Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Ten (+4 More) People to Follow on Twitter for Labor and Employment Law

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

Since the last time I published a list of labor & employment law lawyers to follow back in 2012, there are just a bunch of you out there now using Twitter. (And I presume you’re already following me @danielschwartz, right?)

So, it’s probably time to update my list of labor & employment law-related people to follow on Twitter.

But I’m going to cheat, a little.

Photo Courtesy Library of Congress

Frankly, in looking over my lists from 2009 and 2012, I have a lot of repeats.  So, it should be obvious that some of those should be followed regardless of whether they are on a top 10 list.  (And really, anyone from those lists should be followed too even if I don’t re-mention them here.)So here are four of my “of course, you should already be following them” list:

  • Jon Hyman (@jonhyman) – Publisher of the Ohio Employer’s Law Blog. Great insights.
  • Molly DiBianca (@mollydibi) – Runs the Delaware Employment Law Blog with a wicked sense of humor and a self described “genuinely nice person”.
  • Eric Meyer (@eric_b_meyer) – Unfortunately a member of Red Sox nation but provides an irreverant look at employment law on The Employer Handbook.
  • Seth Borden (@SHBorden) – While Seth writes a bit less for Labor Relations Today then he did a few years ago, he has a particularly strong knowledge base in labor law.  Of course, as with Eric, he has a fatal flaw in his love of the Sox, but so be it.

Here are 10 more people to follow on Twitter for labor & employment law.

  1. Robin Shea (@robineshea) - I said back in 2012 that she was perhaps the “best lawyer you’re not following online”.  Still holds true.  Writes the Employment & Labor Insider which is a must read.
  2. Jeff Nowak (@jeffreysnowak) – Jeff knows the Family Medical Leave Act.  Follow him and you will too.
  3. Chai Feldblum (@chaifeldblum) – A self-described “first out lesbian EEOC Commissioner with hidden disability of anxiety disorder”, she provides extraordinary insights into the workings of the EEOC.
  4. Jason Shinn (@jason_shinn) – Jason write the Michigan Law Employment Advisor and consistently nails it. His last article on why delaying employee terminations is inevitably bad for the company is a perfect example.
  5. Paul Callaghan (@paulcall1) – An employment lawyer from over the big pond in London, Paul travels quite a bit to the United States and thus has a different perspective than most.  Plus, I’ve met him at several conferences and like the guy too.
  6. Walter Olson (@walterolson) – I’m kind of surprised I haven’t listed him before. He’s not strictly a labor & employment law person, though his well-known Overlawyered blog features the topic from time to time.
  7. Philip Miles (@philipmiles) – From the middle of Pennsylvania, Philip shares unusual employment law cases and interesting tweets too.
  8. ABA Labor & Employment Law Section (@abalel) – I’ve been involved with the section for a number of years and have met a number of terrific people that you should also be following too (@evilinheels, @adamsforman, @employeerights).   They may not tweet as often as some others, but I can attest that they are highly knowledgeable in the employment law area with a sharp wit as well.
  9. Mara Lee (@MaraLeeCourant) - This one is for the local folks.  Mara covers business and labor issues for the Hartford Courant; one of the few people in the state who is looking at the big picture.  I should also mention that Steven Greenhouse (greenhousenyt), who covers labor issues for The New York Times, is worth a follow as well.
  10. Eric Gjede (@egjede) – A business lobbyist, Eric represents employers’ interests for the Connecticut Business and Industry Association at the legislture on labor & employment law issues.   Bonnie Stewart (@CBIAbonnie), Cindy Panioto (@cbiahr) and others at the CBIA also  tweet noteworthy information for employers in the state regualrly.

And if you’re looking for something a little different, my firm (@shipmangoodwin) and one of my partners, Ross Garber (@rossgarber), also deliver high-quality tweets of interest to people in Connecticut and beyond.

Finally, by the very nature of a list like this, I’ve excluded others.  I’m following about 350 people at the present time on Twitter. Feel free to look at the list for further ideas.

I have no doubt I’m missing a few.  Who else should we be following or mentioning? Who have I forgotten? Feel free to add your favorites to the comments below.

