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

One of the underlying fears that many employers have is that anti-discrimination laws will eventually be interpreted so broadly, that they will be open to litigation even for the most remote possibilities.   Thus, the idea of "standing" (in essence, who has the "right" to sue another party) is one that can sometimes be used to prevent overreaching in employment law cases.

The Connecticut Supreme Court, in a decision to be officially released next week, has held that only employees (and not surviving spouses of employees) have standing to sue under the state's anti-discrimination laws. In McWeeny v. City of Hartford, the Court fairly readily disposes of the claims by saying, in essence, the employment anti-discrimination laws cover, well, employees.

By its plain and unambiguous terms, § 46a-60 (a) (1) prohibits an employer from firing or refusing to hire or discriminating against any employee or prospective employee in the terms, conditions or privileges of employment. Thus, § 46a-60 (a) (1) pertains only to those persons who have sought or obtained an employment relationship with the employer alleged to have engaged in a discriminatory employment practice. The plaintiff does not fall within either of those categories.

In this case, a state court judge, Robert F. McWeeny sought various benefits as the surviving spouse of another state court judge.  The Supreme Court drops these facts to footnotes and discards the relevance of it : "The plaintiff is a judge of the Superior Court. His judicial position, however, is not relevant to this appeal."  That said, it's certainly not everyday that a group of judges dismisses an appeal of one of their colleagues.

For employers, the case demonstrates an important rule of thumb: Not everyone who complains about discrimination is even covered by a state statute.    That is not to give employers a free pass to treat people unfairly, but it also means that to not overlook the obvious argument of standing when defending against a claim like this.

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Recently, a colleague received an e-mail that suggested that all employers must post information that "lists employee's rights to health insurance under Connecticut Law."  When I heard about it, something didn't seem right.  After all, since when do employees have a right to health insurance in Connecticut (and, isn't that a heated topic of the Presidential campaigns?). 

So I started digging.  A peek at the Department of Labor website came back with nothing.

A search on Google for a "Connecticut Healthcare Advocate Poster" provided a link to the website of a company, Progressive Business Compliance, that does, in fact, sell a poster for $12.99 that appears to be on point.  The website page states specifically. "New Poster February 2008! Employers are required to display this poster.  Lists employee's rights to health insurance under Connecticut."  The website allows a viewer to buy this "Healthcare Advocate" poster directly from the site and it has a nice thumbnail picture of what the poster looks like.

Hmm. This seemed strange; still hadn't heard of the law..  But I wondered, why have I seen this poster before? So, I called the Office of the Healthcare Advocate, which is dedicated to serving Connecticut's health insurance consumer. 

And lo and behold, they were extraordinarily helpful.  A poster on rights to health insurance? Never heard of it, they said. But they do have a poster from the Managed Care Ombudsman that lists the services of the Managed Care Ombudsman.  It's required by Conn. Gen. Stat. Sec. 38a-1046.  Oh, and it's not new. It's been around since 1999.  It lists certain items that a health insurance policy must have -- if health insurance is offered.

Ding, ding! We have an answer!  There is no poster listing an employee's rights to  health insurance, only a poster regarding the services of the Managed Care Ombudsman.  And it's been around for a while (which is why it looked so familiar). 

So, I ask the OHA, can I download this poster from the website? Their answer was no but she graciously agreed to e-mail it to me.  (Don't ask me why it isn't on the website in this age of technology.)

And, she did. So, are you curious what it looks like? This is the poster that she e-mailed me. You can compare it to the thumbnail image available for sale on the PBC website and make your own judgment about it. (IMPORTANT DISCLAIMER: As with this entire blog,  I make no representation that this poster does, in fact, comply with the applicable law and readers are strongly cautioned to seek legal advice about whether their postings comply with applicable law.)  If you want your own poster, you can certainly contact the OHA at 1-866-HMO-4446.  Perhaps if enough people call them, they will even post it to the website.

This situation presents a good reminder tor HR professionals and company staff that it is always best to consult with an attorney about their legal obligations, particularly on posters.  And it reminds me of the (seemingly) old adage that just because it is on the Internet, that does not mean it's true.  It is always best to go to the underlying source to resolve any questions you might. And you might save a few bucks by doing so.

(4:30p UPDATE) See comments by Kevin Lembo, from the Office of Healthcare Advocate below regarding the poster.  There will be some further developments in this topic likely tomorrow.  Stay tuned. 

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Without much fanfare, the Connecticut Judicial Branch is now posting criminal conviction records with free access to the public. You can view these records at this link here.  It is easy to search and easy to use.

