Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

A Small Bite Here, A Nibble There, Workplace Violence Lessons Everywhere

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

It’s a big day today.  The U.S. plays Belgium in the World Cup this afternoon. We’ve already covered it twice from a workplace morale and absence perspective, so we thought it appropriate to revisit perhaps the most notorious incident of the World Cup so far: A Workplace Violence Incident. My colleague, Chris Engler, gives us this little morsel to chew on: 

By now, many readers are more than familiar with Luis Suarez’s infamous biting incident in the World Cup.  His subsequent four-month suspension is probably old news too.

However, the story keeps ripening, with Suarez claiming over the weekend that he “fell” into the other player and then on Monday issuing a public apology to the player who “suffered the physical result of a bite in the collision he suffered with me.”  (Editor’s Note: Yes, this is a pretty weak apology.)

Don’t worry – I’m not going to regurgitate the whole ordeal.

Instead, being a loyal reader of this blog, I was struck by the employment law implications of the story.  As it turns out, several helpful lessons can be extracted from Suarez’s conduct and football soccer organizations’ reactions.

At the outset, it’s important to remember that Suarez is a professional athlete, and the pitch field is therefore his workplace.

Before we go any further, we should dispel the notion that only professional athletes (Mike Tyson is another) use their teeth to settle workplace disputes.

Take, for example:

(Alas, I couldn’t find a single published court decision involving an employee challenging discipline for workplace biting.  Perhaps the biters are eventually convinced to hold their tongues.)

However, the lessons from the Suarez saga aren’t limited to biting incidents.

First, employers should conduct a prompt investigation into allegations of workplace violence or other misconduct.  Workplace disputes often hinge in some part on credibility determinations, since there are often no witnesses other than the two participants.  Asking questions immediately could prevent the participants from being able to concoct more favorable versions of the facts.

Certainly, Suarez’s “bosses” – and indeed the whole world – benefitted from instant replay and a multitude of video cameras, allowing everyone to see exactly what happened.  That still didn’t stop Suarez from initially denying any wrongdoing.

Second, employers should take a clear and firm stance against workplace violence or whatever other misconduct is at issue.  Not only will it help uphold any discipline imposed, especially in unionized workplaces where the “just cause” standard applies, but it will prevent the victim (if there is one) from claiming that you failed to protect him or her.

It’s also generally good PR to boot.

To be sure, FIFA (the international body overseeing the World Cup) quickly imposed a four-month suspension on Suarez.  However, the Uruguayan national team on which he was playing was quick to defend him and apparently plans to appeal the suspension.

Furthermore, his conduct hasn’t stopped a major club in Spain from pursuing him with a £40 million contract.  I wouldn’t exactly call that universal condemnation.

Third, document, document, document.  If you don’t think an employee’s conduct is bad enough to warrant severe discipline, at least keep records of it.  Even better, consider utilizing progressive discipline (even if you’re not in a unionized environment).

Otherwise, if you let someone get away with something nine times in a row and then fire them after the tenth, you’re setting yourself up for a claim that it was just a pretext to disguise discrimination or retaliation.

It’s been reported that this was Suarez’s third foray into faux cannibalism.  I doubt that most employers would keep an employee around after just one or two bites, even if they “apologize” and promise to reform.

Either way, that Spanish club (Barcelona, if you want specifics) seems to have at least partially gotten the message.  According to one report, they’re planning to insist upon a “bite clause” in the contract.  (It sounds like what we’d call a last-chance agreement, but I think Barcelona’s term has a catchier ring to it.)

Finally, be wary of the publicity your response might get.  Granted, most readers don’t participate in international tournaments.  Even so, it’s not difficult to get picked up by the popular press these days – and once bad PR hits the web, it bites down hard and doesn’t let go.

You may not get a biter in your workplace, but odds are that someone will lose their temper. When they do, it’s best to be prepared and have a plan of action in place.

Supreme Court’s Narrow Rulings Leave Questions for Connecticut Employers

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

The U.S. Supreme Court this morning came out with two controversial decisions that will impact employers in Connecticut.

The first one, Harris v. Quinn, dealt with whether non-union public employees could be forced to pay union dues.  The court issued a relatively narrow holding, ruling that “partial” public employees could not be required to do so.  In doing so, it made a distinction with “full-fledged” public employees.

The second one, Burwell v. Hobby Lobby, dealt with whether for-profit employers could be required to provide contraceptive coverage under the Affordable Care Act. The court again issued a (relatively) narrow holding, ruling that closely-held corporations (where more than 50% of stock is held by 5 or fewer individuals) can opt out of the contraceptive coverage for religious reasons.