Could Telecommuting Be Deemed a “Reasonable Accommodation” Under the ADA?

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Wage & Hour

My colleague, Gabe Jiran, (go read his impressive background here, I’ll wait) recently gave a presentation on telecommuting and I asked Gabe to share his thoughts on a notable topic that came up for discussion there.  Thus, in this post, Gabe discusses whether telecommuting could be a “reasonable accommodation.”

With today’s technology, employees seem to be able to work anywhere and at any time.

Often, the employee is simply trying to get work done whenever possible and to fit work into a busy schedule.

However, when does an employer have to allow an employee to work at home or “telecommute” due to a disability under the Americans with Disabilities Act (“ADA”)?

The Equal Employment Opportunities Commission (“EEOC”) has issued guidance on the subject.  And reading this guidance, it becomes pretty clear that, from the EEOC’s perspective, allowing an employee to telecommute is a reasonable accommodation even if your company does not have a telecommuting policy.

The key is determining whether telecommuting is reasonable under the circumstances.

Obviously, certain jobs do not lend themselves to telecommuting. For example, a truck driver cannot do his job remotely from home. However, many times the answer is not that clear.

According to the EEOC, employers need to consider several factors, including the ability to supervise the employee and whether any duties require the use of certain equipment or tools that cannot be replicated at home.

Other considerations include whether the employee’s job requires interaction and coordination of work with other employees, whether in-person interaction with clients or customers is necessary, and whether the employee must have immediate access to documents or other information located only in the workplace.

As with any analysis under the ADA, bright line rules are disfavored and employers need to make decisions on a case by case basis. The interactive process with employees is crucial in this situation, and you and your company should keep an open mind.

Even if you can’t have an employee telecommute on a full-time basis, you should consider part-time arrangements where possible.

In the end, your company has the ability to manage its employees and should therefore have a plan in place if it is going to allow telecommuting.

If you are interested in learning more about telecommuting, check out this link for a recent webinar on the topic: The Virtual Workforce: A Reality Check for Employers Dealing with Telecommuting Employees.

 

A New “CAR” And Other Proposed Changes to CHRO – Can They Get It Right?

Posted in CHRO & EEOC, Legislative Developments

Last year, the General Assembly considered changes to the Commission on Human Rights and Opportunities. That bill did not receive a final vote. This year, it’s back but recently died in the Judiciary Committee, according to the CBIA.  Will it get attached to another bill? Will it be tweaked further this fall in preparation for next year’s term? My colleague, Christopher Parkin, chimes in with the details and why employers need to keep an eye on any proposed changes.

The ink is still drying on the most recent round of changes at the CHRO, the massive amendments known as PA 11-237 (in fact, the CHRO website still points to old versions of the General Statutes), but the legislature has been grappling with proposed changes to the statutes that govern the CHRO in the last few months.

These amendments, Senate Bill 385, represent a considerable effort to clean up antiquated language and recodify the statutes to make them more accessible to the public.    

Among the hundreds of technical amendments built into the bill are plenty of new substantive changes that employers and their counsel will need to become familiar with.  Recently the CBIA has noted that this particular effort has seemed to die in committee; however, the bill is likely to reappear at one point or another. Here are the details and the impact on employers when this is considered again.  

Investigator and mediator will no longer be the same person

The CHRO has long been criticized for its practice of combining the mediation and investigation process by assigning a single investigator to handle both duties, a process the Commission has insisted is a function of insufficient funding.  Until recently, mediations and fact findings were very frequently held consecutively in one marathon day. 

Nobody is best served when these processes are combined.  Neither employers nor employees can fully trust the confidentiality of the mediation process when the mediator will be tasked with soliciting testimony a few hours later if the case doesn’t settle. 

It’s also not fair to the investigators to expect that they can fully partition their brain between mediation and investigation to conduct both appropriately.

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Gleaning Employment Law Lessons From Connecticut’s Double Championships

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

I’ll first acknowledge the obvious: UConn’s national championships in both men’s and women’s basketball is a weak excuse for a post on employment law topics.

