The U.S. Supreme Court this morning in Janus v. AFSCME (download here) reversed 40 years of labor law precedent and concluded that  requiring public employees to pay “agency fees” for labor unions that they don’t want to belong to violates the First Amendment of the U.S. Constitution.

Previously, prior cases have banned forcing public sector employees from joining a union and paying union dues. But a number of states permitted union contracts that required employees to still pay an “agency fee” to cover the costs of collective bargaining.

In its 5-4 decision, the U.S. Supreme Court rejected this — leaving public sector unions, particularly in states like Connecticut, to potentially lose significant funds from employees who say that they want no part of their salary to go towards unions.

Given that this blog covers more employment law than labor law, and focuses more on private-sector than public sector, I’m not going to do a deep-dive today into the case. The SCOTUSBlog is one good resource. 

But my labor law colleagues at my firm have spending the morning looking into this.  Here’s the quick recap posted this morning on the Employment Law Letter blog and the impact to Connecticut public-sector employers.:

The immediate effect of the Court’s decision is that agency fee (or “fair share” fee) provisions in collective bargaining agreements are invalid. The Court specifically states that agency fees and similar payments may not be deducted from an employee’s pay unless the employee has expressly consented to the deduction.

This statement suggests that employers should stop deducting agency fees unless and until an employee has affirmatively consented.

Because Connecticut law requires express employee consent for payroll deductions, Connecticut public sector employees have likely already consented to the deduction of agency fees.

However, public sector employers should be prepared for employees approaching them and requesting that the agency fee deductions be stopped, effectively withdrawing their consent.

Justice Alito’s decision is emphatic in this point and the significant dollars at stake:

We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

Watch my firm’s blog for more details on this critical decision in the public-sector.

Cars. Lots of really fancy cars.

That about sums up my Sunday in which I went to the Concorso Ferrari & Friends car event in West Hartford Center.  It has one of the biggest collections of ultra-expensive cars in the state — all to benefit the Connecticut Children’s Medical Center.

What I wouldn’t do to commute in the Pagani supercar! (Anyone have an extra $3 million lying around?)

Now, the odds on you commuting in a supercar and wondering if you’re getting paid by your employer are probably about the same as winning Powerball, but it’s still worth asking the question: Why don’t you get paid for commuting to work?

The answer lies in the law and something called the Portal-to-Portal Act. 

The Act states that employers are not required to pay for the time employees spend on activities occurring before or after (“preliminary or postliminary”) they perform the principal activities for which they are employed.

Thus, compensable working time generally does not include time spent:

  • Traveling to or from work.
  • Engaged in incidental activities before or after work.

A few years ago, an argument was made that state law ought to allow for some compensable travel time to and from work if the employee was travelling with tools.

The Connecticut Supreme Court rejected that interpretation saying such laws were pre-empted by the Portal-to-Portal Act.

And yet, the Connecticut Department of Labor continues to advance a regulation on travel time that, according to same court, “was not promulgated pursuant to any formal rule-making procedures or articulated pursuant to any adjudicatory procedures, has not been time-tested or subject to judicial review in this state.”

In any event, commuting with a supercar might be fun — but it doesn’t change whether you get paid for it under the law.

The Commission on Human Rights and Opportunities can sometimes be seen as an easy punching bag by legislators, employees, employers and employment law attorneys.

But there’s one area that has been an unequivocal success and where you won’t see almost any headlines.

The CHRO several years ago developed the Kids Court Essay Competition which runs each year.  In it, it gives high school and middle students the opportunity to talk about topics that are important to them and shine a spotlight on others who may not have the same opportunity.  In doing so, the competition focuses on important and contemporary civil justice issues.

This year’s essay topics were:

The CHRO received over 300 (!) entries.  Out of that, five essays were chosen as finalists at both the middle school and high school levels.  Each student then had the opportunity to address the Kids Court — a panel of distinguished lawyers, judges and others assembled for this purpose.

This week was this this year’s Kids Court and I was grateful the CHRO asked me to participate as a judge.

The students displayed a keen awareness of the local community; they each talked about topics that were important to them.  The students that talked about Hate Crimes and Educational Equity had a particular resonance to the current events of today.

As an employment lawyer, I found it notable that none of the finalists’ essays were actually on #metoo.  I don’t think there’s much to conclude from that, other than that the students’ essays on other topics were judged to be better.

In 2018, we’ve seen high school students rise to national prominence in Florida over the issue of school safety and gun violence. Listening to these “kids” and making sure their voices are heard is something that employers should consider. Today’s generation of students are increasingly impatient with the pace of change.

