Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

A while back, I wrote about a Connecticut law that requires employers to post about the services of the Office of Healthcare Advocate and about one company that sells such a poster, Progressive Business Compliance. 

But the question is often asked, are these workplace posters that available for sale by companies like PBC, useful and worthwhile to purchase in general?  My response is "Yes" with a small "but" attached to it.     

What do I mean? Well, as I've said before, the companies that prepare the workplace posters do provide a valuable service by combining the posting requirements under various state and federal laws into one poster. These "5-in-1"s or whatever number that is chosen, are then printed in an easy to read format and are often laminated to preserve their appearance. For this reason, spending money on the posters is an easy call for many employers.  

Certainly, companies like Progressive Business Publications (which also goes by the name Progressive Business Compliance) or G.Neil can fill that role well.   Indeed, a number of attorneys that I know have used posters from both of these companies for years without incident and I haven't seen or heard about any specific posters that they sold that did not comply with the law.  I certainly wouldn't discourage employers from using these services, even with the cost involved, because for many employers it is "worth it" to have easy-to-use posters prepared by someone else. 

And before people get too up-in-arms about companies making money off their product, it's not like these companies are alone in charging for items that the goverment otherwise makes available free to the public. For example, LEXIS and Westlaw charge people for using their services to find and locate court decisions published by the courts, or legislation passed by the goverment. 

Moreover, simply because you can get the materials for free elsewhere does not, in my view, provide a sufficient reason for ignoring these companies either.  They're not government agencies (nor do their websites pretend to be) but they make it their business to do their best to understand each state and federal law.

But here is my small reservation about using these companies (or companies like these): Employers should not rely on their services as the exclusive source of their information, nor for advice. 

If an employer is investigated by the Department of Labor about its postings, it won't really do the employer much good to say that they merely relied on what another company told them to do. Rather, each employer has an independent obligation to ensure that they are complying with the applicable laws.

So, how can an employer do that AND still take advantage of the services offered by the workplace poster companies? Work with a qualified and experienced human resources professional or an attorney to ensure that all of its posters and polices are up-to-date.  Also figure out what state and federal laws actually apply to them.   Once the employer performs such an assessment, then reach out to the poster companies. 

Maybe they will even cut a volume discount.

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For non-exempt employees (in other words, those employees eligible for overtime), a common question is whether an employee should be paid for commuting time.  The answer to that question is typically no.

Now suppose the employee carries their work files in a briefcase to and from work, does that change the analysis? According to a recent Second Circuit decision (which covers employers in Connecticut, New York and Vermont), the answer is still no.   In doing so, the Second Circuit in Singh v. City of New York has clarified the limited circumstances when an employee may be paid for their commuting time. 

When is that? Well, under the Fair Labor Standards Act (FLSA), the employee must engage in work for the employer's benefit at the employer's request, in order for commuting time to be compensable.  In addition, if an employer's policies increase that commuting time by a trivial amount, the employee is still not entitled to be paid under the FLSA.  

When is work required during a commute? When the employee's work during that time is integral and indispensable. It typically depends on whether the time is spent predominantly for the benefit of the employer ("predominant benefit test"). For commuting, the Second Circuit indicated that the:

appropriate application of the predominant benefit test is whether an employer's restrictions hinder the employees' ability to use their commuting time as they otherwise would have had there been no work-related restrictions.

For employers, and particularly with the addition of BlackBerrys, this case emphasizes that the employer should review its policies and practices to ensure that commuting time remains non-compensable.  In particular, the employer can emphasize that non-exempt employees should not perform work during their commute. 

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One of my new favorite "undiscovered gems" on the Internet, is Connecticut Judicial Branch Law Libraries' Newslog.  It is a site maintained by the librarians with daily entries to help people stay informed about "recent legal developments, legal practice tools, and law library resources". It's another example of how librarians are adapting to new technology and providing a helpful resource. 

And best of all, they have added RSS feeds to allow readers to "subscribe" to it.  (If you don't know what a "feed" is, see my easy-to-read post on the subject here.)

One of the entries that caught my eye recently was a research memo prepared by the Office of Legislative Research that discussed what the Connecticut laws are regarding employers who hire illegal immigrants.  The issue arises out of a law that Arizona passed last year that provides for extreme penalties to employers who hire illegal immigrants. 

So what does Connecticut say on the subject? Well, the memo points to Conn. Gen. Stat. 31-51k, which has been on the books for 35 years, as the applicable law:

Since 1972, Connecticut law has penalized employers who knowingly employ aliens not entitled to lawful residence. A first offense is punishable by a fine of $ 200 to $ 500. Any subsequent offense is a class A misdemeanor, punishable by a fine of $ 2,000, imprisonment for up to one year, or both.

But not so fast. 

As the OLR memo goes on to state, that law is likely preempted by the 1986 Federal Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” 8 U.S.C. 1324a(h)(2).  Thus, even with a Connecticut law on the books, it probably has no real effect anymore because of the federal law "preempting" it. (Why have the state law then still on the books? That's a good question for another day.)

The memo concludes by stating that the Arizona law is different because that state statute deals with a business license, which is exempted from preemption. 

