Sometimes, government is thought of as the enforcer of rules.  But sometimes, the government is also in the business of helping businesses too.

The latest example of this is an Employer Resource Guide put out a few weeks ago by the Connecticut Department of Labor. You can download it directly here.  

According to its introduction:

This employer resource guide was created to educate all employers on the wide array of programs, services, and incentives available in Connecticut. This guide will be  periodically updated, and automatically emailed to all registered employers in CTHires, ( www.cthires.com), the Department of Labor’s no cost online job bank. In addition, a link to the resource guide will be available on the Department of Labor’s website, http://www.ctdol.state.ct.us/employerresourceguide.pdf.

For some larger employers, much of the information contained here may not be news. But for others, there are programs that the government runs that may be helpful. For example, if you are struggling financially and may need to do layoffs, the Department’s Rapid Response Team can provide some assistance. There are also shared work programs, which I’ve talked about before, which allow employers to maintain some staff on reduced hours, while affording the employees the opportunity to collect unemployment compensation too.

Overall, the guide provides some very useful materials on programs that sometimes fall below the radar.  If you haven’t taken a look recently at the Department of Labor’s offerings, it’s well worth a few minutes of your time to see if there is a program that matches your company’s needs.

A few weeks back, I did a post about having our personal data hacked.

What if the hacker was you?

Yes you — the attorney, the employer, or someone else who has confidential information.

I was recently reviewing the online court file of an employment case in federal court for a recent blog post.  It’s available for anyone to see.

(You might be asking, Why? Because it’s always interesting to see other filings and the way cases turn out. Ok, it’s always interesting TO ME at least….).

In looking over some of the court-filed documents, I came across the college transcript of the employee/plaintiff.  It was filed by the attorney as evidence in the case.

Some newer transcripts don’t have some confidential information. But this college transcript was old school: It still contained the Social Security number of the employee AND his date of birth.

And just like that, the attorney has opened up the employee to hacking.

In case you are wondering, yes, there are rules in federal court about this. For example, Local Rule 5(e)8 requires that a party filing a document that will become publicly available shall redact Social Security numbers, financial account numbers, dates of birth and names of minor children.

Attorneys who represent employers should beware that the same rule applies to filings you submit as well.

Beyond court rules, employers have an independent legal obligations to protect Social Security numbers of its employees as well.

And so, in this age of data, it’s up to us all — attorneys and employers — to take the responsibility of protecting data seriously.

You don’t want to hack your own client or employee.

“Joe, in response to all this NFL stuff, we want you to display U.S. flags at your workstation.”

“No.”

“Well, then you’re fired.”

Don’t think that can happen? Then you haven’t heard about the Cotto v. United Technologies Corp. case — a long-forgotten Connecticut Supreme Court case from 20 years ago that has particular meaning in today’s environment where standing for the national anthem has become front page news.

Is this patriotic too?

The basic facts are as I described them above:

  • The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years.
  • In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations.
  • The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag.
  • After a suspension, he was fired by his employer on or about May 16, 1992.

The Supreme Court had two things to say on this. First, the Court held that the employee could raise a claim under a state law that an employee’s free speech claims were being violated. Again, i talked more about this law in a post last month.

But that’s only part of the decision. In the other half of the decision, the Court was asked to decide whether the employee actually had a free speech claim.

The Court reminds us first that not everything is a federal or even state case.  “As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question.”

And then the court reminds us, in language that has direct implications for the discussion we’ve been having about standing for the national anthem, that the Complaint was missing a few essential aspects to rise to that level.

Significantly, the plaintiff has not alleged that:  (1) he was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto;  (2) he was directed to affix the flag to his person or to his private property;  or (3) he was indirectly directed to associate himself with the symbolism of the flag because the location of his workstation was such that members of the public, or his fellow employees, reasonably could have attributed that symbolism to him personally.

Instead, the claim rested on the requirement for the Plaintiff to affix the flag to the workstation. The Court saw no meaningful difference to that act, versus an employer who did it for the employee — which would not violate the First Amendment.

A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs.   Because a flag was to be affixed to  each workstation, and because the plaintiff’s workstation was not exposed to public scrutiny, he was not required to assume the risk that others might attribute to him any political beliefs about the flag that he did not share.   In other words, the direction to the plaintiff, as a matter of law, was not a “coercion of belief.”

