Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

The Five Questions You Can’t Ask At A Job Interview

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

Six years ago, posts about layoffs were in vogue.  But it’s been a long while since we focused on posts about hiring.

With the economy generally stable (or shall we dare say improving?), it seems appropriate to talk about job interview questions.

There are lots of posts about the “best” job interview questions you can pose as an employer. (Where do you want to be in five years?)

So are there any questions that are off limits?

Yes, plenty of them. And I’m not talking about ridiculous hard ones like the ones posed by Google. Rather, the questions that have the potential to get you and your company into hot water.  Are they always illegal? Not necessarily. But there are just better ways to frame your question.

But first, a caveat: These types of lists have been done before. It’s hard to be original because the so-called “banned” questions don’t really change over time. So I’m going to pick five that I think are among the trickiest but commend you to posts like this that have much more detail.

1) Do you belong to a club or social organization?  Ok, perhaps this isn’t fair to start with this one. After all, it’s a fairly innocuous question.  However, ask yourself how the information you receive will be relevant to whether the applicant is qualified to do the job.  It has the potential of revealing information that you shouldn’t be considering about a person’s religious affiliation or sexual orientation.

What can you ask instead? Are there any professional or trade association groups you belong to? 

2) Do you have or plan to have children? This falls into the “just trying to make conversation” trap.  Most of the time, it’s not done for nefarious reasons. But it could be viewed that way.  And so long as the applicant does the job, his or her family obligations should not be a consideration.  If overtime is a consideration, ask specifically about that. Or travel.

What can you ask instead? Can you work overtime? Have you worked overtime in the past? And if the job requires travel, are you comfortable with traveling several days a month for business? 

3) Do you smoke? You may want a healthy workplace, but with limited exceptions, Connecticut law actually prohibits employers from discriminating against employees on the basis of their outside-the-workplace smoking habits.  If the concern is that it will interfere with a job or that employees have been violating company policies, be more specific. Ultimately, these types of questions probably won’t give you the answers you are seeking.

What can you ask instead? Have you ever been disciplined for violating employer policies on smoking in the workplace? 

4) Do you have a disability?  Perhaps the applicant has a visible disability. Don’t get carried away by your curiousity. Focus on the job qualifications.

What can you ask instead? Can you perform the job and, based on what you know about the position, how would you do so?

5) How much longer do you plan to work before you retire? I understand why you would want to know this information: You’re trying to stay away from hiring an older worker who will want to leave in a few years.  But the law says you can’t do so.

What can you ask instead? What are your long-term career goals?

And avoid word association tests.

One final cautionary note: It should be obvious, but don’t ever give Word Association tests. A classic late-night skit demonstrates that point.

(Caution: Even though it’s just from Saturday Night Live the language is now generally considered NSFW in this clip.)

A Decade Later, Breastfeeding in the Workplace Laws See Healthy Adoption

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

Over ten years ago, Connecticut became one of the first states to mandate that employers “make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.”

I’ve discussed that law in depth in a prior post here.

So, how’s the law holding up? Well, if a recent news report is to be believed, the answer is “pretty well”.

“Turns out, many companies provide clean, comfortable lactation rooms,” said the report.

Still, there appears to be room for improvement and sometimes the conditions vary wildly.

Thus, the March of Dimes has just started a “Healthy Babies Healthy Business initiative, raising the awareness of business benefits of a family-friendly work environment.

Companies can sign-up on for access to a free Intranet service that complements human resources departments. It provides standards for workplaces to support maternal and infant health, as well as education about nutrition and stress relief. Employees can access this system, currently used by Cigna, Ebay and Walmart, from work or home.

It’s a notable initiative and, having helped out the March of Dimes in the past, it’s nice to see that organization continuing its mission while providing support to businesses in the state.

Even if employers do not adapt that program, make sure you remain vigilant in ensuring access to private rooms for new mothers.

It’s not only good business. It’s the law too.

Data Privacy: Protecting Your Employees’ Data Is Critical

Posted in Data Privacy

Last month, I wrote about the Home Depot credit card data breach and the importance of protecting company data.  But the issue of protecting employee data is far from new.

