Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Oh Lucy! Accommodations for Religious Beliefs and Disabilities Apply Different Standards

Posted in Uncategorized

Here’s a hypothetical: A observant Jewish worker who is a recent leg amputee comes to you seeking an “accommodation”.  She works on the candy wrapping line that requires constant supervision and is staffed by only one or two people typically.  She seeks to leave her shift 4 hours early on Fridays to observe the Jewish sabbath.  She also seeks to take frequent breaks to rest for her disability. 

Let’s call this employee, “Lucy” and use this video as an “example” of the candy-wrapping line.  

In other words, suppose “Lucy” wants an “accommodation” for both her religion and her disability.  What do you do as an employer?

As an employer, the obligations to provide an accommodation for a disability are not the same as for a religion because, while each may use the language of “accommodation”, the standards are quite different.

For a disability under the ADA, generally, employers must provide a “reasonable accommodation” so long as it doesn’t cause an “undue hardship”.  Frequent rest period may be reasonable under the circumstances, because the other person on the candy wrapping line can easily cover for the disabled employee.  (Ignore the “video” above, which still shows some difficulty even with two people.)  The cost of doing so may be something more than minimal, but it is not so difficult that the employer can’t do it.  The employer doesn’t need to hire anyone for the breaks.

For a religious belief accommodation under Title VII, the standard is slightly different. The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

In the hypothetical above, the employer may say that they can’t leave a candy wrapping line shift unstaffed for four hours and would need to hire someone for that shift. In that instance, the employer may argue that providing the accommodation could cause more than a minimal burden.

Two types of accommodations; two different results.

Of course, the usual warnings apply to this: Each case has different facts and what may work for one employer may not be workable for another.  Also, there may be state laws that apply different standards as well. Thus, the hypothetical above is for illustration purposes only.

But for employers who are dealing with “accommodations”, this example should suffice. Understand that there are different standards for religious belief and disability accommodations and apply them appropriately.

Otherwise, “you got some ‘splainin’ to do!”

A Cold Shower for Workplace Ice Bucket Challenges?

Posted in Highlight, Human Resources (HR) Compliance

Let’s state the obvious first: We’re in favor of anything that raises awareness to the issue of ALS and #icebucketchallenge has done that and more.  And for the record, I did the challenge last weekend, after being suitably doused by my kids. (My friend, Robert Becker, posted a clip from mine here.)

But my colleague Chris Engler is back today with a cautionary tale.  Even when this meme ends, there will be something else. Sooner or later, the lawyers get involved…..

The ALS Ice Bucket Challenge has been ruling the airwaves and headlines for the past few weeks. 

No one can argue about the campaign’s success.  And you have to think the hype will have to die down soon.  The Internet is running out of celebrities, athletes, politicians, and everyday folks to nominate for the experience.  I’ve already heard the term “jumped the shark” tossed around.

But that’s not to say that it’s over. Yet.  (And regardless, there will be almost certainly be copycat campaigns for other worthy causes.)

With a meme this big, it was only a matter of time before we lawyers had to get involved and pour cold water on everyone’s parade.

You see, the fad has gone beyond individual acts of dousing.  Many companies and workplaces have teamed up to soak themselves en masse.

It’s apparently easy enough to goof up when dumping a bucket over your own head.  Multiply that by a few dozen employees milling about in festive spirits, and your risk manager is going to start sweating.  Indeed, even professionals have injured themselves during mass soakings.

By no means am I advocating against participating in the challenge. (After all, how can you not enjoy these celebrity videos?)  I may be an attorney, but I’m not that much of a wet blanket.

But the meme has gotten to the point where our office has started to get questions about it. And employers that are considering hosting or approving a group ice bucket challenge should keep some things in mind.