Hmmm.

Now, if you’ve been paying attention, you’ve been seeing press reports that the NFL and its teams may require its players to stand at the national anthem.  Let’s suppose that happened in Connecticut too and that a paid employee was fired for refusing.

Given the language in Cotto, could the employee allege that he “was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto” — a fact that was missing in the Cotto case?

That obviously is an unanswered question, but it just goes to show that you can learn a lot through your history.

An applicant for a job posting in education lists his most recent relevant experience as occurring in 1973.  You don’t bring him in for an interview.

Is it gender discrimination?

Beyond that, if he says that he is the most qualified candidate — do you have to hire him?

And if you don’t hire the most qualified person, is that evidence of gender discrimination?

No to all three, says one recent federal court decision.

The decision by the court was quietly released late last month and might otherwise go unnoticed, but it underscores an important point for employers.

In the matter, the Plaintiff argued that the employer discriminated against him because of his gender by denying him the opportunity for a job interview.   The employer chose four female and two male candidates for interviews.

The Plaintiff argued that he was more qualified than the female candidates who were interviewed and ultimately hired by the employer.

The court said, however, that the mere fact that the employer hired people of a different gender does not suggest that it failed to hire the Plaintiff “on account of his gender”.

Indeed, the employer had various reasons as to why the Plaintiff was not interviewed:

  • he hadn’t filled out the entire job application and didn’t answer whether he had any criminal offenses in the last ten years.
  • his resume was “perceived to be outdated, as the most recent job listing in education was from 1973.”

So, you might not think much of the case.

But the court’s decision is notable because it contains language that will be helpful in other cases for employers.  Says the court: “[T]here is no legal requirement that the most qualified candidate be hired.”

In doing so, the quote revisits a quote from an 1980 decision.

Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory. When a decision to hire, promote, or grant tenure to one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn. Indeed, to infer discrimination from a comparison among candidates is to risk a serious infringement of first amendment values. A university’s prerogative to determine for itself on academic grounds who may teach is an important part of our long tradition of academic freedom.

All that being said, employers should have SOME rational basis for their decisions. Even if the candidate is “more qualified”, the employer may determine that there are other reasons why the employee should not be hired; maybe the employee’s qualifications cannot overcome a bad job interview, etc.

Keeping bias out of your decision-making process is central to employers.  But it’s nice to know that employers don’t have to be perfect in its determinations of qualifications either.

Shorter is better.

Why? The slang TL;DR comes to mind.

But it turns out there’s an educational component too — at least according to the results of a new study that examined workplace contracts.

In the study, published in the Journal of Personality & Social Psychology and recapped by Insights by Stanford Business School, “the researchers found that workers whose contracts contained more general language spent more time on their tasks, generated more original ideas, and were more likely to cooperate with others. They were also more likely to return for future work with the same employer, underscoring the durable and long-lasting nature of the effect.”

In other words, contracts that contained pages upon pages of specific do’s and don’t for workers, ended up harming the employment relationship.

Instead, researchers found that “the more general contracts increased people’s sense of autonomy over their work.”

This isn’t the first time I’ve talked about the need to write employment contracts in plain English — something that is at the core of a book by Ken Adams whose work has appeared on this blog before.

It turns out that even “minimal changes”, in the words of one of the study’s authors, can have “important consequences.  Especially when it comes to behaviors that are notoriously difficult to include in contracts, such as increasing effort, task persistence, and instilling a stronger sense of autonomy, which leads to higher levels of intrinsic motivation. Reducing the specificity of contractual language can also increase creativity and cooperation.”

From a legal perspective, I’ll blame some lawyers for introducing some language in a contract that can be overkill at times.

(Don’t think lawyers are at least partly to blame for long contracts? Next time you see a “This space is intentionally blank” line in a contract, rest assured that it probably came from a lawyer.)

A few years ago, our practice group went through a standard separation agreement template to remove the “Whereas” clauses and the “Definitions”  — all in an attempt to simplify the agreement. The process took months.  Simplification does not necessarily mean increasing risk. It just takes more time.

Just ask Mark Twain (actually don’t — it’s a misattributed quote.)