And yet, that hasn’t stopped me before. (See 2009, 2011, etc.)

For Kevin Ollie, the victory provides a nice financial bonus to him.  How do I know this? Because Ollie had an employment law contract.

In fact, back in December 2012, his contract was extended in a letter agreement (which you can find here).  A more formal contract followed.

Geno Auriemma’s contract (and let’s face it, he’s just Geno in Connecticut) is far more lucrative and is also available online.

When I show people these contracts, I’ve often heard people express surprise. “They look….exactly like other employment law contracts.”

Exactly.

There are, after all, only so many ways that you can say certain things and an employment law contract has certain elements that are consistent from document to document.

Want other examples? There are plenty of sites that have actual contracts pulled from various SEC filings available for free.  I’ve long referred people to the Onecle site, which has some examples here.  

Looking at other employment law contracts is great to give you and your company ideas on how a contract (for some high level executives) can be structured.  You won’t want to copy them — each of these contracts should be tailored to the particular employee and particular industry that you’re in — but a review of them will show you that contracts are rocket science.

And remember what Coach Ollie has preached: No escalators. No short cuts. If you want to do your employment law contracts the right way, take the stairs.

Will “Microaggressions” Make Their Way Into Employment Discrimination Cases? Have They Already?

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

Over the last few months, I’ve seen an increasing number of articles start highlighting an issue that has been percolating at college campuses: The theory of “Microaggression”.

Not familiar with the term?

The New York Times has recently written about the term become the “word du jour”:

A tone-deaf inquiry into an Asian-American’s ethnic origin. Cringe-inducing praise for how articulate a black student is. An unwanted conversation about a Latino’s ability to speak English without an accent.

This is not exactly the language of traditional racism, but in an avalanche of blogs, student discourse, campus theater and academic papers, they all reflect the murky terrain of the social justice word du jour — microaggressions — used to describe the subtle ways that racial, ethnic, gender and other stereotypes can play out painfully in an increasingly diverse culture.

In reading Time magazine over the weekend, there was a similar piece which suggested that “you’re about to start hearing it everywhere.”

Microaggressions, as these academics describe them, are quiet, often unintended slights — racist or sexist — that make a person feel underestimated on the basis of their color or gender.

Of course, in reading these pieces, I couldn’t help but wonder if we’ll start to see the influence of this academic theory in employment discrimination cases.

Before you suggest that I am reach for straws, understand that academics are already looking at this theory and have been for over 25 years in articles or books (here, here and here, for example).

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SOX Stake Claim in Winning … a Whistleblower Protection Case (Revisited)

Posted in Highlight, Litigation, Wage & Hour

It’s Baseball Season; a time for the Sox to come out and play.

Not the Red Sox — this is, after all, a legal blog (run by a Yankees fan, no less).  No, today, we’re talking about Sarbanes-Oxley (SOX) Whistleblower Protection.

Still with us. 

My colleague, Clarisse Thomas, has taken a look back at the U.S. Supreme Case of Lawson v. FMR LLC , which was decided last month.  Now that the dust and analysis have settled on the case, she gives us some practical and useful tips on what to take away from the case. 

A month ago, the Supreme Court significantly expanded — and dangerously I might add — the scope of Sarbanes-Oxley’s whistleblower protection provision. Now, not only does the provision protect employees of publicly traded companies, but it also protects employees of any private contractor or subcontractor who may work for those public companies. So, private employers, beware…

The case appears to be based more on public policy concerns than the actual text of the statute.

Let’s look first at the language of the law itself.  SOX’s whistleblower provision says:

§ 1514A. Civil action to protect against retaliation in fraud cases

(a) Whistleblower protection for employees of publicly traded companies. No [public] company . . . or any officer, employee, contractor, subcontractor, or agent of such company . . . may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee . . . .

Although the provision’s heading expressly indicates protection for employees of public companies, the Court held that the caption heading was just a “short-hand reference,” and therefore not intended to exclude employees who may work for private employers.

