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

A bill to provide mandatory paid sick leave to employees and a bill to provide greater protection to state whistleblowers were among the employment law-related bills that were not voted upon in the final day of the legislative session -- effectively killing them. 

The Paid Sick Leave bill, S.B. 217, had passed the Senate last week, but the House did not bring the measure up for a vote. As I indicated yesterday, nearly 25 amendments had been proposed on it -- a sign that the bill was going to be in for a long fight.  My earlier coverage of the bill is available here. CT News Junkie has a report on it as well.

The Whistleblower bill, S.B. 335, had also passed the Senate, but again, the House did not act on that provision either. My earlier coverage of the bill is available here.

Other bills that were not acted upon by the legislature include: a Workplace Bullying bill; a bill protecting child in the entertainment industry from child labor abuses; and a bill to allow workers to be paid by a pay or debit card.

One bill that did pass this week allows for the regulation of various professional service organizations and about employee misclassification (H.B. 5113).  I'll cover that in further detail in an upcoming post.

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Last month, I broke the story about a company that was selling various employment law posters online, and the Connecticut government's response to the posters.  A post recapping all events with links to all prior posts is located here.  

One poster, in particular, dealt with a "Healthcare Advocate" poster. At that time, the company's website stated specifically  "New Poster February 2008! Employers are required to display this poster. Lists employee's rights to health insurance under Connecticut."

As of my last prior post, last month, the company, Progressive Business Compliance had not made any changes to their website nor did they provide any public comment. While I've been tied up the past few weeks, their website for this poster has now changed. 

Their website for this poster  now reads: "New Poster February 2008! Employers are REQUIRED to display this poster.  Lists the services of the Office of the Healthcare Advocate under Connecticut Law, and gives contact information for employees."  However, the company still charges $12.99 for the poster. 

Employer and human resources professionals may still wish to exercise caution about using this particular poster. First, this poster -- while apparently "new" to the company -- is not new at all. It has been a requirement for a while. Second, in response to our prior post, Connecticut's Office of Healthcare Advocate now has the exact poster available on their website.  You can download it directly from here.  Third, and most importantly, it's available free of charge. 

I'll leave it to the Attorney General to determine whether its a fair trade practice to sell a free government poster for $12.99.  Perhaps it contains a protective plastic cover.   And as I noted previously, these companies can provide a service to employers by combining various posters onto one laminated poster.  For some employers, it is a service worth paying for. 

But for employers who just want to comply with this particular law without any bells and whistles, the OHA's poster that can be downloaded free of charge will suffice just fine. 

Of course, there are other posters that must be posted as well, so employers should check with an attorney to determine if they are meeting all the legal posting requirements. 

Lastly, I have been meaning to post about another website that summarized our prior posts on workplace posters quite well.   Lawroom.com posted about it here.  Each week, Lawroom sends out an email broadcast to several thousand HR and business subscribers (primarily in California, but also nationwide and in other states). They cover case, legislative, and regulatory developments, as well as interesting news stories. They also discuss “recurring” issues in employment law – including the need for mandatory posters.  My sincere thanks to them for the reference.  Please do check them out. 

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When my trial is over (end of March??!!), perhaps I'll be able to tell you all about the madness that is sometimes the Connecticut civil court system.

By now, you've probably seen the strands of a survey by the AMA floating around the Internet, suggesting that most employers are terminating people based on their use of the Internet. In case you haven't seen the study, let me save you some time by offering up the clips you need to know.

The 28% of employers who have fired workers for e-mail misuse did so for the following reasons:Cops violation of any company policy (64%); inappropriate or offensive language (62%); excessive personal use (26%); breach of confidentiality rules (22%); other (12%).

The 30% of bosses who have fired workers for Internet misuse cite the following reasons: viewing, downloading, or uploading inappropriate/offensive content (84%); violation of any company policy (48%); excessive personal use (34%); other (9%).

Employers are primarily concerned about inappropriate Web surfing, with 66% monitoring Internet connections. Fully 65% of companies use software to block connections to inappropriate Websites—a 27% increase since 2001 when AMA/ePolicy Institute first surveyed electronic monitoring and surveillance policies and procedures. Employers who block access to the Web are concerned about employees visiting adult sites with sexual, romantic, or pornographic content (96%); game sites (61%); social networking sites (50%); entertainment sites (40%); shopping/auction sites (27%); and sports sites (21%). In addition, companies use URL blocks to stop employees from visiting external blogs (18%).

