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

It's that time of year in Connecticut's short legislative season when legislative proposals come fast and furious but only a few will make the cut.  One of the mechanisms used to separate out the contenders from the pretenders is the committee hearing process.  It is a process that allows proponents and opponents to have their say. 

At a hearing at the legislature today, the Labor & Public Employees Committee is scheduled to take up several bills.  They are: 

1. S.B. No. 169 -- AN ACT REQUIRING EMPLOYERS TO CITE A REASON FOR TERMINATION OF THEIR EMPLOYEES.
2. S.B. No. 239 AN ACT CONCERNING THE CONTINUATION OF DAY CARE SUBSIDIES TO UNEMPLOYED WORKERS.
3. S.B. No. 240 AN ACT CONCERNING THE E-VERIFY PROGRAM.
4. S.B. No. 241 AN ACT CONCERNING THE DEPARTMENT OF ADMINISTRATIVE SERVICES AND PREQUALIFICATION AND EVALUATION OF CONTRACTORS.
5. S.B. No. 242 AN ACT CONCERNING THE RETENTION OF JOBS IN CONNECTICUT
6. S.B. No. 243 AN ACT CONCERNING UNEMPLOYMENT BENEFITS FOR THOSE PERSONS WHO BECOME DISABLED WHILE UNEMPLOYED.
7. S.B. No. 261 AN ACT CONCERNING THE CONNECTICUT JOB CORPS TASK FORCE.
8. H.B. No. 5058 AN ACT CONCERNING THE RIGHT TO ORGANIZE FOR CERTAIN STATE EMPLOYEES.
9. H.B. No. 5195 AN ACT CONCERNING THE REHIRING OF RETIRED STATE EMPLOYEES
10.  H.B. No. 5203 AN ACT CONCERNING STATE SERVICE RETIREMENT CREDIT AND TEACHERS' RETIREMENT CREDIT
11. H.B. No. 5206 AN ACT PROVIDING AN INDIVIDUAL THE RIGHT TO BRING A DISCRIMINATORY PRACTICE ACTION IN SUPERIOR COURT RATHER THAN THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.
12. H.B. No. 5284 AN ACT CONCERNING DOMESTIC VIOLENCE VICTIMS AND DISCRIMINATORY PRACTICES.
13. H.B. No. 5285 AN ACT CONCERNING STATE EMPLOYEES AND VIOLENCE AND BULLYING IN THE WORKPLACE.
14. H.B. No. 5299 AN ACT CONCERNING THE STREAMLINING OF THE UNEMPLOYMENT COMPENSATION APPEALS PROCESS.

Several, such as the bullying in the workplace proposal have been brought up before but with little enthusiasm.

As discussed last month, however, the proposal to circumvent the CHRO process merits the closest look because it would radically change the way discrimination cases are handled.  Employers in particular need to keep close tabs on this because it would change the statute of limitations on such claims to a much broader standard.  The CHRO has indicated that it opposes the measure as it is drafted. 

The hearing is scheduled to begin at 2 p.m. at the Legislative Office Building, Room 1E. The hearings are open to the public and amazingly enough, if you'd like to speak on any proposal, you can simply sign your name up on a list there.

Another hearing is scheduled for this Thursday.  You can view the agenda here.

 

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Over the weekend, Jon Lender of the Hartford Courant reported on the "complicated" ethics case of former UConn Health Center medical technologist Priscilla Dickman.  At issue: Whether state ethics laws were violated by "using state equipment, resources and time in furtherance of her private jewelry and travel consulting businesses."

A public hearing over the "ethics" side of her case starts Friday, according to the Courant: 

A reading of the voluminous case file at the Office of State Ethics reveals that it's not just a simple question of whether Dickman's state e-mail records contained personal messages relating to jewelry purchases (which they did), but a battle involving broader issues, such as Dickman's claim that many others did the same things that she's now facing charges over.

She has a pending federal lawsuit against UConn Health Center officials, claiming they harassed and failed to accommodate her over physical disabilities, including a back injury and fibromyalgia. She also has named the ethics agency's enforcement chief and investigator as defendants, saying they are selectively prosecuting her on the non-criminal ethics charges.

