Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

The Year of Religion and the Workplace

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

islamThe law works in mysterious ways.  (Cue the U2 song.)

Some years seem to get dominated by a particular type of issue, even though the law has been around for years.

This year, it seems as though issues of religion and the workplace are taking center stage.

Yesterday, the U.S. Supreme Court heard arguments in the EEOC v. Abercrombie & Fitch case that I talked about last month.  As usual, SCOTUSBlog has an excellent recap written “in plain English”.   The case involves the government’s suit against the retailer for failing to hire a Muslim teenager who wore a headscarf.

But notably, the issue in the case is slightly different than how it has been portrayed in the mainstream press.  The issue is “Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”

According to SCOTUSBlog, the judges seemed to be searching for a solution.

With the Justices apparently dissatisfied with both of the options presented to them by the parties, Justice Sonia Sotomayor offered a possible solution that would allow an employer like Abercrombie to inform a job applicant about its work rules without asking probing questions about the applicant’s religion:  if an applicant had a beard, for example, the employer could tell the applicant that its “Look Policy” prohibits beards (thereby notifying him of a possible conflict) and simply ask him whether he can comply with that policy.

Not all Justices were amenable to this proposal:  Chief Justice John Roberts complained that such an approach wouldn’t “cover anything that’s not readily apparent,” and Justice Scalia asked about the scope of such a rule – what if an applicant could comply, but it would make her uncomfortable?

I anticipate this decision will be among the last ones issued in June.

In the meantime, the EEOC yesterday released a new statement about religious accommodations in the workplace.  The statement reiterates the EEOC’s interest in the area.

I talked extensively about these issues in some prior posts here and here. 

If you’re still interested in the subject, stay tuned for details about a community forum program my law firm, Shipman & Goodwin is presenting on April 8, 2015 at our Hartford Office. Among the speakers: Steven Sheinberg, General Counsel of the Anti-Defamation League; Cheryl Sharp, Deputy Director of the Commission on Human Rights and Opportunities; and, Gabe Jiran of Shipman & Goodwin as well. I will be moderating.

 

The Perils of Social Media & Legal Considerations – Join Us!

Posted in Social Media

Instagram_Icon_LargeOn Thursday, February 26th, I’ll be speaking on a panel discussion for the Connecticut Bar Association, Young Lawyers Section discussing the legal considerations of social media.

The topic covers how the evolving world of new social media is constantly churning up interesting legal issues and problems. The panel will present insights on some of the hot issues related to cutting edge social media in a variety of sectors, including employment and law enforcement.

We’ll also talk about cases like the attorney who thought it was a good idea to post pictures of his, ahem, body part online. 

Among the issues we hope to address:

  • The unique legal challenges of new social media applications such as Vine, Snapchat and Instagram
  • Use of social media content in investigations by human resources and police departments
  • Examples of how practicing attorneys have run into legal trouble through their social media activity

I’ve grateful to be joined by author David Lat, who was the founder of the Above the Law blog and Lauri Stevens, of LAwS Communications.  Britt-Marie K. Cole-Johnson of Robinson+Cole will moderate.

It begins at 6p at the Quinnipiac Club in New Haven and the cost is just $10 for members and includes dinner.  A book signing by David Lat starts at 4:30p.

I am happy to sign David’s book as well, but I think I’ll probably stick to tweeting about the event.

Many thanks to my firm, Shipman & Goodwin and Robinson+Cole for sponsoring the program and underwriting a lot of its cost.  It’s not too late to register here.

Cabbie’s Fear of Dogs Doesn’t Trump Requirement to Allow Service Dogs

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Litigation

Back in 2012, I posted about a lawsuit filed by a cab driver who claimed he suffers from cynophobia (a fear of dogs), who was fired after he refused to pick up a blind customer with a service dog.  The cabbie claimed that his termination violated the Americans with Disabilities Act because he has a disability — namely a fear of dogs.

Back then, I tried to frame what I thought the issues would be in the case.

Assuming that the plaintiff has a cognizable disability under the ADAAA, the case at first blush seems to put one disability against another.  Does a patron’s need for a service dog trump an employee’s fear of dogs?

But it’s more than merely a patron’s “need”.  Indeed, the law mandates that guests with service dogs be permitted in all modes of public transportation.  Refusal to do so is a misdemeanor.

The U.S. Department of Justice has a recently released guidance on service dogs too.  The guidance speaks directly to the issue of fear of dogs.

