Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Retaliation Claims Still Remind Us: Scrutinize Your Employment Decisions

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight

I know. We’re a bit of a broken record here. Another post on the perils on retaliation claims. (I’m resisting adding the “so sue me” joke here.)

But new decisions from the courts keep coming out which give us an opportunity to do refreshers to employers and provide subtle tweaks to the associated wisdom surrounding defense of retaliation claims.

Today, my colleague, Gary Starr returns with recaps of both a Second and Sixth Circuit case and the implications for employers.  

starrFor employers, retaliation is often worse than the original challenged behavior.

But left unanswered in some instances is this question: What does an employee have to do to actually be protected by anti-retaliation laws? While different laws have use different words to protect that who oppose what they believe are unlawful conduct, what is clear is that the employee must take some action.

Certainly an employee who files a complaint with an agency and notice sent by the agency would fall within the statute.  If an employee is then subjected to some adverse action, that may be considered by the courts to be retaliatory.

Similarly, if an employee goes to a manager and provides details about a claim of harassment, discrimination, a paycheck problem, or an unsafe work condition, then any adverse action following that complaint may be considered retaliation.

The tougher problem arises where there is some grumbling or a passing comment. In that case, would the employer understand the comment to have been an assertion of rights protected by a statute?

Still not a good idea

Still not a good idea

In a recent Fair Labor Standards Act case, an employee complained that he had not been paid in several months. His employer responded that he would be paid when the employer felt like it. Then without warning the employer drew a gun and pointed it at the employee, who interpreted the response as the end of the conversation as well as the end of his employment.

The court in Greathouse v. JHS Security Inc. (decided last week at the Second Circuit) had no problem determining that the failure to pay proper wages was a violation of the law, however, whether the comment about not being paid leading the employee to quit in the face of the gun incident, was sufficient to be the basis of a retaliation was the more difficult question. There was no formal complaint to a state or federal agency and no written request to be paid. Even though the FLSA requires the filing of a complaint as a precondition to a retaliation claim, the court determined that a formal filing was not necessary, only notice to the employer.  Consequently, it is then a question of content and context whether the employee let his/her employer know of the problem.

In the Greathouse case, the court found that the employee’s comments were enough.

(Incidentally, we do not advise pointing a gun at your employees in this situation too.)

When it comes to sexual harassment retaliation situations, what does the employee have to do to be protected for having opposed the conduct?

The Sixth Circuit in EEOC v. New Breed Logistics, found that simply telling the supervisor who was doing the harassing to stop it was sufficient. The supervisor would regularly make sexually suggestive comments to a group of women employee who asked him to stop talking dirty to them. On one occasion he rubbed against one of the women under his supervision who immediately told him to stop touching her. He did not stop his verbal barrage, nor did he report it to his manager. The employees also did not raise the problem with other managers or with the human resources department.

When layoffs then were necessary, the supervisor identified the women who had asked him to stop his comments as the persons to be let go. While the persons making the decision were unaware of the harassment and of the objections raised to it, the role of the supervisor in the selection process was sufficient to hold the employer liable for retaliation if the employees had adequately opposed the harassment. The court found that simply telling the harasser to stop was sufficient to be protected. As the employer relied on the word of the harasser to choose the persons for layoff, the employer was liable for retaliation.

These cases tell us that greater scrutiny is needed when making employment decisions. Failing to look at the complaints or what is going on in the area where layoffs are occurring, may land an employer in big trouble. While we all think we can trust supervisors to report problems, it is important to verify that there are no existing problems or complaints that we don’t know.

Ignorance is not bliss; it can come with a hefty price tag.

Hiring Without Employment Law Headaches: Five Tips for Employers

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

interviewOn Friday, I had the opportunity to speak to the Human Resource Association of Greater New Haven. My sincere thanks to them for the invitation.

The group asked me to talk about various legal traps employers face in the hiring process and solutions to avoiding those issues.  Here are some of the points we talked about.