So those are the numbers. Some of it I get and support, but a lot of it smacks of items that are sooo yesterday.

First up, I get that email is a conversation, so any idea and language that you put out there is subject to all the policies that you have in your handbook. That's good. Professional conduct, harassment policies, etc. are all applicable to what you put out there in email. That's the way it should be. Whether someone gets a warning, or is terminated for email or web browsing related to these items, depends on a lot of factors, such as severity and past history.

Here's my big pain point. If you are terminating someone for excessive use of the Internet, you probably haven't done your job from a performance management standpoint. Stop me if you've heard this one before. Sally's performance is lacking. Sally's manager comes to you indicating every time he walks by Sally's cube, she's on Facebook. Sally's manager wants to pull reports for that "gotcha" moment.

Is your next question "How's Sally's performance?" Once you're told that the performance is less than stellar, is question number two a derivative of "Tell me about the conversations you have had with Sally about her performance?"

My strong belief - excessive Internet use isn't a policy issue, it's a performance issue. There's a lot of variability across managers as to the definition of "excessive". Good luck defending the consistency issues there.

And don't even get me started about the wisdom of blocking entire categories. Dirty sites are an obvious one, but do you really want to block social networks where you can pick up candidate referrals? Blogs as an entire category?

That's crazy talk. Manage what's "appropriate" in Internet use by managing performance.

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Credit the Office of Healthcare Advocate for acting quickly.  I received word late Thursday that the Office of Healthcare Advocate -- responding, in part, to my post on Wednesday -- has now posted its required poster for employers on their website.  You can actually download the poster directly from this link. 

As detailed in earlier posts (here, here and here), employers that offer health insurance are required to post in their workplace about the services of the Managed Care Ombudsman.  It is mandated by Conn. Gen. Stat. 38a-1046.

Lastly, one final point from the Attorney General's press release yesterday (see prior posts) bears some further comment. 

Selling state compliance posters is perfectly legal - until the companies use false and deceptive claims to push their product, as many have done.

It's a valid point.  The companies that sell these posters in many ways offer a product that employers may find useful. They may laminate the poster or put a variety of information all in one. But when they overstep the line to scare employers or mislead them (and again, we'll leave that issue for the AG's office and readers to decide), they open themselves up to criticism.

A search of Google News this morning hasn't turned up any additional coverage, including any response from PBC.  Thus, until there are significant further developments that I become aware of, I'll consider this issue -- from an employment law perspective -- resolved for now.

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Secretary of State Susan Bysiewicz and Connecticut Healthcare Advocate Kevin Lembo released their own press release (download here) this afternoon regarding the investigation into Progressive Business Compliance. 

According to the press release, Bysiewicz and Lembo are  "warning Connecticut's business community about a deceptive marketing campaign that falsely claims there is a 'new' requirement that employers purchase compliance posters or face fines of $7500."  Bysiewicz is also investigating whether the company is operating legally in Connecticut. 

The Connecticut Employment Law Blog first broke the story of this marketing effort and discussed what the employer's real obligations were under the law yesterday (see previous posts here and here.)  Earlier today, I noted Attorney General Richard Blumenthal's statement. It is now available online here. 

The press release states:

“Today we are warning Connecticut business owners – do not be duped by the scare tactics of this unauthorized campaign and these phony “new” requirements,” said Bysiewicz. “My office has launched an investigation to determine if Progressive Business Publications is operating legally in Connecticut and I applaud Attorney General Blumenthal for his investigation of PBP for potential fraud. We urge anyone who has fallen prey to this scam to contact our offices.”

The marketing campaign, consisting of blast-faxes and emails from PBC, is entitled: "CONNECTICUT HEALTHCARE ADVOCATE, OFFICIAL NOTICE". This campaign is NOT authorized by the Office of the Healthcare Advocate, State of Connecticut. The promotion falsely states that this is a "NEW" requirement, and encourages the reader to purchase the poster under threat of "fines of up to $7,500." The solicitation gives potential buyers an option of purchasing a single compliance poster for $12.99 or a “Complete Connecticut State Kit” consisting of 11 posters for $89.99.

