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

Among the interesting programs at the Legal Tech 2010 conference in New York this week, was panel discussion tackling social media at companies.  Three attorneys with significant in-house experience (American Express, Lincoln Center, Kraft), all took turns describing how social media is here to stay -- and how companies can take advantage of it. 

First off, the moderator noted that people are likely talking about your company; but if you're not on social media, you may not realize it until it has spread like wildfire. Example #1: "United Breaks Guitars" a viral video that has sparked sequels, copycats, and lots of publicity. The video, in case you missed it, is as follows:

The first speaker, Lesley Rosenthal (Lincoln Center) emphasized that while most companies view social media through the prism of labor & employment issues, there are many other issues that are implicated. Among them: Copyright, Trademark, Consumer Protection, Lobbying Laws, Raffles and Privacy.  That's not to minimize employment law issues; there are plenty of things to consider there as well: trade secrets, confidentiality, harassment, discrimination, job listings/OFCCP, background checks, and state laws that protect leisure-time activities. 

Another speaker (Ted Banks, who recently left Kraft after 32 years) described how a total ban on social media for employees only leads to resentment  and invites violations.  He suggested that companies have an opportunity to engage employees who are creative; taking advantage of that can work within a corporate framework.

How? But making sure that the use of social media is consistent with the values of a company.  Training personnel as to proper use is crucial to its success. (After all, when e-mail was introduced, we trained employees on how to use it; for social media, there should be something similar).  Limits can be set but just saying no doesn't work. 

The final speaker, Mark Bisard, a cyberlawyer from AmEx spoke passionately that he viewed social media as something that companies can no longer avoid.  Companies can influence the discussion (and realize that they will lose total control over their message) but that if companies fail to do so, they will lose their influence altogether.  He suggested that employee productivity and efficiency can still be measured.  And for those concerned about measurable statistics, he suggested using the "Net Promoter" site. 

He closed with this view: Your company's new home page is Twitter, Facebook and YouTube. You better embrace it because your customers are there (and your competition). 

While a lot of what they said wasn't particularly new, the fact that the message is no longer coming from attorneys, but from the clients themselves, is an indication that social media is no longer on the fringe.

Developing a social media policy and practice should be part of many companies' overall strategy for 2010.

(To follow all the developments at Legal Tech, you can search on Twitter for the hashtag #ltny.) 

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There were signs this morning that the economy is starting to pick up again. If that continues to happen, there is no doubt that we'll start to see many more employees changing jobs to take advantage of new opportunities.

But as that happens, some of those employees' employers will be left scratching their head and asking: How can I protect my clients, customers and confidential data from walking out the door?

What's one possible solution? Restrictive Covenants are typically contract provisions that restrict an employee from competing with your business, soliciting clients or employees, or using trade secrets in their new business.  They take many shapes and sizes but overall, courts will give them serious consideration if they are reasonable in time and scope.

Our monthly webinar series returns in February (after a holiday absence) to discuss this very issue and how employers can draft restrictive covenants that will hold up in court.  My fellow partners, Jon Orleans and Rick Robinson have agreed to spearhead this production and should be both educational and entertaining.

It will be held on February 10, 2010 at 12 noon EST.  Sign up through this link (and, as always, it's free). 

The monthly webinars will continue on the second Wednesday of each month at noon. If you have any suggestions on topics that you'd like to hear, please feel free to drop me a line. 

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In posts earlier this week, I've discussed what the NLRB's Connecticut Office is doing and what to expect for 2010. 

But as I continue to recap the breakfast I attended earlier in the week with NLRB (Region 34) Regional Director Jonathan Kreisberg, of particular importance to employers was the discussion about what issues the NLRB may see reoccur from time to time.  The NLRB recapped some of these in its January 2010 newsletter and its worth a read through (page 4).

Here are some highlights from our discussion:

• Kreisberg indicated that employer rules that have broad confidentiality provisions prohibiting employees from discussing wages, benefits and working conditions with co-workers are likely to be struck down. While protecting "trade secrets" is a legitimate concern, he indicated that many employer rules -- in his view -- go too far. 
• He also said that rules that prohibit employees from discussing non-confidential matters with the media are likely overbroad, though rules that restrict an employee from talking with the media as the company's "spokesman" may be more palatable. For more information, he pointed to a relatively new NLRB case which discusses this in more detail: Trump Marina Assocs., 354 NLRB 123 (2009).
• Kreisberg also noted that anti-solicitation rules may be properly drafted so long as the rule does not prohibit employees from distributing written materials during non-working time in non-working areas.  Kreisberg said however that employers often run into difficulties in the selective application of the rule. (And in this time of Girl Scout cookies, it's a good reminder.)
• He did note that employers can prohibit the use of employer's e-mail system for union solicitation but he again cautioned that selective enforcement of the rules could lead to issues with the NLRB down the road.  
• We also discussed "anti-harassment" policies. For the most part, if such policies are in the context of discrimination/hostile work environment discussions, he did not see much of an issue with it.  But he indicated that the NLRB will look to see if the application of the rule is showing an anti-union bias.  He also reminded everyone that during elections, the NLRB seems to allow behavior (particularly from union personnel) that might not otherwise be tolerated if in the context of daily working activities.
• Lastly,  Kreisberg indicated that the NLRB had produced a video designed to inform the public about the role of the Agency in conducting elections. It is also available on DVD upon request to employers and others.  (And he noted that if an employer uses this video during an election, it would pass muster as an neutral educational video.)

So what's the bottom line for employers? 

• Review your confidentiality, anti-solicitation and anti-harassment policies to ensure that they will pass muster under scrutiny.
• Perhaps more importantly, educate staff about the appropriate application of the policy to union activities.
• And finally, even if you do NOT yet have a union at the workplace, these rules (such as blanket prohibitions on employees' discussions of wages) may still apply, so if you're concerned, be sure to seek appropriate legal counsel.

 

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Let's face it: There are still way too many people who think social media and social networking sites are a fad and time-waster.

I mean, how else do we explain the thousands of companies that have strict firewalls at their companies to prevent employees from using these sites.

(And if you think that because you have a firewall, your employees aren't accessing these sites, think again. With iPhones, Droids and other smart phones, employees can do it all anyways if they have one of these devices.)

When I tell people about one oft-repeated statistic, it always seems to perk up their ears: If Facebook were a country, it would be the fourth-largest country in the world. 

Yes, Facebook has over 350 MILLION users.  They can't all be teenagers and college kids.

That's not to say that companies ought to open the floodgates and let employees spend all their time playing Bejeweled Blitz or Mafia Wars. (If you don't know about them, consider yourself lucky.)  

But I do think the time has come for companies to start thinking about these issues.  Ultimately, many may want to implement policies and practices that can take advantage of all that these sites DO have to offer and providing employees with needed guidance about what they should and should not be doing with them at work. 

LinkedIn, for example, has become a huge resource for companies for recruiting and hiring. And Twitter may be a great tool for customer service.  

Yes, it may turn out that for some employees, there are very few practical uses of these sites in their day-to-day jobs.  But that doesn't mean that employers shouldn't seriously look at these sites. 

I've covered this extensively before, but two posts over the last week or so, are great guideposts that employers can use to benchmark where they are and where they'd like to go.

• A Law.com article suggest that employers craft a policy that has "distinct goals that take into account the nature of the company and its workforce."  It then provides a number of factors and issues for employers to consider. It echoes what I said at a presentation recently: There is no one size fits all policy; figure out what the business goals are of the company and align your policy to best meet those goals.
• But even better, Doug Cornelius -- of the excellent Compliance Building blog -- has compiled a list of 132 Social Networking policies for employers to mix and match.  It's a terrific resource and should give employers many ideas on how best to craft their policies or guidelines.

Employers have legitimate reasons to be concerned about employees using social media and social networking sites, particularly for non-work related issues.  And there are legal risks associated with these sites are still being analyzed. But ignoring these sites in the hopes that your company will be immune from their spread, is repeating the same mistakes that companies made years ago when e-mail was introduced. 

And we all know how that turned out.

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Yesterday I posted Part I of my interview with Dr. Steve Lurie. Today, we continue the interview and discuss whether the skills for career success can be learned:

Can those skills (for career success) be learned?

Yes. But for some reason, employees typically receive relationship skill training much later in their careers in management development programs using personality tools, 360 feedback, etc. that help them to see who they are as others see them and make them aware of others styles.

We have found that people are actually ready and able to absorb and apply these insights and tools as early as high school. In fact readers tell us that the most engaging and useful part of the book is about how to use Connecting Style awareness for better relationship building.

You've referred to "Connecting Styles." What does that mean? 

Study after study shows that what differentiates the best performers from the rest is not subject matter expertise – the what -- but the quality of the connections professionals form with clients and colleagues.

The most powerful connections are formed by those who factor in and respect the learning, communication and interpersonal preferences of the person they are dealing with – and understand their own style and how they are likely to be perceived by others.

While every human being has a unique connecting style fingerprint, we know that people fall into four basic “connecting styles” based on how emotionally and how forcefully they connect:

From this model we can generate a simple roadmap for engaging others based on their connecting style.

For example, analyticals respond best when working within a predictable process that gives them time to prepare in advance, spells out a plan, defines roles, and does not rush them toward a decision. Direct expression of anger, frustration, resentment, whether directed at them or others, makes them uncomfortable and they disengage.

Energizers on the other hand, engage when given the opportunity to express their feelings and ideas and get very impatient when sticking too tightly to process and rules. Once a person understands their own connecting style and how to assess style in others, they can apply these insights with supervisees, supervisors, clients, adversaries, judges, partners, etc. for greater influence and more trusting relationships.

Continue Reading...

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Bringing back a recurring feature of the blog, today and tomorrow will feature an interview with Dr. Steven Lurie who heads Lurie Executive Development and is the author of a recently published book "Handbook for Early Career Success".  You can find his full bio here.

What has fascinated me about Steve is his role as an organizational psychologist.  Over time, he asked hundreds of executives across dozens of organizations not only about the lessons learned from their careers, but specifically, what qualities they see as most critical to early career success. He boiled these down to 8 factors or “Keys to Early Career Success” which he describes in great detail in his book. (You can even view a limited preview of the book here.)

A quick look at these success factors confirms what some of us know from our own experience – Technical-analytical excellence is necessary to getting in the door. But it is the quality of the connections you make with others that leads to being invited to play those higher impact managerial and leadership roles to which many of us aspire.

It's easy to be jaded about the practical value of these “soft skill” books. Not because they don’t have lots to say, but getting the practical value that employees are looking for is almost impossible given how busy everyone is.

But what's notable about this book is that it provides a relationship building roadmap with specific rules and tools you can apply to your day-to-day interactions in the workplace and it is written is a style that makes it easily accessible.

The interview with Steve was so enjoyable that I've broken up the interview in two parts: 

So Steve, welcome to my blog and thanks for giving us some of your time.

My pleasure Dan, and thanks for having me.

Steve, when you think about the lessons learned and advice you heard across all of these interviews you conducted, was there a “headline message” to entry-level employees?

People who recognize that the path to success is very different in the workplace than in school or and adjust to that reality have a big advantage over people who have no clue about where they are and what is expected.

Continue Reading...

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You might have missed it, but the IRS recently announced the 2010 optional standard mileage rates. These rates are typically used by businesses to help calculate mileage expenses for employees.  And just when you've started to remember the optional rate issued by the IRS, it changes it.

And so it has for 2010. Effective January 1, 2010, the standard mileage rate for use of a car for business miles driven will be adjusted downward to 50 cents per mile.

According to the IRS:

 

The new rates for business, medical and moving purposes are slightly lower than last year’s. The mileage rates for 2010 reflect generally lower transportation costs compared to a year ago.The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile.

As a reminder, companies with personnel policies about their mileage reimbursement should consider updating their policies immediately to reflect this change. In the future, employers can draft a policy that states that their standard mileage rate will be consistent with the IRS's rate without reference to a particular number.

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Regardless of your political leanings, Senator Chris Dodd -- who announced on Wednesday that he will not seek re-election this November -- may long be remembered by employers as the Senator instrumental in the passage of the federal Family and Medical Leave Act.  

Indeed, in 1993, he authored the FMLA bill that was later signed by President Clinton early in his term.  Fifteen years later, he pushed for an expansion of that bill to paid leave, which has yet to receive serious consideration in the Senate.

Sure, the FMLA -- while laudable in concept -- still has some issues. It remains too susceptible to abuse by a few, and remains time-consuming and loaded with paperwork for employers to follow and keep track of.

Yet, despite dire predictions, employers have adapted very well to the law. 90 percent of employers told the Department of Labor that the law had a neutral or positive impact on profits. Through training and education, companies have figured out solutions to some vexing issues and have been able to manage their workforce even with substantial absences.   It now is embedded in the fabric of companies and it's hard to imagine the workplace without that law. 

Let's also not forget the impact it is has had on the millions of men and women who have been able to care for a loved one or themselves in times of difficulty. Indeed, since its passage over 50 million Americans were able to take some sort of leave.  And with the amendments passed recently, families of armed servicemembers can also take protected leave if need be.

Again, let the political partisans debate whether Senator Dodd was "good" or "bad"; that characterization minimizes to his contributions to public service. Employers should simply remember him as the Senator who profoundly changed the way we think about the workplace and absences.  

You can watch his gracious speech here:

  

 

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Welcome to 2010!

By the looks of the number of visitors the last two weeks or so, a number of you -- the faithful reader -- have been enjoyed a few days off.

So, rather than overloading you with new information right away, I thought I'd point you to a few posts over the last two weeks you might have missed.

• Want to know what 2010 will bring? I talk about predictions of this year here.
• Want to know what was important in 2009? Well, there's Ricci v. DeStefano and...
• The Connecticut Supreme Court came out with an important decision that held that employees have no private right of action to sue employers who violate the state's electronic monitoring statute. 
• An overtime case illustrates the importance of classifying employees properly. 
• Have you gotten the latest on the COBRA Subsidy Extension that passed? 
• And do you sometimes negotiate with employees who you're about to fire? This Connecticut Appellate Court case is one is that you'll want to review.

There's lots more going on of course. In upcoming posts this week, I'll talk about Connecticut's new minimum wage law, a new prohibition on mandatory arbitration provisions for defense contractors, and changes to the travel reimbursement guidelines.

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I suspect over the next few days and weeks, we'll start having nostalgia for the movie, 2010.  It was a fun little movie that seemed ground-breaking at the time, but now just seems a little dated. 

But do you remember the tagline for the movie? It was "The Year We Make Contact". 

Although the movie came out in 1984, I'm going to make my big prediction for the upcoming year: We're not making contact with aliens.

Seems like an easy enough prediction.

Ah, but you say, what about employment law? Well, the crystal ball is not so clear. 

I suppose the easy way out is to talk about new legislation that may come about such as the Employee Free Choice Act. But so far, I really haven't seen any indication that the White House is particularly excited about that proposed piece of legislation. 

While President Obama has said that he supports it, a search for the term reveals scant evidence of that on the White House website.  (Compare that search with one for "discrimination" and you'll get a sense of how little the White House talks about EFCA.) 

So, I'm going to take a page out of Kevin O'Keefe's recent post entitled "Why Predict the Future When You Can Make It?" In it he repeats an oft-reminded, yet seldom followed, expression: The Future is What You Make Of It.  As he said: "Good luck in 2010. But remember luck is the residue of design and hard work."

For employers, there will always been the next case or new law that will need to be tracked and followed, but employers that follow best practices in employment law can worry less about those developments and more about the big picture. The employers that can focus on attracting and keeping the best employees will succeed -- no matter what the other developments are during the year.

With that, I wish you all a very Happy New Year. 

 

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From time to time, employers are faced with a quandary: When an employee has not been following the rules, do I fire the employee straight up? Or do I give the employee an opportunity to resign first, and potentially sign a settlement agreement?

Why might an employer do that? Well, it allows the employee to save face and to say, honestly, to a potential employer that he/she left, rather than fired.  That also allows the employee to find new work quicker than having to explain that he/she was fired for violating company rules or at least suspected of such violations.

But suppose an employer did so and then asked the employee to sign a release of claims (and potentially even offered some money to settle any potential claims the employee may have). Is that agreement -- which is under the veil that the employee will be fired if he/she doesn't sign -- signed under "undue influence" and thus void?

The Connecticut Appellate Court, in Gengaro v. City of New Haven (officially released on December 29, 2009), said no.  The court held that even though the employee may have had financial or medical issues, the "pressure" to settle did not rise to the level of "undue influence."

The Connecticut Business Litigation Blog discusses the legal specifics of the element in good detail this morning so I won't repeat it here.  If you're interested in the background of "undue influence", it's worth a look. 

Takeaway for Employers

The case is good reminder to employers of the old expression, "It ain't over, 'til its over".  Even after an agreement is signed, there is still a risk of attack.

So what's an employer to do?

1) Draft the agreement in plain language that spells out exactly what the employee is agreeing to.

2) Provide the employee with a reasonable amount of time to consider it.

3) If there are age discrimination claims that are being waived, don't forget about the obligations of the Older Workers Benefit Protection Act. 

4) Consider adding a specific reference in the agreement that the employee understands the provisions of the agreement and represents that he/she is signing it off their own free will.  

But most of all, have legal counsel help draft and review it.  Settlement agreements are an opportunity to resolve a matter once and for all; you don't want legal loopholes or drafting errors to allow a matter to be reopened that should otherwise be closed.

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Over the weekend, Congress approved of a measure that I reported on last week that will extend COBRA for a few more months.

The President is expected to sign the measure and no doubt the DOL will be updating its website with new information.

Thus, employers should continue to keep tabs on this development as it will affect those who have been laid off this month and will be eligible for COBRA starting 1/1/10.

(H/T Workforce)

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With a possible snowstorm coming this weekend (or not) and another next week, no doubt there will be the usual rushing out to get milk and bread. But before you do so, here's a bevy of stories from the last week to keep you updated on the latest in employment law affecting employers in Connecticut.

• All eyes this week turned to the Supreme Court's acceptance of a case that may decide whether public employees have any constitutional privacy rights to personal text messages made on pagers paid for by the government. Its been covered exhaustively by many others, but the reason I think it merely deserves a short entry instead of longer is that I just have a hard time believing this case will have any dramatic impact on private employers.   Compliance Building and World of Work have good recaps, and the Ohio Employer's Law Blog did a recap post earlier today here.  
• On a related topic, Michael Fox of Jottings by an Employer's Lawyer has a thought-provoking piece that the employment law arena is slowly coming into the electronic world.
• What are the Top 10 Employment Law Developments for 2009? Well, the jury is still out on this one, but the Delaware Employment Law Blog puts the Obama Administration at number one. 
• An often-debated question for employers dealing with cases is whether to file a motion for summary judgment -- essentially, asking a judge to decide the case on the basis of allegedly "undisputed" material facts, thus circumventing the need for a jury.  A very good article published in Employment Law 360 analyzes whether employers ever can win these summary judgment motions. The conclusion: Employers are likely to lose but should still file the motion anyways.
• Does your company deal with government contracts in Connecticut and the prevailing wage law? If so, the Office of Legislative Research prepared a research report this month which addresses several issues in a easy-to-understand primer. 
• In benefit-related news, the brand new Benefits and Employment Observer discusses a recent lawsuit by the Department of Labor against a Manchester, Connecticut company for failing to remit 401(k) contributions.  (H/T Boston ERISA & Insurance Litigation Blog.)
• Remember the Austin Powers movie series with Dr. Evil asking for ONE MILLION (no wait, ONE BILLION) dollars? Well, a new wage & hour class action filed against AT&T this week got headlines by its projected damages amount -- One BILLION dollars.  The lawfirm representing the proposed class already has a separate lawsuit pending in Connecticut against AT&T subsidiary, SNET.  I'll discuss that separate matter in an upcoming post.

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The big news this week on all the blogs has been about the Supreme Court's acceptance of a case that will potentially look at employee privacy rights in text messages for public employers.  I believe it's impact is going to be quite limited to public employers with little or no impact on private employers so I'll write about that another day.

Frankly, there's a more fascinating story that's out there and combines to current interests -- Fantasy Football and employment law. 

And this is definitely not a fantasy story.

Fantasy Football, for those unfamiliar with it, is a game in which participants (called "owners") are arranged into a competitive league, earning “fantasy points” by using the statistics of real football players. 

In some cases, the players pool money for a winner, but in many many other cases, it is done for glory and pride.  Over recent years, it has grown exponentially in popularity -- so much so that magazines like Sports Illustrated run columns on the subject. 

(In the interests of full disclosure, I joined a fantasy football league this year for free and, ahem, am doing pretty well in it so far.)

This week, it was reported that Fidelity Investments fired four employees (including relationship managers to various clients) who were running various fantasy football leagues. 

What was curious about the company's statement for the rationale for the firing was not so much using company time and resources for the league but rather it's designation of fantasy football as a form of "gambling".

Said Fidelity spokesman Vin Loporchio: "We have clear policies that relate to gambling. Participation in any form of gambling through the use of Fidelity time or equipment or any other company resource is prohibited. … We want our employees to be focused on our customers and clients."

That seems to be a slippery slope for the company to go down.  To be clear, the company is well within its rights to fire employees for using company resources and time to run an activity that is not work-related. 

Fantasy football owners may complain about the decision or deem it to be overly harsh, but employers typically have a great deal of flexibility in setting rules of behavior in the workplace.

Where the company may have missed the boat is its designation of fantasy football as "gambling" in its purest form.  It's not really betting or wagering -- its mainly just a game. While the "owners" who were fired put up $20 each, it was part of a social relationship as well, which is typically another exception to the no gambling rule.

And so, to come down on the employees here, opens the company up to criticism around Super Bowl time or March Madness.  Are they so restrictive that they prohibit anyone from participating in simple office pools (which, as I've discussed before, are fairly innocuous under Connecticut state law). I'm going to guess that the answer is "probably not". Does that mean its decision here is wrong? No. But it does open the employer up to criticisms that it is being unfair and arbitrary.

So what's the takeaway for employers?

• Set up clear rules for your employees; if participation in fantasy leagues or office pools is prohibited, say so. And then enforce that rule evenly.
• If those types of activities aren't prohibited, make it clear that participation in those activities during work time is not allowed.  Restricting off duty conduct is -- for the most part -- well outside the bounds for an employer to consider.
• Consider "blessing" such activities in a non-monetary fashion. Some employers have small office gatherings around some sports event to build morale and teamwork. 

Again, I'm not advocating turning a blind eye towards employees who are misusing company resources. But setting up clear expectations to your employees and enforcing those rules evenly, will ensure that if problems do develop, they'll be handled in a fair and appropriate manner. 

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I was honored to speak today at a presentation for CBIA entitled "Social Media for Business". We had a packed crowd today and it was a great opportunity to hear from others in Connecticut who are really using social media to enhance their business and build their reputation as a thought leader.

We used Twitter today to track what was going on and you can get a recap of all the tweets from it using the hashtag #smfb09.  My thanks to the other presenters for sharing their wisdom as well; learned some new tricks.  You can find them on Twitter at @brentrobertson, @cellularchloe, @prattandwhitney and @rickhancock.  

One of topics that I discussed what the need for companies to set some guidelines for their own social media usage and by their employees. 

Moreover, taking some of the social media sites like LinkedIn and Twitter from behind a firewall is an important step to opening it up for employees to see. (And, as a speaker pointed out, it's not like those employees aren't accessing Facebook or Twitter via their smartphones anyways).

So what does a sample social media policy look like? Well, there is no one right policy; it will depend on your industry (for example, financial services employees are more regulated then say, public relations) and your company's culture.  Answering the question, "How much trust do you place in your employee?" may dictate the scope of the policy too.

But here are some suggestions to get you thinking.

• Want to see a company policy that provides guidelines instead of merely a list of restrictions? We'll take a look at the social media policy created by IBM.  While it needs to be tailored to a particular company, it discusses a lot of concepts that are important to get. 
• Looking for another alternative? Doug Cornelius of the Compliance Building blog, has his own set of suggestions for a social media policy. It's well worth taking a look.  A more recent example is Connecticut's own ESPN; its set of guidelines are a bit more restrictive, which makes sense given that the  company that is in the business of providing content.

And for those looking for tips on how to get started on Twitter, I highly recommend this site., TwiTip.

As said in the presentation today, social media isn't going away and the opportunities to grow your brand and image as an employer are far greater than they have been. So, take time to learn what's right for your company and provide your employees with the tools to use it.   

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Nothing like a good snowy (and now messy) morning commute to start the day off right.  But as the snow changes to rain around the Hartford area, today's storm is a good reminder to dust off those snow policies and make sure that it's up-to-date. 

While public schools routinely close on such days (and hence the term "snow day"), absent a declaration of a state of emergency, private employers are free to determine their own policies for handling snow storms (or another natural events.)

The Connecticut Department of Emergency Management and Homeland Security has a section devoted to winter storms, but most people can figure out this information on their own.

Some employers may ask -- what should I do for our company? The answer is, of course, it depends. Some employers who need to maintain operations 24/7 (a hospital, hotel, etc) may want to designate certain employees as "essential". Others may decide that they can deal with telecommuting employees for a half-day. But establishing a policy at the outset so employees know what to expect is essential to avoiding problems later on. Ultimately, setting reasonable expectations (asking employees to call in if late, and having them make up for lost time) may be all that is needed for some.

So, what are some of the issues that you should consider when drafting a policy? In addition to the above, you may want to address these questions:

• What are the situations when an office will close?
• How will employee receive notice that an office is closed? Is there a central number that they can call for information? Will an e-mail be sent out to home or blackberry e-mails?
• Will employees be paid for the time when the business is closed?
• Will employees be paid if they don’t report to work due to inclement weather when the business is open?
• Can an employer discipline or discharge and employee for failing to report to work due to weather conditions when the business is open?

Worth a note is that for extremely serious storms (perhaps a Category 3 Hurricane or a flood comparable with the 1938 or 1955 floods), the Governor has the power to suspend certain laws under Conn. Gen. Stat. Sec. 28-9. This is rarely invoked. In non-emergency situations when the Governor says that "non-essential" state workers should stay home, private employers should understand that this applies only to state workers.

Lastly, the state's natural disaster plan is also a good resource for in-depth analysis of what should happen in these extreme circumstances. You can find it here.

So, what else can you do on a snowy day like this? I'd take a cue from the kids -- get a cup of hot chocolate. 

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Back in 2007, when I started this blog, the idea of being recognized as one of the best legal blogs in the country would have been a bit of wishful thinking.  After all, there are literally THOUSANDS of such blogs in existence. 

Flash Forward to 2009: The Connecticut Employment Law Blog has been named to the ABA Journal's Blawg 100.  What is the Blawg 100? According to the ABA (American Bar Association) Journal -- it represents "the best legal blogs as selected by the Journal's editors."

This list is literally a who's who in the legal world and contains many blogs that I routinely follow and which I highly recommend including the Wall St. Journal Law Blog, Above the Law, and SCOTUSBlog. 

So I am deeply humbled and honored to be on the list and thank various readers for submitting nominations to the ABA Journal for its review, including A Connecticut Law Blog author Ryan McKeen. 

The blog was named to the "Geo" category as having "all-around high-quality posts on topics mainly relevant to the people in their neck of the woods."

But now the fun begins. You, the reader, can vote for the "Best of the Best" blog at the ABA Journal site here.  Obviously, I hope you'll give this blog a vote or two (and tell others to do so).  Right now, the Tex Parte Blog has gotten off to a very early lead, but I'm sure it'll be no match for the power that a small state such as Connecticut can bring.

So, many thanks for your help in bringing this blog national attention and my thanks to my law firm for all its support. 

 

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The Second Circuit Court of Appeals (which includes Connecticut) recently ruled on two cases of keen interest to employers. The first relates to enforcement of EEOC subpoenas and the second relates to the classification of some financial services workers.

First, in EEOC v. United Parcel Services, the Court allowed the EEOC to press forward with its subpoena of UPS for records related to the religious rights of employees.  The Court stated that courts that review administrative subpoenas from agencies like the EEOC have a limited role and that if the subpoena meets certain criteria, it will be deemed to be reasonable. 

For employers who are faced with EEOC subpoenas, the case is important because it limits the avenues that employers have to challenge the breadth and scope of the subpoena. 