There is going to be lots of coverage this week on the impact of these decisions generally, but I thought I would touch on a few thoughts for Connecticut employers.

First, employers shouldn’t overread the decisions. While these decisions may lay the groundwork for broader decisions from the court in the future, these decisions aren’t as broad as some reports suggest.

Second, a very interesting issue is developing about whether employers could use this decision to discrimination against employees on things like race, gender or sexual orientation based on their religious beliefs. The majority opinion takes pains to discount that notion:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. … Our decision today provides no such shield. The Government has a compelling interest inproviding an equal opportunity to participate in the workforce without regard to race, and prohibitions on racialdiscrimination are precisely tailored to achieve that critical goal.

Third, the decision also raises the question of the impact on state anti-discrimination laws. For sexual orientation and gender identity claims, “religious corporations” are given a specific exclusion of coverage.  Could a company like Hobby Lobby now be considered a “religious corporation” under state law? Or can it claim some other type of exemption given that Connecticut is already excluding some employers? And what is the impact of this decision on the other types of anti-discrimination laws that Connecticut has set up that are much broader than federal law?

It is this last set of questions that I think is most intriguing and necessitate some further review.

Connecticut law also prohibits discrimination against employees because of theirreligious beliefs too. How will the Hobby Lobby decision impact that aspect as well?

Today’s opinions will no doubt have an impact on employers. The real question that remains to be seen in the upcoming months and years is, “How Much?”

Why I Write: Reflections of the Connecticut Employment Law Blog

Posted in Highlight

For a special weekend post, this will be something a little different.

Earlier this month, I was “tagged” in another blog post in something called a “blog hop”.  It’s basically a common-themed post that runs like a chain letter from blog to blog.  The topic is on writing.  (I’m grateful to Jennifer Romig on her Listen Like a Lawyer blog for her kind words on her post referring to me as a great writer and a “nice guy” too.)

In the 1000+ blog posts I’ve done, I haven’t touched on myself or been introspective before, so it’s a unique opportunity to break from convention.

Why I Write (or Type)

What am I working on?

Well, naturally, I’m working on this, the Connecticut Employment Law Blog.  I started it back in 2007 for a few reasons. First, I was reading other blogs at the time and thought “I could do that!”.  Back in college in the, ahem, early 1990s, I worked many long hours as a reporter and editor for my college newspaper, The Daily Pennsylvanian.  Many of my friends from that newspaper worked in the media industry while a few others became lawyers. I’ve always thought there was a lot of overlap between the two.

And I thought it would be fun to be a newspaper columnist too — like the ones who work for The New York Times too.  A blog afforded me an opportunity to do so.

A blog also could fulfill another desire which was to write.  Many times I would send an e-mail to colleagues or clients with a new case. The blog was a way of expanding the audience.

Which leads to another reason — to raise my visibility and get people to focus on employment law issues in Connecticut.  Until my blog, there really wasn’t a single publication that focused on the issue on an every day basis.  The blog was a means of doing so.

So, I continue to work on sharing news and noteworthy items in the Connecticut employment law area and to help employers in doing so.  Many years later, I still view it as a win-win.

How does my writing differ from others of its genre?

For too long, law firm newsletters and blogs were basically case summaries filled with citations, footnotes and dry commentary.  Many law firm blogs remain that way today.  (And seriously, do lawyers really think that clients read footnotes in blog posts?!)

I do what I think Jennifer describes on her blog too — to have the ”the kind of writing that informs and entertains lawyers and other legal professionals”.  I’m proud to mix, for example, pop culture with a legal case.  My World Cup posts recently are a good example of that.  I think its one of the things that sets me apart.

I have also tried to answer the following question in every blog post: Why is this important to employers? If I couldn’t answer the question, I typically didn’t write about it  – at least in this space.

Why do I write what I write?

Honestly, I’m not quite sure. Writing to me is somewhat therapeutic.  Sometimes, I just have an inspiration and writing allows me to express that inspiration and “close” the thought. Otherwise, those thoughts just keep percolating.

I really do enjoy the subject too.  Sometimes, I write because I want others to have that seem feeling of either outrage or surprise I’ve felt.  Sometimes, I want to educate others.  I write mainly because I enjoy it and I’ve continued because enough of you say that you enjoy reading it too.

With some personal matters, I’ve also started another online journal.  Perhaps in a post later this year, I’ll let the two areas cross, but for now, I like keeping business and personal separate.

How does my process work?