  • Peer Pressure – Will the event be voluntary?  We all know that “voluntary” can be a slippery word.  While it’s good to encourage employees to participate, some people might be really uncomfortable soaking themselves in front of their coworkers, and some might be unwilling or unable to donate money as an alternative.  Respecting individual preferences goes a long way towards building camaraderie.  And what happens when an employee says no? Will he/she be shunned?
  • Overtime – Suppose the event happens at the end of the day.  Can employees demand overtime pay for participating in the event?  It may depend on when it happens during the day, and probably whether it was truly voluntary or instead strongly “encouraged.”  Employers should consider wage and hour laws when deciding on the timing of the event.  Nevertheless, let us also suggest that the employee who demands to be paid for this charitable event may kind of be missing the point.
  • Workers’ Compensation – If an employee does get injured, is the injury covered by workers’ comp?  Again, it might depend on how voluntary the activity was.  If you’re concerned, be sure to check with your workers’ comp carrier, and perhaps your general liability insurer as well.  The answer may not be as simple as you think it is.  And people have gotten injured. 
  • Dress Code – What to wear?  Perhaps not surprisingly, there aren’t many people in the linked videos above who take the challenge wearing a business suit.  But many of the outfits worn in the videos probably wouldn’t pass muster under even a casual dress code, particularly when wet.  So a gentle reminder to your employees about what attire is acceptable for the event may unfortunately be necessary.
  • Social Media – The ice bucket challenge was born on the Internet and thrives on the Internet.  As Dan discussed a few months ago regarding the World Cup, employers might be tempted to discipline workers for excessive Internet use – and to be sure, they are entitled to do so.  But it might be worth cutting employees a little slack if the employer is hosting its own challenge, especially if the employees are simply promoting the workplace’s event.

You would hope that no legal issues would arise from a voluntary, charitable activity.  But past history has shown that work-related charitable activities inevitably lead to claims — whether we like it or not. 

Now, before you leave thinking we’re a wet sponge for the post, here’s one of our favorite #icebucketchallenge videos

Save the Date: “Raiders of the Data Ark” Is a Blockbuster Coming Soon

Posted in Data Privacy, Human Resources (HR) Compliance

First off, I should let you know that I am a poor substitute for Harrison Ford.

But, don’t let that dissuade you from saving October 16th as the date for a terrific conference that I’m helping to plan.  The title is “Raiders of the Data Ark” and the subject is “2014 Data Privacy & Cyber Security Summit: Practical Tips and Legal Risks for Connecticut Companies”.

It will be held at the Crowne Plaza in Cromwell from 8a-2p and will include breakfast, lunch, and several hours of notable speakers.

The conference, which is being run by both Shipman & Goodwin (my firm) and the Connecticut chapter of SHRM, is designed for operations personnel, in-house counsel, human resources personnel, general managers, finance managers and anyone else interested in solution-oriented approaches to the topic.

Registration will be up soon, so for now, just save the date and watch this space for more information!

Lessons from a Gentleman-ly Lawyer

Posted in Highlight, Litigation

I can’t say that I knew Palmer McGee particularly well.  But I was saddened to read of his passing last month at the age of 93.

My first knowledge of Palmer (or Mr. McGee as I tried to call him early on) came from my mother. Palmer served as Town Attorney in Farmington, Connecticut for many years and helped provide counsel to my mom who was an employee in town at the time.  My mother described him a thoughtful and kind man. (Upon his passing, she updated her view with “what a lovely man!” too).

He had a house up at Lake Ninevah in Vermont, not far from where my parents had a ski cabin.  And he talked first with my mother, and then me, about how pretty the area was and I learned later of his preservation efforts there.

When I became a law student, he offered to talk with me about the practice of law.  It wasn’t a long conversation, but it remains vivid to me because I remember being a bit overwhelmed by his stature.  He had practiced law for over 40 years and had such a gentleman-ly demeanor about him.   He would have none of it, but it was hard for a student like me to see how someone could have such a long and successful practice like him.  He counseled studying hard and said that when I was ready, he’d be happy to forward my resume on to someone at his firm at the time, Day, Berry & Howard.