Second, as pointed out by the California Workforce Resource blog in an excellent post,  "Loan officers, analysts, and brokers of various financial products are generally considered to be well compensated and prestigious positions."  And yet a new decision from the Second Circuit will have employers in Connecticut challenging that assumption. 

In Davis v. J.P. Morgan Chase & Co., the Second Circuit held that "a given position cannot be considered exempt unless it falls on the correct side of the so-called 'production/administrative dichotomy.' According to this 'dichotomy' test, the administrative exemption cannot apply if a worker's services are not being performed for the purpose of internally running the company, but are instead being sold to customers to generate revenue."

Here, an underwriter was deemed to be eligible to receive overtime. 

As you might imagine, the Connecticut Employee Rights Blog lauds the decision suggesting that even insurance underwriters might be eligible to receive overtime under this decision. 

I would not take the analysis that far (yet) but this financial services companies ought to be examining their job descriptions closely after this case and apply the Davis decision carefully to ensure that proper classifications are met. 

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Thanksgiving Day is a day for reflection and pause.  And while my post last year pointed out a number of excellent posts on the subject (including a repeat of Abraham Lincoln's 1863 Thanksgiving Day speech), this year I'm going to take a different and simpler path.

I wanted to take a moment to give thanks to my family and friends, my fellow workers at my lawfirm (Pullman & Comley), and you the reader.  2009 has certainly had its challenges, but when all is said and done, there's still so much to be thankful and grateful for.

I wish you and your family a wonderful Thanksgiving.

 

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In my presentation last week to the HRA of Greater New Haven (which i discussed yesterday), the hottest topic that people wanted to discuss was LinkedIn Recommendations.

People had several questions:

• Should a company bar its employees from doing such recommendations?
• Should a HR department "police" LinkedIn to ensure compliance?
• What is the risk of allowing employees to post recommendations or receive recommendations?
• And, does anyone actually rely on these recommendations?

This issue may take on some renewed prominence as LinkedIn has begun an aggressive series of steps to grow and expand its business.   

I discussed the issue of LinkedIn recommendations back in July after a article suggested that management-side lawyers were advising clients about the "hidden dangers" about LinkedIn.  At the time, I indicated that there were no reported cases about the use of LinkedIn.  Six months later, that remains the case. (You can even look it up yourself on Google Scholar.)

That does not mean that LinkedIn is without any risk.  Of course there is a possibility of a supervisor giving a recommendation to an employee that is inconsistent with a formal performance evaluation.   But that risk existed before the advent of social networks as well.

Each business will have to evaluate the risk as well but one suggestion that we discussed is that companies could prohibit current supervisors of existing employees from posting any recommendations on LinkedIn. That prevents the risk of inconsistency. Once that supervisor/employee relationship is ended (perhaps a new job for either of them), it seems that the restrictions could be lessened. 

But here's the other truth that we discussed: People aren't paying close attention to these recommendations because there are no controls in place. Nothing prevents friends from writing recommendations for other friends. And the "quid pro quo" recommendation -- I'll recommend you if you recommend me -- are all too common. (This point was raised by the World of Work blog in a great post several months back.) 

In addition, are supervisors of bad employees going to be giving recommendations anyways? Probably not, says Molly DiBianca of the Delaware Employment Law Blog.

So what's the right course of action? 

Well, for specific industries that have restrictions on the use of recommendations (such as financial advisors) the answer will be clear.  For many others though, this issue will remain murky.

But right now, employers frankly have much larger issues that they should be focusing on than regulating LinkedIn recommendations.  So, as an employer, discuss it if you must -- but don't treat it as a major concern for liability exposure because so far, that hasn't been the case.  

 

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As I've noted before, the appellate courts in Connecticut release their decisions in advance of an "official" publication date for various reasons. I've now read over the Appellate Court's upcoming decision in Paylan v. St. Mary's Hospital Corp. a few times  trying to discern the big lesson for employers to take from this employment discrimination case in advance of its release.

And while the case won't be "officially" released for another week, the lessons from the case really surround evidentiary issues and provide yet another cautionary tale about the need to preserve electronic data (and the need to have a court involved to protect such data if necessary as well.)

In this case, a fourth-year resident sued her employer claiming discrimination based on her gender. The hospital claimed that she was terminated for poor performance. The hospital produced a poor employee evaluation report and the employee claimed it had been altered to be back dated before she filed a complaint with management.

She sought and obtained a court order that the hard drive be preserved and sought the meta data on the creation of the document. When that did not resolve the issue she sought permission to examine the hard drive but in the interim there had been a computer glitch and the computer system was reformatted during the repairs and the data was no longer available.

After a verdict for the employer after a trial, the employee appealed the trial court's denial of the request to introduce into evidence the court preservation order and obtain jury instruction that specifically references the destruction of evidence (termed a "spoliation" charge).

On appeal, the Appellate Court held that in order to obtain such a charge the employee must show: the information was relevant; the company was on notice that the evidence should be preserved; and the company intentionally destroyed the evidence. Here whatever errors made by the trial court were "harmless" because the employee failed to show that the reformatting of the hard drive was intentional.

In essence, the employer avoided an inference that it destroyed evidence because the employee failed to preserve this issue at trial by introducing evidence that the employer intentionally destoyed such evidence.  For employers, however, this is hardly a license to destroy electronic data.

Indeed, despite the ultimate result in the case, employers should tread extremely cautiously when getting new claims of discrimination in. The trend in federal courts is  towards requiring employers to preserve electronic evidence upon notice of a claim and, given the low cost of computer storage now, arguments that the hard drive was "reformatted" may fall on deaf ears in future cases.

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My thanks to the Human Resource Association of Greater New Haven for the invitation to speak to that group last week on the topic of social media and employment law.  HRAGNH is an affiliate of SHRM and with nearly 60 attendees, we had a packed house for the event.

When I've given such talks in the past, I've always been a little disappointed that more people aren't using social networking tools for their job searches or for recruiting talent.

But I had no such disappointment here -- I'd estimate that about 90 percent of the crowd was already using LinkedIn and Facebook for business or personal use.  (Twitter trailed behind considerably and just one brave soul was using Google Wave). 

In fact, in my conversations with attendees, I was struck by the consistent two-fold message that recruiters and human resources professionals conveyed about social networking sites.

First, if you're a job seeker and aren't on LinkedIn, you might as well be invisible because you aren't going to pop up when companies are looking for candidates.

And for employers, if you don't have an active online social media presence and aren't using LinkedIn to find candidates, you might as well be invisible because you don't exist to many qualified job seekers who are looking for companies that understand technology and are utilizing it to gain a competitive advantage. And you aren't going to be finding talent that can help your company.  

Several attendees were quick to note that some companies still needed some convincing about the utility of using social media for human resources purposes.  For example, many of them are fearful of the use of LinkedIn Recommendations. 

In tomorrow's post, I'll discuss the use of LinkedIn recommendations further and take a fresh look at the subject that I covered over the summer. 

in the meantime, the informal survey of HRA members shows that social networking has not only made inroads, but has definitely moved towards the mainstream.

 

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My sincere thanks to my colleague, Joshua Hawks-Ladds for being the featured speaker today in the continuing monthly webinar series we've been doing on hot topics in employment law.

This month's webinar focused on the unintended employment relationship; in other words, everything you wanted to know about temps, independent contractors and even franchisees (and their employees).  We had another great turnout and some great questions.

Through the wonders of technology, even if you missed it earlier, you can still get the benefits of the webinar. You can download the audio/video of the presentation here (it runs about an hour), or, if you prefer, you can just get the PowerPoint slides here.  Both are available anytime at drop.io/areyoumyemployee.  You can also go to Pullman & Comley's new website where they will be posted shortly too. 

 

Our next webinar is set for December 9th at noon with a topic to be determined.  Just a reminder that the webinars run on the second Wednesday of every month. 

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Over the weekend, I was asked: How do you keep coming up with ideas for the blog? My response was that I use Google Reader to flag stories that may be of interest.

Unfortunately, over the last few weeks, I've been flagging more stories than I've had time to write about.  So, now seems a good time to summarize some employment-law stories you may have missed that I haven't had time to recap.

• Later this week, the Genetic Information Nondiscrimination Act (GINA) will become effective and the New York Times has a recap story here.  However, as I've pointed out before, Connecticut has already had a law on the books and the new law is expected to have a minimal impact in the state.  Updated posters may be the biggest impact from GINA for employers in Connecticut. 
• The EEOC's website recently got a renovation.  Along with the EEOC, the websites for the DOL and the NLRB also received a facelift as well.  
• The U.S. Supreme Court earlier this month agreed to rule on whether two-member NLRB decisions were valid. The World of Work blog has the details. 
• I've talked about developing a social media policy in several earlier posts. Doug Cornelius, of the Compliance Building blog has an excellent summary of some issues to think about when developing such policies or guidelines. 
• Do you need a contract to keep a former employee from competing against your company? According to the Connecticut Business Litigation blog, the answer is yes.  But as he also points out, there are still some protections that a company has in the absence of a written agreement too. 
• The Law Tribune ran a story earlier this month discussing the potential liability that exists for some employers in the construction industry.  According to the article, the trend to temp workers could increase the litigation risks. 
• And finally, the Delaware Employment Law Blog updated its list of the top 100 employment law blogs.  If you're looking for some new resources in the area to follow, you could do a lot worse than to use this list as a baseline.

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Today is Veterans Day. 

Over the last two Veterans Days, I've dedicated posts to discussing the employment laws regarding veterans and to discussing whether Veterans Day should be a National Holiday.

This year, I'm more at a loss of words.  As the wars in Afghanistan and Iraq continue to go on, we continue to owe a great deal to the men and women who are currently fighting or have fought to protect this country.

So, while our work goes on today, take a minute to reflect on their work and learn a little more about the holiday and about our veterans.

The Department of Veterans Affairs has set up a webpage devoted to this day with plenty of resources.  And for those with kids, the VA has set up various webpages for kids as well. 

Lastly, President Obama's proclamation about the day reminds us that this is a day of reflection and service:

Caring for our veterans is more than a way of thanking them for their service. It is an obligation to our fellow citizens who have risked their lives to defend our freedom. This selflessness binds our fates with theirs, and recognizing those who were willing to give their last full measure of devotion for us is a debt of honor for every American.

 

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Allow me to extend my praise for just a brief minute. My lawfirm, Pullman & Comley, just re-launched its website this afternoon.  It's a big improvement on the former site both in terms of content and design. 

In particular, the new website now has links to this blog and others that the firm supports.  Though my favorite part is a little technical as well -- new RSS feeds to subscribe to here. That means that you can subscribe to get news and information at your fingertips using a feed reader such as Google's.  My profile has been freshened up as well. 

The launch of the new site also coincides with the new tagline for the firm: Pulling Together. Succeeding Together. 

So, take a minute to explore. Congratulations to Pullman on the new site. 

 

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Before the World Series started, I put my word on the line (and the blog) with a friendly wager with Jon Hyman, a rabid Phillies fan and the author of the Ohio Employer's Law Blog.  Whoever lost would have to write about the winning team and tie it into some themes about employment law.

Well, the Yankees won against a very good Phillies team and Jon's post about the Yankees is now up.  He is (mostly) gracious in defeat and points out that just because a team has more resources, it doesn't necessarily translate to a victory.

[T]heir superiority of resources is only part of their ability of success. After all, they’ve outspent everyone for as long as I can remember, and yet this is only their first title in the past 10 years. And so, while they always have the best chance to succeed (and always assume that they will), it doesn’t always work out that way for them. This year, for example, they appeared to come together as a team, and not just play as an amalgam of superstars, which perhaps accounts for why they succeeded this year and failed in the decade prior.

For employers, the lesson is this – in many cases, you will assume that you should win. You may have better facts, better law, more money and resources, the better lawyer, and you may even have had past successes and a good rapport with the same judge. And yet, with all of these supposed advantages on your side, you could still find yourself on the losing end of big verdict. Advantages are just that, but they do not bring home the win. Hard work, teamwork, and even a little bit of luck are all needed to take advantage of your advantages.

I certainly would echo Jon's view.   Working together is an overused cliche in today's corporate world, but the results provide support for it time and again. 

But one other thing about this year's team stands out in my mind as well -- the number of veterans on the team.   The Yankees have been fortunate to keep around players like Derek Jeter or Jorge Posada with experience and good judgment.  As companies continue to restructure and try to save costs, there may be a move to keep cheaper talent.  But as the Yankees proved this year, sometimes keeping the experienced team members around is a recipe for success too. 

And for all the Sox fans in Connecticut who have had to endure a long postseason, just remember: Only 90 days or so until pitchers and catchers report for Spring Training. Hope always springs eternal.

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A few weeks ago, Google launched a limited preview of a new communication tool called "Google Wave".  As Google explains it: "Google Wave is an online tool for real-time communication and collaboration. A wave can be both a conversation and a document where people can discuss and work together using richly formatted text, photos, videos, maps, and more."

I like this explanation: 

Google Wave is a real-time communication platform. It combines aspects of email, instant messaging, wikis, web chat, social networking, and project management to build one elegant, in-browser communication client. You can bring a group of friends or business partners together to discuss how your day has been or share files.

After discussing it in an earlier post, I was fortunate to get an early invite to it and have been playing around with it for the last week or two. It's still in its very early development stages so it's really unfair to critique it as a whole. 

One of the issues early on, for example, is that it only works with people who are using it.  Because it is in limited preview, there just aren't that many people on that you can communicate with.  I'd imagine it's a lot like getting one of the first fax machines and then realizing that you had no one that you could fax to.

But even with those limits, I've been able to locate and communicate with other attorneys and human resources professionals on the Wave to collaborate on some ideas and solutions.   To that end, I started a "wave" about "What Employers Need To Know" about the Wave. 

And lo and behold, some of my fellow Wavers were kind enough to post some thoughts.  I sincerely thank them for all of their contributions.   The theme of some of the comments is that while it is a new medium, employers are still going to have some of the same headaches that they have had with other communications tools.  Thus, issues such as the potential for misuse or security or document retention all still exist for the Wave too.

Here are some of other very early insights about it and what employers should think about for their policies. I'll tried to combine the themes and issues that they raised in the bullet points below.

• Wave is just a communications tool. Te same issues with all communication tools going back to the "Xerox" machine are still here.

• For employers, it's important to keep your computer use and communications policies broad. It may be useful to add some DOs and DON'Ts to policies. But the rapidly evolving nature of the tools means the features are constantly changing.

• Companies should also understand that this uses a "cloud-based" technology, which is to say that it's not stored on company servers per se.  Using this for collaboration and holding company information has potential but right now, the system is not secure enough that I would trust a company to put everything on there yet. 

• The Wave is promising but not yet ready for prime-time [a concept I think Google would agree with since it is only in limited preview]. For example, the record-keeping and security measures are currently too weak.

• As Google Wave develops, however, employers need to understand that this will become yet another forum for employee complaints, potential unionizing efforts, and discussion. Monitoring will be tough. Employers will still need to refrain from committing violations of labor law, etc.

• There is no "draft" button on this [though that is being developed] or a "recall" one either. It would be very easy to make inappropriate comments here.. and they're part of corporate history in one click for all eternity.

• On anything collaborative, attorney-client privilege and attorney work product issues abound, especially if employees use employer computers/infrastructure to create the wave.

What's the bottom line for employers?

At this early stage, and given Google's prominence in the marketplace, employers need to stay up-to-date on developments of this.

As a tool for employees, this may be a boon in particular areas where e-mail breaks down.   One of its particular strengths is as a collaboration tool (like a wiki).  As a compliance and litigation issue, however, this is untapped territory. For example, how do you put a "litigation hold" on a Wave?   Employees may be quick to jump in to use this -- but without the controls in place at the company to understand how it should be used, employers shouldn't just open the flood gates yet.

If there are a few thinkers, though, at your workplace who do want to give it a try, let them do so with supervision but remind them that they should be cautious about its use particularly on anything confidential regarding the company.   One project, for example, could be to develop new social media guidelines for your company.

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Over several generations now, parents and their kids have been enthralled and entranced with the readings of the classic children's book - "Are You My Mother?"

Put that same question in the employment context and you get the title to the next free webinar I'm producing -- entitled "Are You My Employee? 

Normally, we do these webinars on the 2d Wednesday of every month but in honor of Veteran's Day next week, we have scheduled a special time for this presentation November 19th at noon EST.

The webinar will provide information about when your independent contractor, leased worker, "temp," franchisee or franchisee's employee is really your employee. Put another way, we'll address what the law is on unintended employment relationships.

One of my law partners, Joshua A. Hawks-Ladds, who also chairs the Connecticut Bar Association's Labor and Employment Section, will discuss the legal issues resulting from an unintended employee -- including claims by governmental authorities, third parties and the unintended employee.

To register, just click on the link.

Amazingly, this will be the sixth monthly webinar we've done in as many months. The feedback and virtual attendance at each of them have been very positive.  Hope to "see" you in a few weeks at the webinar.

 

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Last year I attended and spoke at the Annual Meeting of the American Bar Association Labor & Employment Law Section.  Over the last few years, the meeting has developed into one of the premier conferences to keep up to date on labor and employment law.

This year's meeting is now going on in Washington, D.C. Although I'm unable to attend, the conference materials are now available for free download from the ABA's website.  It's a tremendous resource and I strongly recommend attorneys and in-house counsel take advantage of this terrific resource to stay current on some recent developments.  

There are several dozen of such articles so there's plenty of reference materials for everyone.

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The Connecticut Department of Labor recently announced a new series of seminars for employers on a variety of the "basics" of Connecticut employment law.  They will be held on :

• November 13, 2009 - Introduction to Employment Law
• December 11, 2009 - Complying with Connecticut Drug Testing Laws
• January 8, 2010 - Complying with Connecticut's Family & Medical Leave Act
• February 5, 2010 - The Essentials of Connecticut Wage and Hour Law
• March 12, 2010 - Unemployment Insurance 101

The cost of each seminar is just $25 and the programs run for about 2 hours.  You can find all the details and register at the Department's website here. 

Kudos to the DOL to providing a low-cost service to employers to educate them on some of the basics of employment law. 

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Keeping track of workplace posters is assuredly one of the most mundane aspects for a human resources department but for the next few weeks, perhaps it'll get a little more exciting.

For the first time in a while, employers that are covered by federal anti-discrimination laws (typically 15 or more employees) will need to update their posters to address two new laws. The ADA Amendments Act and the Genetic Information Non-discrimination Act (GINA).

Because of this, the EEOC has updated its mandatory posting (which is available on its website).  Employers can either supplement their existing posters with the new information or print out new posters that address all of the laws in a comprehensive fashion. 

Employers can also order copies of the poster for free from the EEOC website Thus, while some companies may charge up to $75 for the posters and "compliance services", the EEOC has said that that these posters can be used free of charge from their website.

The new posting is mandatory effective November 21, 2009.

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Criminal background checks have, in many ways, never been easier for employers. The internet has made that process quicker, cheaper and more transparent.

And yet, the question of "when" must employers run a criminal background check remains confusing. There are various laws on the subject but they are in different sections of the law and trying to come up with a master list is a difficult task.

So credit the Office of Legislative Research for coming up with a very useful primer this month on when background checks are required by state statutes.

So what does the report cover in detail? Well, the OLR report identifies "all occupations, persons, or other entities for which criminal history background checks are required by statute." It also discusses who is responsible for the criminal history checks and what procedures must be followed. Lastly, it identifies whether the subjects of these checks may be employed or licensed before the check has been completed.

Who is most likely to be covered? According to the OLR report:

Among the many individuals required to undergo criminal history checks are public school employees and school nurses, police officers, bail bondsmen and bail enforcement agents, private investigators, state marshals, locksmiths, pawnbrokers and precious metals dealers (at local option), and coaches with direct contact with children in police-sponsored athletic activities.

Criminal history checks are also required for applicants for nursing home licenses, various types of gaming related licenses, detective and security service licenses, taxicab company certificates, and at the discretion of the Department of Banking (DOB), various entities in the financial services industry. ...

In addition to these many types of individuals and businesses, the laws require criminal history checks for prospective employees of several state agencies including the Department of Motor Vehicles (DMV), Department of Children and Families (DCF), Division of Special Revenue (DSR), and Department of Mental Health and Addiction Services (DMHAS), as well as employees in the vital records unit of the Department of Public Health (DPH), Department of Correction (DOC) employees who have direct contact with inmates, and Department of Developmental Services (DDS) employees who provide direct client care.

Kudos to the OLR for putting together this very helpful primer; I recommend it as a great starting point for employers looking to figure out their legal obligations.

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Anyone who has read this blog for a while knows of my love of the New York Yankees. So much so that a few months back I did an entire employment law post on Derek Jeter's contract.

He's the quintessential Yankee and, from an employment law perspective, an ideal to aspire to. No matter the illness or injury, he reports to work, keeps his head down low and performs on the field. Day in and day out.   I don't think the Yankees are going to run into much trouble with him. 

But I've tied the Yankees into prior posts as well, writing about non-disparagement clauses that the Yankees were considering, and how a Yankees conversation with a juror might be not get a case reversed. 

So, it should come as no surprise that I would have a continuing interest in the Yankees as this post-season progresses and figure out a way to tie it into this blog.

Now, I did spent college in Philadelphia so one might think that I go easy on that town. After all, a town with cheesesteaks (Pat's or Geno's --- doesn't matter to me and Abner's still works too -- see picture) and Rocky can't be all that bad.

But baseball is baseball. And the World Series is no time for sympathy.

So when Jon Hyman, a Phillies Phanatic and the writer of the Ohio Employer's Law Blog, approached me about a friendly wager for the World Series, it was an easy call.  You can read Jon's post about the wager here. 

The wager is simple: Whoever's team loses the World Series has to write a post on his blog praising the winning team (with an employment law spin, of course). 

I have discussed office pools and wagering in Connecticut, particularly in the context of sports events, and you can find those posts here. 

Now, I share with you an interesting comparison: The Phillies were the first major league team to record 10,000 losses making them  the biggest losers in all of baseball (so says USA Today).  The Yankees, on the other hand, have won 40 American League Pennants and 26 World Series. 

So, may the best team win.  And I look forward to pointing readers to a flattering post about the Yankees on Jon's blog sometime next week. 

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Kudos to the Connecticut Bar Association for setting up a free teleseminar tomorrow on the swine (H1N1) flu and the effects on the legal workplace.  Although I will be speaking on some of the legal aspects of the flu, this seminar promises to be different than other seminars because it will feature two state health officials with knowledge and expertise in this particular outbreak.

In this teleconference, you can learn specific steps as to how to implement infection control policies and procedures and how employers can prepare for the epidemic and protect your workplace.

Dr. Albert Geetter, Section Chief of the Office of Public Health Preparedness, will give an overview of the H1N1 flu, what we are currently experiencing clinically in Connecticut, and the status of the H1N1 vaccine program. Attorney Marianne Horn, Connecticut Department of Public Health, will report on the continuing operations planning Governor Jodi Rell has required of each state agency.

I will provide detailed information on the legal ramifications of the flu in the workplace and how to craft an appropriate business continuity policy to deal with the pandemic. The seminar will also benefit lawyers who represent clients that are employers.

To access the teleseminar, please dial: 1(866)206-0240 and enter the participant pin: 145380 (followed by the pound sign).  No registration required.

There is no doubt that the H1N1 flu is now impacting Connecticut in increasing numbers and an official designation of Connecticut as having a "widespread" flu outbreak is very likely this week.  Just because your workplace hasn't yet been affected, do not let that sway you.  Indeed, one thing you'll hear about is that even after this current wave subsides, we're likely to see a third wave of H1N1 flu this spring.

For further information, you can check the CT Flu Watch site or the federal government's Flu.gov site. Both are excellent and have resources that we will be discussing tomorrow. 

 

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To work on State of Connecticut contracts with the Department of Transportation, various contractors have to set up an affirmative action plan.  If they do not have one on file with the DOT, the Department's Division of Contract Compliance will send out the following letter.

So what to do if you don't have a plan? Well, the DOT goes on to provide a sample Affirmative Action Plan (which has been in place since November 2008).

The DOT sample plan has more than just a specific policy regarding affirmative action;  it has sample policies relating to complaint procedures to sexual harassment prevention to maternity leave.

When the government prepares documents, the conventional wisdom is that employers should adopt them. After all, if the government has suggested them, they must be fine.

Here, however, employers may want to think twice and consider modifying them to add provisions that may suit their workplace.  For example, if your workplace is covered by the state and federal FMLA rules, you may need only to tweak the policy to make sure it is explicit that maternity leaves are covered as well.

The maternity leave policy, as proposed by the DOT, is awkwardly worded and written in a style that is far from the "plain-English" style hat is so routinely advocated for personnel policies nowadays.  For example, the policy actually quotes from a 1973 public act (and identifies it by statute) regarding pregnancy discrimination.    Perhaps the DOT can take a cue from one of my fellow "Legal Rebels", Ken Adams, and cut out some of the legal jargon in the next version of these documents.

The sexual harassment policy also appears a little bare bones as well. For employers, the easy solution may be to simply adopt the state's proposed ones, but the best solution may be to craft a policy that fits your workplace better.

 

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This past week, I received a DVD in the mail from an organization called Employer Support of the Guard and Reserve (ESGR).

While I have several friends and relatives serving in the military, I must confess that I hadn't heard much about them before.

So what is ESGR?? Well, its a Department of Defense agency that seeks to promote a culture in which all American employers support and value the military service of their employees by recognizing outstanding support, increasing awareness of the law and resolving conflict through mediation. 

The website is chock full of information relevant to employers, including detailed sample policies and procedures to comply with USERRA (Uniformed Services Employment Reemployment Rights Act). 

The DVD, which is available from the website, is actually a 20 minute training video featuring short vignettes and easy-to-understand guides on the relevant law.  It highlights tricky issues such as how to deal with employees who may be out for short periods of time for reserve duty and how to deal with employees who have been deployed for months at a time. 

For a shorter video, I've embedded this clip from ESGR.  As we approach Veterans Day, the ESGR video and website are great ways for employers to stay on top of the law and support the military. 

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With the swine (H1N1) flu vaccine production running slower than anticipated, the hope that workplaces would avoid the full effects of a pandemic is slowly diminishing.   Interesting, Connecticut is one of just 9 states that are not reporting a widespread swine flu outbreak (perhaps because the first wave hit the state fairly hard).  

I've previously discussed this before, but there are some useful resources out there, several of which have been recently updated. Here are a few of the resources that I can recommend to continue staying on top of this subject:

• Pandemicflu.gov - This is the government's central website for the flu and if you haven't checked it out recently, you're missing out on your tax dollars being put to good use. 
  
  • For businesses, there are dedicated pages to business planning and business guidance. 
  • For some specific industries, the guidance is more particularized (schools, travel & transportation, etc.)
  • There is also state specific information, including where to find flu shots.  The Connecticut page is available here.
• The EEOC has recently updated their guidance regarding the ADA and pandemic flu. It too has answers to frequent asked questions on the subject. 
• While this may be duplicative, in part, the CDC also has set up a very detailed section dedicated to H1N1 flu. 
  
  • Among the useful resources is a page dedicated to the up-to-the-day status on the spread of the virus and the latest news (known as a "situation update")
• Not be outdone among federal agencies, OSHA has updated their resources as well on guidance to keep workplaces safe and also to help with specific industries. 
• For Connecticut employers, there is some additional state specific resources as well, including CT's own "Flu Watch"

Overwhelmed? Well, that's natural. But there are some steps that employers can still take to get your workplace ready for this flu season.

• Update (or create) a Business Continuity Policy with specific provisions for H1N1 flu.
• Encourage employees to get flu shots (both seasonal and H1N1) as soon as possible. To the extent that you offer health insurance to employees, determine if those shots are covered under the appropriate plans. And consider offering flu shot clinics if you have the resources. 
• Clarify what your absence and illness policies will be.  Consider having flexibility in this situation if you can to encourage employees who are sick (or who have someone that is sick in their household) to stay home.
• Make sure your infrastructure can handle an increased telecommuting presence if need be.
• Stay updated on the guidance.