When I first started, I used Google Reader to keep track of stories I found interesting. More recently, Twitter is my go to source. I’ll typically “favorite” something so I can come back to it later. I may also review just released cases or go through the Connecticut General Assembly website to track legislation.

Most of the time the post comes easily.  I’ve probably had some time in my head to figure out what I want to say so by the time I write, it’s just a matter of typing quickly enough to express the thought.  I like to write first and then go back to the top and do some editing.  Sometimes, I’ll let the post sit for a day or two — other times, I’m just eager to get it out.

My process probably works more like a journalist. I learned about how to craft a “lede” that grabs a reader. I learned about writing pithy headlines. And mostly, I learned to write in a more conversation style — much like a columnist for an op-ed piece does.  My early posts were struggles through that but I think (and hope) that I’ve gotten better in time.

Please check out my blogging friends:

For the next leg of this blog hop, if they are so inclined, I’m highlighting three blogs, all by lawyers.  These won’t come as a surprise to readers of the blog as I’ve long admired them, but here are a few:

  • Jon Hyman, of the Ohio Employer’s Law Blog, remains a rock.  While my schedule has dropped off, he writes every business day.  And he’s consistently zigging while others zag.   I’ve had the pleasure of breaking bread with him and he’s just a great person as well.
  • Robin Shea, of the Employment & Labor Insider, typically only writes once a week. But if you’re not reading it, you’re missing out.  I love her sense of humor and wit.
  • Kenneth Adams, of Adams on Contract Drafting, takes a different approach.  But I really appreciate the craft and care he takes into explaining contract provisions.  You might not think there is a lot to writing a good contract but once you start reading his blog (and, better still, his book), you’ll start freaking out over all the issues your current contracts may have.

 

Supreme Court Invalidates NLRB Recess Appointments; Dozens of Decisions Impacted

Posted in Labor Law & NRLB

The U.S. Supreme Court, in a 9-0 decision (with a heated split on the reasoning), ruled that the recess appointments to the NLRB made by President Obama during a three-day recess were invalid.

You can download the decision here.

Much of the early instant analysis has focused on the recess appointment power itself. But for those in labor & employment law, the decision appears to have a much greater impact.

Because by invaliding the recess appointments, the court also affirmed the lower court’s ruling that a decision made by the NLRB composed of the recess appointments was void.

Thus, that suggests that dozens (or by some measures, hundreds) of controversial decisions by the NLRB made with these recess appointments are likely invalid as well.

Of course, the U.S. Supreme Court’s decision doesn’t explicitly say that, but that appears to be the logical result of the court’s ruling.

But before you throw out everything, the decision may have a limited impact in one respect: The NLRB has had a full slate of board members since July 2013.  The propriety of those decisions is not in doubt.  The slate is decidedly more union-friendly so while the court decision throws out a bunch of cases, it creates more of a logistical mess than anything else.

 

A Note from the U.S. Coach is a Great Idea, But Not a Good Excuse

Posted in Data Privacy, Highlight, Human Resources (HR) Compliance, Social Media, Wage & Hour

First off, let me say that I’m really obsessed with enjoying this year’s World Cup.

But Thursday presents some special problems for employers.  The United States Men’s Team has a very important game at 12 ET.  Right in the middle of the lunch hour (or two?).  Beat or tie Germany and the U.S. is through to the next round. Lose, and they have to hope on the results of another game at the same time.

Apparently, the team enjoys having the support of lots of U.S. supporters. So, the coach drafted a note for employees to give to their employers tomorrow.

First off, let me applaud the coach for his creativity.  But if you’re an employee, it’s just probably definitely not a good idea to submit this unless your workplace has a real good sense of humor.

Take a recent case reported out of Canada. An employee asked for a day off to play in a softball tournament.  When his request was denied, he still took a sick day off.  I’ll let a recent blog post take it from there:

 Suspicious that he was not actually sick, the Grievor’s manager had attended the ball diamonds where he witnessed the Grievor playing baseball. When confronted, the Grievor stated that he was suffering from a severe case of diarrhea on the day in question and was not playing baseball. The Grievor later admitted to being at the baseball diamonds when confronted with the fact that someone had seen him there; however he stated that he was only watching. The Grievor subsequently admitted to playing, but minimized his involvement on the basis that he was “only pitching”.

Ultimately, the employee’s termination was upheld by a local court — but not until after an arbitrator found that the termination was overly harsh.

For employers, make sure your employees know the rules that must be followed.  And certainly, productivity will require many employees to work during this time. But it’s also around the time for lunch, so if a few of them straggle back to their desks a little slowly, put that tardiness under some perspective.   If you don’t discipline employees from coming back from lunch late on a “nice” day, then follow that same approach here.

