Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Target’s Union Avoidance Video Is Worth Watching

Posted in Labor Law & NRLB

You might wonder why certain employers aren’t unionized.  There are many factors, of course, but one of them is a keen awareness by the employer of the risks that are out there.

Target is one of those employers.

Earlier this week, Gawker acquired one of the videos that Target uses to educate its workforce on what it thinks about unionization.  It’s pretty slick.

There are many aspects to the video that show its sophistication in today’s workforce.  For example, it highlights the benefits of its own open door policy while also suggesting that if a union were to come in, it may have to change.

Indeed, if you watch the video, there are a lot of “mays” in it.  Why? Because the company — like all other companies that engage in such strong union avoidance strategies — wants to be sure that its messages don’t run afoul of the strict rules enforced by the NLRB.  By suggesting that some things might happen if a union comes in, the company plants the seed of something happening without committing to it.

Jon Hyman at the Ohio Employer’s Law Blog (who tipped me off to this), has accurately noted that while the video is nice, your company doesn’t need something similar. He suggests that “TEAM approach to union avoidance:

  • Train supervisors
  • Educate employees
  • Accessibility
  • Modernize policies

As Jon goes on to note, “understanding that union avoidance starts as soon as an employee walks in your door about applying for a job, and not as soon as a labor union approaches your employees about signing authorization cards, is the first step in honing the right strategy that will keep your company union free.”

If you are wondering if this approach is right for your company, be sure to consult with your preferred counsel who has experience in both union and non-union work environments.

And if you want to watch the 2011 version of the same video (the sound may be an issue), check out the video below.

Outdated Employment Regulations Get a Second Look in Connecticut

Posted in Laws and Regulations, Wage & Hour

Welcome to the party, Connecticut.

For years, I’ve highlighted outdated employment laws and regulations in Connecticut that should be written off the books.  As I’ve noted time and again (and again), it’s very easy for laws to get put on the books. But it’s very hard for them to get taken off.

Now comes word that the Connecticut Department of Labor is finally reviewing some of its regulations after being “stunned” that some of them were still on the books.  According to a story in today’s Hartford Courant:

State labor commissioner Sharon Palmer could hardly believe it when her staff generated a list of state regulations that should be eliminated. They had been acting under a directive from Gov. Dannel P. Malloy to search for obsolete regulations that could be wiped off the state books.

One of the regulations they found – still on the books today – says that no woman can work alone between 1 a.m. and 6 a.m.

“Is that funny or what?’’ Palmer said Thursday as she burst out laughing. “We’re not sure how old it is. It could be 50 or 60 years old. We’re not sure. Very, very old. … I think it could go back to the turn of the century.’’

I appreciate Commissioner Palmer’s sense of humor.  However, why stop at just a few of these regulations that aren’t enforced? It’s time that the state review all of the employment laws that are still, well, actual laws that are outdated too.

How about the law restricting telegraph services at night particularly since there are NO MORE TELEGRAPH SERVICES around?

And what about the law on “Home Workers” law that still refers to “women and children” in its coverage.  Yep, still on the books.

And don’t forget that “No laundry work shall be done in any public laundry in a room used as a sleeping or living room.”  Whatever that means.

There are plenty more and a while back I put together a few for starters.  Take a look and let’s get this done, Connecticut.

Up is Down and Outside is Inside? With FMLA, Not Quite Common Sense

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

Today, my colleague Christopher Engler, takes a crack at explaining what happens with FMLA leave when an employee takes works at another job while on FMLA leave.  As Chris explains, not everything about the statute is “common sense.” 

Picture this:

In one scenario, a maintenance worker takes an FMLA leave for “mental distress” but continues to deliver oil through his family business.

In the second, an employee of a travel agency goes out on FMLA leave due to his “extreme fatigue” and is caught working at a local restaurant. Both men are fired.

Is there an FMLA violation?

The federal and Connecticut FMLA both limit employers’ ability to fire workers on FMLA. But if the employer has a policy forbidding outside employment, that may, in some instances, allow an employer to do so.

But employers need to be cautious: The policy must be uniformly applied and the ban must be express. Otherwise, the employer runs afoul of the FMLA if it fires an employee for simply working while on leave.