The possibilities in the employment context are deep and wide as employers may now seek to review this database for hiring purposes or even to look up existing employees.  For example, the prior convictions of Joshua Komisarjevsky, one of the suspects accused in the murder of various Petit family members, are all up there.  You can see and trace that history fairly easily.   

First, a bit more about the details (from A Public Defender):

As promised by Representative Mike Lawlor months ago, the criminal disposition database is now online. You can search by last name and birth year, courthouse, docket number. This covers criminal and motor vehicle cases.

...It gives you his name, his lawyer’s name, his lawyer’s juris number (state bar number), his year of birth, his arrest date, the arresting agency, the sentencing date, and then a lot of information about the offenses of conviction, including the sentence, what he pled to initially, the date of the offense, the date of the verdict.

For state employers, the ease of this access can be a tease, particularly given the state's law prohibiting the use of some criminal conviction information for purposes of making employment decisions.  Connecticut's public policy is to encourage employers to hire qualified ex-offenders.  (Conn. Gen. Stat. Sec. 46a-79.) Law enforcement agencies (which include Sheriff's Department court house security and transportation personnel) are the only governmental entities in the state that by law can deny employment based solely on a person's criminal history.  In all other cases, state officials cannot deny felons employment, occupational licenses, or permission to engage in state-regulated professions without examining (1) the relationship between the crime committed and the job or license that the person is being considered for, (2) the convicted person's degree of rehabilitation, and (3) the time elapsed since conviction or release.

For private employers, there are no such restrictions on the use of conviction records for purposes of making employment decisions.  The only relevant restrictions for employers prohibit the use of erased criminal records (Conn. Gen. Stat. Sec. 31-51i).  Indeed, subsection (f) reminds employers that while there is no restriction on the use of criminal records, such information must be restricted to those with a "need to know" within the company -- normally the human resources personnel or the person making the decision to hire the applicant.

That said, the use of an outside service to conduct the background checks may still run into issues with the Fair Credit Reporting Act, as I outlined in a prior post.   

While the criminal defense attorney bar may lament an "invasion of privacy", this information has always been available to the public --- just not as easily as before.   It is a very useful resource to have -- whether for employers or in the civil litigation context.  Kudos the judicial branch for putting forth a database that is a useful resource for the public.

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For football fans in Connecticut, it doesn't get any better than this -- Patriots and Giants in the Super Bowl. With loyalties evenly divided in this state between the Giants and Patriots, interest in the Super Bowl will be at an all-time high. (My allegiance has always been with the Giants, particularly since Robert Kraft's tease of moving the Patriots to Connecticut in the late 1990s). 

And with such interest and enthusiasm, friendly wagering among friends will no doubt follow.  But what happens when those people want to bring such wagering into the workplace in Connecticut? The short answer is "Player Beware". 

In Connecticut, gambling and wagering is prohibited by various state laws, including Conn. Gen. Stat. Sec. 52-553 and 52-554.  There is no clear exception for "workplace" bets, or small bets. According to the statutes, a bet is a bet, regardless of where it is placed. (The obvious exceptions to this general rule are the Indian casinos in the state -- Foxwoods and Mohegan Sun.)

However, there is one well-worn exception to the "no gambling" rule.  Specifically, Conn. Gen. Stat. Sec. 53-278b states that people (not companies) are:

exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling. 

Thus, the language appears to create an exception to the idea of professional gambling -- if there is a "bona fide social relationship."  Would workplace relationships qualify for this exemption? That's obviously an open question.  Some might quality; others clearly won't.  As the Office of Legal Research for Connecticut's General Assembly stated in August 2007:

The law does not define “incidental to a bona fide social relationship”; the legislative history of the law does not indicate the legislature's intent in enacting the exemption (see House and Senate debate attached); and we found no controlling Connecticut court ruling on the meaning of the term as it pertains to gambling.

For employers, this exception does not apply however.  Clearly, by referencing only "natural persons" (meaning people, not "corporations"), the law is intended to only protect individuals, not employers, from prosecution.  Thus, company-sponsored Super Bowl office pools would appear to be out. (That goes for Oscar Award wagering too.)

But what about the smaller, employee initiated ones? Again, the statute's language focuses on "social relationships".  A few people wagering may appear to be better than a 100-person office pool.  However, there is no "sure bet" that a small office pool among peers will pass muster under review.  And thus, "Player Beware" is the surest answer to this.