“As soon as we were notified of this scheme we took action,” said Lembo. This marketing campaign and solicitation are in no way authorized by the Office of the Healthcare Advocate. This scheme targets business owners trying to play by the rules. Business owners who are required to post health insurance information may contact my office and receive this poster free of charge.”

The Connecticut General Statutes (CGA 38a-1046) require that employers who offer a fully-insured health insurance product to their employees, "shall obtain from the Healthcare Advocate and post, in a conspicuous location, a notice concerning the services that the Healthcare Advocate provides." The notice/poster that fulfills this requirement is available, free of charge, by contacting the Office of the Healthcare Advocate at 1-866-466-4446 or healthcare.advocate@ct.gov.

As before, I'll update with any noteworthy developments.

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Yesterday, I broke the story about Progressive Business Compliance charging money for a free poster for a state and then highlighted the company's website which made certain representations about the state of the law in Connecticut. 

In my post yesterday, I indicated that one of my colleagues had received some marketing materials that suggested there were new requirements and that the company's website had indicated it was now effective February 2008.

I received an e-mail shortly after my post from Kevin Lembo, of Connecticut's Office of Healthcare Advocate, indicating that action would be announced soon relating to the poster and the company.  (He also posted a comment to the blog indicating that the poster that I made available yesterday was indeed the state-mandated poster.) 

HartfordBusiness.com now confirms that the Attorney General Richard Blumenthal has opened an investigation against Progressive Business Compliance and other companies that market these types of workplace posters. 

According to the HBJ, Blumenthal has issued a press release stating the following:

PBC deserves a state warning poster of its own about consumer protection laws... Deliberately deceiving consumers into purchasing posters - through false claims about legal requirements or a company's government affiliation - is plainly prohibited by our consumer protection laws.

This is a welcome step.  As companies in Connecticut are aware, Blumenthal has a knack for going after companies he perceives as violating the law. 

I should be getting some additional information from the State later today and will issue a followup when warranted.

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In small states like Connecticut, at times it feels like everyone is separated by something less than Six Degrees. 

Ten years ago today, a troubled worker walked into the headquarters for the Connecticut Lottery and shot and killed four top lottery officials, before turning the gun on himself.  Although I didn't know anyone personally, others that I worked with did.

The New York Times article the day after the shooting tells a story that is as haunting and chilling today as it was ten years ago:

Angered about a salary dispute and his failure to win a promotion, a Connecticut Lottery accountant reported promptly to his job this morning, hung up his coat and then methodically stabbed and gunned down four of his bosses, one of whom he chased through a parking lot, before turning the gun on himself.

As the shots rang out through the hallways of the lottery headquarters here in this quiet Hartford suburb, witnesses and the police said, dozens of employees, some yelling, ''Run to the woods,'' headed into the brushy hillside surrounding the office while others dived into nearby ditches.

The gunman, Matthew Beck, 35, had walked into the executive offices, stabbed and shot one top official and shot two others -- saying ''bye-bye'' to one of them -- and then chased the State Lottery president, Otho R. Brown, several hundred yards into a parking lot. Mr. Brown, 54, stumbled as he ran, the police said, and just as officers arrived on the scene, they saw Mr. Beck fire a semiautomatic handgun at the executive, killing him immediately.

Within seconds, as two Newington police detectives approached Mr. Beck, he put the gun, a 9-millimeter Glock, to his right temple and shot himself, said John Connelly, the head of the state police.

In addition to Mr. Brown, the other victims were three of the most senior managers at the Connecticut Lottery Corporation, a quasi-public authority: Linda Mlynarczyk, 37, chief financial officer, of New Britain; Frederick Rubelmann 3d, 40, vice president of operations, of Southington, and Michael Logan, 33, information systems manager, of Colchester.

The Hartford Courant, in fact, won a Pulitzer Prize for its coverage of that event.  In light of headlines each month about various shootings at workplaces around the country, it seems foolish to suggest that this particular shooting led to massive changes here. But I think for many, it did change the way we think about workplace violence issues.

