What does it feel like winning the lottery? I don’t know but it has to feel a lot like getting picked for jury duty.

(Wait, am I the only one to get excited at the prospect of jury duty? <grins sheepishly>)

If you’ve been reading this blog long enough, you may remember that I’ve been called to jury duty before.  Sometimes, it’s been cancelled but back in 2011, I made it all the way to a courtroom — only to be dismissed when I noted that I knew the attorneys at both lawfirms.

Anyways….I’ve been called to jury duty again next week, which gave me the inspiration for this week’s Employment Law Checklist Project post #emplawchecklist. The law is found in a different section than most — and a reminder that not all the laws that employers have to follow are in one neat package.

In fact, this might be one of more confusing employment laws out there.

The key portions of jury duty are actually found in two separate provisions. If your eyes glaze over at the laws, just skip to the summary down below.

Continue Reading Employment Law Checklist Project: Protecting the Sacredness of Jury Duty

As I noted last week, I’l be talking at CBIA’s Employment Law Conference on the topic of “Artificial Intelligence & Analytics for HR: Recruiting, Retention & Engagement” next month.

Joining me on the panel is Doug Smith, the SVP Client Delivery at Tallan, which has offices in the Greater Hartford area.  I thought it might be enlightening to ask Doug a few questions about AI and Analytics in the Workplace before our talk. He was gracious enough to humor me with answers to my questions. Really looking forward to our discussion in two weeks. 

In any event, here’s a return of my ongoing Five, Six Questions Series….

Is there really a place for data analytics in HR?

Definitely.  It has the most impact in larger companies, but even the smaller companies can gain insight by tracking and analyzing their data.  It’s amazing what you can find when you start to really look.

Fair enough. What are the opportunities?

There are so many opportunities here, it really depends on what an organization’s goals are. Higher retention, enhanced engagement, recruiting, and corporate culture are just a few. There are data points hidden in so many different places.  How you collect those data and what you do with them depends on what your goals are.

A great example is employee retention.  Companies can predict which employees are at a high risk for leaving by looking at things like commute distance, attendance history, advancement, and compensation.  Changes to one or more of these will change their risk, which can trigger an alert, allowing the HR department to proactively intervene.

What types of data are being looked at by companies who want to stay on top of this trend?

Your standard data is all still valuable. Now we’re able to pair it with more interesting data from many different areas and get a more accurate picture of not only what is going on, but why.  So you start with basic demographic information and add in your timesheet information, performance reviews, PTO usage, and other easy data sets.  Then you can start layering in things like recruiting information, education, corporate involvement, and work output.  You can even ask for data using AI to drive polls or chats to make it anonymous for employees.   Companies are really starting to push the envelope of what’s possible with data collection.

What is the pushback you’ve heard from employers about this and how have you overcome them?

This is a great question, I’d love to find out what types of comments and questions you get after people read this. It might make for a great follow-up post!

The biggest concern I have seen is respecting employee privacy.  As we are able to collect more data, we need to continuously check ourselves to ensure we are not crossing moral boundaries.  You could, legally and technically, use an AI to read all your employee emails to identify upset employees.  Most companies wouldn’t do this, but it scares people to know that you can.  I think what you’ll find is people will start with more innocuous data sources, and slowly progress as both HR and the employees learn to trust each other with this technology.

What about machine learning, predictive modeling and artificial intelligence? Hype or reality or somewhere in between?

These are all reality, and in use to some degree in most places already.

There are some requirements for these more advanced technologies that can create a barrier to entry, like data size.  For smaller companies, predictive modeling through Machine Learning could prove to be difficult, but as big businesses continue getting on board, there will be a collective industry learning, which can eliminate that barrier.  Amazon had a spectacular failure using AI to streamline recruiting, but the lessons learned have benefited everyone, and the next company to try will have a better outcome.  As those successes become more commonplace, their benefits will trickle down to the smaller companies as pre-packaged solutions and industry knowledge.

If someone is interested in learning more about this, are there resources available?