While the cases and regulations aren’t new, many employers take it for granted that employees can’t work another job while on leave. But the courts are reminding us of what happens when you assume.

In the above scenarios, taken from real cases, both of the employers won because they had clear policies.

Even so, there is a silver lining on this cloud.

If an employer has a policy, it only needs an honest and reasonable belief that a worker violated it to fire the worker. In other words, the courts tend to cut employers slack in investigating FMLA abuse. The Connecticut DOL agrees, “[e]ven if the [employer’s] investigation was poorly done.”

Of course, this doesn’t mean that employers can get complacent or sloppy with their investigations. The point is that courts and agencies prioritize the existence of the policy in these cases.

For that reason, your company should think about adding this type of policy to their handbooks and manuals. Your preferred legal counsel should be able to assist.

With the FMLA, employers shouldn’t take anything for granted — even on something as “common sense” as this approach.

Background Check Documentation (Printed and Online) Under Renewed Scrutiny

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Litigation, Manager & HR Pro’s Resource Center, Wage & Hour

If you’re like most employers that do background checks, you probably haven’t thought twice about the documentation you use for it.

Perhaps you’ve copied some standard language you’ve found off the Internet (not that there is anything necessarily wrong with that), or maybe you’ve just used a form that has been handed down from one HR person to another.

A new lawsuit and a new strategic focus by the Federal Trade Commission and Equal Employment Opportunity Commission should give most employers pause on the forms that they use for background checks and the background check process itself.  This is true not only for the printed forms, but also the online forms that employers have started to use with regularity.

First off, Whole Foods was recently sued by an applicant who charged that the company’s online form seeking job applicants’ approval for criminal background check violates the Fair Credit Reporting Act.

As noted by Judy Greenwald from Business Insurance:

According to the lawsuit filed Friday in U.S. District Court in Oakland, Calif., in Esayas Gezahegne v. Whole Foods Market California Inc., the language in the authorization includes a waiver of claims against those who obtain a consumer reports, in violation of the FCRA. Consumer reports include criminal background checks, credit checks and other similar reports.  …

The online authorization forms all contained language releasing those who obtained the consumer reports from all liability, in violation of the FCRA’ s requirement that the authorizations be pristine documents that contain nothing other than the required disclosures and the requested authorization. In other words, defendant’s authorization forms were facially invalid,” the lawsuit states.

While it’s still early to draw conclusions from the lawsuit itself, the takeaway is that employers should consider having their disclosure contain only the disclosure.  Adding release language to it may be troubling to some courts.

I’ve discussed this in more detail in a client alert that we recently issued.

Second, this week the Federal Trade Commission and the EEOC released new guidance this week on employment background checks that again highlight the renewed focus these agencies have placed on the topic.

The press release states:

Hiring decisions are among the most important choices for any employer, but the process can be complex. For the first time, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have co-published two short guides on employment background checks that explain the rights and responsibilities of the people on both sides of the desk.

The FTC and the EEOC want employers to know that they need written permission from job applicants before getting background reports about them from a company in the business of compiling background information. Employers also should know that it’s illegal to discriminate based on a person’s race, national origin, sex, religion, disability, or age (40 or older) when requesting or using background information for employment.

At the same time, the agencies want job applicants to know that it’s not illegal for potential employers to ask someone about their background as long as the employer does not unlawfully discriminate. Job applicants also should know that if they’ve been turned down for a job or denied a promotion based on information in a background report, they have a right to review the report for accuracy.

With agencies and attorneys looking more closely at background checks, now is the right time to double check the forms you use — particularly if you haven’t looked at them in a while.

Obama Proposes Changes to White Collar Overtime Exemptions

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

The New York Times reported this morning that President Obama will ask the United States Department of Labor to revamp its regulations on the so-called “white collar” exemptions to the federal overtime laws.

Specifically, he will direct the DOL “to require overtime pay for several million additional fast-food managers, loan officers, computer technicians and others whom many businesses currently classify as ‘executive or professional’ employees.

The article also suggests that “he will try to change rules that allow employers to define which workers are exempt from receiving overtime based on the kind of work they perform. Under current rules, if an employer declares that an employee’s primary responsibility is executive, such as overseeing a cleanup crew, then that worker can be exempted from overtime.”

As of mid-morning, the order was still not available on the White House’s website but you can check here. 

