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

Wednesday marked the sixth-year anniversary for the Jottings by an Employer's Lawyer blog, written by Michael Fox.  With over 1800 posts and lots of readers (and still on an outmoded platform as Michael acknowledges), it remains a premier site for a discussion of labor & employment law issues. 

In fact, well before I started to write this blog, I looked to Michael's blog and other blogs for inspiration.

So let me add my congratulations to Michael on his anniversary and my thanks to him for helping to set the foundation for the many employment law blogs out there.

Michael continues his contributions today with a terrific list up of nearly 50 labor & employment law blogs along with references to our earlier posts.  (It's obviously a good list when the Connecticut Employment Law Blog is referenced.) 

If you're looking for some new perspectives on employment law, it's worth checking out some of these sites.  Each provides something new and unique to the field.

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Since my original post on the subject of Executive Order 12989 yesterday (and the sweeping effects it will have for all federal contractors), others have also added their comments to the subject. Among some of the notable posts:

The brand-new Florida Employment Law Blog (run by my former colleague Richard Tuschman -- congrats, Richard!) predicts negative implications for employers -- particularly those in Florida:

I find the government’s statement [that this will bring stability] suspicious because the government, although it has failed time and time again, has tried on repeated occasions to push legislation or regulations that would impose a mandatory electronic employment verification program on all US employers. Further, the Order is presented as being designed to promote "economy and efficiency" along with "stability and dependability," but the reality is that there is nothing economic, efficient, stable or dependable about skilled and unskilled jobs that cannot be filled because there are no enough American workers readily available to work.
...
The government in its zeal security and enforcement is failing to consider the true economic impact these measures will have on employers and consumers. Enforcing this type of order in the absence of immigration reform which could provide employers with helpful avenues could doom - against contrary government opinion - many efficient employers. I am not sure how the government is going to enforce this Order, but for us in Florida enforcing these measures could have a long lasting negative effect.

The Workplace Prof blog predicts that this Executive Order will be short-lived by noting that the Government Accountability Office (GAO) yesterday released the following reports, testimony, and correspondence on employment verification issues surrounding the immigration debate: Employment Verification: Challenges Exist in Implementing a Mandatory Electronic Employment Verification System. GAO-08-895T, June 10.

Suffice to say that this is far from a settled issue. Government contractors should continue to monitor this subject throughout the summer for further development.

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Most people think that changes to the laws or the way companies conduct business can only happen through the legislative changes.  But an Executive Order effective this week reminds us of the power of Executive Branch.   

Effective immediately, all federal contractors must now agree to use E-Verify, an Internet-based system operated by U.S. government, to electronically verify the employment eligibility of new employees.  This appears to apply to all contracts on a going-forward basis, not a look-back provision.  The White House's press release is available here along with the text changes. 

The press release issued by the Department of Homeland Security has the particulars on Executive Order 12989:

The Department of Homeland Security today designated E-Verify, operated by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration, as the electronic employment eligibility verification system that all federal contractors must use as required by Executive Order 12989, as amended. E-Verify is a free Internet-based system that allows enrolled employers to confirm the legal status of new hires within seconds.

"A large part of our success in enforcing the nation's immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal," said Homeland Security Secretary Michael Chertoff. "E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires."

President George W. Bush has amended Executive Order 12989 in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system – designated by the Secretary of Homeland Security – to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract

According to the Delaware Employment Law Blog, "This requirement apparently extends to all newly hired employees, not just employees hired to work on the government contract. In addition, the Executive Order requires the contractor to use an electronic verification system to verify the employment eligibility of “all persons assigned by the contractor to perform work in the United States.”"

Further details on the changes can be found at the Pennsylvania Labor & Employment Law Blog.

And major newspapers have also chimed in, including an editorial in today's Los Angeles Times which notes the creeping re-definition of what's "reasonable":

On Monday, the Department of Homeland Security announced that it will require federal contractors to ensure the immigration status of employees through its E-Verify system. It's a reasonable step -- and that may be the problem. As immigration hawks have gone from triumph to triumph, the rest of us have had to adjust our views of what reasonable behavior is. 

For employment, it's just one more detail that must be followed in an increasingly complicated mess of regulations, laws and now executive orders.

