Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Senator Murphy: Prospects “Not Too Good” for Federal Bill Prohibiting Sexual Orientation Discrimination (ENDA)

By Daniel Schwartz on Posted in Discrimination & Harassment, Highlight, Legislative Developments

As many wait for the Supreme Court’s decision later this term on same-sex marriages, one issue that seems to get lost in the shuffle is the fact that there is still no federal law prohibiting discrimination in employment on the basis of sexual orientation.

For employers in Connecticut, this is basically a non-issue because Connecticut has long since prohibited it.  But for employers who want consistency and for those who believe that discrimination on the basis of sexual orientation is just outdated, the lack of a federal bill rubs some the wrong way.

Earlier this week, Senator Chris Murphy of Connecticut hosted his first Google Hangout.  (Again, for those still new to the technology, you can get your primer here.)  It is now found on YouTube. 

He was kind enough to take questions over Twitter (another reason you should get on there) and responded to my question: What are the prospects for ENDA — the federal bill that would prohibit sexual orientation discrimination?

At about the 17:15 mark of the talk, he provided an in-depth discussion about what the bill is and its prospects.

“My hope is that we see an absolute sea change in the rights of gays and lesbians in the next month or so” after the Supreme Court’s ruling next month on gay marriage, Murphy said.  But “save for that action by the Supreme Court, we should pass ENDA.” 

As for the prospects itself? ”Not too good” given that “largely social conservative Republicans control the House of Representatives,” said Murphy. 

But even in the Senate, it’s prospects were less than clear.  As Murphy observed: “I bet you we could get 50 votes in the Senate” but he didn’t think there were 60 votes which is now the new magic number to get bills passed to break a potential filibuster. 

“So, Daniel, I think the answer to your question is, unfortunately though you’ve got a lot of strong voices like myself, it’ll be hard to get that done.”

I thank Senator Murphy for taking the time to address this issue.

Since Murphy’s comments earlier this week, a opinion piece was also posted in the Washington Post calling for passage of ENDA. 

So, while its prospects right now are weak, is Senator Murphy correct that we will see a change after the Supreme Court’s decisions on gay marriage? Only time will tell. 

You’ve Got a “Friend” In Me: A Free Webinar on the Latest in Social Media & Employment Law

By Daniel Schwartz on Posted in Human Resources (HR) Compliance, Social Media

With apologies (credit?) to Randy Newman, you’ve got a friend in me.  Or at least an online “friend.”  It’s better than having enemies, right?

Regardless, you’re cordially invited to join me and others for another Pullman & Comley, LLC webinar on employment law. 

I’ll be leading the charge this time around with this webinar entitled: “With ‘Friends’ Like These: Where Do We Go From Here on Social Media.”

It is scheduled to be held on May 9th from 1-2p ET.  And did I mention it was free?

This hour-long program will tackle the very latest: from the developments at the NLRB to new laws about asking for social media passwords from job applicants and everything in between.  We’ll take your questions as well.

For more on the program and to sign up (and please do sign up before it fills up virtually), you can click here or here. 

“See” you on May 9th. 

(And since you no doubt have the Toy Story song in your head, I’ll include an easy link below.)

Appellate Court: Tenured Teachers May be Terminated for “Disability” Without Violating CFEPA

By Daniel Schwartz on Posted in Highlight, Litigation

The Connecticut Appellate Court yesterday released two notable employment law decisions. They won’t become “official” until April 30, 2013, so you have some time to digest them.  I’ll cover one today and leave the other for a future post (though if you’re really curious you can read it here.)

To me, the more interesting of the two is Langello v. West Haven Board of Education, which decided an issue that you would think had long since been decided. But this is Connecticut; appellate court guidance is few and far between.

The issue: How do both the Teacher Tenure Act and Connecticut’s Fair Employment Practices Act (which prohibits discrimination on the basis of, among other reasons, disability) co-exist with each other and what is the interplay between the two?

Why is this important? Because the Teacher Tenure Act provides that a tenured teacher may be discharged for a “disability” or “other due and sufficient cause”.  Thus, put another way, can a school district fire a teacher because she has a disability without violating the state law prohibiting discrimination on the basis of disability?

To this, the court answers “yes” so long as the proper questions have been answered.