Congratulations to all the finalists and I look forward to hearing their continuing contributions to our civil discourse in the years to come.

 

If you ever read the state labor laws (wait, you haven’t?), you sometimes come across provisions that seem like they were written for another generation.

And indeed, they were.

Take, for example, Conn. Gen. Stat. 31-23.  It prohibits children under the age of 16 from working in the “manufacturing, mechanical, mercantile or theatrical industry”.

That seems to make some sense as far as child labor laws are written. Then it goes on.

It also prohibits working in a “restaurant or public dining room.”

Public Dining Rooms? I was about to write this off entirely as just outdated but there is at least one reference I’ve found in Connecticut to a “public dining room”.  Grasso Tech’s culinary arts program advertises a “public dining room” on Facebook, so perhaps we can give them a break.

And then the statute singles out three other businesses to add to the prohibition: any bowling alley, shoe-shining establishment or barber shop.

It seems an odd arrangement for businesses. Some of it can certainly be seen rooted in safety — you wouldn’t necessarily want minors dealing with sharp tools if a barber shop or the equipment of a bowling alley.

Indeed, Conn. Gen. Stat. 31-25 prohibits minors from operating elevators! Tell that to my kids who love pushing the buttons.

My best guess from review of the legislative history, though, is that the statute is rooted in something more nefarious — that these industries would somehow show the dark side of society.

Now, there are some exceptions for other businesses over the last decade or so that I’ve covered previously; golf courses, or cashiers in supermarkets etc. all have some exceptions.

But the bowling alleys and shoe shining establishment bar still stands.

Some laws are hard to change.

It was the last semester of my senior year in college – right after Spring Break – when I heard the news that would forever shape my views on mental illness.

A friend and fellow editor of the college newspaper I worked for, Steven Ochs jumped to his death from one of the many bridges near his hometown in Pittsburgh, PA.

A group of us ended up driving out there across the fields of Pennsylvania to mourn his passing. It was the first time I was a pallbearer at a funeral and I knew then that was something I never wanted to be for a friend again.

Steven was a remarkable young adult.

I wish you could’ve known him.  He wrote amazing columns for our college paper and editorials nearly every weekday.  Thanks to the internet, you can still read a few here.

I can still remember sitting in his newspaper office couch and hearing him talk; he was always a few steps ahead of me.  I thought he had a promising future.

I thought about Steve a bunch last week, when the celebrity suicides of Kate Spade and Anthony Boudrain became headlines.

Those people, along with Steve, seemingly had everything that would want.

And yet.

As anyone who has had a friend or relative commit suicide, there’s a certain amount of second guessing that goes on. What signals did I miss? What could I have done differently? Was I a good enough friend? Why didn’t he ask for help?

And a lot times, it just comes down to a simple question too: Why?

Every suicide of a employee impacts the workplace as well.  And sometimes it is at the workplace itself – but regardless, suicides have been on the rise the last several years. As a Wall Street Journal article from earlier this year noted:

Nationwide, the numbers are small but striking. According to the Bureau of Labor Statistics, suicides at workplaces totaled 291 in 2016, the most recent year of data and the highest number since the government began tallying such events 25 years ago. U.S. suicides overall totaled nearly 45,000 in 2016, a 35% increase compared with 10 years earlier, according to the Centers for Disease Control and Prevention’s National Center for Health Statistics.

Who is most at risk? According to the BLS study, 45- to 54-year-old males had the highest likelihood of committing workplace suicide. And workers in the public sector had a higher propensity for workplace suicide while workers in the private sector suffered the majority of these fatalities. The private industry sectors with the highest propensities for workplace suicide were finance and insurance; professional, scientific and technical services; and health care and social
assistance.

The solutions are far more complex than a simple employment law blog post can capture.  Some of them are rooted in society.  But discussions regarding mental health — and bringing those discussions in the workplace — is often seen as one important step that can be done.  A renewed emphasis on making sure employees know about and use Employee Assistance Programs is also another important step.

HR staff can sometimes be at the front lines.  Figuring out that an employee might need help can be a part of a solution but as we all know, it might still not be enough.

We can only hope that as we raise awareness of this, that we can stop some suicides from occurring so that 25 years from now, someone else isn’t writing a blog post about one of their friends as well.

 

 

Earlier this week, I made my long-awaited (ok, long-awaited by ME) return on WNPR’s ever-popular “Where We Live” show.

As always, I’m thankful for the invite.