Back in 2011, one legal publication had this to say about employee data:

Employers collect a substantial amount of personal information about their employees. Companies need to be aware of their obligations under the profusion of data protection laws and regulations that govern the collection, use and transfer of personal information. This is an especially daunting task for companies that have operations subject to the laws of multiple jurisdictions, as requirements vary widely from country to country and even from state to state. …

Companies use employees’ personal information for a variety of purposes—from evaluating applicants during the hiring process to administering payroll and employee benefit plans to managing separation and other post-employment benefits. And as more employers adopt enterprise-level information management systems and outsource certain human resources administration functions, increasing amounts of personal data is being transferred and shared within and between organizations. Maintaining compliance with applicable data privacy laws is a responsibility employers cannot afford to overlook.

I couldn’t say it better myself.  But don’t take my word for it. There are a whole host of experts coming to speak later this month at a Data Privacy and Cybersecurity Summit that I’ve been planning.  People from companies like ESPN, UTC and GE. And respected government officials from the Connecticut Attorney General’s office and the FBI.

The summit is co-sponsored by my law firm, Shipman & Goodwin LLP and the Connecticut chapter of SHRM.  It is scheduled for October 16th at the Crowne Plaza in Cromwell, CT. You can register for it here. Don’t miss out.

Opt In or Opt Out or Both? Collective and Class Actions in Wage & Hour Cases

Posted in Class Actions, Highlight, Litigation, Wage & Hour

A limo driver believes that he should be paid overtime.  He brings a lawsuit on both state and federal wage & hour laws.  But he believes that other similarly situated drivers should also be part of his lawsuit.

How does that happen? Well, he asks the court to represent all the other drivers as well. Most people know that as a “class action” but in wage & hour cases, there is also a significant difference too.

A new federal district court case in Connecticut illustrates that exact point fairly well.  (You can download the decision in Lassen v. Hoyt Livery here.)   In doing so, it also shows the key difference between federal law and state law.

A federal wage & hour claim on behalf of other employee is known as a “collective” action.   As the Supreme Court has said, a collective action is “fundamentally different” from a class action brought by the procedural rules set up for federal courts.

Unlike typical class action in which putative class members must opt out in order to remove themselves from the class, a FLSA collective action requires employees to affirmatively opt in to the case in order to join the collective action group.

But here’s where things get interesting, under Connecticut law, an employee who believes he is entitled to overtime, can also bring a claim. These claims can sometimes be brought in federal court too as a supplemental claim to the federal one.

In doing so, these claims are class actionsand not collective actions.  Thus, for state wage & hour class actions, the classes are opt-out.

Why is this important? Because in most instances, people do not typically opt out of class actions and are much more likely not to opt in.

In the limo driver case cited above, the court adopted both the collective and class actions into the case, thus requiring an opt-out notice for the state claim, and an opt-in notice for the federal claim.

How that shakes out in that particular case is anybody’s guess, but no doubt it’s a position that employers do not want to be in the first place.

Compliance with wage and hour laws — something I’ve preached for years — should remain a top priority for employers in the coming years.

Are You a Joint Employer? It May Depend on the Court’s Test

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

Can an employee work for more than one employer at the same time? Under a theory of law called “joint employment”, the answer is yes.

But how do you make that determination?

Suppose a private bus company provides services all over Connecticut. It’s largest customer happens to be a very large private university in the state. The company provides both interstate and intrastate service for the university, as well as shuttle bus service for the campus.

Are the bus drivers employees of both the bus company and the university?  A recent case in the federal court in Connecticut set forth the various tests that the courts in Connecticut use to make that determination.

(Ultimately, the court denied the drivers’ claims that they were employees of the university.)

The court’s decision in Velez v. New Haven Bus Service can be downloaded here.

The Tests

Where a plaintiff claims multiple simultaneous employers, or “joint employers” under the FLSA, “the overarching concern is whether the alleged employer possessed the power to control the workers in question . . . with an eye to the economic reality presented by the facts of each case.”  In this so-called “economic reality” test, a court must first evaluate whether the alleged joint employer exercised formal control over a plaintiff’s employment.

The Second Circuit has recognized a four-factor joint-employer test to establish formal control, which asks whether an employer: (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.

Simple enough, right?

Well, not exactly.  In fact, the Second Circuit ”did not hold . . . that those [four] factors are necessary to establish an employment relationship” as the court said in another case (Zheng v. Liberty Apparel Co.).  That decision applied a “functional control” test.

