January 1st is typically a time for new laws to kick in and 2019 is no exception.

For employers, the biggest change is one that I discussed way back in May with amendments to Connecticut’s Pay Equity law.

The new law prohibits employers from asking a job applicant his or her wage and salary history. But the prohibition does not apply in two situations:

  • if the prospective employee voluntarily discloses his or her wage and salary history, or;
  • to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

While salary may not be inquired, the law DOES allow an employer to ask about the other elements of a prospective employee’s compensation structure (e.g., stock options), but the employer may not ask about their value.

The bill has a two year statute of limitations. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.  (This bill amends Conn. Gen. Stat. Sec. 31-40z if you’re looking for the pinpoint legal citations.)

Note that this ban on inquiries also applies to applications or other recruiting forms too. So, if your application asks for prior salary history, it’s time to eliminate that.  Employers should inform manager and other employees who conduct interviews about this requirement as well.

 

The holidays are here and you know what that means: New Year’s Resolutions. I recently caught up with Attorney Sarah Poriss who I’ve known for many years and realized she had an interesting perspective for employers and how to start the year off right. Sarah runs her own small firm focusing, in part, on foreclosures for individuals.  Recently, she’s been handling matters for homeowners impacted by the crumbling foundation crisis happening in eastern Connecticut.  What follows is an edited online conversation we had following my meeting with her and continues a long-running (if rarely repeated) series I’ve done conducting interviews with people outside my firm.  I hope you enjoy.

Dan: So, before we talk about crumbling foundations, you had mentioned that you’ve gotten a great appreciation for an employer’s perspective by running your own business. What have you seen?

Sarah: Now that I am an employer, I have begun to appreciate the value of a focused and efficient staff.  It can be distracting enough when something good or exciting happens in the life of one of my staff; it’s even worse when they experience something stressful or tragic.

My goal is to provide a workplace that allows time for their family and personal needs, but I can only go so far when it comes to ensuring they are not distracted by the stress of financial issues.

I’ve had staff with debts in collection, or who are working on their credit with a goal of buying their first home, or who have unexpected expenses due to illness of a parent or child or unemployment of a spouse.

Dan: With that in mind, what’s do you try to achieve?

Sarah: Whenever I’m dealing with my staff (and clients) who present with these issues – I really do try to work with the aim of providing some peace of mind so we can all get back to work (I actually feel like I’m more of a sleep specialist than a lawyer at times).

Dan: For those of us used to paying a mortgage each month, I confess it’s tough to know what to say to someone (like an employee) who is facing not being able to make their mortgage payment.  What’s some general recommendations you make to those people?

Continue Reading Five Questions With… Sarah Poriss: Crumbling Foundations and Employers

Now that Thanksgiving is in the past, it’s time to look forward to the future.

Well, not before getting a recap of everything that transpired in employment law in the last year. Or at least everything that we can fit in an hour long seminar.

The webinar that broke attendance records last year is back again on December 4, 2018 at noon ET.

This year, five employment law bloggers are presenting the “Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented” webinar.  Registration is just $25 and it’s eligible for CLE/SHRM/HRCI credit.

All that is needed is to sign up here. 

The presenters this year are:

  • Robin Shea, Constangy, Brooks, Smith & Prophete
  • Kate Bischoff, tHRive Law & Consulting
  • Jon Hyman, Meyers Roman
  • Eric Meyer, FisherBroyles
  • Jeff Nowak, Franczek Radelet
  • Daniel Schwartz, Shipman & Goodwin

Among the topics that you can surely expect to hear about: #MeToo, LGBT discrimination, Data Privacy and Security, Wage & Hour issues, and FMLA.

Be sure to sign up; it promises to be the best ever. (At least until next year.)

Today, Massachusetts started retail sales of marijuana at two locations. Perhaps no location is closer to the population centers of Connecticut than Northampton — just 30 miles up the road from Enfield.  It’s the first store east of the Mississippi River.

And lest you think that this is a Massachusetts-only affair, you need only watch the news reports from today to understand that there are plenty of Connecticut residents lining up seeking to avoid the restrictions in place in the Constitution State.   And Governor-Elect Lamont has indicated he’s in favor of it. 

This is going to cause headaches and some choices for employers in Connecticut.

Small amounts of marijuana have been de-criminalized in Connecticut but recreational use and possession is still prohibited. Moreover, employers are still free to discipline employees for recreational use on the job or even off.

But Connecticut has, for several years now, permitted medical marijuana users (who have registered with the state) to have some limited job protections.  On-the-job marijuana use can still be prohibited as well as showing up under the influence.