In hindsight, the employee exhibited signs of stress before the incident, even writing an angry letter to officials in the weeks prior.  After this incident, I'm certain there were some employers who took any threat by an employee much more seriously.  I'm not suggesting that more should've been done beforehand (I don't know enough about it to judge), but I do think that employers in the state were re-awakened to the need to have and enforce workplace violence policies.  Employee Assistance Programs seemed more prominent and discussions about guns in the workplace followed. 

Others have written about workplace violence policies and suggestions to follow. But on today's anniversary (on which the Governor has suggested a moment a silence at 8:45 a.m.), perhaps the best thing we all can do is simply to recall the events of that horrible day and resolve that the lessons learned from that day won't be forgotten.

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After a brief hiatus, Workplace Horizons blog is back with some interesting thoughts on the "Paid Sick Leave" bills pending nationwide and a new website related to the subject that I highlighted last week.  According to Richard, "It’s a pretty slick web site designed to promote the Healthy Families Act."

According to Workplace Horizons:

The Act, introduced in both the House and Senate in 2007, has not yet been voted on by either house of Congress. It would require employers with 15 or more employees to provide 7 days of paid sick leave for employees working 30 or more hours per week. Additionally, it would require a pro-rated number of days or hours of paid sick leave for employees who work less than 30 hours per week (or less than 1,500 hours per year) and allow employees to take leave for their own medical condition, doctor appointments, or preventative or diagnostic treatment. Employees could also use the leave to care for a family member with comparable needs. Leave would be calculated on an hourly basis or in the smallest increment that the employer’s payroll system uses.

Workplace Horizons was also kind enough to post on the workplace bullying legislation I discussed last week. 

It's nice to have Workplace Horizons back for its perspective after its long Foxwoods proceedings. 

On that same note, this blog is going to get a big sparse for the next few weeks.  I've got a trial upcoming in state court in another week or so that will preclude much posting for most of March.   (Need to pay the bills somehow.)  But rest assured that I'll post when I can and will certainly be back in full force after the trial.

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The Equal Employment Opportunity Commission (EEOC) issued guidance today for employers and veterans on workplace issues affecting veterans with service-connected disabilities.   You can download the guide for the employer here, and the guide for veterans here.

According to the EEOC press release:

The new guide for employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The document further describes how the ADA in particular applies to recruiting, hiring, and accommodating veterans with service-connected disabilities. The EEOC enforces Title I of the ADA, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments. The U.S. Department of Labor enforces USERRA, which applies to the reemployment of veterans with and without service-connected disabilities.

The guides contain a list of resources on USERRA and the ADA as well as information on organizations that can assist employers who want to recruit and hire veterans. 

I previously posted about USERRA and the protections it offers to veterans last Veteran's Day. 

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For football fans in Connecticut, it doesn't get any better than this -- Patriots and Giants in the Super Bowl. With loyalties evenly divided in this state between the Giants and Patriots, interest in the Super Bowl will be at an all-time high. (My allegiance has always been with the Giants, particularly since Robert Kraft's tease of moving the Patriots to Connecticut in the late 1990s). 

And with such interest and enthusiasm, friendly wagering among friends will no doubt follow.  But what happens when those people want to bring such wagering into the workplace in Connecticut? The short answer is "Player Beware". 

In Connecticut, gambling and wagering is prohibited by various state laws, including Conn. Gen. Stat. Sec. 52-553 and 52-554.  There is no clear exception for "workplace" bets, or small bets. According to the statutes, a bet is a bet, regardless of where it is placed. (The obvious exceptions to this general rule are the Indian casinos in the state -- Foxwoods and Mohegan Sun.)

However, there is one well-worn exception to the "no gambling" rule.  Specifically, Conn. Gen. Stat. Sec. 53-278b states that people (not companies) are:

exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling. 

Thus, the language appears to create an exception to the idea of professional gambling -- if there is a "bona fide social relationship."  Would workplace relationships qualify for this exemption? That's obviously an open question.  Some might quality; others clearly won't.  As the Office of Legal Research for Connecticut's General Assembly stated in August 2007:

The law does not define “incidental to a bona fide social relationship”; the legislative history of the law does not indicate the legislature's intent in enacting the exemption (see House and Senate debate attached); and we found no controlling Connecticut court ruling on the meaning of the term as it pertains to gambling.