My appearances date back quite some time (remember pizza and child labor in 2010?), so it was nice to be back in the studio to talk about age discrimination and other workplace issues.

So, is age discrimination still a problem?

The answer is plainly “yes”.

A related question, though is how MUCH of a problem? And is it getting better or worse?

By one measure, it’s been going down in a noticeable way the last several years.  In 2008 for example, there were over 24,500 charges filed on age grounds; in 2017 – it was down below 18,500 – a drop of over 20 percent.

Statistics, though, only tell part of the story because historically, you’d expect more to see more charges in a recession than an improving economy.

An article by The New York Times over the winter raised concerns that Facebook Job Ads were being used in a way to target younger potential applicants.  And some have suggested that the federal law itself is too weak.  

So, recognizing the age discrimination remains an issue in society is an easy task. But solving this — and ensuring that workplaces have a diversity of ages, remains a issue of which there are no easy answers.

You might think the title of this post is a bit self-serving or even self-promotional. Is this post just going to be a backhanded way to hire me, an employment law attorney?

I want to dissuade you of the notion because that’s actually not my purpose.  (Really.)

But over the years, I’ve had friends and colleagues struggle with finding the right lawyers for their business.  In some cases, my firm (Shipman & Goodwin LLP) might be a good fit for them. In other situations, whether because of conflicts or costs, we might not be.

What I tell people is to take a step back and ask yourself a series of questions to start with.  I thought I’d share just a few of them to start the conversation:

  1. What are my needs? This is perhaps the hardest, but most important question to ask yourself before you start.  If you don’t know what your needs are, it’s really tough to find a good match.  If a lawsuit is filed against you, then obviously you need an attorney who has experience in the area that can represent you.  But is this a one-off matter that will be handled in a few hours, or is this likely to be much larger and need the resources of a firm that can handle this?
  2. Do I have insurance that might cover the lawfirm’s expenses (or, perhaps dictate what lawyer I must hire)? Some employers have purchased insurance to handle defense of employment-related claims and you might not even know about it. Figure that out first because there’s nothing worse than hiring one lawfirm only to find out that you’re going to have to choose another attorney by the insurance company.
  3. Do I have a budget? And if so, what lawfirms can work within that budget so that I can maximize my value? Most lawfirms charge by the hour, but will work with companies to try to fit a budget.   But will that mean you are working with an inexperienced associate? Or a more senior one or a partner on your issue?
  4. Do I have related issues beyond just employment law that a general practice firm can best handle? Over the last 15 years or so, employment law boutiques have popped up and for some companies, they may be a good fit (particularly if covered by insurance). But for others, they may have needs that go beyond that? Will you need to find 2 or 3 lawfirms to handle your issues, or should you go with one firm that can service all of them.
  5. Should I pick a lawfirm or pick an attorney AT the lawfirm? Much like hiring a doctor, there are some tasks that can be handled by a variety of lawyers. But for other issues, you might need to seek out a lawyer with a particular expertise.
  6. Do I know anyone that is currently using a lawyer that can recommend one to me?  You might have found this post via Google, which is both amazing and scary at the same time.  If you have, don’t choose a lawyer just because Google ranked them. Rather, if at all possible, do your due diligence on the lawyer. Word of mouth and recommendations from friends and colleagues remains a great way.  Keep asking around until you find someone you’re happy with. Don’t just settle on the first name that pops up.
  7. Can I find out more about how the lawyer thinks through his or her online presence? And if so, does it match my style?  Have you always envisioned your lawyer being a “pitbull” who will support your view no matter what? Or do you want someone who can methodically look at your issue and perhaps give you advice you may not want to hear? Or something else? There are plenty of different lawyers with differing styles. Find the one that fits your company.

There’s something I left off the list — ratings.  Whether it’s “Best Lawyers”, or “Super Lawyers” or “Chambers” or “Avvo” or something else, be wary of hiring a lawyer exclusively based on such a rating.  While it certainly doesn’t HURT to have a lawyer on such a list, there’s far more important qualities to look for in a lawyer.

What else should you look for? Add your view in the comments below.

With Memorial Day coming up this weekend, it’s often a time (or it ought to be a time) to reflect on the sacrifices made by our military.  And at the same time, consider how we, as a society, treat our veterans.

This issue was highlighted for me many years ago.  During a court proceeding in which fraudulent behavior of the witness was being discussed, the witness brought up his past military service, perhaps as a way to seek leniency from the court.

To my surprise, rather than dismiss the comment as outright pandering to the court, the judge took a few minutes to express appreciation to the witness for his service and to note that the judicial system should be sensitive to the needs of veterans.