 

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Today is officially Columbus Day.  In prior years, I have written a post on the day and why most people are working today. Given the relevance of the post again this year, I reprint it below (with some slight updates).

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of a federal law, 5 U.S.C. Sec. 6103. Besides being a federal holiday, its a state holiday too.  So, if you work for a federal or state employer in human resources, or otherwise, you have today off.  (As a result, lots of Columbus Day sales are going on too.)

If you are a private employer, you probably don't give your employees the day off.  In fact, a recent survey in California pegged the number of employers giving off for Columbus Day at just 7.8 percent (it ranked above Lincoln's Birthday and below Good Friday). 

Although companies have established holidays, why don't employers have to close on a state or federal holiday? It's pretty straightforward.  The U.S. (unlike some other countries) does not have any "national" holidays.  Indeed, just because the government recognizes a legal holiday doesn't mean that private employers have to follow it. (Other examples include Veteran's Day and, here in Connecticut, Good Friday). 

Legal holidays merely dictate what the government is going to do; how the rest of the country chooses to follow the holiday is up to them.  And yes, that means that you could conceivably make your employees work on Memorial Day or 4th of July (of course, if the company is a service industry, they probably require employees to work today).  But it probably isn't good business practice as employees will flock to those employers who do give off those holidays.

What is a good business practice for Columbus Day now? I would argue that if the employer is going to designate 8-10 days a year for holiday, employees would rather one or two of those days be designated as a floating holiday rather than Columbus Day.   Giving your employees a choice of days is a terrific way to give an added benefit that has the advantage of allowing the employees an choice in their favor.  Thus, most employers just take a pass on designating Columbus Day a holiday. 

The Knights of Columbus, which is based in New Haven, Connecticut, would probably disagree.  But you can visit their museum to learn more about Christopher Columbus. Of course, don't go on Columbus Day: the museum is closed.

Clip art licensed from the Clip Art Gallery on DiscoverySchool.com.

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From time to time, this blog features unedited interviews with people in the labor and employment arena who may be of interest to Connecticut employers.  Today, I'm very pleased to have Nina Pirrotti address a few questions for the blog.

Nina is an attorney with the lawfirm of Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C.  A graduate of Wesleyan University and Yale Law School, Nina joined that lawfirm in 2007, but has years of experience both at a major lawfirm and as a prosecutor in New York City.  Now, she mainly represents employees in all types of employment litigation matters; as such, companies in Connecticut may be on the opposing side of Nina and her firm at some point.

But of greater interest may be that she is the current President of the Connecticut Employment Lawyers Association (which she will tell us more about).   I will be speaking to that group next week on the management-side perspectives to employment litigation.  My sincere thanks to Nina for the invitation to speak to that group and to answer a few questions here for the reader.

1. Thanks for your time Nina. First off, can you tell us a little more about the organization that you chair?

I am the President of the Connecticut Employment Lawyer’s Association (“CT- NELA”), an affiliate of the National Employment Association “NELA”). Our state chapter’s interests are aligned with NELA: we are devoted to protecting and advancing the rights of employees in the workplace. CELA facilitates that goal in a number of ways. We prepare amicus briefs for cases in which a proper interpretation of the law may be critical to employee rights, have an active list serv, well-attended monthly meetings featuring speakers and presentations on a variety of topics relevant to the work that we do, and are about to launch a new website that will contain a number of resources helpful to our members and employees alike. The new website address, which should be up and running by mid October, is: www.ctnela.org.  [Ed. note: It is now up.]

2. As an attorney who mainly represents employees, are their common misconceptions about the work you do by companies? Or, in other words, what should companies know about the work you do?

Companies should know that my firm (and, I would suspect, most other plaintiffs’ employment law firms) scrutinizes every prospective client's case that comes through our office, pick only a select few prospective clients to interview and agree to represent even fewer. By the time we have decided to represent a client, we have reached an informed decision that he/she has a viable case.

3. What is a common mistake or two that you see companies make when dealing with their employees?

One of the most common mistakes I see companies make is failing to engage the employee in an interactive dialogue in order to assess whether or not they can reasonably accommodate the employee's disability.

4. In terms of dealing with employees that are being laid off, are their complaints you've heard from your clients about the way the employer treated him or her that could've been avoided or improved upon?

I had a client whose employer called her the day after she gave birth to inform her that she was being laid off. She received the news as she lay in her hospital bed. I would advise employers to ensure they use neutral criteria in their lay off decisions and, once the decision is made, convey it with compassion. I would also recommend that employers do everything in their power to facilitate the employee's transition to another job. This includes a personalized letter of reference and, if economically feasible, outplacement counseling.

5. For separation agreements, what are some terms that you advise your clients to seek in the agreement? Are there any provisions that employers try to put in that you advise are "deal-breakers" for your clients?

The focus of separation agreements is usually on determining the appropriate amount of compensation and that figure varies depending upon a variety of factors such as the market, employment history and reason for termination. We look at all of those factors and seek to maximize the amount paid. We frown upon liquidated damages clauses and attempts to introduce covenants not to compete/solicit where none were agreed upon during employment but no provisions are per se deal breakers.

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A pair of stories in the last week got me thinking about how amazing technology has gotten and how I wonder if lawyers have truly grasped the pace at which technology is permeating the workplace.

First, the amazing stuff: Google Wave is getting officially launched today to over 100,000 people. Haven't heard of it?  You will.  (Much like those old "You Will" commercials for AT&T voiced by Tom Selleck.)

What's the big deal?

Mashable has a very good explanation of it but here's the 15-second recap:

Google Wave is a real-time communication platform. It combines aspects of email, instant messaging, wikis, web chat, social networking, and project management to build one elegant, in-browser communication client. You can bring a group of friends or business partners together to discuss how your day has been or share files.

Not convinced? There is a complete guide to Google Wave by Mashable that gets into more details.

Of those first 100,000 people that are getting invites today, I'm going to guess that only a tiny fraction of them will be lawyers. Why? Because most attorneys are slow adopters as a group. Many are quite cautious and I dare say that it's only recently that most attorneys finally use e-mail as the primary means of communication.  

But this conservative nature may lead attorneys to underestimate the scope of the changes in the workplace. For example, some in human resources are up in arms, saying that employment law attorneys too often use scare tactics and don't understand the technology they are advising about. As a result, HR professionals are afraid to use new tools (like Facebook or Twitter) to locate candidates, for example.   

What's the solution to this problem? Anthony Zaller of the California Workforce Resource Blog has a suggestion: Make sure that the attorney you work with uses the technology he or she is giving advice about:

When looking for legal advice about these issues, you need to be certain that your lawyer is familiar and up-to-date with the technology available. Does the lawyer who you are seeking legal advice from have a Twitter, Facebook, or LinkedIn account? Do they use an iPhone or Blackberry? If the answer to these questions are ‘no’ – don't be surprised if their advice is to avoid these “new” technologies.

I'm not sure I'd go as far as Anthony on this. After all, there are many competent lawyers who learn about certain topics (like medical malpractice) without having experienced those issues first-hand.  But I do think that lawyers who are using technology in their everyday work may bring a different perspective to this issue.  For example, attorneys who use Twitter may be able to understand both the benefits AND the detriments that using that service can bring. (And I've commented before how some of the opinions about LinkedIn are overblown)

Which leads me back to Google Wave.  The Wave is interesting, novel and a potentially big new way of communicating.  Which means that inevitably -- in the upcoming weeks or months -- we're going to hear some attorney lament its use in the workplace.  But my thought is, let's give it time.  Yes, there will no doubt be a situation where it is misused or abused -- just like every other technology that preceded it. But that doesn't mean that the overall benefits of it should not be attained.

Understanding that clients want practical solutions that embrace technology -- without the advice to simply ignore it -- is a big challenge to lawyers in the upcoming years. Hopefully, as more attorneys start using the technology themselves, more clients will start to think that their attorneys are raising solutions, rather than just raising alarms. 

 And if you're still not convinced of the change in technology, check out the AT&T ad here:

 

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Yesterday, I talked about keeping wage/hour lawsuits and potential claims in perspective. While it is a "hot topic", I also highlighted the fact that the numbers of claims do not support a "stampede at the courthouse" theory that some have advocated. Wage/hour issues should not be ignored, but they are also just part of a number of issues that may keep human resources personnel up at night. 

Today, Jon Hyman over at the Ohio Employer's Law Blog expands upon that further and concludes that the size of a potential class action claim against an employer is an important reason why such issues should not be ignored:.

The danger posed by wage and hour lawsuits, however, isn’t in the number of cases filed. The danger is that most wage and hour cases are filed as class or collective actions, which prove to be very costly and carry with them enormous exposure for employers. You are naive if you don’t think that every plaintiffs attorney asks about wage and hour practices as part of their client intake.

Additionally, the Department of Labor just announced the hiring of 250 new wage and hour investigators. Every employer is a target because no employer does wage and hour perfectly. And, even the tiniest slip can lead to a multi-million dollar claim. Do you need a better reason to get a handle on your wage and hour practices sooner rather than later?

So, Jon's post leads to a good introduction to a  question to the readers. What employment law issue or topic keeps you up at night?

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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 for the next several weeks. 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 that definition.  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.

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The next month or two will certainly be interesting around the workplace.  The H1N1 Virus continues to spread around the country, a new vaccine is ready to be rolled out that experts hope will stave off further infections.  And employers are, in some cases, holding their collective breath that the vaccine wins out so as to avoid mass disruptions in the workplace.

Because things may get dicey over the next few weeks, it's important for employers now to make sure that they understand some of the legal guidelines to follow when dealing with such an illness in the workplace. 

The EEOC has some guidance on the H1N1 virus (it's been around since May) that is worth revisiting.  Indeed, it has a FAQ section with some key questions.  For example:

• During a pandemic, may an employer require its employees to adopt infection control practices?  Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA.
• May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection control strategy?  Yes. An employer may encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions. Telework also may be a reasonable accommodation.

Beyond that, the CDC has prepared updated guidance and materials for employers to use when communicating with employees. The entire toolkit is available here.

Several employers have already decided that they will have a more liberal absence policy if the "swine" flu starts spreading within the workplace. That's not a bad option to consider. Encouraging sick employees to stay home (even with pay) may prevent many others from become absent as well.

Practicing good health habits is another way to prevent the spread of the virus as well.  While this video below may not be the best for your workplace, it certainly gets the point across. 

 

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It's been a busy week. The ABA Journal's Legal Rebels project stopped by for a visit yesterday. We talked about the blog and how attorneys and clients can really take advantage of technology. 

(We also talked about bar association activities; my public thanks to all the people on the various task forces and committees as well as the CBA staff for their tireless work on the projects referred to. Profiles like this tend to understate the accomplishments of others so I'd like to publicly acknowledge those folks too.)

But with all else going on, there's just enough time for another edition of "Quick Hits" where I touch on stories you might have missed recently:

• The Employee Free Choice Act, the on-again, off-again bill that would make wide-spread changes to the nation's labor laws is depending on what you read either getting closer to passage, or going nowhere. But at least one key senator, Arlen Specter, is pointing to the bill's eventual passage with perhaps some changes from the original bill. EFCA Report has a good recap. Those comments have since been tempered.  Additionally, Michael Fox points out that even without EFCA's passage, there could be other changes in the way labor laws are enforced. [My take: Wait until the dust settles on the health care debate before worrying about EFCA.]
   
• The Wait a Second blog reports on a recent racial harassment case that was reversed by the Second Circuit. But this is not your textbook case as the blog highlights: "Most racial harassment cases involve racist whites harassing blacks. This case is the opposite, but the legal standard is the same."
   
• Last week, I talked about Saunders v. Firtel -- which arose out of a dispute between business partners. The case had a bit more about it that I was going to highlight, but the (still relatively new) Connecticut Business Litigation Blog took up the cause.  As Kane states: "The Supreme Court also upheld judicial dissolution of a company owned by the partners. The case highlights the complications that can arise between partners when one partner is also an employee in the business."  Check it out. particularly if you are in a closely held small business.   
   
• The CT News Junkie has a link to the state’s long-anticipated strategic economic planning document.   You are warned, however, it's 550 pages long.  There are many facts and figures there that will be of interest to companies and HR professionals about workforce development and employment.  However, despite the positives that the state has, it still lags behind in growing jobs (noting that the state ranks 37th in employment growth).  Expect to hear a lot more about this in the upcoming weeks and months as the gubernatorial campaign heats up and the expected Democratic challengers focus on this.
   
• Non-Compete agreements continue to be a hot topic in employment law as companies struggle to protect their shrinking or stagnant business from walking out the door with key employees. A recent HR Capitalist blog addresses the issue of how to discuss this with employees.
   
• On Wednesday, the EEOC approved of a "Notice of Proposed Rulemaking", starting the process of developing new regulations for the Americans with Disabilities Act.  No significant details are available yet but the EEOC has indicated that it will construe the statute liberally in light of the new ADA amendments.  (H/T Washington Labor & Employment Wire)
   
• The Laconic Law Blog offers a link to some fresh guidance from the IRS on the proper classification of employees vs. independent contractors. Although there's nothing revolutionary about it, it does help to clarify issues in a nice quick summary.
   
• And lastly, the Delaware Employment Law Blog routinely does a good job discussing work/life balance issues that are worth taking a look it. But as another blog recently noted, this issue is not confined to work.  A terrific article by VentureBeat on how entrepreneurs can raise a family AND start a business, regardless of gender is definitely worth a look at.

 

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Earlier today, I was fortunate to hear Second Circuit Judge Guido Calabresi speak at a Connecticut Bar Association Young Lawyers Section event as the 2009 Distringuished Speaker Award.  He can weave a great story and mixed telling us tales of his interactions between Justices Sotomayor and Roberts, and of working for a United States Supreme Court  Justice many years ago.

Calabresi, a former dean of the Yale Law School, also happens to be part of a "per curiam" decision issued by the Second Circuit late last week that should be of some interest to employers. 

That decision clarified the law in this circuit by finding thatt an employer can be liable for discrimination by a third party that is authorized by the employer to work on its behalf (such as making hiring decisions). In doing so, the Court reversed a lower court's summary judgment ruling and sent it back to the lower court for further proceedings.

The case, Halpert v. Manhattan Apartments (Sept. 10, 2009) (download here) takes the lower court to task saying the language of the age discrimination act should not be read as narrowly as was decided below. The case also has some interesting language that discusses when employers are NOT liable as well. I

By its terms, employer liability under the ADEA is direct: an employer may not “fail or refuse to hire . . . any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). That prohibition applies regardless of whether an employer uses its employees to interview applicants for open positions, or whether it uses intermediaries, such as independent contractors... If a company gives an individual authority to interview job applicants and make hiring decisions on the company’s behalf, then the company may be held liable if that individual improperly discriminates against applicants on the basis of age.

A company is not, of course, liable for the hiring decisions made by independent
contractors who are hiring on their own behalf. Nor is a company liable simply because a job applicant unreasonably (and incorrectly) believes that he is interviewing for a job with the company and that the independent contractor has the authority to make hiring decisions on behalf of the company.  ...

Significantly, however, the company’s potential liability does not depend on whether the individual hiring for the company as its agent is an employee or an independent contractor under the broadest meaning of those words as they are determined by the common law agency test.   An independent contractor can act as an agent, or an apparent agent, of the company for the limited purpose of interviewing and potentially hiring job applicants while still retaining his independence for any number of other purposes.

So, in essence, says the 2d Circuit -- if someone is acting on your behalf, you better watch what their doing.

For employers, the takeaway from this is straightforward: It is not sufficient to just outsource your hiring decisions to a third party and claim you are wiping your hands clean of the situation. The employer in many cases may want to monitor that third party to ensure that discrimination does not occur and that the company's anti-discrimination policies should apply to all such hiring decisions.

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Last week, we held our monthly webinar on the interplay between the state and federal FMLA rules and featured Connecticut Department of Labor Principal Attorney Heidi Lane as a guest speaker.  We had another huge crowd for program.

As we have done before, we have recorded the webinar and uploaded the presentation materials for those that might have missed it. Specifically, you can download for personal use only:

• The presentation slides from the Connecticut Department of Labor;
• Pullman & Comley slides detailing the key differences between state and federal FMLA as well as some action steps employers can take in response;
• And the recorded webinar (note, because of its size and bandwidth restrictions, there are limited number of downloads for a while. So check back again later if you cannot download it immediately) .

Our next webinar is set for October 14th at noon with a new topic to be announced soon. 

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At the recent World Track & Field Championships, a fascinating understory developed about the gender of a runner from South Africa, Caster Semenya.  She recently shattered world records and, in doing so, raised suspicions that something else was going on to explain the record runs. With illegal drugs ruled out, officials are investigating whether she has too many male characteristics to run as a woman.

Late yesterday published reports indicated that Semenya did indeed have some male characteristics and had no womb or ovaries.  

For some time now, the case of Caster Semenya has led me to ponder what would happen if this situation developed for a private employer.  

I will say that I don't have a definitive answer, but the issue is not absurd.  Lawsuits involving "intersex" employees have popped up from time to time and "gender identity" has been proposed as protected class in some federal and state legislation.

Moreover, an employee's gender may, in some limited circumstances, be determinative of an employer's decision.  In fact, employers can actually use gender as a Bona Fide Occupational Qualification (BFOQ) in their employment decisions in rare cases.

For example, where a customer's privacy may be an issue, perhaps in massage therapy, the employer can select individuals based on gender.  Or an employer can cast individuals for roles in artistic productions based on gedner.  The EEOC's regulations on gender as a BFOQ are fairly detailed. And because an employer can use gender as a factor in such circumstances, there might be an instance where an employer wants to be sure.

So, can an employer ask an applicant to state his or her gender? Yes. That's done all the time on job applications and is supported by various federal regulations like 29 C.F.R. 1604.7. That regulation indicates that "A pre-employment inquiry may ask ``Male........., Female.........''; or ``Mr. Mrs. Miss,'' provided that the inquiry is made in good faith for a nondiscriminatory purpose."

Can an employer go further than that and require a medical examination to verify an applicant's gender? My brief perusal of the EEOC regulations and Title VII haven't found anything to answer that question head on.  Courts have adopted rules that, in some cases, prohibit sex stereotyping and there are various proposals out there to expand discrimination laws to include gender identity as a protected class.  (For a very good blog on transgender workplace diversity, check out Dr. Jillian's Weiss's page and there are articles that have written on intersex as well). 

However, medical examinations about an employee's gender identity probably aren't something that was probably thought of in 1964 when Title VII passed. So unfortunately, there isn't a clear cut answer to this.

And until society comes to grips with concepts such as gender identity, we aren't likely to get any definitive answers either.

But it sure is an interesting question to think about. 

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The Connecticut Supreme Court today addressed the issue of who is an "employee" under a provision of the state's unpaid wage law that allows individuals to institute a civil action.  (Conn. Gen. Stat. Sec. 31-72). That statute basically says that when wages aren't paid under some other provisions (sections 31-71a to 31-71i), the employee may bring a lawsuit to recover damages.

Here's the conundrum: Conn. Gen. Stat. Sec. 31-72 doesn't define the term "employee".  In the case released today, Saunders v. Firtel (download here) (officially released on September 22, 2009) , the employer argued that the definition of "employee" -- found in the minimum wage section of the law, Conn. Gen. Stat. 31-58 -- should apply (which would exclude executive, administrative and professional individuals from being an "employee"). 

The Connecticut Supreme Court disagreed and found that the definition of "employee" found in another statute, Conn. Gen. Stat. Sec. 31-71a should apply instead. That statute defines an employee as any individual who "suffered or permitted to work by an employer" (a much broader standard).  

Although the court doesn't touch on this, there could be a little bit of confusion on this issue because the particular definition (Sec. 31-71a) says it applies only to interpreting Sections 31-71a to 31-71i (the basis for an unpaid wage claim). But the court obviously had no problem finding that it would be bizarre for an employee to be able to have a claim for unpaid wages, but not be able to sue about it in the next section.

This decision is really of no surprise. It is hard to imagine that the court would carve out a whole group of employees from the state's unpaid wage statutes that would be unable to sue. 

For employers, this decision should have virtually no impact on the way they run their business. The case addresses an interesting legal point, but aside from that, employers should be paying their employees anyways.

I'll address the remaining part of the case discussing when double damages are appropriate in an upcoming post.  (There was a concurrence and dissent by Chief Justice Rogers on that issue, which is available here.) 

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With vacations and the Labor Day holiday, it's tough to keep track of everything going on this month so here's a friendly reminder and invitation to join us at our next free monthly webinar set for Wednesday, September 9th at noon EDT.

You can register for the program here.

This is our first with a special guest presenter -- Heidi Lane, Principal Attorney with the Connecticut Department of Labor. Ms. Lane, who helps oversee the DOL's enforcement of Connecticut's FMLA rules, will provide her insights into the common mistakes employers make and how to avoid them.

In the hour-long presentation, you will learn about:

-- The changes that have been made to the federal FMLA laws and regulations recently
-- The key differences between federal FMLA and its counterpart in Connecticut
-- What actions employers should take as a result of these changes and key differences
-- What the latest guidance has been from the Connecticut DOL on the issue and what changes may be on the horizon

Our webinar series will continue on the 2d Wednesday of every month.  I'll post the presentation materials on the blog later this week.

Hope you can join us.

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Over the weekend, Jon Lender of the Hartford Courant reported on the "complicated" ethics case of former UConn Health Center medical technologist Priscilla Dickman.  At issue: Whether state ethics laws were violated by "using state equipment, resources and time in furtherance of her private jewelry and travel consulting businesses."

A public hearing over the "ethics" side of her case starts Friday, according to the Courant: 

A reading of the voluminous case file at the Office of State Ethics reveals that it's not just a simple question of whether Dickman's state e-mail records contained personal messages relating to jewelry purchases (which they did), but a battle involving broader issues, such as Dickman's claim that many others did the same things that she's now facing charges over.

She has a pending federal lawsuit against UConn Health Center officials, claiming they harassed and failed to accommodate her over physical disabilities, including a back injury and fibromyalgia. She also has named the ethics agency's enforcement chief and investigator as defendants, saying they are selectively prosecuting her on the non-criminal ethics charges.

"I utilized my computer for non-lab use less than any part-time, full-time employee, as well as supervisor employees," Dickman said in a sworn deposition conducted in May by ethics officials.

The article goes on to provide additional details about the ethics case as well as an unrelated arrest of the employee on forgery charges.  (She is awaiting trial on that aspect.)  

But what the article doesn't delve into is the federal lawsuit. What is that case about? According to the operative Complaint (download here): "Ms. Priscilla Dickman was retaliated against after she exercised her rights under the First Amendment to the United States Constitution, she was discriminated against in violation of the Americans with Disabilities Act,was denied the equal protection of the law, and was subjected to the torts of malicious prosecution, intentional and negligent infliction of emotional distress, abuse of process and defamation." 

The Health Center and the individual defendants have denied most of the factual allegations in the complaint and the legal issues as well, according to an answer which was filed earlier this summer (download here). 

Complicated indeed.

For employers, this case is an example of how employment cases that may seem simple and straightforward at first can turn into costly and time-consuming proceedings. No matter how it turns out, each side will have devoted a substantial amount of resources into this case.  

Thus, before employers make a decision on whether to terminate an employee - always consider the costs that such a decision may have on your business down the road.

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It seems somewhat appropriate that with Labor Day upon us, this blog will celebrate its two year anniversary this week. You can look back at some of the first posts.

Looking back, I'm struck by the nature of my "welcome" post which had set forth ideas of topics that I would cover and in what format. I remember how I thought this would be important because I wasn't sure when I started that I would have anything to write about on a consistent basis. And I was concerned about making sure that the blog would be interesting to readers.

Turns out my worries were WAY overblown.

In fact, with somewhere over 600 posts, there's been plenty to write about.

I've broken a few stories, such as a lawsuit brought by three wrestlers against WWE, and provided context to some other stories making headlines (like the complaint brought by Fox 61 reporter Shelly Sindland). 

And even though posts are added nearly every business day, I still haven't been able to keep up with events. So, last fall, I started a Twitter account to post links to some of the stories that can't fit in the blog. 

And as for whether anyone would find this interesting, well, the numbers speak for themselves.  In fact, sometime later this week, this blog will hit its 600,000th visitor. (Last week alone was one of the busiest weeks we've had.) On a daily basis, there are hundreds of subscribers receiving the feeds and e-mails from this blog.  And according to recent rankings, this is among the 40 highest read law blogs out there -- and within the top 3 most widely read employment law blogs.

Wow.

So, on this anniversary, it seems appropriate to thank several people about this. My law firm -- Pullman & Comley, LLC -- has been incredibly supportive and my fellow partners have always been quick to send me an e-mail letting me know the latest news and events.  My family has put up with nights where I'm playing around with my laptop writing my latest post. My blog host -- Lexblog, led by Kevin O'Keefe -- has made blogging so effortless that I never have to worry about technical snafus or terms like "SEO". They just make it happen.

But, as maudlin as this may sound, my biggest thanks is to you, the reader.  I appreciate your comments, suggestions, support, and help greatly. I've gotten to know several of you because of this and for that opportunity, I'm particularly grateful.

Where to we go from here? I don't know, but I hope it continues to be as much fun as the last two years. Thanks.

So, with Labor Day here, let's also give thanks to every worker out there. Without your hard work (or interesting lawsuit about work), there'd be little to write about. 

With warmest regards, Dan

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As I mentioned on Monday, I was fortunate to be invited back to appear on the "Where We Live", a Connecticut Public Radio staple that talks about local issues in ways you never thought you'd hear on the radio.  (Echoes of Sally Field's speech of "You Like Me" keep running through my head.) 

For nearly a full hour, we talked about all things employment law related. Given the phone calls coming in, we probably could've done a few more hours too.  You can listen to the broadcast here, or download it to listen later.  My thanks to host John Dankosky and his producer, Libby Conn for the invitation and their hospitality.

Several people yesterday asked me about the experience and I thought I'd share some random observations about it and about some of the issues we discussed on air.

• First, you should know if you ever visit the Connecticut Public Radio studios, there are free copies of "Barney" on VHS that they give away in the holding room downstairs. Not exactly, the same -- I suspect -- as the green rooms for say, "The Daily Show with Jon Stewart".
• The studio where it is broadcast is actually quite small. A few microphones around a table and a computer for the host are all that the room can fit.
• The room itself is an exercise in sensory deprivation; the walls are soundproofed. So without an echo, something seems off when you sit in the room. (Colin McEnroe's new show is also broadcast from that studio.) 
• On a more serious note, we had several callers talk about how to deal with illnesses in the workplace.  As I pointed out, there may be laws to protect the employee (such as FMLA or the ADA) but there's still the other side to this -- how to discuss (if at all) the illness in the workplace.  Each situation unfortunately will be different; some workplaces may be more understanding and sympathetic than others. Ultimately, consulting with a capable attorney to understand workplace rights (and, for employers, workplace obligations) may be the best approach.
• Unfortunately, we couldn't address some of the specific questions raised because of ethical rules but as I said, there are a number of free resources available for employers and employees to learn more about the topics. These can be found, for instance, at the Department of Labor website.  
• Because of the numbers of calls, we didn't have a chance to talk more about social networking's implications in the workplace.  Ultimately, the question for employers to consider is what level of trust can you and should you place in your employees.  The answer to that question will vary from employer to employer.
• One of the other topics that we had planned if time permitted was the fact that there are strict time period for employees to file claims against employers (and that employers can take advantage of if they are not followed).  However, I think we were enjoying getting the calls.
• And lastly, John Dankosky really is as nice as he seems over the air. We had a pleasant chat afterwards about various employment law topics and felt as though we could've spent an hour more.  Certainly, our local airwaves are fortunate to have someone who has a natural curiosity about the way things work and loves to share it with his listeners.

Be sure to check out the show if you get a chance. You may end up learning a few things as well.

 

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About two months ago, I was lucky enough to be invited to appear on Connecticut Public Radio's terrific "Where We Live" show to talk briefly about a recent complaint filed by a local reporter.

On Tuesday, I'll be making a return engagement to talk about employment law for the entire hour. I'll post the links to the podcast and broadcast when they become available.