  1. Don’t Ask Bad Interview Questions – This is, in some ways, the easiest area to fix.  There are several types of questions that are (mostly) improper for employers to ask, such as, “Are you disabled?” or “Are you planning on having kids soon?”.  I’ve talked about this before, but the key is to plan your questions ahead of time and know which areas to avoid.
  2. Train Your Managers – Now that you know which questions are proper or improper to ask, be sure to let your hiring supervisors who are doing many of these interviews what the rules are as well. Don’t assume that they will ask good questions. Provide some training to them to give them the do’s and don’ts in the hiring process.
  3. Check the I-9s.  This is an area that can be overlooked, but it is important for employers to review the proper documentation at the time of an employee’s hire. New employees who forget their identification papers in the hopes that you’ll forget about it in a few days are cause for concern. Beyond that, be sure to keep your documentation on this or you’ll be susceptible to a government audit.
  4. Comply with FCRA.   Do you use a third-party to do background checks on new hires? If so, be sure to follow the Fair Credit Reporting Act, which mandates certain documentation be provided to employees and certain procedures to be followed. I’ve talked about it in a prior post as well.
  5. Implement Restrictive Covenants at Hiring.  When you use restrictive covenants (such as non-solicitation provisions) for your key employees, be sure to have that paperwork done at the time of an offer, or, on the employee’s first day at work. While continued employment could be enough consideration in some agreements, making a new job contingent on the restrictive covenants is a near sure-fire way to make sure there is sufficient consideration.  Some states, like Oregon, even mandate it in their laws.

I’ve Got a Secret: Recordings in the Workplace

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

I’ve talked before about the use of recordings in the workplace.

But this week, my colleague Jarad Lucan revisits the subject in light of some new decisions and the increasing presence of smartphones in the workplace.

It is a safe bet that most if not all of your employees own a mobile or smart phone.  It is also a safe bet that those phones have the capability of capturing pictures, taking video and recording conversations.

That said, it is almost a certainty that one or more of your employees will use his or her phone to secretly record conduct or conversations in the workplace.

When that happens, can you lawfully discipline the employee?

Many times the answer is “yes,” particularly in a school setting and when there are clear policies or practices in place prohibiting such conduct.  Other times, however, the answer is not clear.

Rather, the answer depends on why the employee was making the recording and what law applies if an employee challenges the discipline as being unlawful.

You can read the entire post on the Shipman & Goodwin’s School Law Blog.

3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo

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

IIMG_9091 don’t care who you are: Somewhere, in a doctor’s waiting room, or a supermarket checkout line, you’ve seen the headlines of Cosmopolitan magazine.

But, as luck would have it as an employment lawyer, imagine my surprise when I saw this headline:

“He Did WHAT?! The Cosmo Guide to Surviving Sexual Harassment at Work“.

Of course, this was right below the $10 Beauty Bonanza headline, but for the sake of the blog, I was determined to get to the bottom of this.

But just then, the nurse called me back for the doctor’s appointment.  Oh well.

As luck would have it though, the articles are now online for all.  And while it would be easy to dismiss this as just “headlines”, it’s actually worth a passing read by employers. Cosmo did a survey of 2235 women on this issue and while I wouldn’t take the statistical authenticity all too seriously, the survey did have some surprising and troubling results.

I’ve read it so you don’t have to and here are the tips I’ve gleaned:

1. The women surveyed report a higher rate of harassment or sexual conduct in the workplace than you might think. 

Here are some of the findings:

  • One in three women aged 18-34 believes that they have been sexually harassed;
  • Just 29 percent of those who believe they have been harassed reported it to their employer;
  • 75 percent surveyed said it was male co-workers who sexually harassed them, though 50 percent or so report harassment by male clients or customers.

There are several takeaways from this but here are two: Harassment by co-workers is still prevalent and that a lot of it is going unreported.

2. There are ways to respond to harassment besides filing a claim.

In another article entitled “Six Ways to Respond to Sexual Harassment”, Cosmo provides some tips to its readers. Notably, the first tip is a solid one: Tell the person to stop.  And even more notably, filing a claim isn’t really listed as the best option.  Nevertheless, employers need to remind employees that they should report harassment (and must report it if, as a manager, they hear or see about it.)

3. Technology is a blessing and a curse.

Technology has been great for the workplaces. E-mail allows us to communicate better and faster, for example. But there is a dark side to it as well. The Cosmo article and survey reports 25 percent of the women who were harassed faced lewd texts or e-mails.  For employers, this is a constant reminder that your systems still need monitoring and employers ought to be reminded about what is (or is not) appropriate.

 

 

EEOC Issues Long-Awaited Wellness Program Rules

Posted in CHRO & EEOC, Highlight, Laws and Regulations

gymLate last week, the EEOC released the proposed rules on wellness programs for employers.  These long-awaited proposed rules will likely be adopted in full by this summer, after the public has 60 days to submit comments.

I talked about this in a post last fall and even in a post back in 2011.  But now, we finally have something more to go on.

