Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Reflections on Early Labor Relations & Anniversaries

Posted in Highlight, Labor Law & NRLB

As I take some extended time off from the office, frequent guest poster Chris Engler takes a look back at some of the earliest background on labor history.

Because I majored in history in college, I’m a firm believer that understanding history is of great benefit when planning for the future.

Early “Workers”

Autumn is in many ways a time of heritage and traditions.  With the trifecta of Columbus Day, Veterans Day, and Thanksgiving, we have numerous opportunities to step back and reflect on our predecessors and forefathers.

I have always enjoyed pondering the effects of their actions and considering where we’d be, for better or for worse, without them.

That’s a worthwhile exercise to do with employment law as well.  To better understand the current state of the law, as Dan said above, it’s helpful to know what the workplace was like in the days of old.

As fate would have it, this is also the perfect time of year for this type of reflection.

They didn’t exactly make the front page, but the anniversaries of three important milestones in the development of American labor relations recent came and went.

The late summer and early fall marked the 180th anniversary of a pair of cases involving Thompsonville Carpet Manufacturing Company, late of Enfield.  In one of the first recorded strikes in Connecticut, carpet weavers had walked off the job.

The company sued them, claiming that they were illegally interrupting the company’s business.  One of the strikers returned the favor and sued his employer on the grounds that the first lawsuit was just an attempt to get him arrested.  (Back then, civil defendants without property to cover their potential liability were often imprisoned.) 

A win for the employer in these important early cases might have crippled the nascent labor movement.

However, the jury in the first case sided with the strikers, empowering and emboldening workers in other industries.  (The second lawsuit was eventually withdrawn, presumably when the striker was released from jail.)

However, this did not end the question of the legality of strikes and unions.  That question was dealt with again by the Clayton Antitrust Act, which celebrated its centennial on October 15.

Antitrust law generally has no place on an employment blog, but the Clayton Antitrust Act had one nugget of relevance for us.

Clever employers (or clever employers’ clever lawyers) had taken to using earlier antitrust laws against striking unions by claiming that they were cartels and restricted trade.

The Clayton Act sought to put an end to this by specifically exempting unions from the act’s provisions.

Both of these developments arguably came at the expense of employers.

The third development pointed the other direction and limited the behaviors of unions.  The case was Steele v. Louisville & Nashville Railroad Co. which turns seventy in a few weeks.

In this case, the U.S. Supreme Court recognized for the first time the duty of fair representation.  This duty requires unions to be diligent and fair in representing the interests of all members of the bargaining unit.  While the case involved racial discrimination (white union members were trying to keep their African-American coworkers out of the union), the doctrine has since expanded significantly.

The merits of these three legal developments are still debated.  Regardless of one’s viewpoint, however, there can be no doubt that they have had profound impacts on American labor relations and, by extension, on society as a whole.

Just think what the workplace will look like in another 180 years.

Background Check Settlements Still Costing Employers Big Dollars

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

My colleague Peter Murphy and I have been talking a lot about background checks lately.  It’s easier than ever to run a basic Internet search on someone, but what information do you find? And are there any limts?

Today, Peter talks about two recent settlements of background check claims against employers. Both cost the employers big dollars. Here’s what you can learn from them.

Peter Murphy

 

Back in March, Dan noted that plaintiffs’ lawyers were brining an increasing number of lawsuits under the Fair Credit Reporting Act (“FCRA”).

This seems to be occurring for two reasons. First, the FCRA contains very specific steps an employer must follow when obtaining and then using a background check for employment related purposes, including the following:

  1. Make a clear and conspicuous written disclosure to the job applicant that a consumer report may be obtained for employment purposes;
  2. Have the applicant authorize in writing the procurement of the report;
  3. And, before taking any adverse action based in whole or in part on the report, provide the applicant with:
    1. a copy of the report; and
    2. a description in writing of the employee’s rights under the FCRA.

If one of these steps is being systematically violated by an employer, then there is the potential for a lawsuit involving multiple plaintiffs or even a class of plaintiffs across the employer’s operations.