Besides the blog and Twitter feeds that will, I'm sure, inevitably get discussed, among the topics I suspect we'll also touch on is:

• How is social media is affecting the workplace?
• What are some of the rules of the road for employers and employees when struggling through the recession?
• What are some recent changes in the law (like the Ledbetter Fair Pay Act) and what is Congress considering (such as the Employee Free Choice Act).

It'll be broadcast live at 9 a.m. and then re-broadcast at 7 p.m.  

My thanks to the host Jon Dankosky (pictured above -- next to the squirrel) for the invitation back.

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CORRECTED LINK

Keeping up with all the changes in the FMLA at both the state and federal level is a constant struggle.  The next webinar I'll be hosting is designed to cut through this clutter to give employers with some useful takeaways and answer some of FMLA's thorniest questions. 

The free webinar, now set for September 9, 2009 at noon EST, is also our first with a special guest presenter -- Heidi Lane, Principal Attorney with the Connecticut Department of Labor.  You can register for this presentation here. Ms. Lane, who helps oversee the DOL's enforcement of Connecticut's FMLA rules, will provide her insights into the common mistakes employers make and how to avoid them.  My sincere thanks to Ms. Lane for agreeing to participate in this webinar.

In the hour-long presentation, you will learn about:

-- The changes that have been made to the federal FMLA laws and regulations recently
-- The key differences between federal FMLA and its counterpart in Connecticut
-- What actions employers should take as a result of these changes and key differences
-- What the latest guidance has been from the Connecticut DOL on the issue and what changes may be on the horizon

This program is suitable for: in-house counsel; human resources, financial and operations personnel; and anyone else who needs to be up-to-date on this ever-changing area of law.

As a reminder, our webinar series runs the second Wednesday of every month at noon  and is free of charge.  Our prior programs have discussed new Connecticut laws, the Supreme Court's decision in Ricci v. DeStefano, and social networking in the workplace.

If you have any questions, please feel free to drop me a note or send me a message through Twitter (@danielschwartz). 

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Tropical Storm Danny (no relation) formed in the Atlantic Ocean late this morning.  It's still days away from a potential impact on the East Coast but Connecticut IS within the forecasted track's "cone". 

Whether it strengthens to a hurricane and hits Connecticut, or meanders harmlessly into the Atlantic Ocean is for the weather forecasters to figure out.

However, long-time Connecticut residents will remember the impact that the last hurricane to hit Connecticut -- the infamous Hurricane Gloria nearly a quarter of a century ago. Hurricanes and Connecticut do not mix all that well.

So, time to dust off (or, in some cases, create) your hurricane policies -- just in case.

Over a year ago, I discussed some of the common questions that arise during a storm:

As an employer, suppose some employees don't show up for work, allegedly because they are home preparing for the hurricane, can you fire them? For the most part, yes. Connecticut is an at-will employment state.   Whether you will want to fire them, though is an entirely different question.

Do I need to pay employees who don't show up for work for the same reason? That will depend on whether the employee is exempt or non-exempt.  Non-exempt (or hourly) workers are typically paid for time worked, so no work, no pay.  But for exempt (salaried) workers, they will need to be paid if they worked during that week, though the employer may insist that the employee be charged vacation time or paid time off. 

Can I force my employees to work during the storm? The legal answer is that for the most part, the answer is yes. But in practice, most employers take a different approach that depends on the type of work that they are doing.  

Some employers who need to maintain operations 24/7 (a hospital, hotel, etc) may want to designate certain employees as "essential".  Others may decide that they can deal with telecommuting employees for a half-day.  But establishing a policy at the outset so employees know what to expect is essential to avoiding problems later on.  Ultimately, setting reasonable expectations (asking employees to call in if late, and having them make up for lost time) may be all that is needed for some.

However, for extremely serious storms (perhaps a Category 3 Hurricane), the Governor has the power to suspend certain laws under Conn. Gen. Stat. Sec. 28-9.  This is rarely invoked. In non-emergency situations when the Governor says that "non-essential" state workers should stay home, private employers should understand that this applies only to state workers and they are free to set different rules. 

We have closed our business during the storm; do we need to pay employees? The legal answer again depends on whether the employee is an exempt or non-exempt worker.  But if you follow the letter of the law, there are serious ramifications for employee morale.  It will obviously be challenging to some small employers, but paying employees in those times of need may pay dividends later for employee morale as well.

Some other steps you can take this week:

• Get a list of employee cell phone numbers. In the event of widespread power losses or phone outages, you still may be able to send text messages to them.
• Be sure to seek out legal counsel where appropriate for specific legal questions that may arise in this context.  For instance, there may be contractual obligations by an employer or other laws that may apply to your specific situation.
• Stay informed. The National Hurricane Center puts out no-nonsense forecasts without all the hype that sometimes accompanies these types of storms. 

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UPDATED 8/27/09

Continuing our weekly series on "The Basics" of different employment laws, this week we'll look at a great resource set up by the Connecticut Department of Labor that provides employers with useful information about the "basics" of various wage and workplace laws in Connecticut.

This relatively new document (which can be accessed either online or downloaded as a PDF) entitled "A Guide to Wage and Workplace Standards Division and Its Laws", is designed to answer some basic questions for employers on everything from overtime requirements to record-keeping.

The Department of Labor's Director, Gary Pechie, describes the motivation behind the project in a message:

One of our primary goals has been to deliver our services efficiently and in a timely manner and what better way than through our Website? It provides a wealth of information as well as permitting employers to access our services such as requesting sample deduction forms, keeping records other than at the place of employment, and requesting permission to pay other than weekly by simply e-mailing us.

Notably, the guide contains a "key points" that employers (and employees) should take away from the guide. Many of these points should be familiar to employers; if not, then the guide should quickly be a must-read on how to get into compliance under state law.  The key areas are: 

• Employers are required to pay non-exempt employees at least the minimum wage.
• Employers are required to pay non-exempt employees time and one-half their regular rate of pay for hours worked over 40 in a week.
• Employers are required to maintain true and accurate time records on all non-exempt employees.
• Discussion of the definition of executive, administrative and professional employees (exempt employees). Salary by itself does not make an employee exempt from minimum wage, overtime, and record-keeping.
• Requirement to pay wages weekly and/or how to obtain a waiver of this provision.
• Deductions, other than those permitted by state or federal law, must be on a form approved by the Labor Commissioner.

I applaud the Department's efforts to try to make this information accessible and understandable to a wide segment of public. 

My only complaint is that it is nearly impossible to find on the Department's website. It is buried deep in the Wage & Workplace Standards page under a simple "General Information" tab.

Because I know there are several DOL employees who are avid readers of the blog, here's my open request to them: How about moving this information front and center so EVERYONE can take advantage of this great resource?

[UPDATE 8/27/09 - Kudos to the Department of Labor! They now feature a link to the publication prominently at the top "Wage and Workplace Standards" page. You can still view the document here.]

And for employers, consider yourself warned -- Don't miss out on this free resource put out by the Department. (For another great resource, check out the "cheat sheets" on various employment laws put out by Martk Toth of the excellent Manpower Employment Blawg.)

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With the dog days of summer in full force here in Connecticut ("it's the heat AND the humidity"), it seemed an appropriate time to roll out another installment of the "Quick Hits" feature to touch on a few items you might have missed over the last week or so:

• One of the biggest stories that you'll start hearing about is the lawsuit brought by the EEOC yesterday against AT&T in federal court alleging that the company's no-hire policy for those employees who retired under an early retirement plan violated ADEA because it discriminated against older workers.  (The lawsuit itself is available here.) Ross Runkel's blog does a pretty good job this morning  spelling out the details.  For companies that have similar policies, this is definitely an issue to keep a close eye on.
   
• The Connecticut  Employee Rights Blog reported on a recent Illinois decision that held that a "release signed at termination which includes a waiver of the employee’s right to bring a collective action is enforceable and bars such an action."  reports.  Decisions like this might allow employers to breathe a sigh of relief that when employees sign releases, those releases will bring finality to certain claims.
   
• For employers that offer severance pay, one of the issues that never gets talked about  with any detail is the tax implications of such severance pay. A recent article offers a suggestion to employers and employees to reduce FICA taxes by structuring some or all of these severance payments as supplemental unemployment benefit payments ("SUB-Pay").  Well worth a read if your company is struggling with how to deal with the tax issues associated with layoffs.
   
• Without much fanfare, the EEOC has updated a portion of its Compliance Manual addressing the timeliness of filing pay discrimination claims in light of the Lilly Ledbetter Fair Pay. (You can view portions of the Compliance Manual here.) For employers who are wondering about when such claims can be brought (and when the statute of limitations might run), the Manual provides some useful examples.
   
• And finally, there was a good article recently in Law.com that summarizes a lot of the same issues I discussed at last week's webinar on social media and employment law.  Nothing revolutionary, but if you're looking for a post that helps you spot some issues, it's a pretty good start.

(Photo courtesy of MorgueFile)

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With a new wave of swine flu (H1N1) predicted to hit in the upcoming weeks. the Centers for Disease Control released new updated guidance yesterday for employers with recommended actions for businesses to take. (H/T Ohio Employer's Law Blog)

The guidance can be found in two documents: 

• Guidance for Businesses and Employers to Plan and Respond to the 2009–2010 Influenza Season
   
• Preparing for the Flu: A Communication Toolkit for Businesses and Employers (PDF)

At the outset, the CDC acknowledges that trying to balance various interests will be difficult for businesses, depending on the severity of the flu outbreak:

All employers must balance a variety of objectives when determining how best to decrease the spread of influenza and lower the impact of influenza in the workplace. They should consider and communicate their objectives, which may include one or more of the following: (a) reducing transmission among staff, (b) protecting people who are at increased risk of influenza related complications from getting infected with influenza, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.

The guidance then has a variety of action steps for employers to take right now. Some of these are not new; indeed, if you've been following this topic you'll see that some of the suggestions (such as an influenza pandemic plan) have been suggested before. But now that the context of the flu outbreak can be seen, these recommendations may make sense a little more.

• Review or establish a flexible influenza pandemic plan and involve your employees in developing and reviewing your plan;
• Conduct a focused discussion or exercise using your plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected before flu season;
• Have an understanding of your organization’s normal seasonal absenteeism rates and know how to monitor your personnel for any unusual increases in absenteeism through the fall and winter.
• Engage state and local health department to confirm channels of communication and methods for dissemination of local outbreak information;
• Allow sick workers to stay home without fear of losing their jobs;
• Develop other flexible leave policies to allow workers to stay home to care for sick family members or for children if schools dismiss students or child care programs close;
• Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them;
• Share best practices with other businesses in your communities (especially those in your supply chain), chambers of commerce, and associations to improve community response efforts; and
• Add a “widget” or “button” to your company Web page or employee Web sites so employees can access the latest information on influenza: www.cdc.gov/widgets/ and www.cdc.gov/SocialMedia/Campaigns/H1N1/buttons.html

The guidance has much more information in detailed fashion about steps to take when the illnesses start occurring at work (and suggestions if the pandemic increases in severity).  It is well worth reading to stay up-to-date on this ever changing area.

(For local reaction to the CDC's new guidance and what employers are doing in Connecticut, the Hartford Courant has this report.)

 

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Continuing our weekly series of basic laws of the workplace, this week will focus on the injuries at the workplace.

In 2008, there were over 67,000 injuries reported at the workplace (with 34 fatalities).  Thus, at some point or another, odds are that one of your employees will get injured.

While there are whole books spent on handling such claims, there are two basic concepts that employers should consider when employees have work-related injuries.

First, all of these type of injuries (with some limited exceptions) are covered by the workers compensation system in Connecticut.  The WCC in Connecticut has a detailed information packet that provides all the necessary forms and information for employers to get refreshed on the topic.

Second, when these injuries occur, the employer should consider three steps: 1) Assist the employee is getting medical treatment; 2) Notify your insurer of the injury and possible claim; and 3) Fill out the "First Report of Injury" to the insurer, which serves as a more official notice of the claim.

Of course, there are always questions that pop up that don't fit into neat categories. The classic example is an employee who suffers an injury at the company softball game. I suppose the updated example is an office invests in a Nintendo Wii to keep the company morale up and allow people to spend some time during breaks getting in shape.  (Nutmeg Lawyer Adrian Baron takes this one step further; his firm actually bought some Wii games for his staff.) 

Each of these situations will be a little different.  Companies that have risk management departments may be able to address these issues without much outside help, but small to mid-size employers should consider working closely with their insurer to determine the best practices approach to dealing with injuries at the workplace.

And consistent with yesterday's article, making sure your company has purchased workers' compensation insurance is critical to avoiding getting ensnared in the government's crackdown.

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Over the weekend, the Hartford Business Journal published a revealing look at Connecticut's efforts to crackdown on companies that avoid paying employee taxes and workers' compensation insurance. Indeed, according to the published report, the state's efforts resulted in 220 stop-work orders at construction sites across Connecticut.

But the report goes on to contend that "a October 2007 law that gave the state labor department authority to shut down work sites serves as little deterrent to companies intent on illegally keeping costs down."

The underlying issue is that some employers classify various workers as "independent contractors", meaning that taxes are not withheld. Once the employees are properly classified, the employer has to pay those taxes.  (Some also need to carry workers compensation insurance as well.)  Over 200 companies have not, and have been the subject of various investigations by the Connecticut Department of Labor.

The law that the article focuses on, namely, is Public Act 07-89, arising from then Senate Bill 931. 
You can examine the legislative history of the bill here.  That Act amended some of the state laws to allow the Department of Labor to issue certain types of stop-work orders and allow the Department to increase the fines for violations after conducting investigations.

The HBJ report contends that the law has not been as effective as it could be because "Connecticut’s enforcement efforts are hindered by a lack of staffing and no provisions in the law for barring repeat offenders from getting private work."

For employers, particularly those in the construction industry, the article is a stark reminder of the importance of following the guidelines regarding classification of workers and paying employee taxes. 

(Photo courtesy of: Morguefile.com)

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Thanks to all who joined us at today's webinar that looked at the employment law ramifications of employment law.  We had over 100 people sign up for this session.

For those who were unable to join us, you can download a variety of materials related to the webinar. They are:

• The powerpoint presentation;
• The recording of the entire webinar presentation;
• A link to an excellent primer on using Twitter;
• A link to a model social media policy used by IBM;

Notably, about 30 percent of the webinar attendees did not use any social networking site and many reported that their companies still restricted employee access to such sites in some way (though notably, some companies have embraced it fully).

What site did most participants use? LinkedIn (though Facebook ran a close a second) with 61% acceptance.  About 25 percent of webinar participants used Twitter (which may be a case of self-selection, since I posted about the webinar on Twitter in the first place.)

Our monthly webinar series continues the second Wednesday of every month. Next up in September will be a look at the FMLA laws, featuring a guest speaker from the Connecticut Department of Labor. Full details (including a signup) will be available soon.

(Please note that the materials available for download are copyrighted by my law firm; if you would like to use such materials in the future -- beyond Fair Use -- please make such request in writing.)

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Last month, I discussed the topic of furloughs, which have become an attractive option to employers in lieu of layoffs.

Recently, the United States Department of Labor issued a "fact sheet" that provided additional guidance for employers to some frequently asked questions on the topic. 

As the Employer Law Report said,  "While the fact sheet contains no new law or interpretation, in these economic times, it is extremely helpful for employers to have the DOL’s prior guidance on these issues consolidated in one sheet."

Among the questions that the guidance seeks to address:

• If an employer is having trouble meeting payroll, do they need to pay non-exempt employees on the regular payday? (Yes)
   
• Is it legal for an employer to reduce the wages or number of hours of an hourly employee? (Yes, if minimum wage and overtime laws are followed)
   
• Does an employer need to pay an hourly employee for a full day of work if he or she was scheduled for a full day but only worked a partial day due to lack of work? (No)
   
• In general, can an employer reduce an otherwise exempt employee’s salary due to a slowdown in business? (Not for back work, though an employer and prospectively reduce future compensation so long as other tests are met.) 
   
• Can an employer reduce the leave of a salaried exempt employee? (Yes, though in Connecticut, consider whether such leave is akin to accrued vacation.) 
   
• Can a salaried exempt employee volunteer to take time off due to lack of work? (Yes, which allows an employer to deduct for a full day absence, but the voluntary nature of this will be challenged greatly.)  

Employers in Connecticut should continue to be aware that state labor laws may apply as well. (There are other options for companies facing difficult economic times, as well, such as the shared work program.) But the newest guidance provided by the U.S. Department of Labor will be a good start for employers having to deal with this thorny issue.

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Although we already have record registration for our next webinar (scheduled for Wednesday, August 12th at noon EDT), it's not too late to register here. At this webinar, I'll discuss the basics of some of the most popular social media platforms (like Twitter) and the effect and implications that these sites have on your workplace.  

The webinar will also discuss potential policies and procedures that can be implemented to ensure that your company takes advantage of the latest technologies (while keeping productivity and security high).  

Although the webinar will have a Connecticut base, it'll discuss laws that affect employers nationwide.  And most importantly, my first hand experience with these sites can hopefully separate out fact from fiction.

Best of all: The webinar is free of charge.

For extra credit ahead of the webinar, there are a few sources that I'd recommend reading:

• Want to see a company policy that provides guidelines instead of merely a list of restrictions? We'll take a look at the social media policy created by IBM.  While it needs to be tailored to a particular company, it discusses a lot of concepts that are important to get. 
• Looking for another alternative? Doug Cornelius of the Compliance Building blog, has his own set of suggestions for a social media policy. It's well worth taking a look.  A more recent example is Connecticut's own ESPN; its set of guidelines are a bit more restrictive, which makes sense given that the  company that is in the business of providing content. 

I look forward to having you on the webinar. If you have any questions (particularly those you'd like discussed at the webinar), feel free to send me a message on Twitter @danielschwartz or e-mail at dschwartz@pullcom.com.

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The Washington Post has a sobering article out this morning about the expected return of swine flu (H1N1) virus in the upcoming weeks.  Indeed, the experts cited in the article basically state that it's not a matter of "if", but "when" this second wave will hit.

While flu viruses are notoriously capricious, making any firm predictions impossible, a new round could hit the Northern Hemisphere within weeks and lead to major disruptions in schools, workplaces and hospitals, according to U.S. and international health officials.

"The virus is still around and ready to explode," said William Schaffner, an influenza expert at the Vanderbilt University School of Medicine who advises federal health officials. "We're potentially looking at a very big mess."

And for those employers awaiting the development of a vaccine, the article suggests that the first batches may not be ready until the flu's expected peak in October.

The first batches of swine flu vaccine are not expected to become available until mid-October, assuming studies indicate it is safe and effective. And officials have yet to answer many key questions, including how many doses will be needed. If it is two, as many suspect, it could take at least five weeks after the first shot before vaccinated people are fully protected.

For employers, thus, now is the time to review your contingency planning and finalize your policies on how you will address things such as a sick person at the workplace or mass absences for a period of time.

Late last week, the CDC released updated guidance for businesses of all types regarding the H1N1 virus. While the guidance isn't revolutionary, it does provide some specific steps for employers to take.  Among them: 

• Encourage sick workers to stay home and away from the workplace, and provide flexible leave policies.
• Encourage infection control practices in the workplace by displaying posters that address and remind workers about proper hand washing, respiratory hygiene, and cough etiquette. These posters can be found on the Germ Stopper: Posters and Other Materials page.
• Provide written guidance (email, etc.) on novel influenza A (H1N1) flu appropriate for the language and literacy levels of everyone in the workplace. Employers should work closely with local and state public health officials to ensure they are providing the most appropriate and up-to-date information (e.g., the CDC H1N1 Flu website).
• Provide sufficient facilities for hand washing and alcohol-based (at least 60%) hand sanitizers (or wipes) in common workplace areas such as lobbies, corridors, and restrooms.

The next few months may be challenging, but preparation -- not panic - is key to this next wave of flu that is predicted.

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Continuing the weekly series of basic (but perhaps not as widely-known) employment laws in Connecticut, this week's topic focuses on the job application.

Connecticut has an unusual law that prohibits employers from asking about any arrest, criminal charge or conviction that has been erased. 

Conn. Gen. Stat. 31-51i goes one step further too. It requires that certain language be used on the job application form to notify employees of this statute.

If an employer asks information about an applicant's criminal history (and it should definitely consider doing so), it must list the following in "clear and conspicuous language":

1. That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a,
2. That criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and
3.  That any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

One overlooked portion of the statute is Conn. Gen. Stat. 31-51i(f) which requires that access to the portion of an employment application form which contains information concerning the criminal history record of an applicant or employee be restricted. 

Specifically, it "shall only be available to the members of the personnel department of the company, firm or corporation or, if the company, firm or corporation does not have a personnel department, the person in charge of employment, and to any employee or member of the company, firm or corporation, or an agent of such employee or member, involved in the interviewing of the applicant." 

(Note that some financial institutions are still allowed to look at this information on the applicants, pursuant to an exception to this rule.)

Thus, in the dog days of summer, employers can continue to use this time to make sure that forms like job applications contain the most up-to-date information.

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One of the great mysteries in the employment law arena is what is "gross misconduct" under the Consolidated Omnibus Budget Reconciliation Act (COBRA). 

A provocative article published in the latest "The Labor Lawyer" (a publication of the American Bar Association)  answers that question by providing a fairly thorough summary of how courts have analyzed this issue.

But the article goes further by providing suggested strategies for employers to consider to avoid litigation.

Unfortunately, I haven't been able to locate the article (which also won the ABA Labor & Employment Student Writing Contest) online yet. But the author, Erin-Ann Jurrens-Sudkamp, provides some of the suggested approaches.

• Employers should always make a good faith effort to comply with COBRA;
• Employers should write and apply their own gross misconduct definition;
• Employers should make sure that their definition is consistent with company needs, is narrowly tailored, and addresses each of the issues referred to in the paper.
• Employers should put employees on notice about the definition and the consequences of committing gross misconduct.
• Employers should consider operating its own appeals process for employees to challenge COBRA coverage denials.

For employers (and attorneys) that are struggling with this topic, this article provides an in-depth look at the issue and is well worth hunting for. 

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Over the last several days, I've been attending the American Bar Association's Annual Meeting in Chicago as a delegate from Connecticut to its main governing board (you can watch the webcast replay here, featuring a speech by Attorney General Eric Holder). The ABA accomplishes quite a bit and if you've been following my Twitter feed lately, you'll know what I'm talking about.

And while the dog days of summer are clearly upon us, there are a few items to catch up on this week.

• John Phillips asks the question - can a psychogenic illness, like that experienced by 1200 Chinese workers, be covered under the ADA?
• As everyone has been focusing on the Employee Free Choice Act now pending on Congress (still nothing really new to report as of yet), the Department of Labor has issued proposed regulations on other union-related issues. Specifically, earlier this week, the DOL issued a proposal that would require federal contractors to notify employees of their rights under federal labor law. You can find the details at the Washington Employment Law Update. 
• There's been some more movement on the federal legislation regarding the Employment Non-Discrimination Act (ENDA). The latest list of House member who aren't yet committed to the bill is here, as reported by the Workplace Prof blog.   Of course, in Connecticut, we already have laws prohibiting employment discrimination on the basis of sexual orientation.
• Our webinar on social media and its implications for employers is still scheduled for Wednesday, August 12th (and has already exceeded our registration at our last webinar!). It's not too late to sign up. In the meantime, the new Connecticut Business Litigation Blog has an interesting article up about the risks of social networking. I'll try to put some of this into perspective next week.
• Molly DiBianca, of the excellent Delaware Employment Law Blog, has a great list of resources up on flexible work arrangements. It's particularly useful for those concerned about preventing caregiver discrimination. 
• The Prima Facie Law Blog has a great refresher (primer?) on the tax treatment of employment-related judgments and settlements.  It tries to answer the common question of whether certain types of discrimination settlement can be accomplished "tax-free" (the answer is mostly "no"). 

 

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Many moons ago, I discussed the pros and cons of insuring your company against certain types of employment law claims. 

Now, my law partner, Jon Orleans, provides some further specifics in the area with his article this week on employment practices liability insurance policies (EPLI).  You can download the article here.

He touches on the issues that employers (and their lawyers) should be on the lookout for, including knowing what's covered -- and what isn't.

It's a good primer in the area, and a refresher to those who merely dabble in it.

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The New York Times this week published a series of articles revealing studies that showed that drivers who sent text messages were 23 times more likely to get into a collision.  Even the casual use of cell phones while driving may increase the risk of accidents.

In light of these reports, what -- if anything -- should employers be doing about this? That is the subject of a recent blog post by Russell Cawyer of the Texas Employment Law Update.   He suggests a fairly strict approach:

Given that we live in a world where Darwinian principles don't work quickly enough to thin the herd of those too "distracted" to realize that they should not text message while driving, employers should considering adding specific prohibitions against using laptop computers, personal handheld devices, GPS/navigation devices and text messaging while driving to their vehicle fleet usage policies and other policies that govern employees who may drive as part of their duties and responsibilities....

Employers should ensure that their fleet usage policies are updated to prohibit the types of activities employees may engage in while using company vehicles or on company business and should vigorously enforce those policies. Failure to do so can give rise to potential tort claims when those employees are involved in accidents and there is an indication that the driver was distracted because of cell phone, PDA or other non-driving activity.

It's hard to disagree with such wisdom in the abstract. After all, using a laptop while driving isn't the safest thing.

But the problem with such blanket prohibitions is two fold: First, it treats all smart phone use in the car the same. Obviously, being stopped a traffic light to look down at a BlackBerry or get directions from an iPhone is different than typing out a letter on a laptop.  Talking on a hands-free device on a back road may be different than texting while zooming down the interstate.

But second, employees are under tremendous pressure from work to "stay connected" and to be responsive when out of the office.  While it may have been acceptable to be "out of touch" while in your car 15 years ago, that expectation has changed. And until a corporate culture is revised to make it "acceptable" again to be unreachable while driving a car, the push-and-pull of cell phone use will continue to be an issue.

Each company will need to review their policies and determine what is the appropriate level of risk and tolerance it has. Some companies will continue to ban the practice outright, which has a certain appeal to it. Others, instead of an outright prohibition, may want to focus on a overall safe driving practice, while minimizes telephone calls and suggests that employees use hands free devices. 

In any event, ensure that your company's practices are consistent with state law. Connecticut, for example, has placed certain restrictions on the use of cell phones while driving.  And word is that the U.S. Senate is now considering linking highway funds with an outright ban on texting. Stay tuned.

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Think Facebook is just for kids? Or think that Twitter is for the birds? Do you wonder what all the fuss is over social media? Are you hopelessly lost trying to bring your company up to speed with all the social media and networking platforms out there?

The next webinar I'll be presenting (August 12th at noon EDT) at tackles these distinctly 21st century developments from an employment law perspective.  (You can register here.) At this webinar, I'lll discuss the basics of some of the most popular social media platforms and the effect and implications that these sites have on your workplace.  

The webinar will also discuss potential policies and procedures that can be implemented to ensure that your company takes advantage of the latest technologies (while keeping productivity and security high).   Although the webinar will have a Connecticut base, it'll discuss laws that affect employers nationwide.  And most importantly, my first hand experience with these sites can hopefully separate out fact from fiction.

Best of all: The webinar is free of charge.

While I've covered some of this before on the blog, the webinar will hopefully pull everything together in a quick 45-60 minute program that you can view during lunch (or breakfast for those out on the West Coast).  Hope to "see" some of you on there.

The early numbers on the webinar show a great deal of excitement about the topic so be sure to sign up today before we max out.

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As the dog days of summer now seem firmly entranced over Connecticut, this week's installment of "The Basics" focuses on minimum wages.  There are lots of exceptions and rules, but the basics are fairly straightforward:

• Although the federal minimum wage went on on July 24, 2009 to $7.25/hour, Connecticut has its own minimum wage law. Connecticut's rate is set at $8.00 per hour, but will go up to $8.25 per hour effective January 1, 2010. 
• The federal minimum wage acts as a floor, meaning that no state can have a minimum wage less than the federal standard. But states are free to impose higher requirements and Connecticut is one of those states that does that.
• Only three states (plus the District of Columbia) have higher minimum wage standards than Connecticut -- Vermont ($8.06), Oregon ($8.40) and Washington ($8.55).
• Under certain conditions, restaurants may take a credit toward the minimum wage for some service employees who receive tips.  This is known as a "tip credit". The theory behind this is that if the waiter/waitress makes say, $7.00 per hour, but can make the equivalent of $1 per hour on tips, then the "minimum wage" is satisfied. The particulars of the rule (and the restrictions) are available at the Connecticut DOL's website here. 
• There are some limited exceptions to paying minimum wage in Connecticut.  For example, minors who work in government and in agriculture can be paid less than the minimum wage, subject to certain restrictions in Conn. Gen. Stat. Sec. 31-58a.