So many!  There are many articles and books, videos, and communities in this area.  And if you want to get hands-on to try it, most of the major vendors offer limited trials of their solutions.  Microsoft has a great set of resources that I refer people to, but you can find similar resources at Amazon, Google, and IBM.  Start looking into any specific area, such as HR, and you’ll quickly find a wealth of information, tools, and people willing to help.

It’s been a while since I talked about federal employment law legislation — in part because nothing ever seems to pass Congress nowadays.  It wasn’t that long ago, that Congress passed the ADA Amendments Act (10+ years).  But it feels like a lot longer than that.

So enter Connecticut Senator Chris Murphy.  Last Friday, he held a news conference to push a new bill that he is co-sponsoring with Republican Senator Todd Young of Indiana.

The bill – according to press reports — would ban non-competes everywhere.  While the Congressional website on bills doesn’t yet have it up, I did find a copy here.

According the Senators, the bill would do the following:

  • Narrow the use of non-compete agreements to include only necessary instances of a dissolution of a partnership or the sale of a business.
  • Place the enforcement responsibility on the Federal Trade Commission and the Department of Labor, as well as a private right of action.
  • Require employers to make their employees aware of the limitation on non-competes, as studies have found that non-competes are often used even when they are illegal or unenforceable. The Department of Labor would also be given the authority to make the public aware of the limitation.
  • Require the Federal Trade Commission and the Department of Labor to submit a report to Congress on any enforcement actions taken.

The bill would, at its core, create a massive new way for the federal courts to be involved in employment cases.  For that reason alone, I suspect this bill is DOA.

BUT, the bill highlights a trend that has been increasing of late, that is — the attack on non-compete agreements.

Even in Connecticut, which has long-resisted a broad ban on them, there have been signs that the wall has begun to crack. A few years ago, the legislature banned non-compete agreements for physicians.  And this past session, a ban on non-competes for home health care workers passed.

For employers, the time is ripe to think about a new strategy going forward. That strategy may focus on protection of confidential information and specific non-solicitation clauses.  Regardless, the time of using non-compete agreements broadly may be coming to an end soon.

In just a few weeks, I’ll be speaking at the CBIA’s Employment Law Conference on the topic of “Artificial Intelligence & Analytics for HR: Recruiting, Retention & Engagement”.

As I was speaking to the moderator about potential subjects of our discussion, we were arguing over whether AI is something for the future or something for now.

A news item in the Washington Post today is clearly one to put on the column for “now”.

Designed by the recruiting-technology firm HireVue, the system uses candidates’ computer or cellphone cameras to analyze their facial movements, word choice and speaking voice before ranking them against other applicants based on an automatically generated “employability” score.

HireVue’s “AI-driven assessments” have become so pervasive in some industries, including hospitality and finance, that universities make special efforts to train students on how to look and speak for best results. More than 100 employers now use the system, including Hilton, Unilever and Goldman Sachs, and more than a million job seekers have been analyzed.

The technology raises the debate: Is it “pseudoscience” and “a license to discriminate” as one critic called it, or “more objective than the flawed metrics used by human recruiters” as one of HireVue’s executives noted?

The answer, of course, is a lot more complicated than that.  AI is still in its infancy and is prone to errors.  Just ask Amazon, which had to scrap an secret AI tool, that showed a bias against women.

And so, employers who want to be on the cutting edge of technology need to under that legal risks still exist.  Disparate impact claims are ripe for the asking for a company that uses AI in a way that has a disproportionate impact on a protected group.

Interested in more on the subject? Be sure to sign up for the program on November 15th starting at 8:30a at the Hartford Marriott Farmington.

I’ll be speaking along with Doug Smith, Sr., Vice President Client Services at Tallan, Inc.  See you there. 

The laws regarding the protections owed to pregnant employees got far broader a few years back. In fact, the statutory provision prohibiting discrimination against pregnant employees has eleven key items. Rather than tackle them in separate posts, we’ll “super-size” this post to cover it all.

The main law is set forth at Conn. Gen. Stat. Sec. 46a-60(b)(7), though it is to be read in conjunction with the state’s broad anti-discrimination laws.