However, based on the article, it seems that the executive and professional employee exemption would be most directly impacted, but it is unclear what the impact would be on the administrative exemption.

But before you start throwing out your position descriptions just yet, realize that the President’s direction is just the first step in a process, not the last.

The regulations still need to be drafted, proposed and then adopted by the United States Department of Labor. It is certainly possible that further revisions will occur during that process.  The timing of this is still unclear.

For employers in Connecticut, understand that if these new proposals do come into effect, it would provide a new “floor” for wage & hour laws in Connecticut and many employers would have to adopt them, even though Connecticut’s own rules would be different.  As I’ve noted before, when federal law provides more protection to employees than state law, federal law will control. (The vice versa also applies too.)

However, this suggests the most significant change we’ve seen in the wage and hour area in a decade and could potentially open up a new front on the wage & hour class action battles.

So stay tuned.

Social Media 2.0 – The Next Generation

Posted in Human Resources (HR) Compliance, Social Media

Perceptive readers may have noticed that I’ve been a little absent from the blog for a bit. I expect that to continue for a bit as I deal with a family medical issue that will be the subject of a blog post at some point in the future.

I am grateful, however, to my colleagues at Shipman & Goodwin who have been kind enough to pick up both this blog and me.

In the meantime, though, the news rolls on.

This Thursday, I’ll be speaking at my firm’s Public Sector Labor & Employment seminar on social media, along with my colleagues Richard Mills and Jessica Stein Soufer.  (Even though we are at a big facility — the Sheraton Hartford South (formerly Rocky Hill Marriott) — we are nearing capacity so sign up today if you’re interested.)

In the meantime, in the new edition of Law Practice magazine, I have the cover article on a whole host of social media sites that employers and their lawyers should start to concern themselves with.

The article, titled, “Social Media 2.0: The Next Generation of Hyperconnectivity” provides an easy to understand overview of the social media landscape, from the big sites (Facebook, Twitter, LinkedIn) to the up-and-coming ones (like Vine).

If you’re interested in the topic further, I look forward to seeing you at Thursday’s seminar. Please feel free to say hi.

Social Media Demonstrates New Minefields for Users (and their Parents)

Posted in Social Media

Many were quick to point out this interesting case but my colleague Robin Frederick sums it up best in today’s post.  If this doesn’t convince you to “friend” your kids on Facebook, I’m not sure anything will!

Robin FrederickMost tech-savvy parents counsel their kids to be careful about what they put on Facebook and other social media because their posts could come back to haunt them when they are applying for college or looking for a job.  But one dad just found out that his daughter’s injudicious post cost him $80,000.

Patrick Snay, a 69 year old former head of Gulliver Schools, a private prep school in Miami, settled an age discrimination and retaliation claim against the school that he brought when his contract as head of school was not renewed.  The settlement included $90,000 plus the payment of $60,000 to his attorneys for his fees, and he signed an agreement in exchange for the payment. One of the provisions in the agreement was a confidentiality provision, requiring Snay to keep the agreement confidential except for disclosure to his attorneys and his spouse.

Soon after the agreement was signed, and before the school payed Snay $80,000 due under the agreement, Snay’s daughter boasted on Facebook:

“Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

This post went to his daughter’s 1200 Facebook friends, many of whom were either current or past Gulliver students, and quickly spread to school officials.  In response, the school notified Snay that it would not be paying $80,000 that was outstanding under the agreement.

Snay sued to enforce the agreement, seeking the payment of the $80,000, and won at the lower court level. But the school appealed and a Florida appeals court ruled last week that Snay could not enforce the agreement because he breached its confidentiality clause by disclosing the deal to his daughter. He claims that all he said to his daughter was that his case was settled and he was happy with the result. According to the appellate court, this was sufficient to breach the confidentiality provision of the agreement, which prohibited Snay from disclosing “either directly or indirectly” “any information whatsoever regarding the existence or the terms of the agreement….”

The Court’s opinion found that, “[B]efore the ink was dry on the agreement, and notwithstanding the clear language … mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do.” “His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”

Confidentiality provisions are serious provisions that should be complied with by whoever agrees to comply. This is an extreme example of a confidentiality provision gone awry, but is not surprising given the reach of Facebook and other social media. Before the advent of social media, a breach might never have been discovered. But in 2014 and beyond, anyone subject to a confidentiality provision should be extra cautious about complying with its terms. And we should certainly continue to caution anyone using social media about its dangers and perils.

