If you’ve ever tried a case in federal or state court, you know that picking a “jury of your peers” is often a challenge for all.  Sometimes, otherwise qualified prospective jurors say that they have conflicts with their schedules, while others are all too happy to feel like they are participating in a Law & Order episode. (Lifted from a real-life experience.)

But there’s a bigger issue in play too — jury diversity.

What does it really mean to have a jury of our peers? And is jury diversity still an issue?

These will be among the issues that will be on the table in an “In Community” program that my law firm is producing on September 27, 2017 along with the George W. Crawford Black Bar Association.  I sit on the firm’s Diversity and Inclusion committee and have been among the people charged with pulling this together.  I’m excited to see this program come together.

You can find more information about the program here.

The panel includes:

  • The Honorable Victor A. Bolden, United States District Judge, District of Connecticut
  • Allison M. Near, Partner and Litigator, Sheehan, Reeve & Near, LLC
  • Edward P. Schwartz, Ph.D., Jury Consultant, DecisionQuest
  • Robert R. Simpson, Partner and Litigator, Shipman & Goodwin LLP
  • James W. Bergenn, Moderator, Partner and Litigator, Shipman & Goodwin LLP

For those that think the issue is one of the past, I need only point you to a September 5th concurring decision at the Appellate Court by Judge Douglas Lavine.

The case is a criminal one, State v. Holmes, but the notion that the process of peremptory challenges in picking juries is working smoothly is one that he takes issue with.

The U.S. Supreme Court’s decision in Batson years ago, which held that removing potential jury members is unconstitutional, only is the start of a solution, not the end point:

It is my view, however, that no amount of judicial diligence and oversight can remedy a problem that has become embedded in the Batson procedure itself unless that procedure is revised. I write separately because this case brings into sharp relief a serious flaw in the way Batson has been, and can be, applied. Batson is designed to prevent lawyers from peremptorily challenging prospective  jurors for manifestly improper reasons based on race, national origin, and the like.

It was not designed to permit prosecutors—and other lawyers—to challenge members of suspect classes solely because they hold widely shared beliefs within the prospective juror’s community that are based on life experiences.

This flaw is in plain sight for all to see and must be remedied if the jury selection process is to attain the goal of producing juries representing all of the communities in our state and gaining their confidence and trust. I believe a blatant flaw that significantly disadvantages black defendants—and people belonging to other suspect classes—has become part of the Batson process itself. I conclude that Connecticut should reform its jury selection process to eliminate the perverse way in which Batson has come to be used.

The panel discussion later this month will address these and other issues.

For employers, jury trials are becoming rare; but jury diversity is essential to ensuring that justice is administered fairly.  Ultimately, everyone involved in the system should be supportive of.

Labor Day has come and gone. Summer is over.  Can we all stop listening to Despacito now. (Please?)

But it’s time to look at a decision that came out during the dog days of summer that might have been overlooked.  A recent federal district court case (Noffsinger v. SSN Niantic Operating Co. LLC, download here) has answered the question of whether Connecticut’s medical marijuana laws were preempted by federal law.

The decision held that Connecticut employees who have received approval from the state agency to use medical marijuana outside of work cannot be fired just because they test positive for marijuana during a drug screening.  In doing so, the court held that employees and job applicants can sue based on a termination or a rescinded job offer.

As my colleague wrote for my firm’s alert:

Unlike the laws of other states permitting residents to be prescribed medical marijuana, Connecticut’s statute expressly makes it unlawful to refuse to hire or to discharge an employee solely because of the individual’s status as a qualifying patient, or for testing positive in a drug screening as a result of using medical marijuana within the protections of the statute. However, Connecticut does not protect such individuals if they are found to be using or are under the influence of medical marijuana during working hours.

The court analyzed federal drug laws and determined that they do not address the issue of employment and do not make it unlawful to employ a medical marijuana user. As a result, even though federal law prohibits possession or use of marijuana, those restrictions do not apply to someone properly using medical marijuana under state law.

The decision follows one from Massachusetts that we previously recapped here.

In prior posts, I’ve talked about the difficulties for employers trying to navigate this still-developing area of law.  Employers should proceed carefully under such circumstances and ensure compliance with the state’s medical marijuana laws that prohibits firing employees solely because of the individual’s status as a qualifying medical marijuana patient.

If an employee is under the influence of marijuana during working hours, that may afford employers the opportunity to take decisive employment action but other circumstances may not be so clear.

Consulting with your legal counsel on this changing area of law is advisable for the foreseeable future while more court decisions define the parameters of acceptable action.

Connecticut Supreme Court
Connecticut Supreme Court

In a decision that will be officially released next week, the Connecticut Supreme Court has, at last, ruled that punitive damages are not an available remedy for state law employment discrimination claims.