"I utilized my computer for non-lab use less than any part-time, full-time employee, as well as supervisor employees," Dickman said in a sworn deposition conducted in May by ethics officials.

The article goes on to provide additional details about the ethics case as well as an unrelated arrest of the employee on forgery charges.  (She is awaiting trial on that aspect.)  

But what the article doesn't delve into is the federal lawsuit. What is that case about? According to the operative Complaint (download here): "Ms. Priscilla Dickman was retaliated against after she exercised her rights under the First Amendment to the United States Constitution, she was discriminated against in violation of the Americans with Disabilities Act,was denied the equal protection of the law, and was subjected to the torts of malicious prosecution, intentional and negligent infliction of emotional distress, abuse of process and defamation." 

The Health Center and the individual defendants have denied most of the factual allegations in the complaint and the legal issues as well, according to an answer which was filed earlier this summer (download here). 

Complicated indeed.

For employers, this case is an example of how employment cases that may seem simple and straightforward at first can turn into costly and time-consuming proceedings. No matter how it turns out, each side will have devoted a substantial amount of resources into this case.  

Thus, before employers make a decision on whether to terminate an employee - always consider the costs that such a decision may have on your business down the road.

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Within a 702 page state budget, you should always expect surprises. 

This year's budget -- passed by the Connecticut General Assembly earlier this week on essentially a party-line vote -- has a few surprises including a provision that establishes a new independent Office Of Administrative Hearings. 

The OAH will be housed in the Commission on Human Rights & Opportunities for administrative purposes, and will include several agencies, including CHRO, the Department of Children and Families, the Department of Transportation, the Department of Motor Vehicles, and Firearms Permit Examiners, according to analysis prepared by the state government.  .

The General Assembly's Office of Fiscal Analysis has provided a brief summary of the provision in it's "Budget Highlights":

The budget results in a net savings of $629,969 in FY 10 and FY 11 through the creation of the Office of Administrative Hearings within the Commission on Human Rights and Opportunities. The agencies that will be included in this centralized hearing office are: CHRO (1 position), Department of Children and Families (3 positions), Department of Transportation (2 positions), Department of Motor Vehicles (11 part-time positions paid through a per diem), and the Firearms Permit Examiners (1 position). The annualized funds that are transferred to CHRO for these positions are $1,031,733 in FY 10 and $1,107,879 in FY 11.

So, what are the additional details? Well, there aren't any. At least that are easy to find in the budget (which you download here).  There is an appropriations line for the CHRO on line 350 or so of the document, but that appears to be it. A search for  "office of administrative hearings" (and some other key terms) reveals no explicit reference to this action in the text of the bill or the legislative analysis.

Currently, there is a detailed administrative scheme at the CHRO where all complaints that have passed a "reasonable cause" standard are sent to human rights referees for a determination on the merits. Indeed, the law called for the appointment of seven human rights referees on three year terms.  So what happens to those provisions?

Answers to this and other questions are unknown right now. But one thing is for certain, we're likely to see some changes coming soon to the state agency responsible for oversight of the state's anti-discrimination laws. For employers, stay tuned.

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The Connecticut Labor & Public Employees Committee is now scheduled to hold a hearing on various labor bills of relevance and importance to employers in Connecticut. Some are re-hashes of bills raised last year, but others, including amendments to the state's FMLA laws are new.  The hearing is scheduled for February 5, at 2 p.m. at the Legislative Office Building, Room 2-E.

