Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Will “Fifty Shades of Grey” Launch Fifty Hostile Work Environment Claims?

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

Back in May 2012, I wrote this about a book that was making its way around various book clubs that was dubbed by The New York Times as “Mommy Porn”.

[H]aving someone read [Fifty Shades of Grey] alone during a lunch break, by itself, is probably not enough to establish a sexual harassment claim. The fact that it is a book makes a difference. (Contrast that with, say, someone watching “9 1/2 Weeks” on the lunch room television.) …

Reading a book is, by its very nature, a somewhat private and solitary endeavor.

Now, that view could change a bit, however, if there was a workplace book group discussing the more outrageous plot points in front of others. In that case, the discussion might naturally revolve around sex which might (emphasis on might) may some feel uncomfortable. …

So, go ahead. Break out the book (or Kindle, or Nook, or iPad). But its probably still best, if you hear employees discussing the book, to have those conversations kept to a PG-level.

Flash forward three years, and here we are about to have the same discussion with the theatrical release of Fifty Shades of Grey this week.   In fact, Suzanne Lucas (otherwise known as the Real Evil HR Lady) echoes similar themes in a recent post to Inc.

How can discussing a movie turn your workplace into a hostile work environment? Well, if you start to get into details, you’re likely to have someone who is offended. You can’t just assume that because Jane doesn’t speak up that she’s not offended. And if the discussions go on long enough and it’s deemed an acceptable topic in the workplace, it’s possible that it could create an environment where sexual discussion starts to become the norm, and that could mean a reasonable person would find it hostile. That, plus your offended employee, is what it will take.

Now, does this mean you should go into full on panic mode and ban all mention of the movie? Probably not. Most discussions are going to be short lived, which won’t rise to the occasion of “sufficiently severe or pervasive.” But you do want to nip such conversations in the bud.

A quick reminder to keep conversation clean can go a long way toward reminding people that sexual discussions–whether real or fictional–should not have a home in the office. When you hear people talking, quip, “Hey, remember, this is a PG office.”

The workplace just isn’t the place to talk about topics like the main plot points in the book and movie.  It has the possibility to offend some.  The fact that women are discussing it instead of men is of no consequence.

Indeed, to establish a “hostile work environment”, an employee has to show that it is both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the person did find offensive.

So, as the next week goes on, keep your ears perked for conversation in the workplace.  That conversation about an airplane ride in the movie (hey, I’ve seen the previews like everyone else in the Super Bowl commercial)? Sounds ok. That conversation about ropes and blindfolds? Not as much.

Three Observations about the New EEOC Statistics

Posted in CHRO & EEOC, Discrimination & Harassment, Human Resources (HR) Compliance

The EEOC released its yearly statistics and it’s interesting to put together a story line from the numbers.  Here are three quick observations from my review of the stats:

1) Big Drop in New Cases: Perhaps not surprisingly given the improving economy, the number of new claims filed with the EEOC dropped by nearly 5000 claims, to 88,778.  That’s down from the peak of nearly 100,000 claims in 2010-2012.  In fact, it’s the lowest number of claims filed since 2007 — the year before the recession hit.  Will this trend continue? I’d say there is little doubt of that, until the economy stops its rebound.

2) Retaliation Claims Increase as Percentage of Claims: Against predictions that recent Supreme Court cases would lead to a drop in retaliation cases, the opposite has happened.   Retaliation claims in fact now make up 42.8 percent of all claims filed — up from just 36% in 2010.  The rumors of the death of the retaliation claim appear to have great exaggerated for now.  Of course, these numbers do not take into account the odds on succeeding on this claim, but it’s a number definitely worth watching.

3) Connecticut Claims Remain Relatively Constant:  The number of charges filed directly with the EEOC has remained relatively constant. That’s not much of a surprise given that the EEOC is not the first choice of most people in the state. The CHRO serves as the agency of first resort for many.  While it has a small sample size, the trend of increasing retaliation cases is also seen in Connecticut claims as well and constitute 42 percent of all charges filed.

Labor Union Membership Up Big Locally and Down Nationally, Recent Statistics Show

Posted in Labor Law & NLRB

The U.S. Department of Labor has released their annual statistics on labor union membership.  Nationwide, union membership is down slightly by .2 percent. In total, about 11 percent of the workforce belongs to a union.  Compared to 2008, when I reported on these statistics, the number is down by a full percentage point.

The numbers for Connecticut tell a slightly different story.  Back in 2006, 246,000 people belonged to a union or 15.6 of the workforce.  But the percentage went up during the recession as unemployment rates skyrocketed.  By 2010, the percentage of union represented employees was up to 17.4 percent, even though the raw numbers of people represented by unions decreased markedly.