With no action on any immigration-related bills in Connecticut this session, Connecticut employers should continue to educate themselves on the requirements of IRCA in dealing with illegal aliens. The Department of Labor's website is a good place to start and there are additional materials located here. But the enforcement of laws relating to the hiring of illegal aliens has also been picked up by the Department of Homeland Security and even Connecticut has its own Alien Labor Certification Unit. It is an area filled with risk and employers should continue to tread carefully.

Lastly, on a lighter note, what post on alien workers, would be complete without a link to the classic Genesis song "Illegal Alien". So, on this Friday, a link to the deliciously tacky video is below:

 

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This week, the U.S. Department of Labor updated their website and provided some new online tools to help employers figure out which recordkeeping, reporting and notice requirements apply to them. 

According to the DOL:

The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a FirstStep suite of advisors that also includes the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

"These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them," said Secretary of Labor Elaine L. Chao.

However, employers in Connecticut using these tools should be cautious.  There are additional requirements that employers in Connecticut that may apply and some are stricter than the federal rules.

Because of this, employers should use the department's online tools as a resources, but should followup with an attorney or the Connecticut Department of Labor about additional requirements that may apply.

(H/T Delaware Employment Law Blog)

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A bill to provide mandatory paid sick leave to employees and a bill to provide greater protection to state whistleblowers were among the employment law-related bills that were not voted upon in the final day of the legislative session -- effectively killing them. 

The Paid Sick Leave bill, S.B. 217, had passed the Senate last week, but the House did not bring the measure up for a vote. As I indicated yesterday, nearly 25 amendments had been proposed on it -- a sign that the bill was going to be in for a long fight.  My earlier coverage of the bill is available here. CT News Junkie has a report on it as well.

The Whistleblower bill, S.B. 335, had also passed the Senate, but again, the House did not act on that provision either. My earlier coverage of the bill is available here.

Other bills that were not acted upon by the legislature include: a Workplace Bullying bill; a bill protecting child in the entertainment industry from child labor abuses; and a bill to allow workers to be paid by a pay or debit card.

One bill that did pass this week allows for the regulation of various professional service organizations and about employee misclassification (H.B. 5113).  I'll cover that in further detail in an upcoming post.

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I realize this blog has been a little top heavy of late with legislative developments, but it always seems that a whole year's worth of developments occur within a 2-3 week period at the end of the short General Assembly session. With this year's session scheduled to close at the end of the day on Wednesday, the developments are fast and furious. The court updates will return in force soon.

In the meantime, here's the brief recap of some of the developments from the last day or two (more to follow if and when necessary):

15-Year-Old Workers

The House late today passed a bill today that reinstates the labor law permitting 15-year-olds to work in grocery stores and similar positions. I expect the Governor to sign it shortly.  I've covered the bill in detail, most recently yesterday.  The bill, S.B. 216, can be downloaded here.  It will become effective immediately upon signature by Gov. Rell.  It amends Conn. Gen. Stat. Sec. 31-23. 

Jury Duty

The provision on jury duty were amended in a few subtle ways through a bill passed by the House on Monday and expected to be signed by the Governor.

First, House Bill 5918 (download text here) allows persons who have served on jury duty in the last three years to request the opportunity to serve again even though they would otherwise be excused.  (It amends Conn. Gen. Stat. 51-217a(a) in doing so.) 

Second, the bill also provides additional protection to workers on jury duty.  Specifically, it makes it clear that "any juror-employee who has served eight hours of jury duty in any one day shall be deemed to have worked a legal day's work as that term is used in section 31-21...and an employer shall not require the juror employee to work in excess of eight hours." 

What does this mean? In practical terms, it means that jurors cannot be required to work while they are also serving full days on jury duty.  Employees can, it appears, voluntarily work -- after hours, for example -- since the language prohibits requiring the employee to do so.  Because Connecticut does not have a daily overtime rule, the employee may not even be entitled to overtime for simply working in addition to jury duty.

This jury duty law will go into effect on October 1, 2008, assuming Gov. Rell signs the bill.

Child Performer Protection

The House has yet to address House Bill 5677, which would institute a whole new range of protections for children who act (or "perform").  You can download the bill here, but the lack of action on the bill so far indicates that time may run out on this provision. 

Whistleblower Protection

S.B. 335, which expands the protection of state whistleblowers has yet to be considered by the House. I looked at Senate Bill 335 in an earlier post. 

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Amid all of the buzz regarding the union representation campaigns at Foxwoods, one argument keeps being floated about: tribal sovereignty.

A new article by Thomas Meiklejohn -- one of the attorneys representing the UAW in its battle to represent workers at Foxwoods -- in Spring edition of the Labor & Employment Law Quarterly (not online) of the Connecticut Bar Association, sheds some additional light on the subject.

As Meiklejohn acknowledges, "federal law does recognize the sovereign right of a Native American tribe to govern itself with respect to its internal affairs".  Thus, he argues, the question that must be asked is: When can employment laws be enforced against an employer on a tribal reservation?

Meiklejohn suggests three factors ought to be considered:

1. The Nature of the Employing Entity: Is the employer a branch of tribal government, a commercial enterprise owned by a tribe or a privately owned business operating on a tribal reservation?
2. Who is Bringing the Action: Is it a federal government agency exercising its authority or a suit by a private party?
3. The Source of the Legal Claim: Does this dispute involve federal or state law claims?

