In the course of my litigation cases, I’ve had a good-natured argument at times with a few counsel who represent employees about the mindset of employers.  The argument I’ve heard from them is that employers are too cavalier in firing employees and just go about hiring someone else (someone younger, they argue).

headahbBut what I’ve heard from my clients over the years is something different.

Typically, the decision to fire an employee is tough, made only after a series of internal conversations.  Employees with performance issues weigh on the supervisor’s minds — the struggle between trying to help the employee improve while still making sure that the needs of the business get done.

Mostly they get it right. But firing a poor performer doesn’t typically solve the issues for employers. Rather, they then need to find the RIGHT person to fill that position.

Hiring the right person is hard.   Just the process of searching for that person can sometimes feel like the proverbial needle in the haystack.  Online resumes come in by the dozen and business pressures make it difficult for employers to just find the time to parse through the resumes and interview candidates.

The headaches with hiring have only gotten worse over the last decade as well.

New laws have been put in place that place restrictions on what employers can and cannot ask and when they can ask those questions. And further restrictions on things like non-compete agreements in certain professions make hiring the right person all the more important.

For example, “Ban the Box” is now the law in Connecticut. Have you amended your employment applications to address this issue? Restrictions on the use of credit reports were put in a few years ago. Have you revised your process accordingly? And how can you search social media without running afoul of laws that ban “shoulder surfing”?  Do you give employees an “offer letter” that outlines the terms of their employment as Connecticut law requires?

I’ve talked about some of these things in prior posts, but I’m going to expound upon it further at our firm’s upcoming Labor & Employment Law seminar later this month.  You can register for the program here; space is very limited at this point.

Are there other topics related to hiring that you’d like to hear addressed at the seminar or on the blog? Be sure to post a comment so we can incorporate that in our free presentation.

ashleymendoza1alfredoMy colleagues, Ashley Mendoza and Alfredo Fernandez, return today for a guest post today that shows that employment law issues can sometimes present themselves in different formats.  My thanks to the both of them in presenting a fairly advanced topic in a form that will hopefully be of interest to a few of you out there.

Imagine your company has employed a research scientist to support your technology programs.  The scientist is a citizen of the People’s Republic of China and holds an H-1B visa, but is not authorized to view certain export-controlled technical data.  Unclear of the restrictions in place, other company employees provide the foreign scientist with technical data related to a military program in the course of his job duties.  This real life scenario recently resulted in a $100,000 settlement penalty with the U.S. State Department this summer.

It appears that a company policy to screen out foreign candidates for job openings of this sensitive nature would have prevented this violation and penalty, but a company also faces the challenge of avoiding discrimination in its hiring practices.  Is this a lose-lose scenario?  Not quite, but companies must pay close attention to recent guidance and regulatory revisions to understand their compliance obligations.

The Tricky Intersection of Legal Obligations

On March 31, 2016, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (the “OSC”) released its most recent guidance to employers to aid them in navigating the murky waters where export regulations meet immigration antidiscrimination regulations.

These two regulated areas may contradict each other when it comes to the hiring practices of U.S. companies soliciting candidates for a position where the job duties impose compliance with export control laws. Unfortunately, the limited governmental guidance confounds some employers when it comes to complying with both sets of regulations in certain scenarios.   The OSC’s recent guidance and upcoming definitional changes within the export control laws do provide some general direction for employers; however several ambiguous issues remain unresolved.

IMG_7083What We Know About the Export Regulations in this Context

Exports are commonly associated with the shipment of a tangible item to a foreign country, but the U.S. export regulations have a much broader application.  An export also includes the transfer of controlled technical data or technology to foreign persons, even when the transfer takes place within the geographic territory of the United States.  Such a transfer is “deemed” to be an export to the country of the foreign person and is referred to as a “deemed export.”

Although not the only federal agencies administering export control laws, the U.S. State and Commerce Departments manage the two broadest export control systems.  The U.S. State Department’s Directorate of Defense Trade Controls administers the International Traffic in Arms Regulations (“ITAR”), found at 22 C.F.R. §§ 120-130, which control defense articles and services.  The U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) administers the Export Administration Regulations (“EAR”), found at 15 C.F.R. §§ 730-774, which control commercial and dual-use items,  as well as limited low-sensitivity military items.  Generally speaking, all articles controlled under the ITAR and many articles controlled under the EAR require an export license before the export, including a deemed export, occurs.