Is there any real likelihood of prosecution? Probably not. It does not appear to be a priority for enforcement. But for employers in the state, that doesn't mean it should promote such pools either.  Having a clear and established policy on gambling (that would include, for example, a prohibition of company computers to help run such a pool) may be a good start to avoiding further issues down the road.

For background on office pools in general, some posts have already gotten a jump start on the topic.  John Husband, of the Colorado Employment Law Letter, has a fun article on the subject here.  Despite lawyers' tendency to be cautious on the subject, Husband reminds us that office pools can be more than simply money:

As with many aspects of employment law, there is no clear-cut rule regarding workplace gambling that will fit every company and every situation. Office pools, Oscar pools, and group lottery tickets often constitute significant ways that managers build camaraderie and teamwork and relieve employee stress.

Perhaps, over the next two weeks leading up to the Super Bowl, instead of worrying about office pools, employers in Connecticut can have fun with the topic.  Nothing in the law prohibits Super Bowl parties, and displays of team spirit in the workplace.  Imagine a workplace "rally" where employees can cheer on their favorite sport with the employer giving away football-related gifts. That certainly would build workplace morale.  Enjoying the time leading up to the Super Bowl is something that I think all football fans in the state can agree on. 

UPDATE 1/30: Attorney General Richard Blumenthal recently chimed in that he viewed office pools as okay, so long as the house did not profit from it.  “Office pools are generally legal unless they’re done for a profit by the person organizing it,” Blumenthal said. “In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

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The U.S. Supreme Court this morning asked the government for its views on whether workers may settle Family and Medical Leave Act (FMLA) claims with their employers.  The SCOTUS Blog has the details:

The Supreme Court on Monday asked the U.S. Solicitor General for the government’s view on whether workers may settle with their employers their claims under the Family and Medical Leave Act. The issue arises in Progress Energy v. Taylor (07-539). The Fourth Circuit Court (download decision here), ruling in conflict with the Fifth Circuit Court, decided that a Labor Department regulation barred both past and future waiver of all FMLA rights. The Labor Department has taken the position that its regulation permits backward-looking release of claims under that law.

The Fourth Circuit's decision arises mainly from a regulation promulgated by the Department of Labor.  Specifically, 29 C.F.R. § 825.220(d) states that "[e]mployees cannot waive, nor may employers induce employees to waive, their rights under [the] FMLA."  That decision created a split in the circuits that have decided the issue. 

Lots of outside parties have already submitted papers at the U.S. Supreme Court asking for consideration of this issue including the Association of Corporate Counsel, Society for Human Resource Management, and the U.S. Chamber of Commerce. 

For those in Connecticut, remember that the state regulations mirror the federal regulations on this particular subject. So it is likely that a U.S. Supreme Court decision may also have an impact on how this issue is ultimately decided in Connecticut.  Conn. Regs. 31-51qq-25(d) states:

Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees (or their collective bargaining representatives) cannot “trade off” the right to take FMLA leave against some other  benefit offered by the employer.

 It remains to be seen if the U.S. Supreme Court will take up this issue or wait for the split in circuits to become clearer. But given that the Roberts court has taken up several employment law claims for consideration, don't be surprised if this issue gets put on the docket later this winter.

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In most of Connecticut, we had a storm earlier this week with a little bit of snow, sleet, ice, freezing rain, and rain. In other words, we had a typical New England winter "event" (with perhaps another on its way on Monday).  While this might close down some parts of the country, most schools opened late and employers went on with business.

A great post on inclement weather policies by the Pennsylvania Employment Law Blog has some pointers for companies to think about and suggestions for an inclement weather policy.  Among the areas and questions that this post suggests should be covered are:

• Will employees be paid for the time when the business is closed?

• Will employees be paid if they don’t report to work due to inclement weather when the business is open?

• Can an employer discipline or discharge and employee for failing to report to work due to weather conditions when the business is open?

Absent a declaration of a state of emergency, private employers are free to determine their own policies for handling snow storms (or another natural events.) The Connecticut Department of Emergency Management and Homeland Security has a section devoted to winter storms, but most people can figure out this information on their own. 

Some employers may ask -- what should I do for our company? The answer is, of course, it depends. Some employers who need to maintain operations 24/7 (a hospital, hotel, etc) may want to designate certain employees as "essential".  Others may decide that they can deal with telecommuting employees for a half-day.  But establishing a policy at the outset so employees know what to expect is essential to avoiding problems later on.  Ultimately, setting reasonable expectations (asking employees to call in if late, and having them make up for lost time) may be all that is needed for some.