It’s still early to give a full recap of the rules, particularly because they might change.  Various blogs have been summarizing some of the key points thus far.

HRMorning.com lists eight such points. It’s top two?

  1. The proposed rule clarifies that the ADA allows employers to offer incentives up to 30% of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes.
  2. The rule also allows employers to impose penalties on employees who do not participate or achieve certain health outcomes. The maximum allowable penalty an employer can impose on employees is 30% of the total cost of employee-only coverage.

Jon Hyman describes the proposed rules as “balanced” and advocates reviewing a helpful Q&A provided by the EEOC itself.

Several months ago, the EEOC announced its intend to issue regulations interpreting whether employer wellness plans are legal or illegal medical exams under the ADA. Thankfully, last Thursday the EEOC published its proposed regulations, and its good news for employers who use these programs to keep down the cost of their group health insurance.

Eric Meyer notes several other takeaways including that no discrimination is allowed by employers:

  1. No discrimination allowed. That means, employers may not interfere with an employee’s ADA rights, or threaten, intimidate, or coerce an employee for refusing to participate in a wellness program or for failing to achieve certain health outcomes.
  2. Volunteers only. Employers cannot require employees to participate, or discipline or deny health coverage to employees who do not participate.

A Law360 article this morning notes, however, that there are still some open questions and issues from the proposed guidance:

  • Will ‘Employee-Only Coverage’ Language Stay?
  • Will the Courts and EEOC See Eye-to-Eye On Whether Employers to Use the ADA’s “Safe Harbor” Provisions?
  • What Will Happen with Wellness Programs When Considered Under Upcoming Regulations Under GINA?

For employers, the proposed rules are not the end of the discussion on wellness programs, just another step down the road. But if your company utilizes them, this is one area worth watching for developments this year.

When Do Volunteers Become “Employees” Under Anti-Discrimination Laws?

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

Having this blog for nearly eight years, it’s fair to say that I’ve covered quite a few topics. But every once in a while, a never-before-discussed issue makes it way to the forefront. Today is one of those days.

My colleague, Gary Starr, has a post today about a recent Connecticut Appellate Court decision (CHRO v. Echo Hose Ambulance) that analyzed whether a volunteer could be an “employee” under the state’s anti-discrimination laws and how courts are to make that determination. For additional background, the Connecticut Law Tribune has this article. starr

Volunteers are essential in supporting some public services and supplementing the work force of many not-for-profit organizations. But suppose a volunteer has a complaint about how he or she is being treated.

Perhaps that person even believes that he or she is being harassed.

When a volunteer believes he/she has been mistreated,  is he/she protected by the Connecticut Fair Employment Practices Act (FEPA), even though the volunteer is not “employed”?

What other avenues does the person have except to stop volunteering?

Or, put another way, when that person is carrying out important functions related to the mission of the agency and acting under the direct supervision of the leadership of the agency, can claims of discrimination be brought to and be resolved by the CHRO?

A recent appellate court decision, in a case of first-impression in Connecticut, better defined how a person can make a claim that he or she was an “employee”.

In doing so, the court first held that it does not matter whether the agency controls or directs the volunteer’s services or defines the methods or means by which the services are provided.  What matters instead is whether and how the volunteer is remunerated.

Does the volunteer receive job-related benefits and, if so, how great are such benefits?  This means that the volunteer must allege and prove that he/she receives benefits far greater than a thank you commendation and a party celebrating his/her service.

The volunteer must establish that he or she receives such benefits as health insurance, vacation and sick pay, eligibility for a disability pension, group life insurance or other significant remuneration, which are the type of benefits employees are provided. The court said it is not enough to be given training, a uniform, equipment for carrying out an assignment, or even a modest payment.

Simply put, volunteers are volunteers and not employees, unless and until the “employer” provides significant benefits which will make the volunteer look like an employee and therefore will need to be treated like an employee.

When an organization starts providing tangible compensation or benefits to its volunteers in meaningful ways, the person who was willing to help out from “the goodness of her heart” may be transformed into an “employee” under state law and then has an avenue for objecting to discriminatory treatment.

For employers and organizations, the decision provides a notable reminder to review the status of your volunteers to ensure that you haven’t transformed any of them into “employees”.

Bill Amending CHRO Procedures Is “Mostly” Dead

Posted in CHRO & EEOC, Highlight, Legislative Developments

If you read the headlines this morning, you may have seen that nearly four dozen bills died at the Judiciary Committee yesterday afternoon.  Indeed, no bills made it out at the deadline.