Where do things stand now? Unions seem to be making a comeback in the state last year.  Union representation for 2013 stood at just 220,000 people, or 14.3 percent of the workforce. Last year, in 2014, however, that number skyrocketed to 245,000, or 15.7 percent of the workforce.

We can put the statistics in another way: In 2014, union representation in Connecticut last year increased by over 10 percent. That’s a big gain by any measure.  But it still just gets the unions back to where they stood in 2006.

Before we draw too many conclusions, however, I’m still having a hard time having faith in the numbers.  Connecticut released its own private sector employment numbers (without regard to union membership.)

For 2014, approximately 25,700 jobs were created in the private sector (almost the same number projected for union growth by the USDOL.) Are we to assume that only union jobs were created? Or that unions took over previously non-represented individuals in droves? If not, how do we reconcile the big increase from the USDOL?

So, take the statistics with a few grains of salt.

In any event, the statistics continue to show that unions still have a big role to play in the state. Having experienced labor counsel at your side still seems like a good bet for the foreseeable future.

BLIZZARD! Wage and Hour Reminders for Employers on Winter Storm

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

Well, it’s official.  Connecticut is under a Blizzard Warning as of Sunday afternoon.

This is, of course, nothing new for employers in the state. We’ve had more than our fair share of big “monster” storms. If you’ve been following this blog for some time, you’ll have read more than your share of blog posts about what to do with your employees when a storm hits.

But here are three issues you may not have thought of recently.

Reporting Time or Minimum Daily Earnings Guaranteed: Connecticut has a “reporting time” obligation (as do several of our neighboring states). It is contained in various regulations and applies to certain industries like the “mercantile trade”. You should already be aware of this law, but it has particular application in storm situations where people may not work full shifts.

For example, in Conn. Regs. 31-62-D2(d) for stores, an employer who requests an employee to report to duty shall compensate that employee for a minimum of 4 hours regardless of whether any actual work ends up getting assigned. So if you bring your employees in on Tuesday only to send them home 30 minutes later, you may be on the hook. For restaurant workers, it is typically a minimum of two hours (Conn. Regs. 31-62-E1)

Takeaway? For certain industries, be sure to know whether you will need to pay employees for a minimum amount of time if you send them home early from their shift.

Wage Agreements: Also be aware of any wage agreements (collective bargaining agreements mainly) that require you to provide employees with a guaranteed minimum number of work hours. Typically, these will need to be followed.

Hours Worked: Be aware of Connecticut’s “hours worked” regulation found in Conn. Regs. 31-60-11. That regulation says that “all time during which an employee is required to be on call for emergency service at a location designated by the employer shall be considered to be working time” regardless of whether the employee is called to work.

When an employee is on call, but is simply required to keep employer informed of whereabouts or until contacted by the employer, working time starts when the employee is notified of his assignment and ends when that employee is finished.

As you contemplate whether to close the office this week, make sure you’ve thought about these issues:

  • 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? What about text message?
  • 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?
  • Will the employer discipline or discharge and employee for failing to report to work due to weather conditions when the business is open?

As I said before, none of these issues should really be new for an employer in Connecticut. But with this being the first big storm of the season, it’s time to shovel out those policies.

Stay warm and safe the next few days!

Use of Marijuana On Duty Still Justifies Termination, Says Court

Posted in Highlight

With all the talk about the state’s implementation of medical marijuana laws, it’s easy to wonder what impact those laws will have on terminating employees who use marijuana on the job.

One recent Superior Court decision gave a pretty clear answer for state employees: None.  In other words, for employers: Fire Away.

That, of course, simplifies the decision and the result — employers should still exercise caution when disciplining employees for drug use to understand the facts and circumstances — but the court’s decision is yet another affirmation that the statestillhas a strong public policy against the use of marijuana, at least for its employees.

The case, State of Connecticut v. Connecticut Employees Union Independent, arises from the State’s challenge to an arbitration award reinstating an employee who was terminated for using marijuana while on the job.  The State contended that the award should be vacated on public policy grounds.

The Superior Court agreed with the State because it violates the state’s well established public policy on illegal drug use while on state duty.

The union argued that the award must be confirmed because the State is “currently implementing the legalization of medical marijuana.”  The court rejected that argument pretty simply by stating that even if that’s the case, there is “nothing in the records [to] indicate that grievant was prescribed marijuana.

Regardless, as I said back in 2012:

  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.

It remains to be seen whether other lower courts will follow this path and whether the appellate courts in Connecticut will confirm this logic. But for now, this decision from the Superior Court ought to make employers breathe just a little easier on that point.