The problem in Lawson was that the public companies at issue were not public employers to which the statute’s protections would apply. They in fact were mutual funds, which, by their very nature, have no employees. Thus, given the statute’s limitations, the Court extended the statute’s reach to private contractors and subcontractors, and in doing so, dramatically increased the exposure of these private employers to potential liability.

The Court’s reasoning was simple: “It is common ground that Congress installed whistleblower protection in the Sarbanes-Oxley Act as one means to ward off another Enron debacle.” Herein lies the basis for the Court’s ruling. The term Enron was mentioned 34 times throughout the majority opinion.

Because the Court chose not to limit its holding in any way, the dissent opined that the decision would open the floodgates for whistleblowing lawsuits that are beyond the scope of SOX’s protections. The majority dismissed these concerns, by noting that such claims can be addressed later on.

Truth be told, a month after the case was decided, it remains unclear what the impact of this case will really be.  But because the case provides very little guidance as to the scope of claims that may be beyond SOX’s protections, and as to the types of private employers to which it applies, this decision will no doubt result in threatened and actual lawsuits in the years (if not months) to come.

What can private employers do to protect themselves? Much has been written (including a good summary in Employment Law 360) but the basic tips remain as follows:

  • As with a lot of these types of technical provisions, knowledge is key.
  • Familiarize yourself with SOX’s whistleblower protections and provide training to supervisory and managerial employees in furtherance of this goal.
  • Understand the full extent of the contractual relationship you may have with a public company, so that you can better assess whether Lawson may apply, given that relationship.
  • Consider preparing (or revising) policies that prohibit retaliation, to include the protected activities set forth in SOX’s whistleblower statute.
  • Finally, ensure that there are sufficient avenues in your workplace for employees to complain about possible SOX violations (being able to report an issue to just an immediate supervisor may not be enough), and ensure that sufficient procedures are in place to identify and prevent retaliatory conduct against employees who may report possible SOX violations.

The SOX are going to be playing ball for a long time to come.

Final Four Madness: Preparation Still Matters To Win On (or In) The Court

Posted in Discrimination & Harassment, Highlight, Litigation

Over the weekend, I asked my colleague, Chris Engler, to think of any employment law lessons that could be divined from the victories of the UConn Men’s Basketball team.  He reminds us in the post below that preparation still matters.  Of course, this isn’t the first time this blog has written about the UConn Huskies (see 2009 and 2011).  Will 2014 bring another championship?

This past weekend, the UConn men’s hoops team reminded us that hard work and thorough preparation can prevail in a contest that looks tough to win on paper. A recent federal court decision shows that those same qualities serve Connecticut employers well too.

The alleged facts are told in the court’s decision: Martin Donovan, a longtime Yale University administrator, was terminated back in 2010 after an investigation revealed numerous problems with his management style. Donovan sued for age discrimination based on three comments by his supervisors.

The background facts are important. A few months before his termination, when Donovan was 61 years old, his supervisor asked him about rumors that he was planning to retire. When Donovan vehemently denied the rumors, the supervisor expressed relief that Donovan would continue working.

Previously, another supervisor had commented on other employees’ ages in Donovan’s presence. The supervisor first conveyed his satisfaction that an accountant left and was replaced by “someone younger.” Later, the supervisor mentioned that a researcher was too old for his research to be valid.

Despite these comments, the federal court for the District of Connecticut concluded that they weren’t enough to show age discrimination. In doing so, the court provided some insight into how an employer can avoid an age discrimination claim. (Readers, get out your notepads.)

First, the court highlighted the thoroughness of the investigation into Donovan’s managerial problems. The investigators were theoretically impartial, being from another Yale unit, and they interviewed and observed nearly every employee in the department. This convinced the court that these problems weren’t just a pretext.

That brings us to Takeaway #1: Thoroughly investigate and document performance issues, such as Donovan’s managerial problems, as soon as they arise. Yale’s comprehensive investigation was its saving grace in this case.

On a related note, here’s Takeaway #1a: An employer probably has more pressure to conduct a solid investigation if there was a recent incident involving an employee’s protected status. To try to show a pretext, Donovan emphasized that his termination came mere months after the retirement conversation. While the court here wasn’t convinced, another court viewing somewhat different facts might be. Again, consistent and accurate documentation of issues should avoid this dilemma.

