Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

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.

Let’s Talk About Religion and the Workplace

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight

templeAs I hinted at the beginning of the year, I expected topics relating to religion to take front and center this year. And certainly, the events of the first few months have supported that.

Today, I’ll be moderating a community forum at my firm, Shipman & Goodwin LLP, entitled “Gotta Have Faith? Religion in the Workplace”.  In this presentation, which is free and open to the public, we’ll talk about the latest legal developments, define what an employer’s obligations to provide accommodations are, address best practices for employers to follow, and share insights into what issues are likely to develop over the next few years.  There will be a Q&A following this panel discussion.

We have a terrific panel lined up of:

  • Steven Sheinberg, General Counsel, Anti-Defamation League
  • Cheryl Sharp, Deputy Director, Connecticut Commission on Human Rights and Opportunities
  • Gabe Jiran, Partner, Shipman & Goodwin LLP

It starts at 4 p.m. at our Hartford office. For full details, you can view them on Shipman & Goodwin’s website here.

The discussion is part of a our continuing “In Community” forum series, which has produced presentations focusing on a variety of issues facing our workforce and community. Other titles have included:

  • Working With the Deaf and Hard of Hearing Population: A Case Study Under the ADA
  • Race and Cultural Identity in the Working Environment
  • Understanding Gender Identity and Expression and Its Impact in the Workplace
  • Understanding Islam
  • “Not for Sale” – Combating Child Trafficking and Exploitation

We look forward to seeing you there this afternoon.

“Just Give Me a Reason” Not Enough to Satisfy Just Cause Provision

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

paperI’m a big P!nk (yes, the exclamation point) fan. One of her most recent hits, is a song “Just Give Me A Reason”.

Somehow, reading a new Appellate Court case that will be officially released tomorrow, this song title kept sticking in my brain.

The case, Madigan v. Housing Authority of East Hartford (download here), revolves around the removal of the Executive Director of the agency way back in 2008 (who said the wheels of justice move quickly).

The contract for the executive director had this clause:

The [defendant] may terminate the employment and remove [the plaintiff] from his position at any time for those activities constituting misfeasance or nonfeasance or for any other just cause, in accordance with applicable Federal, State or local law.

At trial, however, the jury found that there was not just cause in his removal and awarded the plaintiff over $200,000 in both non-economic and economic damages.

On appeal, the employer argued that the trial court’s instructions to the jury were improper and that regardless, there was not enough evidence to support a jury finding that there was not just cause. The Appellate Court rejected both arguments.

In doing so, it offered a reminder that just cause requires something more than just a “proffer [of] a proper reason for dismissal.’’ The court did not find fault with the jury instructions because just cause means something more:

As previously discussed, the reason or reasons for termination must be substantial.  A reason that is less than substantial would be an improper reason for dismissal, i.e., arbitrary and capricious.

As for the evidence itself, the court punted saying that if the jury believed the evidence offered by the plaintiff, it could have said that there was not “just cause” in the termination.

While “a” reason is good enough in an at-will termination, the court said that something more is required in a “just cause” or “good cause” termination.

For employers, the case serves as a lesson about the use of “just cause” in the agreement without further definition.  And a reminder that in such instances, the reasons for the termination ought to be substantial and documented.

For more on “just cause” provisions, see my prior posts herehere and here.

 

Although Unconstitutional, Employment Blue Laws Are Remnant of Old System

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

passoverUPDATED:

Since the initial post, the CTDOL website has been updated to reflect a change in the law. The post has been updated to reflect these changes. 

With all the talk about religious “freedom” this week in the news and the holidays upon us this weekend, I wish I had something more profound to write about them.

But I look back on my prior posts — like this one from Passover and Easter in 2011 — and I sigh that we seem to be talking about the same issues over and over again.

  • What is an employer’s duty to accommodate in the workplace?
  • What are the rules for providing employees days off?
  • And can an employer set dress codes without facing a lawsuit?

But if you’re not careful, you’ll still think we have laws on the books that are outright illegal and have been ruled as much by the courts.

For example, Conn. Gen. Stat. 53-302a is a remnant from our blue laws and states with a few exceptions that: “No person, firm or corporation shall engage in work, labor or business, or employ others in work, labor or business on Sunday.”

That law was ruled unconstitutional in the Caldor’s (remember them?) v. Bedding Barn case nearly 36 years ago to the day. But still the law persists.

Until recently, look at Conn. Gen. Stat. 53-303e which until 2013 stated:

(a) No employer shall compel any employee engaged in any commercial occupation or in the work of any industrial process to work more than six days in any calendar week. An employee’s refusal to work more than six days in any calendar week shall not constitute grounds for his dismissal.

(b) No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee’s refusal to work on his Sabbath shall not constitute grounds for his dismissal.