The unusual occurrence seemed related to an e-mail allegedly written by one representative. The Hartford Courant has the details on that.

For employers, the most important development related to the meeting was the failure to take action on Senate Bill 1111. That bill, which I covered in a prior post, would have made significant changes to the CHRO process and procedures.

Of course, this being the General Assembly, it’s only MOSTLY dead. What do I mean?

Let me turn to that great legal “authority”, Miracle Max from The Princess Bride: “Whoo-hoo-hoo, look who knows so much. It just so happens that your friend here is only MOSTLY dead. There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there’s usually only one thing you can do? Go through his clothes and look for loose change.”

(And yes, this is the second Princess Bride reference I’ve made in a year. It’s a great quotable movie.)

Indeed, while the bill died in committee, it can still be revived as an amendment to another bill.  So, mostly dead in this case is still “slightly alive”.

Is it likely? Probably not. But in any event, employers should still keep an eye out for this one.

More Road Rules: Telecommuting as a “Reasonable Accommodation” Under ADA Gets an Update

Posted in Uncategorized

roadLast year, my colleague Gabe Jiran, had a series of posts on telecommuting as a possible reasonable accommodation. In one post, he reported on a Sixth Circuit decision that allowed an employee (and EEOC) to proceed to trial on claims that the employer, Ford Motor Co., failed to provide a reasonable accommodation to her.

Now, one year later, the Sixth Circuit – upon hearing the matter en banc (or before all of the Circuit Judges, not just a panel of three) — has issued a decision reversing itself. In doing so, it affirmed summary judgment to the employer.  The decision now makes it more difficult for employees to make an ADA claim on the issue of telecommuting as a reasonable accommodation.

I won’t rehash the original decision here (just read Gabe’s post) but it’s worth noting that the original decision emphasized ideas such as: while attendance at work is still an essential function of most jobs, “attendance” can no longer be assumed to mean presence at the physical workplace; and the “workplace” is anywhere that an employee can perform the job.

The new decision — which is now controlling — basically says “nonsense”: Attendance is essential for most jobs.  “That general rule—that regularly attending work on-site is essential to most jobs, especially the interactive ones—aligns with the text of the ADA.”

The court goes on to state that such a rule is “common sense”.

A sometimes-forgotten guide likewise supports the general rule: common sense. Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job.  But equipped with a 1400-or-so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult. Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

The court rejected the EEOC’s argument that technology somehow changes things. The court states:

Despite its commonsense charm, the EEOC’s appeal to technology ultimately fails to create a genuine fact issue. It is “self-evident,” the EEOC declares without citation to the record or any case law, that “technology has advanced” enough for employees to perform “at least some essential job functions” at home. In the abstract, no doubt, this is precisely right. But technology changing in the abstract is not technology changing on this record. Our review of a district court’s summary judgment ruling is confined to the record. And no record evidence—none—shows that a great technological shift has made this highly interactive job one that can be effectively performed at home. The proper case to credit advances in technology is one where the record evinces that advancement. There is no such evidence here.

In fact, the evidence here shows the opposite: technology has not changed so as to make regular in-person attendance marginal for this job. Ford uses “fairly limited” video conferencing and “tend[s] more towards audio conferencing.” Harris also testified that she used email and her computer. These technologies—email, computers, telephone, and limited video conferencing—were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs. The extra-record changes in technology, like Harris’s testimony and her coworkers’ practice before it, therefore do not create a genuine issue of fact as to the essential nature of regularly and predictably attending work on-site. Summary judgment remains proper.

Jon Hyman thinks the decision “stinks” for those who advocate workplace flexibility.  I don’t necessarily see it that way.  Rather, I think the Sixth Circuit — rather sensibly — said that while telecommuting can still be an option for jobs, it isn’t going to be the right solution for all jobs.

Indeed, in this particular case, the court notes that the employer did afford the employee flexibility.  “Three times Ford allowed Harris to telecommute on an as-needed basis (on flex time, no less). And three times Ford developed plans to improve her attendance. But all six efforts failed because Harris proved unable “to establish regular and consistent work hours” or “perform the core objectives of the job.” The ADA does not give her a seventh try.”

For employers in Connecticut, the case isn’t controlling, but it should provide some substantial guidance in this area.  The Second Circuit has indicated that such decisions should be made on a case-by-case basis.