Worth a note is that for extremely serious storms (perhaps a Category 3 Hurricane or a flood comparable with the 1938 or 1955 floods), the Governor has the power to suspend certain laws under Conn. Gen. Stat. Sec. 28-9.  This is rarely invoked. In non-emergency situations when the Governor says that "non-essential" state workers should stay home, private employers should understand that this applies only to state workers. 

Lastly, the state's natural disaster plan is also a good resource for in-depth analysis of what should happen in these extreme circumstances.  You can find it here. 

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Late today, a California judge granted a preliminary injunction barring the government from distributing letters to employers notifying them of social security number discrepancies.  These are known as "no-match" letters.  The order also prevents the government from enforcing a rule that would have required employers to terminate employees whose discrepancies weren’t resolved within 90 days.

The New York Times does a good job summarizing the decision. 

Judge [Charles] Breyer chastised the Department of Homeland Security for making a policy change with “massive ramifications” for employers, without giving any legal explanation or conducting a required survey of the costs and impact for small businesses.
......

If allowed to take effect, the judge found, the rule could lead to the firing of many thousands of legally authorized workers, resulting in “irreparable harm to innocent workers and employers.”
....

Judge Breyer found that the Social Security database that the rule would draw upon was laden with errors not related to a worker’s immigration status, which could result in no-match letters being sent to legally authorized workers. “There is a strong likelihood that employers may simply fire employees who are unable to resolve the discrepancy within 90 days,” even if they are legal, he wrote.

Even though the decision is in California federal court, the injunction apparently applies nationwide. In other words, the order enjoins the Social Security Administration from sending notifications to approximately 140,000 employers across the country notifying them of the new rule, which could affect about eight million workers.

Thus, Connecticut employers -- for the time being -- should not be concerned about the key provision in the new "no-match" rule but should stay tuned for additional developments as the case progresses.  Of course, that does NOT mean that employers can ignore immigration rules; the standard verification rules still apply.

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The blog has been unusually quiet the last 36 hours or so, though it's not for lack of effort. I had a blog posting I was incredibly proud of with great links, documents, and research.  A thing of beauty.  I was already daydreaming of the other blogs that would seek it out (WSJ Law Blog or Above The Law here we come!).

So why are you reading this entry instead? Because of the potential for disrupting a lawfirm connection or two.  In essence, after drafting the entry, I decided that it was better to not publish it and preserve relationships that the firm has with clients and customers than risk jeopardizing the relationship (even though I have nothing to do with that relationship).  In essence, despite a right to publish what I want, I decided that the better judgment is to not publish it.  I'm not happy with my decision, but I know its the "right" decision in this circumstance. 

But employers undoubtedly have employees with their own blogs of a far more personal nature. Will those employees use discretion in their posts? In other words, even when they do not post about the company that they work at, will they decide to NOT blog about an employer's competitors or customers?  Do they even THINK about the effect their blog will have on their employer?

The answer to these questions may be hard to determine but a well-defined blogging policy at the company can at least provide a head start on the answers.  If your company does not have one, its time to implement a simple straightforward one.  Blogging (or even microblogging) is not going anywhere.

So what should a policy state? It depends on the company. Financial services industry companies will have particular worries with insider trading rules, etc. A small retail store will have different concerns.  A technology company still other concerns.  But the framework can start (but not end) with the following. 

1. Employees can be instructed that they should not comment or use any confidential information about the company or discuss internal matters.  (Whether the employee should be allowed to identify the employer is a business decision for the company.) 
   
2. Employees should be told that blogs should be done during non-working  hours and not using Company resources, unless authorized by the company.
3. Employees should be told that the blog should have appropriate disclaimers that indicate that all views on the blog are those of the individual and have not been reviewed or approved by the Bank.
4. Employees should be told that the blog should not imply sponsorship, endorsement or support by the company, nor should the blog use any logos or trademarks of the company.
5. Employees should be instructed that the blogs should not be libelous or defamatory, and that the blogs should avoid being written in a way in which it could be construed as harassing or discriminatory on the basis of a protected category. 
   

My colleague, Charles Wilson, had another great piece of wisdom that shows that a policy is but one aspect of an overall approach for a company :

Make sure to establish an open conduit for discussion regarding wages, discrimination and sexual harassment. Forcing your employees to air your company's dirty laundry on the Internet is a bad idea especially when an equally user-friendly channel is available that won't have the whole world watching.

In short, a company should set a policy and create an atmosphere that gives employees the proper context to using blogs.  Without such parameters, employees are left in no man's land, left to wonder if what they are doing is acceptable or not. 

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