Of course, you probably don’t need me to tell you that shorter is better. I just read the abstract and not the entire article.

After all: TL;DR.

Back in the 1990s, employers still had the Anita Hill-Clarence Thomas hearings and the tawdry sexual harassment allegations relatively fresh on their minds. Employment lawyers will tell you that they started to see a bump up in claims in the early to mid 1990s as the issues of workplace harassment raised to the surface.

I raised it in one of my posts 10 years ago this very week.

But even before yesterday’s news that major movie mogul Harvey Weinstein has been accused of sexual harassment of many women over many years, I’d been thinking that we’re seeing another wave.

For employers, this new era should be even more concerning.

Why?

Because back in the 1980s and early 1990s, employers could at least say that “well, we didn’t know we needed to train” or “well, we didn’t know we needed to do an investigation.”  It may not have been plausible (or even good business), but at least it was something.

Now with laws in many states mandating sexual harassment prevention training and with U.S. Supreme Court precedent nearly mandating that employers investigate harassment claims and take prompt remedial action, there’s just no excuse.

And yet, over the last 12-24 months, we’ve seen a series of very high-profile people be brought down over sex harassment cases.

The implications for this are huge — and not for the reasons you may think.

It’ll take a while for statistics to back this up, but my educated guess is that settlements of sex harassment claims, and employee verdicts of sex harassment claims are up and going to continue going up.

As a result, employers are likely to pay more for settlements in the short term to avoid headlines of the type we are seeing. And juries are more likely to punish employers that they think should know better.

The practical implications of this for employers are several, but I’ll highlight three, some of which I’ve said before.

  1. It is absolutely imperative for employers to investigate sex harassment claims. But more than that, employers must take steps to ensure that the harassment STOPS.  Paying off one case, only to have the harasser move on to the next victim just is a recipe for disaster.
  2. When a lawsuit does arise, make sure you are fairly evaluating the case. Even if you think you have a defense, there may be more value to settling the case early on than fighting it and losing big.  Not every case is a home run, but not every case is an outright winner for the employer either.
  3. Train. Train. Train.  And when you’re done training, encourage people to bring issues to your attention.  Sweeping claims under the rug will only hurt the employer in the long run.

A new era of sex harassment claims is upon us.  Employers that allow any such harassment to go on risks headlines AND big payouts.  It’s a place employers should strive really hard to avoid.

The Dialogue – an occasional discussion between myself and a prominent employee-side attorney, Nina Pirrotti returns today after a late summer hiatus. Today’s chat focuses on employee separations and severance agreements.  Share your own tips or observations in the comments below. As always, my thanks to Nina for sharing her insights here.

Dan: Hi Nina! How was your summer? Mine was fine except I can’t stop hearing news about President Trump.

It seems to drown out everything else going on and I think I have a headache from it all. But let’s give it a try, shall we?

I know I’m often confronted with having to fashion separation and settlement agreements for employers.   

What do you find are the items in agreements that you think both sides ought to be paying attention to?

Nina: Drowning in Trump-related noise.  The image is horrifying!  My husband and I were chatting the other day about an old Saturday night live weekend update skit.  As we recall it (it was decades ago), the news media was focused on other events when all of a sudden the character playing Kim Jong Un pops into the screen, holds both arms out and complains:  “What do I have to do to get attention around here?!” 

In the age of Trump that glib remark becomes bone-chilling. 

The art of crafting a fair and balanced settlement agreement isn’t the most riveting of topics in our world but it is among the most important.  

One key strategy I use in evaluating them is to put myself in the position of the employer to ensure I understand company’s (reasonable) priorities. 

Clearly the company seeks to contain the dispute itself, keep the fact that it is settling it confidential, and do everything possible to obtain closure.    If the settlement terms go beyond meeting those priorities, a red flag goes up for me and I scrutinize those terms closely.  

In light of the company’s priorities in containing the dispute and keeping it confidential, I expect to see a confidentiality provision, limiting the disclosure of the settlement agreement to those on a need to know basis (typically immediate family members, financial/tax advisor and lawyer). 

I am also not surprised by a non-disparagement provision which prevents the employee from spreading ill will about the former employer. 