 

Photo courtesy of Library of Congress, circa 1943. 

 

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One of the many reasons why the Internet is a terrific resource for employers is the ability to search for sample forms and contracts to get ideas on language and format.  For example, check out a site called OneCLE which has pulled publicly-filed employment contracts into a free site..

In the midst of doing a search for sample employment contracts a while back, I came across portions of the employment contract of New York Yankees' shortstop Derek Jeter from the Baseball Hall of Fame website.  His contract is actually among several available on the HOF site including Babe Ruth, Joe DiMaggio and Walter Spahn.  For some reason, I find these contracts fascinating; perhaps it makes you realize that even the most famous sports stars have the same type of contracts that other "ordinary" people use for employment.

Except, of course, that these contracts sometimes have provisions that are a little different.

For example, among the portion of Jeter's contract to be quoted is a provision about the apparent effect that certain types of injuries might have on his salary.  What types? Well, how about an injury from any type of competitive or non-competitive, impromptu or organized games or activities such as: "billiards, boccie, bowling, cricket and darts", to name a few. (Lumberjack sports like log rolling are also apparently out.)  Of course, this is by no means unique to Jeter, but it's still strange to see the provision written down.

But beyond that, most people would probably be disappointed to learn that the majority of the terms of Jeter's employment is covered by the standard Major League Uniform Player's Contract. That contract can be found as part of the Collective Bargaining Agreement between the players' union and Major League Baseball (download here).  Most players have significantly less restrictions on their outside activities under the standard contract, with boxing and wrestling being strictly prohibited.  

Of course, if you're curious how much Jeter is making this year, it's right there in black and white: $20 million. He is paid on a semi-monthly basis from April 15th to September 30th.  That's a $1.67M check (before taxes) twice a month.  Wow.  

Of course, if you just want to know the amounts of every baseball contract, one blog has set up a clearinghouse of every major league (and in some cases minor league) baseball player. Check it out.   

In the meantime, for companies that are looking for ideas on the employment contracts that they use, don't be afraid to use the Internet as a starting point for your research. Just make sure you've consulted with legal counsel about why you should or should not use certain provisions.

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A few weeks ago, I had an issue with my flight home on Southwest Airlines back to Hartford. The details of what happened aren't really important (though they make for a great cocktail hour discussion).  Suffice to say that my flight was delayed and I didn't arrive home until much later than I had originally expected.

A bit later, I wrote Southwest Airlines an e-mail explaining what happened and asking them to look into the situation.  I made no demands of refunds or anything of the sort. Rather, I merely asked them to investigate the situation. Shortly thereafter, I received word back via e-mail that my complaint had been received and was being elevated to a particular division of customer service for a full investigation.

After a bit of time had passed, the most amazing thing happened: I received an actual phone call from a Southwest employee.

She explained that she had investigated my complaint and had determined that, essentially, what I described was true.  As a long-time customer service employee, she said she was surprised actually by the results of her investigation.  She indicated that it was an aberration and apologized for the inconvenience. She said that the company was taking steps to correct the issue and to ensure that proper procedures were in place to deal with the issue (should it reoccur) in the future. And lastly, she offered a travel credit and her thanks to me for pointing out the issue.

And that was that.  Case closed.

I relay this story because it struck me as a textbook example on how to handle communication with a complaining party in a workplace investigation -- whether the complaint is of "harassment" or  improper procedures being followed.    (For another look at workplace investigations, in general, see an earlier post here.)

What did it do right?

• It responded immediately to the complainant and informed the complaining party that it would investigate it along with a timeframe for its expected response. 
• After invesitgation, it contacted the complaining party to let him know that the investigation had been completed.
• It informed the complainant, in general terms, of the results of the investigation.
• It informed the complainant what steps, if any, it was taking as a result of the investigation.
• It thanked the person who made the complainant for coming forward and, if necessary or appropriate, apologized for what happened;
• It took appropriate steps with the complainant to make that complainant whole again. 

Now, not each investigation will have this type of happy ending and there may be instances where such communication is impossible.  

But for the majority of situations, a company should try to followup with the complaining party about the investigation.  It could be the difference between closing the matter and getting a lawsuit later on.

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Earlier this month, a National Law Journal article suggested that LinkedIn recommendations are a potential "legal land mine" for employers. 

Indeed, the article suggests that "management-side lawyers are warning employers about the hidden dangers of LinkedIn, the popular business networking site that posts recommendations for job candidates. Specifically, attorneys are advising employers to be wary of giving glowing remarks about employees on the site because the employers risk having the recommendations used against them in a discrimination or harassment suit."

In the abstract, that seems like fine advice. But what's missing from the article is some common-sense and perspective about that risk.

In fact, I did a quick search of recent cases to see how many involved "LinkedIn" recommendations being a factor in discrimination cases. 

For such a prominent article, any guesses on how many cases turned up? None.

Quite simply this risk is being overblown. How? Because it assumes that managers and supervisors routinely give recommendations to their lowest performing employees. That just doesn't happen with any frequency -- even before the advent of technology.

(Molly DiBianca, of the Delaware Employment Law Blog, agrees with me in a post that came out after this post was scheduled.  Indeed, she suggests that "The real reason employers should be nervous about managers who write recommendations about employees is that those things take time to create and employers would be wise to make sure the recommendation-writing isn’t consuming an inordinate amount of time better spent supervising." ) 

Technology may have changed the medium in which the recommendations are (or are not) given, but the article assumes that managers and supervisors will throw caution into the wind and start making recommendations of people that, for the most part, they probably don't like working with.  Frankly, I don't see that happening very much.

Employers have lots to worry about this year: new ADA rules, new FMLA regulations and lots of new laws either just passed or on the way.

Worrying about LinkedIn recommendations shouldn't even be close to your company's top 10 things to concern yourself about.

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Continuing the summer series of "basics" of various employment laws (see prior installments here, here and here), this week the topic is offer letters. Specifically, at the time of hiring an employee, does Connecticut require any documentation be provided to employees?

The answer is yes.  Perhaps not in the form of an "offer letter" but it must be something resembling it.  Specifically, Conn. Gen. Stat. 31-71f requires that every employer, at the time of hiring, tell employees:

1. What his or her rate of pay will be;
2. What hours the employee will be expected to work;
3. How often the employee will be paid (weekly, bi-weekly, etc.).

Connecticut law also requires that employers "make available" to employees (in writing or through a posted notice) any policies or practices relating to:

• wages;
• vacation pay;
• sick leave;
• health and welfare benefits;
• and comparable matters.

The employer must provide notice to the employees if it makes any changes to these policies or practices. 

For employers, strongly consider using a standard offer letter for each of your hires.  Also be sure that any such letters confirm that the employee is "at-will", meaning that the employer can fire the employee at any time for any reason (and the employee can leave anytime for any reason too). 

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In a hearing earlier today, the Equal Employment Opportunity Commission discussed the "devastating impact" that age discrimination has on workplaces and employees.

For employers, however, the most notable item from the hearing was the release of new technical guidance regarding separation agreements and the waivers of age discrimination claims contained in such agreements.  You can access the EEOC's new guidance here.

My initial glance at the guidance doesn't reveal anything particularly revolutionary. After all, age discrimination waivers have long been covered by the Older Workers Benefit Protection Act. I've previously discussed these rules at length here.

The appendices are particularly helpful for those unfamiliar with the issues. In Appendix A, for employees, the guidance provides a checklist of issues an employee should review when his or her employer offers a severance agreement.

For employers, Appendix B will be helpful because it provides a sample release that an employer can use as the basis for a future separation agreement.

Either way, expect to hear more about this in the upcoming days.  I'll post a further update, if necessary, upon my review of the new guidance in more detail.

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One of the latest fads in employment law has become a peculiar side effect of this recession -- the increase in the use of mandatory furloughs.

What are they? Well, in simple terms, they are orders from an employer to an employee that they take a day (or multiple days) off without pay. In doing so, the employee is to refrain from working.

An excellent post up this morning on the HR Daily Advisory site, runs through the risks of using furloughs, particularly for exempt employees.  Indeed, the title is particularly apt - "Attractive, but Legally Tricky".

There are plenty of traps for employers to fall into. An employer, for example, may decide to reduce salaries by 20% and then reduce workweeks by one day a week.  The post suggests that in general, this approach may not work because of the Department of Labor's pronouncement that "reducing exempt employees' work schedules with a corresponding reduction in salary because of lack of work violates the salary basis test."

The post does suggest a ray of hope, though:

The DOL further clarified that an employer may make a "fixed" and "permanent" decision to reduce the hours and corresponding pay for exempt employees. For instance, an employer could reduce the work schedule for the year from 52 five-day workweeks to 47 five-day workweeks and 5 four-day workweeks, and also reduce the pay of exempt employees as a result of the shortened workweeks.

The linchpin of the distinction between this permitted approach and the impermissible hours reduction is the permanence of the schedule reduction as contrasted to a temporary reduction in the normal scheduled workweek to address a short-term work slowdown or temporary economic conditions.

So, for employers considering using mandatory furloughs as a way to keep their workforce intact through this recession, be careful and cautious.

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Continuing the summer series on the basics of some employment laws in Connecticut, we turn this week to laws regarding working conditions.

Indeed, while the anti-discrimination laws and FMLA laws get all the press, there are a whole host of other laws that regulate the workplace conditions.  These are no less important and ignoring this rules can often lead to a larger investigation on workplace issues.

Here are a few to remember:

• Meal or Rest Periods: Every employee who works at least 7 1/2 hours, is entitled to a consecutive 30 minute period for a meal.  This meal period cannot occur in the first 2 hours or last 2 hours of work, unless there is a written agreement in place.  The DOL has set up various exceptions however for public safety or because of the nature of the position.   (Conn. Gen. Stat. 31-51ii.)
   
• Breastfeeding in the Workplace: Every employee who wishes to express breast milk or breastfeed at work can do so during a meal or rest period.  Employers are obligated to find a suitable room or other location (other than a toilet stall) where the employee can express her milk in private.  (Conn. Gen. Stat. 31-40w.)
   
• Electronic Monitoring: I've previously covered this more extensively in various posts like this one, but suffice to say that Connecticut allows employers to monitor their employees so long as the employees have prior written notice of such monitoring (with limited exceptions).
  
  To provide the notice, the employer must indicate the types of monitoring that may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.)(Conn. Gen. Stat. 31-48d.).
  
  If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment."
   
• No Polygraph Tests: Connecticut also has a blanket prohibition on the use of polygraph (lie-detector) tests by employers for employment purposes (with the exception of such police or correctional facilities) . (Conn. Gen. Stat. 31-51g.)
  
  Interestingly, the ban on polygraphs appears limited to situations where the employer "requests or requires" any employee or prospective employee to submit to or take a lie detector test as a condition of obtaining or continuing employment (and cannot discipline an employee for failing to do so.) Of course, that leaves open a question of whether an employer - as part of an investigation - can ask an employee to do so.  But even in that case, it may run afoul of federal laws on the subject. Suffice to say that any employer wishing to use lie detector tests should consult with counsel about it. 

(Photo: Library of Congress, Women workers employed as wipers in the roundhouse having lunch in their rest room, C. & N.W. R.R., Clinton, Iowa, 1943)

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Thank you to all the attendees of our webinar earlier this afteroon on "Ricci v. DeStefano - What Employers to Know".  The attendance was up substantially over our first webinar and the feedback has been terrific.

In case you missed it, however, you're not out of luck.  You can view and download the Powerpoint slides of the presentation through a link here. You can also view and download the complete presentation (with audio) through a link here.  My only request is that if you find the materials helpful, please drop me a line so we can continue to provide useful, relevant content for our readers.

My thanks as well to my colleague Adam Mocciolo for his significant contributions.

Our next webinar is scheduled for August 12, 2009 at noon EST and is tentatively scheduled to tackle the issues Connecticut employers face in dealing with both the federal and state FMLA laws and regulations (which now differ in some significant ways).  We may make a last minute substitution of the topic if there are any late breaking legal developments (which tends not to happen in August). 

Look for details on the blog soon.

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In a decision to be officially released later this month, the Connecticut Appellate Court has ruled that statements made by a worker during an affirmative action proceeding are subject to absolute immunity from defamation claims.

The decision in Morgan v. Bubar (download here), resolves, at least for now, the unanswered question of what protections should attach to a less-than-traditional investigation and proceeding, such a complaint to a state affirmative action officer.  The court held that the proceeding is "quasi-judicial", which triggers the protection of absolute immunity.  

The court's reasoning is consistent with other types of investigations where there is an interest in having facts told to the investigator without fear of retribution.  "We conclude ... that the policy of encouraging candid disclosure of discriminatory occurrences outweighs the risk that statements made in the context of an affirmative action investigation may be false or malicious."

For private employers, the decision will have less of an impact because the use of affirmative action officers is not nearly as common as various human resources professionals. Nevertheless, it provides the employer (and the employees involved in the investigation) with more clarification that statements made by employees in the context of investigations are likely to be protected by the courts..  

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With the holiday weekend now firmly behind us (and hopefully the wet weather and storms behind us too), it seems like a good time to recap some items you might have missed over the last few weeks in employment law. 

• First, a gentle reminder that our free webinar on the Supreme Court's decision on Ricci v. DeStefano and the implications for private employers is just 48 hours away.  Details and registration are available here. 
   
• There was a excellent pair of articles last week on writing effective performance reviews posted at the HR Daily Advisor here and here.  The key takeaway: Be specific both in what you expect as an employer and what needs to be done (with a timeframe). 
   
• A recent Law.com article asks (and answers) the question for in-house counsel and human resources representatives: Can you access and read your employee's web-based e-mail systems when the employee has accessed it through their workplace computer? The conclusion: It's not worth the risk. 
   
• The National Labor Relations Board has, for the last year or so, been issuing decisions from its two appointed members (out of 5).  Are these decisions "legal" because they are not a majority of the board? If the decisions are not legal, what happens? Do they get thrown out? That is the subject of many different appellate court decisions of late. The Second Circuit (the federal appeals court covering Connecticut) recently issued a decision that gave the thumbs up to the practice, furthering a split among the circuits. 
   
• The Connecticut Supreme Court, in Garcia v. Hartford (download here) recently addressed the question of whether a retiree is an "employee" under a collective bargaining agreement. If so, the retiree would have to exhaust their remedies under the Agreement. The Supreme Court answered the question no, finding that the intent of the parties in this Agreement was that former employees had a different status than current employees. It's yet another example how proper drafting of agreements can avoid years of litigation later on.  
   
• And finally, the Connecticut Innovations blog has a post on how to build an engaging work environment. This is particularly important for start-up companies than may not have an established culture in place. 

 

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Given the typically slower summer months, I'm going to highlight some basic Connecticut employment laws that most employers should be familiar with (but that some may not).  Picking up on yesterday's post, it'll be entitled "The Basics" and hopefully will run at least once every week.

Today's topic: Weekly Payment of Wages.

Connecticut law (Conn. Gen. Stat. 31-71b) provides that employers in Connecticut have to pay their employees on a weekly basis. Not every other week. Not twice a month.

For multi-state employers on may have a bi-weekly payroll schedule across the country, this can cause a few headaches (though most payroll companies have long since been able to adapt payroll schedules on a state-by-state basis). 

But of course, there's a big exception to this:  Employers can ask the Department of Labor for a waiver. Conn. Gen. Stat. 31-71i provides that the department  has the discretion to grant or deny such a waiver, so long as the employee is paid at least once a month.  

To request a bi-weekly payment schedule, in fact, the Conn. DOL has set up an online form that the employer can fill out; these requests are typically granted by the CTDOL.  

For employers who request a semi-monthly or even monthly pay schedules, those requests have to be sent directly to the Department of Labor. Those are typically scrutinized in much more detail and there ought to be a pretty good rationale behind that request. 

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Although I tipped my hand yesterday through some posts (here and here) and an interview with the Connecticut Law Tribune, here are some takeaways for employers from the Ricci v. DeStefano case.

1. The Decision Applies to Private Employers.   Before Ricci was decided, the case could've gone two ways -- it could have been based on constitutional (equal protection) grounds, or on statutory (Title VII -- the law prohibiting race and gender discrimination) grounds. The Court decided to go with the latter.  Why does that make a difference? Because Title VII applies to both private and public employers; if it had been decided on equal protection grounds, it would likely have applied only to public (governmental) employers.
    
2. Testing Will Never Be The Same.  Whether public or private, employers who use tests to assist them in hiring and promotional decisions get some guidance now in the area. Unfortunately, the guidance that the Supreme Court provides isn't particularly illuminating. Parsing things out, the court suggests that if a test is designed to be race-neutral, the fact that the numbers come out differently than an employer expects is not, in and of itself, enough to throw out the results of the test. There needs to be something more, some "strong evidence in fact". What that is remains to be seen.
   
   But supposing that an employer does accept the results of the test, can it defend itself from a disparate impact claim? The court says yes.  The court suggests that as long as an employer designs a test that is that is “job related for the position in question and consistent with business necessity” that might get the employer some traction in defending a claim of disparate impact.  Even in that case, however, the Court opens to the door to employees too: The employee can still win a disparate impact claim if the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.
   
   As a result, employers who use testing in particular will need to be able to rule out other alternatives that it might have used to make its hiring and promotional decisions. (Note: Title VII does contain specific provisions regarding testing as well so employers should not forget to look to the statutory language as well.) 
    
3. Affirmative Action Plans and Diversity Plans Are OK For Now. Maybe.  Some larger companies have programs now that try to ensure that the makeup of their workforce properly represents the makeup of the population.  For example, the employer may track "high potential" employees (particularly minorities) within their corporation to ensure that they receive proper consideration for promotions and opportunities.  Are these programs ok?
   
   The court suggests that it will allow for some affirmative action plans and notes that employer's "voluntary compliance efforts" are essential to the success of Title VII:
   "[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. ... "
   
   For employers, it suggests that you can review your policies and practices that ensure that minorities have a fair chance to succeed, but reinforces the view that you still cannot make your decisions to hire and promote based on race.  But how much "affirmative efforts" an employer can use, remains an unanswered question from Ricci.
    
4. Tread Cautiously In Conducting a Disparate Impact Analysis for Layoffs and Terminations.  One area that disparate impact claims arise is in the context of layoffs and reductions in force. For example, an employee may claim that the black workers were twice as likely to be laid off as white workers.   As a result, many employers have started to conduct a disparate impact analysis before the termination to see if the raw statistics are of concern.  If they are, employers sometimes reconsider their decisions or re-engineer the layoff criteria to remove such a disparate impact. In other cases, employers simply review the particularly data to ensure that the decisions were fair.  
   
   Ricci leaves open the question of whether that practice is legal under Title VII.  The court does suggest that the city "was not entitled to disregard the tests based solely on the racial disparity in the results".  Does this mean that employer -- once it settles on a process for terminations -- cannot change that system after it runs the numbers? At one point is the employer "stuck" with the results? That will likely be the subject of litigation at some point. 
    
5. Don't Expect This Law to Remain Static.  One thing is certain -- there are likely to be some more changes to this law in the years to come. One way is through Congressional action (as Senator Patrick Leahy has already suggested). Another way is through additional Supreme Court action. Indeed, Justice Scalia has suggested that there are battles yet to come on this issue:
   
                   [The] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.

As a reminder, I'll be participating in a free webinar next week on this subject. I anticipate that it'll focus on the practical implications of the decisions and additional steps that employers can take now to avoid becoming the next test case before the Court. 

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The news late Thursday afternoon came without warning from friends, a co-worker, and of course, Twitter.  There was another death of a popular star.  Suddenly. Tragically. 

Jeff Goldblum was dead.

Except he wasn't.

And yet, in the span of a day -- when the world lost Farrah Fawcett and Michael Jackson -- a rumor was spreading that actor Jeff Goldblum was the third star to pass away.  After all, bad things happen in threes.  But it turns out it was completely false.  

The news brought to mind situations where an employer is faced with the similar "dark side". Rumors. Innuendo. Gossip.  

Word spreads fast in a workplace. Even faster now with e-mail.  And for employees, rumors can be toxic, as an old New York Times article explains.  

So, what's an employer to do? 

Well, the specifics first depend on the facts. Is the rumor that an employee is on drugs? Having an affair? Has mental issues? Or, my favorite, doesn't take showers?  

Or is it more general about the company. Is it a rumor that the company is about to layoff employees? Or that the company is in financial difficulties? Or that the chief executive officer is having a liver transplant?

And what's exactly happening? Is e-mail usage about it going up?Is there lots of talk behind closed doors?

Each of these situations (and the many others that get spread) has different levels of response.  

For example, perceiving that an employee is disabled may bring claims under the ADA so an employer can discuss with a supervisor ways to comply with the law.

On the other hand, a reminder that harassing, humiliating or abusive comments about another employee via e-mail might be enough to stop rumors about the sudden disappearance of gray from an employee's head.  

How else can a company react?  Some practical suggestions include:

• Reinforce that the company computers are to be used for company-related business and that inappropriate e-mails such as sexual innuendo will not be tolerated.
• If it persists, consider whether you want to engage in  "electronic monitoring" of your computer system upon proper notice to your workforce
• Maintain consistent intra-corporate communications.  In the absence of facts, rumors can spread fast.
• Every office seems to have an outlaw or two. Talk with them and make sure they understand that spreading gossip will not be tolerated.
• Address rumors immediately.  The speed of the Jeff Goldblum rumor on Thursday reinforces that fact to me.  

And if you hear the rumor today that Jeff Goldblum is dead, you can put a stop to that too.  

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In a case that should send shivers through background check companies, particularly in Connecticut, a federal district court judge recently ruled that a job applicant could proceed to trial with her claims that two background check companies violated in the Fair Credit Reporting Act when they reported that she had been convicted of a crime (when she allegedly had not). 

The case, Adams v. National Engineering Service Corp. (download here) has a detailed and, at times, compelling recitation of a background check that appears to have gone awry but also of a background check company that appears to have done quite a bit to try to alleviate the situation.

Nevertheless, the Court found that what the background check company did to try to comply with the applicable law may not have been enough. (The court has sent the matter on to a jury for a determination.) Other portions of the opinion address the issue of when the background check company needs to report the negative information to the job applicant directly.

Another portion of the case answers the sticky question of whether a background check company needs to provide notice of such negative information to the applicant directly.  Relying on 15 U.S.C. 1681a(k), the court answers the question "yes", finding that the company's reporting of such information to a potential employer is an "adverse action" that requires such notice. 

I've previously discussed background checks before. For companies that engage in background checks (and the employers that use them), compliance with FCRA isn't easy.  Add a hodgepodge of various state laws and it is a compliance issue waiting to happen.

Nevertheless, reviewing and auditing your current policies and procedures may be the best step that employers can take from this case.  As this case illustrates, no detail about the FCRA will be too small.

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Two articles that I've come across over the last week have sparked my interest in the question of what impact cloud computing has on employment law.

Realizing that there are several of you who may think "cloud computing" is simply using your laptop on your next airline flight, let's start with a discussion of cloud computing. As explained in a very good piece published by Kroll OnTrack:

Cloud computing is best understood as a concept rather than a particular technology. Cloud computing involves entrusting electronic data for storage and/or processing to a third-party provider, and then remotely accessing the data "in the cloud" via the Internet. The data is in fact stored on a server—sometimes on a virtual server—operated by the cloud provider, often alongside data from other clients on the same storage services and processors. By allowing clients to pay based on use, cloud computing provides potentially sky-high cost savings to corporations, which can avoid the serious and recurring capital expenditures associated with setting up and maintaining their own servers, such as IT personnel costs. In other words, the users of cloud computing technology pay for what is used. Cloud computing further enables a corporation to quickly and easily ramp up or ramp down computing and storage capacity based on business needs.

So what's the downside? Kroll has highlighted a few issues that employers have glossed over so far including data location, forensic investigation recovery, and cloud provider integrity.

Doug Cornelius, who runs the Compliance Building blog, is attending a conference where he has highlighted other issues including: records management; data privacy; and compliance logs.  In other words, there's great upside and cost savings to using cloud computing, but has anyone thought about the real-world implications? 

From an employment law perspective, I have not seen much, if anything on the subject.   For example, Connecticut's wage and hour laws require employers to keep track of various records of the employee including hours worked, etc. The catch? Such records need to be kept at the employer's place of business for three years.  Does storing the information in "the cloud" satisfy that? 

And suppose an employee is fired for improper use of the Internet and you want to "image" (or copy) the computer that the employee has worked on to preserve the evidence. How do you do that when the computer you want to image may be in a server thousands of miles away? 

Or consider the lawsuit filed by an employee and the call that needs to go out to your IT department to put a "litigation hold" on your data. How do you do that when it's based in the "cloud"?

These are not insurmountable issues for employers. Every new technology brings with it new questions. But employers who are jumping into cloud computing should look past the sales pitches of the companies and ensure that what they are doing will allow them to comply with the law.

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While I'm tempted to write on my airplane flight adventures on the way home from the ABA Presidential Summit on Diversity (they involved a "ground hold" and a Congressional member who had the plane return to the gate), there was quite a lot of ground covered in Day 2 of the Presidential Summit that should be of interest to employers and their attorneys. (In case you missed it, the Day 1 recap can be found here.) 

The first part of Day 2 focused on recapping the various breakout sessions held the day before. Once again, I used Twitter to describe the morning with various details, which I'll reprint here:

• Have to abolish diversity balkanization; how? by emphasizing cross identity mentoring
• Real desire [of companies and attorneys] to gather practices that work and publicize them; but also figure out why diverse people leave workplace
• Need to move beyond [racial] identity discussion, on to diversity of perspectives; battles still not over but need to develop new approaches
• Coordination seems to be theme [for diversity]: between associations, schools, clients, firms; everyone must help schools give students right skills to succeed
• How to be accountable for diversity? Suggestions ranged from having clients dictate it (financially), or having 'best practices' that employers can follow

Later on in the morning, Michelle Coleman Mayes, General Counsel for Allstate, provided attendees with her secret to ensuring a diverse workforce, which I also tweeted:

• Being a deliberate leader (in any walk of life) is critical to success not only of yourself, but also because of effect on others
• Need to be "diverse" - not in traditional sense, but in being comprehensive in learning about others; be willing to fail too
• Last part of success in this area is 'be vigilant'; ideas are great, but followup (and more) is even more important

All of the materials from the conference are now available for download to everyone.  And the best part, the materials are free.  So, you too, can get the benefit of two-day meeting.

At the ABA Annual Meeting in Chicago, the group's core will meet again to go over the results from the summit and continue to provide concrete solutions that the ABA and others can focus on in the short- and long-term.

 

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Today was Day 1 of the ABA Presidential Summit on Diversity being held just outside Washington, DC. 

Recapping such a conference in a blog post is impossible; I won't even begin to try.  But I thought I would pass along some thoughts from the conference's Twitter feed.

So, in response to the question on "Why Have Diversity In Your Law Firm and Company?", here were some thoughts from the speakers:

• For one, in order to understand and engaged with diverse clients
• For another reason, some clients, like Wal-Mart, are also demanding it
• Because research proves that a broader team with perspective comes up with better answers
• Because minorities will become the majority by 2050; there is a business case and economic imperative to do so
• For litigators, if you have broad perspective you can better convince a jury and understand their perspective

Time and again, speakers weren't hesitant to say that there is a legitimate business rationale for having diversity being a top priority.  

What company was singled out by some for their successes and their advancement of a more inclusive workforce? In other words, what company has recognized the business case for diversity? Wal-Mart.  

The company continues to be held out as a model for their push to their suppliers and law firms to make diversity not only a priority, but a way of doing business. (You can read about their significant efforts at their website here.) And yet there are some who continue to claim that Wal-Mart is unfriendly to workers.  Go figure.  

