Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The Connecticut Supreme Court, in a decision that will be officially released on January 5, 2010, has held that employees cannot bring a private right of action against employers that violate the state's electronic monitoring statute. 

In Gerardi v. City of Bridgeport, two city fire inspectors were disciplined for improper job performance through the use of GPS devices, allegedly without the employees' consent.  They claimed that the employer violated Conn. Gen. Stat. 31-48d, which prohibits an employer from electronically monitoring an employee's activities without prior notice, and sought injunctive relief and monetary damages. 

The employees claimed that even though the statute didn't contain a private right of action, one should be implied.  The Court disagreed:

Nothing in § 31-48d (c) entitles employees who have been subjected to electronic monitoring without notice to any specific relief or remedy. Indeed, the statute does not even provide a mechanism by which an employee can report its employer to the labor commissioner for having violated the statute. Nor does § 31- 48d provide any other administrative remedy for the employee. Instead, the statute provides solely for a pen- alty that the labor commissioner can impose once a violation of the section has been determined through an administrative hearing. Section 31-48d (c) therefore clearly delegates all powers related to violations of this statute to the labor commissioner. Accordingly, we conclude that the legislature intended the enforcement mechanism of § 31-48d to be limited to proceedings before the labor commissioner, and not to allow employees to bring civil actions.

As the court then went on to note, had the legislature intended to allow for a private remedy, "it easily could have added language".  It didn't. And here, the Court said the language of the statute foreclosed any further arguments by the employees.

The result here is frankly not that surprising. The statute is fairly new and the Court would have had to do an end run around the language to find differently.

I've discussed this statute at length numerous times (including one of my earliest posts in October 2007).  Even though there may not be a private remedy for violation, it does not mean employers should simply ignore it.  Indeed, this statute can easily be followed by a posted notice in a lunch room or another conspicuous location that the employer may engage in such monitoring.  You can download the DOL's standard notice here.  

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Continuing the summer series on the basics of some employment laws in Connecticut, we turn this week to laws regarding working conditions.

Indeed, while the anti-discrimination laws and FMLA laws get all the press, there are a whole host of other laws that regulate the workplace conditions.  These are no less important and ignoring this rules can often lead to a larger investigation on workplace issues.

Here are a few to remember:

• Meal or Rest Periods: Every employee who works at least 7 1/2 hours, is entitled to a consecutive 30 minute period for a meal.  This meal period cannot occur in the first 2 hours or last 2 hours of work, unless there is a written agreement in place.  The DOL has set up various exceptions however for public safety or because of the nature of the position.   (Conn. Gen. Stat. 31-51ii.)
   
• Breastfeeding in the Workplace: Every employee who wishes to express breast milk or breastfeed at work can do so during a meal or rest period.  Employers are obligated to find a suitable room or other location (other than a toilet stall) where the employee can express her milk in private.  (Conn. Gen. Stat. 31-40w.)
   
• Electronic Monitoring: I've previously covered this more extensively in various posts like this one, but suffice to say that Connecticut allows employers to monitor their employees so long as the employees have prior written notice of such monitoring (with limited exceptions).
  
  To provide the notice, the employer must indicate the types of monitoring that may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.)(Conn. Gen. Stat. 31-48d.).
  
  If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment."
   
• No Polygraph Tests: Connecticut also has a blanket prohibition on the use of polygraph (lie-detector) tests by employers for employment purposes (with the exception of such police or correctional facilities) . (Conn. Gen. Stat. 31-51g.)
  
  Interestingly, the ban on polygraphs appears limited to situations where the employer "requests or requires" any employee or prospective employee to submit to or take a lie detector test as a condition of obtaining or continuing employment (and cannot discipline an employee for failing to do so.) Of course, that leaves open a question of whether an employer - as part of an investigation - can ask an employee to do so.  But even in that case, it may run afoul of federal laws on the subject. Suffice to say that any employer wishing to use lie detector tests should consult with counsel about it. 

(Photo: Library of Congress, Women workers employed as wipers in the roundhouse having lunch in their rest room, C. & N.W. R.R., Clinton, Iowa, 1943)

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Google released a new program last week called Latitude. You can get full details here, but the gist of it is that can show your location (and the location of your friends) real-time on a map.  So, suppose you and your teenager have cell-phones -- voila, you can see on a map where they are and vice-versa, all in real-time. 