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

So perhaps the case will also look at another ADA issue: Is picking up a passenger with a service dog an “essential” part of the job?  Given the legal requirement noted above, it would seem so.  And if the cab driver couldn’t do this “essential” function because of his disability with or without a reasonable accommodation, he may not be able to seek protection under the ADA.

The case took several turns but ultimately, the driver’s claim was heard in state court alleging violations of Connecticut’s anti-discrimination laws.

Earlier this month (h/t Connecticut Law Tribune), the Superior Court dismissed the complaint.  And wouldn’t you know, but the court dismissed it on the exact grounds I highlighted three years ago — namely that picking up blind passengers with service dogs is an essential function of being a cab driver.

Since under state and federal law, taxicab drivers are required to provide transportation to disabled individuals and their service animals, this constitutes an essential function of their job….[F]ederal case law resolves a difficult conundrum: that employers should not be forced to violate state and federal laws and regulations, in this case, discrimination laws relevant to one protected class, in order to avoid discriminating against another protected class.

The case is an important one to keep in mind for employers who have to comply with various state and federal regulations.  It reminds employers that the ADA won’t trump those requirements in many instances.  This will come in handy, for example, when employers have to address the issue of employees who use medical marijuana and the obligations that they may have to keep a drug-free workplace.

Less May Be More When It Comes To Job References

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

locplane[1]My colleague Chris Engler returns today with a recap of a new case in Connecticut that is of particular interest to employers who provide (or don’t provide) employment references.

We have all heard the admonition that “less is more.”

In an opinion that will be released next week, the Connecticut Appellate Court reminds us just how true that admonition is.  In fact, the court’s decision gave one employer more than 400,000 reasons to heed the adage in the future.

The case, Nelson v. Tradewind Aviation, LLC, arose from a defamation lawsuit.  According to the court’s opinion, the plaintiff had worked as a pilot for Tradewind Aviation for a summer back in 2007.  At the end of the season, the company needed to downsize for the winter.  The plaintiff and others were laid off.  His termination paperwork indicated that he had been laid off due to lack of work.

A few months later, the plaintiff was offered a job by another aviation company.  In accordance with federal regulations, this company had the plaintiff request his employment records and other forms from Tradewind Aviation.  Unlike the termination paperwork provided to him when he was laid off, on the new forms Tradewind Aviation’s representatives wrote that the plaintiff was involuntarily terminated and had had performance issues.

Tradewind Aviation then sent a letter to the prospective employer elaborating on these performance issues.  The next day, it faxed over a copy of a drug test report (which concluded that plaintiff had not taken any drugs) along with a note that allegedly tied the supposed performance issues to drug use.

When the prospective employee rescinded its job offer to the plaintiff, he filed suit against Tradewind Aviation.  He claimed that his former employer had engaged in defamation with malice.  A few years later, a jury wholeheartedly agreed, to the tune of over $407,000 in damages.

Not surprisingly, the employer quickly appealed the verdict.

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Government Gets Cold Shoulder to “Hot Goods” Provision Usage

Posted in Wage & Hour

Walter Olson, who has been blogging at Overlawyered longer than just about anyone, has a very notable story about the Obama administration’s efforts to expand wage & hour law and intensify its enforcement.

In so doing, the U.S. Department of Labor has invoked a little known provision under the Fair Labor Standards Act called a “hot goods” order, “which freezes the physical output of an employer that it suspects of having violated wage & hour law.”

Walter tracks an Oregon case in which the Labor Department labeled an estimated $5 million worth of fresh blueberries as forbidden to enter the commerce stream.  The growers were offered a deal: “fork over a demanded cash settlement [and] this is the kicker — agree not to appeal.”  Given that blueberries are a perishable crop, the growers took the deal and agreed to pay $240,000.

But a federal court threw out that settlement ruling that the government had overstepped its power.   And last month, the government dropped the case against the growers.

The Department of Labor has released its own fact sheet though on the subject, as of October 2014.   In doing so, it has put employers on notice that this is still in play.

While this provision isn’t likely to be used often against employers, it’s worth reading Walter’s post about it.

CBIA Says New Bill Could Be “Double Trouble” for Businesses

Posted in Class Actions, Discrimination & Harassment, Legislative Developments, Wage & Hour

Well, so much for a slow legislative session. New proposals keep popping up with changes big and small for employers.

The latest was reported on by the CBIA in a post entitled “Double Trouble for Businesses?” and talks about Senate Bill 106, which you can download here.