Don’t Look Now But Something Unusual Happened at the NLRB

Posted in Labor Law & NRLB

Today’s post comes courtesy of my colleague Jarad Lucan who weaves baseball and labor law into a single post.  Well, baseball, labor law and Wal-mart. 

And he reminds us that the National Labor Relations Board still has the ability to surprise….

Read on.

With spring training just around the corner, I’m reminded of one of baseball’s oldest unwritten rules:  If a pitcher has a no hitter, don’t talk about it.

If you are superstitious, you may take this to mean if something good is happening, don’t discuss it because you might ruin it. 

Luckily, I’m not a superstitious guy.

And even if I was, I may throw caution to the wind to report on a recent Advice Memorandum issued by the Office of the General Counsel for the National Labor Relations Board with a favorable position to an employee. In a termination case too.

And let’s face it, it’s also nice to report on a labor issue that doesn’t have to do with social media.

Before going further, it’s worth a reminder that Advice Memoranda issued by the Office of the General Counsel don’t need to be followed by the Labor Board.  Nevertheless, they are issued by the prosecuting arm of the Labor Board, and therefore may signal how similar cases may be perused in the future.

In this most recent Advice Memorandum, released on February 18, 2014, Organization United for Respect at Walmart (OUR Walmart) filed unfair labor practice charges against two Wal-Mart stores in Florida alleging that two employees were fired for participating in OUR Walmart demonstrations.

In other words, Wal-Mart was charged with firing the employees for engaging in protected concerted activity in violation of the National Labor Relations Act.

For background, OUR Walmart is a national organization whose stated goal is to educate Wal-Mart’s employees about workplace rights and help them improve their working conditions.  If you love to shop at 3:00 am the day after Thanksgiving, you may remember back in 2013 when OUR Walmart staged numerous nationwide rallies and demonstrations on Black Friday.

According to the Memorandum, although a case could be made that the employees’ activities during the demonstrations were a motivating factor in their firings, Wal-Mart could establish that it legitimately fired the employees.

Under Labor Board case law, an employer can violate the National Labor Relations Act if it takes adverse action against an employee and that action is motivated by an employee’s protected activity.  Nevertheless, the employer can avoid liability by demonstrating that it would have taken the adverse action against the employee even if the employee did not engage in protected activity.

That was the case here.

In this case, the first employee was fired due to her theft of time.  As it turned out, this employee had taken 295 minutes (or close to 5 hours) of unauthorized break time over 12 shifts.

The second employee, was terminated after she left her handbag on a shelf where salads and sandwiches are prepared in the store – she worked in the store’s deli.  This employee, however, had a history of past discipline, including receiving coaching for failing to follow safety instructions while using a deli slicer, failing to complete an assignment, and for wearing dangling earrings in violation of the store’s dress code limiting employees who are handling food to single stud earring.

The Memorandum also indicated that Wal-Mart did not violate the National Labor Relations Act when one of its managers attempted to use a cell phone to make a video of the OUR Wal-Mart demonstrations.  While such surveillance is usually illegal, in this case, it was warranted because Wal-Mart had claimed in the past that the demonstrators had trespassed and there was a state court action pending to which the video may be relevant.

This Memorandum serves as a reminder to employers that irrespective of protected activity there are certain actions that should not be tolerated, such as theft of time and repeated violations of company policy.

Whether this case signals a shift in the Labor Board’s apparent crusade to expand upon the rights of employees, both unionized and non-unionized, while undermining employers’ legitimate need to maintain civility and order in the workplace is doubtful.  However, the field of play may be leveling out just in time for opening day.

Play ball!

Got a “Secret”? Firewalls Are Not Stopping Spread Of Social Media

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

If it seems that there are more social media apps out there than ever before, you’re not going crazy.  No longer do employers just have to worry about Facebook. Rather, a whole host of sites has popped up leading to new headaches and challenges for employers.

I’ve talked about this before, but Law360 published a pretty thorough article last night in which I’m quoted regarding “What Employers Need To Know About the Latest Social Media”.