Pretty broad, right? And yet, as I pointed out back in 2007 (!), paragraph (b) of the statue was ruled unconstitutional as well in 1985 in the U.S. Supreme Court in Estate of Thornton v. Caldor’s. 

The Connecticut statute challenged here guarantees every employee, who “states that a particular day of the week is observed as his Sabbath,” the right not to work on his chosen day. Conn.Gen.Stat. § 53-303e(b) (1985). The State has thus decreed that those who observe a Sabbath any day of the week as a matter of religious conviction must be relieved of the duty to work on that day, no matter what burden or inconvenience this imposes on the employer or fellow workers. The statute arms Sabbath observers with an absolute and unqualified right not to work on whatever day they designate as their Sabbath.

In essence, the Connecticut statute imposes on employers and employees an absolute duty to conform their business practices to the particular religious practices of the employee by enforcing observance of the Sabbath the employee unilaterally designates. The State thus commands that Sabbath religious concerns automatically control over all secular interests at the workplace; the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath. The employer and others must adjust their affairs to the command of the State whenever the statute is invoked by an employee….

This unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses, so well articulated by Judge Learned Hand: “The First Amendment . . . gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.”

Thankfully,  the Connecticut Department of Labor website has now been updated to reflect these changes.

Happy Passover and Easter to all who celebrate!

 

What Connecticut Employers Need To Know About Young v. UPS

Posted in Discrimination & Harassment, Highlight, Litigation
U.S. Supreme Court

U.S. Supreme Court

Last week, the U.S. Supreme Court decided one of the most anticipated cases in the court’s docket this year — at least for employment lawyers — in Young v. UPS.  There’s been lots of bytes uploaded talking about the case from a federal level.  Much of it is straightforward — in the sense that everyone is trying to figure out how the court’s decision will work in practice.

The crux of the Court’s decision is that pregnancy discrimination cases will now be analyzed using a familiar three-part test that the court uses in other discrimination cases. (It’s called the McDonnell-Douglas test and I’ve talked about it on the blog before.)  From an employer perspective, that’s kind of boring.

As Walter Olsen commented at Cato:

Few non-lawyers are likely to stick around for its dry details, in which Justice Stephen Breyer laid out a balancing test mushy enough in its liberalism to win over Chief Justice Roberts and even Justice Alito. (Readers interested in such matters as McDonnell-Douglas burden-shifting and the selection of similarly situated co-worker “comparators” should follow up at the specialty employment-law blogs.) The practical impact of the case is also somewhat limited by Congress’s having further liberalized pregnancy accommodation law in plaintiffs’ favor after the events being sued over.

In coming to its conclusion, the majority in Young rejected each of the arguments raised by the employee, the employer and the EEOC.  You don’t see that happen all that much in discrimination cases.

And as Jeff Nowak pointed out on the FMLA Insights blog, all the court really did was create the “potential for pregnant employees to secure workplace accommodations by endorsing a balancing test to determine under what circumstances a pregnant employee can prevail on a failure to provide workplace accommodations.”

What’s the problem with this approach? Jon Hyman at Ohio Employer’s Law Blog says Justice Scalia pinpoints it. “By permitting a pregnant worker to establish pretext by demonstrating a disadvantage presented by the application of a facially neutral work rule, the majority’s opinion allows one to establish intentional disparate treatment by demonstrating a disparate impact.”

Of course, most employers will probably never get there because employers will end up accommodating pregnant employees in many instances.

What does this mean for Connecticut employers? Well, as I’ve talked about earlier this month, Connecticut employers have to worry first about the state anti-discrimination laws which are broader than the federal ones.

Connecticut law for example may require an employer to transfer a pregnant employee to a temporary position if she reasonably believes her current position may cause harm to her or her fetus.

So, for employers, the notion that you may have to provide some type of accommodation to your pregnant employees should not be a new concept. What exactly that accommodation may (or may not) be will depend on several factors including how you treat other employees.  Consistency in your approach remains key.  Being considerate and mindful of your obligations will go a long way to reducing your legal risks.

 

Nine Tips for New Employees in the Workplace

Posted in Human Resources (HR) Compliance

So, if you’ve been a fan of the blog, you know that I often preach that onboarding (that is, helping new employees get acclimated to the new workplace) is one way to help reduce the risk of lawsuits in the future. After all, a happy employee and an integrated employee, is one that typically doesn’t bring a lawsuit.

One of our clients, The Hartford, was kind enough to share the following with me that reinforces the point. What do you think? Any other tips on learning how a new workplace works?