The second reason for the increasing number of FCRA lawsuits is that they expose employers to damages for each FCRA violation, as well as punitive damages, costs, and significant attorney’s fees.

Thus, unless employers review their hiring practices and ensure FCRA complaint, they could be exposed to costly lawsuits, as Dan and others warned back then.

Their warnings were prescient, as demonstrated by two recent settlements in FCRA cases.

In the first case, the employer accepted online job applications–just like almost all employers. The applicants alleged that the employer’s online application system did not comply with the FCRA’s procedural provisions addressing authorizations for a background check, or provide FCRA mandated disclosures to the applicants.

These procedural violations could have been enough to expose the employer to liability under the FCRA.

According to the applicants, however, the employer also was taking adverse employment actions based on information in the background checks without providing them a copy of the report or the required opportunity to correct or explain any discrepancies.

Although the employer denied any wrongdoing, it ultimately agreed to a $5.053 million settlement that recently was approved by a district court judge.

The only ones getting rich as a result of this settlement, though, were the plaintiffs’ lawyers, who received about $1.52 million in attorneys’ fees in comparison to the $50 payment to each of the eligible class members.

Plaintiffs’ attorneys were just as pleased with a district court’s preliminary approval of an FCRA settlement in a case pending in Virginia. Just like the prior case, the claims in this case stemmed from allegations that the employer violated the procedural protections of the FCRA, and then also failed to give job applications the ability to respond to adverse information in the background check.

Under the judge’s recent order, the plaintiffs’ attorneys would get 25 % of the $4,000,000 proposed settlement, and each potential class member would receive statutory damages of $53.

The numerous procedural and substantive provisions of the FCRA can be difficult to decipher, and as the above examples demonstrate small compliance mistakes can lead to costly and time consuming lawsuits.

Although we may sound like a broken record, employers should therefore consult with trusted counsel when necessary to ensure that their job application process can survive a FCRA challenge, and that their authorization forms and disclosure notices comply with FCRA’s requirements.

It’s not as easy as it first appears.

Willful Misconduct and Unemployment Compensation: The Quiz (Part 2)

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

In yesterday’s post, my colleague Chris Engler discussed the “wilful” misconduct standard and how it applies when your employee is otherwise eligible to receive unemployment compensation.

Today, Chris returns and has a quick quiz to review some recent cases of how this standard has been applied.

So, you think you know what the “wilful” misconduct standard is. But do you know how it is applied?

Consider a handful of cases decided by the Connecticut Unemployment Board of Review in the last few weeks, and try to guess how they came out under the standards we outlined in yesterday’s post.

Case 1: A box truck driver had signed a last-chance agreement under which he would be terminated if he failed a drug or alcohol test.  The driver, who had admitted to an opiate addiction, later tested positive for cocaine.  Because this violated the last chance agreement, he was fired.

(Decision: not disqualified, because his addiction was the basis for his misconduct.)

Case 2: A cleaner at a gym was fired for repeatedly failing to clean properly and generally being negligent in his duties.  He explained that he did his best and occasionally missed candy wrappers and spills.

(Decision: disqualified, due to his “history of loafing” and “pattern of negligence.”)

Case 3: A nursing facility employee was discharged for allowing a patient to possess cigarettes inside the facility.  The decision does not mention whether the patient ever used the cigarettes.  The facility prohibited possession of cigarettes due to the risk of fire near patients’ oxygen machines, but the employee said that the policy was not usually enforced.

(Decision: disqualified, because the employee knew of the policy and the seriousness of the risk.)

Case 4: An operator of a picker (similar to a forklift) crashed his machine twice in four months – once into another picker and once into a pole.  The employer’s policy called for discharge after two at-fault accidents.

(Decision: not disqualified, because the Board consider the employee merely negligent.)

Case 5: A restaurant server was fired after she engaged in a conversation with a customer and the restaurant’s bartender about the customer’s inability to pay a tip.  The record is not clear whether the server was argumentative with the customer.