Since I generally advise my client that it rarely reflects well on an employee to speak negatively about his/her former employer (no matter how justified the employee might be in doing so) I usually do not oppose such provisions. 

I will often, of course, make them mutual so that key employees at the company also commit to not disparaging my client. 

In light of the company’s priority in seeking closure, I do not have a one-size fits all response to no re-hire provision.  I understand the company’s concern that should the employee who has settled claims for discrimination apply for a position down the road and the company (for legitimate reasons) declines to hire that employee, it nonetheless remains exposed to a potential retaliation lawsuit by the employee. 

No re-rehire provisions in certain situations can be appropriate but only if they are narrowly tailored to the company itself.  Alarm bells go off for me, therefore, if the employer is large and has numerous affiliates and subsidiaries and the employer insists on including them within the scope of the no-rehire provision. 

In such cases, no-rehire provisions can be tantamount to mini-restrictive covenants and, where they hamper my client’s ability to find comparable work, I will reject them as untenable. 

Speaking of restrictive covenant  provisions, it irks me to no end when an employer tries to slip one into a settlement agreement where the employer was not bound by one during the course of his/her employment!   Such provisions are generally a non-starter for me, absent considerable additional compensation for them. 

Finally, as we discussed in an interview you conducted with me many years ago, I do not abide by liquidated damages provisions. 

If a court determines that my client has breached the agreement, even if that breach is deemed a material one, the employer should still bear the burden of proving that it has been damaged and, to a reasonable degree of certainty, the monetary amount of that damage. 

What are your thoughts, Dan?   Have I articulated the company’s main priorities well?  Are there others I am missing that I should consider the next go-round?   Do tell and I promise to listen with an open mind!

Dan: Well, one day we could talk about Trump-related employment litigation, if you’d like to really talk more about Trump.

You’ve hit on some of the highlights from an employer perspective. When crafting one for an employer, I will let you in on a “secret” – we have a template.

I know — probably not a big surprise to you since our firms have negotiated enough of them.

As a result, I find that agreements at this point are sometimes more of finessing around the edges, rather than major re-writes.

The problem I see is that there are some employers who are using a form separation agreement handed down to them years ago, without understanding what’s in them.

First off, the agreements — regardless of whether you’re trying to comply with federal law or not — should really be written in “plain English”.

Get rid of the “Whereas” clauses.

Use bold language or simply to understand provisions.

And try not to have it be 15 pages.

Second, the agreements should contain: a) a release of all state and federal claims (and local ones if you’re in places like New York City); b) confidentiality (and if it needs to be mutual, so be it); c) non-disparagement (same).  There’s more of course, but start with the basics.

Third, employers should think about provisions that may actually be helpful: a) What are you going to do about references? Is it “name, rank, serial number” or something more? b) Do you want an arbitration provision for any breach of the separation agreement?

Neither is typically a high priority but taking care of some of these details are important.

A few employers are trying to get the “best” deal and negotiate strongly but I find most employers just want to move on; the termination was probably not something that they wanted to do anyways and putting some distance between the employee and the company is probably a good thing for the business ultimately.

Since you’re not finding separation agreements all that exciting, what about how employers handle the termination or termination meeting itself? I’m sure you’ve heard some stories from clients.

Nina: Wow – you hit the jackpot with that question!   

I was once asked at an ABA conference at which I spoke what was one step management lawyers could take to maximize the chances that a departing employee won’t seek out the counsel of someone like yours truly. 

My answer?  Treat them like human beings when you terminate them.   

Don’t do what one Fortune 500 company did to one of my clients which was to call her as she lay in a hospital bed with her infant daughter who had been born earlier that day and inform her that she need not return to work because her job had been eliminated.

Time and again prospective clients had told me that they would have gone quietly into the good night had their employers treated them with a modicum of respect during the termination process. 

I recently settled a case involving a woman in her mid-60s who had worked for the same company for 20 years and proven time and again that she would do ANYTHING for that company and, indeed, had worn a number of hats over the years, shedding one and donning another as the company’s needs shifted.  In her 20th year, a new CEO was hired and you can guess what happened next.  He terminated her and replaced her with a brand new hire, decades younger, who my client had helped train.   

Doesn’t sound kosher right, but that is not the worst part! 