I've been using the program for a few days on my Blackberry Bold and find it both amazing and scary at the same time. Amazing, in that I can see where my family members are at any time. And scary for that same reason. 

As with any new technology, there's the risk of misuse.  GPS tracking has been available for sometime, but never in such a consumer-friendly format.  In the past, companies might spend tens of thousands of dollars fitting their fleet of trucks and cars with such devices to ensure that their employees are where they should be; this new technology could lower the cost to virtually nothing.  Latitude isn't perfect, but it is now another tool that employers have at their disposal.

A few other employment-related blogs today have also started discussing the implications in the workplace (which you can find here and here.) 

Employers in Connecticut, however, have particular rules to follow, mainly in the form of the Electronic Monitoring Act. 

I first discussed the act in a post way back in October 2007:

[C]an an employer in Connecticut conduct electronic monitoring of its employees? The answer is a definite yes. But, of course, the answer is a bit more complicated. Connecticut has an electronic monitoring statute, Conn. Gen. Stat. Sec. 31-48d, that allows for such monitoring if (with very limited exceptions) the employees have prior written notice of such monitoring.

To provide the notice, the employer must indicate the types of monitoring which may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.) .

If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment."

So for employers, posting the notice (which you can download for free from the DOL website here) is key but educating employees about the tracking may be just as important. And understand that simply the process of providing notice to your employees may serve as an effective deterrent. 

Of course, there will be some who will find such tracking an invasion of their privacy and many employers will find such tracking completely unnecessary.  Where the proper balance lies between privacy and oversight of an employee's performance is a question that only you -- as an employer -- can answer.

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UPDATED 12/3/08

During this decade, electronic discovery has moved from the fringes into the mainstream when litigating employment law claims. 

What does this mean? In many cases, employers must now run keyword searches and other types of searches on their computer systems to find information that might be relevant to the lawsuit at issue.

But what search terms do lawyers and other e-discovery practioners really look for?  An article in CIO.com, suggests a top 10 list according to an e-discovery provider.

Among the key search terms?

• "Delete this email immediately."
• "I really shouldn't put this in writing."
• "I don't want to discuss this in e-mail. Please give me a call."
• "Don't ask. You don't want to know."

In employment cases, there are obviously other terms or items that will likely be looked for depending on the type of case.  If it's a sexual harassment case that involves pornography, for example, you can be sure that various searches will be run on porn-related search terms.  (And a Newsweek article this week suggests that the search for porn will be pretty successful given the numbers of people viewing it at work...)

For employers, there are easy and no-so-easy solutions to these issues. Among the easier solutions, put up some basic internet filters so that porn sites cannot be accessed.  Among the harder solutions, come up with document retention policies that clean up e-mail on a regular basis and that following company policies is obviously key.

And remind people of a simple e-mail rule -- don't put something in an e-mail that you wouldn't want your mother to see on the front page of the New York Times six months later.

UPDATE: A keen reader highlighted for me the original source of some of the content I had attributed to a different blog in my original post.  I have updated the post to cite to this article as the proper source of the information rather than the blog, to give full credit to the original author.  

(H/T Overlawyered)

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Does the state have "just cause" to fire an employee who misuses his work computer by accessing shopping websites, and two websites where you can purchase hallucinogenic mushrooms? That is the question that was answered in the affirmative, albeit indirectly, by the Connecticut Supreme Court, in a decision to be officially released on August 5, 2008.

In McCann v. Department of Environmental Protection (download here), a state worker had been fired for allegedly misusing his work computer, particularly after being warned to get his own computer for personal use.  The matter was arbitrated and an arbitrtor upheld the termination.

On appeal, however, the trial found that the arbitrator abused his discretion and made factual errors.

The Supreme Court, however, reversed that decision and upheld the arbitrator's decision:

We conclude that the arbitrator’s findings reasonably support a conclusion that the plaintiff had misused the department’s laptop computers and had violated the department’s policy against using computers for personal purposes. In turn, these findings support a conclusion that the plaintiff had engaged in misconduct under article fifteen, § 4 (C), of the collective bargaining agreement by wilfully misusing state equipment and deliberately violating a department rule. Accordingly, we conclude that the arbitrator’s conclusion that the plaintiff was terminated for just cause was not in manifest disregard of the law.

The decision, while not as ground-breaking as some of its decisions earlier this year is notable for several reasons.