(Decision: disqualified, because she was “recklessly indifferent to the employer’s interests.”)

As these cases indicate, it is difficult to identify a pattern or generalize about the outcome of unemployment cases.

However, because the Board of Review’s inquiries are so fact-specific, it is important that the employer properly investigate and document the facts underlying its decision to fire.

That might be the difference between a clean break and an ongoing financial obligation.

“Wilful” Misconduct and Unemployment Compensation: What Is It? (Part 1)

Posted in Highlight, Laws and Regulations

My colleague, Chris Engler, is back today with post getting into the ins and outs of the willful misconduct standard at the Connecticut Department of Labor. Last week, we had a senior CTDOL official speak to our Labor & Employment seminar about this and other pressing topics of interest to employers. 

The bottom line: When you fire an employee, the employee is probably going to get unemployment compensation unless you can show “wilful misconduct”.  Here’s how:

You have caught an employee red-handed engaged in some misconduct.  Or perhaps the employee has violated some rule on numerous occasions or in a particularly problematic manner.  Either way, you investigate and decide to fire the employee. 

Barring some sort of lawsuit for wrongful discharge, your ties with the employee are cut, right?

Wrong.  You might still be on the hook for unemployment benefits.

Employers often assume that having a good reason for firing someone is enough to ensure that the employee doesn’t receive benefits. 

But the law requires something more than just a good reason.  (Dan discussed an example of this last year.)

The standard is “wilful misconduct.”  (Yes, the regulations use “wilful” with only two Ls.) 

This term has three subspecies: (1) deliberate misconduct in wilful disregard of the employer’s interest, (2) a single knowing violation of a reasonable and uniformly enforced rule or policy, and (3) absenteeism without good cause. 

Of course, each of these subspecies has detailed definitions, but the terms are already fairly self-explanatory.

Although these terms might seem very legalistic, the Unemployment Board of Review (which reviews decisions of unemployment eligibility) employs a fairly fact-specific analysis.

In tomorrow’s post, we’ll look at five cases and see if we can draw any lessons from each.

Your Workplace Is Going Viral #AlexfromTarget

Posted in Human Resources (HR) Compliance, Social Media

For employers, the power of the Internet is pretty scary at times.

The latest meme to hit the Internet won’t change that view.

Sometime yesterday (Sunday) afternoon, someone tweeted a picture of a worker from a Target store.

His name is “Alex”. We know this because of his name tag. And apparently he’s cute and teenagers started retweeting his picture and lots of other tweets with his name.

Like hundreds of thousands of times.  And within 24 hours, his name has become one of the top 10 hashtags on Twitter – #AlexfromTarget.

There’s even a Buzzfeed article just devoted to him.  And Time magazine.  I’m sure we’re only hours away from The New York Times treatment too.

You might be scratching you head at this point.  Are you missing something?

As far as I can tell, no. He’s just a worker from Target. That’s it.

Target, to its credit, has been watching the social media streams and by this morning, had a tweet of their own.  “We heart Alex too”, it posted.

Cute.

For employers, though, this latest meme is still yet another example of how the trivial can become the viral. How your retail stores are just one more place where average teenagers can become internet superstars literally overnight.

By now, I’ve preached about having a social media policy. But that policy really wouldn’t cover #AlexfromTarget.  What you also need is a social media response plan.

Andrea Obston, of Andrea Obston Marketing Communications, Inc., often preaches about how employers need to make sure to protect your brand during a crisis.

So far, Target is learning the lessons of the past by staying ahead of the curve.

Before your employees turn into internet memes, make sure you have a social media response team designated ahead of time.  Knowing who will respond and how, can be critical in preventing an internet meme from ruining your workplace.

Will Alex continue working at Target after all of this media scrutiny? We shall see.

The Surprising Answer on Whether Employees Can Record Your Workplace Conversation

Posted in Data Privacy, Highlight

Your employees are probably NOT using this to record anymore. A mere smartphone will do.

On Friday, I talked to over 150 attendees of our Labor & Employment seminar about workplace surveillance and monitoring.