 

New Retaliation Standard of Proof Shows Its Teeth

Posted in CHRO & EEOC, Discrimination & Harassment, Litigation

When the U.S. Supreme Court changed the standard for proving retaliation cases back in 2013, there was some speculation as to whether the standard would result in different decisions.

Before the court’s decision, employees who claimed they were retaliated against, needed to show only that the retaliatory motive was a “substantial or motivating fact” affecting their termination.  The Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar heightened that standard, requiring employees to show that an employer would not have taken an adverse employment action “but for” a retaliatory motive.

When that decision was released I said, “It will be tougher to establish a retaliation claim when you have to show that the termination wouldn’t have happened “but for” the retaliatory motive. “

Now we have proof.  And it actually follows from a case I first reported on about 18 months ago.

In Cassotto v. Donahoe, the Second Circuit last week affirmed a jury verdict on favor of the employer.  In the same case using the older standard, a jury had first found in favor of the employee in a termination case.  But while the case was pending a motion for new trial, the Supreme Court issued its decision.  The District Court then granted the employer’s request for a new trial; the employer won that second trial.

In its decision, the Second Circuit said that the District Court did not abuse its discretion in granting a new trial.

Considering [the employee’s] purely circumstantial evidence of retaliation and the defendant’s evidence suggesting a legitimate alternate explanation for his termination, we cannot say that the district court abused its discretion by concluding that the incorrect instruction on causation might have affected the verdict, that a correct instruction conveying a heightened standard might have led to a different verdict, and that a new trial was therefore warranted.

With a bit of humor, the Court adds a kicker in a footnote: “Indeed, at the second trial, the properly instructed jury returned a verdict for defendant, resulting in the judgment now under review.”  In other words, the District Court didn’t err because its self-evident that the new standard made a difference in the outcome.

For employers, the decision is an important reminder when discussing settlement or considering a motion, that the new standard for retaliation cases does have some teeth to it.  It should impact the value of cases and this case is a good example of that.

And while we haven’t yet seen a big dropoff yet in retaliation cases filed at the EEOC (much of the data has yet to be released), the long-term impact of the Supreme Court’s decision is only beginning to be realized.

Cassotto v. Donahoe

 

Updated Paid Sick Leave Guidance and Poster Issued by Connecticut Department of Labor

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

Somewhat quietly (at least to me), the Connecticut Department of Labor has issued updated guidance regarding compliance with the state’s Paid Sick Leave law.

But employers who have been following the developments in this area — namely the changes to the law by the legislature — won’t be surprised much by the minor changes that have been made.

The changes to the guidance are essentially in conformity with the revisions to the law.

For example, to determine if an employer is subject to the law, the number of employees that an employer has on the payroll as of October 1st will be used.  It also notes that “radiologic technicians” have been added to the coverage of the law, consistent with the changes.

Nevertheless, if any employers have been using the previous guidance, it’s time to use this useful new resource and discard the prior guidance.

Notably, the CTDOL has also updated their posters for Paid Sick Leave for employers to use.  These new posters should be displayed immediately by employers in place of the old ones.

 

Proposed Bills Are First Up on Labor Committee’s Agenda

Posted in Legislative Developments

The first few days of the new Connecticut legislative session are, dare I say it, kind of fun from an outsider perspective. That is, if you know what you are looking at.

Why? Because it’s the time when legislators start submitting “proposed” bills. But these proposals are far from polished products. Sometimes, these proposals are done to satisfy constituents. Other times, they are submitted to get the issue discussed before a committee.

Either way, they can raise a few eyebrows.

Take Proposed Bill No. 5267. This proposal would require “the Labor Department to develop and promulgate an employers’ bill of rights”.  Why? It would “serve to protect employers from frivolous complaints and claims brought by employees.”

My friend, Jon Hyman — who actually wrote a book entitled “The Employer Bill of Rights” — ought to love this one. Unfortunately, the substance of the proposal is basically confined to the line I just mentioned. No specifics.  But here are some that Jon has suggested:

The Right to Hire on Qualifications;

The Right to Fire on Performance;

The Right to Control Operations:

Alas, I think the Connecticut proposal is the beginning and end of such an idea.

The opposite of the above proposal is Proposed Bill No. 5080. This proposal would amend state statutes to require retail stores to close on certain holidays unless it allows its employees to decline to work such holidays without penalty.  Call it the Kmart effect; Kmart opened before breakfast on Thanksgiving.