The bill purports to protect immigrants, but as noted by the CBIA, a good portion of it is preempted by federal law.  It would create a new class of discrimination and retaliation complaints entitled “unfair immigration-related practice” that would allow employees to file claims for a variety of reasons, including if an employer “contacted” immigration authorities.

But perhaps most concerning relating to these new immigration-related claims is a presumption that an employer has retaliated against an employee if any action occurs within 90 days of the employee “exercising” his or her rights.  That would create a whole new class of retaliation claims far beyond what even the courts have been willing to do.

Despite its label as a immigration-related bill, the proposal would also amend the state’s wage & hour rules to remove “a judge’s discretion to award less than double damages in a civil action to collect unpaid regular and overtime wages.”

The CBIA notes:

What is gained by mandating double damages when a judge already has the power to impose the penalty on truly bad-acting employers?

Could the answer be that it is to make the penalty so harsh that employers would be forced to settle wage disputes every time, even when the employer believes they did nothing wrong?

If the business doesn’t cut its losses and settle, even when in the right, the only other option is to undergo the expense of defending themselves through costly litigation. In other words, even when the employer is right, they lose.

Hard to argue with the CBIA on this point.  Wage & hour complaints have been one of the biggest areas of growth in employment law in the last decade and are outstripping all other class actions.

Again, it seems like a solution in search of a problem. Stay tuned.

 

 

 

Paid Family and Medical Leave is What’s Hot in Connecticut

Posted in Legislative Developments

Here we go.

Last December, I talked about how a legislative proposal to bring paid family and medical leave to Connecticut was likely.

Turns out, not only was it likely, but that there would be a big public relations push on it as well.

The bill is still in its formative stages at the legislature, but the essence of the proposal is an employee-funded system with employers withholding a percentage of the employee’s pay.  The Hartford Courant reported on this push this week.

In yesterday’s CT News Junkie, Carolyn Treiss, the Executive Director of the Permanent Commission on the Status of Women, posted a notable piece on why the time is right for paid family & medical leave.

The Permanent Commission on the Status of Women (PCSW) and the Connecticut Women’s Education and Legal Fund (CWEALF), two organizations that worked on the original FMLA legislation, are teaming up in leading the charge on this expanded version of family and medical leave, because women are still the primary caregivers in times of need. To be sure, paid leave would benefit everyone, regardless of gender. But the reality is that too many women of childbearing age see their careers derailed just as they are taking off. Women in their mid-20s to early 40s are the demographic employers seek most often, and yet the biological clock has its own imperatives. And what of women at the prime of their careers who must increasingly act on behalf of aging parents, or who suddenly find themselves dealing with an illness of their own (or that of a spouse)? It’s hard to “lean in” when there’s no employer-sponsored provision to lean against.

The CBIA has previously issued a report noting that this type of program would be similar to an unemployment compensation scheme — and very expensive to implement.

I’ll be talking about this and more at a presentation tonight at the Connecticut Bar Association’s Labor & Employment Committee meeting. My talk — really more of a discussion — will be on three “hot” items in employment law for 2015.  Hope to see you there.

For the rest of you, keep a close eye on this important legislative development this year.

 

Will “Fifty Shades of Grey” Launch Fifty Hostile Work Environment Claims?

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

Back in May 2012, I wrote this about a book that was making its way around various book clubs that was dubbed by The New York Times as “Mommy Porn”.

[H]aving someone read [Fifty Shades of Grey] alone during a lunch break, by itself, is probably not enough to establish a sexual harassment claim. The fact that it is a book makes a difference. (Contrast that with, say, someone watching “9 1/2 Weeks” on the lunch room television.) …

Reading a book is, by its very nature, a somewhat private and solitary endeavor.

Now, that view could change a bit, however, if there was a workplace book group discussing the more outrageous plot points in front of others. In that case, the discussion might naturally revolve around sex which might (emphasis on might) may some feel uncomfortable. …

So, go ahead. Break out the book (or Kindle, or Nook, or iPad). But its probably still best, if you hear employees discussing the book, to have those conversations kept to a PG-level.

Flash forward three years, and here we are about to have the same discussion with the theatrical release of Fifty Shades of Grey this week.   In fact, Suzanne Lucas (otherwise known as the Real Evil HR Lady) echoes similar themes in a recent post to Inc.