Some of the discussion focused on whether employers can do the recording; but what about employees?

This is not some theoretical question. More and more employees are recording conversations at their workplaces on smartphones, according to recent articles.

If you do a search on the Internet, you’re likely to discover that Connecticut is a “two-party” state when it comes to recording telephone conversations.

What does that mean? In plain English, it means that both parties to a phone conversation must consent to the recording for it to be legal.  You can read the law (Conn. Gen. Stat. Sec. 52-570d) for yourself here.

Fair enough.

But if you read these materials, you’ll also see that the vast majority of them say that Connecticut is a two-party statement when it comes to all communications.

Unfortunately, don’t believe everything you read on the Internet.

For ordinary, in-person communications, Connecticut is a one-party state — meaning that only one party’s consent is needed to record a conversation.  (You can find the law regarding eavesdropping at Conn. Gen. Stat. Sec. 53a-189.) 

What does this mean in the workplace? It means that your employees can legally record conversations with their bosses and then try to use those communications as evidence to prove a discrimination claim or another employment-related claim.

Employers can set up reasonable rules in the workplace prohibiting the taping of conversations and tell employees that they cannot record it, but that only means that the records violate theemployer’s rules, not Connecticut law.

And what this also means is that the employee cannot record a conversation between two other people; one party must always consent to the conversation.

The NLRB has spoken out on whether rules on workplace recordings violate federal labor law, which I’ve covered in a prior post.

The takeaway for employers, though, in Connecticut is a simpler one: Assume that your conversations with your employees can be recorded.

Are you comfortable about what has transpired if those conversations ever get leaked to TMZ.com? If not, then use this post a wake-up call.

Of course, there are other laws that may apply as well and it’s questionable whether an claim for invasion of privacy might be able to proceed, so before you tackle this subject, talk with your preferred counsel about all the implications on a complex subject.

Guest Post: When “Disruptive” Technology Hits Your Workplace, What Then?

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

Today, I’m pleased to highlight a guest post from Steven Scheinberg, the General Counsel of the Anti-Defamation League. I’ve known Steven for several years and was very happy when he offered to share his thoughts on this important topic.  Steve actually practiced at a prominent plaintiff’s employment law firm in Connecticut many years ago now so he’s got the background to talk competently on employment law topics.

My thanks to Steve for sharing his thoughts here. As you will see, it mirrors many of the issues I’ve been talking about lately on the blog — technology, privacy and cybersecurity.  HR personnel and employment lawyers need to be driving the conversations at business about this because the issues now overlap with issues relating to employees more and more.

A recent McKinsey report on twelve “disruptive” technologies included four that will fundamentally transform how employers relate to their employees: mobile Internet, automation of knowledge work, the Internet of things and cloud computing.

I would add to the list three results of these technologies: big-data, cybercrime and privacy.

From an employment law perspective, the common element here is data – data that flows to, is stored by, and is used (or misused) by employers, third parties and employees.

Employers

As new devices and technologies are deployed, employers will likely inadvertently gather information they probably do not want – for instance, protected health information (perhaps by detecting a disease-related app on a phone) or detailed records of employee movements (which can be very harmful in wage and hour litigation).

As employers look at these (and other) large pools of data (including applicant data), some will wish to “mine” this data using increasingly low-cost “intelligent” automated systems. Such work has to be carefully done – both algorithmic errors and poor statistical methodology can easily lead to significant errors in the information derived from the raw data. The results, from at least an EEO point of view, can be quite disastrous.

This data will likely be stored on third-party “cloud” storage systems –an arrangement that will raise new risks for employers.

Third Parties

Employers need to be concerned data in third party hands — whether it is there intentionally or not.

For instance, employers ask employees to use devices that are loaded with third party apps – and sometimes they even ask employees to use these apps. These apps routinely collect significant amounts of data, including location and unique device identifier information. Such data can be combined to create a very detailed profile on users.

This data – owned, protected and even sold by these third parties – can create a new window into an employer’s operations that litigants and corporate spies alike would love to see.