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The New New Minimum Wage in Connecticut

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

In short order, Connecticut has just jumped to the front of the line when it comes to increasing the minimum wage.

On Wednesday, March 26th, the General Assembly passed an increase to the minimum wage in Connecticut. This will amend the previous increases that had been negotiated last year and raises the minimum wage past the $10 mark.

Senate Bill 32 can be downloaded here.  Governor Malloy is expected to sign the bill into law Thursday evening.

There are three major changes brought about by this new law.

  • The New Minimum Wage.  The current minimum wage is $8.70 per hour; that was scheduled to go up to $9.00 on January 1, 2015.  Under the new law, there will instead be a serious of additional increases: (1) to $9.15 on January 1, 2015, (2) to $9.60 on January 1, 2016, and (3) to $10.10 on January 1, 2017.
  • The New Tip Credit.  As noted in the bill summary, the bill does not change the “tip credit” allowed by law. But it will now will automatically increase “the employer’s share of minimum wages for (1) hotel and wait staff from $5.69 to $5.78 in 2015, $6.07 in 2016, and $6.38 in 2017 and (2) bartenders from $7.34 to $7.46 in 2015, $7.82 in 2016, and $8.23 in 2017.”
  • Apprentice Rate.  The bill does not change the existing rule that allows employers to pay learners, beginners, and people younger than age 18 at a rate equal to 85% of the minimum wage for their first 200 hours of employment. The minimum wage increase scheduled under current law would have increased this learner’s wage from its current $7.39 to $7.65 on January 1, 2015. The bill instead effectively increases the learner’s wage to $7.78 in 2015, $8.16 in 2016, and $8.59 in 2017.

 

Another March Madness: What Yesterday’s Decision Really Means For Student Athletes

Posted in Class Actions, Highlight, Labor Law & NRLB, Litigation

Late yesterday, Twitter lit up with news that collegiate student athletes are really “employees”.  But beyond the headline, my colleague Jarad Lucan explains what REALLY happened in plain English. Suffice to say, even though it’s March Madness, you might not want to bet on that result just yet.

Many of you may remember a few weeks ago when I joyously reported on an advice memorandum issued by the NLRB’s Office of the General Counsel that was favorable to an employer.

Well, that was February. Welcome to March Madness.

 In a decision that calls for one of Dick Vitale’s signature “Are you serious?!” sound bites, the NLRB’s Regional Director in Chicago determined that the grant-in-aid scholarship football players at Northwestern University are employees of the University.

According to the Regional Director, these football players generate tens of millions of dollars per year for the University (approximately $235 million in nine year period between 2003 and 2012). In return, the receive “compensation” from the University in the form of scholarships.

That the scholarships are a transfer of economic value is evident from the fact that the Employer pays for players’ tuition, fees, room, board, and books for up to five years. Indeed the monetary value of these scholarships totals as much as $76,000 per calendar year and results in each player receiving total compensation in excess of one quarter of a million dollars throughout the four or five years they perform football duties for the Employer.

Now, I know what some of you are thinking, well that’s great for those football players, but they are getting an education for free in return for the scholarship. After all they are “student-athletes,” right?

Not according to the Regional Director.

Based on the evidence presented, the Regional Director stated that the grant-in-aid scholarship football players are not “primarily students.”

Can you imagine that? In reaching that conclusion, the Regional Director distinguished the football players from graduate students who according to the NLRB’s 2004 Brown University case were not employees of the University.

Also important to the Regional Director’s decision was the fact that the grant-in-aid football players are subject to the control of the University. The players signed “tender” agreements upon acceptance of a scholarship that sets the duration and conditions under which their “compensation” will be provided to them. They are subjected to rigorous practice, travel and competition schedules and are limited (by NCAA and University rules) in their ability to make their own living arrangements, apply for outside employment, drive personal vehicles, travel off campus, post items on the internet, or speak to the media.

