Beware the Beatles.
Beware the Beatles.

For years, I’ve been “warning” about the upcoming holiday of Valentine’s Day.

Back in 2011, I recapped several cases where employees’ inappropriate behavior on this day of love, led to lawsuits.

Apparently, there were some people who didn’t read the blog, because just a few years after that, I recapped a few more cases where Valentine’s Day led to a few more lawsuits.

My friend, Jon Hyman, this week cited a few of the same cases in his reminder that he hates Valentine’s Day.

Now, I could use this post to rehash the same worn reminders that sexual harassment is bad and that romantic relationships between employees can be even worse.  (Wait, see what I did there?)

But harassment cases still occur.

So, let me try a new approach this year; let’s try the opposite and Let Love Rule The Workplace!

Who am I to tell others who to love? Who am I to stand in the way in Cupid’s arrow?  Here are three “tips” on how to add love to the workplace:

  • First, be sure when you have a crush on someone to play favorites towards him or her.  And if they turn away your advances? Let them know your displeasure by giving work elsewhere. That will remind them that love should rule the workplace.
  • Second, why establish a policy regarding sexual harassment? Who needs rules regarding love? And what should you do if your company has such a policy? Well, then just ignore it! Let love set the rules of the workplace.
  • Third, if you hear of “love” going on in the workplace, just turn a blind eye.  Love needs no witnesses and true love will work itself out eventually. And if it doesn’t, well, the workplace is no place for the broken-hearted.

And here’s a bonus tip: Be sure to have your lawyer on speed-dial.  Because if you follow these tips, you could pretend you’re a hopeless romantic, but you’re most likely to be found liable of sexual harassment.  You may need something more than love to survive in the workplace.

(P.S. If you can’t figure out that the above tips are SATIRE, you should give me a call. Chances are you’re doing something else wrong too and I’d love to help.)

 

 

maxSo in a post earlier on Friday, I recapped most of the employment law legislation that passed — except one. That bill, Senate Bill 446, was titled “AN ACT CONCERNING THE DEFINITION OF THE TERM “DOMESTIC WORKER”.  

Innocuous enough, right?

But as it turns out, that bill was used as a cover to pass through significant changes to the CHRO process.

You will see that many of the changes are ones that I had tipped you all on earlier this year. Then back in April, we were told that the bill was “mostly dead”.

But like the Princess Bride, “Miracle Max” worked some magic and the bill came back from the dead during the session’s last week.

And there are so many changes that a separate blog post seemed like the best way to get through it all.

So let’s get to it, shall we?

Overall, the OLR summary of the bill recaps four main areas of change to the CHRO. It:

  1. shortens certain time frames for CHRO’s processing of complaints;
  2. allows the respondent (i.e., the alleged wrongdoer) to elect to participate in pre-answer conciliation;
  3. prohibits the same person from being assigned to conduct the mandatory mediation conference and investigate the complaint;
  4. transfers certain responsibilities from the CHRO executive director to the CHRO legal counsel.

But it also makes a significant change to the definition of who is an employee:

The bill also brings domestic workers who work for employers with at least three employees under the employment-related anti-discrimination laws administered by CHRO. Among other things, this provides them with (1) protections against employment-related discrimination based on their race, color, religion, age, sex, gender identity, marital status, national origin, ancestry, and mental or physical disability; (2) a right to a reasonable leave of absence for a disability resulting from a pregnancy and other pregnancy-related protections; and (3) protections against sexual harassment. By law, employees covered under the CHRO statutes can enforce their rights by filing a complaint with the commission.

If signed by the governor, the CHRO provisions will go into effect October 1, 2015, while the provisions on domestic workers will become effective January 1, 2016.

In more detail, the bill makes several changes to the CHRO process.

Responding to the Complaint Continue Reading Back from the Dead: Procedural Changes Coming to CHRO and New Protections for Domestic Workers

I’ve talked many times before about the importance of a well-drafted disclaimer in your employee handbook (here and here, for example).

This is not a new thing and in Connecticut dates back to an important case back in 1995 .