In doing so, a court may also consider the following factors:

(1) whether [the putative employer’s] premises and equipment were used for the plaintiffs’ work; (2) whether [the direct employer] had a business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which plaintiffs performed a discrete line-job that was integral to [the putative employer’s] process of production; (4) whether responsibility under the contracts [between the direct and putative employers] could pass from one [entity] to another without material changes; (5) the degree to which the [putative employers or its] agents supervised plaintiffs’ work; and (6) whether plaintiffs worked exclusively or predominately for the [putative employer].

As the District Court recognized in the Velez case, the Second Circuit has not announced a definitive set of factors to establish functional control, recognizing that there will be “different sets of relevant factors based on the factual challenges posed by particular cases.”

How many of those factors will need to be met to satisfy a claim? That’s still unclear, but in the Velez case, two was not enough to establish joint employment.

The Takeaway?

Of course, longtime readers will know that this is not a new topic. 

Employers should always be vigilant in making it clear who is and is not an employee of theirs. If you contract out certain work (food service, for example), make sure that you are not crossing the lines that seem like you are more their employer than a customer. For example, if you set these contractors’ hours and discipline them and they only worked for you, that might be closer to the joint employment relationship than you may have intended.

Contracts may help, but as you can see from the above, the courts will look past the language and look to either the “economic realities” or the “functional control” to make that final determination.

Julia Roberts Would Not Be Impressed: Mystic Pizza Cited for Wage/Hour Violations

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

Oh, Mystic Pizza!

In Connecticut, we all know that Mystic Pizza isn’t the best pizza in the state.  (I’m not even going to get into the argument about Pepe’s, Sally’s, or Modern in New Haven.)  One of my favorites is actually Harry’s Bishops Corner.

But Mystic Pizza still has a place in many of our hearts in the state due to a film in 1988 of the same name. After all, how many movies before it were filmed in Connecticut?  (Turns out there are 81 films total. Who knew?)

And better still, it starred Julia Roberts, right before she really hit it big in Pretty Woman.  And so, Julia Roberts, became one of us.

Sure, when you visited the real Mystic Pizza, it was nothing like the romanticized version in the movie. But still, it was MYSTIC PIZZA!

Alas, I was distressed to read that the famous pizza place was recently cited for wage & hour violations. Specifically, 110 employees will be paid a total of $105,000 because, the state Department of Labor found, they were paid less than minimum wage or did not receive overtime.

Unfortunately, it’s a scenario that gets played out too often and could easily be remedied.

But perhaps, I should not be too distressed. Maybe Julia Roberts can star in a sequel about an owner who takes over Mystic Pizza and hires a prominent employment law attorney to help make the place a big success again.

Did I mention I’m available?

The Telegraph Is No More. And Neither Is the Law Regarding Telegraphs.

Posted in Legislative Developments, Wage & Hour

A year ago, I called on the legislature to update its employment laws to reflect modern realities.  (It’s actually something I’ve done for a number of years, but who’s counting?)

One of the laws I highlighted restricted “telegraph” companies from distributing goods or messages in the overnight hours.  Because the telegraph no longer is used in the United States, it just seemed to me that it was time the legislature do something about that law.

Thanks to a tip from Attorney Jay Wolman, I’m happy to report that earlier this year, the legislature deleted the provision regarding telegraphs in a bill entitled, properly, “AN ACT CONCERNING TECHNICAL AND MINOR REVISIONS TO AND REPEAL OF OBSOLETE PROVISIONS OF ENERGY AND TECHNOLOGY STATUTES.”

And there, in section 36, is the deletion of the word “telegraph” from Section 31-16 of the Connecticut General Statutes.

Let us all mourn the telegraph.

But just in case you rely on that provision, note that messenger services still have some restrictions.  But with all the modern day inventions (did someone say Amazon “drones”?), will that too see some revision in the upcoming decades?

Can an Employer Ever Win at the CHRO?

Posted in CHRO & EEOC, Discrimination & Harassment, Litigation

I sometimes lament that employers get the short end of the stick when it comes to matters before the Commission on Human Rights and Opportunities.  There’s little doubt, as I’ve said before, that more cases are being retained for investigation.

But what happens after an investigation has concluded that there is “reasonable cause” to believe that discrimination occurred? How do employers fare at a public hearing stage which is supposed to be a “clean slate”?