First, for state workers who have collective bargaining agreements with similar language, this case should put them on guard that using state computers for personal use (even visiting the L.L. Bean website, as the court references) may be a terminable offense. 

Second, for employers (both public and private), this case demonstrates that a clear and enforced policy of appropriate computer usage may be upheld by the courts as grounds for "just cause" to terminate employees. This is particularly important for employers who have or are considering collective bargaining agreements. It also shows the need for employers to have such policies as well.

Last, the decision shows that the Connecticut Supreme Court takes a hands-off view of arbitrators decisions.  The Court is obviously giving a great deal of leeway to the decision. It's a reminder that if parties agree to arbitrate a decision, seeking relief in the Connecticut courts to overturn that decision will be an uphill battle.

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When my trial is over (end of March??!!), perhaps I'll be able to tell you all about the madness that is sometimes the Connecticut civil court system.

But in the meantime, we are blessed today with another guest blogger.  Kris Dunn, who runs the fabulous HR Capitalist Blog, is a seasoned pro in human resources. He's got the combination of education and experience -- and isn't afraid to put it to good work on his blog. 

His full bio is here, but he's now a Vice President of Human Resources for SourceMedical, a software company focused on serving the booming outpatient market.  He's also a featured columnist for Workforce.com. 

Today, Kris talks about something I've touched on before -- computer monitoring.  But instead of passing judgment on such a practice from a legal perspective, he discusses whether it is good HR practice to do so -- and what it means about your workplace.  As with other guest bloggers, I'm thankful for the post. Please check out his blog.

By now, you've probably seen the strands of a survey by the AMA floating around the Internet, suggesting that most employers are terminating people based on their use of the Internet. In case you haven't seen the study, let me save you some time by offering up the clips you need to know.

The 28% of employers who have fired workers for e-mail misuse did so for the following reasons:Cops violation of any company policy (64%); inappropriate or offensive language (62%); excessive personal use (26%); breach of confidentiality rules (22%); other (12%).

The 30% of bosses who have fired workers for Internet misuse cite the following reasons: viewing, downloading, or uploading inappropriate/offensive content (84%); violation of any company policy (48%); excessive personal use (34%); other (9%).

Employers are primarily concerned about inappropriate Web surfing, with 66% monitoring Internet connections. Fully 65% of companies use software to block connections to inappropriate Websites—a 27% increase since 2001 when AMA/ePolicy Institute first surveyed electronic monitoring and surveillance policies and procedures. Employers who block access to the Web are concerned about employees visiting adult sites with sexual, romantic, or pornographic content (96%); game sites (61%); social networking sites (50%); entertainment sites (40%); shopping/auction sites (27%); and sports sites (21%). In addition, companies use URL blocks to stop employees from visiting external blogs (18%).

So those are the numbers. Some of it I get and support, but a lot of it smacks of items that are sooo yesterday.

First up, I get that email is a conversation, so any idea and language that you put out there is subject to all the policies that you have in your handbook. That's good. Professional conduct, harassment policies, etc. are all applicable to what you put out there in email. That's the way it should be. Whether someone gets a warning, or is terminated for email or web browsing related to these items, depends on a lot of factors, such as severity and past history.

Here's my big pain point. If you are terminating someone for excessive use of the Internet, you probably haven't done your job from a performance management standpoint. Stop me if you've heard this one before. Sally's performance is lacking. Sally's manager comes to you indicating every time he walks by Sally's cube, she's on Facebook. Sally's manager wants to pull reports for that "gotcha" moment.

Is your next question "How's Sally's performance?" Once you're told that the performance is less than stellar, is question number two a derivative of "Tell me about the conversations you have had with Sally about her performance?"

My strong belief - excessive Internet use isn't a policy issue, it's a performance issue. There's a lot of variability across managers as to the definition of "excessive". Good luck defending the consistency issues there.

And don't even get me started about the wisdom of blocking entire categories. Dirty sites are an obvious one, but do you really want to block social networks where you can pick up candidate referrals? Blogs as an entire category?

That's crazy talk. Manage what's "appropriate" in Internet use by managing performance.

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There's been a lot of good material this week and there just isn't time for full-fledged posts on each of them. But check these other posts for some additional information or background on various employment-law topics that may have an impact in Connecticut.