In keeping with the public policy that prohibits discrimination on the basis of disability, and our Supreme Court’s analysis of the legislative intent behind § 46a-60 (a) (1), we conclude that any teacher who is terminated pursuant to the Tenure Teacher Act enjoys the protections of the Fair Employment Practices Act.

A contrary conclusion—that a tenured teacher who is discharged from her employment because of her disability pursuant to § 10-151 (d) (4) is outside of the protections of § 46a-60 would thwart the purpose of the Fair Employment Practices Act.

To ensure compliance with the purpose of the Fair Employment Practices Act, a teacher who is discharged for any of the reasons enumerated in § 10-151 (d) must be afforded the protections of § 46a-60. A board of education, if it seeks to terminate a teacher’s employment pursuant to the Teacher Tenure Act for reason of a disability, must follow the mandates of the Fair Employment Practices Act and show that the teacher was unable to perform the essential functions of her profession with or without reasonable accommodation.

As to the application to the case at hand, the court fairly easily disposes of the teacher’s claim that the employer failed to show that she could not perform the essential functions of the job with or without a reasonable accommodation.

What’s the takeaway here?

For school districts, this case is a crucial one. Any attempt to invoke the provisions of the Teacher Tenure Act by terminating a teacher for a disability, should be reviewed carefully to determine if the employee can perform the essential functions of the job with or without a reasonable accommodation. Without that analysis, school boards are leaving themselves open to a challenge of the type raised in this case.

Offers of Judgment in FLSA Collective Actions: Another Tool for Wage & Hour Claims

By Daniel Schwartz on Posted in Class Actions, Highlight, Litigation, Wage & Hour

Last week, while most of us were focused on the events in Boston, the U.S. Supreme Court came down with a notable decision last week involving a wage & hour class action (it’s actually called a “collective” action, but for the non-lawyers out there, just think of it as a class action) and what should happen when a class representative fails to accept an offer to compromise by the employer that would have made the plaintiff “whole”. 

U.S. Supreme Court

Before you get too excited, its worth noting to the human resources professional out there that it’s hard to see how this case is going to change the day-to-day advice you are giving.  This Supreme Court’s decision is one only a lawyer could love.

But the case is important for employers and lawyers, because it provides another tool to use in defending against wage & hour claims. 

Indeed, combined with the court’s recent decisions limiting class actions (see Comcast Corp v. Behrand case) and enforcing arbitration provisions (see AT&T v. Concepcion line of cases), it demonstrates how the court system is grappling with an increasing number of wage & hour claims that threaten to overwhelm the system.

The Symczyk case has been neatly recapped in the Employment Class Action blog here:

The plaintiff brought FLSA claims challenging the employer’s use of an “auto-deduct” policy for meal periods. Along with its answer, the defendant made a Rule 68 offer to the plaintiff of judgment for $7,500, plus attorney fees and costs to be determined by the court….

When the plaintiff did not respond to the offer, the defendant moved to dismiss the case. The district court dismissed the FLSA claims on the basis of Rule 68 and remanded the remaining state law claims….

 The Supreme Court … found that the district court had correctly dismissed the case. Because the plaintiff did not contest that her own personal claim would have been satisfied by the offer, the majority assumed that it did, indeed, moot her individual claim. .

Ultimately, the Court held that an offer of judgment under Rule 68 that satisfies the representative plaintiff’s claims moots a potential collective action under the FLSA. Continue Reading

Workplace Issues Now Grow on “Vines”; Why Employers Need a Policy More Than Ever

By Daniel Schwartz on Posted in Highlight, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center, Social Media

As I said in an earlier post, I’ll be speaking about Social Media and the Workplace, as part of WESFACCA’s “Day of Privacy” presentation later this week. 

One of items I hope to touch on is the fact that with the proliferation of apps and social media, it is growing increasingly difficult for employers to catch up.  (Which is a shame, because those apps can prove invaluable during tragedies, like the Boston Marathon explosions).  Employers that are just catching on to Facebook, for example, are well behind the curve.

Employees, while still using Facebook, are using lots of other sites now to share information. In fact, the number one free app in the Apple App Store now is Vine.

Never heard of it? You will soon.  Its a product of Twitter and a new social networking site where people can share looping six second videos.

Here’s the workplace angle though; just like Facebook, people are using Vine to take videos of their workplace.  Some even tag their videos with the hashtag “#work”.  (Don’t know what a hashtag is? Here’s your remedial homework.) 