Here are some of the bills scheduled to be discussed (the full list is available here):

• Raised S.B. 710 is a bill that makes some significant changes to the state FMLA law. The changes -- at least most of them -- are not as dramatic as they would first seem; if passed, it would make Connecticut's FMLA more in line with the federal FMLA.  However, given the mess that now exists between CTFMLA and FMLA, it doesn't go far enough in ensuring a bit more consistency between both laws. But, with a bit of optimism, perhaps these differences -- which are outlined here -- can be fleshed out further at the public hearing.
• Raised H.B. 6188 brings workplace bullying -- the subject of a hearing and consideration last year -- back to the forefront. But this time, the bill is a bit more narrow and designed only to be applied to state workers.  Nevertheless, it'll be interesting to see if it goes very far again this year.
• Raised S.B. 715 would require employers to provide a reason for terminating their employees.  It would also require employers to keep these termination notices for ten years.  It'll be interesting to see if this bill goes anywhere.  Conceptually, it appears this bill could alter the at-will employment rule in Connecticut, which allows employers and employees to end an employment relationship for any reason or for no reason at all.  After all, if employers need to provide a reason, doesn't that mean that the employees are not "at-will"?
• Raised H.B. 6187 is this year's version of the paid sick leave bill.  It would require employers of 50 or more employees  to provide employees with six or more paid sick leave days.  

 

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The General Assembly's Labor & Public Employee Hearing on various labor bills went forward as scheduled on Tuesday.  Among the topics --  the workplace bullying bill that I first reported on on Monday.

Senate Bill 60 would create a private cause of action for workplace bullying. However, even if the bill passes the labor committee, it would still need to pass muster with the judiciary committee, according to state Senator Edith Prague.

The Hartford Courant had a report in Wednesday's editions:

The bill, which has the support of committee chair state Sen. Edith Prague, D-Columbia, is actually a revised version of a similar bill that failed to reach a full vote of the assembly last year because of concerns about how it might affect businesses. In particular, opponents worried that the bill, which would allow workplace bullying victims to sue their tormentors, could expose employers to potential damages even if they had consistently tried to create a safe environment for workers.

The new legislation aims to protect employers who have acted in good faith by making them exempt from liability if they can show they took steps to prevent bullying behavior on the part of individual employees or supervisors.

Last week, The Word on Employment Law discussed the possibility that these types of bills were being introduced across the United States.  Earlier this month, Ohio Employer's Law Blog touched the subject as well.  But for a more in-depth look at the subject, the ABA Journal did a nice piece earlier this month. The article quotes from a Tennessee case that perhaps touches on the problem with workplace bullying laws and perhaps over-legislating the workplace. 

The fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive, does not violate civil rights statutes...

It'll be interesting to see what happens with this bill in the upcoming months. And for the record, i don't think hiring bodyguards for the workplace, as the movie poster suggests, is a good idea.  Stay tuned.

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As I posted yesterday, the Connecticut General Assembly is back in session. The Labor & Public Employees Committee is busy holding hearings this week on various bills now pending before the General Assembly.

One batch of bills is up for consideration this afternoon. A second batch is up for a hearing this Thursday at 2:30 p.m.  The February 28th Hearing agenda can be found here.  The hearing is at 2:30 in Room 2D of the Legislative Office Building.  The main topics of the February 28th hearing  purport to be public employees and unemployment compensation.

Among the notable bills being considered:

• Senate Bill 217 (Employers with 25+ employees would be required to provide up to 52 hours of paid sick leave to employees);
• Senate Bill 38 (which would provide paid vacation time, sick leave and personal leave for Connecticut State's attorneys);
• Senate Bill 56 (which would create a task force to address misclassification of workers such as the distinctions between exempt/non-exempt or employee/independent contractor).

For employers, Senate Bill 217 is the one to watch.  Proposals for paid sick leave have been making the rounds in various states with only modest success thus far.  It'll be interesting to see how far this bill actually gets this year.

We'll look at some of these bills more in-depth over the upcoming weeks and months as debate on the bills begins.  But given the General Assembly is in a short session, it's still an open question as to what will actually get passed this year.

I should also note that other committees also consider bills that look at the employer/employee relationship. For example, the Judiciary Committee has a bill (Senate Bill 328) that would increase jury duty pay and require employers to be more involved in the system.  As significant developments arise, I will try to keep tabs on them throughout the legislative session.

