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

Not unexpectedly, an Administrative Law Judge this week overruled Foxwoods' objections to the election of the UAW union as the representative for the table dealers (download ALJ decision here).  The Regional Director will certainly certify the election results.  At that point, Foxwoods is expected to refuse to bargain with the UAW which will set up further appeals.

As I said last fall, the tribe has already telegraphed its next move:

Leaders of the Mashantucket Pequot Tribe, which owns and operates Foxwoods, indicated the issue is probably headed in that direction.

"In light of what is at stake for all of Indian country, we must pursue this and it will require an appeal to the federal courts," said Tribal Chairman Michael J. Thomas in a letter circulated by the tribe.

Because I'm on trial, I'm only able to provide a quick summary of the decision.

Foxwoods had claimed that the ballots to the election should have been written in Chinese. That objection was overruled in a summary as follows:

Based on the totality of the evidence presented by the Employer and the Union, it is my opinion that the Employer has not established that any significant number of Chinese born unit employees had such difficulty with reading and understanding English that the failure to translate the ballot into Chinese could have affected the election. The employees presented by the employer did not represent a random sampling of the Chinese voters. And the evidence failed to convince me that any more than a few, at most, might have had any difficulty in understanding how to mark their ballots. (In a few of the cases, any difficulty they might have had could be attributable to their indifference). The Notices of the Election posted at the facility were in English and traditional Chinese. Both the Company and the Union communicated to the employees in English and Chinese by a wide variety of means. Additionally the Company held a series of meetings urging employees to vote “no” and explaining the election procedure. In some cases, meetings were conducted in English with a Chinese translator available to answer questions. In other cases, meetings were held where instructions about the balloting were given by a Chinese speaker. This was bolstered by mailed DVDs and pamphlets explaining the balloting procedure in various languages including Chinese.

Other objections, such as massed speeches, or intimidation, were also overturned.

As I have noted time and again, readers should not get too excited -- one way or the other -- on these types of decisions.  Foxwoods (and indeed, the UAW) is merely making a record for a likely appeal.  The real battles -- in the federal courts -- are still to come.

For a recap of ALL my prior Foxwoods coverage, click here.

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Sometimes, you come across old laws that are still on the books that make you go, "Hmmmm."  With the Jewish holiday of Yom Kippur coming up this weekend , Conn. Gen. Stat. Sec. 53-303e which purports to address religious discrimination and make it a crime, is one of those laws.  

When I first came across it, I was surprised at the scope of this statute, particularly paragraph (b). 

(a) No employer shall compel any employee engaged in any commercial occupation or in the work of any industrial process to work more than six days in any calendar week. An employee's refusal to work more than six days in any calendar week shall not constitute grounds for his dismissal.
(b) No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee's refusal to work on his Sabbath shall not constitute grounds for his dismissal.

Pretty broad, right?  In fact, while employment lawyers are aware of the protections against religious discrimination in Title VII and the Connecticut's Fair Employment Practices Act, this statute appears to go much further for employers in Connecticut.

Looking for more clues, I found this statute listed not under the general employment laws, but listed in the "Crimes against Public Policy" section.  Strange stuff, indeed. 

But first appearances aren't everything.  It turns out that the most far-reaching of the sections, sec. 53-303e(b) -- which appears to ban employers from requiring employees to work on their designated Sabbath -- was ruled unconstitutional over 20 years ago by, of all courts, the U.S. Supreme Court in the case of Estate of Thorton v. Caldors, 472 U.S. 703.  In that case, the court held that this statute, by providing Sabbath observers with an absolute and unqualified right not to work on their chosen Sabbath, violates the Establishment Clause.

So a few questions arise:

• Why is a law -- that was ruled unconstitutional over 20 years ago -- still on the books? 
• Why is it still listed on the Department of Labor's website as a statute that employers (and employees) need to be aware of, if its been overruled?

Certainly there are employers who will rely on the Connecticut DOL website for information who may unaware that portions of this statute have been overruled. Thus, its a case of "reader beware." 

Notably, for Connecticut employers, the remaining sections have not been overruled and will bear some discussion in a future post.  The ban on working seven days in a row for certain employees is one law that some employers appear to overlook. 

But this law demonstrates that there's always something to learn about the laws that are still on the books. 

Anyone else aware of lurking employment laws still on the books but not enforced or understood?

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