Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Deep Dive Into CHRO Case Statistics Show Increases in “Harassment” Claims

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

zombieAs I did last year, after I posted on the general statistics of the CHRO to see if we could glean any trends, I took a deeper dive into what the statistics this year show.  And there were definitely a few surprises.

Obviously, at the risk of repeating yesterday’s post, FY 2015-2016 was a very big year for employment claims.

But because less employees are being fired or laid off (unemployment in Connecticut is at moderately low levels and the newest national figures this morning show just a 4.6 percent unemployment rate) than in a recession, what gives?

Well, if you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — there was a modest increase in those claims to 1216 in FY 2016, up from 1174 in FY 2015.  But still, discharge claims are down from their historical peaks in 2003, when there were 1385 such claims.

But the bigger increase continues to be in the “terms and conditions” area.

That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to things like hiring, promotions and pay.

It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!  That’s a 35 percent increase in just the last two years.

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.  

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Retaliation claims are also up again — an increase from 753 to 776. Though, it should be noted, that rise is a bit slower than the past few years.

What’s the takeaway?

As I noted last year, you may be looking for claims in the wrong spot.  Dismissal claims are up modestly but “harassment” and “terms and conditions” claims continue to see the biggest increases.

Thus, managing your current employees and getting legal counsel involved to help advise you, may be more helpful to keeping such claims to a minimum than just talking with counsel exclusively about terminations.

Regardless, employers should continue to be mindful that the trend of increased discrimination claims in Connecticut shows no signs of slowing down.

 

New Statistics From CHRO Show Continued Rise in Discrimination Complaints

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight

numbersAt this week’s CHRO information session, I was able to review the new statistics released by the CHRO this fall regarding case filings and dismissals.

They’ve now been posted live on the CHRO’s website here.

It’s something I’ve covered each year and I’m always fascinated by what these statistics show — and don’t show.

What’s the big takeaway this year?

The trend of increasing numbers of discrimination complaints being filed that we have seen in Connecticut since 2012 (when just 1838 complaints were filed) is showing no signs of abating.

Indeed, in the fiscal year ending June 30, 2016, 2616 complaints were filed, up from 2482 the year before.  Thus from FY 2012 to FY 2016, that’s a huge 42 percent increase in the number of claims filed.

Now, not all complaints with the CHRO are employment-related.

But as with prior years, that number has been going up as well.

For FY 2016, there were 2160 such complaints filed, up from 2017 last year, and up from 1559 four years ago.  Again, that’s a 39 percent increase in employment-related claims filed over the last four years!

I’ve noted this in prior years but these increases are head-scratchers.  Normally, in an improving economy, claims go down.  While the Connecticut economy hasn’t been growing a lot, it is still somewhat stable.  

Moreover, such increases are counter to the national trends which have seen the numbers of claims filed with the EEOC decrease from their peaks in 2010, 2011 and 2012.    (Though I should note that in FY 2015, the EEOC did see a slight increase — but the numbers are still down 10 percent from their peaks early this decade.)

I speculated at this week’s informational session that it could be that more claims are being filed because it’s easier than ever to pass the Case Assessment Review stage and try to get something at a mediation.  Those at the CHRO challenged that argument but no one at the meeting had a good idea of what could be causing the rise.

Regardless, employers who have been sensing that more complaints than ever are being filed aren’t far off the mark.

I’ll take a deeper dive into the statistics in tomorrow’s post.

CHRO Acknowledges Faults with Case Assessment Review Process But A Fix May Be Hard

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

chro99Yesterday, I had the opportunity to sit on a panel discussion sponsored by the Commission on Human Rights and Opportunities. Charles Krich, a Principal Attorney, also spoke and it was moderated by Deputy Director Cheryl Sharp.

The purpose of the discussion, before dozens of practitioners in the state, was to look at the state of affairs at the CHRO.  More specifically, though, we spent a good deal of time addressing the Case Assessment Review and Early Legal Intervention processes.

As I noted at the presentation itself, the CHRO is to be commended to having such open sessions and being responsive to suggestions and criticisms offered by me and others.