That time came late in the summer of 1993 shortly before the start of my second year of law school.  No one from the firm would visit my school for an on-campus interview, but I believe that Palmer helped get my resume noticed so that I could get a legitimate job interview for a summer position.  I flew out to Hartford (I was in law school at St. Louis at the time) and he scheduled me to stop by his office to say hi and offer a warm welcome.

I got that summer position at Day, Berry & Howard in 1994 and it started me on a career that, twenty years later, remains a passion to me.

Palmer always held himself out as a professional. I have no idea if that’s the case; after all, most of his 40+ year career was done long before I started at Day, Berry & Howard.  But when I joined the firm, he talked about how enjoyable the practice of law and working at the firm was.  He gave a bit more of some simple advice to me: Work hard and don’t forget to treat the practice of law as a profession.

We didn’t have a lot of interaction during my further years at DBH.  He retired to Florida soon after I joined the firm.  He went on to write his memoir in 2005.  But his impact on my career is something I’ll forever be thankful for — even if it was small to him.

I moved on from DBH several years later and DBH became Day Pitney.   There’s no mention of Palmer on that law firm’s website, but his former DBH colleagues had some very kind words to say about him in a revealing profile on the Hartford Courant.

His son had this to say about him: “He tended to be a conciliator who tried to find a common ground even in an adversarial setting.”  That’s a terrific skill to have.

I’m grateful that Palmer showed me a small sliver of that approach and the benefit of helping others in the profession.   And thankful that my life was touched in a gentle way by him.

Paper Trail: DOJ Brings Issue of Hiring Documentation to Forefront

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

Late Friday, you might have (ok, I’m sure you did) missed a press release from the United States Department of Justice announcing a settlement with a staffing agency in California.

The charge? That a staffing company “discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).”

Now, I’m sure you all know (ok, I’m sure a few of you don’t know), that after an offer of employment is made, employers must require the to-be-hired individuals to present documentation to verify their eligibility to work in the United States.

But the DOJ charged that the “company’s staff required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documents during the employment eligibility verification process to establish their work authority. The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the employment eligibility verification process based on their citizenship status or national origin.”

I’ve previously discussed the I-9 form in some prior posts.  But in essence, employers need to use consistent practices at the start of employment.

The staffing agency is learning this issue the hard way:  Under the settlement agreement, the company ”will pay $230,000 in civil penalties to the United States, create a $35,000 back pay fund to compensate individuals who may have lost wages due to the company’s practices and undergo training on the anti-discrimination provision of the INA.”  Oh, and the agency will be subject to government monitoring and reporting requirements for three years.

Employers have a lot to worry about when hiring new employees.  Add consistent treatment of new hires to the list.

Peanut Allergies Can Be Disabilities But Analysis Must Run Deeper

Posted in CHRO & EEOC, Discrimination & Harassment

Earlier this week, ABC News reported on the story of a woman who had severe peanut allergies who alleged that she was denied a job at a hospital because of those allergies.  I appreciated ABC News reaching out to me for comment.

The facts of the story are frankly a bit unclear, so as I noted in the piece, I couldn’t really comment on the particular situation.  But I noted that severe allergies can be a disability under the ADA in some circumstances:

Daniel Schwartz, an employment lawyer at the Shipman and Goodwin law firm and publisher of the Connecticut Employment law blog, said the ADA could be applied to a severe food allergy, but that the law is really designed to allow the employer and employee to talk about reasonable accommodations.

“If an employee with a peanut allergy was looking to be hired to work in the warehouse of a peanut butter manufacturer, that may not be realistic,” said Schwartz, who emphasized he was speaking generally because he was not working with Coleman. “A hospital may have some concerns as well. But allergies should be handled on a case by case basis. Just because an employee has a food allergy, doesn’t mean that they can’t be accommodated in some instances.”