Meiklejohn argues that it is a fairly settled issue in Connecticut and the Second Circuit that the NLRB has jurisdiction over tribal casinos.  I've indicated in prior arguments a bit of Foxwoods' response to this as well.

Of course, since Foxwoods has planned to appeal the election results to the Second Circuit and beyond, if necessary, we'll soon see how "settled" this law really is.

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The focus for this term of the Connecticut General Assembly for employers and employees has been on the paid sick leave bill (still no action in the House as of May 3rd).

However, employers who have employees working on public works projects and manual labor on state or municipal building construction or repair contracts need to be aware of a bill that cleared both the Senate and House very early today (H.B. 5537).  The bill is expected to be signed into law shortly, will become effective January 1, 2009.  The vote tally in the Senate is available here.

Under current law, some of these employees must prove that they have completed a 10-hour construction safety and health course that meets federal OSHA Training Institute Standards. The new bill expands this training and expands the people who must receive training. 

The Office of Legislative Research has fairly detailed report available here:

First, it expands the construction safety training requirement to any public works project, which includes sewage and water treatment plants, site work, road and bridge work, parking lots, drainage systems, and other public projects.

Second, instead of applying the training requirement to all projects of $ 100,000 or more, the bill applies the existing prevailing wage project thresholds to the training requirement. This means the requirement kicks in for (1) repair and renovation projects of $ 100,000 or more and (2) new construction projects of $ 400,000 or more.

Furthermore, it removes the requirement that the proof of the training be sent to the labor commissioner. Presumably, the proof will be sent to the contracting agency paying for the prevailing wage project. ...

The bill also creates training requirement exceptions for employees of public service companies and commercial vehicle drivers who either pick up at or deliver cargo to public work projects.

It requires the labor commissioner to adopt implementing regulations by January 1, 2009. By law, regulations cannot take effect before the effective date of the act authorizing them.

A few notable items:

• The employees who must receive the training (which, under current law, is any employee "performing manual labor") is greater under the bill.  The bill states that a mechanic, laborer, or worker must complete the safety training course.
  
• Notably, according to the OLR, the safety training requirements "do not apply to employees of public service companies, which are defined in statute to include electric, electric distribution, gas, telephone, telegraph, pipeline, sewage, and water companies; cable franchise holders; and railroad companies."

With all the training requirements that exist for employers, employers should add this to their list if they are in the business of doing construction or repair work for the State of Connecticut. 

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A few weeks ago, I pondered the impact that the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman would have on cases involving learning and mental disabilities. Turns out, I didn't need to wait long at all. A CHRO Hearing Officer has already used that decision to chime in and indicate that  must be accommodated.  (Big H/T: Overlawyered). 

In CHRO ex. rel. Lenotti v. City of Stamford, (download here) a firefighter claimed that the City's refusal to give him additional time on a promotional exam violated the state's disability discrimination laws.  The firefighter, who had Attention Deficit Order, claimed that state law required the the City' to provide him with a reasonable accommodation.  A CHRO Hearing Officer agreed.

The city argued that a fire captain, the position Lenotti sought, must be able to read and process information quickly at a fire scene. But the CHRO Hearing Office concluded that the city never supported its position and never showed that it would be a "direct threat" to public safety if he were promoted under such conditions.

The case is a long read but there are a few quick bullet points of note:

• Because Connecticut's definition of a mental disorder is anything listed in the Diagnostic and Statistical Manual, there was not a real dispute that the firefighter's ADD qualified as a "mental disorder".  Although some employers view such claims with proper skepticism, this decision demonstrates that broad application of state law to these types of claims.
  
• The Hearing Officer seemed troubled that although the City claimed it was "implicit" that a fire captain must be able to read quickly, that requirement was not in the written job description. Thus, a takeaway from the case is that employers should be sure their written job descriptions contain sufficient details and match what the requirements of the position really are.
  
• Lastly, the case reinforces what I said earlier: After the Curry case, we may start to see more and more disability discrimination cases being brought under state law. With the state laws being interpreted in a broad manner, like they are here, employers in the state ought to start paying attention.

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Late Thursday night, the State Senate passed the Paid Sick Leave bill (S.B. 217) with various amendments including an exemption for some existing collective bargaining agreements.  The vote was a close one -- 20-16 -- and you can find the roll call here.

The bill would make Connecticut the first state to require employers of 50 or more, to allow workers to take 6½ paid sick days per year. It would also apply to municipalities.  One additional amendment that passed would limt the times when employee could use sick time for an illness of an employee or employee's child.

The bill now moves on to the House for further consideration, where nearly 40 legislators have publicly co-sponsored the bill already.  Some of the sponsors of the bill have predicted passage there, but its real future is unknown at this point, with the session winding down.  Debate in the Senate took two days and it is unclear if there is enough time left for the bill to pass. 

The Hartford Courant has a late report and reaction here:

[State Senator Edith] Prague called the bill a major boon to average working people, "especially single parents, like women, who have to go to work. They can't afford the luxury of staying home if they're sick. They need that day's pay to feed the kids ... and heat the house." ...

