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

2009 will not go down as the most exciting year for employment law. There were a number of "honorable mentions" for items that have had an impact, but nothing -- in my view really stands out.

I suppose for Connecticut, the Ricci v. DeStefano case has to be put up at the top of the list of noteworthy developments. After all, it's rare that a case from the Constitution State gets heard in front of the nation's highest court and even rarer that it is an employment case.

But six months after the case was decided, I still have a hard time seeing any wide-ranging impacts from the decision for private employers.  And frankly, I still think the case only drew the attention it did because of the nomination of Sonia Sotomayor (who was involved in the decision at the Second Circuit stage) to the U.S. Supreme Court.

As for the some other Supreme Court cases, the one that could stand out is Gross v. FBL Financial Service case -- which addresses the burden of proof in age discrimination cases -- have yet to explored fully and may be overturned by legislation in any event.  

I would argue that the biggest development for employment law isn't a case or a new law, but the incorporation and adoption of social media -- both in policy and usage.  It seems like every week or two, I've been asked to give a presentation or comment on an article on the topic.  In fact, a webinar I did earlier this year drew the highest attendance for any of our webinars.

But because social media wasn't developed in 2009 and is really impacting life in so many different ways, I'm taking it out of the running for the biggest employment law story for 2009.

Other potential nominees for important employment law developments are:

• The Lilly Ledbetter Fair Pay Act -- But as I suggested last January, the impact of this new legislation has been limited. 
• The FMLA amended regulations - Again, this had the potential to shake things up, but considering Connecticut has its own set of rules that haven't been amended, all its done is create more headaches for employers. 
• Employee Free Choice Act - This bill -- which would get rid of some secret ballot union elections and institute mandatory arbitration for some initial collective bargaining agreements -- has been on the table for much of 2009. If passed, it could have a large impact on employers in Connecticut and nation-wide. But so far, the votes haven't been there.
• The COBRA subsidy (and extension) - This was more of an administrative burden than anything else and while you could argue with the means that the government used, the intent -- making sure that people did not lose their health insurance -- was certainly laudable.  And with new health care legislation now looking like a reality, we'll see whether revisions to COBRA are further discussed.   
• GINA - The effective date for GINA was mid November 2009 and the government started to release new regulations enforcing GINA (which prohibits genetic discrimination in employmen).  But (yawn) here in Connecticut we've had that type of law for years. No big deal or change.  

(The Delaware Employment Law Blog shares its top 10 list, and the Ohio Employer's Law Blog is doing the same for other issues.) 

What does 2010 hold in store? I'll save that for another day....

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In my presentation last week to the HRA of Greater New Haven (which i discussed yesterday), the hottest topic that people wanted to discuss was LinkedIn Recommendations.

People had several questions:

• Should a company bar its employees from doing such recommendations?
• Should a HR department "police" LinkedIn to ensure compliance?
• What is the risk of allowing employees to post recommendations or receive recommendations?
• And, does anyone actually rely on these recommendations?

This issue may take on some renewed prominence as LinkedIn has begun an aggressive series of steps to grow and expand its business.   

I discussed the issue of LinkedIn recommendations back in July after a article suggested that management-side lawyers were advising clients about the "hidden dangers" about LinkedIn.  At the time, I indicated that there were no reported cases about the use of LinkedIn.  Six months later, that remains the case. (You can even look it up yourself on Google Scholar.)

That does not mean that LinkedIn is without any risk.  Of course there is a possibility of a supervisor giving a recommendation to an employee that is inconsistent with a formal performance evaluation.   But that risk existed before the advent of social networks as well.

Each business will have to evaluate the risk as well but one suggestion that we discussed is that companies could prohibit current supervisors of existing employees from posting any recommendations on LinkedIn. That prevents the risk of inconsistency. Once that supervisor/employee relationship is ended (perhaps a new job for either of them), it seems that the restrictions could be lessened. 

But here's the other truth that we discussed: People aren't paying close attention to these recommendations because there are no controls in place. Nothing prevents friends from writing recommendations for other friends. And the "quid pro quo" recommendation -- I'll recommend you if you recommend me -- are all too common. (This point was raised by the World of Work blog in a great post several months back.) 

In addition, are supervisors of bad employees going to be giving recommendations anyways? Probably not, says Molly DiBianca of the Delaware Employment Law Blog.

So what's the right course of action? 

Well, for specific industries that have restrictions on the use of recommendations (such as financial advisors) the answer will be clear.  For many others though, this issue will remain murky.

But right now, employers frankly have much larger issues that they should be focusing on than regulating LinkedIn recommendations.  So, as an employer, discuss it if you must -- but don't treat it as a major concern for liability exposure because so far, that hasn't been the case.  

 

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"Get Rid of Performance Reviews!" proclaims a UCLA professor in this morning's edition of the Wall Street Journal:

To my way of thinking, a one-side-accountable, boss-administered review is little more than a dysfunctional pretense. It's a negative to corporate performance, an obstacle to straight-talk relationships, and a prime cause of low morale at work. Even the mere knowledge that such an event will take place damages daily communications and teamwork.

The alleged primary purpose of performance reviews is to enlighten subordinates about what they should be doing better or differently. But I see the primary purpose quite differently. I see it as intimidation aimed at preserving the boss's authority and power advantage. Such intimidation is unnecessary, though: The boss has the power with or without the performance review.

But never fear, he has a substitute: Performance previews.

The alternative to one-side-accountable, boss-administered/subordinate-received performance reviews is two-side, reciprocally accountable, performance previews.