In some instances, the employer may say that accommodating the allergy would be an “undue hardship.”  In others, it may say that the employee poses a “direct threat” to the health and safety of himself.  But in many other cases, the allergy may not be.  The point is that an employer should look at the particular circumstances to determine the best outcome.

Let’s take another example. Suppose the applicant with a peanut allergy wanted to work as a food vendor at a baseball stadium.  The types of food that the vendor can sell are randomized so that a person may sell beer one day, or peanuts the next. In that instance, a reasonable accommodation may be to take peanuts out of the rotation for the employee so that the employee doesn’t have to sell them.  It’s probably not an undue hardship.

But suppose that the applicant’s allergy is so severe that even walking around a stadium with peanuts could potentially trigger a life-threatening allergic reaction? In that situation, it might fall within the “direct threat” exception to the ADA because the employee poses a significant safety risk to himself and that’s a risk that the employer isn’t willing to take.

Late in 2012, the Department of Justice entered into a settlement agreement with Lesley University to address food allergies for students. In doing so, the DOJ created a Question and Answer sheet that further details the government’s position on the subject.

Food allergies are quite common now and employers who haven’t had to confront the issue should be prepared to address them on a case by case basis.

 

Coping With Mental Disorders: An Employer’s Obligations

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

My colleague, Chris Engler, returns with another stellar post today tying in the news of the week.   Although you may have read a lot about Robin Williams this week, I encourage you to read one more. 

As everyone knows by now, comedian and actor Robin Williams passed away on Monday after a long struggle with depression and addiction.  Many of the articles about his death have emphasized Williams’s compassion and ability to put a positive spin on unfortunate circumstances. 

Following his lead and with all the attention his death has garnered, I decided to look for meaningful lessons from his life and career.

It would be easy to write about the employment lessons to be gleaned from Williams’s acting roles.  After all, his characters had a knack for getting themselves into troubles at work. 

We might ask whether Mrs. Doubtfire could have sued for gender identity discrimination after she was fired for trying to “poison” Pierce Brosnan.  Or we could ponder whether tenure laws would have protected John Keating, Williams’s character in Dead Poets Society.  We could even debate whether Mork’s alien heritage counted as a “race” or “national origin” for Title VII purposes.  (I’d like to think the answer is ”yes”.)  And we can probably all agree that signing a noncompete agreement with the Genie before Jafar stole his lamp would have saved Aladdin a lot of trouble.

But I’d rather focus on Robin Williams himself, and specifically on the depression with which he apparently struggled for much of his life.

The popular media is occasionally eager to discuss mental health issues when a celebrity dies or a tragedy occurs.  But average, everyday folks suffer from mental health issues too.  As employers, we need to know how to respond when our employees are among the sufferers.

First and foremost, Connecticut law prohibits discrimination on the basis of “present or past history of mental disability.”  The nondiscrimination statute goes on to broadly define “mental disability” as any mental disorder defined by the American Psychiatric Association.  (Dan has touched on this in prior posts here and here, for example.)

So we know that employers can’t discriminate against people with mental health issues.  That’s the easy part.  The trickier question is what an employer must do to help such people.

To answer that, we can turn to the federal Americans with Disabilities Act (“ADA”).  The ADA requires an employer to provide a reasonable accommodation to an employee who has a disability.  For physical disabilities, this is often a fairly straightforward analysis.  For example, if an employee is vision-impaired, you might provide a Braille keyboard.  If someone requires a wheelchair, you make sure her workspace is accessible.