The key prohibitions state that it shall be a “discriminatory employment practice” for an employer (or the employer’s agent):

(A) To terminate a woman’s employment because of her pregnancy;

(B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;

(C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;

(D) to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so;

(E) to limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy;

(F) to discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;

(G) to fail or refuse to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer; Continue Reading Employment Law Checklist Project: The 11 Things You Should Know About Pregnant Employees

I was going to save this post for the Yankees run into the World Series, but with the Yankees losing last night, it seems quite possible that they might not get there this year.  

Employment law contracts typically are not that complex. Oh sure, they may LOOK complex but most of the time, you build them with the same building blocks.

As it turns out, even baseball contacts have their own formula.

Turns out it’s not that hard to find — if you know where to look.

The uniform baseball contract can actually be found at the end of the collective bargaining agreement between the players association and the 30 baseball clubs which you can download here.  

It’s on page 350 of the CBA so you might not have stumbled upon it, but it makes for a fascinating read because the building blocks there look different than other contracts.  So what are some interesting terms?

  • Players are paid on a semi-monthly basis but only during the “championship season”.
  • A Player must “keep himself in first-class physical condition and to obey the Club’s training rules, and pledges himself to the American public and to the Club to conform to high standards of personal conduct, fair play and good sportsmanship.”
  • Players cannot engage in “professional boxing or wrestling; and that, except with the written consent of the Club, he will not engage in skiing, auto racing, motorcycle racing, sky diving, or in any game or exhibition of football, soccer, professional league basketball, ice hockey or other sport involving a substantial risk of personal injury.” (So play all the golf you want.)
  • Clubs can terminate the contract for a few reasons including if the player:
    • fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the Club’s training rules; or
    • fails, in the opinion of the Club’s management, to exhibit sufficient skill or competitive ability to qualify or continue as a member of the Club’s team; or
    • fails, refuses or neglects to render his services hereunder or in any other manner materially breach this contract.
  • But never fear, if the player is terminated, he is entitled “to receive an amount equal to the reasonable traveling expenses of the Player, including first-class jet air fare and meals en route.”

In the end, the contract is not like most employment agreements. But even within baseball contracts, there are exceptions too.  I recalled a post I did  “a few years ago” about Yankee great Derek Jeter’s baseball contract. Then I realized it was over 10 years ago. And I figured I should stop this post while I’m not reminiscing about the past.

Let’s hope my Yankees can pull out a victory tonight.

At our Shipman & Goodwin Labor & Employment Law seminar last week, one of the hot topics that got attendees talking was about minimum wage & overtime rules — both of which are in the midst of change.

But my fellow partners brought up another law in that discussion that shouldn’t be overlooked.  And that provides a nice entry way into this week’s Employment Law Checklist Project #emplawchecklist.

The law is set forth at Conn. Gen. Stat. Sec. 31-40z. The key prohibitions are set forth in subsection (b) as follows:

No employer shall:

(1) Prohibit an employee from disclosing or discussing the amount of his or her wages or the wages of another employee of such employer that have been disclosed voluntarily by such other employee;

(2) Prohibit an employee from inquiring about the wages of another employee of such employer;

(3) Require an employee to sign a waiver or other document that denies the employee his or her right to disclose or discuss the amount of his or her wages or the wages of another employee of such employer that have been disclosed voluntarily by such other employee;

(4) Require an employee to sign a waiver or other document that denies the employee his or her right to inquire about the wages of another employee of such employer;

(5) Inquire or direct a third party to inquire about a prospective employee’s wage and salary history unless a prospective employee has voluntarily disclosed such information, except that this subdivision shall not apply to any actions taken by an employer, employment agency or employee or agent thereof pursuant to any federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes. Nothing in this section shall prohibit an employer from inquiring about other elements of a prospective employee’s compensation structure, as long as such employer does not inquire about the value of the elements of such compensation structure;

(6) Discharge, discipline, discriminate against, retaliate against or otherwise penalize any employee who discloses or discusses the amount of his or her wages or the wages of another employee of such employer that have been disclosed voluntarily by such other employee; or

(7) Discharge, discipline, discriminate against, retaliate against or otherwise penalize any employee who inquires about the wages of another employee of such employer.

That’s a lot of “don’ts” in one law. So let’s dig deeper into each of them to add to our checklist.

