An applicant for a job posting in education lists his most recent relevant experience as occurring in 1973.  You don’t bring him in for an interview.

Is it gender discrimination?

Beyond that, if he says that he is the most qualified candidate — do you have to hire him?

And if you don’t hire the most qualified person, is that evidence of gender discrimination?

No to all three, says one recent federal court decision.

The decision by the court was quietly released late last month and might otherwise go unnoticed, but it underscores an important point for employers.

In the matter, the Plaintiff argued that the employer discriminated against him because of his gender by denying him the opportunity for a job interview.   The employer chose four female and two male candidates for interviews.

The Plaintiff argued that he was more qualified than the female candidates who were interviewed and ultimately hired by the employer.

The court said, however, that the mere fact that the employer hired people of a different gender does not suggest that it failed to hire the Plaintiff “on account of his gender”.

Indeed, the employer had various reasons as to why the Plaintiff was not interviewed:

  • he hadn’t filled out the entire job application and didn’t answer whether he had any criminal offenses in the last ten years.
  • his resume was “perceived to be outdated, as the most recent job listing in education was from 1973.”

So, you might not think much of the case.

But the court’s decision is notable because it contains language that will be helpful in other cases for employers.  Says the court: “[T]here is no legal requirement that the most qualified candidate be hired.”

In doing so, the quote revisits a quote from an 1980 decision.

Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory. When a decision to hire, promote, or grant tenure to one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn. Indeed, to infer discrimination from a comparison among candidates is to risk a serious infringement of first amendment values. A university’s prerogative to determine for itself on academic grounds who may teach is an important part of our long tradition of academic freedom.

All that being said, employers should have SOME rational basis for their decisions. Even if the candidate is “more qualified”, the employer may determine that there are other reasons why the employee should not be hired; maybe the employee’s qualifications cannot overcome a bad job interview, etc.

Keeping bias out of your decision-making process is central to employers.  But it’s nice to know that employers don’t have to be perfect in its determinations of qualifications either.

lock1Last night I had the opportunity to speak to the Colonial Total Rewards Association on the topic of Data Privacy and HR.  I titled the presentation “Is Your HR Data Going Rogue” and really focused on the role that Human Resources professionals should play in ensuring that company data is secured.

For those who have been following the blog for a while, you know that I’ve spoken a bit about this before (see some posts here and here).

Lest you think, this could NEVER happen at your company, the headlines from the last few weeks show otherwise. Company after company keep reporting major  data breaches — in part due to a W-2 scam that keeps claiming victims (see here, here, here and here if you’re not convinced).

Even technology companies are not immune. My favorite blurb from the last month was the following:

On Thursday, March 16, the CEO of Defense Point Security, LLC — a Virginia company that bills itself as “the choice provider of cyber security services to the federal government” — told all employees that their W-2 tax data was handed directly to fraudsters after someone inside the company got caught in a phisher’s net.

Oops.

So if even tech companies are victims of data breaches, is there any hope for the rest of us? Well, yes. It’s not easy but there are several steps that employers can take.

  1. Learn – This is NOT simply IT’s role; rather, HR professionals should have a key role at the table in discussing a company’s data privacy culture and practice.  And the first step in that is that HR should learn the basics of data privacy.
  2. Assess – HR has access to lots of data; where is it and who has access?  Where are you “leaking” data when it comes to your employees?
  3. Develop – Develop policies and your data privacy program; and develop the teams of people that will respond in the event of a data breach
  4. Educate – Data privacy and protection ought to be part of sustained training program, just like anti-harassment training
  5. Monitor – Figure out risks and review areas; when breach happens, HR needs to be at table to discuss employee impact
  6. Inform – When (not if) if you have a data breach, inform those affected and gov’t officials and implement your data breach plan.

Once you’ve made it through, it’s time to start back at the beginning. Learn from your mistakes in a data breach and re-assess your vulnerabilities.