For employers, this exception does not apply however.  Clearly, by referencing only "natural persons" (meaning people, not "corporations"), the law is intended to only protect individuals, not employers, from prosecution.  Thus, company-sponsored Super Bowl office pools would appear to be out. (That goes for Oscar Award wagering too.)

But what about the smaller, employee initiated ones? Again, the statute's language focuses on "social relationships".  A few people wagering may appear to be better than a 100-person office pool.  However, there is no "sure bet" that a small office pool among peers will pass muster under review.  And thus, "Player Beware" is the surest answer to this.

Is there any real likelihood of prosecution? Probably not. It does not appear to be a priority for enforcement. But for employers in the state, that doesn't mean it should promote such pools either.  Having a clear and established policy on gambling (that would include, for example, a prohibition of company computers to help run such a pool) may be a good start to avoiding further issues down the road.

For background on office pools in general, some posts have already gotten a jump start on the topic.  John Husband, of the Colorado Employment Law Letter, has a fun article on the subject here.  Despite lawyers' tendency to be cautious on the subject, Husband reminds us that office pools can be more than simply money:

As with many aspects of employment law, there is no clear-cut rule regarding workplace gambling that will fit every company and every situation. Office pools, Oscar pools, and group lottery tickets often constitute significant ways that managers build camaraderie and teamwork and relieve employee stress.

Perhaps, over the next two weeks leading up to the Super Bowl, instead of worrying about office pools, employers in Connecticut can have fun with the topic.  Nothing in the law prohibits Super Bowl parties, and displays of team spirit in the workplace.  Imagine a workplace "rally" where employees can cheer on their favorite sport with the employer giving away football-related gifts. That certainly would build workplace morale.  Enjoying the time leading up to the Super Bowl is something that I think all football fans in the state can agree on. 

UPDATE 1/30: Attorney General Richard Blumenthal recently chimed in that he viewed office pools as okay, so long as the house did not profit from it.  “Office pools are generally legal unless they’re done for a profit by the person organizing it,” Blumenthal said. “In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

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In the workplace, there good ideas, bad ideas, and ideas that make you scratch your head. 

Reading a recent article in Time about bringing babies into work, I was hard-pressed to place it other than in the third category.  The article cites a new "institute" called the Parenting in the Workplace Institute as saying that over 70 companies allow babies in the workplace.  Obviously, given the numbers of companies out there, it is just a tiny fraction.

The obvious question that arises for a employment law blog is: Is there any legal guidance in Connecticut about this issue?  The answer is, not really. 

For employers, it is important to understand the great amount of flexibility an employer has to set policies and procedures.  Banning children from the workplace is one of those rules.   While there may be a safety reason associated with some rules (you don't want little Max running around a manufacturing floor), an employer may have a simpler reason -- keeping the workplace a "work" place. 

That being said, suppose an employer wanted to go ahead with such a policy, are there any considerations for such a company?  The answer is yes. 

Too often, employers allow these types of actions to occur on a ad-hoc or individual basis.  From a legal perspective, that only creates more confusion and fails to set forth reasonable expectations that should be set. Questions to consider:

• Is there an age limit or a time limit?
  
• What about meetings?
  
• If the employee has a business engagement, does the parent expect others to "fill in"?
  
• Are there expectations about what behavior is expected from the children?
  
• Can the parent bring in a crib?
  
• If the employee does not have a closed office, are they going to be allowed in cubicles?
  
• Are certain jobs just "off limits" for having kids around?

That said, employers should exercise caution in going down this path.  Besides the legal issues in play, co-worker morale and office productivity will no doubt be affected to.  Sticking to "Take Our Daughters and Sons to Work Day" may just be the safest bet. Or the employer can offer day-care or emergency day-care services close by to make it easier for some parents.  The employer can also offer telecommuting as well.   And of course, following the rules regarding breast-feeding in the workplace is a must too. 

However, your workplace could look something like the following video, in which case, you've got bigger issues to worry about than establishing a policy.