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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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With just a few days to go, the list of pending bills in both the state Senate and House continues to grow. 

But it is worth updating readers on one uncontroversial employment law bill that passed the Senate over a month ago that remains pending. 

Specifically, Senate Bill 216 would renew a labor law that permitted 15-year-olds to work in grocery stores as baggers, shelf stockers and cashiers.  As readers will recall, this law expired last fall "apparently because lawmakers forgot to renew it."

The law has been on the books for 20 years, but had an automatic sunset provision in it that lawmakers overlooked when the session ended last year.

The new bill, which would also grant amnesty to those employers who have continued to employ 15-year-olds during the last six months or so, passed the Senate last month on the consent calendar and looked to have swift passage in the House. 

And perhaps it will pass in the closing days. But given the full agenda of the House, it would be a shame if the General Assembly overlooked this important law again.  House members would be wise to make sure this bill is put on the consent calendar again in the closing days.  It's passage will ensure valuable jobs for teenagers are open for years to come.

UPDATE 12 p.m.: The bill appears on the "Go List" for today, which is available here.  There are two amendments that may potentially be raised today regarding home-schooled teens and apprenticeships. While both topics are interesting, the bill ought to be passed in its original form; otherwise, it will need to be returned to the Senate for further consideration.

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Because my employment law trial starts this week in state court, I've arranged for a series of (what I think are) great guest bloggers to talk about what's new and noteworthy in employment law. It's a nice opportunity for readers of the blog to hear a different perspective while at the same time, keeping all of you updated on interesting developments. Regular blog posting will resume in 2-3 weeks when my trial concludes. 

Today, Jon introduces us to the Healthy Families Act legislation that has been introduced in Ohio and elsewhere around the county....

Legislatures around the country are beginning to seriously consider paid sick leave laws. Just recently, the D.C. legislature passed such a law, and Ohio will most likely have its law on the ballot in November for voters to decide.

Not to be outdone, Congress is also considering such a law, the Healthy Families Act. The HFA will grant all employees working for companies with 15 or more employees 7 paid days off per year for (1) their own physical or mental illness, injury or medical condition, (2) their own professional medical diagnosis or care, or preventive medical care, and (3) the same for an employee's child, parent, or spouse. Employees who work less than 30 hours per week or 1,500 total hours per year will receive a pro rated amount of paid time off.

Employers would have discretion to determine how employees accrue this paid leave, as long as it is at least quarterly. Employers cannot prohibit the carry over of 7 or less days per year.

The HFA will also allow for certification by a health care professional when an employee is out for more than 3 consecutive work days, an anti-retaliation provision, and a private right of action for aggrieved employees.

It also will forbid employers from counting the use of paid sick leave under a no-fault attendance policy. It is unclear if this prohibition applies only to paid leave under this statute, or any paid leave granted by an employer.

Section 11(a) of the HFA is what I believe to be the saving grace for most employers, and why I think the HFA will not result in monumental practical changes for the vast majority of companies that already provide paid time off if it passes.

That section provides: "Nothing in this Act shall be construed to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan that provides greater paid sick leave rights to employees or individuals than the rights established under this Act."

As I read that section, if a company has a leave policy that already provides for at least 7 paid sick days, it will not have to grant any additional paid leave.

The limited practical effect of this legislation notwithstanding, the cons of the HFA far outweigh its pros.

First and foremost, that last thing that businesses want is another statute under which employees will be able to sue, especially when it provides for double damages and attorneys fees.

Also take a look at Section 7(a)(1)(B):

It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this Act, including ... using the taking of sick leave under this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action.

 "Negative factor" is far too lenient of a standard, and very will could hamstring employers from taking legitimate action against any employee who is out for even a day with an illness.

Congress and state legislatures around the country should take a long, hard look at these serious deficiencies in the HFA, and should not merely knee-jerk vote in its favor because paid time off is viewed by most employees (and most of us are employees) as a "good thing."

If this statute becomes law in its current form, it will take a herculean effort by the Department of Labor to draft clear and comprehensive rules and regulations that make this law workable for businesses, instead of leaving myriad unanswered questions for the courts to sort out at the expense of those companies who will have to defend their individual interpretations.