You may recall that I discussed the Appellate Court’s decision that had originally found the same thing back in 2015.  The case, Tomick v. United Parcel Services, has been one I’ve also discussed in other places too.

The decision itself is one for the lawyers to get. The court was more interested in dealing with issues of “statutory construction over which [the court] exercise[s] plenary review.”

So, the court started with the statute itself. It states that a court “may grant a complainant… such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney’s fees and court costs… ”

Notably, the court says that this language could be considered ambiguous, so the court had to dig a little deeper.  Ultimately, the court says that “To construe this language as encompassing punitive damages without expressly stating as much, as the plaintiff advocates, would be inconsistent with our approach to the statutory construction in [a prior case], in which we required, at least as a default rule, express statutory authorization for statutory punitive damages as a form of relief.”

From there, it’s a fairly easy path forward for the court.  It notes that the legislature used the term “punitive damages” in other human rights statutes, so it knew how to craft such language and remedies.  For example, public accommodation discrimination has punitive damages as a possible remedy.

Ultimately, the court says it is not for it to read punitive damages into the statute.

But it suggests one final avenue: The General Assembly.  “Had the legislature intended for § 46a-104 to provide for statutory punitive damages, it could have amended the state statute to reflect the changes to its federal counterpart, and remains free to do so.”

However, given the split in the state senate and other pressing state business, it seems unlikely we’ll see this change for a while.

What does this mean for employers? Well, it means that state law discrimination claims became worth a little less than they used to — though the Appellate Court’s decision had been factored in for a while now.  It doesn’t mean that such claims are dead — but it does mean that employees bringing claims will have one more reason to try to pursue the claim in federal court, than state court.

 

You would figure after six-plus years of doing this blog, I would’ve covered all the laws applicable to employers. But, perhaps in a testament to how many laws there are, there are still a few out there.

One of them is the Service Contract Act, (Conn. Gen. Stat. 31-57f, for the attorneys out there.) The Hartford Business Journal this week published a good column about it from attorneys David Golder and James Leva.

The law was put into place back in 2000.  It applies in instances where an employer contracts with the State of Connecticut to provide food, building, property or equipment services (and, effective July 1, security services).  In such instances,the law requires that a new “minimum” wage and benefit rate be paid to those employees, often several dollars higher than the conventional minimum wage.

The HBJ column explains how it would work in practice:

The SCA requires specific wages to be paid to employees based on their job classification. For example, as of July 1, a cashier who would typically earn minimum wage ($8.25 per hour) must be paid $10.14 per hour where the SCA applies.

Not only does the SCA increase the wages covered workers are paid, businesses covered by the SCA must provide their employees certain benefits based on the employee’s classification. They include: medical, surgical or hospital care benefits; training, disability, death, unemployment, and pension benefits; and vacation, holiday and personal leave.

For the cashier who should be paid $10.14 per hour, he or she must also be paid benefits at a rate $3.05 per hour.

The CTDOL has more about the act on its page.  Penalties can range between $2500 and $5000 per violation.   Have any more questions? The Department of Labor has a Frequently Asked Questions section for employers here.

For employers who have concerns about the law’s applicability to their business, be sure — as always — to consult with your local counsel to figure out the specifics.

Sometimes, minimum wage isn’t enough.

So, your employees are all paid at least minimum wage and overtime. You’re good, right?

Not necessarily, as a recent column in the Connecticut Law Tribune points out.  You might need to pay a “prevailing” wage — if you have a contract with the State of Connecticut.

Indeed, as many companies who do business with Connecticut have learned, the contracts have a provision at the end that states that: “Employer understands that, as Contractor, it must comply with the Service Worker Statute, Sec. 31-57f of the Connecticut General Statutes as revised.”

Basically, it means that a “standard” wage or a “prevailing” wage must be paid to certain employees in certain industries.

As the article states:

The SCA applies to any employers in the management, building, property or equipment service, or food service industries that contract with the government in the state of Connecticut. The SCA was amended on July 1, 2013, to include security services. Health care services remain exempt. The SCA requires specific wages to be paid to employees based on their job classification. For example, as of July 1, 2013, a cashier who would typically earn minimum wage (i.e., $8.25 per hour in Connecticut) must be paid $10.14 per hour where the SCA applies. Compensating that cashier at a lower rate violates the law.

In addition, employers covered by the SCA must provide their employees with the appropriate prevailing rate of benefits based on the employee classification. Such benefits include: medical, surgical or hospital care benefits; disability or death benefits; benefits in the event of unemployment; pension benefits; vacation, holiday and personal leave; training benefits; and legal service benefits.