Scope:  Employers are defined here as “any individual, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any political subdivision thereof and any public corporation within the state using the services of one or more employees for pay”.  In other words, among the broadest definitions of employers. And it includes the state.

What’s Prohibited or Required? A lot.  The law says that employers can’t prohibit employees from disclosing their own salary or asking co-workers about theirs.  Employers can’t require employees to waive their rights to do those things.  And employers can’t take an adverse employment action against employees who do those things.  It also prohibits employers from asking job applicants about the applicants wage & salary history (unless it’s voluntarily disclosed by the applicant or an exception applies.)

Private Right of Action or Other Penalty Allowed? Yes! An employee has two years to bring a private right of action.

What May Be Recovered? Employees may recover compensatory damages, attorney’s fees and costs, punitive damages and “such legal and equitable relief as the court deems just and proper.”  In other words,  potentially a lot.

Any Practical Steps Employers Can Take? Yes.  Update your employee handbook to address this law. Tell supervisors and hiring managers about these restrictions.  And if you see employees discussing their salary on social media, resist the urge to fire the employee — you may just get a lawsuit as a result.

Any Other Interesting Information or Background? This law is really the result of two different bills that I’ve talked about many times before when they were under consideration.  But seeing them in the statutes shows their breadth and scope. And don’t forget about the NLRA restrictions on “protected concerted activity.”

And really, so “Everybody’s Talkin'”? Take a breath and listen to this great song by Tedeschi Trucks Band.

This is one of those laws that has sneaky exposure for businesses. Creating a private right of action — with attorneys fees and punitive damages — means that at some point, attorneys representing individuals are going to find some cases to make an example of.  Don’t be that employer.

Train your staff on this law and ensure your compliance with it.

On Friday, I presented a program on “Paid FMLA: Does It Leave You Confused?” at my firm’s semi-annual Labor & Employment Law Seminar, along with my Shipman & Goodwin colleague Chris Neary.

Suffice to say that while the pun was well received, we had a number of attendees who left the seminar understanding that the breadth and scope of the state’s new Paid FMLA law may be far greater than they previously understood.

Even now, the new Paid Family and Medical Leave Insurance Authority — a new quasi-public state agency — is still getting up and running.  One of my former colleagues, Henry Zaccardi, recently retired from Shipman & Goodwin and will be serving on the board.

Of course, there’s still plenty of time to adjust to Paid FMLA. Payroll withholdings won’t start until 2021 and the employer requirements to offer such leave don’t start until 2022.

But that still leaves employers with lots of questions to ask.

Among them:

  • Should we consider outsourcing our FMLA decisions to a third-party provider, like The Hartford? 
  • Should we even consider over-staffing to deal with the likely increase in employees seeking leave?
  • What policy and procedure changes should we be considering now?
  • How will we train our staff to understand the implications of the new law?
  • Who is going to be tasked with keeping up with the regulations and guidance that is likely to be coming from the new PFML agency?

This only scratches the surface.  A new website is being established by the authority that should answer some questions but it’s going to be a long road ahead for most employers.

 

How many days in a row can an employee work? That’s the question we’ll tackle in this installment of the Employment Law Checklist Project. #emplawchecklist

It’s actually a question I first asked right before Yom Kippur twelve years ago so it seems appropriate to revisit this today with the holiday this week.

The short answer is actually 12 — even though the law seems to suggest 6. And even 12 may not be the right answer. Details below.

The state law on the subject can be found in a section that looks to be unrelated to all the employment laws we’ve been covering: Conn. Gen. Stat. 53-303e. 

Wait, isn’t that in the criminal code? 

Why yes it is. It’s in the section that relates to the state’s blue laws — some of which were overturned many years ago.  But this particular law was revised in 2013 to update it to comply with a court ruling on the subject.

What’s it say? Well the key provision is as follows:

(a) No employer shall compel any employee engaged in any commercial occupation or in the work of any industrial process to work more than six days in any calendar week. An employee’s refusal to work more than six days in any calendar week shall not constitute grounds for his dismissal.

Scope: Seems to be all employers.  Employees engaged in any “commercial occupation” or in the “work of any industrial process” are protected, though good luck finding any cases truly delving into this.