The City of Waterbury recently announced a policy that testing positive for any amount of marijuana may subject employees to discipline.  As a news article notes, that policy is likely to be challenged in arbitration and the courts.  

So what can a private employer do when it drug tests employees in Connecticut and the results show up as “positive” for marijuana? Well, employers are going to first want to know if the employee is a medical marijuana patient, in which case further inquiries may be needed.  Otherwise, the employer may have the ability to still discipline or terminate that employee’s employment.

Beyond the “Can We Fire…” question, the newer question is going to be “Should We Fire….”

With legal sales just miles away from employers here, the line as to what should be permitted or not gets, if you permit the pun, hazier and hazier.  No doubt, some employers are going to try to draw lines in the sand and say that any drug use is not permitted — particularly if there are additional legal obligations that they need to follow. But some others may have a more permissive attitude and treat marijuana use as they do alcohol use — it’s fine so long as it doesn’t impact work and so long as it isn’t done at work.

The start of retail sales in Massachusetts is not the end of the story here; Connecticut may very well start to reconsider its own laws now that one New England state has taken the plunge. Regardless, employers should continue to talk with their counsel to navigate this ever-changing area of law.

The results are in: The General Assembly and the Governor’s office have been caught up in the Blue Wave in this state.  Instead of a split, the Democratic party will control a sizable majority in both houses and the Governor’s Office.

But with Governor-Elect Ned Lamont coming from a business-side perspective and touting the need to grow business in Connecticut, what are we likely to see in the next legislative session?

Already legislative leaders are talking about a push for a series of progressive-leaning bills that have been held up the last few years. The CT Mirror has this initial report:

A day after Connecticut experienced its own blue wave in the midterm elections, Senate and House Democratic leaders said addressing a minimum wage increase, tolls, and paid family medical leave will likely be among the top priorities the majority takes on in the upcoming legislative session.

Yes, two out of the three items cited are big employment law topics. Indeed, paid family leave has been talked about for several years.

Back in 2015, I noted what the contours of such a package might look like.  

Beyond minimum wage and paid family leave, what else should employers be on the watch for? A new bill on sexual harassment prevention training and perhaps even an expansion for claims of sexual harassment isn’t out of the question either.

The bill died on the floor earlier this year, but it’s hard not to think that with sexual harassment claims in the state on the rise, a bill on the topic isn’t far behind.

My early prediction? The 2019 legislative session is going to be a busy one.  Additional bills on strengthening unions may ultimately be on the table.

With a Blue Wave in the state, employers should be mindful that elections have consequences and those are going to be seen in 2019 at the General Assembly.

Back in 2010, I wrote a simple blog post about how organ donors were protected under Connecticut’s FMLA law.  In it, I recount how my father — 25 years prior at that time — donated a kidney to his brother (my uncle).  At the time, I noted that both were well.  

On Sunday, October 28, 2018, my uncle passed away after a short illness.   Dr. Allen Schwartz was retired as the Deputy Director of Policy and Enterprise solutions at NYS Office for People with Developmental Disabilities and recently served as a Senior Policy and Research Analyst at Westchester Institute for Human Development. He leaves behind his wonderful wife, Andrea, and two adult children.  Allen was blessed to contribute so much to society in the 33 years since that organ transplant and he will be sorely missed. 

In honor of Allen, I’m reprinting the blog post below.  Become an organ donor today.  

FROM THE ARCHIVES – September 2010

25 years ago nearly to the day, my father donated one of his kidneys to his brother.

What have you done today? Have you done everything you could? Could you have done better?

They may seem like unfair questions after the first sentence.

But tonight is the start of Yom Kippur – a Day of Atonement in the Jewish religion and one of the holiest days of the year.  And as part of the services tonight and tomorrow, Jews around the world will be asking tough questions of themselves all with the goal of being a better person next year.

And so, to honor my father and his heroism and provide education and insights in the employment law context in the way I know best, today’s post is all about organ donation and what employers need to know.  My goal is to begin a discussion this important issue in Connecticut.

FMLA is typically thought of in the medical context or childbirth/adoption process.  But Connecticut’s FMLA statute actually provides protection for those employees who become organ or bone marrow donors.

Donors are to be provided with the same amount of leave (16 weeks over a 2 year period) that, say, new mothers and fathers are accorded.

This is still a relatively new law — having been passed just six years ago fairly quietly.

If you’re an employer, what does this mean? Well, for one, your FMLA policies should be updated to let your employees know that they can be a living organ donor — and still have their job protected.