But beyond the "Why", we also discussed the "how". In an upcoming post, I'll recap some of the suggestions.  

Day 2 starts early on Saturday. You can continue to follow along at search.twitter.com and enter the term "#abadiv".  Or, if you'd like, you can view all the conference materials online at the conference's home page.  

 

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I'll be attending the ABA Presidential Summit on Diversity the next two days in Washington, DC and using Twitter to report on the highlights.  

It's an important topic for employers and lawfirms: What are the next steps we can take to move beyond the current discussion on diversity?  It's a working summit, so we'll be rolling up the sleeves to address these issues.

You can follow along a variety of ways: Go to search.twitter.com and search for "abadiv"; you'll get all the highlights. Or, you can go to my Twitter feed at twitter.com/danielschwartz (or @danielschwartz if you're already on Twitter).  

I'll provide some recaps each day on information relevant to employers so check back later.  

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In case you missed it, a California court recently upheld a $4.1 billion aribration award to a former executive who brought a wrongful termination suit against his former employer. (The National Law Journal has a good analysis today of what happened here, as well.)   

Although this blog covers issues applilcable to Connecticut employers, the lessons learned from this California case -- which seems to be the largest single plaintiff employment law case award ever -- are applicable to employers everywhere. 

Numerous other blogs have done a great job recapping the case so I'm not going to spend time here doing so. For a employee perspective, check out the Employee Rights Post recap.  For an employer perspective, check out the Manpower Employment Blawg.  (And for a humorous perspective, check out World of Work's "First Annual Dr. Evil Award".) 

But the lessons learned from this case are simple: If you're an employer and you make promises, you'll be bound by them. Even if they lead to really really big numbers.  Proper drafting of employment contracts and follow through on the issues that such contracts raise can help an employer avoid similar issues in the future. 

For more links about the case, check out Overlawyered.

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 A few months ago, I noted that Connecticut's Department of Labor has had a long-standing (but, until recently, little-used) work-share program under the title of the Shared Work program.  

The Connecticut DOL describes it as:

a voluntary program providing an alternative to layoffs for employers faced with a temporary decline in business. Rather than laying off a percentage of the work force to cut costs, an employer may reduce the hours and wages of all or a particular group of employees. The employees whose hours and wages are reduced can receive partial unemployment insurance benefits to supplement their lost wages. These partial benefits are made possible through special eligibility regulations governing the Shared Work Unemployment Compensation Program.

On Tuesday, The New York Times profiles the Connecticut program and others saying that "many are turning to a novel but unheralded program that cuts their costs while sparing their workers’ jobs."

Putting aside for the moment the specious claim of "many", the article does say that as many as 5000 Connecticut employees are in the program, up from just 250 a year ago.  

So, does it work?  Well, the answer is not that clear cut yet, at least according to the article. But some executives believe in the benefits:

Several executives that use work-sharing explained companies’ choices. Needing to cut payroll by 10 percent for six months, recession-plagued managers could lay off 10 percent of their workers, perhaps incurring anger and heavy severance payments. Or they could use work-sharing, avoiding severance payments and the expense of rehiring and retraining later.

“Just the ability to hang on to people in tough times and not force them out the door is good for morale,” said David Edgar, vice president for human resources at Reflexite, a manufacturer based in Avon, Conn., that makes reflective material for highway signs, motorcycle helmets and roadwork vests.

The Connecticut DOL does indicate that it believes employers can recognize the following advantages to using the program:

• Retain all workers
• Maintain the continuity in your skilled work force.
• Be prepared for business upswings because your work force remains in place.
• Avoid the time and expense of training new employees when business turns around.
• Foster better morale in your employees because you avoid the insecurity, unrest, and bumping characteristic of most layoffs.

For employers who are continuing to struggle through this recession, having more options is never a bad thing.

 

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A few weeks back, I reported on the progress of a bill that would require retail establishments to open up their private employee restrooms for customers with some medical conditions. 

House Bill 6328 has now become Public Act 09-129 after the legislature approved the measure late last month.  Yesterday it was transmitted to the Secretary of State to become law effective October 1, 2009.

You can download the full text of the new law here.

What Does the New Law Require?

Any retail establishment (any business that is open to the general public to sell goods or services) that has employee-only restrooms must permit a customer to use that restroom during normal business hours if the restroom is maintained in a reasonably safe manner and four conditions are met:

1. Customer must have written evidence, by a licensed health care provider, that he/she suffers from an eligible medical condition (colitis, Crohn’s; IBS; IBD; celiac disease or “any other condition requiring use of ostomy device”)
    
2. A public restroom is not immediately accessible to the customer;
    
3. At the time that the request for access to the employee restroom is made, three or more employees of the retail establishment are working; and
    
4. The employee restroom is located in an area of the retail establishment that does not present an obvious risk to the health or safety of the customer or an obvious security risk to the retail establishment.

As I said before, this bill is well-intentioned. (Indeed for more information on the medical conditions, you can view this website.) But how employers are going to deal with the practical ramifications of it is another story.  

For example, can a bank refuse access to its restroom because of the "obvious security risk" of allowing a customer access to private parts of the bank?  Are employees supposed to make these decisions about who has an eligible medical condition and what documentation they will accept?  And how close does a public restroom need to be in order for it to be accessible? Next door? Down the street?

Nevertheless, retail establishments should review their restroom policies and procedures and notify employees of any changes to the restroom access, particularly after the law's effective date of October 1, 2009.  If restrictions are still necessary, be sure to document the reasons for such a decision.  Any violations of the law will be treated as an infraction -- most likely a small fine.

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Suppose you've drafted a fairly lengthy agreement entitled "Employment, Non-Solicitation, and Confidentiality Agreement" for an employee to sign. And suppose that among the provisions is a paragraph entitled "Agreement Not to Solicit". And now suppose that the language details various items that the employee is prohibited from doing.

What's the issue, you may ask? Well, suppose as well that  the paragraph is missing "operative language". In other words, it's missing a few key words about the employee's responsibility under the agreement such as "I shall not" or "I will not" do those prohibited tasks. 

Is the agreement (and the specific paragraph prohibiting solicitation) still enforceable?

According to an Appellate Court decision released this morning (and officially released June 16, 2009), the answer is a most definite "yes".

In Hilb Rogal & Hobbs Co. v. Randall (download here),  the court held that

despite the missing language, it is clear from the title of the employment agreement, the title of paragraph six and the language found under paragraph six that the parties intended that the defendant would be prohibited from engaging in solicitation for two years. ...  The fact that the employment agreement imposes remedies for violations of paragraph six further evidences that paragraph six was intended to prohibit certain conduct.

From a legal perspective, the case is important because the Appellate Court reached this conclusion without having the "reform" (or rewrite) the contract:

Contrary to the trial court, we do not believe that the contract at hand needed to be reformed for the court to be empowered to supply an obvious missing term consistent with the clear intent expressed in the balance of the contract language. ... Because the intent of the nonsolicitation agreement is plain from an objective reading of the contract, a request for reformation is not necessary to enforce the provision.

Why is this case important for employers?

There are several takeaways from this decision. First, employers should never overlook the importance of proper drafting.  Just a few missing words here has caused lots of grief for this employer.  Even agreements that seem perfunctory (and perhaps borrowed from other agreements) should be scrutinized to ensure that no language has been lost in the drafting and revisions.

Second, the Court seems to approve of the contract even though the only consideration for the agreement was a promise of continued employment by the employer. In addition, the Court tacitly approves of the non-solicitation clause's two-year prohibition without any consideration of whether the scope of that provision is overly broad.  Employers should keep this in mind as they draft future agreements.

Overall, the decision is a sensible one and elevates substance over form. That doesn't mean that employers should draft their agreements in haste; but it does mean that if there is a clerical errors or inadvertant omissions, employers can still try to enforce that agreement.

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With all the developments the last week or two with the Connecticut legislative session, it's been difficult to keep up with everything ELSE happening in employment law. 

So, time for a "Quick Hits" post, where I recap some of the stories you might have missed relating to the world of labor and employment law that might be of interest to employers in Connecticut and beyond.

• Michael Moore, of the Pennsylvania Labor & Employment Blog, has a long-awaited followup to his guest post in this blog last year on Body Mass Index being the next type of claim out there under the ADA.  This time, he looks at the effect of the new ADA amendments on such claims.
   
• In what should be a surprise to no one, the U.S. Government has delayed implementation of E-Verify yet again for federal contractors. (My most recent post on E-Verify is here.) The newest date is September 8, 2009.  Don't hold your breath on this one.
   
• The World of Work was among numerous blogs that reported this week on a new case out of California overturning a $105M verdict in favor of baristas who claimed that they shouldn't have had to share the "tip jar" with shift supervisors. (H/T Overlawyered)
   
• As you may know, the NLRB - a five member board - has only had two appointees lately. A recent appellate court called into question the legitimacy of the decisions by the board. The inevitable appeals have now started, reports the Workplace Prof blog. I have a hard time believing that this decision is going to be upheld but we'll see. For employers, however, unless you have a case up at the Board level, this isn't something that will impact them, at least in the short term. 
   
• The intersection between Twitter and employment law -- the subject of an earlier post by me -- gets the scholarly treatment with an interesting seminar article. Some of it states the obvious such as "Users must be careful what they tweet. Twitter is subject to vast potential liability, as is any electronic communication tool." But it's refreshing to see someone looking at the subject from a treetop level.  

 

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With the legislative session ending on Wednesday at midnight, there's a lot for employers to keep an eye out. Here's a quick summary of what's still alive and what's not, at the Connecticut General Assembly.

• Senate Bill 365 (S.B. 365) - A bill that would prohibit so-called captive audience meetings by employers (typically regarding a union campaign) passed the Senate on May 20th but is still awaiting a House vote. 
• Senate Bill 710 (S.B. 710) - A bill that instituted changes to the state FMLA laws was signed by the Governor on May 27th. It is effective immediately. 
• House Bill 5521 (H.B. 5521) - A bill that would prohibit employers from using credit reports as a basis for employment decisions is awaiting a possible senate vote after passage in the House on May 1th. 
• House Bill 6187 (H.B. 6187) - The so-called Paid Sick Leave bill passed on the House on May 28th and is still awaiting a vote in the Senate.  Time is running out for this bill.  There are 18 amendments that have been proposed for the Senate version of the bill and the CBIA released a statement this morning that said a vote could come at any time. 
• House Bill 6545 (H.B. 6545) - This bill is a late entry into the bills I've been watching regarding labor & employment law and just passed the House last night.  This bill provides collective bargaining rights to two groups of state employees who cannot collectively bargain under current law: (1) managers and (2) Legislative Branch employees of the State Capitol Police.

In addition to the above bills, I've previously covered House Bill 6185, which made changes to the state's personnel files laws and also changes to the gender discrimination law as well. 

Stay tuned....

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This morning's pick of Second Circuit appellate judge Sonia Sotomayor as the next U.S. Supreme Court justice is a truly momentous occasion. If confirmed, she will be the Court's first Hispanic Supreme Court justice. 

There's plenty of great analysis already out there this morning about the pick, including coverage by the SCOTUSBlog.  And Michael Fox is first out the gate with a recap of all the relevant labor and employment cases by Judge Sotomayor. 

Connecticut readers will no doubt recall that Judge Sotomayor was the author of a notable decision in the Ricci v. DeStefano case that is now pending at the U.S. Supreme Court. In that case, a group of firefighters contends that New Haven has discriminated against them because of their race.

But one case from 1995 stands out in my view, and not merely for my love of baseball; it was Judge Sotomayor who single-handedly ended the baseball strike.  (H/T Amanda Rykoff) 

On March 30, 1995, she issued the preliminary injunction against Major League Baseball, preventing MLB from unilaterally implementing a new Collective Bargaining Agreement and using replacement players, thus ending the 1994 baseball strike.  The New York Times did a interesting profile of her back then.

Her pragmatic approach in that case (and her knowledge of baseball) shouldn't be overlooked as the confirmation hearings take place later this summer. Indeed, this is exactly the type of case that people can relate to and I expect we'll hear a lot more about it in the weeks to come.

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A quick update on the Mortgage Lenders Network matter I've covered a few times before (here and here.) 

Earlier this month, a Delaware bankruptcy court approved of a $2.7 million settlement of a class-action lawsuit filed on behalf of more than 1600 employees, many of whom worked in Connecticut.

The settlement, first reported by the Hartford Courant, essentially covers wages and salaries that should have been paid during the 60-day WARN notice period.  The average payout per employee is $1,636. 

The Courant adds a few more details:

Monday's settlement is separate from the civil lawsuit seeking unpaid wages and commissions being pursued by the attorney general and the state Department of Labor. That lawsuit seeks $2.6 million for about 100 employees.

Charles A. Ercole, a lawyer for the Philadelphia law firm that negotiated Monday's settlement, said Monday that MLN was left with few assets when it filed for bankruptcy. But the company has subsequently been able to recover some money from lenders who provided lines of credit to fund MLN's mortgage business, Ercole said.

"It is a very good settlement under the circumstances," Ercole said.

Final court approval is expected after a hearing Aug. 5. Checks could be sent out in early fall, Ercole said.

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When someone like Oprah Winfrey signs up for a service like Twitter, you know the service is starting to get mainstream. 

Still thinking that Twitter is for techies or your kids? Think again.  Lawyers, HR Professionals, and media outlets are all on there. (There's a great list of 20 Twitterers that lawyers should follow and yet another list here of 736 lawyers.)  It’s basically micro-blogging; writers have only 140 characters or less to get across a message (which as you might be able to tell from this blog is not exceedingly tough for lawyers). It's quick and fun.

You just need to know where to look.  (For example, you can find me @danielschwartz, as I'll explain). So, assuming that you are interested in employment law and HR-related topics by reading the blog, I'll present for you my list of 10 people or companies to follow on Twitter relating to employment law.

("Following" is a concept similar to subscribing to a newspaper; you get access to that person's "tweets" or messages.)

First, a caveat. Lists are notoriously random and I'm sure that I've left a few off -- some unintentionally (as I'm sure I'll find out) and some intentionally (like many HR folks who have compiled their own top ten lists, such as @jessica_lee, @kris_dunn, @sharlyn_lauby, @cincyrecruiter and @hrbartender to name just a few). 

So, feel free to add your Twitter name to the comments section below and do not be offended if your name doesn't appear; it's intended as a starting point for conversations not an end.  Note that names on Twitter begin with the '@' symbol. Don't ask me why; that's just the way it is.  But if you're on the web, you can find any of them at twitter.com/[username, without the @].

So, in no particular order, here are ten feeds to get you started.

1. @TheHRLawyer - Chris McKinney, who also authors the HR Lawyer's Blog;
2. @rossrunkel - Ross was one of the first employment law bloggers and his twitter feeds consistently provide useful and concise information related to employment law;
3. @hirecentrix - Yes, a little more HR-centric, but Karen Mattonen provides information on HR news with several legal-related items;
4. @manpowerblog - Mark Toth is a newbie to Twitter, but his blog is one of the most entertaining and education sites out there;
5. @Eric_B_Meyer - Eric has had his pulse on the Employee Free Choice Act, but also sets his sights at being a premium employment law writer for Twitter;
6.  @davidmellon - Anyone who can be a dad to quadruplets and do ANYTHING else is worth a follow, right?
7. @Labor_Law - JD Supra provides timely information on a number of labor & employment law topics;
8. @djillpugh - Despite (or rather, in spite of?) representing employees, Jill provides useful information on employment law trends; in all seriousness, she has some really good material;
9. @dougcornelius - Doug doesn't write strictly on employment law issues -- his focus is on compliance -- but the issues he discusses directly impact employee/employer relationships and dynamics;
10. @jonhyman - Jon does the Ohio Employer's Law Blog; while his tweets tend to mirror his blog, they provide a great resource, particularly his Friday recap posts.

I've discussed Twitter in some prior posts as well including this one about Twitter in the Workplace.  Again, you can find me at twitter.com/danielschwartz.

Can you suggest any other employment law twitterers to follow? Add them to the list by commenting below and, if things warrant, I'll do a followup post.

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Employers right now have a lot to worry about. New ADA rules. New FMLA regulations. New COBRA rules.

In an article entitled "The unabalanced high-tech lift: are employers liable?", a few academics suggest that technology may be something else that employers need to worry about. 

The article summary states:

• Technology has created new capabilities, as well as new demands, for many of today's employees. For those who work in technology-enhanced environments, the pace and round-the-clock activity creates a source of stimulation that may become addictive.
• While the potential for this type of behavioral addiction is recognized by both researchers and the popular press, few companies are seriously considering the associated risks, one of which could be legal action against the organization.
• By combining research on addiction, technology use, workplace demands, and legal precedent, this article considers issues likely to require decision by the courts, as well as background on the evolution of related legal questions for insight to possible outcomes.

Unfortunately, the article isn't readily available online (at least not without a fee). 

But with all that employers are worrying about, focusing on possible technology addiction or the like isn't one of the concerns that should be anywhere near an employer's Top 10 list. 

(H/T - Workplace Prof Blog)

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In a unanimous decision released publicly today, the Connecticut Supreme Court narrowed the scope of the qualified privilege that employers have been able to invoke in defamation claims involving intracorporate communications.  In doing so, the court held that the defamed party (typically an employee) does not need to prove "actual malice" to defeat a qualified privilege claim.

As a result of this this ruling, employees may have an easier time establishing a defamation claim and employers will need to make sure that any workplace statements they make can be backed up.

The case, Gambardella v. Apple Health Care (download here) won't be "officially released" until May 19, 2009.  But the holding may give employers another reason to worry about what they say in the workplace about others.

It was a worry that the employer here highlighted as the court acknowledged:

The crux of the defendants’ claim is that the purpose underlying the privilege, namely, to
encourage the free flow of information necessary for efficient, intelligent employment decisions, is hindered only if the speaker acts with actual malice because only false information, not mere bad faith, impedes the free flow of information necessary for employment decisions.  Consequently, the defendants contend, actual malice should be the standard to defeat the qualified privilege in the context of intracorporate communications with respect to employment decisions. We are not persuaded.

Instead, the court distinguished prior cases (including the landmark Torosyan v. Boehringer Ingelheim case) and found that a broader standard should apply even though the employer's reading of various decisions. In fact, the court goes out of its way to say that "although we acknowledge that these footnotes [in prior cases] may be interpreted consistently with the defendants’ contentions, we reject this interpretation." 

Therefore, it is clear that the settled law in Connecticut is that a showing of either actual malice or malice in fact will defeat a defense of qualified privilege in the context of employment decisions. The defendants have provided no compelling  reason to depart from our well established jurisprudence and require a showing of actual malice exclusively simply because the qualified privilege arises in the context of intracorporate communications in connection with employment decisions. Accordingly, we reject the defendants’ invitation to do so.

Observant practitioners will remember the title of this case from a prior appellate court decision in 2005 which remanded the case to the trial court on the defamation issue.  Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842 (2005).

 

Continue Reading...

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Going to a trial with an employment discrimination case is expensive. Which is one reason why many employers will ask the court to dismiss a claim before trial using a process known as "summary judgment". 

But a recent federal court case illustrates the difficulty that employers still have in getting courts to grant summary judgment and how cases that seem small can end up becoming big.  

The case, Rolon v. Pep Boys -- Manny, Moe & Jack, 601 F. Supp. 2d. 464 (D.Conn. 2009) (download here) , arose out of claims by a customer service representative that she was discriminated and retaliated against because of her gender and pregnancy.    She claimed that two months after she returned to work because of her pregnancy in 2006, she was questioned about her use in 2003 of an employee discount for relatives and friends who were not eligible for it.  The company said it's investigation of this employee arose out of a separate investigation in the fall of 2005.

The company ultimately terminated the plaintiff's employment for alleged improper use of the employee discount. The plaintiff alleged that this was a coverup for discrimination and that comments by her supervisor such as "Go home and be with your baby. We don't have work for you", supported her discrimination claims.  She also claimed she had management approval for her use because no employee discount could be used without management approval.

The federal court held that there was sufficient evidence and a sufficient dispute about certain facts that entitled the plaintiff to a trial.  Of course, the court did not address the ultimate merits of the claim and whether the plaintiff was right or wrong. The only issue for the court to look at was whether there was enough evidence that could support a claim of discrimination. Here, the court said there was.

For employers, this case is a classic example of how termination decisions will be scrutinized by the court.  Although the court doesn't address the issue head on, it goes out of its way to point out that the events that the employee was being fired over concerned just $200 and occurred three years prior to the actual termination.  In its decision, the court fails to note of any similarly situated employees who might have been terminated or other examples of how the policy had been consistently applied.

The employment at will doctrine in Connecticut allows employers to fire employees for any reason or no reason. While that technically remains true, that doesn't mean that courts won't review reasons that may seem a little fishy to it.  Here, it seems that the court was troubled by the reason for the termination decision and said that there was enough evidence (if credited by a jury) that suggested that the reason was a pretext for discrimination.

Ultimately, the employer here may very well prevail at trial.  But to do so, it'll have to make an expensive point over a $200 employee discount misuse. 

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Wouldn't it be great if there were a document that outlined issues that both employers and employees could think about when trying to settle employment law disputes?

Turns out there is. You just need to know where to look.

At the risk of giving up one of my "secret resources", one of my favorites is a document prepared a few years ago by Attorney Robert B. Fitzpatrick, an attorney in the Washington, D.C. area.  His checklist on the "Settlement of Employment Law Disputes" is an easy to read summary of the key provisions that parties can consider as they settlement claims.

It covers almost everything that you could think of: from the ordinary (Withdrawal of EEOC Charges or OWBPA compliance) to the more obscure (Partnership Interests). 

The checklist that he has posted online is several years old so it should not be used exclusively.  There have been some recent developments in recent years that it doesn't include (such as the Section 409A rules on executive compensation agreements) but it is an excellent place to start.

While separation and settlement agreements have become common over the last decade, there is still room for flexibility and creativity to meet your company's specific needs. Take a look at the checklist and perhaps there will be something new or interesting that you can incorporate into your form agreements.

 

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In the next month or so, the U.S. Supreme Court is expected to issue its decision (or multiple decisions) in the Ricci v. DeStefano matter (for background, see my prior posts here).

In the meantime, other bloggers and writers have been adding their views to fill out the spectrum. 

On the Talking Points Memo site, one thoughtful post suggests that the lower courts got it right in finding that there was no discrimination.

On the Connecticut Employee Rights blog, Rick Hayber hopes the Supreme Court "gets it right":

I do not believe that New Haven refused to promote Mr. Ricci because he is white. I believe that it simply concluded that the test must have been biased. If true, this is simply not discrimination. Lets hope the Supreme Court gets it right!

The Connecticut Law Tribune also has this recap of the case so far.

Lastly, the SCOTUSblog has this thorough recap of oral argument.

Stay tuned. This one promises to be interesting.

 

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As employment law and HR professionals, our mission always seem to require us exploring strange new worlds (perhaps a study of the Ledbetter Fair Pay Act?).  

We also seek out new life and new civilizations (the new ADA law does seems to be written in foreign language at times now that you mention it). 

And of course we boldly go (or go boldly) where no one has gone before. (A little pandemic flu hype, perhaps?)

Of course, this "mission" may just be a result of having Star Trek on my mind with the movie opening up tonight.

But, in honor of the new movie, let us take a step back from some of the seriousness and pessimism that's been permeating the workplace during the recession and review four lessons that employers can learn from the Star Trek universe:

1. Diversity Works.  Think about the first incarnation of the show. There were people on the crew of various races and cultural backgrounds. (And of course, a Vulcan).  Later version featured African-American and female captains.  All of which proves a point -- the diversity of backgrounds can be an advantage in the workplace.  Most companies agree it's important; but acting upon it is another step. 
    
2. Every Workplace Needs a Little Joy. Never has this been truer than today. The "survivors" at companies whose ranks have been thinned may deal with empty cubicles and quiet phone lines. But even in the toughest of times, workers on Star Trek could have lunch in a "Holodeck" just  to escape.  Think about the little or no-cost things that an office can do to keep the workplace a enjoyable place to work.  These suggestions on how to erase "survivor's guilt" can help.
    
3. Even a Spaceship Has Rules; Follow Them. One of Star Trek's repeated themes was to follow the "Prime Directive" -- a rule that suggested that the spaceship not interfere in the affairs of another world or alien race.  While that rule was certainly broken from time to time, it controlled much of the leadership team's decisions. Similarly, your company likely has policies and procedures. When was the last time anyone actually READ all of them?  Are your FMLA policies up-to-date? Do you have a social media policy? And are you following your own rules?
    
4. Good Leaders and Talent Really Can Make All the Difference: As this article suggests, each leader brings a different style. Indeed, it has been suggested that the key to success in human resources is as simple as hiring the most talented people around and letting them be superstars.  Star Trek has shown that high achievers are critical to the success of a ship. In these tough economic times, that lesson has never been more true.  Even as cuts are needed, finding ways to measure talent within your organization and figuring out ways to keep that talent, is crucial to the long-term success of your business.  Avoiding the asteroid fields (or lawsuits) along the way isn't a bad idea either.

Optimism reigns supreme in the Star Trek universe. After a winter of layoffs and flu scares, it's a feeling well worth tapping into. 

Or, as an old "proverb" says: Live long and prosper.

(Also a big tip of my hat to this post discussing other life lessons from Star Trek.)

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While the current outbreak of H1N1 Influenza is turning out (for now) to be less lethal than previously thought, the EEOC released guidance this week (available here) to help employers prepare for a possible pandemic and still comply with the ADA.

Some of the guidance is lifted from previous statements of the EEOC but applied to this situation. For example, the EEOC again reminds employers of the limits of making medical-related inquiries to employees:

Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability. This requirement affects when and how employers may request health information from applicants and employees regarding H1N1 flu virus.

The EEOC also goes out of its way to emphasize that there are ways an employer can legally survey its workforce before a pandemic strikes to allow it to be prepared.  In fact, it provides a model survey for the employer to use.  

Lastly, the EEOC addresses infection control measures and states what should be obvious: "Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA."

It's a helpful reminder to employers that even in times of crisis, we remain a nation under the rule of law.  Let's hope that this current outbreak wanes and that it does not reoccur in the fall in a more virulent form.

 

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Late last week, the Connecticut Senate approved a measure that would permit an employee to take up to 26 weeks of unpaid leave from work to care for family members who may have been injured in the line of military duty.  The bill (Senate Bill 710) is now on the House's calendar for a vote within the next few weeks; it is likely to be approved.

The bill mirrors many of the provisions that were implemented last year in revisions to the federal FMLA. 

The Office of Legislative Research has done a good job summarizing the measure's main provisions here. 

Notably, the measure has different provisions for private sector workers and state employees, so as the bill progresses, this distinction ought to be reviewed. 

The core provision of the bill, however, is the same for each -- a one-time leave for each armed forces member per serious injury or illness incurred in the line of duty.  Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave.  If there are any nuances between federal and state law, the more generous of the two benefits will apply.

In the meantime, employers should make sure their FMLA policies reflect the current state of the law and, if they do have any requests for leaves to care for injured servicemembers, employers should check back on the status of this bill -- if they are not already covered under federal law.

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Since my first post on H1N1 Influenza (a.k.a. Swine Flu, 2009 Flu, Mexican Flu -- or whatever else the CDC or WHO is now calling it -- [see UPDATE below on the preferred usage of the term H1N1]) on Sunday, nearly every media outlet has eitherhyped or overhyped the crisis. I've waited until week's end to try to see if we could get some proper perspective on things. 

As of this afternoon,there are still no confirmed cases of H1N1 flu in Connecticut., but I'm not sure if we have yet gotten the perspective in focus yet, if the school closings this week are any guide.  

Some fellow bloggers have tried to provide some context in an admirable fashion. The Ohio Employer's Law Blog summarized each of those blogs here, as follows:

[The big] story of the week is the swine flu. I’ve already covered this issue, as have some of my fellow bloggers: Michael Moore at the Pennsylvania Labor & Employment Blog, Catherine Barbieri at the FMLA Blog, Michael Haberman’s HR Observations, HR World, The Word on Employment Law with John Phillips, and Dan Schwartz at the Connecticut Employment Law Blog (who I believe was first in bringing this issue to employers’ attention). CCH also has an excellent resource page covering this issue.