There is a way out. Employers can collectively bargain with employees regarding their wages and benefits (read: union). If that’s done, the prevailing wage obligations diminish.

The article is worth a read, even as just a refresher to what the prevailing wage rules really mean.

It’s tough to draw lessons from appeals of arbitration decisions.

Why? Because the standard to overturn arbitration cases is high and, it’s only when there are really bad facts (or, perhaps more likely, an really bad error in interpreting the law) that appellate courts consider reversing the decision.

That appears to be the case in State v. AFSCME, Council 4, Local 391, a decision from the Connecticut Supreme Court that will be officially released on August 6, 2013.

In that case, an alleged sexual harasser had been fired; but an arbitrator found the dismissal was unwarranted and ordered the employee reinstated — albeit reinstated after a one year suspension.  The Appellate Court reversed the arbitrator’s finding.  The Connecticut Supreme Court, in its ruling, has upheld that decision.

In doing so, the Court concludes that termination of an alleged harasser may not be appropriate in all cases, but may be required in many others:

We also recognize that the fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct. Rather, we must determine whether the employee’s misconduct was ‘‘so egregious that it requires nothing less than termination of the [employee’s] employment so as not to violate public policy.’’

In this case, the court found it so egregious as to warrant termination.  Here’s a sample:

[T]he complainant testified in the arbitration proceeding as follows: ‘‘[The grievant] stated to [the complainant],‘Hey [h]omo it’s about time you came downstairs and stop sucking c**k.’ [The complainant] also testified that six weeks after that when he was . . . in the pharmacy he felt something touch his buttocks, he jumped and turned around and [the grievant] had a banana held at his crotch area, and made the statement in front of a witness, ‘he jumped like a girl.’ The [c]omplainant went on to testify . . . that at least [thirty] times [the grievant] called him a ‘ripper.’ The [c]omplainant didn’t know what that meant, and asked another employee what it meant and was told it meant ‘child molester.’ He confronted [the grievant] and asked him to stop making those statements, but [the grievant] continued. The [c]omplainant bought a parrot from another co-worker, [the grievant] overheard the conversation and later in the shift asked the [c]omplainant, ‘what did you have to do for the bird, give him a blow job.’ [The grievant] on other occasions also made comments about the [c]omplainant and a co-worker because they lifted weights together, and asked the [c]omplainant, ‘what do you guys do there grab each [other’s] crank.’ ’’

The dissent takes the majority to task saying that while he agrees that Connecticut has a public policy prohibiting sexual harassment in the workplace, it does not mandate termination of employment in every instance.  Rather, a “strong punishment” should be all that the state should force.

For employers, the case is a double-edged sword. On the one hand, the court seems to approve of an employer who says that it has a zero tolerance policy for harassment and supports the termination. But on the flip side, suppose the alleged harasser wasn’t terminated.  Could the employer then be liable for sexual harassment for not terminating the harasser? What will be “so egregious”? Is it the exception or the norm?

We’ll have to see the way this plays out in the court system over the next few years.

It’s Sunday evening here in Connecticut.  If the forecast goes according to plan, I may not have power tomorrow to write about the storm.

Oh, Sandy!

Governor Malloy announced this evening that all non-essential state workers are not to report to work on Monday. But those who listened to his news conference know he went beyond that.

He stated that “This is the highest threat to human life our state has experienced in anyone’s lifetime.”

What does that mean, though, for private employers? Well, despite the ominous warnings, he has not ordered all private employers to close.  Under Conn. Gen. Stat. Sec. 28-9, he may have broad powers if he declares a state of civil preparedness emergency to do so.

Indeed, under subsection (a), he is “authorized and empowered to modify or suspend in whole or in part, by order as hereinafter provided, any statute, regulation or requirement or part thereof whenever in his opinion it is in conflict with the efficient and expeditious execution of civil preparedness functions.”

But that’s not happening here.  At least not yet.  (If you’re curious on more about the state’s Disaster Plan, you can download it here.)

Thus, its up to each employer to decide what to do. Some, like our office in Bridgeport, will have no choice but to close because of the storm surge and flooding. Others will also need to close because of the expected power outages.

Whatever you decide, understand that opening or closing has its own set of consequences. Employees who are required to work tomorrow may feel like they are being put in harm’s way. While others may not get paid if the office is closed.

This storm is unprecedented (at least that’s what various articles like this one suggest.) Employers should be conscious about following guidance from officials and following the letter of the law. This disaster will pass, but employers who don’t follow the rules, are likely to have issues resurfacing down the road.

Stay safe everyone.

 

Ok, bear with me for a second.

If your employees want to bring a class action against your company claiming that they should’ve been paid overtime, there are typically two ways to do so: Bring a claim under state law, or bring a claim under federal law (Fair Labor Standards Act).