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On this Thanksgiving Day, let's be honest and straightforward for a moment -- lawyers can be awfully defensive about the type of work we do. Indeed, some lawyers and judges are offended by the notion of "lawyer jokes".  I can vividly recall a speech given by then-Connecticut Supreme Court Justice William Sullivan at an Annual Meeting of the Connecticut Bar Association six years ago when he told the audience that lawyers need to put an end to lawyer jokes.

We need to take pride not only in the profession, but in all its members. We need to take an active role in helping and encouraging our newest attorneys. We need to consciously reduce the level of antagonism that legal arguments incorporate. We need to enhance, not detract from the profession as a whole. We need to speak up - civilly - when those outside the profession unfairly attack and criticize. We need to make the public aware that the art of negotiation, not confrontation, is central to us . . . That mediation often best reflects the wisdom that lawyers have learned through experience. We need to stop being agreeable to the telling of those insufferable lawyer jokes.

If that's the case, what should we make out of this sing-a-long song by Mark Toth, Chief Legal Officer of Manpower?

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Some commentators have argued that the federal courts are increasingly hostile to employees who bring employment discrimination claims in federal court. One study, for example, suggested that plaintiffs simply have too many obstacles to overcome in federal court.

A new study on summary judgment practices by the Federal Judicial Center suggests that such a perception may be off-center.  (The FJC is the education and research agency of the federal courts.)

Paul Mollica of Daily Developments in EEO Law reports on the study:

[The study shows] that 35% of employment discrimination cases culminate in a summary judgment motion. [The study also] reports the bottom-line figure that 9 to 14% of the employment discrimination cases (depending on the district studied) were actually terminated on summary judgment. (One way to square the numbers is that in many instances, the defendant succeeds on dismissing some counts but not others; multiple counts often seek the same relief.)....

 [I]t appears that far more federal employment discrimination cases are ending on favorable terms (either settlement or avoiding summary judgment) [to Plaintiffs] than the anecdotal evidence first suggests....

What does this mean? It means that there are a lot fewer cases getting dismissed at the summary judgment stage (i.e. before trial) then many believed. 

For in-house lawyers advising their clients about summary judgment, the study should serve as a cautionary tale that an early exit in a case before trial may not be realistic.  Summary judgment on the papers of a case remains difficult to achieve in federal court (and even more difficult in Connecticut state court).  This translates into higher litigation costs and the realization that, absent a settlement, an employment case could go to a trial (further increasing the costs).  

(Hat Tip: Workplace Prof)

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I have relocated my practice to Pullman & Comley LLC.

 My primary office is in Hartford, Connecticut but I do business all across the state including the Stamford, Bridgeport, and New Haven areas.  My practice includes representing and counseling employers on labor and employment law through practical considerations and application of the law.

This blog discusses new and noteworthy developments in employment law in Connecticut.   It will be a place where those items are discussed, debated and explored. Your involvement in the blog through suggestions, comments, criticisms and praises is crucial to its long-term success.

Litigation experience in federal and state courts:

• Wage and Hour Law
• Employment Discrimination
• Trade Secrets
• Non-compete enforcement
• Other employment-related matters
  

Arguing before:

• Connecticut Appellate Court
• United States District Court - Connecticut
• Connecticut Superior Court
• Second U.S. Circuit Court of Appeals
• Sixth U.S. Circuit Court of Appeals
  

Awards and Recognition:

• Have been included in “Best Lawyers in America” publication for Connecticut since 2005.
• Finalist, Outstanding Young Lawyer of the Year, American Bar Association, 2008
• ABA Young Lawyers’ Division “Star of the Year” in 2007.
• Connecticut Law Tribune “New Leaders of the Law Award” 2003.
  

Volunteer Work:

• The Urban League of Greater Hartford
• Mental Health Association of Connecticut
• Connecticut Middle School Mock Trial Program
• Lawyers for Children America

I am a law graduate of Washington University in St. Louis School of Law where I was honored with the "Order of the Coif".  I received my bachelor's degree from the University of Pennsylvania.  While there, I served as an editor for the award-winning daily newspaper, The Daily Pennsylvanian.

The Connecticut Law Tribune ran this profile recently as well.

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