Without such disclaimers, employers can be subject to a breach of contract claim by your employees.

Yesterday, a federal judge in Connecticut was the latest to reinforce this message by allowing a breach of contract claim to proceed based on the employer allegedly failing to comply with its own anti-harassment policy, even though the federal legal claim of harassment was time-barred.

You can download the decision denying the employer’s motion for summary judgment on this issue in Mariani v. Costco Wholesale Corp. here.

One important note at the outset. This decision does not mean Costco is liable for a breach of contract; all the court decided is that the employee’s claim can proceed to a trial.  (In doing so, the court threw out many other claims of the employee.)

The facts on this issue seem straightforward. Costco seemingly has an employee handbook that it titles “Employee Agreement”.  It requires the employees to acknowledge receipt.  Costco conceded to the court that this “Agreement” could create a contractual obligation to its employees.

But, according to the court, Costco’s anti-harassment policy created an additional contractual responsibility that it did not disclaim. In other words,  the court said that while the employer was under no obligation to have tougher anti-harassment policies than state or federal law — having said it would abide by stronger language, it must follow that or face a breach of contract claim.

The court’s “money” quote is this:

The Employment Agreement does not contain any disclaimer language to the effect that its “super” anti-harassment provisions do not create legally enforceable protections beyond the protections of background law. Today’s corporate employers compete not only on grounds of their raw ability to make, deliver, and sell goods and services at a low or reasonable cost but also on grounds of their corporate self-image as “good” corporate citizens. They likewise compete on grounds of their ability to attract employees by means of promises of innovative management practices that foster dynamic workplaces that are comfortable and safe. This is not to fault the fact that Costco has adopted progressive anti-harassment policies but only to make clear that these policies, as framed without disclaimer, may give rise to legally independent and enforceable obligations for the benefit of employees that rely on them

How can Connecticut employers avoid this same result?

This case should be yet another reminder of the importance of a disclaimer in any company handbook that these policies.  Remind employees that no provision of the handbook creates an employment contract or any other obligation in regard to employment.  And consider using this language in the acknowledgment of receipt.

And, without stating the obvious, consider calling your employee handbook, well, a handbook instead of an “agreement”.  If you call it an agreement, a court isn’t going to disagree with you.

With the year coming to a close, this is the perfect time to have your handbook reviewed by an attorney.  Otherwise, you could be facing an employment law claim that you created yourself.

 

Costco Contract Claim

With every new law that gets passed, it’s easy to overlook the existing requirements that employers must follow.

After all, if employers are just tracking the new laws down without first nailing down compliance with “older” ones, then they are leaving themselves just as vulnerable to potential claims.

One area that is easy to overlook is sexual harassment prevention, particularly in Connecticut. Indeed, some employers believe that simply adopting a policy is all that is required.

And they would be wrong.

So, it’s time to go back to the basics and make sure you’ve hit the checklist when it comes to sexual harassment prevention in Connecticut.  Here are some things to consider: Continue Reading Back to the Basics on Sexual Harassment Prevention

Supreme Court

I’m going to let you in on a little secret.

Not all employment law cases decided by the U.S. Supreme Court matter are of equal significance and importance to employers.

What? How can that be, you say? It’s the SUPREME COURT!  Isn’t everything that they say important?

Well, sort of.

The truth is that sometimes the court decides thick procedural issues disguised as an employment law case.  But from a practical matter, how the court rules in these cases probably isn’t going to affect how most employers run their businesses. 

One case that is likely to be decided this year in just such a fashion is Genesis Healthcare Corp v. Symczyk, which was argued earlier this month.   Jon Hyman, over at the Ohio Employer’s Law Blog, sums up the principle at issue here:

Let’s say an employee sues you, claiming that you withheld certain wages owed under the Fair Labor Standards Act. In addition to defending the lawsuit, you make her what is called an “offer of judgment” to make her whole for all wages she claims she is owed (including any liquidated damages and attorneys’ fees). Does the offer render her lawsuit—that she not only brought on her own behalf, but also sought on behalf of a class of similarly situated co-workers—moot? Alternatively, does the fact that she sought relief on behalf of others keep her lawsuit alive, despite the fact that she no longer has any personal skin in the game? 