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With the Connecticut General Assembly back in session this month for its short session, the Labor & Public Employees Committee has scheduled two hearings this week -- February 26th at 2 p.m. and February 28th at 2:30 p.m. -- to consider a variety of bills now being proposed.  The agendas for each can be found here and here. 

The February 26th Hearing overall, will be hearing bills related to minimum wage, the Department of Labor, unemployment compensation and prevailing wages.  Among the more notable of the bills being discussed is Senate Bill 216 which would fix a law that expired last fall that allows 15-year-olds to work in grocery stores as baggers, cashiers and shelf stockers. As I reported last fall, lawmakers simply forgot to renew it.  The bill would also grant immunity to employers who kept those 15-year-olds employed from last fall until present because of the legislative slipup.

Other notable bills being considered:

• House Bill 5105 (which would increase minimum wage to $8.00 per hour effective January 1, 2009);
• Senate Bill 60 (which would create a new private cause of action for bullying in the workplace);
• House Bill  5113 (which would regulate "professional service organizations" , or situations where there is a "coemployment relationship in which all or a majority of the employees providing services to a client or to a division or work unit of a client are covered employee");
• House Bill 5114 (which would allow employers to pay its employees via a debit card, instead of a check).

The sleeper bill of these, in my view, is House Bill 5114.  This would be a huge benefit to the thousands of workers who do not have their own checking account.  Many of these people pay large check cashing fees.  The debit card might allow these employees to use the card directly like a VISA or Mastercard.  Employers are allowed to use these for items such as Health Savings Accounts, so why not paychecks (so long as it remains the choice of the employee)?

I should also note that Senate Bill 216 should be a no-brainer as well.  Having sunset provisions, like the one in the prior statute (Conn. Gen. Stat. Sec. 31-23) are of no use, if no one at the General Assembly keeps track of them. 

The February 26th Hearing begins at 2 p.m. in Room 2D of the Legislative Office Building and is open to the public.

I'll summarize the February 28th Hearing in an upcoming post. 

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The hearing into Foxwoods' objections to the union election last fall ended yesterday with both sides claiming that they will ultimately prevail.  Briefs for both parties are due by February 28th and the judge indicated that he expects to issue a decision no later than March 15th.

The Day wraps up the details from the last day of the hearing here.  The Day reported that Judge indicated that he would have handled the ballots differently; whether this is going to be enough to overturn the election is a different question -- one that we'll have to wait to the judge's final decision for an answer.

The tribe has questioned why the ballots were not printed in multiple languages, why an election notice was only printed in one Chinese dialect and also contends that UAW representatives harassed and intimidated eligible voters before the election. ...

The majority of documents entered into evidence throughout the hearing dealt with the issue of language and to what extent Asian dealers, specifically those who speak Chinese, can speak, read and comprehend English.

[The Judge], as an aside at the beginning of the hearing, said that if it were his decision, he would have printed the ballots in Chinese.

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The NLRB's hearing into Foxwoods' objections to the union election continues this week. The latest issue to resurface is one that has surfaced before -- tribal sovereignty.  As I've said previously, I believe this is the type of "big picture" issue that may ultimately take this case up to the U.S. Supreme Court. 

Because the case may ultimately end up in a higher court, I am certain that both sides are trying to lay the groundwork for such an appeal. For the tribe, that means raising the issue thoroughly and establishing a transcript and record that can be used later on. 

Reports of the hearing yesterday illustrate that this strategy was front and center is yesterday's hearing, with seemingly trivial issues over a subpoena becoming major issues. 

According to The Day (continuing its thorough coverage of the hearing):

Monday's arguments in the hearing, in which Foxwoods is disputing the results of a November vote by table-games dealers to unionize with the UAW, centered on whether the tribe's police department could or should respond to a National Labor Relations Board-issued subpoena.

Last week, a subpoena was served to the police department on behalf of the attorneys representing the UAW seeking a police report that was filed by a dealer at Foxwoods. ...

Elizabeth Conway, an attorney for the tribe, argued that the department was not subject to comply with the subpoena because it is “separate and distinct from the gaming enterprise.” The NLRB previously ruled that it has jurisdiction over the gaming enterprise.