But this analysis becomes somewhat more complicated for mental disorders.  For recent examples of what might be a reasonable accommodation, we can look at what courts have done:

  • In one case, a police officer with anxiety and depression requested a permanent transfer from patrol duties.  He asked for a position in Booking or the Canine unit.  The court agreed that it was reasonable to keep him away from patrol duties to accommodate his mental issues, but upheld the employer’s decision to instead place him in the Training unit.
  • In another case, a teacher with anxiety and a panic disorder requested an extended leave of absence.  His employer refused because there was no guarantee that he would be able to return to work at the end of the leave.  The Second Circuit agreed, and also faulted the teacher for failing to respond to the school’s attempts to collaborate on finding a suitable accommodation.
  • Another teacher with depression and mood disorders was granted two accommodations over the course of her career.  The school first cut her hours to 20 hours per week and then assigned a full-time paraprofessional to assist her in her band teaching duties.  After fourteen years of having these accommodations, the teacher continued to act “dazed and confused” and “zombie-like” at work, and frequently reported to the wrong school or for the wrong class.  The court upheld the school’s decision to dismiss the teacher because she couldn’t perform her job duties even with reasonable accommodations.
  • Finally, a manufacuring company employee who developed severe depression requested an accommodation of having no direct contact with any coworkers and, in particular, no contact with his supervisors.  The employee based this request on his psychiatrist’s evaluation that he posed a risk of workplace violence or suicide if he returned to the workplace.  The Second Circuit agreed with the employer that this was an unreasonable request.

So what’s the takeaway? 

The trend seems to be that the courts will require employers to go to significant lengths (including hiring a full-time paraprofessional, as in the third case) to enable employees with mental disabilities to keep working.  But that goal from courts is not limitless.

The courts also want some reassurance that an employee can continue performing his or her job.  If the employee can’t do the job even with the requested accommodation – or if the accommodation is to not do the job at all, as in the second case above – it’s probably not a reasonable accommodation.

Of course, as with any accommodation request, the employer must have an interactive dialogue with the employee to determine the employee’s needs.  Your employment counsel can assist you with the process.  After all, you ain’t never had a friend like him or her.

In the meantime, I’ll be singing along to “Prince Ali” and missing one of my childhood icons.

Nanu nanu.

ABA Approves Model Workplace Policy on Employer Responses to Domestic Violence

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

Chief Justice Roberts also addressed ABA to discuss the Magna Carta’s 800th anniversary

One of the roles that I relish is being a member of the American Bar Assocation’s House of Delegates for several terms now.   The ABA adopts certain policies at its Annual Meeting and uses its bully-pulpit to try to get such policies enacted at the federal, state or local level.At this year’s meeting, which took place in Boston over the last few days, the House considered Resolution 112A. The resolution itself is fairly short but stated the following:

RESOLVED, That the American Bar Association adopts the Model Workplace Policy on Employer Responses to Domestic Violence, Sexual Violence, Dating Violence and Stalking (“Model Policy”), dated August 2014.

FURTHER RESOLVED, That the American Bar Association encourages all employers, public  and private, including governments, law schools and the legal profession, to enact formal policies on the workplace responses to domestic violence, dating violence, sexual violence, and/or stalking violence which address prevention and remedies, provide assistance to employees who experience violence, and which hold accountable employees who perpetrate violence.

In plain English, the ABA adopted a Model Workplace Policy that has been developed by several groups for use in workplaces.  You can find it here.

So why should employers care? Well, for one, Connecticut already has a law that requires all employers to provide for domestic violence leave.  Adopting a policy like the type advocated by the ABA, can help achieve compliance with that law and also further the employer’s interests of making sure employees return to work quickly and are productive while theer.

Is the policy required? No.  And there is no civil liability that is attached to either having or not having the policy.  But an employer who does adopt it can illustrate that it takes the issues of domestic violence seriously and will encourage employees who are going through the process to speak up. As noted in the materials attached to the resolution, researchers have determined that victimization rates in the workplace are actually higher than in the general population.

The policy itself is long and can certainly be modified to fit a particular employer.   I would not advocate a wholesale adoption of it, particularly if employers cannot meet all of its particulars – whether through staff size or other conditions.  Small employers in particular may have different needs as well. And notably, Connecticut employers should consider this in conjunction with any policy on domestic violence leave.