But opponents said the increasing business competition in a difficult economy is the reason that lawmakers should not approve the bill: It would put Connecticut at a disadvantage and cost the jobs of some of the very workers it is intended to help, they said.

The state's leading business lobbying group, the Connecticut Business and Industry Association, has said the bill "would cost employers in dollars and productivity — a tough one-two punch in this weakening economy."

Various political blogs have started to chime in, including My Left Nutmeg here.  My prior coverage of the bill can be found here.

UPDATE: You can also find the CT News Junkie coverage of the bill here.

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With the legislative session coming to a close next week, developments are heating up at a fast and furious pace.  I'll do some quick updating and then provide a more through review when time permits.

First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements.  The Senate has been working off of some amendments as well, which can be located here.

The Hartford Courant has coverage here.   The CT News Junkie blog has a report earlier this week about it as well.

Second, the State Senate also passed amendments to the state's whistleblower law.  You can find my previous coverage here and you can view the Courant's coverage today of it here.

The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases.  The bill now moves on to the House for a vote. 

As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling.  The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.  As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?

Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward.  Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.

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While the headlines have been focusing on criminal justice reform and now the state's projected deficit, a new "hate crime" bill  (S.B. 604) got passed and became a public act (P.A. 08-49) yesterday.  You can download it here.

The Act, which is effective October 1, 2008 is not found in Connecticut's penal code per se, but is found with Connecticut's discrimination statutes.  It amends Conn. Gen. Stat. 46a-58 to add new subparagraph (d). This paragraph makes it a "discriminatory practice", punishable as either a misdemeanor or class D felony, to display nooses or simulation of nooses. 

In relevant part, the revisions to the statutes are underlined:

(a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability.

(d) Any person who places a noose or a simulation thereof on any public property, or on any private property without the written consent of the owner, and with intent to intimidate or harass any other person on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability, shall be in violation of subsection (a) of this section.

Why nooses? The Judiciary Committee's report indicates that it would strengthen Connecticut's hate crime laws. And indeed, in light of the Jena 6 incident last year, there seemed to be a greater recognition that nooses are particularly offensive to those in the African-American community, which is also noted in the report.  Indeed, the new law would, in essence, equate noose displays with cross-burning.

But the new act raises questions remains unanswered: Why include other categories that have nothing to do with race, including sexual orientation or blindness or physical disability (and why exclude mental disabilities?)   Isn't the point of nooses is that it has some relation to the historic symbol of racial lynching?

And are there really any incidents were people are using nooses to intimidate people based on their gender? I believe the answer is essentially no. Indeed, even back in 2000, the EEOC noted that workplace noose incidents were related to racial harassment cases, not gender cases. What is also striking about the new law is that it contrasts with the cross-burning section which has no reference to protected categories.

Regardless, I'm sure it also won't be too long before the statute is also used in employment discrimination cases to show Connecticut's strong "public policy" against nooses -- whether in the workplace or otherwise.  

And one point should continue to be emphasized for employers -- these types of incidents should not be tolerated in the workplace.  If an employer in Connecticut does have an incident where a noose is displayed, the employer should seek prompt legal advice as to how to address the situation.

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Last week, while I was out on vacation, Congress acted on a bill that may have some interest in Connecticut. However, because Connecticut already has a similar bill already on the books, it will probably have a minor impact on employers.

The U.S. Senate approved of legislation that would prohibit genetic discrimination in the workplace.   As reported by the Manpower Employment Law Blog, The Genetic Information Nondiscrimination Act (GINA) sailed through the Senate on a 95-0 vote.  A House vote is expected shortly; you can check on the bill status of H.R. 493 here. 
Among other things, GINA would:

• prohibit discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
• prohibit employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions (e.g., monitoring the effects of hazardous workplace exposures);
• prohibit health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
• impose strict workplace confidentiality/disclosure rules on all genetic information.

Senator Christopher Dodd expressed his strong support for the bill and posted his comments to his website, which you can find here. 

However, for employers in Connecticut, this should be old news. Connecticut already has a law that prohibits discrimination based on genetic information so I don't anticipate that GINA, if passed, will a significant impact in Connecticut.  Conn. Gen. Stat. 46a-60(a)(11) states that it is illegal:

     (11) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to discharge, expel or otherwise discriminate against any person on the basis of genetic information. For the purpose of this subdivision, "genetic information" means the information about genes, gene products or inherited characteristics that may derive from an individual or a family member.

To be sure, GINA has some additional provisions that will need to be looked at by employers in Connecticut.  But none of it is all that dramatic; Connecticut employers may want to await final passage of GINA before updating their policies on this issue. 

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Like the television show, Lost, reading the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, Inc. will leave readers with more questions than answers at the end of the day.  (For more background on the case, see this prior post.)

Those unanswered and indeed, troubling questions arise from the suggestion by the Connecticut Supreme Court that an employer's duty to accommodate an employee (and engage in the interactive process) may arise even after the employer has already terminated the employee. 