I have a difficult time believing this case is going to impact more than just a few wage & hour cases.  Most employment law cases never get an offer of judgment made on them and typically involve more than one person.  While it may impact the tactics in class actions, the overwhelming majority of employers will never have to deal with a class action ever.

Put another way, this case is not likely to have any impact on how employers manage their workforce on a day-to-day basis.

So, if you like reading about the U.S. Supreme Court and the intracacies of procedures, this case should be right up your alley. For most employers though, it’s a reminder that not all employment law cases are of equal importance.

Another day, another story about an employee in hot water over Facebook posts

It’s becoming so commonplace that I must admit a bit of Facebook Fatigue on the subject.  I mean, how many stories do we need about an employee who says something that they think is private on Facebook only to later discover that what goes on Facebook, just doesn’t stay on Facebook anymore?

So, I’m ready to call it: Social media has officially taken over the workplace. You may not have seen the signs, but it’s here and it’s here to stay. 

If your workplace doesn’t have a social media policy, you need one.  Not 2 years from now. Now. Employees (particularly those with smart phones) can access Facebook anytime, anywhere and without guidelines, misuse and abuse is bound to occur. (Do you really think those firewalls you’ve set up are stopping much of anything anymore?)

But beyond that, I’m also calling for a bit of restraint now on the reporting of such incidents. It just doesn’t seem as newsworthy anymore. Employees get into trouble for a whole host of reasons and we don’t highlight those situations each and every time they occur. It strikes me that the "Facebook posting syndrome" is falling into the category of things we ought to expect in a workplace.

In other words, it’s the new norm. The novelty of an employer having to deal with an employee’s Facebook post that has consequences in work is wearing off.

And for employers, it should as well.  These types of episodes (to generalize) show more of a lack of common sense and discretion than anything else.  That’s not to say that you shouldn’t take them seriously — you should. But we also need some perspective on this; it’s often not the worst offense that occurs in the workplace and often times that behavior can be easily modified through some counseling and warnings.

Think back to 10-15 years ago when e-mail was introduced; in some instances, employees were misusing it through the sending of inappropriate jokes or offensive pictures and stories.  Employers went through a period of re-educating the workforce about how e-mail should and should not be used in the workplace setting.

I think we’re going through the same learning process on social media.  So use this time period as a way to educate your employee population of your expectations as an employee in this social media age.  And anticipate the Facebook issue in your workplace. With 500 million users on it, it’s not likely to go away anytime soon.

Although we already have record registration for our next webinar (scheduled for Wednesday, August 12th at noon EDT), it’s not too late to register here. At this webinar, I’ll discuss the basics of some of the most popular social media platforms (like Twitter) and the effect and implications that these sites have on your workplace.  

The webinar will also discuss potential policies and procedures that can be implemented to ensure that your company takes advantage of the latest technologies (while keeping productivity and security high).  

Although the webinar will have a Connecticut base, it’ll discuss laws that affect employers nationwide.  And most importantly, my first hand experience with these sites can hopefully separate out fact from fiction.

Best of all: The webinar is free of charge.

For extra credit ahead of the webinar, there are a few sources that I’d recommend reading:

  • Want to see a company policy that provides guidelines instead of merely a list of restrictions? We’ll take a look at the social media policy created by IBM.  While it needs to be tailored to a particular company, it discusses a lot of concepts that are important to get. 
  • Looking for another alternative? Doug Cornelius of the Compliance Building blog, has his own set of suggestions for a social media policy. It’s well worth taking a look.  A more recent example is Connecticut’s own ESPN; its set of guidelines are a bit more restrictive, which makes sense given that the  company that is in the business of providing content. 

I look forward to having you on the webinar. If you have any questions (particularly those you’d like discussed at the webinar), feel free to send me a message on Twitter @danielschwartz or e-mail at dschwartz@pullcom.com.