It’s still early though. These bills will be discussed at today’s legislative committee meeting.  There are lots more proposals coming down the road. Among the other items on the committee’s agency “an act concerning the use of credit histories in employment decisions” and  “an act concerning healthy workplaces”.

Pull up a chair. The next few months ought to be interesting.

 

Name that Party When Represented by Counsel, Says the Court

Posted in CHRO & EEOC, Highlight, Litigation

What’s in a name?

Not a Wendy’s Burger.

To a recent Superior Court decision, everything. But only if you have been represented by counsel. Confused? Let’s backup for a second.

A prerequisite to filing a discrimination claim in state court is that the employee file the same claim before the Commission on Human Rights and Opportunities.  This includes, in most cases, naming all of the parties (or Respondents, in this case) to the claim at the agency level.

But courts have fashioned an exception to this filing rule where a named Respondent and the heretofore unnamed party have an “identity of interests.” Courts have outlined a series of factors to be considered under this “identity of interests” exception.

Here’s where things get interesting, as this recent case demonstrates.

Suppose the employee was represented by counsel at the agency level.  Does that change the rule?

The Superior Court in Harrelle v. Wendy’s Old Fashioned Hamburgers of New York, Inc.,  said yes, the rule is inapplicable in that situation.  It cited another unpublished case, Marks v. Cogswell, from 2011 which stated “Courts have consistently held that this identity of interests exception to the requirement that defendants be named in the preceding CHRO complaint only applies when the plaintiff was not represented by counsel before the CHRO.” Of course, because the case is unpublished, you’ll only find it on specialty legal sites.

In any event, it’s an important, if overlooked, exception to the “identity of interests” exception and employers who are dealing with new parties in a lawsuit ought to invoke it whenever possible.

Since You Asked: A Modest Wage & Hour Law Proposal

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

Yesterday on Twitter, a Connecticut legislator posted this:

State Representative Matt Lesser, be careful what you ask for. But since you asked, here’s a modest proposal that I saw recently that ought to be discussed.  It’s not perfect, but it brings up an important topic that Connecticut should talk about.

(We won’t, of course. The General Assembly hasn’t shown any interest in this.  But humor me just for a minute.)

A former colleague of mine, Michael Kun, of Epstein Becker & Green, recently advanced a proposal to amend federal wage & hour laws to bring them more in line with the way we treat other employment laws.  Namely through compromise and settlement.  Regardless of your political leanings, it’s an insightful and thoughtful post and definitely worth a read.

Michael’s advances an argument based a theory that I’ve talked about before in so-called “wage-theft” cases: That employers are typically trying to comply with a whole host of laws.

The desire of employers and their counsel to comply with the law plays out thousands of times every day, to the great benefit not just of employers, but of employees. All management-side employment lawyers worth their salt have stories about how they worked with their clients to prevent a manager from terminating an employee’s employment, or cutting an employee’s pay, by explaining the law and the potential repercussions.

But there’s a problem, according to Michael.  Federal wage & hour laws “dissuade employers from correcting wage issues.” Why?

Because, unlike other employment laws, the FLSA generally doesn’t permit employers and employees to resolve wage disputes, short of the very litigation or agency complaint that neither employers nor employees really want.

The FLSA forbids the very amicable resolutions that would benefit both employers and employees.

And it’s time to change that.

He proposes a system to resolve complaints with safeguards that are similar to those used in age discrimination cases.  I will readily acknowledge that the proposal is far from perfect, but it tackles a subject that for too long has created litigation without creating a fair escape hatch to avoid expensive litigation for employees and employers alike.

Here’s the thing, Representative Lesser, that same system exists under state law too.  Employers who discover that they may not have been following wage & hour laws have an incentivenot to disclose it because if they do, even voluntarily, the Connecticut Department of Labor can (and, in some instances, will) require penalties and interest to be paid along with it — even if reasonable people could disagree about whether such violations did, in fact occur or were intentional.

Wage & hour case also are challenging to settle in Connecticut because some lawyers representing employees can use any such voluntarily acknowledgments to prove liability and then litigate these cases for high fee awards all the while assuring their clients they should hold out for nothing less than full capitulation by the employer.

A few years back, I floated the idea of an amnesty program for employers to disclose voluntarily wage & hour violations with a Connecticut Department of Labor official.  The official appreciated the sentiment but said it would never fly because the existing legislation would need to be amended.  Maybe such a proposal could be done in conjunction with making the penalties for intentional violations stricter.

Regardless, I agree with Michael’s post that ultimately the only ones who benefit from keeping the status quo are the lawyers.  We’ll do just fine.

Yes, it’s a bit unconventional.  But Representative Lesser — you didn’t want easy proposals right?