The court didn’t rule in favor of the witness but I was still struck by the judge’s sensitivity.  It was a learning moment for me that all of us involved in the legal system ought to treat veterans in a similar way — with, at a minimum, recognition for their service and respect.  It didn’t matter at that time whether the veteran was honorably discharged or not; it was their service that mattered.

It is with that background in mind that employers should consider the new guidance from the Commission on Human Rights and Opportunities (CHRO) entitled “Guide to the Nondiscrimination in Hiring and Employing Connecticut Veterans”.

In it, the CHRO reminds us that employment discrimination on the basis of “status as a veteran” became illegal effective October 1, 2017.

And what is a “veteran”? Anyone who served? Actually no.

According to the statute, “veteran” means “any person honorably discharged from, or released under honorable conditions from active service in, the armed forces.”

Thus, by its own terms, employers cannot discriminate against veterans who received an “honorable discharge” or a discharge “under honorable conditions”.

But the CHRO guidance addresses whether employers can make hiring decisions regarding veterans who have received discharges under the three other primary designations:  “other-than-honorable discharge, bad conduct discharge, and dishonorable discharge.”

The CHRO calls these designations (along with the discharge under honorable conditions) as “less-than-honorable” or “bad paper” discharges.

The CHRO’s guidance suggests that discrimination against someone who received these “bad paper” discharges might also violate the law because of their “disparate impact on veterans of color, LGBT veterans, and veterans with disabilities”.

Thus, the CHRO opines, “reliance on discharge status” may still violate Connecticut’s anti-discrimination laws.

What’s the proposed solution from the CHRO? Several suggestions are offered:

  • “Provide individualized consideration to veterans with less-than-honorable discharges. This means you should consider the nature of the discharge (i.e. why the veteran was discharged—was it for a minor infraction or because of behaviors related to a mental health condition?), the time elapsed since the discharge, the nature of the positions sought and how the discharge is in any way related to the position the veteran is applying for.
  • Second, you should provide the veteran-applicant the opportunity to present her case for why the discharge should not be factored into your hiring decision. You might also consider the presence of mitigating circumstances like PTSD if the veteran discloses them to you.
  • Additionally, for those service members who were discharged due to conduct arising from a disability like PTSD, you have an independent obligation under both state and federal law to provide “reasonable accommodations” such as making the physical work environment accessible or providing a flexible work schedule.
  • Finally, if you contract with a consumer reporting agency such as HireRight or TransUnion to conduct background checks and your background check results in the discovery of information about an individual’s discharge status, you are required under the Fair Credit Reporting Act to provide notice to the veteran applicant prior to taking any adverse action….”

Employer Takeaways

The CHRO’s guidance here is reminiscent of guidance issued by the EEOC in the early 2010s regarding the use of criminal background checks and the potential for a racial disparate impact.

At the time, some argued that the agency overstepped its authority because there was nothing that outright prohibited the use of such checks under the law and the reach to “disparate impact” was a step too far.

One could make a similar argument here that the CHRO’s suggestion that discrimination against veterans of all types of discharges might also be covered — after a new law that was passed that prohibited discrimination against only those veterans those who received honorable discharges — might be deemed to be overreach.  The legislature only sought fit to protect veterans with honorable discharges; why can’t employers consider those with “bad paper” discharges as a factor in their hiring decisions?

I’ll leave that for the policy-makers to debate.

For employers, the takeaway should be that the CHRO will be looking at discrimination against veterans who received so-called “bad paper” discharges more closely.  While the law may not outright prohibit it, the CHRO will be looking at whether the employer’s decisions might have a disparate impact on a protected class.

And for employers, making individualized determinations on an applicant based on the applicant’s overall fit and qualifications for the position isn’t a bad practice anyways.

 

 

As I noted earlier this week, the U.S. Supreme Court has approved of the use of class action waivers in arbitration agreements with employees.

My colleague, Gabe Jiran, has a recap of Epic Systems v. Lewis on my firm’s blog, Employment Law Letter, that you can access here.

So, it’s a foregone conclusion that employers of all shapes and sizes will start using arbitration agreements and insert provisions with class action waivers, right?

Not so fast.

As Jon Hyman astutely noted in his Ohio Employer’s Law Blog yesterday, this decision may not be the panacea employers are looking for.

For example, it might end up being more costly for employers because arbitration may be more costly than litigation.