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In Employment Litigation, the Best Defense is a Good Defense

Posted in Discrimination & Harassment, Highlight, Litigation

It’s a busy week in employment law. Yesterday, the U.S. Supreme Court case decided Young v. UPS — a case about pregnancy discrimination. I’ll have more on that case in an upcoming post (in the meantime, check out Jon Hyman’s post on the subject). But in today’s post, my colleague Chris Engler talks about a new Connecticut Supreme Court case that discusses both harassment and discrimination claims in Connecticut. These issues are not frequently before the court and, as Chris explains, the case has some useful materials for employers in defending such claims.

englerAs the Madness of March season (“March Madness” is a trademarked name) continues, how many times will we hear a commentator repeat the old refrain that “the best defense is a good offense”?

In a new Connecticut Supreme Court case, a former employee tried flipping this adage on its head. Her motto seemed to be that “the best offense is a lousy employer defense.” Fortunately for Connecticut employers, the Supreme Court didn’t think much of this novel approach.

The case is Feliciano v. Autozone, Inc., and it will be officially released on March 31. Ms. Feliciano worked in the sales department of an Autozone store until she was fired by a regional manager for violating the company’s loss prevention policy. Her termination came after a computer program indicated that Ms. Feliciano was improperly using a customer’s rewards card for her own use and an internal investigation substantiated it.

Ms. Feliciano apparently disagreed, because she filed suit in state court. Her complaint listed five grounds: a failure to accommodate her claimed disability (which the court didn’t discuss); sexual harassment (which will be the subject of another post); and unlawful termination on the basis of her national origin (U.S. Virgin Islands), religion (Rastafarianism), and race (black). The lower courts granted summary judgment to Autozone.

At the Supreme Court, Ms. Feliciano relied on evidence that the store manager had repeatedly insulted her nationality and religion. He allegedly referred to her as “f’ing Jamaican” and stated that Jamaicans live in huts and eat cats and dogs, among other things. He also allegedly mocked Ms. Feliciano by wearing a dreadlocks wig and stated that all Rastafarians are thieves. The Court described his alleged behavior as “despicable.”

In its defense, Autozone pointed to the investigation of wrongdoing and also emphasized that the store manager had nothing to do with her termination, which was effected by a regional manager. Ms. Feliciano did not rebut this defense. Instead, she simply insisted that a jury could “disbelieve” Autozone’s claim that the store manager wasn’t involved.

If the Court had adopted this reasoning, it would have significantly altered the balance of responsibilities in discrimination claims. Instead of affirmatively proving that discrimination occurred, all a plaintiff would have to do would be to suggest that someone might not trust the employer’s denial of discrimination.

However, the Court wasn’t satisfied. In a fairly concise analysis, it reaffirmed the concept that a plaintiff bears the burden of proving intentional discrimination before the employer’s arguments even come into play. In other words, Ms. Feliciano couldn’t bypass her burden and jump straight to challenging Autozone’s defense.

Of course, that does not mean the Court sanctioned behavior such as that alleged of Ms. Feliciano’s store manager. As noted above, the Court called the conduct “despicable,” and it hinted that it would have held the conduct to constitute a hostile environment on the bases of religion and national origin. However, because Ms. Feliciano did not assert these claims, the Court did not consider them.

Although the outcome in this case should reassure employers, it shouldn’t change any employer’s best practices. Supervisors should still be coached on what is appropriate and inappropriate conduct. Complaints of discrimination should still be promptly and fairly investigated, and substantiated complaints should be acted on decisively.  And the employer should document all of its actions contemporaneously.

After all, in employment litigation, the best defense is, well, a good defense.

Free Speech in the Workplace Gets Another Day in Court

Posted in Highlight, Litigation, Wage & Hour

gavelTomorrow, the Connecticut Supreme Court will hear arguments in Trusz v. UBS. It’s case I’ve mentioned before and even made a prediction about the case back at the start of the year.

I’m not going to discuss it in detail because I and my colleagues here at the firm wrote an amicus brief on behalf of the Connecticut Business & Industry Association in the case last fall. You can read that brief here.

Fortunately, Mara Lee from the Hartford Courant does a good job recapping the issues in an article today. At issue is whether the Connecticut Constitution affords greater protection to employees than the U.S. Constitution.

The Connecticut Supreme Court will hear arguments Tuesday on one narrow issue in the case: Are employers free to discipline or fire employees for complaints inside the workplace, even if employees’ concerns are on a matter of public interest?

The U.S. Supreme Court, in a 2006 decision, rejected the argument that public employees deserve whistle-blower protection for internal protests, but Trusz’s lawyers are arguing that judges interpreting the Connecticut Constitution are not bound by that precedent.

When this issue was last before the court (in a case I was involved with), it took the court nearly a year to decide it after oral argument. Will we get a decision before the end of 2015? Stay tuned.

Consistency in Arguments is Key for Labor Arbitrations

Posted in Labor Law & NLRB, Litigation

Lucan_J_WebMy colleague, Jarad Lucan, returns today to recap a notable labor case that the Connecticut Appellate court decided this week (but officially released on March 24, 2015).  It’s worth a read, even for non-union types, if only to show the importance of consistency in arguments.