There were several items of note from the meeting itself:

  • The CHRO’s resources continue to be severely tested. Krich mentioned afterwards that the staffing levels are down to just 66 people, across all the offices.  That’s down nearly 50 percent from years ago.  Positions are not being filled when people retire.  Presently, two Regional Manager positions are being filled on an interim basis by Krich and Sharp, which even they acknowledged is less than ideal.
  • That said, the CHRO is still keeping its backlog of cases a historically low levels, so the CHRO is doing better at doing more with less.
  • Nevertheless, Krich noted that they are looking at Case Assessment Review process because it is not working as intended. Previously, too many cases were knocked out at Merit Assessment Review, Krich said; now the pendulum has swung in the opposite direction.  A fix, though, isn’t easy.
  • One of the problems, Krich noted, is that those who are required to do the Case Assessment Review are not equipped to apply the standards evenly.  As a result, it is easier to just send the cases through to mediation and investigation, than to knock them out.
  • Krich himself has now started to review the Case Assessment Reviews in the Bridgeport region the last two months and believes that more cases are not passing CAR as a result.  He is able to apply some consistency to the approach there.
  • Krich said that employers should consider submitting more information in the answer process itself which he believes can be helpful in getting more cases dismissed. I pointed out that employers have resisted that of late because, it seems no matter how much information is submitted, the cases still get retained for investigation.
  • One “safety valve” that Krich believes should be used by parties more, however, is the Early Legal Intervention.  That allows the legal department to review complaints (typically after a mediation) and figure out the best course of action for a complaint.
  • I had asked what the statistics, though, were on Early Legal Intervention and I was surprised by the results. Krich indicated that over the last three months (since September 1, 2016), there were 69 cases that had gone through that.  Of that, 3 were sent directly to public hearing and 31 cases were returned for investigation. But of the remainder, 20 were given a release of jurisdiction and 15 more were tagged with a “no reasonable cause” finding.  That allows the CHRO to focus its resources on less cases.
  • Thus, for employers and the attorneys who represent them, it may be worth exploring Early Legal Intervention more.  The risk of the case going directly to public hearing remains low.

During the discussion, I also brought up the CHRO’s ineffective handling of complaints that are brought on the same facts, but against different respondents — such as against the employer (for discrimination) and a supervisor (for aiding and abetting discrimination).  Currently, those cases are each processed separately and each office handles such complaints differently. In response to additional audience support for review of this, Deputy Director Sharp indicated she would review the process further.  It was a good example of what can come out meetings like this.

There was more to the two-hour presentation and discussion than can be wrapped up in a blog post, but suffice to say that it was a productive meeting.  Hopefully, more meetings like this will be scheduled in 2017 — perhaps in another location or two throughout the state so those in Fairfield County might have the benefit of attending the next ones.

CHRO Informational Session for Attorneys Being Held Today

Posted in CHRO & EEOC, Highlight, Laws and Regulations

ct flagIf you don’t have plans this afternoon, I recommend joining me over at a panel discussion at the Connecticut Commission on Human Rights and Opportunities headquarters in downtown Hartford.

There, the CHRO will be holding an informational session for attorneys to discuss its practices and procedures. As described by the CHRO:

The Commission on Human Rights and Opportunities (CHRO) will be holding a training and informational session at 2:00 pm on November 29, 2016 for firms and attorneys who regularly appear before us. You and anyone else in your firm are invited to attend. The session is free of charge. The goal of the session will be to better explain the Commission’s complaint process so that attorneys for both complainants and respondents can better represent their clients.

The event will last two hours and will give an overview of the CHRO’s complaint process with a particular focus on Case Assessment Review, Early Legal Intervention, and investigations. Training exercises for each process will be presented to explain how the Commission comes to its decisions. There will also be an opportunity to provide feedback on your experience practicing before the Commission which will be used to help improve our processing.

If you would like to attend, please RSVP to Spencer.Hill@ct.gov. Please include the names, email addresses, and phone numbers for any individuals who will be attending.

I’m thankful to the CHRO for an invitation to speak on the panel at the event to share management lawyers’ perspectives on the CHRO.   I applaud the CHRO for its major outreach to stakeholders in the CHRO process.  Through discussions like these and others, the CHRO has shown itself to be responsive to constructive criticism and open to change. Moreover, the CHRO has allowed more transparency in the process as well.  It’s also been active on social media, with a blog and Facebook posts.  All good things.

That said, it should come as no surprise to attendees that I expect to be critical of the CHRO’s Case Assessment Review process which seemingly keeps every case now for investigation and mediation. This escalates the costs for employers.  Even the CHRO investigators that we’ve dealt with seem flummoxed by the process.  The intentions of the CAR process were notable, but it still needs tweaking.