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Unless you've been focusing solely on the New Hampshire primaries today, you know that the other news headlines have been about former Yankees pitcher Roger Clemens denials of steroid use. In his interview with 60 Minutes, he suggested he might take a lie detector test -- only to have his attorney yesterday say that would never happen.

But suppose that Clemens were still a Yankee (and suppose he wasn't a union member and was in Connecticut). Could the Yankees, as his employer, require him to take a lie detector test given his refusal now to do so?

The answer is no, particularly not under the circumstances alleged.

Two laws come into play, one federal and one state.   In Connecticut, state law trumps the federal law and does not permit their use for private employers.

First, The Employee Polygraph Protection Act (EPPA), 29 U.S.C. Sec. 2001 et seq., which falls under the jurisdiction of the U.S. Department of Labor, generally prevents private employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions.

Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. In addition, employers are required to display the EPPA poster in the workplace for their employees.

Federal law does carve out some exceptions:

• The Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers.
• The Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer.
• When the exams are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and post?testing phases. An examiner must be licensed and bonded or have professional liability coverage.

However, the EPPA does not preempt any provision of any state or local law that is more restrictive on the issue of lie detector tests.

And therein lies the key aspect for Connecticut employers -- Connecticut does have a law that is more restrictive. Specifically, Conn. Gen. Stat. 31-51g prohibits the use of polygraph tests by private employers. (The law also prohibits the use of polygraph tests for state employees, with limited exceptions for those in various law enforcement positions.)

Specifically the law states:  

No person, firm, corporation, association or the state or any political subdivision thereof shall request or require any prospective employee or any employee to submit to, or take, a polygraph examination as a condition of obtaining employment or of continuing employment with such employer or dismiss or discipline in any manner an employee for failing, refusing or declining to submit to or take a polygraph examination. 

What's the penalty for doing so? An employer can be fined between $250 to $1000 for each violation. However, it does not appear that the statute allows lawsuits by private employees for violations of this statute. 

So, while private employers in Connecticut may resort to some types of electronic monitoring in the workplace to check on employees if it wishes, it can't use polygraph tests to do so. 

But expect to hear much more about lie detectors in the upcoming weeks. No doubt, if you've been watching Fox over the last few weeks, you've seen commercials for its new reality show debuting later this month -- "The Moment of Truth". What do participants need to do to win potentially $500,000? Pass a lie detector test of course.

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It's Friday before Christmas and all through the workplace, not a creature was working, not even the boss.

But around offices today, many bosses are thinking to themselves "I need to get a gift for my secretary/assistant/staff!".  From an employment law perspective this is yet another minefield waiting to be discovered. 

Here are a few do's and don'ts (with tongue firmly in cheek) as you pick out those last-minute gifts.

Do:    If your office is in the tradition of giving gifts, do get your assistant a gift, even just a small one to say thanks.  
Don't: Don't just write a card saying thanks without a gift.  And if you do get a card, avoid those singing cards; those are just creepy and you'll end up getting a silly song stuck in your head for the whole day. 

Do: Do consider getting a gift card, instead of a gift.  Mall gift cards (that are generic) are a good, non-offensive approach.  Starbucks (or, if you prefer, Dunkin' Donuts) may be just your thing too.
Don't: Don't get a gift card from a place that sends any type of message, even indirectly.  Victoria's Secret? So obviously bad that you shouldn't even have to ask.  Perfume or cologne from Sephora? Not good.  His and her bathrobes? Same.

Do: If you do want to get a gift, make sure it is commensurate with the work performed.  Some books to read, food, or even an iPod shuffle or Nano are winners.  
Don't: Don't make the gift too personal, however. Airline tickets for two to a Caribbean Island are probably not a good idea.  Heart shaped boxes of chocolate from Godiva are also not smart.  And don't get books that give the employee the wrong idea like " The 4-Hour Workweek: Escape 9-5, Live Anywhere and Join the New Rich". 

Do:  Some offices like holiday outings. Lunches, in a good group setting, are a good way to celebrate.
Don't: Don't just take an assistant out to dinner alone, particularly at a candle-lit restaurant.  Nothing good can come of that type of approach.  Even if you get a table by the front windows.