There’s a big difference: Federal law collective actions are an “opt-in” group — meaning that individual employees need to affirmatively state that they want “in” on the lawsuit. (Many people don’t bother so those classes tend to be smaller.)  State law class actions typically use an “opt-out” procedure (meaning that everyone is IN the class unless they affirmatively state they want “out”).

Recently, lawyers representing employees in these wage-and-hour actions have been bringing “hybrid actions” — asserting BOTH state and federal law claims in one lawsuit.  The Second Circuit (which is the federal appeals court for Connecticut, New York & Vermont) had never blessed those actions.

Until now.

Earlier this week, the Second Circuit in Shariar v. Smith & Wollensky Restaurant Group approved these actions were proper where the facts underlying both claims “form part of the same case or controversy.”

As keenly noted by the  Wage & Hour Litigation Blog, if Defendants now want to object to prosecuting both federal and state claims in the same lawsuit, “the court’s decision clarifies the legal grounds for doing so.  Going forward, defendants will need to demonstrate significant tension between the pursuit of federal and state wage claims in the same lawsuit in order to limit plaintiffs to FLSA claims in federal court.”

For employers, the court’s decision won’t have a significant impact on business. What it will have an impact on, though, is any wage-and-hour litigation that the company may face. This decision makes it easier for employees to bring their claims in federal court (where things might move a little more quickly) while still maintaining the perceived benefits of an opt-out class under state law.

 

Over the last few years, I’ve been running a popular post about Columbus Day and the origins of the work holiday in Connecticut.  Indeed, it has its foundation as a federal holiday and is listed in the United States Code (5 U.S.C. Sec. 6103).

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of the federal law.   So, if you work for a federal or state employer in human resources, or otherwise, you are likely going to have next Monday off. 

But it is also one of those holidays that private employers increasingly have decided do not merit a vacation day.  A survey from a few years ago showed that just  seven percent of employers in California, for example, give the day off to their employees. 

A common question that arises, however, is why? Why do employees for private companies not have to close on a day that has been designated by the federal government as a national holiday?

The answer is actually quite simple: Because Congress didn’t cover private employers in the law.  And state law doesn’t mandate any requirements on private employers either.  And so, while employees may complaint (perhaps rightly) about the difficulty of some child-care arrangements for some closed schools or otherwise, employer continue to have discretion about the days that it designates as holidays. 

Some employers have created their own work-arounds, allowing employees to take 1-3 "floating holidays" for days like this (or other types of holidays, like Yom Kippur or Three Kings Day).  That’s a sensible practice. But regardless, these types of policies should be discussed with employees so everyone knows what day is a holiday and what day isn’t.

Continue Reading Columbus Day is Coming. And Most Employers are Open.

Today is officially Columbus Day.  In prior years, I have written a post on the day and why most people are working today. Given the relevance of the post again this year, I reprint it below (with some slight updates).

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of a federal law, 5 U.S.C. Sec. 6103. Besides being a federal holiday, its a state holiday too.  So, if you work for a federal or state employer in human resources, or otherwise, you have today off.  (As a result, lots of Columbus Day sales are going on too.)

If you are a private employer, you probably don’t give your employees the day off.  In fact, a recent survey in California pegged the number of employers giving off for Columbus Day at just 7.8 percent (it ranked above Lincoln’s Birthday and below Good Friday). 

Although companies have established holidays, why don’t employers have to close on a state or federal holiday? It’s pretty straightforward.  The U.S. (unlike some other countries) does not have any "national" holidays.  Indeed, just because the government recognizes a legal holiday doesn’t mean that private employers have to follow it. (Other examples include Veteran’s Day and, here in Connecticut, Good Friday). 

Legal holidays merely dictate what the government is going to do; how the rest of the country chooses to follow the holiday is up to them.  And yes, that means that you could conceivably make your employees work on Memorial Day or 4th of July (of course, if the company is a service industry, they probably require employees to work today).  But it probably isn’t good business practice as employees will flock to those employers who do give off those holidays.

What is a good business practice for Columbus Day now? I would argue that if the employer is going to designate 8-10 days a year for holiday, employees would rather one or two of those days be designated as a floating holiday rather than Columbus Day.   Giving your employees a choice of days is a terrific way to give an added benefit that has the advantage of allowing the employees an choice in their favor.  Thus, most employers just take a pass on designating Columbus Day a holiday. 

The Knights of Columbus, which is based in New Haven, Connecticut, would probably disagree.  But you can visit their museum to learn more about Christopher Columbus. Of course, don’t go on Columbus Day: the museum is closed.

Clip art licensed from the Clip Art Gallery on DiscoverySchool.com.