Data privacy and the need for companies to view it as a key part of your company’s culture should be an integral part of your employee onboarding and training.  My thanks again to CTRA for the invitation to speak to the group and the great conversation we had last night.

You won’t find it (at least easily) on the Connecticut Department of Labor’s website.  (The Department’s FMLA page is void of any reference as well.)  

But late last month the CTDOL quietly released new regulations governing FMLA leave rights to school paraprofessionals. 

I’ve asked my colleagues, Jessica Ritter and Henry Zaccardi, to recap the most salient points.  For more information, you can also check out my firm’s School Law blog as well.  My thanks to Henry and Jessica for the quick turnaround. 

In 2012 the legislature passed Public Act 12-43 to provide Family and Medical Leave Act (FMLA) rights to school paraprofessionals who, typically, did not work enough hours each year to be eligible for leave under the federal FMLA.

Federal FMLA applies not only to private sector employers with 50 or more employees, but also to municipalities and boards of education, and requires employees to work at least 1,250 hours in the 12 months immediately preceding FMLA leave.

Because the state’s FMLA law expressly excludes coverage of municipalities, boards of education, and private elementary and secondary schools, the legislature crafted the new law to require boards of education to provide benefits equal to those under federal FMLA if a paraprofessional worked only 950 hours in the 12 months immediately preceding an FMLA leave, rather than the standard federal requirement of 1,250 hours worked.

The new act also required the labor commissioner to adopt implementing regulations and it specified that no paraprofessional would begin accruing the necessary 950 hours before those regulations became effective.

Those regulations have now been issued and are now effective May 12, 2014.

As with federal FMLA’s 1,250 hour requirement, only actual “hours worked” count towards the 950 hours requirement, as determined under Fair Labor Standards Act principles.  Time off, whether paid or unpaid, does not count, including paid holidays, personal time off, etc.

So, after May 12, 2014, hours worked by a school district employee who falls under the paraprofessional definition  will begin to count toward the required 950 hours.  Practically speaking, this means that covered employees will likely not be eligible for their first leave under the new regulations until sometime late in the 2014-2015 school year, given a typical paraprofessional’s hours per workweek.

Many of the regulations merely adopt the prior regulations but apply them to school district paraprofessionals too.

The net effect of the new state law and the new regulations, is an expansion of the number of employees in public school districts who will be taking FMLA leave in the future.  Given the significant job protection that FMLA provides to employees on leave, and given the nature of the work that many school paraprofessionals perform in the area of special education, school districts may find implementation challenging.

All of the rights, responsibilities and obligations that employees and employers have dealt with under federal FMLA for over 20 years will now apply to a whole new population of workers.

While many people feel that FMLA “works great,” and has not been a problem for most employers, our experience with FMLA has shown that often it can be a very difficult law to implement and that employers wrestle with such issues as covering for absent employees and calculating leave use when the time is used only intermittently. Hopefully, prior experience with FMLA issues will be of assistance and will help make applying FMLA to school paraprofessionals a smooth process.

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.

Back from Memorial Day weekend, there’s plenty of employment law news that I haven’t had time to write about. So here’s a brief recap of some recent items that may be of interest to employers:

The Connecticut Supreme Court, in Board of Education v. State Board of Labor Relations, (a decision that will be officially released next week), clarified when it is appropriate for education officials to deal directly with employees and when the union needs to be brought in.  The court adopted federal NLRA principles in doing so.

The decision is a complicated one because it finds for the school board in part and for the union in another. In one part, the court upholds the school’s decision to assign work to other teachers following a resignation but says that the school should have brought the union in to discuss some changes at a later point in time.

For public employers in Connecticut, the case is worth a read in understanding how and when a union should be consulted with.  In particular, the discussion of "direct dealing" lays out when schools can deal with employees directly on workplace issues.

Of course, for school boards dealing with difficult budgets, the decision could also be seen as courts adding just one more procedural roadblock to trying to deal with some these fiscal matters.