Each set of regulations accounts for deemed exports but have slightly different definitions of key terms.  In fact, new and revised definitions under both regulations become effective September 1, 2016.  One primary intention of the definitional changes is to better harmonize the analogous definitions in both systems. Under both regulations, the deemed export rule applies only to foreign persons and, by definition, does not apply to U.S. citizens, persons lawfully admitted for permanent residence in the United States (e.g., green card holders) or to persons who are protected individuals under the Immigration and Nationality Act (“INA”)(e.g., certain refugees and asylees).

The below table showcases a few of the new definitions, including the improved harmonization for key terms such as export and release. Continue Reading How to Avoid Discrimination in Hiring, While Complying with Export Laws

microphoneWith spring nearly upon us (one can only hope, right?), there are a number of upcoming programs that I’ll be attending or speaking at.

Some are free while others are related to the sponsoring entity.  I hope you can attend one and please feel free to come up to me to chat while we’re there.

  • First up, on March 17th, our firm is putting on our Labor & Employment Spring Seminar focusing on public sector topics.

    Among the topics being explored: Crisis Management; Security in Schools and Workplaces; Title IX Compliance; Trending Topics in Public Sector Negotiations; and, Off-Duty Misconduct.

    Registration is now open and is on first-come, first-served basis.  We expect this to sell out, so please be sure to register today here.

  • On March 23, 2016, my colleague Jarad Lucan and I will be speaking at the CBIA 2016 Human Resources Conference.

    Our topic is one that certainly hot: Namely, Why the NLRB May be Your Biggest Headache in 2016 — Particularly If You Don’t Have a Union.

    Registration is now open for this program as well.

  • And then on May 2, 2016, I will be making a return engagement to the Tri-State SHRM Bi-Annual Conference.

    The event, which is taking place in Rhode Island this year, features a number of tracks. I’ll be kicking things off on Day 1 with a program on Document Retention and Documentation Issues. My colleague Ashley Marshall will be joining me for this interactive and informative presentation.

    Registration is also open for this program now too.

I look forward to seeing you at one of these upcoming programs.

My colleagues at Shipman & Goodwin have, for a lot longer than I have been doing this blog, have been producing the Employment Law Letter recapping some stories you might have missed over each quarter or so.

This week, a new newsletter was released and it touches on several topics of interest.

  • It recaps a Connecticut Supreme Court case that rejected an employee’s claim for lost wages as a result of the Kleen Energy explosion back in 2010.
  • It revisits the NLRB’s cases against a local ambulance company.
  • And it discusses some recent cases regarding FMLA and independent contractors.

If you’re looking for some reading to supplement the blog, I highly recommend the click.

 

lock1Last week, I had the opportunity to speak to the Corporate Compliance Forum for the Connecticut Community Providers Association. My thanks to Gayle Wintjen, General Counsel of Oak Hill, for the invitation to speak.

The topic was a familiar one to this blog — Data Privacy.  In the session, we tackled the new Connecticut law that should be keeping at least some employers up all night figuring things out.

As I said in my talk, employers that have had to adopt HIPAA compliance rules should be in a good shape to get into compliance with Connecticut law. Things like two-factor authentication aren’t nearly as intimidating when you’ve already adopted it for other areas.

Now, the rules don’t need to be adopted by everyone. But those employers who do business with the state of Connecticut are typically covered.

The Privacy and Data Protection Group of my firm put together a FAQ to inform current and potential state contractors of Connecticut’s data privacy and security requirements and to answer the most commonly asked questions about applicable Connecticut law and compliance with it. This article also includes our recommendations for analyzing compliance under applicable Connecticut law and, if necessary, developing a plan to satisfy the pertinent legal requirements.

You can download it free here.

For human resources, I think this is one of the more complicated times to be in HR. Between privacy, discrimination laws, wage & hour laws alone, there are many issues to keep on top of. Make sure data privacy is on your list of things to pay attention to for this year.

And stay tuned for more information on an upcoming program in November.

norwood1After the longest break away from this blog in 8 years (some purposeful, some not — and albeit not very long), it’s time to break from the summer doldrums and start thinking again.

Last week, I had the opportunity to introduce a former law professor of mine — Professor Kimberly Norwood — at my firm’s In Community Event.  Professor Norwood (you never feel comfortable calling a former professor by their first name) spoke eloquently on the way bias — and specifically implicit bias — can play a role in the legal system.

She was outstanding and if you ever get a chance to hear her (and YouTube provides several examples like this one and this one), I would recommend it.