Employers can also update their FMLA forms to provide for organ donation is a category to check off. Many employers tend to use the Connecticut DOL’s forms (at the end of the regulations) — assuming that they are the most complete forms out there. But even those forms do not include language about being an organ donor.  (Don’t look to the US Department of Labor either; their forms just follow federal law, not state law.)

Enterprising employers might think to seek out the Connecticut DOL regulations for some guidance. But those employers would also be out of luck. Those regulations haven’t been recently updated and say nothing about how employers should handle such requests.  (Authors note: Still not updated in 2018!) Indeed, if you just read the regulations, you might even think that organ donors are not protected because language about “organ donors” isn’t even there.  (Conn. Regs. Sec. 31-51qq-7 is a perfect example.)

Perhaps a representative from the Department of Labor can take the opportunity to update their website on this category and provide additional information, in the absence of formal regulations.   Without that, organ donors may be left wondering if their jobs are protected if they choose to donate.

In the meantime, employers are on their own to take steps to educate their workforce about the protections offered under Connecticut’s FMLA for organ donation.  Employers should be sure their forms and policies are up-to-date and remove any barriers to organ donation that their employees might think exist.

Credit should be extended to the many employers that have done a lot in this area, including some local companies (Aetna and Bank of America).  The Workplace Partnership for Life initiative is truly a win-win campaign in which everyone can play a significant role in recruiting potential organ, tissue, marrow, and blood donors. Thousands of U.S. corporations, organizations, and associations are working to create a “donation friendly America” by joining the Workplace Partnership for Life.

(And, of course, if you haven’t become an organ donor, do it today.  You can download the form from the DMV off their website and mail it in. Or when you renew your license, you can become a donor then.  The DMV has a FAQ about the process on their website as well.)

And what of my father and his brother? They’re both living healthy and productive lives.  And we continue to celebrate many holidays together.

If through this post and actions by employers, we can ensure that another family has that same benefit, I think we can say that today was at least a pretty good day and we did what we could. Think about the simple changes that your workplace can make today.

From time to time, I take a look back at a prior post that may have particular relevance now. With Halloween knocking on our doorstep and sexual harassment claims on the rise, this post from 2010 has just as much meaning today.…

For most people, Halloween is a fun and silly holiday.

Yet the holiday has a distinct place in employment law history.  Indeed, for some employers, the holiday has brought more tricks than treats.

  • In Marrero v. Goya of Puerto Rico, 304 F.3d 7 (1st Cir. 2002), a supervisor was alleged to have gone out to buy Halloween presents. Allegedly, he gave the employee “a direct penetrating look with lust,” and said: “I have a little present for you that you’re never going to forget and if you don’t do the things I tell you and order you to do I am going to fire you.”
  • In Grubka v. Department of Treasury, 858 F.2d 1570 (Fed. Cir. 1988), a supervisor appealed his demotion for engaging in alleged acts of misconduct in kissing and embracing two female employees at a Halloween party organized and staged by the employees at a hotel after hours away from their workplace and for their entertainment.  While he prevailed, i’m not quite sure its the type of activity one would put on a resume.
  • In Lester v. Natsios, 290 F. Supp. 2d 11 (D. D.C. 2003), an employee claimed racial harassment after a costume incident that is probably best left to the court’s analysis: “The …incident is best described as silly, although perhaps also somewhat offensive. It involved a supervisor who dressed up for a Halloween party in a costume as a plant, and then snipped scissors at plaintiff in a conference room.” Um, ok.
  • In Richardson v. New York State Dept. of Corr. Ser., 180 F. 3d 426(2d Cir. 1999), an employee claimed that at Halloween, a co-worker said to the plaintiff something to the effect that “all you spooks have a nice Halloween.” According to the court, the Plaintiff “perceived that the word “spooks” was used as a derogatory term for Black people, and recalled that her co-workers all turned to look at her when the remark was made.” The Court ultimately allowed some hostile work environment claims to proceed, though other references to “lynchings” probably had something to do with it too.
  • Then of course, there’s the supervisor who was alleged to have had a frank discussion of what he was going to wear for Halloween. In Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134 (D. N.H. 2005), a female cashier, alleged that the supervisor “responded to a question about his stated intention to dress as a woman for Halloween by saying that he was a hermaphrodite who menstruated and used to wear a bra.”  The court upheld his termination.

So, as your employees dress up and act silly, keep on the lookout for employees who cross the line.

As these cases show, Halloween is no excuse for harassment.