For example, if the employee makes a request for reasonable accommodation after the employee has already been terminated, does the employer have to listen to this request? And more importantly, does the employer then have to reinstate the employee with the new accommodations in place?  And what if the request for accommodation comes a month after the employee has already been terminated, must the employer still consider the request? The decision appears to say "yes" to these questions.

In order to understand this, some background facts on the case are needed as described by the Court:

The plaintiff  began working as a driver for the defendant, a distributor of wines and liquors, in September, 1986. In that position, the plaintiff had to lift cases of liquor  weighing between forty and seventy pounds on and off his truck. On or about August 26, 1998, the plaintiff  injured his back during work when lifting a case of liquor. ... [He] returned to work in September, 2000, but was restricted by his physician, Charles B. Kime, to working four hours a day, lifting a maximum of fifteen pounds at a time, and avoiding prolonged periods (more than thirty minutes) of sitting or standing. ...

When the plaintiff returned to work, the defendant negotiated with the plaintiff’s union and placed him in a night shift position, working the ‘‘split line’’ in the  warehouse. Although employees normally bid on these positions every six months on the basis of their seniority, because he was injured, the plaintiff temporarily was given the split line warehouse job pursuant to the agreement between the plaintiff’s union and the defendant. ..
When the defendant first placed the plaintiff on the split line, he was required to do only light duty tasks and was not required to replace empty cases with full cases [part of the job of a night-shift position]. ...

[By] March 7, 2001, however, [Plaintiff's physician] indicated that the plaintiff had not improved as expected and that his light duty restriction— ten hours a day with no repetitive bending or lifting of objects more than twenty-five pounds—likely would be ‘‘permanent.’’ ...

Subsequently, the plaintiff placed his name on the bid list for a night shift warehouse position. Although the plaintiff attests that he was high enough on the seniority list to qualify for this position, he did not receive the position. The defendant terminated the plaintiff’s employment, informing him by letter dated April 17, 2001, that it had determined that there was no suitable position for him. Approximately two days later, the plaintiff’s attorney sent a letter to one of the defendant’s managers, Richard Conroy, advising him of the defendant’s obligation to provide reasonable accommodation under the law, asking to be provided with a cost-benefit analysis of the decision to terminate the plaintiff, and requesting that the defendant reconsider its termination decision. The record does not reveal that the defendant took further action or reconsidered its decision.

As the Supreme Court recognized, it is up to the employee to initiate the request for a reasonable accommodation, not the employer.  Here, the Court found that the employee's placing his name on a "bid list" for a warehouse position and the letter from the employee's attorney after the employee was terminated was sufficient to start the request for reasonable accommodation. 

In the present case, the plaintiff made an affirmative request to continue working the warehouse night shift in March, 2001. In addition, the plaintiff’s counsel, in his April 19, 2001 letter to the defendant, requested that the defendant: (1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions. These actions satisfy the plaintiff’s burden of initiating the interactive process.

The defendant’s response to this request was merely to reject it. Conroy, the defendant’s manager, stated during his deposition that, upon receiving the letter from the plaintiff’s counsel, he did not reconsider his decision, confer with anyone else, review any records, or conduct any investigation or cost-benefit analysis of the hardship that the proposed accommodation would cause the defendant. The record reflects no effort by Conroy or any other representative of the defendant to contact the plaintiff or his counsel to engage in any additional, meaningful discussion. We conclude that this response is clearly not the dialogue envisioned by the interactive reasonable accommodation process and the defendant’s duty of good faith compliance.

From an employer's perspective, this is a disturbing because it seems to suggest that an employer's obligations to provide a reasonable accommodation continues after an employee has already been terminated.  Moreover, it suggests that "demand letters" (in which an attorney demands that the employer take certain action, like paying severance or reinstating the employee) can also be a requests for reasonable accommodation.

In addition, this decision suggests that even though the employee may not make a reasonable accommodation while employed (and only applies to be considered for a position with the company without explanation), the employer must still consider any request by the employee made after the employee was terminated.

It is unclear whether the employer will be filing a motion for rehearing in the case to rule on this issue. But if left unchallenged, this part of the Court's decision could be the real legacy of the case and set the stage for lots of demand letters for disabled workers even after they've already been fired.

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During March, I ran a series of posts from Guest Bloggers.  The following is the last in a series of guest posts from Victoria Pynchon.  Her prior posts and a profile are located here and here.  My thanks to Victoria for the contributions.  She writes the excellent Settle It Now blog, which its a great resource when it comes to negotiations and settlements.  Her topic today continues the theme of negotiating law firm happiness with a focus on partner compensation. 

NEGOTIATING LAW FIRM HAPPINESS

Knowing what we want; what we’d like; and what is important to other stakeholders in the law firm, we’re ready to begin our partnership compensation negotiations, right? Which are really just about money? About our  percentage share of the profits? What party interests will drive these negotiations? Why fear of course. What else would account for the present compensation scheme in which the majority of shareholders reward the minority of shareholders who “originate” firm business most handsomely?

I know the answer, Mr. Managing Partner. “Because we’ll lose our rainmakers if we don’t compensate them for the business they bring in. And then what will we do?

Applying “Equity” and “Fairness” Metrics to Partner and Shareholder Compensation Schemes

Law firms need business originators. How many of them are there in your firm and how many other lawyers families do they feed? Not many and a lot. 