In that regard, the Regional Director determined that walk-on players were not employees because they are not tied to the same restrictions as scholarship players. They are students who simply love football.

It is too early to determine what impact of this decision will have on employers in the future. Arguably, the case was decided based on the specific set of facts presented (i.e., a University football program that generates millions of dollars and places highly restrictive conditions on its players). Also, it may not have much applicability outside of the private university and college setting (other than being one of the most fascinating decisions rendered in a long time).

But perhaps more importantly, this is certainly not going to be the last word on this issue. The University has until April 9, 2014 to seek review of this decision with the NLRB in Washington, D.C.  And Northwestern still has various other options (i.e., stop giving scholarships as the Ivy League schools did, agree they are employees and bargain hard, possible lockout).

And even if the University does seek review, the grant-in-aid scholarship football players will still have an opportunity to vote on whether they would like to be represented by the College Athletes Players Associations (CAPA) for purposes of dealing with the University concerning grievance, labor disputes, wages, rates of pay, hours of employment, and conditions of work.

So, despite the stories you read yesterday, the Regional Director’s decision is not the last word on this.  It’s just the opening (or, as the NCAA would say, the “first”) round.

Spiderweb Delivery? Is One Year Enough for a Leave of Absence for a Disabled Employee?

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

You have a disabled employee out of leave for 180 days.  Your policy says that employees may be terminated after the end of 180 days. So, on day 181, can you fire the employee?

Today, my colleague Christopher Parkin tackles that difficult question in a recent ADA case brought by the EEOC against a very big employer. 

The increasingly complex web of the ADA has snagged another unwitting victim.

A few weeks ago, in a case brought against shipping giant UPS by the EEOC, a federal judge in Illinois issued a clear warning to employers that use leave policies that define strictly the length of time for a permissible leave.

The EEOC filed a lawsuit claiming that that a UPS policy that calls for employees to be “administratively separated” (read: fired) after twelve months of leave violated the ADA.

In one application of the policy, UPS fired an employee shortly after she returned from a one year leave of absence to treat multiple sclerosis. Shortly after her return, she requested an additional two weeks of leave because of medication side effects. UPS simply fired her for exceeding the twelve month leave limit.

The EEOC claimed that the UPS policy violated the ADA because it served to screen out disabled employees unable to return to work after twelve months’ leave without regard to whether further accommodations would allow them to work.

UPS asked the court to dismiss the case, arguing that employees who require excessive leave are not qualified for their positions because attendance is a necessary part of the job. If anything, UPS argued, the policy is exceedingly generous and neither the ADA nor any other law should compel the company to keep employees on leave beyond a year.

The judge didn’t see it so clearly and allowed the case to proceed.  In a bare bones ruling, she determined that because the policy can be applied to condition a return to work on the employee’s medical health and ability to work without further accommodation or leave, it may be discriminatory and violative of the ADA’s mandate that employers take steps to accommodate disabled employees whenever possible.

The ruling isn’t the last word on the issue and the EEOC must still prove its case but the court’s reasoning should give any employer with a firm leave policy pause.

The court’s reasoning underscores a critical theme of ADA cases: employers are expected to treat each employee individually and not impose blanket policies that have the potential to ensnare disabled employees.

What troubled the EEOC, and the court, is that the UPS policy applies universally and acts as a bar to qualified individuals returning to or maintaining employment. Such medical requirements are squarely within the range of conduct prohibited by the ADA, at least according to the EEOC and this court.

Will Connecticut courts follow in lock step? That remains to be seen over time.

To minimize the risk of ADA liability, employers should focus on what they can do to get employees back on the job not what they can do to sever the relationship. A genuine effort to reasonably accommodate each individual’s needs goes a long way towards limiting potential liability.

Of course, each case is different and, as always, employers ought to consult with their typical counsel to see if a particular situation requires some further analysis.

 

The UPS case is far from over but this ruling is sure to embolden the EEOC to pursue similar claims wherever it can. Given the potential for costly litigation, it’s worth reviewing handbooks and policy documents to be sure policies are written in such a way that leave policies do not unintentionally limit opportunities for qualified disabled employees.