It was the WAY the company terminated her that prompted this lovely, meek, non-confrontational woman to summon up the courage to pick up the phone and call me. 

Her termination consisted of a three minute meeting in which the CEO informed her she was no longer needed and handed her a severance agreement that provided her with two measly weeks’ pay. 

She was literally sobbing as she signed it then and there after which she was immediately escorted out the door.   She contacted me weeks after she signed her agreement.  Too bad, so sad, right?  Wrong. 

The employer neglected to include in her severance agreement language required by the Older Worker Benefits Protection Act (OWBPA), including a 21-day period to consider the agreement and a seven-day revocation period.  She was able to keep her paltry two weeks and I got her many months more on top of that!   

There are so many morals to that story, the least of which is that severance agreements for employees over 40 should comply with the OWBPA.   Employers should be expressing their gratitude to terminated employees who have proven their devotion to the company by providing them with severance that sends the message that they valued that devotion.  

There other ways to go that extra mile to treat such employees with dignity.   Think about how you would want to be treated if you were undergoing one of the worst days of your life and act accordingly.  Thank them for their service, tell them how sorry you are, assure them that you will do everything in your power to facilitate their transition, allow them to say goodbye to their colleagues, hell, even offer to throw them a farewell gathering.  The possibilities are endless.  Sometimes we lawyers get in our own way. 

Dan, I know none of the clients who have had the benefit of your wisdom prior to terminating an employee would succumb to such pitfalls.  But what do you do when you have to clean up after the fact?

Dan: You’ve raised a good question, but I want to address something you said first. 

You said: “Employers should be expressing their gratitude to terminated employees who have proven their devotion to the company by providing them with severance that sends the message that they valued that devotion.”  

It’s that phrase that I think gets to the heart of the issues with severance in 2017. 

When I first started practicing (a few years ago, ahem), there were still many companies that offered severance without ANY release because that just seemed “the right thing to do.”

After all, there was still a bit of an unspoken contract that employers would take care of employees.

Think back to the “Mother Aetna” description of the insurance company.  But as the recessions took their toll and employee mobility took root, that social contract has definitely been frayed over the years.  In part too is the rise of employment litigation. 

Now each employer has to worry: Is THIS going to be the employment termination that leads to a lawsuit?

 I can’t even remember the last time that an employer offered severance without also demanding the employee sign a release. 

In other words, the idea of severance as “gratitude” and “thanks”, has now been replaced with much more of a quid pro quo. 

For employers, the thought ii: If we give you this severance, please don’t sue us. 

And yet for employees, some of them still remember the days when severance was just something companies did without worrying about the lawsuit. And so when the employer demands the release, some employees take offense to it, not realizing that times have changed. 

As a result, I have also seen employers trying to offer less and less; the notion of one week of severance per year of service (with caps) is still strong, but not universal. 

As to being the fixer – yes, sometimes it happens.  The lack of OWBPA provisions is really something that just shouldn’t happen anymore. 

But it’s more that employers go ahead with the termination without thinking about what comes next.  And some employers are moving so fast, that the details such as having two people in the termination meting and having COBRA information available, get lost in the shuffle.

I don’t know of a single employer that has enjoyed firing an employee.  

Even when they catch an employee red-handed, many employers are aware of the consequences that may flow for the employee from a firing. The employee may have a tough time finding a new job, for example. 

But it strikes me that a small subset of terminated employees are LOOKING to bring suit or a payday instead of looking forward to a new time in their life. 

Obviously sometimes past discrimination has to be examined, but what do you think makes employees sue their employers instead of signing severance agreements that are presented to them?

Nina: I think that employer conduct that rises to the level of actionable discrimination and/or retaliation is alive and well, unfortunately. 

The only up side of all of this is that I get to keep my day job, which I love! 

Of course there are those (“small subset” would accurately describe them) who seek to avoid accountability and are looking for a quick pay out of claims. 

Virtually all of those individuals never make it to our front door. 

I say “virtually” because we are human, after all, and one or two may sneak through the cracks in that door. 

But then we have competent lawyers like you for whom we have great respect who (very politely) convince us – – with facts – – that we are being misled. 