No big deal? Well, what if you’re employees took videos of your confidential business plans and put them on Vine? Oh wait, someone already did.

What if an employee posted a self-portrait video driving heavy machinery at the airport? Um, someone did that too.   

Then, there is this guy who really doesn’t want to work and shows videos from the back office.

And let’s not forget that this employee has enough time to read Harry Potter and listen to Pandora while showing an empty workplace.

All these videos were found doing a search of the hashtag “#work” on Vine; I found them in about 5 minutes.

Not enough? Do a search for “#hatework” and you’ll find this Dunkin’ Donuts employee. Or the less classy,  ”#f**kwork” (removing, of course, the asterisks), and you’ll find this Tops employee who is kind enough to use his real name and employee badge to let us know what he really thinks of the workplace.

But wait! There’s more. There’s this employee of the Woodfield Mall who posts a video with the comment “Kill Me. #worksucks”. Or this employee of Tractor Supply Company who has a 21st birthday coming up and again posts with the hashtag “#worksucks”.  Or the employee of Heritage Community in Michigan who flashes her badge while getting dressed work for as a CNA.

Shall I go on?

What can be done? We’ll discuss some strategies at Thursday’s presentation. But understanding what is out there is the first thing employers can do to understand the scope of the issue.   All employees need is a smartphone and an app, and the damage is done.  (My unscientific survey shows that restaurants and retail establishments are particularly vulnerable to such posts on Vine.)

As an employer, you’ll need a lot more than a firewall now to stop your information from getting distributed or prevent your company’s reputation from being trashed quickly by your own employees.  You need a strategy and an approach.

Because common sense doesn’t seem to grow on trees, or rather, vines, anymore.

WESFACCA’s “A Day of Privacy”: Social Media & The Workplace

By Daniel Schwartz on Posted in Highlight, Human Resources (HR) Compliance, Social Media

On Thursday, April 18th, the Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel (known as “WESFACCA”) holds an event that you’re not going to want to miss.

Entitled “KEEP IT SECRET. KEEP IT SAFE. Privacy Developments, Requirements and Practical Applications for Corporate Legal Counsel”, the day-long program in Darien, Connecticut, will focus on things employers must know about the developments in privacy law, including social media. 

Details on the program are available here. 

I’ll be speaking in the session before lunch on “Privacy in the Workplace.”  In our hour-long session, we will cover a variety of topics including:

  • BYOD (bring your own device);
  • Privacy considerations when employees use their own devices for work purposes;
  • Monitoring of employee activity inside & outside the company;
  • Social networks – the ownership debate between personal and company information;
  • Compensation laws and Internet activity outside the company;
  • Protecting the privacy of employees’ own data;

I’ll have some additional thoughts in a post this week about the topic, but if you haven’t signed up already, it’s not too late.

Lunch with Drive Thru HR

By Daniel Schwartz on Posted in Human Resources (HR) Compliance

Got lunch plans?

If so, break them. Because today, I’ll be appearing on the popular (and some would argue best) HR podcast/radio show, “Drive Thru HR.”

One of my favorite other employment law bloggers, Jon Hyman, was on the show a few weeks ago and talked about how social media password laws were being debated (and were totally unnecessary) — a fact I had also talked about in a post back in February. 

He also talked about sexual orientation anti-discrimination laws and employee handbooks, for example. 

What are we going to talk about today? We’ll see.  The show always asks its guests what is keeping them up at night and let’s the conversation flow from there. 

So, listen in and follow the conversation on Twitter at #dthr. 

And if you miss it, you can just listen the recorded conversation here.

Should You Fire Employees Who Use (or Misuse, However Defined) Social Media?

By Daniel Schwartz on Posted in Highlight, Human Resources (HR) Compliance, Social Media

A few days ago, The New York Times, ran a series of short essays from people on its “Room for Debate” page. The question it posed? “Should employers get tough with strict policies about social media activity, so that employees face consequences at work for what they say online?”

Standing on a soapbox

Not surprisingly, the opinion’s ranged from the “What you do or say on the Internet is none of your boss’s business except in the rare case where it affects the company” to “Absolutely, employees should face consequences at work for what they say on social media – sometimes”.