And finally, for those staff that are considering getting gifts for their bosses, a recent "Ask Amy" column (readers: don't ask why I happened to stumble on this) had advice that is dead-on: Don't give your boss a new pair of pants. 

Clothing of any kind is an inappropriate workplace gift. Nor should this person be suggesting - through gifts or otherwise - that her boss needs to update his wardrobe or dress more professionally. If this man's wardrobe is somehow inappropriate or unprofessional, then his boss should let him know.

Happy shopping readers!

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With iPods becoming ubiquitous, I'm sure I'm not the only one who feels like they are listening to more music in general.  A favorite song of mine is "So Much to Say" by the Dave Matthews Band song.  (Don't try reading too much into the lyrics -- there isn't much there.)  But this week, "So Much to Say" seems an appropriate label for all the great articles relating to labor & employment law.  There's "Too Much" to write about individually, but here are a few of the posts that warrant a mention for one reason or another.  

• Kris Dunn, over at HR Capitalist, has a thought provoking post this morning about whether the paying of staff by Jay Leno is a good or bad thing for the union in the writers strike. The comments, including by yours truly, show that this is no ordinary strike. 
  
• George Lenard, over at George's Employment Blawg, has a great post today about asking whether today's job applicants are dumber.  He reports that "A recent press release from Wonderlic, Inc., reporting on a new study of company data, says applicants today aren’t as smart (lower cognitive ability) as similarly-educated applicants of yesteryear."
  
• Paul Secunda, at the Workplace Prof blog posted a thorough analysis of the transcript of the oral argument in the Supreme Court case yesterday (you can find the transcript here). In that ADEA case, one of the issues presented is whether a plaintiff-employee can present evidence of other employees who also claim that they were discriminated against.  It remains to be seen where this case will come out.
  
  Ultimately, Paul concludes:

I see this case coming out 5-4 in favor of Sprint. A majority opinion by Justice Scalia (joined by Kennedy, Alito, Thomas, and Roberts) saying that the district court should be deferred to in admitting evidence absent an abuse of discretion. Look for the court to also point out that allowing this evidence in would lead to mini-trials on other supervisor statements and so in most cases, this evidence is appropriately excludable under Rule 403. Justice Scalia may also try to get in that he thinks this case rises and falls on Rule 401, but I don't think he has a majority on that point.

• Michelle Golden, at Golden Practices, had a good post last week about the do's and don'ts of interviewing from a legal and HR perspective. She cites to another online article and says, "I like the fact that the authors encourage getting past the presumed cause questions (not allowed) and takes the interviewer to the real reasons one is asking the questions."  Its a good reminder that even simple questions can get employers into trouble.  
  
• My post last week about whether the mere presence of pornography in the workplace was sufficient to state a claim of harassment has provoked some posts in the blogosphere -- some serious, some humorous -- that are all worth reading. Check out the posts at the Ohio Employer's Law Blog, Pennsylvania Employment Law Blog, and HR Capitalist. 
  
• And lastly, consistent with the music theme, Mark Toth at the Manpower Employment Blawg, has a post about the Best Songs about Work.  The Business Opportunities blog picks up on this theme as well here. 
  

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For the second time in two days, the Second Circuit has reversed a lower court's dismissal of an employment claim.

This time, in Patane v. Clark, released today, the Second Circuit reversed an decision granting a motion to dismiss a claim of sexual harassment claim.  The takeaway from the case today is that the mere presence of pornography in the workplace -- even if never viewed directly by the plaintiff-employee -- may be sufficient to state a claim of sexual harassment (and that the District Court was wrong to dismiss such a claim without even allowing the parties to conduct discovery).

The Court's key finding is summarized in this section:

Specifically, the district court concluded that Plaintiff failed to allege that she faced an objectively hostile work environment, “because [she] never saw the videos, witnessed [her supervisor] watch the videos, or witnessed [her supervisor] performing sexual acts.” Patane, 435 F. Supp. 2d at 316. However, Plaintiff does allege that she regularly observed [him] watching pornographic videos. This Court has specifically recognized that the mere presence of pornography in a workplace can alter the “status” of women therein and is relevant to assessing the objective hostility of the environment....