That is why I believe that the only situations in which early negotiations are successful are those in which both sides fight their natural inclinations to hold their cards close to their chests and actually share meaningful information from the get go.  

But how to conduct negotiations effectively is a topic worthy of its own separate dialogue, no?

Dan: I think so. Now, I have to save whatever energy I have left to stay up late to watch playoff baseball with the Yankees. Hopefully, it’s a long October filled with lots of late nights and distractions.  Until next time, Nina!  

“Technology is a wonderful thing but it’s scary when it’s weaponized against you.”

The first sign that my wife’s identity and my own were under attack came innocently enough.

It was an e-mail alert that we get from time to time from Comcast, so innocent that I almost ignored it.  But it said our password had been changed.  When we tried to log-in to download e-mail, the system indicated the password was incorrect.

“That’s weird”, we thought.

I mean, we have two factor authentication on it so that if someone DOES try to change the password, shouldn’t they need a code?

So I called Comcast and was assured repeated that our password wasn’t changed and our account was not compromised.

They said it was a phishing exercise and the e-mails were fake too. As for the account access, they said that someone may have just tried to access it but they were unsuccessful.

Comcast easily reset the password for me and since two factor authentication wasn’t invoked, it seemed like something unusual but nothing beyond that.

The second attack happened the same way.  This time, we knew something was most definitely wrong.

The war over our identities was now on, though I didn’t realize at the time how outmatched we were in our weaponry.

We were able to regain control of the account in just a few minutes with resetting the password on my side (two can play that game, so I thought).

And then I placed another call to Comcast for help.

After an hour on the phone and a reset password and security question, I was told again that there’s nothing otherwise suspicious in my account but they’ll keep “looking”.  No other outward sign of hacking.

Still, our credit cards were quiet and we changed some more passwords just in case.  What were they after?

The hacker’s next salvo though had already been launched and was operating secretly.

Later that evening, I received a notice from UPS that night that we had a package coming from Amazon, but, well, let’s just say that we are frequent Prime users and that didn’t raise any suspicions to be getting another one from them.

But by mid-morning the next day, still yet another e-mail arrived. Again, from UPS, but this time saying that the package we were expecting would be held at the Watertown customer care center “at the customer’s request”.

(Why, you might ask, is UPS sending me e-mails? It turns out, I set up an alert with UPS to send me an a separate e-mail account anytime a package for our hours is scheduled for delivery. As it turns out, this last countermeasure helped stem the tide, though I didn’t know it at the time)

Still, when we searched our Amazon account for the package, nothing showed up.  There was a package from over the summer that never turned up and showed it was “out for delivery”. Could that be it? Or was it a gift?

As “luck” happens, I was driving past the Watertown care center by late afternoon and decided to swing by.  A big box awaited.  My curiosity was piqued – What’s In The Box?

I open it up at the UPS facility.

Not one, but TWO high-end MacBook Pros.

Wow.  Was not expecting THAT.  Or perhaps I was.

A call to the local Watertown police was met with a response of a department that has seen one too many of these — “you should just contact your hometown police”.

A call to Amazon revealed that our account had been accessed, an Amazon store card opened up, and the purchase “hidden” as if it were a “gift” to ourselves that we didn’t want spoiled before its arrival.  Amazon set up for the computers to be returned at no charge and the card wiped clean.

At least we could claim victory in stopping the shipment, right?

Well, as we were also told by police later, sometimes hackers just send something to a customer care center and don’t pick it up just to see if the hacked worked.  If it does, then the sky’s the limit on the next go around.

But still, were we done? Had we hacked the hackers by seeing this UPS alert we weren’t suppose to see?

Well, it turns out the hackers had more tricks up their sleeve.

Upon a third call to Comcast, the security representative reviewed our account still further and he found three things:

  1. The hacker set up an “e-mail forwarding” so that a copy of EVERY single e-mail received would also be sent to the hacker.  Yes, even the ones we were sending to each other about the hacker were being read too.
  2. The hacker also set up “selective call forwarding”, an option I didn’t even know existed. Apparently, you can have up to a dozen phone numbers you choose get directly forwarded to another phone number.  As it turns out, the hacker knew the numbers that Amazon and the card verification service would call on and conveniently forwarded those calls directly to his own mobile number on a burner phone.
  3. Looking at phone logs, we could actually see that the hacker had taken a call from Amazon.  A-ha.