You will notice, of course, what these seemingly opposite statements have in common — the exception. 

That is, you should or shouldn’t take action — except when it matters.  Defining “when it matters” though is the tricky part.

For a hospital or financial services company, it may matter a lot more given how regulated those industries are. 

Indeed, the SEC issued guidance last week on how social media should be used in compliance with Regulation FD.  And last fall I highlighted the issue when some analysts were fired for disclosing insider information on Facebook. 

For a small company with a client base that isn’t tech-dependent, it may matter a lot less. 

The problem, of course, is still answering the question of “Does it really matter what the employee does online all the time?”

I would suggest, as I have before, that there is just not a one-size-fits-all answer to this.  Social media continues to go through “growing pains.” And companies need to figure out if the “punishment” fits the supposed “crime” online. 

What’s an employer to do if it hasn’t figured this out yet?

I’ll use what I said over a year ago:

Social media does not mean you have to throw out your existing rules. The rules on confidentiality, or anti-discrimination, for example, still apply on the online world. Employers just need to understand that they what happens in the workplace isn’t necessarily staying in the workplace anymore.

Calling a Co-Worker “Stupid” Not Enough to Prove “Disability”, Court Says

By Daniel Schwartz on Posted in Discrimination & Harassment, Highlight, Litigation

With the changes to the ADA laws a few years back broadening the definition of a “disability”, there was some speculation (including on this blog) that we would not see very many instances where a court would throw out an ADA claim on the grounds that the employee could not prove he had a disability.

And indeed, that theory has largely been proven correct. It’s quite rare to see that happen.

But rare does not equal never, as the plaintiff in the Adams v. Festival Fun Parks (d/b/a Lake Compounce Theme Park) recently discovered.

The employee, who used to work rides until he was hired as a full time Mechanical Helper, claimed he was the victim of disability discrimination that forced his resignation.

But the employee’s claims never really take off and the court ultimately granted the employer’s motion for summary judgment.

The employee claimed that he suffered from mental retardation. At his deposition, he said he was a “slow learner” and has to “constantly go at a slower pace” to pick things up.  While he testified that he was diagnosed as having “slight mental retardation”, he did not have any medical records of this.

Is this enough to create a triable issue of whether he is “disabled” under the ADA?

No, said the court: “Self-serving testimony, without more, is insufficient to create a material issue of fact…”

Even if the court were to credit his testimony, the statements didn’t show that the plaintiff was substantially limited in his ability to perform a class or broad range of jobs, said the court.

Ah, but could the employee show that he was “regarded” as having a disability?  Here, taking the employee’s testimony at face value, he said his co-workers would “call him stupid” and ask him what was wrong with him.

But the court concluded that a reasonable jury could not find that calling someone “stupid” is not evidence that the speaker perceived that person to be substantially limited in any major life activity.

Thus, the court grants the employer’s motion for summary judgment.  The employee filed a notice of appeal earlier this week, so it will be interesting to see how the Second Circuit handles this matter.

 

What’s New at the General Assembly? Anti-Employer Bills, Says CBIA

By Daniel Schwartz on Posted in Legislative Developments

There’s been little press over what is going on at the Connecticut General Assembly this spring. 

With no big employment law issue (other than minimum wage) dominating the headlines like Paid Sick Leave in the past, you might think that there isn’t much happening.

But as the Connecticut Business and Industry Association highlighted in a post late last week, there are a number of, what it termed, “anti-employer” bills that have already passed committee which, if approved, will make it ”much harder and more costly for Connecticut employers to operate successfully in the state.”

Here are three things still to keep an eye on:

  • A parental leave bill that mandates employers provide up to eight hours of leave to attend a child’s qualified school activities is still being considered.   
  • Senate Bill 159 states that employers can’t ask or require employees or job candidates to disclose to the company their social media passwords. As I’ve noted before, however, the bill leaves employers vulnerable in the event the employee uses his or her own personal social media account to violate policy or share inappropriate information. 
  • A minimum wage increase is still up for debate too. 

On a positive note, some needed changes to the existing Paid Sick Leave law have also passed committee. These changes would clean up some of the issues that have been plaguing employers.   One of the changes would make calculating the number of employees an employer has more consistent with how CTFMLA is determined too. 

There’s still a little more than two months left to the session so there’s plenty of time to see how things all plays out.