If you have an interest in the CHRO process, I recommend this program later today.  

If You Do Any Hiring, New I-9 Forms Must be Used Effective January 2017

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

So did everyone enjoy Thanksgiving? I’m still recovering from my vacation so in the meantime, my colleagues, Brenda Eckert and Ashley Mendoza, return today with a post about updated I-9 forms that all employers MUST start using in January 2017.  If you do any hiring, this post ought to be front and center to fulfill your obligations. 

eckertashleymendoza1On November 14, 2016, United States Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9, Employment Eligibility Verification (“Form I-9”).  This isn’t the first time it has done so but a new set of revisions means more changes for employers.

Established by the Immigration Reform and Control Act (“IRCA”), Form I-9 is used to verify the identity and employment authorization of all individuals, including U.S. citizens, hired for employment in the United States. All U.S. employers, regardless of size, must ensure proper completion and retention of Form I-9 for each new employee hired after November 6, 1986.

Beginning on January 22, 2017, employers must only use the revised Form I-9 version dated November 14, 2016. USCIS has allowed a grace period through January 21, 2017 when employers may continue to use the Form I-9 version dated March 8, 2013.  Both the revised Form I-9 and the prior version may be found on USCIS’ website.

Generally, the revisions made to Form I-9 were designed to make it more user-friendly, to reduce errors and to enhance form completion using a computer. Some of the most notable changes include:

  • Informational prompts are included on the form;
  • Employees only need to provide “other last names used” in Section 1, Employee Information and Attestation, rather than all “other names used”;
  • The employee certification in Section 1 is streamlined for certain foreign nationals;
  • There is an addendum page to enter multiple preparers and translators, when applicable; and
  • In Section 2, Employer or Authorized Representative Review and Verification, there is a dedicated area to enter additional information that employers have previously been required to notate in the margins of the form.

Further enhancements were made to the Form I-9 that will appear when completing it electronically on a computer. Users will see:

  • Checks to certain fields to ensure information is entered correctly;
  • Drop-down lists and calendars;
  • Instructions on the screen that users can access to complete each field; and
  • Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over.

The Form I-9 instructions have been updated to include a field-by-field guide to completion, and to address common issues that arise during completion. The revised instructions have also been separated into a distinct document from the revised Form I-9, in line with USCIS’ general practice.

While USCIS has indicated it will soon issue a revised M-274, Handbook for Employers, Guidance for Completing Form I-9, it has yet to do so. In the meantime, USCIS refers users to the revised Form I-9 instructions, found on its website for the most up-to-date information.

Notably, the list of acceptable documents that the employee may present in order to establish identity and employment authorization remains the same. 

While the Form I-9 may seem relatively straightforward to employers, its completion can be complex and the rules surrounding it constantly evolve, which leads to large fines and other penalties for not completing and retaining the forms correctly.

For this reason, we recommend reaching out to an experienced immigration attorney when questions arise regarding the Form I-9.

From the Archives: Back to the Basics on Sexual Harassment Prevention

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

Wrapping up my look back this shortened week at some “Basics” posts, here’s a reminder of the obligations employers have to conduct sexual harassment prevention trainings.  Have a wonderful Thanksgiving and thanks for your continued readership.  

With every new law that gets passed, it’s easy to overlook the existing requirements that employers must follow.

After all, if employers are just tracking the new laws down without first nailing down compliance with “older” ones, then they are leaving themselves just as vulnerable to potential claims.

One area that is easy to overlook is sexual harassment prevention, particularly in Connecticut. Indeed, some employers believe that simply adopting a policy is all that is required.

And they would be wrong.

So, it’s time to go back to the basics and make sure you’ve hit the checklist when it comes to sexual harassment prevention in Connecticut.  Here are some things to consider:

  • All employers with 3 or more employees, must post notices regarding sexual harassment. Rather than tell you what it should say, just download the poster from the CHRO directly.  And it’s free.   (While you’re at it, consider spending some money to buy the all-in-one posters offered by some commercial ventures; alternatively, you can get the notices from each of the agencies.)
  • The CHRO suggests (but does not mandate) that the notices also include: A statement concerning the employer’s policies and procedures regarding sexual harassment and a statement concerning the disciplinary action that may be taken if sexual harassment has been committed; and  contact person at the place of employment to whom one can report complaints of sexual harassment or direct questions or concerns regarding sexual harassment.  Those are good ideas. Add them.
  • The notices need to be posted in a prominent location.  A shared lunch room is typical. Don’t bury them in a location that employees will never see.
  • Employers with 50 or more employees must also provide two hours of training and education to all supervisory employees of employees in the State of Connecticut within six months of their assumption of a supervisory position.  If you haven’t done such training, get it done now.  Your company’s preferred lawfirm should be able to do it or, in some instances, an employer’s EPLI carrier may also provide that service.
  • The training has certain requirements, such as that it is done in a classroom-like setting.  Some e-learning programs are now allowed under a 2003 informal opinion of the CHRO.
  • The CHRO recommends (but does not require) that an update of legal requirements and development in the law be given to supervisory employees every three years.  Again, that’s probably a good idea; it demonstrates an employer’s commitment to this issue.
  • The CHRO encourages employers to keep records of such training. I would go further than that to say that employers should strongly consider it.  If faced with a sexual harassment claim, such records may be key evidence to support the employer’s arguments that it took steps to ensure such harassment did not occur by training its employees.

Do you have all of these items under control? If so, you’re a step ahead.  If not, don’t ignore the issue.

Take steps to get the training done (Shipman & Goodwin provides such seminars on a frequent basis) and make sure your policies and procedures are current.

BREAKING: Judge Orders Halt to New Overtime Rule

Posted in Featured, Highlight, Laws and Regulations, Wage & Hour

I have this running joke with my wife that anytime I’m on vacation, it seems that big employment news breaks.

And this vacation is no exception.

And it’s probably the biggest employment law news this year. Not the best time for me to have to write a blog post on my phone.  Ah well.  You all will forgive any typos.

Last night, a Texas judge issued a nationwide injunction barring implementation of the new overtime rule that was scheduled to go into effect December 1.

The judge stated:

The parties dispute the scope of the injunction. The State Plaintiffs seek to apply the injunction nationwide. Defendants contend a nationwide injunction is inappropriate. Instead, Defendants suggest the injunction should be limited to the states that showed evidence of irreparable harm. Absent contrary intent from Congress, federal courts have the power to issue injunctions in cases where they have jurisdiction. It is established that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” A nationwide injunction is proper in this case. The Final Rule is applicable to all states. Consequently, the scope of the alleged irreparable injury extends nationwide. A nationwide injunction protects both employees and employers from being subject to different EAP exemptions based on location.

I had hinted last Friday that this was a long shot lawsuit but this year we’ve seen more than our fair share of long shots coming true (Cubs anyone?).

It’s possible that this may be appealed but that seems unlikely with a new President set to take office in less than two months.  Rather it seems more likely that the rule is now on hold…perhaps permanently.

In any event, employers that haven’t implemented the plan yet do not need to do so now. The ones that have may wish to roll back any changes (but with caution).  And talk to your local employment attorney.

I’ll have more upon my return next week.

 

From the Archives: The Basics of Agriculture’s Exemption to Wage/Hour Laws

Posted in Human Resources (HR) Compliance, Laws and Regulations

Continuing a look back at some “basics” posts you might have missed, back in 2009, I tackled an exemption that may be overlooked when it comes to employment laws.  

Connecticut has a proud history of farms. Many, like Lyman Orchards, have been passed down for many generations. (And if you’ve never visited Lyman Orchards, don’t miss out on their Corn Maze and apple orchards. I visited it recently and highly recommend stopping by.)

For many of these farms, the growing season is short, which is why some of the wage & hour rules for farms are a bit different.  Indeed, overtime rules in Connecticut specifically do not apply to “agricultural” employees.  (Conn. Gen. Stat. Sec. 31-76i(k) is the specific provision if you’re looking for it.)

But what exactly is “agriculture”?

Turns out, it’s probably much broader than you think.  In fact, you have to look elsewhere in the statutes for thatdefinition.  It is found in the very first statute, Conn. Gen. Stat. 1-1(q), which states, in part:

[T]he words “agriculture” and “farming” shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses, bees, poultry, fur-bearing animals and wildlife, and the raising or harvesting of oysters, clams, mussels, other molluscan shellfish or fish; the operation, management, conservation, improvement or maintenance of a farm and its buildings, tools and equipment, or salvaging timber or cleared land of brush or other debris left by a storm, as an incident to such farming operations; the production or harvesting of maple syrup or maple sugar, or any agricultural commodity, including lumber, as an incident to ordinary farming operations or the harvesting of mushrooms, the hatching of poultry, or the construction, operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for farming purposes; handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market, or to a carrier for transportation to market, or for direct sale any agricultural or horticultural commodity as an incident to ordinary farming operations, or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market or for direct sale.