In it, I talk about the practical consequences that Facebook’s purchase of WhatApp (for $19 billion) will have on communications in and around the workplace.

With Facebook’s recent $19 billion acquisition of WhatsApp, a cross-platform instant messaging subscription service for smartphones, it’s safe to say that messaging platforms are on the rise. These messaging services provide their users with quick and convenient ways to share information, which means employees may be eschewing more established means of corporate communication like email in favor of messaging sites, especially when they are using mobile phones.

“For employers, this means that information is traveling quickly outside of typical corporate controls,” Daniel Schwartz of Shipman & Goodwin LLP said.

“It’s important to understand when your information is not going through normal channels if you have a document retention policy or regulatory concerns like in the financial or health care industries, to make sure that your secure information is not being leaked through the faucet that is instant messaging apps,” he said.

There’s lots more good stuff in the piece including a tip from Delaware Employment Law Blog’s Molly DiBianca about apps like Secret too.  Never heard of them? You should because confidential information and rumors are being spread.

Check out the rest of the article for additional tips, including this quote from Adam Forman, a great labor lawyer out at Miller Canfield as well.

“Employers need to understand that the days of simply putting up a firewall at work and having that protect you are over,” said Adam S. Forman of Miller Canfield Paddock & Stone PLC. “You need to survey what’s out there and figure out where you’re vulnerable. You need to understand the scope of today’s issues — college kids are not on Facebook anymore, and these are your employees.”

Public Sector Focus: The Perils, Again, of Arbitration and “Just Cause” Dismissals

Posted in Highlight, Labor Law & NRLB

We’re just a few weeks away from my firm’s Public Sector legal update.  (If you haven’t signed up yet, do so now because it’s getting close to capacity!)

So it seems appropriate to bring up a sore point for some: Arbitration Decisions That Leave You Scratching Your Head.

Today, I’ve asked my colleagues Saranne Murray and Jarad Lucan to tackle a new decision that we can add to that category.

When finding cases to talk about, we like to pick ones that will have an impact on employers.

But truth be told, it’s kind of tough to say that about an arbitration decision.

Why? Because Connecticut courts have held that one arbitration award doesn’t have to be followed by other arbitrators.  (In legal terms, an award isn’t ”precedent”.)

But we cannot resist sharing a case that has been making headlines for a while in Connecticut.

Remember the awful story of the young boy in Windsor Locks who was killed while he was riding his bicycle and was hit by the car of an off-duty police officer?

Well, in what some considered “guilt by association” and others thought was a molestation of process, the Windsor Locks Police Commission fired the officer’s father (Robert Koistinen), who was a Sergeant in the Department and the first one to arrive at the scene of the accident.

The Commission gave a bunch of reasons for Sergeant Koistinen’s firing including that he failed to exercise any control over the crime scene to avoid the destruction of evidence, and that he left the scene twice with his son in the back seat of his SUV.

Ultimately, the issue of the termination was decided through the arbitration process last week.

The Town faced a number of obstacles in the arbitration.

First, the firm hired by the Town to do an independent investigation after the accident found that Sergeant Koistinen’s actions “did not appear to produce any negative impact on the overall investigation.”  The report went on to state that “we also do not take issue with the action taken of putting Michael Koistinen, the operator, in his SUV vehicle.”

Second, Sergeant Koistinen had 34 years of unblemished service with the Town.

In the end, the arbitration panel (download the decision here) found that there was not “just cause” for the discharge.  Instead it reduced the termination to a one-year suspension.

While this may seem like a reasonable outcome to some, it is the kind of arbitration award that drives management lawyers and employers crazy.  It’s fair to ask:  “If what the person did was bad enough for a full year’s suspension, why wasn’t it enough to fire him?  And who are these arbitrators to decide what is best for our workplace?”

But these types of arbitration decisions are difficult to challenge.  Why? Because when the issue presented to the arbitrators is whether there was just cause for discharge of the employee, that is a so-called “unrestricted” issue meaning the judgment of the arbitrators is also “unrestricted”.

In other words, give the arbitrator a broad issue and the arbitrator will end up having broad discretion to decide it.

That doesn’t mean it’s not worth trying. It remains to be seen whether Windsor Locks will try to overcome these odds and ask a court to vacate the award.  Stay tuned, since they have to make that decision within 30 days.