And for those who worry that getting rid of performance reviews will make it more difficult to fire someone, he offers this response:

Some of you may also ask if the performance review goes away, how do we prepare the groundwork if we want to fire somebody? For the better, I'd argue: Take away the performance review, and people will find more direct ways of accomplishing that task.

 

It is a lengthy piece and worth reading. But at the end of the day, it strikes me as more high-minded theory than practical guidance.  I'm not dismissing the various 360 approaches to performance reviews or the need to provide continual feedback to employees on performance issues through the year, but eliminating performance reviews won't solve all the problems in the workplace.  Instead, it'll shift them to another source.

And for lawyers trying to defend against employment discrimination claims, getting rid of performance reviews will eliminate some of the last best hope in providing true written documentation of the employee's performance.  Reviews, as they stand now, may not be the greatest (since reviews tend to be watered down) but at least they provide some support.  Eliminating that, and companies will be left to argue employment decisions based on bits and pieces elsewhere -- if they are even written down.

I'm not sure that finding "more direct ways" of firing someone is realistic too.  Many supervisors and managers either are risk-adverse or do not like confrontation.  It is hard to see how eliminating performance reviews will make their tasks any easier when it comes time for discipline or termination.

Before companies get rid of the performance review, the question that ought to be asked is: Is the system we replace it with better?  And if so, how?  If a company can't answer these questions, it may just be shifting its problems from one source to another.

(H/T Workplace Prof Blog)

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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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While the mainstream press has been reporting on the upcoming hearing tomorrow on some of Foxwoods' objections to the election, Foxwoods has also been challenging the Regional Director's decision on December 21, 2007 rejecting the other objections raised by Foxwoods.  Thus, readers should be aware that reporting on the hearing tomorrow is only one front in the battle over unionization at Foxwoods. 

Earlier this month, Foxwoods filed a lengthy "Request for Review" of that December 21st decision, which can be downloaded here. While it repeats some of the same arguments made earlier, when read in conjunction with yesterday's column in The Day, it highlights the strongest argument that the Tribe has -- that tribal sovereignty and Indian law trump the "normal" rules of construction.

For instance, on pages 16-18, it notes that although federal agencies are generally afforded some deference to their rules, that deference should not be afforded when the rule is construed towards Indian tribes.

In line with that canon, the Board is consequently duty bound to interpret the NLRA's jurisdictional reach in a manner which furthers tribal interests.  Here, that inexorably leads to a conclusion that tribes, including [Foxwoods/Mashantucket Pequot Tribal Nation] fall outside the NLRA's scope..."

Foxwoods also argues that the effect of a potential strike on the tribe's ability to provide governmental services was not considered properly by the Regional Director.  Foxwoods' brief attaches multiple exhibits, which can be downloaded here, here and here, including its prior briefs which can give the reader additional insight into the tribal sovereignty argument. 

Notably, the State of Connecticut filed a brief in opposition on Friday, January 11th.  The State has taken a very aggressive approach to this matter and has again challenged the tribe's arguments -- saying they essentially nothing but a retread and dismissing the remaining arguments.   The  State's brief can be downloaded here.   It's also worth reading (its much smaller in scope) to understand the counter to the arguments raised by the Tribe. 

UPDATE: Jeff Hirsch, at the Workplace Prof blog, also has his thoughts on the arguments that are worth taking a look at. 

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A few weeks ago, I covered the basics of personnel files, in response to an article on whether there was a "crisis" in personnel file litigation.  But a few questions remain, so consider this the third part in a trilogy about personnel files.  In other words, once you determine what is and isn't supposed to be in a file, what are the action items for those files? 

Remember, each employer is unique so employers should always check with an attorney about implementation of any rule to ensure compliance with the laws that may apply.  Connecticut's law on personnel file can be found at Conn. Gen. Stat. Sec. 31-128a. 

• Can Employees Review and/or Copy Their Personnel File?
  Yes.
  • Employers must "within a reasonable time after receipt of a written request from an employee, permit such employee to inspect his personnel file....Such inspection shall take place during regular business hours at a location at or reasonably near the employee’s place of employment."
  • An employer is not required to allow such an inspection more than twice in any calendar year.
  • An employee has a right to a copy of his/her personnel file, although the employer may charge a reasonable fee for copying it. If an employer charges a fee for copying, it should do so consistently.
    
• What if the Employee Disagrees with the Information in the Personnel File?
  • The law provides that an employee who disagrees with any information contained in a personnel file may, with the employer’s permission, remove or correct the information. If the employee and employer cannot agree on removal or correction, then the employee can submit a written statement explaining his position and that statement must then become part of the personnel file.   The employer is NOT required to remove any aspect of a personnel file simply because the employee requests it.
    
• How Long Must You Keep Personnel Files?
  • Personnel Files must be kept a minimum of one year following termination.
  • Medical files must be kept for at least three years following termination.
  • Given the confidential nature of information in personnel and medical files, such files should be kept in a secure location (i.e., a locked file cabinet).
  • Beware, however. There may be situations where a personnel file must be kept longer, such as when there is a "litigation hold" on such personnel files. 
    
• What Else Should You Know About Personnel Files?
  • Consider doing an audit of existing personnel files to ensure compliance.  In that review, a company can check for offer letters, can separate out  I-9 forms, etc.
  • Always remember to keep medical and personnel information separate
  • Before producing a personnel file, the employer should review it to ensure its accuracy.
  • Personnel files can be stored electronically; the idea of a "paper file" may be antiquated for some employers.

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