How can discussing a movie turn your workplace into a hostile work environment? Well, if you start to get into details, you’re likely to have someone who is offended. You can’t just assume that because Jane doesn’t speak up that she’s not offended. And if the discussions go on long enough and it’s deemed an acceptable topic in the workplace, it’s possible that it could create an environment where sexual discussion starts to become the norm, and that could mean a reasonable person would find it hostile. That, plus your offended employee, is what it will take.

Now, does this mean you should go into full on panic mode and ban all mention of the movie? Probably not. Most discussions are going to be short lived, which won’t rise to the occasion of “sufficiently severe or pervasive.” But you do want to nip such conversations in the bud.

A quick reminder to keep conversation clean can go a long way toward reminding people that sexual discussions–whether real or fictional–should not have a home in the office. When you hear people talking, quip, “Hey, remember, this is a PG office.”

The workplace just isn’t the place to talk about topics like the main plot points in the book and movie.  It has the possibility to offend some.  The fact that women are discussing it instead of men is of no consequence.

Indeed, to establish a “hostile work environment”, an employee has to show that it is both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the person did find offensive.

So, as the next week goes on, keep your ears perked for conversation in the workplace.  That conversation about an airplane ride in the movie (hey, I’ve seen the previews like everyone else in the Super Bowl commercial)? Sounds ok. That conversation about ropes and blindfolds? Not as much.

Three Observations about the New EEOC Statistics

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

The EEOC released its yearly statistics and it’s interesting to put together a story line from the numbers.  Here are three quick observations from my review of the stats:

1) Big Drop in New Cases: Perhaps not surprisingly given the improving economy, the number of new claims filed with the EEOC dropped by nearly 5000 claims, to 88,778.  That’s down from the peak of nearly 100,000 claims in 2010-2012.  In fact, it’s the lowest number of claims filed since 2007 — the year before the recession hit.  Will this trend continue? I’d say there is little doubt of that, until the economy stops its rebound.

2) Retaliation Claims Increase as Percentage of Claims: Against predictions that recent Supreme Court cases would lead to a drop in retaliation cases, the opposite has happened.   Retaliation claims in fact now make up 42.8 percent of all claims filed — up from just 36% in 2010.  The rumors of the death of the retaliation claim appear to have great exaggerated for now.  Of course, these numbers do not take into account the odds on succeeding on this claim, but it’s a number definitely worth watching.

3) Connecticut Claims Remain Relatively Constant:  The number of charges filed directly with the EEOC has remained relatively constant. That’s not much of a surprise given that the EEOC is not the first choice of most people in the state. The CHRO serves as the agency of first resort for many.  While it has a small sample size, the trend of increasing retaliation cases is also seen in Connecticut claims as well and constitute 42 percent of all charges filed.

Labor Union Membership Up Big Locally and Down Nationally, Recent Statistics Show

Posted in Labor Law & NLRB

The U.S. Department of Labor has released their annual statistics on labor union membership.  Nationwide, union membership is down slightly by .2 percent. In total, about 11 percent of the workforce belongs to a union.  Compared to 2008, when I reported on these statistics, the number is down by a full percentage point.

The numbers for Connecticut tell a slightly different story.  Back in 2006, 246,000 people belonged to a union or 15.6 of the workforce.  But the percentage went up during the recession as unemployment rates skyrocketed.  By 2010, the percentage of union represented employees was up to 17.4 percent, even though the raw numbers of people represented by unions decreased markedly.

Where do things stand now? Unions seem to be making a comeback in the state last year.  Union representation for 2013 stood at just 220,000 people, or 14.3 percent of the workforce. Last year, in 2014, however, that number skyrocketed to 245,000, or 15.7 percent of the workforce.

We can put the statistics in another way: In 2014, union representation in Connecticut last year increased by over 10 percent. That’s a big gain by any measure.  But it still just gets the unions back to where they stood in 2006.

Before we draw too many conclusions, however, I’m still having a hard time having faith in the numbers.  Connecticut released its own private sector employment numbers (without regard to union membership.)

For 2014, approximately 25,700 jobs were created in the private sector (almost the same number projected for union growth by the USDOL.) Are we to assume that only union jobs were created? Or that unions took over previously non-represented individuals in droves? If not, how do we reconcile the big increase from the USDOL?

So, take the statistics with a few grains of salt.

In any event, the statistics continue to show that unions still have a big role to play in the state. Having experienced labor counsel at your side still seems like a good bet for the foreseeable future.