was “elusive” from its prior decisions.

Thus, the court said it was using this case to “take this opportunity to clarify the factors a reviewing court should consider when evaluating such a claim.”

When a court speaks like this, it’s probably worth listening to.  And what are those factors? This is where it gets complicated with factors upon factors. First:

Specifically, in determining whether termination of employment was necessary to vindicate the public policies at issue, both the majority and the dissenting opinions of this court have, either expressly or implicitly, focused on four principal factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible.

Of course, each of these factors have their own set of considerations as well. For example, on the relative “egregiousness” factor, the court said it encompasses “myriad considerations” including, but not limited to:

(1) the severity of the harms imposed and risks created by the grievant’s conduct; (2) whether that conduct strikes at the core or falls on the periphery of the relevant public policy; (3) the intent of the grievant with respect to the offending conduct and the public policy at issue; (4) whether reinstating the grievant would send an unacceptable message to the public or to other employees regarding the conduct in question; (5) the potential impact of the grievant’s conduct on customers/clients and other nonparties to the employment contract; (6) whether the misconduct occurred during the performance of official duties; and (7) whether the award reinstating the employee is founded on the arbitrator’s determination that mitigating circumstances, or other policy considerations, counterbalance the public policy at issue.

And what does it mean to be “incorrigible”? Well again, the court sets forth various considerations:

Here, relevant considerations include whether, on the one hand, the grievant has committed similar offenses in the past and has disregarded an employer’s prior warnings or clear policy statements; or, on the other hand, whether the grievant: (1) has generally performed his work in a competent and professional manner; (2) has demonstrated a willingness to change and an amenability to discipline; (3) has exhibited remorse and attempted to make restitution for past offenses; and (4) is likely to benefit from additional training and guidance.

But that’s not all.  “We also consider whether the penalty imposed by the arbitrator is severe enough to deter future infractions by the grievant or others.”

So if you’re keeping track at home, that’s over a dozen considerations for the court (and the parties) to address. 

Ultimately, the court in this case upheld the arbitrator’s original decision reinstating the employee applying all of the factors set forth above.

For employers, this case provides a roadmap on challenges to an arbitrator’s decision reinstating a terminated employee.  But beware: This map shows a lot of different paths for courts to follow.  Many of those several ways lead to the same conclusion: Challenging an arbitrator’s final decision remains an uphill battle at best.