I’ve previously discussed it a few weeks ago, but it bears repeating again.  The soccer game last week was among the most watched soccer games EVER in the United States.  No doubt a few of them are going to watch it on their phones, or televisions at work on Thursday.  Be prepared.

You Be The “Judge”: Is Swearing at Work Protected by Federal Law?

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Labor Law & NRLB, Litigation, Manager & HR Pro’s Resource Center

Let’s try something a little new today: I’ll give you some facts and see if you can pick the result that a court or agency found. (Hat tip to Overlawyered for highlighting some of these issues.)  I’ll give you the lesson learned from these cases at the end.

Used Car Salesman Loses Temper

1.  Nick is hired in late August 2008 as a used car salesman (really).  On the first day on the job, Nick worked in a tent sale and inquired about the bathroom facilities.  The manager responded that it was in the store.  The next week, when he asked if he could use the bathroom during tent sales, the manager responded “you’re always on break buddy … you just wait for customers all day”.  He told Nick that he could leave if he did not like the employer’s policies.  During the next tent sale, he asked other salespeople about the compensation policy. He also raised the issue of bathroom breaks as well.

At another tent sale (apparently, tent sales are very popular), Nick asked his manager about the commissions for a vehicle and thought the employer was stealing money from him in calculating his commissions.  He then went to the state’s wage & hour agency to obtain more information about commission-based payments.

By October 2008, his manager met with Nick in private office saying that he had no intention of firing Nick but that he was “talking a lot of negative stuff” and asking too many questions.  The manager also said that if Nick did not trust the employer, he didn’t need to work there.  Nick then lost his temper calling the manager a “f–ing mother f–ing”, a “f—ing crook” and an “a–hole.”  Nick also told the manager he was “stupid” and stood up, pushed his chair aside and told the manager that if he was fired, the manager would regret it.

Nick is then fired and brings a claim against his employer.

Will Nick win his claim?

a) No, yelling at his boss is “obscene and denigrating” and thus grounds to fire the employee, even if he did engage in some “protected” activity.

b) No, while he made threats against his boss, they were empty words and he did not engage in “protected” actvity anyways because mere discussions regarding compensation are not covered.

c) Yes, because Nick’s outburst was not menacing, physically aggressive or belligerent and he engaged in “protected” activity.

d) Yes, because the right to use a bathroom is protected under state law and Nick was right to be upset that his use was restricted.

Continue Reading

For Connecticut Employers, First Amendment Case Will Have a Small Impact

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

U.S. Supreme Court

Much will be written about the new First Amendment free-speech-in-the-workplace case decided by the U.S. Supreme Court today.

But frankly, I wouldn’t be surprised if most of them say nearly the same thing — that testimony by an employee who has been subpoenaed outside the course of his or her job responsibilities is now protected by the First Amendment.  I predicted as much last month.  Yawn.

Yet that’s the general proposition that comes out of the case of  Lane v. Franks today.  This was a unanimous decision  – and written by Justice Sotomayor.  This was not a close call in the court’s view — something that was foreseen by the questions at oral argument.  No one should really be surprised.

Another way to look at the case is to see that the court was asked to revisit the scope of its holding in Garcetti v. Ceballos.  Some courts had interpreted the rule in that case  – that employee speech made “pursuant to official job duties” is not protected — pretty broadly.

The Supreme Court rejected the view that almost any speech by an employee doesn’t deserve First Amendment protection.

Rather, the court said:  ”The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

Justice Thomas wrote a concurrence to basically say the same thing.  He goes on to say what this case is not about:

We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities.  For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.

I’ve talked before about how Connecticut has an equivalent state law that adopts First Amendment precedent.  So for Connecticut employers, it’s important to understand that employees who are subpoenaed to testify about work (but outside their official job duties) will now have some protection.

But the Lane case always seemed like an outlier case to begin with; if you’re disciplining employees for testifying truthfully under a subpoena in a corruption case, you probably have other issues as well.

What’s New at the CHRO? Commission Chair Collins Shares His Perspective

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Legislative Developments

Collins, left, addresses CBA; Shipman & Goodwin Partner Gabe Jiran, right, moderates.

At Monday’s Connecticut Legal Conference, CHRO Chair Gary Collins spoke for a bit about the developments at the oft-maligned agency since he’s come on board.  (You can follow all the tweets from the conference on Twitter using #ctlegalconf as the hashtag.)While he joked that attendees could just read this blog to find out what was going on, he did highlight a few new developments at the agency that are worth sharing here.