All done, right?

Well no. I continued to scour the account on my phone and found yet another devious hack in my “options”. The hacker had set up a series of filters (which didn’t have a title, so they showed up as “”) that forwarded e-mails from Amazon and Amazon’s card carrier directly to the hacker’s e-mail.  Delete, delete, delete.

Since then, police have been contacted. The Amazon card cancelled and account locked for a few days. Package returned. Fraud alerts placed. ID protection re-upped. Passwords being changed. Sleep lost.

And replaced with a sort of paranoia about what else is lurking.

While we can claim victory in preventing the MacBook Pros from falling into criminal hands, at what cost? The damage is already done. We may have foiled the crime, but the identity is compromised and we now need to be vigilant for other account pop-ups. The victory feels empty.

We have to instead hope the hacker will lose interest, knowing that we know about the scam and have alerted police.

This feeling of hopelessness doesn’t have to be that way.

Indeed, the irony of the situation isn’t lost on me. I’m part of my firm’s Privacy and Data Security Team and routinely give others advice with how to protect themselves.

And yet, even with the steps we took, we still couldn’t stop the attack. Here is where government and businesses have a role to play in helping to protect our identities.

For example, everytime I called Comcast to complain, I had to “verify” our info; in doing so, I had to provide the last four of her social security number and our address — the very information we KNEW was already compromised.

We have to do more. Here are five small steps to start:

  1. Congress should hold hearings to hear from security professionals about the best ways stores and utilities can protect customer information.  And then work with businesses to create a common standard.  Our current system is broken.  Health care information is treated as important; our identities need to be treated with similar care.
  2. Businesses that have sensitive customer information should offer real two-factor authentication, not offer work arounds that just open up a loophole. In Comcast’s case, resetting the password allows you to bypass the two factor authentication by answering a simple “security” question.
  3. Password management is broken.  Yes, I can set up some password managers, but using multiple devices and computers makes it difficult to have consistency.  Too many of us need to use similar passwords on websites because there is no one common log-in system. A new type of authentication system might be a start (though I acknowledge it might also then create a target for hacking too — see Equifax).
  4. After a hack, the government ought to mandate easy, free tools that people can use to help clean up their own identities. If we can get a free credit report once a year, can’t the government mandate that credit agencies assist you in cleaning up your identity for free?
  5. The police are woefully understaffed to deal with an international problem.  The only means that an ordinary person can use is their local police, but even they admit that they’re still playing catch up.  More consistent training and better tools for our police can at least start to make a dent on this.

Which gets me back to the first sentence here — which was a comment a friend shared with me upon learning of the hacking.

“Technology is a wonderful thing but it’s scary when it’s weaponized against you.”

Yes, my friend. It definitely is.

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements.

After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers.

Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish.

Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did.

And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement.

When I heard this, I scratched my, well, proverbial head about this one.  Did I miss something?

The short answer is no, I didn’t miss something.  Connecticut law doesn’t say this.  You can see for yourself in Conn. Gen. Stat. 46a-60.

But how did the employee get such advice?

The first answer may be the simplest one: The attorney he spoke with doesn’t routinely practice in the area.  Sometimes, well-meaning lawyers just overstep their knowledge basis.

Another obvious answer is that the employee’s so-called advice was from “Attorney” Google.  Google is really good at finding things that might apply to your situation — not as good yet at telling you whether it actually applies to your situation.

And if you Google a topic like this, you might actually find a state court decision that looks — at first blush — like it might be on point.

State courts often use the following language in their decisions:

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.

What does THAT mean?

Typically for the same types of disparate treatment claims for, say, gender discrimination claims, courts in Connecticut don’t have as much as experience as federal law. So where the law is the SAME, it makes sense to look to federal laws that are similar.

The problem in the age discrimination statute context is that Connecticut law is DIFFERENT than federal law at times. There is no state equivalent. So looking to federal law makes no sense whatsoever.  And sure enough a quick search of Google Scholar reveals NO state law case applying that federal law to a review of separation agreements.