Next, data will inevitably end up in third party hands through litigation and discovery. As the cost of sophisticated analytics concerning that data is falling, there will be a sea-change in how employment cases are litigated – especially class actions.

And in the regulatory and EEO context, as a recent White House panel on so-called “big data” concluded, “the federal government should build the technical expertise to be able to identify practices and outcomes facilitated by big data analytics that have a discriminatory impact on protected classes.”

The use or misuse of this information by the government or litigants will require a very sophisticated legal response – one that will likely involve the world of statistical analysis and coding.

Information will also end up in third party hands through crime. Whether inadvertent or not, the primary source of data breaches is through an employee’s keyboard. As the breaches continue and the costs rise, employers will have to take radical approaches to data protection, including new levels of data segregation, radically shoring up security-related policies and treating mobile phones, whether company-owned or not, as on par with laptops.

Employees

As data is produced by more and different devices, there will be serious questions about who owns the data those devices store and generate.

Will an employee-owned, GPS-enabled app used on a “BYOD” device contain data that is owned by the employee (say, concerning their fitness activity) or, because it was worn during work, will it contain proprietary information (such as a record of where the employee visited)?

Employers must understand what data their employees are gathering – and update policies and executive employment agreements to deal with it.

In the social media context, employers will be forced to grapple with always-on devices, including those that constantly stream video.

It is unclear whether a simple workplace ban on such recording (as recently permitted under the NLRA) will survive video streaming’s convergence with social media –the latter of which the NLRB maintains can be a form of protected concerted activity.

Last, employers need to have action plans in place for data breaches caused by or impacting employees. Employers should also ensure that insurance policies cover employee-caused data breaches and incidents involving employee information.

Concerns about privacy cover all three areas, but this is well covered elsewhere.

Summary

This short survey illustrates that the world of the employer will more and more involve data-driven risk –placing their lawyers deep in the world of statistics, system design and security management.

*This post also appeared on the Technology Employment Law Blog; we are thankful for the permission of Mr. Scheinberg for publication of the post on this site as well. 

Watching Over Your Employees

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

With cameras on every smart phone and computers that can track your every click, it’s hard for employers to know what’s proper in the workplace when it comes to surveillance and monitoring.

I’ve talked on the blog before about Connecticut’s Electronic Monitoring Act. But there are several other laws and theories that employers should be aware of before pushing the “power” switch on that hidden camera.

Take, for example, Conn. Gen. Stat. Sec. 52-570d.  That law prohibits the taping of a private telephone conversation without the consent of all parties to the conversation.  That can come in handy if you believe an employee is recording a phone call without your permission.

The addition of social media in the workplace has added another layer to the analysis in some states too.  While Connecticut hasn’t yet passed a law that would restrict employers from asking for the passwords of employees’ social media accounts, it wouldn’t be surprising to see that issue come up again in the new session.

What else is there? Well, for that you’ll have to come to our free labor & employment law seminar this Friday where I will be speaking on this topic with my colleague Peter Murphy.  Details are available here.  If you’re interested, just sign up. 

And we promise we won’t play this song, however tempting as it might be.

 

Your Company’s Wellness Program May Violate The Law, Says the EEOC

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

I’ve talked about wellness programs from time to time here on the blog.  Robin Shea, on her great blog, first brought this up back in August. But since then, there are some new developments from the EEOC that employers should keep an eye out on. 

Today, my colleague Marc Herman joins us for the first time to guest post on the latest and greatest on wellness programs, with a  warning that your wellness program may be more of a liability than a benefit.

“I’m stuck in between a rock and a hard place.”

You’re familiar with that phrase. So how about this one?

“I’m stuck in between participating in a wellness program and having to fork out a fortune on health insurance. . .”

Sure, it doesn’t quite have the same ring to it (check out English-Idioms.com — a real thing — for more), it does convey a relevant message for Connecticut employers––your organization’s wellness program may not pass muster under the Americans with Disabilities Act.

At least according to the EEOC.