“That’s why we compensate them at the levels that we do!”

 But let’s reframe the problem in the way a mediator might. 

How many high-flying business originators could service the business they bring in without equally high-flying practitioners, skilled in their art, deep in their practice, and concentrated on their case load to the exclusion of rainmaking junkets that could make them rich beyond their present imagining.

 A lot. 

So the working practitioners are also feeding the families of the rainmakers, aren’t they?  And if we applied the metrics of equity and “fairness” to firm compensation decisions, the brilliant practitioners would be compensated as well as the rainmakers. Because they’re just as important to the firm’s bottom line and are working equally  hard to support the firm’s welfare as are the rainmakers.

So why aren’t we giving as many points to practitioners as to business originators? 

Because rainmakers can “walk” with their “portable” books of business. And because someone has convinced the rest of us that good practitioners can be found anywhere within the ranks of today’s mega firms. So we’ve become more afraid of losing our rainmakers than the lawyers who service the business they bring in.  We decrease the working lawyers’ compensation and increase the originators’ income so they won’t leave us.

Putting Our Money Where Our “Core” Values Are

 Someone – and it would be best it that “someone” included the majority of the AmLaw 200 – needs to have the courage to put their money where their purported “core values” are. 

The firm cannot function without its brilliant legal strategists who cut Gordian legal knots to dazzling effect. Nor can the firm function without the few great trial attorneys it has developed or recruited. Nor can it succeed without a supporting cast of highly trained, Ivy League educated associates and junior partners who enable the great trial lawyers to bring home jury verdicts in the $2 billion antitrust actions entrusted to us by our Fortune 50 client. 

I could go on, but this is a post – not a magazine article – and you get the point.  In fact, you already know the point – you just feel stuck with “things as they are.”

What “Fairness” and Equity Might Look Like

 Here’s the pre-negotiation partnership challenge -- distribute the pie by metrics of equity and fairness instead of in response to your fear that your rainmakers will desert you. Look at your “mission statement” and firm “values.” If they’re not TOTAL B.S. – and 90% of your attorneys believe that they are -- assign “points” to those values and base compensation decisions on those points.

 If you pay lip service to, instead of dollars for, the promotion of these values, you will create a culture of resentment and cynicism, ensuring attrition and the inevitable inefficiencies created by back-biting and low morale.  If you compensate your attorneys for the work you pretend to value, you have and encourage integrity. And when the firm’s shareholders and employees act with integrity, they feel good about themselves and about their mutual enterprise. They become loyal and more efficient. They make more money.

And if some of your business originators leave? You’ll weather the storm. And if those rainmakers are in danger of leaving because you won’t increase their income from $1.5 to $1.7 million per year, they’re in danger of leaving when offered $1.9 million to your $1.7 million by another firm. More importantly, you’re already losing associates in record numbers and you can’t afford that for long. Who are tomorrow’s partners going to be?   

So, let’s assume your firm leadership is able to inspire all of its partners to take a stand. What do you do? 

First you must have a business plan that will ease the loss of those people who are driven only by the raw number of their compensation. 

Second, you must give up as your primary business plan the effort to appear at the top of the American Lawyer’s profits-per-partner list. Profits per partner is not really the metric upon which you and your partners thrive, is it? So why are you letting a legal rag bully you into making compensation decisions that don’t reflect your true values?

Finally, you must have a compensation system that is interest-based rather than fear-based – one that takes into account the true desires, dreams, wants, needs, and yes, fears, of the negotiating parties as well as commercial realities. 

To help you readjust your compensation metrics, I’m providing you with a list of items – in no particular order – suggesting that law firm management prioritize them according to the concerns of all firm partners, remembering that the purpose of a partnership is to support its attorneys through a lifetime of legal practice “ups” and “downs,” in an atmosphere that encourages loyalty, hard work, collaboration and team effort.

• Community involvement
• Associate and junior partner mentoring
• Recruitment
  • Summers and first years
  • Laterals
• Retention and Promotion
  • Particularly with women and under-represented minorities (see Diversity below)
  • Within the firm and as a liaison outside the firm
• Management “chores”
  • Case management
  • Firm management
  • Practice group management
• Public profile
  • Points to the firm’s “thought leaders” by virtue of speaking engagements and publications
  • Points to the  firm’s community leaders by virtue of their participation in pro bono activities such as Board membership with non-profit legal service groups. 
  • Points to the firm’s business leaders by virtue of their participation on corporate Boards of Directors and involvement in industry organizations
• Diversity
  • Yes, I am suggesting that those involved in the acquisition, retention and promotion of under-represented “minorities” at the partnership level – which means everyone except white men – be given compensation “points” for acquiring and retaining this under-utilized talent
  • Participation in “minority” local legal bar associations, particularly as officers of those associations
  • Business development with under-represented minority and women-owned enterprises
•  Billable hours
  • Let’s put our extremely well-educated heads together to finally create a “value billing” system so that we can end the practice of compensation based upon high-paid hourly-rate wage slavery
  • We already provide our clients with estimated yearly budgets for particular cases  – why don’t we put our  wallets on our own estimated bottom line and bill by the job, making a larger profit when we bring the project in under budget. 
• Client origination
  • Points are assigned to the originator for sharing client origination dollars with those who service and thus retain the client for the firm
  • Points are given to those who serve the client
• Flex-time, Part-time
  • Some people will pay you to be given at least some part of their personal lives back; let them do so without making them feel like second class citizens
  • Whoever is in charge of this program should be given serious compensation “points” for taking on a low-esteem job with high future but low current value