...
[Raymond P. Green, an administrative law judge] asked why the police department doesn't just waive sovereign immunity and release the document.

Green said that without the document, it could be detrimental to the case, in that, he would discredit the witness' testimony. If the tribe's attorneys could produce the document, they should.

“The subpoena is almost a red herring,” Green said.

He continued by saying the tribe's attorneys used the witness as a sword, but when asked to back up her claims with the report, the tribe then held up a shield, using the sovereign immunity claim.

“There's no legitimate reason for it being held secret,” he said.

The judge is expected to rule on the issue in the next day or two. Meanwhile, the hearing continued with the Tribe resting its case and the union putting on several witnesses.  The hearing continues today.

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The hearing by the NLRB into objections raised by Foxwoods resumed Wednesday with new details about alleged harassment experienced by dealers in the course of the election last fall.  (For background on the objections and the elections, click here.) 

As usual, The Day is quick with the details this morning.  According to the report, one employee testified that after telling co-workers she would be voting "no" in the upcoming election, other dealers harassed her:

On the floor, one blackjack dealer said, “If you were a man I'd kick your (expletive).”

Another dealer told her she was a “backstabber” and was told, “You'll get what you deserve.”

Another claim that has not surfaced in much detail before (other than in the Tribe's opening statement) is the claim that there may have been improper campaigning going on.  The Day reports:

Many of the dealers, both men and women, testified that unidentified individuals were polling people in the restroom across from the Sunset Ballroom, where the election was held on Nov. 24.

The individuals, according to several witnesses, were holding a piece of paper and either a pen or pencil. Because some of the dealers were wearing their name tags, they believed the unidentified individuals were recording their name along with their vote.

They presumed the individuals were writing down names of people who did not support the union.

The Tribe is expected to rest their case sometime today at which point the UAW will have an opportunity to call their own witness to refute the testimony presented.  Obviously, as lawyers are apt to say, there's often two (or three or four) sides to every story so expect to hear some balance to these claims over the next few day. 

For a better idea on what the tribe is claiming in the objections as a whole, I'd also suggest reviewing the Tribe's opening statement available here. 

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NLRB Hearings are best left to those who have lots of patience and time, two things I'm missing this week. Thus, unless there are major developments that occur, I'll only briefly recap where things stand, on occasion, on the ongoing Foxwoods/UAW saga.

• Yesterday, the NLRB (also called "The Board") denied Foxwoods' Request for Review, which was discussed here.  It did so with little comment other than to note that the request "raises no substantial issues warranting review."  UAW indicated that it was a "major victory", according to The Day, and yet, given prior Board decisions on the subject, the result is not surprising.  As I indicated previously, the Tribe is likely not focusing on the Board, but establishing a record for an appeal to the Circuit Courts and perhaps the U.S. Supreme Court someday.
  
  
• The Hearing has continued with the Tribe making a little -- but not much -- progress in its argument that the election ballots should have been printed in two Chinese dialects.  The Day has a thorough report on Day 2 with an update on the goings on during Day 3.  Apparently, the judge had a few reservations about the ballots used.

At one point, after the third dealer testified, the judge presiding over the hearing, Raymond P. Green said a lot of the confusion could have been avoided if the ballots were printed in multiple languages.

“If it was me, I would have translated the ballot,” Green said, but added that more evidence is needed to overturn the election.

• A decision on the objections that the hearing is focusing on will likely come down within the next few weeks -- though it could be longer given the scope of the testimony.

UPDATE: The Day, has a more thorough report of Day 3 of the hearing available here now.  The attorneys representing the regional NLRB challenged the Tribe's arguments a bit more.

William O'Conner, an attorney representing the regional NLRB, said no written complaints from any employees about the lack of a multilingual ballot were provided to the board, despite a subpoena requesting such documents.

There was “not one iota of evidence” that any one was affected or disturbed by the ballot, O'Conner said.

Richard Hankins, an attorney for the tribe, responded after the hearing concluded for the day.