So, under this broad definition, everyone from horse breeders, to maple sugar houses (you know about places like the Lamothe Sugar House, right?) to those who freeze blueberries from local farms, are exempt from paying workers overtime.

Thus, whenever agriculture is implicated in your business, be sure to see if the overtime rules actually apply to your workers.

From the Archives: The Basics of Bereavement Leaves in Connecticut

Posted in Human Resources (HR) Compliance

As I noted last week, I’m taking a few days off from the blog. In the meantime, I’m going to be re-running a few posts from my “Basics” series way back in 2008-9 that you might have missed. I hope you find them helpful.

During the summer last year, I started a weekly series of posts about various “basics” of employment law, with a particular focus on Connecticut.

I had planned to start it again this week on a different topic, but in driving into work this morning after a meeting, I was struck by what I saw and inspired to write this post.

While stopped at an intersection, on the far corner was a group of college-aged kids all dressed in suits in black. It took me a moment to realize that in the otherwise barren sidewalk in the heat of the summer sun, they were carrying a casket.

It was a surreal scene. In the midst of all the bustle of a busy street, there were 8 people carrying a casket for a friend or relative in solemn fashion.  They were stoic and yet the sadness was easily seen on their faces.

Death and funerals are a way of life, and they become all the more common with each passing year.  They happen with such frequency that it takes a moment like the one above to sometimes wake you from their routine occurrence.

So what are the rules that employers must follow when it comes to bereavement leave?  For the most part, there aren’t any.  You won’t find the topic on Connecticut DOL’s wage and workplace standards pages.

While FMLA leave is designed to provide leave to care for a family member (particularly in the end stages of life), an immediate death may not qualify and it does not seem to cover attending funerals.  Indeed, do a search for “death” or “funeral” in the Connecticut FMLA regulations and your searches will come up empty.  Thus, employers have crafted their own set of rules.

In looking back over this blog, I realized I hadn’t covered this much other than in one of my very first posts back in September 2007.  In that piece, I discussed several issues that employers may want to consider.

  1. Are your bereavement policies are established? If so, are they non-discriminatory?
  2. What practices do you have to help the grieving worker communicate with colleagues? And do you have a employee assistance program that you can refer employees to?
  3. How can you help co-workers express their sympathy, particularly if the loss is actually in the workplace?
  4. How do you help the bereaved employee and his or her supervisor deal with any lingering productivity issues?

None of this is easy.  Usually, for immediate family members, many employers will provide employees two-three days off with pay, and no pay for any additional time, unless employees arrange to use personal days or vacation time. How you define “immediate family member” is up to the particular employer, but make sure that it takes into account the changes that have been made in Connecticut for same-sex marriages.

The Best Laid Plans on Overtime, Or, When “Stuff” Happens

Posted in Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour

I had a lot of plans this week to do another deep dive into an employment law issue but then, well, let’s just say life happens.

Among the things? Lots of questions from clients about the new overtime rules.  While everyone has had months to plan, there are definitely a few procrastinators out there.

But this may (and I emphasize and underline MAY) work out to those procrastinator’s advantage.   Reports this week are that a Texas court is considering issuing an injunction that would stop the overtime rule in its tracks.  The court has indicated that it will consider the matter by November 22nd. And moreover, even if it doesn’t issue an injunction on that date, it will consider the entirety of the case by 11:59:59p on November 30th.

While I still think the lawsuit may be a reach, it doesn’t seem as far fetched as it did a few weeks ago. Earlier this week, a similar Texas court issued a permanent injunction prohibiting the implementation of the so-called “Persuader Rule” from the NLRB.  Government overreach seems to be a theme in Texas.

What should this mean for employers? Well, I still think planning is very much in order. But if employers haven’t yet flipped the switch on their plans, they may want to hold out for a few more days to see if this Texas case leads to anything.

Why? Because once you raise an employee’s salary, for example, it’d be very hard to roll it back.

So procrastinators take heart! Maybe, just maybe, your tardiness will pay off.

But I still wouldn’t count on it.

Author’s note: I will be proverbially “going fishing” for a few days, so don’t expect any late breaking posts until after Thanksgiving here.  I’ll be posting a few “From the Archives” posts in the interim.