Moreover, Plaintiff alleges that she was regularly required to handle pornographic videotapes in the course of performing her employment responsibilities of opening and delivering [her supervisors] mail; and that she once discovered hard core pornographic websites that [he] viewed on her workplace computer. Combined with Plaintiff’s other allegations regarding [his] sexually inappropriate behavior in the workplace, including her allegation regarding his earlier harassment of [another employee], and with [the employer’s] failure to take any action notwithstanding Plaintiff’s numerous complaints, a jury could well conclude that Plaintiff was subject to frequent severely offensive conduct that interfered with her ability to perform her secretarial functions.

This case is yet another reminder to employers to: 1) be vigilant about preventing pornography in the workplace; and 2) to investigate all claims seriously.  I discussed this in yesterday's post, but the Second Circuit's message to employers should be loud and clear -- investigate all claims of gender discrimination and harassment; failure to do so will leave the employer susceptible to such claims in the future.  This decision is a full published decision and can be cited in future cases.

The case is also a reminder to bolster any internet firewalls to prevent access to pornographic websites from the workplace.  Even if another employee never views the pornography directly, its presence (and tacit allowance by an employer) could be used as the basis for a hostile work environment claim.

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After years of worrying about pandemic flu, the mainstream media have given us a new reason to become agoraphobics - MRSA.

Haven't heard this new acronym yet? It stands for Methicillin-Resistant Staphylococcus Aureus.  And, if you were to believe the Connecticut newspapers lately, it's running rampant in Connecticut schools; so much so that the state government decided to open up a hotline on it.  The Governor has even written to Connecticut schools about it.

Before discussing this latest "disease trend" story, it helps to understand what MRSA is and is not.  For Connecticut employers in certain industries, educating employees about the facts of MRSA may help reduce the fears that some employees may get from reading the headlines.  (In case you are wondering, one reason why we're seeing more stories, was a recent medical study that showed that MRSA infections are becoming more common among healthy, non-hospitalized persons.) 

According to the Centers for Disease Control, MRSA is a type of common bacterial infection known as "staph".  Staph are, in fact, quite common.  Staph are:

bacteria commonly carried on the skin or in the nose of healthy people. Approximately 25% to 30% of the population is colonized (when bacteria are present, but not causing an infection) in the nose with staph bacteria. Sometimes, staph can cause an infection. Staph bacteria are one of the most common causes of skin infections in the United States. Most of these skin infections are minor (such as pimples and boils) and can be treated without antibiotics....

MRSA is a type of staph infection that is resistant to some anti-biotics.  While 25% to 30% of the population is colonized with staph, approximately 1% is colonized with MRSA.

Here's the most important fact about MRSA -- it's typically preventable AND treatable despite the media's portrayal of MRSA being a "superbug".  The New York Times has a good summary as well.

The Washington Post has summarized the steps you can take to minimize your risk of infection from MRSA.  There are also several EPA-registered disinfectants that can be used that are effective against MRSA. 

I'm not minimizing the seriousness of MRSA -- it can be deadly in some instances.  But the news articles lately here have tended to be a bit on the alarmist side, without providing the necessary perspective and information about it.  With good hygiene and some simple preventative steps, the risks of a workplace outbreak of MRSA can be reduced significantly. 

As the media hype over MRSA continues, employers -- particularly those in more sensitive areas such as health clubs or health care industries -- can consider sending out a short note to their employees reminding them to use good hygiene.  In particular, good hand-washing and/or use of alcohol-based cleaners like Purell can go a long way to making sure the workplace remains relatively safe.  (Indeed, despite the media hype, the CDC's guidance tends not to focus on the workplace in general since the risk of transmission remains low, unlike the school setting.) 

Employers can also remind their cleaning staffs that thorough cleaning of bathrooms and gym areas will help reduce the risk of infection as well.  (Those employers with in-house workout facilities should pay particular attention to this.)  Of course, for hospitals and health care workers, OSHA has specific guidance to follow as well; this guidance is not new. 

In short, employers should treat the latest MRSA media-frenzy with a proper dose of perspective.  As we start entering flu and cold season, a gentle reminder about good hygiene may help reduce the risks present in the workplace.  

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