“That's grandstanding by Mr. O'Conner,” Hankins said. “Because he's trying to cover for the fact that the region didn't do its job.”

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Readers of the blog will no doubt know that the battle for unionization at Foxwoods Resort Casino  is one of the most significant labor issues in Connecticut in many years.  A hearing on the tribe's objections to the election of UAW is scheduled to begin on Tuesday, Januay 15th, which I've discussed before.

In advance of that hearing, The Day (which has been on top of the election throughout) published a very interesting column today by Timothy "Quietbear" Walker entitled Work With Tribe, Avoid Turf War.  

Walker, a citizen of the Mashantucket Pequot Tribal Nation, shifts the discussion from the objections to the election -- which contests the way the election was run -- to larger issues of tribal sovereignty, which it has raised before to no avail so far.  As Walker notes, "the battle is over the NLRB reversing 30 years of federal policy because of the actions of one small tribal group in California."
 
Walker argues that the NLRB's recent decision to exercise jurisdiction over tribal enterprises in some situations (including a tribal casino in California) is unfair and flawed. He argues that Tribes have the legal right to govern labor relations on tribal lands:  "Each tribal nation has the inherent authority to pass its own laws, tax its citizens, and determine the structure and operation of its government."

In doing so, he points to statement which he says "the federal government acknowledges 'the sovereign status of federally recognized Indian tribes as domestic dependent nations'".  What is this document? A June 1, 1995 Memorandum on Indian Soveriegnty by the U.S. Attorney General, which can be found here.  Its worth reading to understand that the "tribal sovereignty" is among the most wide-ranging and important rules for federally-recognized Indian tribes.

Walker's column argues that public education does a poor job of explaining this and argues that  many American were probably not aware that Native Americans were still around until the "media buzz on Indian Gaming".  He thus suggests that "15 minutes of research on the Internet will provide anyone interested with a simple understanding of the major issues being debated."  With the advent of Google, such information is now at your fingertips.

There are also two museums that are, frankly, worth visiting as well to get a better understanding.  (My law school did a good job explaining it, but its a little more expensive.) In Connecticut, the Mashantucket Pequot Museum and Research Center is a sight to see. 

And In Washington, D.C., the National Museum of the American Indian has tons of information -- much of it from a different perspective than most have probably been taught.  I had the opportunity to visit it last month and would highly recommend adding it to your itenerary on your next visit. 

(Hat Tip to Workplace Horizons Blog, which covered this today; the lawfirm behind the blog, Kilpatrick Stockton, has been representing Foxwoods in the UAW/Foxwoods dispute.)

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Last week, while many (including myself) were vacationing, the NLRB set a date for a hearing on the objections raised by Foxwoods. I last updated the status in this post.  You can find all the posts about the election here.   

As to the hearing, The Day reports,

A recent decision by the NLRB found that Foxwoods' claims that the board did not have jurisdiction over the casino and that the ballot failed to list the union's full name were without merit and were overruled.

But 10 of the 12 objections Foxwoods filed regarding the election remain unresolved, so on Jan. 15 the NLRB will hear testimony from both the United Auto Workers union, which petitioned for the election and right to represent the casino's roughly 3,000 dealers, and the Mashantucket Pequot Tribal Nation, which owns Foxwoods.

The hearing will focus on the conduct of UAW representatives leading up to the vote, including what Foxwoods claims was the harassment and intimidation of eligible voters who did not support unionization. The NLRB also will examine whether ballots should have been multilingual.

If the NLRB affirms the tribe's allegation of misconduct, it would force a new election.

Overturning the results of the election are never easy but without evaluating the evidence presented by Foxwoods, it is impossible to evaluate Foxwoods' likelihood of success.  Perhaps the UAW engaged in some egregious behavior before the election; if so, the results of the election would be set aside, perhaps even on just one valid objection (of the 10 remaining). 

But that's still a long way off. There will be a hearing, followed by a hearing officer decision and ultimately, a likely appeal to the entire Board.  That process could still take many months (or even over a year given the turmoil at the NLRB itself).  As stated in previous posts, this battle will continue for some time. 

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