This is no small issue.   94% of employers with over 200 workers according to the EEOC, offer their employees wellness programs. Wellness programs have many perceived benefits-–they assist employers in promoting healthier lifestyles which, in turn, leads to healthier, happier, and more efficient employees. (And who said that there is no room for sentimentality in the world of employment?)

But, their advantages aside, wellness programs are being challenged when participants are required to undergo some form of medical examination as a condition of enrollment.

This month and back in August, the EEOC has filed suits against two Wisconsin employers for alleged violations of the Americans with Disabilities Act (ADA).

In both suits, an employer offered its employees a “voluntary” (a poignant word choice) wellness program, that required a medical examination as a condition of participation. Employees that participated in the program received a heavily subsidized health insurance premium; non-participating employees, on the other hand, did not.

According to the EEOC, the employers violated the ADA because employees were subjected to involuntary and arbitrary medical examinations.

The EEOC contends that the biometric testing and health risk assessment constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA). These alleged actions and severe consequences for not providing prohibited information as part of its “wellness program” violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.

Importantly, under the ADA, employers may conduct truly voluntary medical examinations as part of an employee health program available to all employees.

But, involuntary employee medical examinations are a no go, unless such examination is shown to be “job-related and consistent with business necessity.”

According to EEOC, a wellness program is voluntary as long as an employer neither requires participation nor penalizes non participation. In these cases, the EEOC suggests that incentivizing participation is merely a euphemism for punishing non participation, and is thus a violation of the ADA.

What’s the Takeaway for Employers?

It’s still too early to see whether the EEOC’s position will find support in the courts. The EEOC has overreached on some issues this year such as the challenge to CVS’s standard severance agreement.

But these suits should remind employers that wellness programs must truly be voluntary to succeed.  As we go into open enrollment season, it’s a good time to take a look at the language you use to promote these wellness programs.  Your experienced legal counsel is certainly a good option to help on this too.

Bully For You? Not When It Comes To Workplace Bullying

Posted in Human Resources (HR) Compliance, Legislative Developments

One of things I try to do on this blog is look through our crystal ball and focus on topic that may be on the horizon.

For some time now, workplace bullying has seemed to be one of those issues. I’ve touched on it before, but today my colleague Chris Parkin is back with some further discussion on it. 

In the meantime, we’ll be discussing this more in-depth at our FREE Labor & Employment Law Seminar on October 31st.   Please be sure to sign up ASAP if you’re interested because we are starting to get close to our capacity. 

Workplace bullying is real.  It happens every day in offices and on job sites throughout Connecticut.

Does an employer have an obligation to prevent or stop it? Is bullying illegal? The answer surprises HR managers and bullying victims alike: there’s no federal or Connecticut law against bullying in the workplace.

It’s perfectly legal to be an abrasive, even abusive, supervisor or colleague.  That doesn’t mean it’s a good idea.

And indeed, just because bullying may not be completely outlawed, it does not mean that employers are off the hook entirely.  Indeed, workplace bullying conduct may nevertheless give rise to claims of discrimination, retaliation, intentional infliction of emotional distress, and negligent supervision, among others.

To date, few of these bullying-type claims have been brought in Connecticut but the potential for claims is real, particularly when the alleged victim is a member of a protected class.

In addition, there is a national effort to lobby state legislatures to pass anti-bullying legislation.  Despite years of lobbying, only California has passed a major bill relating to bullying.  Just last month, the state passed a bill that expands their sexual harassment training requirement to include “prevention of abusive conduct” as a component.

Anti-bullying legislation has been proposed in Connecticut on several occasions.  The most recent effort to curb bullying in Connecticut (in 2012) would have required public sector employees to report all complaints of abusive conduct and workplace violence on an annual basis.

Like its predecessors, it failed to make it through the legislative process.  The recent passage of the California training requirement may be a look into Connecticut’s future though.  Like California, Connecticut is among the three states to mandate sexual harassment training.  The California law provides a template for a adding a bullying training requirement here in Connecticut.

We’ll talk about all of this at the seminar next week. Hope to see you there.