• The Word on Employment Law has a good alternative take on the Tribune Company's new employee handbook that I posted on yesterday.  Ultimately, I don't think John and I differ that much -- keeping handbooks readable to employees (and avoiding unnecessary legalese such as "whereas" or "notwithstanding the foregoing") is an important goal in any drafting exercise.  But making sure that your handbook doesn't confuse your employees or send your employees mixed messages is just as important as well.  The Ohio Employer's Blog has also added some insight too. 
  
• Overlawyered refers to a New York Times article over the weekend about the unintended consequences of the Americans with Disabilities Act.
• Ross' Employment Law Blog  talks about the decision late last week by U.S. Supreme Court' to take on three new employment law and ERISA cases this term.  The cases will address issues such as: "Is cooperating with internal investigation protected activity" and "Which party has burden of persuasion in establishing 'reasonable factors other than age.' under the ADEA."  It will also address the ERISA question of what standard of review should apply where a plan administrator both decides claims and pays claims.  Ohio Employer's Blog also chimes in on the subject as does the Workplace Prof. 
  
• Workplace Horizons reports on a potential new Microsoft program that would take employee monitoring to a whole new level.  A patent application by Microsoft describes a system of components that would use various "physiological or environmental sensors to detect at least one of heart rate, galvanic skin response, EMG, brain signals, respiration rate, body temperature, movement, facial movements, facial expressions, and blood pressure.”
• And finally, there was this amusing article from the BBC which asks the question: Why Do U.S. Pickets Walk in Circles? (H/T Workplace Prof.)  Apparently, union workers strike differently over the big pond.
  

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Next time you're driving on the highway, take a look at the road signs. Not for what they say, but how they say it.  Are they new or worn? Easy to read or difficult to see? Straightforward or confusing?

If you drive down I-95 around Fairfield and Westport, you'll notice something different lately. The signs are fresh, easy to see and clear.  In fact, when you start getting down to Norwalk or so, you'll be struck by how worn out the signs are in that area of the state and how unreadable some are.  (A terrific article in the New York Times from August 2007 discusses the nationwide change in signs to a new "Clearview" font, if you're curious.)

I was thinking about this after I had a discussion with a client recently about the benefits of reviewing their employee handbook.  "It's fine; we've had it for 15 years without an issue," they said.  But it turns out it wasn't "fine", the handbook lacked some of newer or updated provisions that have been drafted to comport with changes in the law.  Indeed, the handbook was a confusing hodge-podge of policies that were, at times, unclear, outdated, and confusing.

If your company's handbook is as old as some of the road signs out there, here are four areas to re-examine.

1. At-Will Disclaimers -  This disclaimer will notify employees that they are at-will and that this handbook does not change that relationship.  Disclaimers should be displayed prominently and be sufficiently specific.  The disclaimers should also be able to draw attention to a reasonable person.  Lastly, the disclaimer should explicitly reserve the right of employers to change the policies at any time, with or without prior notice.
   
2. Anti-Harassment Policies -  The Supreme Court decisions of nearly a decade ago told employers two important lessons: a well drafted policy and well-drafted complaint procedures to deal with harassment issues will go a long way to reducing an employer's liability for many types of sexual harassment.  Indeed, the EEOC has suggested that employee handbooks are an excellent vehicle for notifying employees about such policies.  Thus, a review of the anti-harassment policies and procedures is a good idea to make sure they take advantage of this important defense provided by the Supreme Court.
   
3. Vacation/PTO Policies - Some employers have re-evaluated their vacation packages and other days off to avoid some of the hassles and abuses that have taken place at their companies. Some have moved to a strict "Paid Time Off", which looks less at the reasons for taking time off, and more at the overall attendance of the employee in general.  Some have also added a provision to make it clear that employees earn only a pro-rata share of the vacation time during each month, to prevent employees who leave at the beginning of the calendar year to be paid for unused vacation time for the entire year.
   
4. Electronic Communications - With the rise of the Internet and web-based e-mail, computer access and misuse have only multiplied in the last decade. Moreover, employees who use e-mail and instant messaging are prone to using it informally.   A comprehensive policy to address what conduct is appropriate will give employees some guidance into the do's and don'ts of e-mail and IM.  With Connecticut's passage of an Electronic Monitoring Act,  employees must also be notified if employers are tracking their computer systems, which may involve keystroke reviews or internet firewall tracking.  

Handbooks may not be as glamorous as addressing the "hot" issues of the day, but updating a handbook will pay dividends for years to come. With clearly marked signs for employees on how to proceed, it's less likely that one will get lost on the way. 

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