Moreover, these costs only increase if you are arbitrating dozens, or hundreds, or thousands, of individual claims instead of one class or collective action. Don’t think for a second that this decision will end wage and hour litigation. Instead, plaintiffs’ lawyers, who currently have claimants opt-in to FLSA collective actions, will instead merely file a plethora of individual arbitration claims.

It’s a valid point but I’m not sure I buy into this entirely.  Arbitration may be cheaper in many instances.

Moreover, part of the attraction that some lawyers have to wage/hour class actions are the attorneys’ fees that can get added on to the case automatically.  Filing a lot of individual arbitration cases may be good in theory, but in practice? That’s still a lot of work for a plaintiff’s-side attorney to follow.  While some enterprising attorneys will continue, we may see a thinning in the practice area as a result.

That said, I could certainly see unions encouraging this type of action at some workplaces — the death by 1000 paper cuts is something to keep in mind.

Employers may also be wary of entering into arbitration agreements with class action waivers because of the public backlash against forced arbitration, particularly  in sexual harassment matters.

This is not new — indeed, there was a Law Tribune editorial in 2014 before #metoo was well-known that suggested legislative reforms in the area.

Employers that are seen as enforcing “coercive” arbitration provisions may face a social media or publicity campaign. Each employer will have to figure out its risk tolerance and how it wants to be seen by its employees and the public before implementing arbitration agreements.

Moreover, in states like California, there are statutes that allow for an employee to sue over workplace violations individually as well as on behalf of others, allowing for “representative suits”, similar to class actions.  These “Private Attorneys General Act” cases may become the norm in California.

Could Connecticut follow?

These are just a few of the considerations that employers ought to be thinking about in light of the Epic Systems decision.  The decision certainly provides employers with another tool in managing their workforce. The question on the table now is whether that tool is useful or not.

In an important 5-4 decision, the U.S. Supreme Court this morning held, for the first time, that class or collective action waivers, particularly in wage/hour cases, and contained in arbitration agreements between employers and employees are valid and enforceable.

Because wage and hour class and collective actions are quite costly for employers to defend against, this decision should cause employers in Connecticut (and nationwide) to re-evaluate their employment relationships with employees and consider enacting wide-ranging arbitration agreements that include class-action and collective action waivers.

The decision in Epic Systems Corp. v. Lewis (download here) was just released at 10 a.m. this morning, so I’ll have more in an upcoming post after I’ve had time to digest it, but here’s the summary from the Supreme Court itself:

In each of these cases, an employer and employee entered into a contract providing for individualized arbitration proceedings to resolve employment disputes between the parties. Each employee nonetheless sought to litigate Fair Labor Standards Act and related state law claims through class or collective actions in federal court. Although the Federal Arbitration Act generally requires courts to enforce arbitration agreements as written, the employees argued that its “saving clause” removes this obligation if an arbitration agreement violates some other federal law and that, by requiring individualized proceedings, the agreements here violated the National Labor Relations Act. The employers countered that the Arbitration Act protects agreements requiring arbitration from judicial interference and that neither the saving clause nor the NLRA demands a different conclusion.

Until recently, courts as well as the National Labor Relations Board’s general counsel agreed that such arbitration agreements are enforceable. In 2012, however, the Board ruled that the NLRA effectively nullifies the Arbitration Act in cases like these, and since then other courts have either agreed with or deferred to the Board’s position.

Held: Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise.

In doing so, the court relies on two main arguments. First, the Federal Arbitration Act compels this and notes that the Concepcion decision from a few years back foretold this (which I previously previewed in a prior post).  Second, the National Labor Relations Act doesn’t compel a different result.

Justice Gorsuch writes the majority opinion here and concludes: “The policy may be debatable but the law is clear: Congress
has instructed that arbitration agreements like those before us must be enforced as written. ” He criticizes the dissent for its language suggesting a retreat from modern day labor laws:

In the dissent’s view, today’s decision ushers us back to the  Lochner era when this Court regularly overrode legislative policy judgments. The dissent even suggests we have resurrected the long-dead “yellow dog” contract. … But like most apocalyptic warnings, this one proves a false alarm. … Our decision does nothing to override Congress’s policy judgments.

Justice Ginsburg writes the dissent and concludes:

If these untoward consequences stemmed from legislative choices, I would be obliged to accede to them. But the edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. The FAA demands no such suppression of the right of workers to take concerted action for their “mutual aid or protection.”

It’s an “Epic” day at the Supreme Court.   Will this have the same effect for state law claims? How should employers implement these changes? When? For all employees?

Lots of questions but today, at least, the Supreme Court answered one of the biggest employment law questions out there.