As part of my continuing series of posts about the CHRO, and following up from the 75th Anniversary panel discussion earlier this week, I wanted to provide an early look of the statistics that are soon to be released by the agency.

I was provided a preliminary draft in preparation for the panel presentation; it should be out in the next week or two and I was asked not to divulge the specific numbers.  Stay tuned for my deep dive into the numbers when they are officially released. (As a refresher, you can see last year’s numbers here.)

But there are few trends that are readily apparent from the draft.

First, as we have all suspected, sexual harassment claims filed with the CHRO are up substantially over the prior year.  This is not too surprising given the publicity regarding the #metoo movement.  Still, we haven’t seen these types of numbers in nearly 15 years.  When the final numbers are released, expect a big increase in sexual harassment claims from FY ’17 to FY ’18.

Second, we continue to see an increase in the numbers of employment discrimination claims being filed at the state agency.   While it is tempting to draw conclusions from this, the numbers seem to correlate closely to the increase in sexual harassment claims.  Normally, in an improving economy, we see decreases in the numbers of claims filed. We haven’t and that should raise some concerns for employers.

Third, the numbers of cases withdrawn “with settlement” are down substantially.  It’s hard to know what to make of this. With more cases getting dismissed by the agency, it could just be that some of the “nuisance” value cases are getting handled that way, but the drop seems to be much more than that. When the final report is released, it’ll be worth taking a deeper dive into the numbers.

Despite all of the numbers, the numbers of cases certified to public hearing and the number of reasonable cause drafts issues has remained constant from year to year.  This may be the result of the consistent approach that the CHRO has been seeking to implement over the last few years.

The biggest takeaway for employers? Discrimination and harassment complaints are likely at the second highest total they’ve been at in the last decade.

The age of increased discrimination and harassment claims isn’t over; it’s happening right now.

Yesterday I had the opportunity (along with my fellow Shipman & Goodwin partner Peter Murphy) to speak as part of the Commission on Human Rights and Opportunities’ (CHRO) 75th Anniversary celebration.

The panel — The Barriers to Employment Legal Update and Panel Discussion  — was chock full of the types of insights, data and analyses that is so often overlooked in this Twitter generation.

We spent a good 90 minutes talking about the changes that have been going on at the CHRO and talked about what types of changes could be made in the future.

Frankly, it’s far too much for one blog post.

So I’m going to tackle them in a few posts.  Today’s post: The re-emergence of the Case Assessment Review.

Indeed, if you haven’t been before the CHRO in the last year, you may be unaware that this is perhaps one of the biggest changes to the agency procedure over the last year.

Hyperbole? Actually no. At least not when you look at the statistics regarding CAR. (I did a deep dive into CAR last December which I’d strongly recommend if you want to learn more.)

Since the Legal Division has taken over this task — which is, in essence, a gatekeeping function — the dismissal rate has increased to 23% (up from just 5%).  Or, put another way, just 77% of cases are getting retained for mediation and investigation, down from 95% just a year ago.

This has big implications on how employers should view the CHRO process.  No longer is it the case that nearly all cases will get retained for investigation; as a result, position statements should play a greater role in telling the story.

The panel discussed other strategic implications of the numbers as well. Suffice to say, employers who are still viewing the CHRO in terms of 2015 (where I humbly suggested the CHRO Complaint process needed a reboot) are missing out on the changes happening right now.  Attorneys and their clients need to definitely stay up to speed with the latest developments.

What else is new? More on that in an upcoming post….

Back in 2011, I wondered aloud: Might the impact of new arbitration decisions from the U.S. Supreme Court bring about the end to big wage & hour class actions?

At the time, I said it would be premature.

Seven years later – what’s changed?

Well, as it turns out, wage & hour class actions are not dead. Indeed, based on some statistics, they’re as costly as ever.

Earlier this year, the Workplace Class Action Litigation report noted that just the top ten class action settlements totalled over $2.72 billion in 2017. I’d say the class action is still very much alive and well.

Yet there are still signs on the horizon that employers may be able to fight back a bit on these claims.

Late last month, the Ninth Circuit shot down a potential class action against Uber, on the grounds that the arbitration provision barred class actions.  

It’s a significant victory for the company and highlights a way for companies to push back against the threat of class actions.

But the company may still have another obstacle. According to The Verge, counsel for the Uber drivers, are encouraging the drivers to seek arbitration on an individual basis. Indeed, it is seeking thousands of them.  Consider it the “death by a thousand paper cuts” approach.  Will it work?

Stay tuned.  In the meantime, companies ought to still consider arbitration provisions with class action waivers as I noted earlier this year.