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

Over the last several days, I've been attending the American Bar Association's Annual Meeting in Chicago as a delegate from Connecticut to its main governing board (you can watch the webcast replay here, featuring a speech by Attorney General Eric Holder). The ABA accomplishes quite a bit and if you've been following my Twitter feed lately, you'll know what I'm talking about.

And while the dog days of summer are clearly upon us, there are a few items to catch up on this week.

• John Phillips asks the question - can a psychogenic illness, like that experienced by 1200 Chinese workers, be covered under the ADA?
• As everyone has been focusing on the Employee Free Choice Act now pending on Congress (still nothing really new to report as of yet), the Department of Labor has issued proposed regulations on other union-related issues. Specifically, earlier this week, the DOL issued a proposal that would require federal contractors to notify employees of their rights under federal labor law. You can find the details at the Washington Employment Law Update. 
• There's been some more movement on the federal legislation regarding the Employment Non-Discrimination Act (ENDA). The latest list of House member who aren't yet committed to the bill is here, as reported by the Workplace Prof blog.   Of course, in Connecticut, we already have laws prohibiting employment discrimination on the basis of sexual orientation.
• Our webinar on social media and its implications for employers is still scheduled for Wednesday, August 12th (and has already exceeded our registration at our last webinar!). It's not too late to sign up. In the meantime, the new Connecticut Business Litigation Blog has an interesting article up about the risks of social networking. I'll try to put some of this into perspective next week.
• Molly DiBianca, of the excellent Delaware Employment Law Blog, has a great list of resources up on flexible work arrangements. It's particularly useful for those concerned about preventing caregiver discrimination. 
• The Prima Facie Law Blog has a great refresher (primer?) on the tax treatment of employment-related judgments and settlements.  It tries to answer the common question of whether certain types of discrimination settlement can be accomplished "tax-free" (the answer is mostly "no"). 

 

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Today is election day and in the pre-dawn hours, I'll be at the polls supporting local politicians.  As this blog has attempted to remain apolitical, I'll follow the New York Times columnist tradition and not endorse any politicians here. I've run a series of posts about election day and you can find them all here.

But if you are still trying to educate yourself on some employment law issues, Michael Fox has a terrific post up with his predictions about what will happen with various legislative proposals.  (It was building off an original post by John Phillips here.) 

Notably, both seem to believe that the Employment Non-Discrimination Act may be among the most likely of employment-law bills to pass first. It won't have that much of an impact on a state like Connecticut that already covers sexual orientation as a protected category for employment law claims.  It seems a likely scenario if the Democrats do not get a filibuster proof majority in the Senate.

Regardless of your politics, I want to close with a personal note about a conversation I had last night with some bright elementary school kids which perhaps can bring some perspective.  

They asked me, "Why do you like [Candidate A]?"  After thinking about it for a minute, I responded, "Because I think he has good ideas to help lots of people."

They then asked, "Does [Candidate B] have bad ideas?"  I replied, "No, he wants to help people too. I just think that [Candidate A's] ideas are better. Anything else you want to know?"

Without much pause, they said, "Not really.  Can we just read "Duck for President" tonight and go with you tomorrow to vote?" 

Easiest question to answer all night (and for those who are curious, the book is below -- from the same authors of Click, Clack, Moo which I posted about early this year.) 

It also seems appropriate to close out the very long political season with that note.

Regardless of your political affiliations, get out and vote today.  

 

 

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With the election just two weeks away, employers can start to draw a sharper focus on the national issues at stake in the upcoming Presidential election. That said, much of what will happen will also depend on what happens with various Congressional races.  In other words, even if Senator McCain is elected President, we're still likely to see various issues raised in the next session of Congress.

Michael Moore has a terrific piece this week outlining the various bills that are likely to get debated after the election.  I'll be discussing some of them in upcoming posts (as well as issues relating to Connecticut's races), but Michael's post provides a good roadmap to the bills.

Among them:

Employee Free Choice Act (H.R. 800 and S. 1041)

Summary:  The EFCA amends the NLRA to change the procedures for union certification and first contract negotiation.