What’s Prohibited or Required? An employer can’t “compel” or force an employee to work more than six days in a row in any calendar week.  And an employer can’t fire an employee who refuses to work on the seventh day.  BUT, asking an employee to work or the employee’s voluntary acceptance of such work is permissible.

So, how did I say 12 days in a row before?  Because the restriction only applies during a calendar week; as the CBIA noted, once a new calendar week starts, the clock resets. So technically you could have an employee work Monday to Saturday one week, and Sunday to Friday the next.

And as noted, an employee can work all seven days — as long as it is not compelled by the employer.

Private Right of Action or Other Penalty Allowed? No private right of action appears allowed by the employee can make a complaint to the State Board of Mediation and Arbitration.

As for penalties, if the  SBMA finds a violation, it can order “whatever remedy will make the employee whole”.  Also, section (c) indicates that any person who violates this section shall be fined not more than $200.  Note that this appears to be a conflict with Conn. Gen. Stat. Sec. 53-303c which indicates that the penalty for a violations ahll not be more than $100 for the first offense or $500 for subsequent offenses.

Any Practical Steps Employers Can Take? Ask, don’t demand, that employees who want to work all seven days in a week will be permitted to do so; just make sure it’s voluntary.  Of course, for some employees, they may get substantial overtime for the work so there may be a cost too.

Any Other Interesting Information or Background? When employers look up employment laws, they need to realize that not all laws are group together. Some of the laws are in far-ranging places that you wouldn’t first look at.  Here, the criminal laws are implicated.  If you want to see what other statutes are “nearby”, you should know that the state prohibits certain “bucket shops”. 

Yeah, I needed to look that up too.

A hearing is set for Thursday on draft legislation to “fix” a bill that had been earlier vetoed and that I discussed in a post earlier this weekCTNewsJunkie.com was first to report on the details earlier Wednesday.

The bill comes at an interesting crossroads in restaurant wage/hour law. Earlier this week, the U.S. Department of Labor released proposed guidance that would give restaurants far greater latitude in deciding on tip pools and the application of the tip credit.

Indeed, the proposed federal regulation would permit a tip credit to be taken regardless of the percentage of servers’ time that’s spent on so-called “non-service” duties, provided this side work is done during, just before, or a reasonable time after regular “service” time.

The proposed Connecticut bill can be found here and would require the CTDOL to write regulations that employers can then, in good faith, rely upon. The bill would also try to limit some class actions that have been brought as well.  It’s somewhat consistent with the proposal being floated about last week that I posted on on Tuesday.

The two key provisions of the new bill are as follows:

  • Notwithstanding the provisions of subdivision (1) of this subsection, if any employee is paid by his or her employer less than the minimum fair wage or overtime wage to which he or she is entitled under section 31-62-E4 of the regulations of Connecticut state agencies, such employee shall recover, in a civil action, (A) twice the full amount of such minimum wage or overtime wage less any amount actually paid to such employee by the employer, with costs and such reasonable attorney’s fees as may be allowed by the court, or (B) if the employer establishes that the employer had a good faith belief that the underpayment of such wages was in compliance with the law, the full amount of such minimum wage or overtime wage less any amount actually paid to such employee by the employer, with costs as may be allowed by the court. A good faith belief includes, but is not limited to, reasonable reliance on written guidance from the Labor Department.
  • Notwithstanding section 52-105 of the general statutes, no person may be authorized by a court to sue for the benefit of other alleged similarly situated persons in a case brought for violations of section 31-62-E4 of the regulations of Connecticut state agencies, unless such person, in addition to satisfying any judicial rules of practice governing class action certifications, demonstrates to the court, under the appropriate burden of proof, that the defendant is liable to all individual proposed class members because all such members (A) performed nonservice duties while employed by the defendant, for more than a de minimis amount of time, that were not incidental to service duties, and (B) were not properly compensated by the defendant for some portion of their nonservice duties in accordance with section 31-62-E4 of the regulations of Connecticut state agencies.

The bill would make these effective from passage and likely give restaurants some protection with the existing class-action litigation that has been plaguing these places.  The hearing is set for 10 a.m. at the legislature.