A recent Appellate Court case, AFSCME, AFL-CIO, Council 4, Local 2405 v. City of Norwalk et al., reminds us that there are some subtle textual differences between the National Labor Relations Act (NLRA) and the Connecticut Municipal Employee Relations Act (MERA) that municipal employers and labor practitioners should keep in mind.  The case also reinforces the notion that consistency in the arguments a party makes before a court is vital to the potential success of those arguments.

I will give you a bit of a warning though: the decision includes a very technical analysis. But  I will try my best to summarize the key points without losing everyone’s attention.

It is common practice for Connecticut courts and the State Board of Labor Relations (SBLR) to look to the NLRA when interpreting and applying the State’s employee relations acts, including the MERA.  There is certainly nothing unusual about this practice, and given the similarities between the Federal and State acts, it simply makes sense.

For example, Section 8(a)(1) of the NLRA and Section 7-470(a)(1) of the MERA prohibit employers from interfering, restraining or coercing employees in the exercise of their rights guaranteed by either act.  In addition, both Federal and State law prohibit employers from discriminating, harassing, or retaliating against employees who engage in protected activity.  While this later prohibition is specifically set forth in the Section 8(a)(3) of the NLRA, the MERA does not include a statutory analogue.  Instead, the SBLR has interpreted Section 7-470(a)(1) to encompass this prohibition.

Good so far?

When a union raises a claim that an employer has discriminated, harassed, or retaliated against an employee because of his or her protected activity, the central question is whether any adverse employment action taken against an employee was motivated by anti-union animus.   This means that the employer’s intent is generally at issue.

In order to determine the employer’s intent, a burden-shifting framework first established by the National Labor Relations Board (NLRB) in its Wright Line decision is utilized at both the Federal and State level.  Under this framework, the union must make a prima facie showing that an employee’s protected activity was a motivating factor in the employer’s adverse employment action against the employee.

The elements of this prima facie case are (1) the employee engaged in protected activity; (2) the employer knew of the employee’s protected activity; and (3) the employer acted as it did on the basis of anti-union animus.

In contrast, when a union raises a claim that the employer’s actions simply tend to have the effect of coercing or interfering an employees exercise of their rights, whether they are actually coerced or not, the employer’s intent is not at issue and therefore the Wright Line standard is not applicable.  Still with me?

This seems straightforward enough when dealing with claims brought under the NLRA.  Claims that an employer discriminated or retaliated against an employee because of that employee’s protected activities  are brought under Section 8(a)(3) of the NLRA, and all parties understand that the Wright Line standard will apply.  Claims that the employer’s actions simply coerced or interfered with an employee’s exercise of his or her rights (for instance the implementation of a social media policy that prohibits an employee from making disparaging comments) are brought under Section 8(a)(1), and all parties generally understand that the Wright Line standard is not applicable.  In other words, two different sections are in play.

Under MERA — Connecticut’s law — however, both discrimination and retaliation claims and coercion and interference claims are brought under the same statutory section, Section 7-470(a)(1).  Thus, it is up to the parties, particularly the party bringing the complaint, to identify under what theory the case will be litigated.  That is precisely the issue in the City of Norwalk case.  I know it  took us a while, but I think we got there in one piece.

Here’s where the new case gets interesting.  In that case, the Union claimed that the Supervisor of the  City’s Department of Public Works retaliated against employees in the Department because of their protected activities.  Thus, when the Union presented its case to the SBLR, the Union argued that the employer’s intent was at issue and the case should be analyzed under the Wright Line standard.  That is exactly what the SBLR did.  Under that framework, the SBLR determined that the City did not subject the employee to any adverse employment action and therefore the Union failed to establish that the City acted on the basis of anti-union animus.   The SBRLR dismissed the complaint.

The Union appealed the case to the Superior Court, which upheld the SBLR’s decision as being supported by substantial evidence.  On appeal, the Union shifted gears and argued that the SBLR applied the wrong legal standard in deciding whether it met its prima facie burden.  Specifically, the Union contended that it may meet its obligation to prove anti-union animus merely by demonstrating that the employer’s conduct coerced employees from engaging in protected activities.

The Appellate Court rejected this argument stating, “[b]y electing to cast its claims as falling under the Wright Line standard before the [SBLR], the trial court, and this court, the union may not attempt to import a test that is fundamentally inconsistent with the Wright Line standard. . . . The [SBLR] decided the case on the theory on which the union advanced it.  Accordingly, the [SBLR] cannot now be faulted for not applying a standard that is inconsistent with the overall standard the union urged it to use in adjudicating its claim of discrimination.”

For employers and their attorneys, it is critical to understand both the differences in state and federal law and fashion a defense to the particular claim that is being brought. Here, the procedural posture of the case allowed the employer to prevail — merits of the underlying case notwithstanding.