Employers should understand that telecommuting remains an option for accommodating employees with a disability in some instances.  But employers are free to still propose other reasonable accommodations that allow the employee to perform the essential functions of the job. That may mean some additional schedule flexibility or something else.

So Much for a Quiet Legislative Session on Employment Law Issues

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Legislative Developments, Wage & Hour

When I made predictions/wishes for 2015 at the end of last year, I offered up one on what the Connecticut General Assembly might do:

My Prediction: We’ll see a new rule or two, but with all the mandates that have been passed in the last four years, I expect there to be more bluster from politicians, but that we’ll actually see a bit less interference when all is said and done — at least for now.

There still some time left in the legislative session, but I’m getting increasingly pessimistic on this one.

generalassemblyIndeed, if anything, it seems from the bills being proposed that even more legislation is on the horizon that could take Connecticut into places no state has gone before. (Cue the Star Trek theme.)

For employers, this should be a major cause for concern. Because if you think that the amount of regulations and wage pressures that the state has been placing has been overbearing, the bills being proposed suggest that you haven’t seen anything yet.

Let’s go through some of them:

Legislation backed by labor advocates this year seeks to fine big corporations like Wal-Mart $1 per hour for each employee paid $15 per hour or less. The fiscal note estimates that about 146,710 of the 743,328 employees who work for companies with at least 500 employees would be covered under the bill. The bill would result in a revenue gain to the state of up to $152.6 million in 2016 and $305.1 million in future years.

A similar bill is up for consideration in the House, reports to the CBIA.

  • Employers have often being paying unemployment taxes that seemingly go into an abyss. Indeed, already they pay some of the highest taxes in the nation in this area.  As my colleague, Henry Zaccardi pointed out during his testimony at the legislature, reforms are needed.  But we’ve seen this before and unfortunately, it seems unlikely that such reforms will be adopted which would make the trust funds more solvent.  As he testified:

I understand the need for a safety net like a UC Trust Fund, but when it goes broke and employers are leaving the state, we need to do a better job of balancing [the methods we use to keep the safety net from breaking].

There are other bills out there too that would also push the influence of labor unions into the school curriculum as well.  Senate Bill 910 is back again, and would require schools to teach about “worker history and law, including organized labor, the collective bargaining process and existing legal protections in the workplace”.

I’ve also heard rumblings, as I’ve noted before, about a proposed bill being floated that would make substantial changes to the CHRO process.

So much for 2015 being a quiet year for employers. Will any or all of these get passed? Stay tuned. The next two months promise to be a wild ride.

Consistency in Policy Application Critical for Employers

Posted in CHRO & EEOC, Highlight, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center
From left, ADL General Counsel Steve Sheinberg, CHRO Deputy Director Cheryl Sharp, Shipman & Goodwin partners, Gabe Jiran and Daniel Schwartz

From left, ADL General Counsel Steve Sheinberg, CHRO Deputy Director Cheryl Sharp, Shipman & Goodwin partners, Gabe Jiran and Daniel Schwartz

As I talked in yesterday’s post, I moderated a community forum on Religion and the Workplace at my firm. We had a terrific crowd and I’m grateful to all the speakers for making time out of their busy days to come.

I have posted on this blog before about some of things we talked about at the presentation — like how to provide accommodations to employees or addressing what is a “sincerely held” belief.

But Cheryl Sharp, Deputy Director of the CHRO, emphasized one point several times that I think is important for employers to understand.

Too often, she said, employers have policies that are not followed by their managers and employees.  Indeed, she said that when she gives training to companies, she is always surprised that employees tell her that they probably know only 10 percent of what the employee manual says!

While that’s an unscientific study of handbooks, Ms. Sharp’s point is that employers cannot simply have policies that sit on a shelf (or in a computer) anymore. Training your employees and educating them on what your policies say is critical.

Why?

Because Ms. Sharp said that inconsistency of application of a neutral employer policy can lead to discrimination.  And whether you or not you agree with that hypothesis is beside the point. The CHRO — the agency charged with investigating complaints of discrimination — is going to make that same conclusion.

If, for example, you have a policy that you are not to ask job applicants about accommodations until after a job offer is made — and your supervisor asks an applicant in a wheelchair that question before the offer is made — you’re going to have some explaining to do with the agency.

So, what’s the takeaway for employers?

Review your policies and make sure that the policy tracks the practice of your workplace. If it does, make sure to continue to provide training and education to your employees on those policies every year or two.  If it doesn’t, then you either need to modify your policy or your practice.

For more on handbooks, see my prior posts here and here.