But where does that leave most employers. If the traffic to this blog is any indication -- still scratching their heads. So, let me try to put some of the issues in a slightly different framework for employers to think about. 

1.   Preparation & Communication

While large corporations have likely had time over the last years to develop a crisis-management guideline to deal with natural disasters or pandemics, smaller companies haven't had that luxury. The CDC checklists should be required reading for most employers by now with notices available on their website as well.  Employers should use their bully pulpit to convey accurate information to their workforce along with preventative measures that employees can implement on their own.  For employee questions, this FAQ is a great place to start. 

But beyond that, employers should think about (though not implement as of yet) what it's plans may be if this outbreak becomes more widespread and more serious.  Will you allow for telecommuting? Is your infrastructure set up so that you have the capability TO telecommute? Will you implement special pandemic flu leave policies to prevent employees from infecting others in the workplace?

You don't need answers to all these questions yet but you should start to anticipate what those questions may be. 

2.   Addressing Day-To-Day Issues -- The sick employee or the closed school

If and when the H1N1 Flu becomes more prevalent in the community, specific employers may be impacted directly.  For school systems, for example, the CDC has released guidance this morning on how schools should address an outbreak.  The CDC has already released guidance as to how a community should react to such an outbreak.

Employers may have more practical considerations though that they will need to deal with. For example, if an employee's child becomes ill, can that employee take FMLA leave? (Probably, though review your policies.) If the employee is sick, can you ask that employee to stay home or work from home during the length of the illness (Maybe but again, check your policies.)

But a tougher question comes up when a school is closed. In that situation, parents may need to stay home or make arrangements to care for a healthy child. What then? John Phillips has some excellent suggestions here, which can be summed up in one phrase: Be sensible and flexible:

I’d be reluctant to fire an employee who stays home with a child whose school has closed because of swine flu. If you’re concerned about setting a bad precedent, I wouldn’t be too concerned. After all, a national health emergency has been declared. I’d be more concerned about bad publicity or a creative legal theory under which the employee might sue you.

The Job Accommodation Network has also just released this guidance on considering the needs of employees during a flu outbreak. 

Continue Reading...

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From time to time, I've been fortunate to have several guest bloggers contribute their thoughts on Connecticut employment law. Today, I'm happy to continues that trend with a post from my Pullman & Comley colleague Michael "Mick" Lavelle.  Mick has broad trial experience, both jury and non-jury, before state and federal civil courts and before administrative agencies that regulate employment. He successfully litigated the case of Bridgeport Hospital v. Commission on Human Rights and Opportunities, et al., 232 Conn. 91 (1995), in which the Connecticut Supreme Court curtailed the commission’s ability to award damages against employers. He serves as a special master for the U.S. District Court.

Today, Mick addresses the subject of dress codes and highlights two cases outside Connecticut that highlight the approach of the EEOC in such cases.  It's definitely worth keeping an eye on to see whether the EEOC and private attorneys continue pressing the issue.

Dress code issues have certainly evolved since the days when the controversy was whether women could be required to wear dresses instead of slacks or pant suits. 

Today’s issues involving body piercing and tattoos are for the most part settled in a common-sense way. Employers may impose a professional appearance standard on employees who deal with the public, so that visible body piercings must be removed and visible tattoos must be covered up while at work.

But recently the Equal Employment Opportunity Commission has supported employees who claim that such body decoration has a religious significance. 

In EEOC v. Papin Enterprises, 2009 WL 961108 (M.D. Fla), the employee, a clerk in a sandwich shop, claimed that wearing a nose ring was a practice of her religion. 

Although the concept that an employer has the right to control its public image is usually sufficient to sustain the dress code requirement, the court noted that the shop manager simply told the employee to remove the nose ring when they were visited by a senior official from the franchise headquarters, an approach which contradicted the “public image” argument and resulted in denial of the employer’s motion for summary judgment.

In EEOC v. Red Robin Gourmet Burgers, 2005 WL 2090677 (W.D. Wash.), the employee was a server in a restaurant who had tattoos encircling his wrists. He received the tattoos during a religious ceremony after undergoing a rite of passage in “Kemetecism”, a religion with roots in ancient Egypt. In this belief system, intentionally covering the tattoos is a sin. 

This court also denied summary judgment for the employer, ruling that because of the relatively insignificant appearance of the tattoos, the question of whether it was an undue hardship for the employer to allow the “display” of the tattoos was an issue for a trial.

Employers should note that a ban on facial piercings and visible tattoos remains legally permissible; these are unusual cases which do not require that employers change their dress codes for employees who deal with the public. 

However, these cases reinforce the importance of the basic advice that dress codes, and work rules generally, should be enforced consistently and equally, and that unusual situations call for measured consideration rather than abrupt (and possibly illegal) decision-making. 

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The news over the weekend suddenly took a serious and, for many, scary turn over the weekend with the prospect of a pandemic flu (known right now as Swine Flu) appearing more likely than it has been since the SARS outbreak several years back.  

For employers, flu preparedness has been something that has been talked about for many years. But I'm taking a guess that for many employers, this was always something that they would get around to later.  

So, regardless of whether this swine flu hysteria is for real or not (and note that no Connecticut cases have been confirmed), employers can and should take the time now to educate themselves about the resources out there and develop a contingency plan to adapt their business to the possibility of a flu epidemic for the weeks and months to come.  

The government, fortunately, has been preparing for this possibility and there are already existing websites for employers to review.

The best is from the Centers for Disease Control directly, which has a "Workplace Planning" page for employers addressing pandemic flu.  I highly recommend it.

Among the resources available on that site:

• A Business Pandemic Influenza Planning Checklist (which discusses policies to implement during a pandemic and how to communicate effectively with your employees);
• An FAQ on Frequent Workplace Questions; 
• A Summary of What to Expect During a Flu Pandemic.

For Connecticut employers, the Department of Public Health has also put out guidance for employers on Pandemic Flu Preparedness.  There is also a handout that you can distribute to your employees that is bilingual. Frankly, it can't hurt to distribute it this week to start educating your workforce about this.

The U.S. Chamber of Commerce also has a list of questions and issues that employers should be considering now about the pandemic flu.  Among the suggestions:

 

• Identify your company's essential functions, which might include accounting, payroll, and information technology, and the individuals who perform them.  Cross-train employees to perform essential functions to ensure resiliency.
• Plan for interruptions of essential governmental services like sanitation, water, power,
  and transportation, or disruptions to the food supply. For example, your employees
  might need back-up plans for car pools in case mass transit is interrupted.
• Update sick leave and family and medical leave policies and communicate with employees about the importance of staying away from the workplace if they become ill.  

A lot of what's going to happen over the next few weeks and months is still unknown right now.  Add a deep recession to the mix and you don't need a crystal ball to know that things could get tricky fairly quickly.  

In the upcoming days and weeks, I'll continue to update this blog with more information. For now, education and preparation are crucial to ensuring that your business can function during what may be a tough time ahead.   

(Photo Copyright Daniel A. Schwartz 2009 - at Vermont State Fair)

 

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The EEOC issued new technical guidance for employers this week to provide them with some direction on how to deal with workers with caregiving responsibilities.  

The document, "Employer Best Practices for Workers with Caregiving Responsibilities," is available online here supplements previous guidance entitled "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities".

As stated by the EEOC:

The best practices document provides recommendations for workplace policies aimed at removing barriers to equal employment opportunity for workers with caregiving responsibilities. Examples include personal or sick leave policies that allow employees to use leave to care for ill family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

The examples that the EEOC provides are not earth-shattering. Indeed, most employers are likely following many of these practices. Nevertheless, the document should give employers some additional assurance that they will have the backing of the government in implementing certain programs.  

Among the best practice examples given:

• Be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities.
• Develop, disseminate, and enforce a strong EEO policy.
• Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies.
• Respond to complaints of caregiver discrimination efficiently and effectively.
• Protect against retaliation.

Several other blogs have provided some additional thoughts on the subject this week including the Delaware Employment Law Blog and the Ohio Employer's Law Blog.  

For employers, add this to the seemingly never-ending list of areas for human resources to keep a close eye on.  

 

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Although I've been sounding the alarm bells for the last two months or so, on the new COBRA subsidy provisions, I've had informal discussions with various colleagues that suggest that some employers are either ignorant of the new rules or do not believe that the rules apply to them. Here are three areas why most employers in Connecticut need to be concerned.

1.     State Mini-COBRA Laws Will Piggyback on the New Federal COBRA Subsidy.  While federal COBRA only applies to employers with 20 or more employees, Connecticut has a parallel COBRA statute that applies to all other employers with group health plans (except those that self-insure).  Why is this important? Because the new federal COBRA subsidy provisions will ALSO apply to those employees who are covered under a state COBRA rule as well.

The rules are slightly different. For example, if the state mini-COBRA rules apply, the insurer is responsible for sending out notices to former employees who may be eligible for assistance.  In addition, the extended election period that, in essence, reopens the period for former employees to elect COBRA, does not apply for employers subject only to the state mini-COBRA.

Thus, for employers with less than 20 employees, you may still need to comply with the new COBRA subsidy provisions.

2.     There Are Significant Penalties for Failure to Provide Notices by April 18, 2009.  With the deadline to send out notices -- particularly to former employees -- coming up as early as Saturday, April 18, 2009 for many situation, employers who are scrambling to get the work done may be considering just postponing it.  However, any such postponement carries with it significant risks. 

Although the new law appears to be silent as to the exact penalties that will apply, it appears the standard penalties under COBRA or other federal laws may apply. Thus, plan sponsors (mostly likely, employers) who fail to provide the notice could be subject penalties of up to $110 per day under ERISA and an excise tax penalty of $100 per notice (with limits) under the Internal Revenue Code. The penalty or excise tax may apply to each Qualified Beneficiary. In addition, individuals may have a cause of action to sue for COBRA coverage and receive the benefits that should have been offered, as well as attorneys’ fees and “other relief.”

3.      Employers That Pay COBRA Premiums Under a Severance Plan or Agreement May Want to Modify Them.  The most recent guidance provided by the federal government clarified that the subsidy applies only to amounts actually charged to the assistance eligible individual for COBRA continuation coverage. Therefore, employers who contribute to an assistance eligible employee’s COBRA premium will not be able to recapture this amount.  As a result, these employers may want to consider restructuring their severance policies so that they can get a tax credit for those amounts.

 

There's much more to the new COBRA subsidy rules than first meet the eye. If you're still confused, it's not too late to sign up to the teleconference that I'll be giving this Friday, through BLR. 

As always, consult with a local attorney to determine how the new law applies to your business.

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Among employment law professionals and human resource personnel, the last year has been full of changes.  Among the more technical changes are thenew COBRA Subsidy provisions that were passed with the stimulus bill earlier this year.

April 18th is a big deadline for some of the implementation of the provisions -- providing notices to some former employees about their rights under COBRA and providing some of them with a second opportunity to enroll.  (I've covered those notices before in an earlier post.)  

Still lost? Well, there are several good resources available out there (includingthe Department of Labor website itself).  There's even a FAQ for employers from the DOL. 

If you're looking for something more in-depth, I'll be giving an audio (i.e. telephone) conference this Friday, April 17th for Business and Labor Reports.  You can sign up directly through the BLR website. 

Overall, the Act requires employers to provide notice to “assistance eligible individuals” (AEIs) who have lost or will lose their jobs between September 1, 2008, through December 31, 2009, of their the right to pay reduced COBRA premiums of 35 percent for periods of coverage beginning on or after February 17, 2009, with available coverage lasting up to 9 months following the separation of employment.

Here's a free sneak preview of one suggestion employers need to be considering now: Figure out who has left employment since September 1, 2008 and particularly those who have been involuntarily terminated. That subset may now be eligible for some assistance with COBRA payments and notices will need to be sent to them promptly.

Time is ticking on compliance. Use this week to catch up. 

Any suggestions that have made it easy on you that you can share with other employers? Feel free to comment below.  (Remember, however, that I cannot respond to questions due to ethics rules.)

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There's nothing like a bit of Florida sunshine to recharge your batteries.  After 18 months of continuous blogging, you might have noticed a brief slowdown the last week or so as I took some vacation time.

In my time off, though, there were several notable posts or topics that are worth mentioning.  I'll try to sprinkle those in through the week.

The first and most impressive of these is a list of "Top 100" Employment Law Blogs, prepared by my fellow blogger, Molly DiBianca at the well-done Delaware Employment Law Blog (and I'm not just saying that because this blog appears).

I'm not sure what it takes to be considered to be a "Top 100" employment law blog, but regardless, it is among the most thorough posts to date of the plethora of employment law blogs out there. (H/T to the Employee Screen Blog for the mention as well.)

I'm often asked what blogs I read the most. The truth is that there are lots of employment law blogs that I subscribe to (over 40!).  Each of them has an article or two nearly every week that I find helpful.  And many of them bring different perspectives beyond the Top 100 list. 

For example, if I want to see what's going on from an employee-oriented perspective, I might check out the new Employee Rights Post or the Connecticut Employee Rights Blog. 

And if I want to see what some employer-advocacy groups are doing, I might look at ShopFloor for the latest on EFCA. 

And if I want the latest on employment law legislation out of Congress, I'll sometimes review the Washington Labor & Employment Wire or the Washington DC Employment Law Update.

Whatever you choose, the internet allows you to take in many different viewpoints. Use the list to find a new blog or two. You might be surprised what you find.

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Right now, even non-sports fans here in the state can get pretty excited about having both the men's and the women's basketball teams from the University of Connecticut headed to their respective Final Fours.  

But suppose one of your employees was somehow able to secure tickets to the games in either Detroit or St. Louis. Are you, as an employer, obligated to give that employee time off?

Well, the Department of Labor makes it very clear that items such as vacation pay are fringe benefits that are provided at the discretion of the employer.  

So, where does that leave many employers? It means employers will be bound by the rules they've set up in their policies or procedures manuals for handling days off.   Some employers give employees a good deal of flexibility about taking time off; others, who set schedules far in advance, are less so.  

Of course, there is always that one employee who calls in "sick" -- only to appear on television later on cheering at the game.  Can you discipline the employee then? The straight answer is typically yes. If employees are being deceptive about their absences, the employer has that discretion.

But here's hoping that everyone uses this time to play by the rules and shows a little bit of common sense.  In a time of economic hardship for so many, watching the games is a nice escape for a few hours.    

Go UConn!

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The U.S. Department of Labor recently released notices for employers to use in conjunction with the American Recovery and Reinvestment Act (ARRA).  These notices provide a good start for employers, but each of these notices will also need to be edited to fit a particular employer.    

So, to what employees is this concerned with? Well, overall, some employees who have been involuntarily terminated from September 1, 2008 and continuing to December 31, 2009 will be able to continue health care coverage under COBRA by paying only 35% of the ordinary COBRA premium for up to nine months. The remaining 65% of the premium will be paid by the employer, the insurance company or the health plan; those payments may be recovered through a credit against payroll tax liabilities or through direct reimbursement. 

Here's the Department's summary of the notices:

General Notice (Full version) Plans subject to the Federal COBRA provisions must send the General Notice to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event, AND who either have not yet been provided an election notice or who were provided an election notice on or after February 17, 2009 that did not include the additional information required by ARRA. This full version includes information on the premium reduction as well as information required in a COBRA election notice.

General Notice (Abbreviated version) The abbreviated version of the General Notice includes the same information as the full version regarding the availability of the premium reduction and other rights under ARRA, but does not include the COBRA coverage election information. It may be sent in lieu of the full version to individuals who experienced a qualifying event during on or after September 1, 2008, have already elected COBRA coverage, and still have it.

Alternative Notice Insurance issuers that provide group health insurance coverage must send the Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States, and issuers should modify this model notice as necessary to conform it to the applicable State law. Issuers may also find the model Alternative Notice or the abbreviated model General Notice appropriate for use in certain situations.

Notice in Connection with Extended Election Periods Plans subject to the Federal COBRA provisions must send the Notice in Connection with Extended Election Periods to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who:

1. Had a qualifying event at any time from September 1, 2008 through February 16, 2009; and
2. Either did not elect COBRA continuation coverage, or who elected it but subsequently discontinued COBRA.

This notice includes information on ARRA’s additional election opportunity, as well as premium reduction information. This notice must be provided by April 18, 2009.

 

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It's been much too long since my last installment of "Four for...", an occasional post on some useful web resources that you might overlook in your day-to-day work. 

This post focuses on four things you can find on the Department of Labor website that are particularly helpful for employers.  

1. A comparison of Connecticut's FMLA (CTFMLA) and the federal FMLA laws -- With the changes to the federal FMLA regulations, Connecticut employers are continuing to struggle with the implementation of those rules consistent with the more stringent rules in Connecticut. The Department of Labor (in addition to putting on sold-out seminars on the subject) has a good comparison of the two rules (and which one should apply) on their website. 
    
2. A new updated FAQ for employers -- The Department of Labor has just updated their Frequently Asked Questions (and Answers) page for employers.  It helps answer some basic questions like: "Is an employer required to give employees a break?" or "When must an employer pay wages upon terminating an employee?"  Before you spend time with an attorney or searching the Internet, check out this site too which really DOES help answer some great wage/hour questions. 
    
3. Free posters and guide books (and forms too) - Keeping up with all the posters required by the Department of Labor can be a taxing task. But fortunately, the DOL has summarized the regulations all on their website, which you can download. You can also e-mail the DOL directly and get the regulations and guide books.  And the best part of it all? It's free.  (Of course, there are OTHER workplace posters required by law, but, at least for the DOL requirements,  why spend $50 on a poster that you can get for free?)  The DOL also has various employer authorization forms and other forms for employers to use. 
    
4. An employer's guide to unemployment compensation - If you are an employer, at one time or another, you're going to terminate the employment of various people. When that happens, the DOL again has a great resource -- an employer's guide to the whole unemployment compensation system.  It answers technical questions and the mundane ones. 

And your bonus site: The New Hire Reporting System -- Because all Connecticut employers are required to report all newly-hired employees within 20 days of hiring them, this site allows employers with a fast, reliable, and secure option for reporting their new hires as required by Federal and State regulations.

A full list of employer services provided by the Department of Labor is available here. 

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Learning about our nation's employment laws and labor history, and creating more educational opportunities are certainly worthwhile endeavors.  Indeed, in this time of economic turmoil, investing in vocational and education programs may be viewed as a down payment on getting more people into a taxpaying role. 

To that end the Omnibus Appropriations Bill passed by Congress in the last few weeks had a number of earmarks for programs in Connecticut that will have a direct impact on those issues. 

You can view the whole list off of the Waterbury Republican-American's website.  For example, ARC of New London County received $238,000 for adult vocational training.  And the Connecticut Council on Family Services Agencies received $381,000 for a welfare-to-work initiative.

For those interested in labor law, there was one unusual entry from an association that I must confess that I was not aware of: the Greater New Haven Labor History Association. 

What is the GNHLHA and what is its mission? According to its website, it is "to collect, preserve, and share the history of working people in the Greater New Haven Area. Its membership consists of unions and individuals, with an Executive Board composed of retired trade unionists, active trade unionists, and students and teachers interested in labor history."

According to the Rep-Am website, Congresswoman Rosa DeLauro put in an earmark for the GNHLHA of $143,000 for "exhibits and education programs". 

What might some of those programs be? According to the GNHLHA website, current and future exhibits and programs include: 

• An exhibit at the New Haven Colony Historical Society about the clothing and garment workers’ Locals in the New Haven area;
• A labor history walking tour of the River Street area in Fair Haven;
• Transcriptions of about 35 oral history interviews conducted by volunteers in the early 1990s, and making the text available on our web site;
• A research guide based on the union records surveys, to be made available in print form and on the web

For nearly $150,000 in federal funds, it'll be interesting seeing what events occur over the upcoming year from this niche organization.

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It's FINALLY a nice spring day outside in Connecticut (see the picture of the Connecticut River taken this morning) so no need to spend a minute more than necessary to catch up on some other employment law-related items you might have missed during the week:

• A topic near and dear to my heart, background checks, had several good posts written about them. The first, from the BeenVerified.com blog, recaps online identity issues and emphasizes the importance, yet again, of doing background checks before hiring.  And the EmployeeScreenIQ Blog reports on various schools and employers who fail to follow the law and don't accept electronic signatures for conducting such checks.
   
• Several blogs, including the Ohio Employer's Law Blog and the Workplace Prof blog, report on the Department of Labor's new commitment to wage & hour enforcement cases. Because of this, Jon Hyman suggests that employers need to be extra vigilant in uncovering wage and hour violations in their own workforce.
   
• Although I previously discussed the new whistleblower provisions in the stimulus package, the Laconic Law Blog does a good job discussing this further.  As the post suggests, "Any organization receiving stimulus funds should be aware of these provisions because, among other things, they contain posting requirements."
   
• For employers receiving funds from the government under TARP (Troubled Asset Relief Program), the United States Citizenship and Immigration Services explained new requirements that employers must meet before hiring foreign nationals to work with H-1B visa.  The Washington Employment Law Update has the details. 
   
• The Florida Employment Law Blog has a timely post about the pitfalls of reducing salary and pay of exempt workers as a way to cut costs in these tough economic times.  The post suggests ways for employers to avoid running afoul of such rules. 

 

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There are a lot of sleepy Connecticut basketball fans this morning, with the game against Syracuse last night (and this morning) going into SIX overtimes.  Those of us staying up until nearly 1:30 a.m. to watch the second-longest game in NCAA basketball history will remember that game for a long time. 

With overtime on my mind, it's a good time to address two simple issues that sometimes arise in Connecticut:

• What's the difference between daily overtime and weekly overtime?
• And does Connecticut have a "daily" overtime rule?

"Daily" overtime is a concept that a non-exempt employee who works more than 8 hours in a day (or perhaps on a weekend day or holiday) is due an overtime rate of time-and-a-half of regular hour rate.  Some states have imposed this rule."Weekly" overtime is the more commonly understood concept that an non-exempt employee is only due an overtime rate of pay after working more than 40 hours during a week.

Connecticut's Department of Labor quite succinctly states that Connecticut does not have an "daily" overtime rule, absent some contractual arrangement.  Instead, Connecticut follows a weekly overtime rule, that can be found at Conn. Gen. Stat. Sec. 31-76b. 

Thus, if there were non-exempt employees in Connecticut who had to work late last night because of the basketball game, they are only going to be eligible for overtime if they work more than 40 hours during this week (or there was some other type of contract, like a collective bargaining agreement, that mandated it).

And if you see some people napping around the office today, have some sympathy for them too. Staying up late didn't help UConn's cause; they lost 127-117. 

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With companies laying off people in droves, protecting what's LEFT of the company -- namely, it's company data and trade secrets -- becomes that much more important.

For that reason, I'll be speaking at our firm's Breakfast Roundtable on March 19th at 8:30 a.m. in our Hartford office (sorry, no webinar just yet; it's coming soon...)  You can find the details here and RSVP to event@pullcom.com. 

And because just talking about employment law is only one part about protecting company data, Michael Feld of Layer Eight, a technology consulting firm, will also be speaking to provide attendees with practical solutions as well.

As a sneak preview to our roundtable discussion, I'll bring up one issue that companies sometimes leave out when conducting a reduction in force -- and that is locking up data.

An experienced IT department (or just a good office manager) should be able to immediately lock out a departing employee from various electronic files and computers. Getting laptops and BlackBerrys returned immediately as well should also be an important part of any strategy.

I'll talk more about this issue next week and post some of the highlights from our discussion.

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An employee who contended that he was fired after complaining about a physically threatening co-worker cannot bring a wrongful discharge claim, in a decision released by the Connecticut District Court.  The case, Ferrer v. T.L. Cannon Management Corp. (download here), does suggest, however, a way for employees to bring such claims in the future -- with some artful language in the complaint. 

Readers of this blog will be aware  that Connecticut is an at-will employment state, absent some contractual promises or some other exception that may apply. In general terms, that means is that an employee can quit any time for any reason and that an employer can fire the employee at any time for any reason (so long as it's not an illegal one such as race, gender, etc.) 

Two Connecticut Supreme Court cases are required reading for this concept: Sheets v. Teddy's Frosted Food, Inc. 179 Conn. 471, 427 A.2d 385 (1980), and Parsons v. United Technologies Corp. 243. Conn. 66, 89, 700 A.2d 655 (1997).  [Disclosure: I worked on the Parsons matter.] 

Those cases created a notable exception to the at will standard:

• In Sheets, the Court held that an at-will employee may sue for wrongful discharge if he is fired for complaining about, or refusing to participate in, his employer’s violation of public policy.
• In Parsons, the Court ruled that the public policy embodied in the state statute requiring employers “to exercise reasonable care to provide for [their] servants a reasonably safe place in which to work,” Conn. Gen. Stat. § 31- 49, provides grounds for a wrongful discharge claim when an atwill employee is fired for refusing to work in conditions posing
  an “objectively substantial risk of death, disease or serious bodily injury.”

So, in the Ferrer case, the District Court was asked to extend the Parsons exception to a situation where the employee was allegedly discharged after informing his manager that a co-worker threw a punch at him and missed. The complaint also alleged that the co-worker assaulted another employee about a year earlier.

Continue Reading...

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Employment law is quite the hot topic among various blogs. So much so that it's time for the next installment of Quick Takes -- a quick summary of what's new and noteworthy.

• Don't miss the Ohio Employer's Law Blog's post on how NOT to fire an employee. In the post, Jon Hyman describes how an employer took an already difficult situation and made it worse.  Lesson from Jon: Do not do layoffs or firings via e-mail. Period.
   
• World of Work continues the focus on the new COBRA subsidies with a link to FAQ by the Department of Labor.  A new blog, Compliance Building, has information from the IRS also about the new COBRA subsidies. 
   
• The Employee Free Choice Act is expected to be introduced into Congress soon. For what its worth, one union leader is predicting passage by August, according to a post by the Pennsylvania Labor & Employment Blog.   And although the EFCA has been recapped extensively by this blog and others, the Labor & Employment Law Blog has one more here. 
   
• If there was really a remaining question about whether a plaintiff's Facebook postings were discoverable, a recent court finding out of Canada suggests the answer: Yes.  (Delaware Employment Law Blog)
   
• Richard Hayber, over at the Connecticut Employee Rights Blog points out a recent case by a federal appeals court that holds that releases of future claims in last chance agreements are invalid.   While the case isn't binding in Connecticut, Richard clearly believes that the same concepts could be applied by a Connecticut court.
   
• My former colleague, Richard Tuschman from the Florida Employment Law Blog, highlights a case in which a common question is raised: Does hiring an employee who has a non-compete agreement from a competitor constitute "tortious interference" (and subject that new employer to a claim)? The answer? Maybe not, but there are still other claims to worry about.

And on the lighter side, don't miss this fun post by the Delaware Employment Law Blog recapping the top 10 excuses for being late to work.

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Have you heard? Twitter is the next BIG thing that employers somehow need to worry about -- right after blogs and online social networking, of course.  Indeed, a headline not too long ago from the National Law Journal screamed: "Beware:  Your 'Tweet' on Twitter could be trouble".

But here's the thing.  I've actually been using Twitter since late last year.  (You can find me on Twitter here or, if you're already using Twitter, under the name  "@danielschwartz") And so far, I think the alarms that are being raised by some employment lawyers (particularly those who have never used the service) are overblown.  Twitter can, for example, be a great marketing device and a novel communications tool.

First, there's a group of you out there that is probably wondering, "What the heck is Twitter"? Two sets of required reading are NYT Columnist David Pogue's recent post explaining the service, and TwiTips' 10 Tips for Beginners.  And for the other group who believes that Twitter is just for kids, even The Hartford Courant just started Twittering. And if you're still wondering what the fuss is about, this terrific little video by Twitter's co-founder explains how Twitter's growth is being coming from unexpected uses of the service.

Next, I should clarify that I don't disagree with the underlying premise that is advanced by some that posts on Twitter can get an employer into trouble. Of course that's true.  But so can a letter to an editor in your local newspaper, or a notable call to a radio talk show or causing a scene at a presentation.

You don't see advice that we ought to cut off mail service, or remove phones from employees' offices, or stop allowing employees to attend seminars and presentations.  Rather, we outline a set of expectations as to what is proper business behavior and what is expected by the employer.