Skillful readers may recall a post a year ago that she wrote here on this blog in the aftermath of the events in Ferguson.   But she is also compelling in her discussions about implicit bias.  In her speech and in an article she wrote last year, she notes that studies show that we ALL have implicit biases.  As she said,

Because there is a clear link between automatic stereotypes and behavior, it is important to untangle automatic associations that can do harm. Part of what social psychologists are doing now is helping us expose our biases
so that we can separate the good from the bad and make more informed and correct decisions.
What does this mean in the workplace? Well, suppose an overweight job candidate comes into your office for a job interview.  Is your implicit bias giving you bad vibes despite the superior credentials and great interview? Studies like this one show a bias in various aspects against overweight.  So, perhaps being aware of this, what then?
Professor Norwood doesn’t suggest any easy answers. And really, how could she? It’s tough to battle against and even when you don’t want those biases to prevail, you may be fighting against the biases of others too.
Now, this is not to suggest that the conclusions regarding implicit biases are settled; there are important legal questions to be decided on this too which I’ll cover in a future post tomorrow.  Whether courts accept this theory and whether it’s scientifically proven remains to be seen.
But that doesn’t mean we should ignore the topic.  Overall, the topic of implicit bias is an important one to keep discussing. These biases don’t make us bad people. But they do require us to continually challenge ourselves too.

templeAs I hinted at the beginning of the year, I expected topics relating to religion to take front and center this year. And certainly, the events of the first few months have supported that.

Today, I’ll be moderating a community forum at my firm, Shipman & Goodwin LLP, entitled “Gotta Have Faith? Religion in the Workplace”.  In this presentation, which is free and open to the public, we’ll talk about the latest legal developments, define what an employer’s obligations to provide accommodations are, address best practices for employers to follow, and share insights into what issues are likely to develop over the next few years.  There will be a Q&A following this panel discussion.

We have a terrific panel lined up of:

  • Steven Sheinberg, General Counsel, Anti-Defamation League
  • Cheryl Sharp, Deputy Director, Connecticut Commission on Human Rights and Opportunities
  • Gabe Jiran, Partner, Shipman & Goodwin LLP

It starts at 4 p.m. at our Hartford office. For full details, you can view them on Shipman & Goodwin’s website here.

The discussion is part of a our continuing “In Community” forum series, which has produced presentations focusing on a variety of issues facing our workforce and community. Other titles have included:

  • Working With the Deaf and Hard of Hearing Population: A Case Study Under the ADA
  • Race and Cultural Identity in the Working Environment
  • Understanding Gender Identity and Expression and Its Impact in the Workplace
  • Understanding Islam
  • “Not for Sale” – Combating Child Trafficking and Exploitation

We look forward to seeing you there this afternoon.

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 NLRB, right now, is union-friendly. We know it. Employers know it. Politicians know it. The unions know it.

It’s stacked 3-2 with Democrat appointees so the NLRB taking its training wheels off and is doing what it has always done. It has shifted its decisions based on the politics.

Yesterday represented just the latest in a long line of decisions where the NLRB has suddenly “seen the light” from a prior decision and overrules itself without much real logic.

It’s not right or wrong. This is just how the NLRB works. When Republicans controlled the Board, it did the same thing.

The NLRB rewrites its decisions. And creates fantastical changes with the use of a crayon (or pen, or keyboard) — just like that childhood story about Harold.

So, yesterday’s decision in Purple Communications, Inc. regarding the usage of an employer’s e-mail system should come as no surprise (and won’t be if you attended my firm’s Labor & Employment seminar in October where we talked about this case coming down just like this.)

I asked one of our labor gurus and a frequent blog contributor Jarad Lucan, to first recap what is going on.  He talked about this case at our October seminar:

Oh, 2007. Those were the days for employers.

The Sopranos made their exit. The last Harry Potter was released.

And the NLRB issues the Register Guard decision (see Dan’s post from way back then).  

The decision said that employees had no rights under labor law to use an employer’s email system, let alone to use it for statutorily protected communications, such as union organization efforts, as long as the restrictions placed on the email system by the employer were nondiscriminatory. 

According to the Board:

Nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.   That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that the union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitation for Avon and the union. 

Yesterday, a divided Board overruled Register Guard declaring that it was incorrectly decided.  

In its Purple Communications Inc. case, the Board held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email system.” 

Put differently, if an employer has allowed its employees to use its email system for non-work related  reasons (i.e., incidental personal use), then an employer must also allow those employees to use its email system for communications protected under the Act, such as communications about union organization efforts or the scheduling of solidarity marches to protest the employer’s conduct. 

Continue Reading NLRB and the “Purple” Crayon: NLRB Rewrites Its Decision on Employer E-mail

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.