So how ARE separation agreements to be reviewed in Connecticut? In essence, you would most likely look at the agreement under state laws dealing with contracts.  Typically, this is also done through the “common law’ – that is precedent from the courts.  And Connecticut courts haven’t said much about separation agreements.

Employers are sometimes caught in the middle of receiving advice from their counsel (hopefully correct) and what the employee believes is true whether through an attorney or otherwise.  Employers should understand the misinformation that exists out there and, when confronted with these issues, try to explain them to employees.

Otherwise, a seemingly innocuous situation could turn much more stressful when the employee thinks (and worse, is being told) that the employer is violating a non-existent state law.

Today marks an important milestone in the development of the Connecticut Employment Law Blog.  It marks the second major redesign of the blog since it was launched 10 years ago (!) this month in 2007.

Back then, the iPhone was just announced and social media was something that a few college kids played around with.  And some of us used a feature called Google Reader to read RSS feeds.

(Don’t believe me? I even wrote a blog post about how to read blog posts on an RSS feed here!)

And the notion of using blogs or specialized websites to get employment law news was still in its infancy.  I would read “George’s Employment Blawg” — now defunct – and sometimes BNA’s Daily Labor Reports, but there wasn’t much else beyond that.

So much as changed in ten years. It was time to design and structure my blog to meet the 2017 world as it stands now.

First, because smartphones are a massive part of every day life, the blog needed to have a “Responsive Design” to make it easy for people to read on their phones. That’s been done now and the shape of this blog reacts to the platform you are reading it.  I don’t understand all the technicalities of it but it’s pretty cool.  Everything should be easier on the iPhone (or Android).

Second, there are now plenty of outlets that now cover breaking news at a national level.  I love reading things like the “Morning Shift” each day because I can get updated news from people who have the time to spend sourcing it and covering it.   So, the goal of the blog going forward is to do less chasing of headlines, particularly at the national level. Indeed, my firm already does a really good collective job reporting on things in online newsletters and alerts. Look for more of that from my firm later in 2017.

So what else does that mean instead? Hopefully more analysis. More insights from an experienced employment law attorney.

I’ve always tried answering the question for employers of “How Is This Important to Employers in Connecticut”. I will continue to have a laser focus on this question by focusing on issues of importance. This doesn’t mean that I won’t share things I learn from time to time that others should know about (the proposed CTFMLA post from earlier this month is a great example of this). But if you’re looking for who the latest appointee to the NLRB is, you should broaden your horizons.

My schedule is such that I just don’t have the physical hours in the day to do so and, if I’m being completely honest, I don’t have the desire to do so either.  I’ve always said I love employment law because at the end of the day this work is about PEOPLE.  And posts that focus on the practical aspects of the law and what can be meaningful to people who work at companies will always carry the day for me.

Third, because of social media and video, there are now more ways than ever to communicate. Watch for more posts using videos and supplemental posts on LinkedIn and Facebook that go beyond the corners of the blog itself.  Expect a Facebook live session or two as well.  The blog will serve as a hub for these adventures but it won’t be the only place to continue to find information.  And if there’s a next thing out there, I’ll probably try it.

Fourth, you should see an increased emphasis on seeking input from outside sources. I’ve loved doing the Dialogue posts with Nina Pirrotti, a well-known Plaintiff’s attorney. And the interviews I’ve done with others are too irregular but are among the more well-read posts.  I’m hoping to do more of these.

Fifth, at the start of the blog, I tried to write nearly every day.  I would share links to articles and other things like that.  Then a few years ago, due to personal circumstances, posts became to several times a week.  Then as I was working with my firm on a re-launch of this blog and we were deciding its fate, the posts dropped even further. I think there was even a week without a post! Gasp. But that’s been resolved and this blog is alive and well.  So look for a big more regularity now that the new blog is in place.

Oh, and there’s the new design you’re seeing — easier to read, easier to search, easier to share, more visual, etc etc.

There are other changes I’ve got planned too, but I think that’s enough talking about myself and the blog for one post.

To those who have been with me since the start — thank you. To those just discovering this blog, I promise this isn’t like coming into the middle of Game of Thrones.  You’ll do just fine jumping in now.  We’ve got a lot of employment law left to discuss.

Day One of the Connecticut Employment Law Blog is ready to go.