And yet, cutting off access to Twitter is exactly what some have suggested.  Such a blanket suggestion ignores the usefulness of this internet tool and is not consistent with the approach that companies use for other, more established forms of communication.  (Can you imagine a company now that required letters to be faxed instead of e-mailed?)

Underlying the suggestion of cutting of access issue is that somehow employees using Twitter will misbehave and expose the company if left to their own devices. The belief is that employees -- if given access to Twitter -- will disclose confidential information, bad-mouth competitors and be a lighting rod for lawsuits. 

Thus, some employers cut off access to Twitter as the easiest solution to address this concern.  But other employers can look to companies like Zappos that are using Twitter and taking a more dynamic and flexible approach that actually addresses an employee's online conduct.

How so? By creating and implementing guidelines on model Internet behavior.  What types of standards should an employer consider?  Not surprisingly, the same standards that we use for other online conduct.

Indeed, in 2007, I wrote about "The blog post I didn't publish".  In that post, I outlined some suggestions for an employee blog use policy, many of which remain equally applicable to the use of Twitter. Some are:

• Employees can be instructed that they should not comment or use any confidential information about the company or discuss internal matters. (Whether the employee should be allowed to identify the employer is a business decision for the company.)
• Employees can be told that Twitter should be done during non-working hours and not using Company resources.  Of course, many employers may want to authorize the use during working hoursto advance a legitimate business purpose (such as marketing).
• Employees can be instructed that their "Tweets" should not be libelous or defamatory, and should avoid being written in a way in which it could be construed as harassing or discriminatory on the basis of a protected category.

I am not suggesting a one-size fits all approach for employers. Some employers may simply choose to cut off access, while others may choose to give their employees unfettered access to Twitter.  But for employers looking for a compromise, consider focusing on the root issue (ensuring proper online behavior and communication) rather than on one service or another.

Because before you know it, there'll be another trend or service to take Twitter's place and we'll be having this discussion again in another 12-18 months.

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UPDATED 3/1/09

The EEOC released proposed regulations regarding the Genetic Information Nondiscrimination Act on February 25, 2009.  The Washington Labor & Employment Wire (H/T) received and advance copy; the regulations are expected to be published later on Thursday or Friday and the 60-day comment period will begin then. (UPDATED: The text of the proposed regulations can be found here.)

With all the new employment laws, GINA might have been overlooked; it was passed last year and it:

* prohibits discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
* prohibits 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);
* prohibits health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
* imposes strict workplace confidentiality/disclosure rules on all genetic information.

The Wire's early take on the regulations is that they clarify some terms and provide some guidance on GINA's six exceptions to the general provisions that employers are prohibited from acquiring genetic information from employees:

The proposed regulations provide additional guidance regarding some of the terms used in the Act. For example, the regulations define “employee” to cover not just current employees, but also applicants and former employees. The proposed rule also clarifies that drug and alcohol tests are not “genetic tests,” and invites comments on the scope of the term “genetic test,” specifically, “how the term should be applied, whether the proposed regulation should be more or less expansive, and whether it or the preamble should provide examples of what should be included or excluded.”

Employers in Connecticut should be wary about just following GINA however. Connecticut has long had a separate state law on the subject in Conn. Gen. Stat. 46a-60(a)(11).

In any event, the proposed regulations should be available from the government website shortly. Expect to hear more in the upcoming days about these proposed regulations.

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Yesterday, I had seen some headlines at first about Attorney General Eric Holder's comments discussing race, but had simply glossed over them. After all, it was a busy workday and well, was there going to be anything new?

But by late in the day, I received an e-mail from a former law professor of mine.  Listen to it, she implored, because it is a "fantastic" speech. 

Having listened to it, I have to agree; it's great and the headlines about his "nation of cowards" remark do a disservice to the entire substance of his speech.  He may not have the same oratorical style as our new President, but the content of speech and the issues he discusses (and the manner in which he does so) are compelling.  If you don't have 10-15 minutes, you can read the transcript but if you have a little time, you can watch the video below. 

The speech is directly relevant to today's workplaces.  Indeed, Holder (whose background you can find here) is quick to point out that workplaces are doing better than most on addressing the issues of race.  Even still, there are limitations to that progress:

As a nation we have done a pretty good job in melding the races in the workplace. We work with one another, lunch together and, when the event is at the workplace during work hours or shortly thereafter, we socialize with one another fairly well, irrespective of race. And yet even this interaction operates within certain limitations. We know, by "American instinct" and by learned behavior, that certain subjects are off limits and that to explore them risks, at best embarrassment, and, at worst, the questioning of one’s character. And outside the workplace the situation is even more bleak in that there is almost no significant interaction between us. On Saturdays and Sundays America in the year 2009 does not, in some ways, differ significantly from the country that existed some fifty years ago. This is truly sad. Given all that we as a nation went through during the civil rights struggle it is hard for me to accept that the result of those efforts was to create an America that is more prosperous, more positively race conscious and yet is voluntarily socially segregated.

But Holder is not doom and gloom in his speech; rather, he suggests that discussing and learning about "Black History" and treating it simply the history of America, can help bridge the divide:

There is clearly a need at present for a device that focuses the attention of the country on the study of the history of its black citizens. But we must endeavor to integrate black history into our culture and into our curriculums in ways in which it has never occurred before so that the study of black history, and a recognition of the contributions of black Americans, become commonplace. Until that time, Black History Month must remain an important, vital concept. But we have to recognize that until black history is included in the standard curriculum in our schools and becomes a regular part of all our lives, it will be viewed as a novelty, relatively unimportant and not as weighty as so called "real" American history.

Several workplaces around the state take time to recognize Black History Month.  Holder's comments would suggest that is a worthwhile endeavor, but ultimately, employers can play an important role in educating the workforce on the importance of diversity as well.  (Of course, treating employees fairly and with respect will continue to help build the bonds in the workplace.) If those actions are not taken, mistrust and bad feelings are left to fester and, in this economy, those feelings can gain traction fairly quickly. 

As Holder warns, " An unstudied, not discussed and ultimately misunderstood diversity can become a divisive force."

Employers would do well to consider Holder's comments and determine if they should do more to emphasize the importance of broad diversity in the workplace and the role that everyone can play in doing so.  Holder's comments do not serve to blame anyone for how we got to this point in history, but they do serve to provide a guide to where we from here.

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Addressing the legal risks associated with a reduction in force (or "RIF") has long been a topic on this blog. In fact, looking in my crystal ball way back in January 2008, I suggested that it would the hot topic before years' end. 

Flash forward to the present, and the headlines continue to be dominated by news of layoffs, plant closings, furloughs and bankruptcies. 

One of my friends and professional colleagues in the area, Lori Rittman Clark, has posted her thoughts on RIFs in the For the Defense blog. 

While there's nothing particularly ground-breaking (quite simply because there aren't a lot of new developments in the area), it is a concise and well-rounded summary for employers and HR professional looking to reduce legal risks associated with reductions in force.

What are the issues she suggests reviewing?

• Potential Applicability of the WARN Act;
• Disparate Impact Analysis.;
• Disparate Treatment Analysis; and,
• Releases.

All are sound subjects for review. The best suggestion should be the most obvious one: Seek legal guidance at the START of a process, rather than the end, to avoid the legal pitfalls that surround RIFs.

In the end, however, there is no magic bullet to eliminating legal risks associated with reductions in force. Each of the items Clark raises may help reduce the legal risks, but even implementing all of the above may not eliminate the risk entirely.

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To bring state law employment discrimination claims to court, it is well-known that an employee has to first file the claim with the state agency responsible for investigating the claim (the CHRO) (Conn. Gen. Stat. Sec. 46a-101(a)).  And most people believe that all the employee has to do is then wait for the CHRO to issue a "release of jurisdiction" to the employee, and then file a claim in Superior Court within 90 days of receipt of the release (Conn. Gen. Stat. Sec. 46a-101(e)).

But a recent Superior Court case reminds us of another limitation on the ability of individuals to bring claims in Superior Court that is found in another section, Conn. Gen. Stat. Sec. 46a-102.  That statute states that: 

Any action brought in accordance with section 46a-100 shall be brought within two years of the date of filing of the complaint with the commission.

Thus, even if the individual gets a release of jurisdiction, the employee must STILL file a claim of discrimination in Superior court within two years of the original filing of the claim with the CHRO.

In Wright v. Teamsters Local 559 (2009 WL 242401) (available via Westlaw only), the labor union challenged the subject matter jurisdiction of a member to bring a discrimination claim against it on these grounds. 

The procedural history of that case is straightforward: The plaintiff filed an administrative complaint with the CHRO on October 12, 2004, alleging he was the victim of race and color discrimination. Over seventeen months later, on or about April 4, 2006, the plaintiff amended his administrative complaint to add a new claim of age discrimination. On August 28, 2006, the plaintiff received a release of jurisdiction from the CCHRO and, thereafter, on November 28, 2006, he filed a claim in Superior Court

The employee did not dispute the timeliness of the underlying discrimination claim, but claimed that the filing of an amended complaint should restart the statute of limitations period. The Superior Court held that the age discrimination claim related back to the other discrimination claims:

The court finds that the plaintiff's age discrimination claim in the amended complaint relates back to the original complaint: it involves the very same set of alleged facts and actors as the race and color claims; it involves the same claims of harm and injury; and it is based on the very same statutory subsection. It is in effect, the same cause of action.

The case is a strong reminder to employers that the procedural requirements for filing claims must be strictly followed by individuals bringing discrimination claims against it.  And with the delays at the CHRO investigative stage as long as they are, this statute is one that should not be overlooked in defending claims of discrimination.

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Google released a new program last week called Latitude. You can get full details here, but the gist of it is that can show your location (and the location of your friends) real-time on a map.  So, suppose you and your teenager have cell-phones -- voila, you can see on a map where they are and vice-versa, all in real-time. 

I've been using the program for a few days on my Blackberry Bold and find it both amazing and scary at the same time. Amazing, in that I can see where my family members are at any time. And scary for that same reason. 

As with any new technology, there's the risk of misuse.  GPS tracking has been available for sometime, but never in such a consumer-friendly format.  In the past, companies might spend tens of thousands of dollars fitting their fleet of trucks and cars with such devices to ensure that their employees are where they should be; this new technology could lower the cost to virtually nothing.  Latitude isn't perfect, but it is now another tool that employers have at their disposal.

A few other employment-related blogs today have also started discussing the implications in the workplace (which you can find here and here.) 

Employers in Connecticut, however, have particular rules to follow, mainly in the form of the Electronic Monitoring Act. 

I first discussed the act in a post way back in October 2007:

[C]an an employer in Connecticut conduct electronic monitoring of its employees? The answer is a definite yes. But, of course, the answer is a bit more complicated. Connecticut has an electronic monitoring statute, Conn. Gen. Stat. Sec. 31-48d, that allows for such monitoring if (with very limited exceptions) the employees have prior written notice of such monitoring.

To provide the notice, the employer must indicate the types of monitoring which may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.) .

If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment."

So for employers, posting the notice (which you can download for free from the DOL website here) is key but educating employees about the tracking may be just as important. And understand that simply the process of providing notice to your employees may serve as an effective deterrent. 

Of course, there will be some who will find such tracking an invasion of their privacy and many employers will find such tracking completely unnecessary.  Where the proper balance lies between privacy and oversight of an employee's performance is a question that only you -- as an employer -- can answer.

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If you were at the Holiday Inn in Waterbury yesterday, you had the opportunity to see a microcosm of what's going on in today's workplaces and economy.

Lining the halls outside the conference rooms to the hotel were hundreds (850, to be exact) of people apply for 40-50 jobs at an indoor water park.  (The Hartford Courant treats the story as if it were the only employer in the state doing hiring.) Fox61 News had a report last night detailing the scene as well, which you can see here:

But if you look carefully at the video (particularly about the 1:20-1:40 mark of the report, you can see a banner in the background from a seminar and conference that was also occurring at the hotel yesterday. It reads: CBIA Supervisors' Conference.

What was the conference? Well, the all-day conference was designed to give supervisors' practical skills to help them become more effective managers.  (And, in full disclosure, the conference was sponsored by my firm, Pullman & Comley, LLC). But an underlying theme of the day was how to manage in difficult economic times.

The lunch-time speaker spoke eloquently about how managers and supervisors -- even at healthy companies -- must understand the stresses that are being placed on all workers, even the ones with relatively secure jobs.   Employees are worried about layoffs or their families' financial well-being, in levels not seen in a generation.  (Just think about all of the job fair applicants who have families and friends that are concerned about them.) As a result, fear, anxiety, lack of loyalty and uncertainty are all feelings that are circulating in the workplace.

What are some practical solutions suggested by the speaker? Most of the suggestions are good business practices anyways, but they are certainly worth repeating now: Build trust; communicate often; pay attention to high potential employees; recognize success; and including employees in decision-making (i.e. cost saving ideas). And inexpensive rewards -- even a letter of thanks by the company's President -- may make a difference in today's workplaces.

I had the opportunity to speak in the afternoon on the ADA, the new ADA amendments and how to deal with employees with disabilities.  I'll share my thoughts on the ADA in a future post (though you can get a head start on the subject from my previous blog entries). 

With the jobless rate now climbing to 7.6 percent nationally, it's a tough time for both the people looking for a job, and those fortunate enough to have one.

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I love my Blackberry Bold. And I know many others that praise the virtues of an iPhone or other PDA device.

But recently, questions have been raised about the use of these devices by non-exempt employees -- in other words, those employees who are eligible to receive overtime.  If these employees are reviewing their messages outside of work, do they need to be compensated for that time?

Recently, my colleagues, Joshua A. Hawks-Ladds and Megan M. Youngling prepared an article for the Connecticut Law Tribune supplement on this subject that you can download here. It is worth reading because it discusses an answer to this question.

While the law is still developing here, they conclude that:

[A]fter-hours PDA use increases an employer’s exposure for overtime and record-keeping liabilities, as well as the possibility that nonexempt employees will not be properly compensated for all time actually worked in violation of the FLSA and state wage laws. The practices and policies that many employers currently have in place for after hours work may no longer “fit” today’s PDA environment.

Employers must reexamine their current policies and procedures and revise them to reflect PDA usage. They must also reexamine their employees’ exempt versus nonexempt status. Once appropriate policies governing PDA usage are in place, they must be adequately communicated to employees and then enforced. Policy violators should be subjected to appropriate discipline. Following these steps should limit the risks PDAs pose to employers under the sate and federal wage laws.

As I've said before, there are a lot of issues right now for a human resources department. But ensuring compliance with wage and hour laws should continue to remain a top priority for employers. 

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With the Super Bowl over, there are many in Connecticut who would love to start paying attention to baseball (after all, pitchers and catchers report to spring training in about two weeks).

Fortunately, there's been plenty of drama for New York Yankees fans this week with the release of former manager Joe Torre's new book, The Yankees Years.  It has been marketed as being somewhat controversial, though the reviews of the book have indicated that it is fairly tame as memoirs go.

Nevertheless, the kerfuffle regarding the book has led to the Yankees mulling some type of confidentiality or non-disparagement clause in future contracts of managers and coaches (see reports here, here and here.) Such restrictions would probably not be applied to players because the union would likely object to such clauses. 

This, of course, raises several questions, including: What does such a clause look like? The clauses are not uncommon in severance or separation agreements (though not necessarily routine), but less so with employment agreements.  The Footnoted blog reprints contracts that have been filed with the SEC as does a website called OneCLE. You can use these site to get ideas of clauses or language that can be used for various employment or separation agreements. 

As for the non-disparagement clauses, there are a few examples you can find on these sites.  One such agreement states:

Employee agrees (whether during or after Employee’s employment with the Company) not to issue, circulate, publish or utter any false or disparaging statements, remarks or rumors about the Released Parties.

Another agreement, is a bit more thorough and states: 

Non-Disparagement. (a) You agree not to disparage or denigrate the Company or, subject to paragraph 10(b) below, its directors or executive officers orally or in writing. The Company agrees not to disparage or denigrate you or your agents, assignees, attorneys, family members, heirs, executors or administrators orally or in writing, and agrees to use its reasonable best efforts to cause its directors and executive officers not to disparage or denigrate you or your agents, assignees, attorneys, heirs, executors or administrators.

(b) Notwithstanding the foregoing provisions of this paragraph, it shall not be a violation of this paragraph 10: (i) for any person to make truthful statements when required by order of a court or other body having jurisdiction, or as otherwise may be required by law or under an agreement entered into in connection with pending or threatened litigation pursuant to which the party receiving such information agrees to keep such information confidential or (ii) for you to respond to any disparaging or denigrating comment made by any director or executive officer.

Are these types of provisions something that companies can consider? Sure, but as with all types of provisions, employers should understand more about the clauses, about the enforceability of such clauses and about why they might need or not need such clauses.  And certainly the language should be tailored to the particular company's situation.  (As always, seeking some type of legal guidance is recommended before implementing changes to any agreements that a company may use.)

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Since it is another snowy day here in Connecticut, it seems like another opportune time to post about some of the items worth reading and catching up on over the last few days.

• On Friday, President Obama announed three new executive orders that give broad power now to the Secretary of Labor.   These orders involve federal contractors and not the general workforce.  The World of Work blog has the details: 

• Economy in Government Contracting.  Denies federal contractors reimbursement for funds spent on activities designed to persuade employees to join or to not join a union, such as printed materials, consultants or meetings (activities sometimes known as "union busting"). 

• Notification of Employee Rights Under Federal Labor Laws.  Requires all federal contracts to require contractors to post a notice informing employees that they have a right either to join or  to not join a union. A prior order from President Bush, required contractors to post a notice informing employees that they had a right not to join a union.

• Nondisplacement of Qualified Workers Under Service Contracts.  Requires all federal contracts to include a provision requiring any contractor who assumes the contract from a previous contractor to retain that previous contractor's qualified employees.

• The Point of Law forum picks up on the recent story of Connecticut's Attorney General suggesting that AT&T be prohibited from laying off workers.  The real question is whether this is a unique situation or whether other employers could face similar action if they engaged in layoffs.  
   
• Despite the rhetoric surrounding the Employee Free Choice Act, union rolls in Connecticut actually grew from 15.6 to 16.9 percent of the workforce.  However, what is unclear from these statistics is the reasons WHY the rolls grew.  It is also too early to call this a trend but it is obvious that unions have at least stopped the constant drain. 
   
• The Florida Employment Law Blog discusses the new Ledbetter Fair Pay Act and suggests that one effect of the claim is to allow those receiving retirement benefits to sue.  It's an interesting theory and we'll have to see if courts interpret the law to allow for such claims. 

The Act also provides an avenue for retired employees to sue their former employers years after separation for their lost pensions. In theory, each time a former employee receives a pension check, the amount of which may have been determined as the result of past discriminatory pay practices, a new statute of limitations period begins to run. These potential plaintiffs would have the right to have their pension benefits recalculated if they were determined in a discriminatory fashion. Accordingly, companies may face the threat of litigation from former employees whose employment relationship ended years ago.

• Finally, the Ohio Employer's Law Blog has summarized various ways to avoid a lawsuit. As Jon is quick to note, "there is no sure-fire method to prevent a lawsuit from being filed", but these tips can provide a mental checklist for employers to consider to try to avoid litigation. 

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In a last minute notice and delay, United States Citizenship and Immigration Services announced that it is postponing, until April 3, 2009, the implementation of a new I-9 form and a revised list of acceptable documents to determine employment eligibility.  (For background, you can find my most recent post on the form here.)

The new forms were to go into effect today, February 2, 2009. Instead, it has instructed employers to continue to abide by the old rule and use the old form.

USCIS released a press release late last week in which it indicated that it was reopening the public comment period for 30 days. You can find the release here. 

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There's a relatively new children's book out now entitled, "The Wolf Who Cried Boy". It's a humorous take on the old fable and I read it outloud one evening this week at home.  

I can't help but be reminded of both the classic and new story, reading all of the hyperbole and hype of the last 24 hours regarding the new Ledbetter Fair Pay Act and those who are quick to predict that the floodgates of employment litigation are now open. 

Let's clarify a few issues up front: 

• Is the Ledbetter Fair Pay Act important for employers to understand? Sure, just as all changes to employment laws are important. 
  .
• Does it dramatically change the law? Not really.  Before this law, employers still weren't allowed to engage in pay discrimination; it's just that the time frames for bringing suit under some pay discrimination claims had been defined narrowly by the U.S. Supreme Court in 2007.   This Act extends the time frame for bringing suit by treating each new paycheck as a basis for a discrimination lawsuit, rather than just the original decision to discriminate. 
   
• Will this lead to a dramatic upturn in pay discrimination lawsuits? The jury is definitely still out on this one.  

Here's the greater perspective.  Before the U.S. Supreme Court decision in 2007, women could bring pay discrimination lawsuits under both Title VII's overall scheme, or the Equal Pay Act.  For reasons that are still not fully known (though discussed by National Journal's Stuart Taylor here (H/T Point of Law)) , Ms. Ledbetter did not pursue her Equal Pay Act claim on appeal after it was dismissed on the merits (effectively forfeiting it).  The U.S. Supreme Court ruled only that for pay discrimination claims brought under Title VII, a 180-day statute of limitations applied to pay discrimination decisions.. 

Thus, after Ledbetter, if the employer's discriminatory pay decision occurred in 2007, the employee was out of luck now to sue under Title VII.  Each new paycheck was not an "act" of discrimination. 

The new law treats each paycheck as a new "act" of discrimination, effectively re-starting the statute of limitations each time a paycheck is issued.

But here's why the fuss about the new act is overblown. The employee still could sue under the Equal Pay Act. Indeed, employers should be much more concerned about the Equal Pay Act -- which was unaffected by the Fair Pay Act --  when it comes to pay discrimination claims.  

Unlike Title VII pay discrimination claims, employees do not need to file their Equal Pay Act claims with the EEOC, and claimants have two years in which to file their claim under the Act (three years if the violation is willful).

But here's the kicker for Equal Pay Act claims: The employee does not need to prove discriminatory intent, unlike Title VII.  In fact, the Equal Pay Act focuses on disparity in pay for substantially similar work; contrast that with Title VII which focuses on a discriminatory action that causes a disparity in pay.  So, when the employee is paid less than similarly situated employees of the opposite sex, an Equal Pay Act claim can arise without showing that the employer intended to discriminate. 

Does this mean that employers have no reason to be concerned about the Ledbetter Fair Pay Act? Of course not. The act has the potential of opening of employers to older claims of discrimination against managers and supervisors who have long since gone. But remember, employees will still need to show that the employer intended to discriminate -- a burden that is not insignificant.  And former employees are not going to be able to revive a claim of pay discrimination without a recent "paycheck" to go along with it. 

It's difficult to get exact numbers of pay discrimination claims and look at the numbers of claims filed both before and after the Ledbetter decision came out, but a cursory review of the statistics published by federal agencies under the No Fear Act doesn't seem to reflect a big downturn in the numbers of pay discrimination claims after Ledbetter.  In fact, the United States Postal Service reports more pay discrimination claims being made in 2008 (after Ledbetter), than 2007.  Thus, with Ledbetter effectively being overturned, it's hard to believe that the Act will impact the numbers of claims significantly. 

There is another bill that would change the underlying law that employers should follow closely -- the Paycheck Fairness Act (H.R. 12). The Paycheck Fairness Act would limit an employer’s ability to justify paying different salaries to workers based in different locations with different costs of living. The bill would lift the caps on compensatory or punitive damages for which employers would be liable, in addition to current liability for back pay. These damage penalties would apply to even unintentional pay disparities.

The House passed that bill as part of the Ledbetter Fair Pay Act bill, but the U.S. Senate did not take that up.  Backers of that bill, including Rep. Rosa DeLauro of Connecticut, will continue to press on. 

For employers, the Ledbetter Fair Pay Act should just be another reminder to be vigilant in the monitoring of your compensation practices.  The EEOC's Compliance Manual (H/T Moore) gives some suggestions on the issues that employers can review to determine their compliance with the applicable laws.  

There's little reason for employers to cry "wolf" or "boy" over this latest Act. Stay focused and use this current annual review season to ensure that your pay practices are supported by accurate data and are fair. 

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UPDATE 2/2/09 - On late Friday, January 30th -- after this post had been published -- USCIS announced that it was delaying implementation of the rule by at least 60 days (or April 3, 2009). See new post here. 

As if human resources professionals didn't have enough on their plate this month (with changes to the ADA and FMLA), Groundhog Day will bring about another change. Although I've covered it before, it is important for employers to understand because it will affect employers of all sizes, regardless of whether they are in Connecticut or beyond.  

The U.S. Citizenship and Immigration Service has revised the I-9 Forms and modified the list of documents that are acceptable to prove identification.  The form should be used starting February 2, 2009 for all new hires and can be downloaded here.  Employers will have to use the revised Form I-9 for all new hires and to re-verify any employee with expiring employment authorization.

CIS's website summarizes the changes to the acceptable documents list here:

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process. The changes included in the interim final rule will significantly improve the security of the employment eligibility verification process.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only.

The rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.  

Various other blogs have summarized these changes as well, including the Pennsylvania Labor & Employment Blog, World of Work, and The Word on Employment Law. 

Until February 2nd, employers can continue to use the current I-9 forms.

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Earlier today, President Obama welcomed Lilly Ledbetter to the White House and signed the Lilly Ledbetter Fair Pay Act.  You can find the text of the act here and even leave your comments on it. You can read the President's remarks here. And you can find the White House blog entry on the subject here.

In signing the bill, the President said:

So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time.

I've covered the bill extensively in prior posts, which you can find here, but some final remarks on this new law for now are worth mentioning:

• The final version of this bill does NOT contain provisions relating to the Paycheck Fairness Act. That bill -- which was originally part of the House version -- did not make it into the Senate version. Thus, the Senate will take that measure up separately, perhaps later this year. 
• The bill is retroactive to May 28, 2007, but as the SCOTUS Blog is quick to remind us, it does not "revive" claims that have already been dismissed with a final judgment: 

The new law, because it would apply to cases still pending that were filed the day before the Court’s ruling, or thereafter, it has the specific effect of overturning the Ledbetter decision. It cannot alter any case that has been finally decided, however. Congress had the authority to overturn the Ledbetter ruling because that was based only on the Court’s reading of a statute, and not a constitutional provision.

• The bill's main purpose is to extend statute of limitations on compensation decisions. But the effect of the bill will be to allow for a potential look back on compensation decisions for several years -- and perhaps much, longer.

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Another snow day.

The winter continues its white deliverance. But in the meantime, the employment law world never stops.  Here are some items to keep you up to speed on what's been happenning locally and nationally.

• The latest projections are that the Employee Free Choice Act will be brought up for debate in Congress sometime this summer. In the meantime, there's lots of analysis that is coming out in support of or against the bill  -- much of it filled with empty rhetoric. One of the more cogent ones, is a post by respected economist and federal appellate judge Richard Posner who has his doubts as to whether the bill will actually promote unionization.  (H/T California Labor & Employment Defense Blog).
• The Lilly Ledbetter Fair Pay Act is now due for signature by President Obama on January 29th.  
• It's Girl Scout Cookie season and, as the HR Capitalist now reminds us, this brings into focus non-solicitation policies that many companies have.  "I hate saying no to the sale of girl scout cookies, school sales, etc. I'm usually a "no-harm, no-foul" type of person, but every time I see one of these cases, it always perks up my sensitivity to solicitation in the workplace."  
• Word in this morning is that the E-Verify rules will now be delayed further to May 20th and will allow the Obama administration time to review the proposed rules.  
• Above the Law reports that the Government's job website was actually hacked over the weekend.  As if workers didn't have enough to worry about...
• Rush Nigut, who runs a terrific blog in Iowa, has a post about using Twitter in the workplace. If you don't know what Twitter is, now's the time to start.  
• John Phillips has a good article about why employees don't go to human resources. For HR professionals, it's worth reviewing because if you can get to the root of the problem, you have a better chance of solving it before it blows up into something larger.

And if the snow here gets you in the mood for a little Robert Frost, here's a link to his classic poem: Stopping by Woods on a Snowy Evening. 

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