These are just a few of the items that will serve the interests of a wide variety of partners. If compensation drives behavior, then serving your partners’ interests will create a happier, more deeply satisfied and committed partnership. If your resources were firm equipment rather than personnel, you would not neglect their needs because you could not afford to have your equipment break down, rust, go out of service, or perform unreliably. Your human resources are highly calibrated, achievement oriented, value-creating and praise-motivated people. 

Service them well and often. Break the mold. Be great. Be happy.

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Last month, I broke the story about a company that was selling various employment law posters online, and the Connecticut government's response to the posters.  A post recapping all events with links to all prior posts is located here.  

One poster, in particular, dealt with a "Healthcare Advocate" poster. At that time, the company's website stated specifically  "New Poster February 2008! Employers are required to display this poster. Lists employee's rights to health insurance under Connecticut."

As of my last prior post, last month, the company, Progressive Business Compliance had not made any changes to their website nor did they provide any public comment. While I've been tied up the past few weeks, their website for this poster has now changed. 

Their website for this poster  now reads: "New Poster February 2008! Employers are REQUIRED to display this poster.  Lists the services of the Office of the Healthcare Advocate under Connecticut Law, and gives contact information for employees."  However, the company still charges $12.99 for the poster. 

Employer and human resources professionals may still wish to exercise caution about using this particular poster. First, this poster -- while apparently "new" to the company -- is not new at all. It has been a requirement for a while. Second, in response to our prior post, Connecticut's Office of Healthcare Advocate now has the exact poster available on their website.  You can download it directly from here.  Third, and most importantly, it's available free of charge. 

I'll leave it to the Attorney General to determine whether its a fair trade practice to sell a free government poster for $12.99.  Perhaps it contains a protective plastic cover.   And as I noted previously, these companies can provide a service to employers by combining various posters onto one laminated poster.  For some employers, it is a service worth paying for. 

But for employers who just want to comply with this particular law without any bells and whistles, the OHA's poster that can be downloaded free of charge will suffice just fine. 

Of course, there are other posters that must be posted as well, so employers should check with an attorney to determine if they are meeting all the legal posting requirements. 

Lastly, I have been meaning to post about another website that summarized our prior posts on workplace posters quite well.   Lawroom.com posted about it here.  Each week, Lawroom sends out an email broadcast to several thousand HR and business subscribers (primarily in California, but also nationwide and in other states). They cover case, legislative, and regulatory developments, as well as interesting news stories. They also discuss “recurring” issues in employment law – including the need for mandatory posters.  My sincere thanks to them for the reference.  Please do check them out. 

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In a case that automatically vaults to the top of important disability discrimination cases in Connecticut, the Connecticut Supreme Court today held, in an issue of first impression, that employers have a duty to provide a reasonable accommodation to disabled workers under state law, even though the law does not explicitly say so. 

While the Americans with Disabilities Act applied this rule to employers under federal law for employers of 15 or more employees, small employers have been exempt from it, leaving workers only with the protection of a vague state law (Conn. Gen. Stat. 46a-60(a)(1)) prohibiting "physical disability" discrimination. 

The case, Curry v. Allan S. Goodman, Inc., was released earlier today, although practitioners are cautioned that it is not "officially" released until April 15, 2008. 

Although the Connecticut Commission on Human Rights and Opportunities has applied this rule for years to their view of cases, the Connecticut Supreme Court had yet to decide the issue, leaving employers (to which the Americans with Disabilities Act did not apply) with the thorny question of whether or not they had an obligation to provide a reasonable accommodation.  Certainly, some did; but others may not. 

The court's rationale is fascinating and I'll explore it more in upcoming posts.  Although the Connecticut statute was put in place almost two decades, the court said it was appropriate to still look to federal law for guidance. Since the reasonable accommodation requirement appeared in federal law, it was appropriate -- in part -- to add it here. There's more to the decision, of course, and I'll recap more later.

While the decision itself should be one that employers can follow, what's fascinating is that the Court has ignored various bills that have been proposed over the years at the legislature to add reasonable accommodation language to the statute.  After all, if the legislature "thought" such a requirement was already there and that was its "intent", why are there bills proposing adding such language?

For example, a 2004 bill would have changed the definition of "physical disability" to mirror the language.  A 2002 Senate bill called "the Preservation of Disability Rights" would have introduced language of a "qualified individual with a disability" that would have required reasonable accommodation. 

I'm not suggesting that its bad policy to add this; that's up to the legislature and/or the courts. But it seems a stretch to add a "reasonable accommodation" requirement to state law, when legislature never thought it important enough to do so itself. 

The Court then applies federal reasonable accommodation provisions (such as the interactive process) to the case at hand.  It also addresses the issue regarding light duty accommodation and what an undue hardship is.  I'll explore these provisions in future posts as well.