But the model policy is an important step in raising awareness of the issue to employers and I applaud the ABA for being a leader in this area.

If you’re interested in the policy itself, again you can find it at the third page of this link. 

New CHRO Case Statistics Show Big Jump In Claims Filed in Last Year

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight

The Commission on Human Rights and Opportunities released a new set of statistics yesterday (my thanks to CHRO liaison James O’Neill for the update which I had requested a while back).  Unlike years past, the statistics this year show some dramatic changes; those changes should have a significant impact on how employers view the agency and the state of affairs in Connecticut.

  • First, the number of claims filed (which includes employment law claims as well as other types of discrimination — including housing) with the agency rose 16 percent for the fiscal year ended June 30, 2014.  The claims rose from 1850 to 2146.  After years of modest decline, significantly more claims were filed in the last year.  What were the reasons for that increase? That remains to be seen.
  • To its’ credit, the CHRO continues to improve on its ratio of closed cases to open cases.  Last year the rate was 106%; it edged up slightly to 107%.  It closed 2303 cases (as compared with the 2146 cases it opened).  That means cases are less likely to linger at the agency.
  • But how those cases are being closed should be concerning to employers in some respects.  The agency dismissed just 97 cases on Merit Assessment Review (basically, the paper review after the parties submit their initial filings).  Compare that with over 800 cases closed on MAR review ten years ago.  That means a lot more cases are going to mediation and investigation and cases cost a lot more to defend than in past years.
  • And what else does that mean?  It means that more cases are also getting settled at the investigation stage.  935 cases were “withdrawn with a settlement” last year.  Compare that with just 481 over ten years ago.  For employers, even the cases that would be deemed as without merit years ago are getting some type of settlement now.  Again, an increase in costs for employers.

Unfortunately, the statistics don’t yet show how many cases were found to have “reasonable cause” to proceed to a public hearing, nor how many cases were the subject of early legal invention as well.

What’s interesting as well is that the increase is consistent with the increase in claims at the EEOC for claims filed in Connecticut as well.  Over the last five years, the number of EEOC claims in Connecticut has risen by 53 percent (from 191 charges to 294.)

I’ve previously covered the trends of such statistics in various posts for the last seven years, so it’s worth reviewing them (here, here and here for example) too to see the larger trends.

For employers who believed that the discrimination claims are a relic of history, the statistics show that such claims are alive and well.  And they are costing more in time and money than ten years ago.

 

Do Camp Counselors and Baby Sitters Have to be Paid Minimum Wage?

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

My kids are at overnight camp this week and of course, my brain never stops thinking about cute employment law lessons that can be gleaned from everyday experiences.

So, you may wonder: do camp counselors who, after all, spend 24/7 with the kids, have to be paid minimum wage? And what about babysitters that you may employ over the summer?

If you look at the state law itself (Conn. Gen. Stat. Sec. 31-60), it seems to require minimum wage:

Any employer who pays or agrees to pay to an employee less than the minimum fair wage or overtime wage shall be deemed in violation of the provisions of this part.

But one of the lessons you learn in law school is that just because the legislature uses the word “employee”, it may not mean what you think it means.

In other words: check the definition.

And sure enough, when you look at the definition of employee in Connecticut, it specifically excludes whole classes of people.

“Employee” means any individual employed or permitted to work by an employer but shall not include any individual employed in camps or resorts which are open no more than six months of the year … or any individual engaged in baby sitting ….

So, in some circumstances, those employees of camps aren’t really employees under state wage & hour law. (Federal law has an exemption as well, though with different requirements.)

Thus, for camps, a whole other set of requierments may apply.  (For any camps out there, before you start changing all your rules, please note that there are lots of other regulations that may apply, as noted in this detailed summary by the American Camp Association. Seek your appropriate legal counsel.)

But for the rest of us, it may be summer, but there are always lessons you can learn — even from camp.