  • First, he noted that Cheryl Sharp, a 21 year veteran of the agency, was just appointed Deputy Executive Director.  Sharp – who received her law degree from UConn Law – is fairly well regarded by both sides of the labor & employment law bar.  She is also credited with starting the Kids Speak and Kids Court outreach programs as well.
  • Next, he noted that Human Rights Referee Ellen Bromley submitted her resignation last month.  No replacement has yet been named.  One look at the public hearing calendar for the agency and its clear that in order to maintain some of the gains made in reducing the backlog, one will have to be named relatively soon.
  • Mr. Collins also noted that the agency is looking to make some tweaks to Public Act 11-237 – the law that made significant changes to how the CHRO processes discrimination complaints.  (For background on that law, see my prior posts starting here.)  He encouraged attorneys and other stakeholders to provide him feedback on how changes in the law can help improve the agency.
  • Notably, he said that the agency is now closing significantly more cases than a year ago.  He indicated that while the agency is still taking in more cases each year than it closes, he hopes that within the next year, that trend will be reversed. He cautioned that he wanted the agency to do so in the right way  — not just closing cases solely to meet certain “numbers” or benchmarks.

While I won’t speak for other attendees, Mr. Collins’ outreach should be welcomed.  He is genuine in his concern to improve the agency.  To that end, here are a few minor suggestions that can be done easily to continue to increase the transparency and visibility of the agency.

The agency still has a lot of work to do to remain relevant and useful.  While opinions about the agency are still down among practitioners anecdotally, with a new Executive Director last fall and Mr. Collins’ as its Chair, the agency is certainly far from out.

EEOC’s David Lopez Addresses Connecticut Bar Association

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight

The Connecticut Legal Conference on Monday (produced by the Connecticut Bar Association) had several noteworthy programs, including a few on labor & employment law.  In today’s post, I’m going to recap the presentation by David Lopez, the current EEOC General Counsel.   He talked about the Top 10 Developments in EEOC Litigation over the last few years.

Fortunately, most of my tweets do a good job of recapping the event but I want to highlight one aspect.

Of all the cases he cited, not one is from Connecticut.  Why is that? Because of a strong plaintiff’s bar (that is, attorneys who represent employees) and strong state laws as well.

Kudos to the Connecticut Bar Association for this noteworthy speaker and presentation. Very informative.

World Cup Fever: Workplace Considerations Before Giving Out That Red Card

Posted in Highlight, Human Resources (HR) Compliance, Wage & Hour

Among the things I like about having a blog as long as I’ve had is that it provides a snapshot back in history.

Back in 2010, I did a post about how the World Cup would likely disrupt the workplace with everything from streaming videos to vacation time being used.  I noted that even then, people were more excited than they’ve ever been and that the games, which would occur during prime working hours, would likely need to be dealt. (And if the goal from the USA against Algeria in 2010 doesn’t give you goosebumps, you may want to check your pulse too.)

I also predicted Spain would win the World Cup (which they did) so I didn’t do too bad on my predictions.

So what’s changed in the last four years?  Will it cause the same disruptions? Maybe.  But maybe not.

On the one hand, employees don’t need your computer system anymore. They can stream every game for free on their smartphones or tablets (the iPad was released just 6 weeks prior to the World Cup) which they own with increasing frequency.

On the other hand, we’ve continued to see explosive growth in social media. Your employees will be more prone to distractions than ever.  Even if many of the games are later in the day than South Africa, there will still be lots of afternoons filled with soccer.

And so, in 2014, we see once again several posts and articles from HR-types and newspapers giving employers tips as to how to manage this big disruption to the workplace.

One overseas company goes even further by recommending that employers adopt a “flexible” workplace policy, suggesting that employers should have agreements in place to deal with requests for time off, sickness absence or watching TV or websites. The company said:

The World Cup is an exciting event for many football fans but staff should avoid getting a red card for unreasonable demands or behaviour in the workplace during this period. Many businesses need to maintain a certain staffing level in order to survive. Employers should have a set of simple workplace agreements in place before kick off to help ensure their businesses remain productive whilst keeping staff happy too. Our guidance published today can help managers get the best from their team players and avoid unnecessary penalties.

I wouldn’t go nearly that far.   You don’t need “workplace agreements” here in the U.S.  Work is still work and employers can still require employees to get work done during work hours — even with the World Cup.

But if you do find your employees going a bit astray, consider counseling them before serious discipline.   No need to issue a red card when a yellow one, or even a warning, will do.

Are you ready for some “football”?