It’s hard to judge because there aren’t easily identifiable statistics to work from. Instead, you have to piece together a few recent decisions.

In one case this past summer, the employer (the state Judicial Branch) successfully defended itself against a claim of race discrimination. In doing so, the presiding human rights referee found that the evidence was insufficient to support a claim.  (From a legal perspective, there isn’t much to be gleaned from the fact-specific analysis.)

In another case, the employer also successfully defended itself against a claim of age discrimination. The referee found that the evidence of discrimination to be “tenuous, at best”.  The referee said that “While I do not doubt his personal conviction that the failure to hire him was ill advised, for his discrimination claim to be viable the record must either contain evidence sufficient to prove that Respondent harbored and acted with discriminatory animus, intentionally taking Complainant’s age into account in failing to consider him for a…position, or evidence of pretext.”

That burden was not met here.

But in another case, the employer (the state’s Joint Committee on Legislative Management), the presiding human rights referee found that the employer did not provide reasonable accommodations to the employee and discriminated against him on the basis of her disability.  In doing so, the hearing officer awarded over $177,000 in back pay damages and ordered the employer to reinstate the employee.

Unfortunately, there just aren’t many more recent cases published by the CHRO’s hearing office to make a determination.  Employers lately seem to win some and lose some.   Others get settled without a disclosed outcome.

All hope isn’t lost for employers at the CHRO. It just may take a while (and a good amount of attorneys fees) to get there.

Followup: Court Dismisses EEOC Lawsuit Challenging CVS Separation Agreement

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

Back in February, I talked about how a lawsuit brought by the EEOC against CVS challenging the company’s standard separation agreement could be a big deal “if the EEOC prevails”.

But I cautioned about drawing any sweeping conclusions just then stating: ”My gut tells me that the courts are not likely to view the government’s arguments with favor. The arguments just seem too ‘out there’.”

It’s fun to say, “I told you so” every once in a while, which is why the news from late Friday brought a smile to my face.

A federal judge in Illinois dismissed the government’s lawsuit during a status conference last week and indicated that his decision would be forthcoming.

So, right now, we don’t quite know all the logic behind it, but suffice to say that employers who were concerned that they would have to rewrite all of their agreements, should breathe a little easier today.

Of course, it’s quite possible (probable?) that the EEOC will appeal the ruling and it’s not clear whether the EEOC will continue to push this aggressive line of arguments in other cases as well.

56 Million Reasons Why Your HR Department Needs Better Data Security

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

Real hackers are more fearsome than this one.

Okay, okay.  I realize the headline is a bit misleading.  But it isn’t every day that you hear about a data breach at Home Depot in which 56 MILLION credit cards may have been hacked. To put that into perspective, that’s 16 million MORE than the infamous Target breach!

But this is an employment law blog, not a shopping one. So, why does this matter to human resources professionals and companies? Because if hackers can access credit card information, they are going to try to hack into your work files.

It isn’t a matter of “if”. It’s a matter of when they will attempt to do so.

Don’t take my word for it. This comes from the head of the military’s cybersecurity division.  Admiral Mike Rogers has been preaching for months of the need for companies to take data privacy and cybersecurity seriously.  A recent news post reported on the importance Rogers has placed on this area for private businesses.

Corporations must successfully deal with cybersecurity threats, because such threats can have direct impacts on business and reputation, Rogers told the business audience.“You have to consider [cybersecurity threats] every bit as foundational as we do in our ability to maneuver forces as a military construct,” he said.

I have little doubt you’ll hear a lot more about this at an upcoming Data Privacy and Cybersecurity Summit that I’ve been helping to put together here at Shipman & Goodwin, in conduction with CT SHRM.

It’s scheduled to be held on October 16, 2014 from 8a to 2p at the Crowne Plaza in Cromwell, CT.

The cost is just $75, which includes continental breakfast, coffee, buffet lunch, and the materials.  Full details as well as registration can be found here.

Speakers include myself, Shipman & Goodwin attorneys Scott Cowperthwait, Cathy Intravia and William Roberts as well as industry experts from Adnet Technologies, the Connecticut Attorney General’s office, ESPN, the FBI, FINEX North America, General Electric Company, JPD Forensic Accounting, Quinnipiac University, United Therapeutics Corporation, and United Technologies Corporation (UTC).

Hope to see you there. Register soon as spots have been filling up over the last week.