Until then, the case should be required reading for small employers in the state and their attorneys. 

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Good Monday morning! At least I hope it is for some of you, because I continue to be on trial all this week.  Not that I'm complaining but it is putting a serious crimp in my blog update ability.  So, posts will continue to be sporadic for the next 7-10 days as the trial continues.

But luckily, we still have a few more guest posts to sneak in.

Today's installment is part 2 of a 3 part series by Victoria Pynchon, who I profiled here.  Please check out her blog.  Today's topic is one addressed to the lawyers who read this blog and how to achieve happiness.

Earlier this month, I used the distribution of household chores as a means of explaining the differences among positional, interest-based or “integrative”, principled, and, distributive negotiation tactics and strategies. This week, I’m not only bringing these techniques into the workplace, I’m bringing them into your workplace – the law firm.

Partner Dissatisfaction and Compensation

Before we negotiate anything, we need to learn what is being negotiated, how those items might be valued, whether certain of those items have more or less value to one bargaining partner than they do to another and, how all of the “stakeholders” will likely respond to any proposed “deal” struck by the partners.

Because we all worked pretty darn hard to arrive here in the first place, I’m gong to first talk about happiness as expressed by associate satisfaction surveys. In doing so, I’m assuming that associate satisfaction and partner satisfaction have the same attributes -- challenging work; collegiality; recognition; and, well-being. These are things that do not change as our income changes. Unless money lifts us up out of poverty, the social scientists have now proven what all of the world’s great religions and most pop songs of the latter half of the 20^th Century have been telling us all along – Money Can’t Buy It.

The 2001 Texas Bar Association Associate Satisfaction Survey

In 2001 and 2002, the Texas Bar Association published two articles entitled An Empirical Study of Associate Satisfaction, Law Firm Culture and the Effects of Billable Hour Requirements, Part I (here) and II (here). The broad findings included

BILLIABLE HOURS

• 66 percent of the respondents reported that billable hour pressure had “taken a toll” on their personal lives.

• When asked to describe the “toll” taken

  • 25% percent reported that they had more trouble sustaining intimate relationship than they had previous to practice

  • 18 percent said they got sick more often than before I worked for their firms

  • Other tolls cited included a lack of time for exercise, vacations, hobbies, and personal interests

  • A large number of respondents described feelings of stress, anxiety, and unhappiness relating to billable hour requirements – 15% reporting that they felt stressed and fatigued “most of the time.”

MONEY

• no respondent making $125,000 or more checked “very dissatisfied.”

• Those who reported that they were “very dissatisfied” made less than $50,000.

DESIRE TO CHANGE JOBS OR PROFESSIONS

• 39% of respondents said they were interested in changing employers during the next two years”

• Of those respondents, 22 percent indicated that they were interested in a “non-legal job.”

• 26% reported that they wished they’d selected a professional other than the law

LONG HOURS

• 64% reported that working long hours adversely affected their work

MENTORING

• 43 % reported that billing and rain-making pressures on partners reduced or eliminated the mentoring and training that they needed or wanted.

These findings not only tell us what is making our associates unhappy (accounting for costly associate-attrition rates) but also what might make them (and us!) happy. Keep these items in mind. We’ll need them when we begin negotiations.

THE PARTNERSHIP BENEFIT AND COMPENSATION “PIE”

So what’s in the partnership/benefit “pie” other than “profits per partner”?

There are, of course, money-substitutes such as health, life and disability insurance; pensions; and increased or reduced capital contributions.

Then there are the status “perqs” such as corner offices, access to the “best” associates, and, appointment to influential decision-making committees and positions.

Finally, there is the distribution of the obligations (the firm chores) among the partners, some of which lead to the enhancement of one’s individual success and some of which are necessary to the success of the firm as a whole.

Rainmaking

Once upon a time in a land far, far away, rainmaking –writing, speaking, schmoozing, lunching, dining, golfing, and the like – to acquire new or keep existing clients -- was a firm benefit/obligation equal to other firm tasks such as trying cases, putting in long hours, training and mentoring young associates, engaging in pro bono and community activities and the like. Now that partners can and do walk with their own “portable” books of business, these activities, while temporarily good for the firm, are primarily for the benefit of the individual rain-maker.

The great trial lawyer; the dogged, meticulous deal-maker; the brilliant appellate advocate; the great mentor – these people are good for the firm but, in the absence of a healthy “book of business” not terrific for their individual self-interest. TO function at the highest levels possible, each firm must be composed of all of these parts. The associates must be trained, morale in the office kept high. Summer and first year associates must be interviewed, reviewed, and hired or told to move on. The firm must serve its community and have a hand in the operation of important local, state and national bar and industry associations. Cases must be tried, documents drafted, companies merged, legal research done, memos written, depositions taken, and case strategy developed.

Recently, we have been dividing the partnership pie as if rainmaking were the only truly important task that any lawyer with career-building in mind should undertake. From the perspective of the entire law firm, this is a little like developing only one muscle – say the gluteus maximus – while we allow all the others to weaken.

How we might successfully negotiate partnership rights and obligations with a view toward creating and maintaining a vibrant, happy law firm over the long term, will be the subject of my third and final guest blog.