Employment Non-Discrimination Act (H.R. 3685/ no Senate Bill)

Summary:  ENDA adds sexual orientation to the protected classes under Title VII for all employers except religious organizations.

 Ledbetter Fair Pay Act (H.R. 2831/ S. 1843)

Summary:  FPA overturns the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co. effectively eliminating the 180 or 300-day statute of limitations for filing a wage-related discrimination claim.

 

Paycheck Fairness Act (H.R. 1338/ S. 766)

Summary:  PFA changes the burden of proof in gender based pay claims requiring the employer to affirmatively demonstrate that any pay differential is not based on sex.

 

RESPECT ACT (H.R. 1644/ S. 969)

Summary:  The so-called Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act would change the NLRA definition of “supervisor” to exclude “working supervisors” who do not spend a majority of their worktime in strictly managerial duties excluding the tradition duties of assigning work and directing the activities of others.

The post also discusses the impact that each bill would have on existing law and the candidates' respective positions. 

(For another take, see The Word on Employment Law's collection of posts on the issues here.)

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The big headlines this week in employment law centered around the passage in the U.S. House of Representatives of the Employment Non-Discrimination Act (ENDA).  Various blogs have written about the law generally and they provide a good foundation for understanding the law in general. In particular:

• The Volokh Conspiracy has summarized the law and added a scholarly approach to analyzing it. 
  
• Workplace Horizons has continued their tracking of the bill and notes that Senator Ted Kennedy plans to introduce a similar piece of legislation in the Senate. 
  
• Workplace Prof notes that a Presidential veto is likely, even though some compromises (such as excluding gender identity) have been made. 
  

Connecticut, however, already has a law that prohibits discrimination based on sexual orientation. So is this a big deal?

The early answer is, probably not.  One significant caveat is that the legislation -- which has already been modified extensively -- is likely to go through another round of compromises at the Senate.  Thus, it is difficult to predict what will end up in the final piece of legislation.  Connecticut recently revised its laws on sexual orientation and civil union earlier this year, as noted in an earlier blog post. 

Assuming the legislation remains the same as printed now, there are several distinctions that would need to be determined under Connecticut law. First, ENDA appears to allow for claims of discrimination based on the perception of a person's sexual orientation. Connecticut has no corresponding provision and thus, ENDA would "trump" the state law and allow such a claim.  The definition of "sexual orientation" also differs under Conn. Gen. Stat. Sec. 46a-81a, with Connecticut defining it as having a "preference" for homosexuality, heterosexuality or bisexuality.

Second, ENDA only applies to employers who have 15 or more employees; Connecticut's law applies to much smaller employers.  Thus, Connecticut law will control here given the broad definition.

Third, ENDA contains an exemption from compliance for religious institutions, copying the protected afforded to those institutions under Title VII.   Connecticut does have an exemption for sexual orientation claims against religious organizations, but it is unclear if courts will interpret this statute differently than ENDA, if passed. 

All told, if passed, ENDA will certainly have some impact on Connecticut laws. However, at this stage, the impact would be minor -- particularly when compared to other states who do not have such laws. 

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A few posts this week caught my eye:

• First, the HR Carnival has a great post this week about various HR issues, including how to train managers better.  And, best yet, you'll find a link back to this blog.  Thanks to the writers of the Carnival for the reference.
  
• Kris Dunn, over at HR Captialist,  has an interesting post about how HR professionals can help their companies keep benefit costs down. As Kris says, "If You Don't Have a Meaningful Answer to this Question From Your CEO, Update Your Resume..."
  
• Evil HR Lady, has an informative post as to how employers can prepare for terminations and how to educate managers about the right ways to do so.
  
• Workplace Horizons has been right on top of the Congress' consideration of ENDA, the Employment Non-Discrimination Act.  Near daily updates about the rumors of various amendments have been going up and its a useful site to keep track of certain pieces of legislation. 
  
• And finally, The Employment Blawg has been posting a series of hypotheticals on different workplace situations including violence, workplace and overtime.  As stated on the blog "Read Trucks and Guns: An Employment Law Fable, Part I (Overtime for Truck Drivers) for the whole story. . . . It ends with an HR manager getting shot by the driver (just hypothetically)."

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