So like nearly all of America, my family saw Avengers: Endgame this weekend.

(Minor Spoiler Ahead!)

Of course, we laughed. We cried.  And it was definitely better than Cats.  

All the while thinking of the employment law issues that are just under the surface.

You can take the employment lawyer out of the office, but you can’t take the employment law out of an employment lawyer.  In fact, it was way back in 2012, that I first talked about the employment law issues with the Avengers.  (Seriously: If you don’t want to know ANYTHING, there’s a mild spoiler ahead but no major plot points are disclosed.)

So with that in mind, there were numerous employment issues that you might have missed in Avengers: Endgame.  Maybe you were under control of the Mind Stone by Loki.

Let’s start with an important issue: What Accommodations Do You Need to Provide to Professor Hulk?

Imagine having Bruce Banner on payroll as a professor at your university.

A brilliant — but unpredictable — genius, he has sometimes disappeared for days. He blames those days on his split personality and because you determined that his “personality disorder” was a disability, you’ve accommodated him. So far, so good.

Then one day, he says he’s going to have a “procedure” done. One that will combine his “personalities” — Banner and someone named “Hulk” — into one physical being.  He wants to be called Professor Hulk (as that character makes an appearance early on in Avengers: Endgame).  He says he’ll be hospitalized for a few days.

Is this a “serious health condition” requiring FMLA leave?

A serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care (defined as an overnight stay in a hospital, hospice or residential medical care facility; any overnight admission to such facilities is an automatic trigger for FMLA eligibility) or continuing treatment by a healthcare provider.

Either way, since you’re pretty sure that this would qualify you say sure – and grant him FMLA leave.   And then, he shows back up for work.

He’s now about 8 feet tall, green, and has the physical strength of, well, you’ve never seen anything like it.   He just wants to be treated as everyone else but he says he still might need some rest time during his teaching time for a bit to make sure things are “stable”.

What then?

It’s a bit more complicated than it might seem. (Actually, it seems really complicated, you say. But c’mon, this is the Marvel Cinematic Universe so pay attention.)

First off — does Professor Hulk (as he now requests you call him by) have a disability? A disability is defined as a physical or mental impairment that substantially limits a major life activity.  By all accounts, this new Professor Hulk has impairments that substantially increase a major life activity. His split personalities are gone.  In fact, he seems a bit superhero-ey to you.

Let’s go with maybe, maybe not. After all, you don’t want to make Professor Hulk angry.

But let’s just suppose he has a disability for the sake of argument, is the ability to take breaks a “reasonable” accommodation? Under some circumstances, for sure. AskJan is a helpful resource for employers and thankfully, some of the people who work on it weren’t “snapped” away by Thanos.  While not binding, AskJan advises:

Periodic rest breaks can allow an individual to move about, stretch, adjust their seating position, or modify how a task is completed. Breaks can be short in duration, depending on the individual’s needs. Time used for breaks can be taken from already provided break time, lunch, or made up so there is not an impact on productivity.

But something all gnaws at you. You recall something in the ADA referring to a “Direct Threat”.  You initially think – uh, doesn’t a “Hulk” figure represent a Direct Threat? How does that play into things?

The term ‘direct threat’ means a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”  The EEOC regulations spell out this a bit further:

“The determination that an individual poses a ‘‘direct threat’’ shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.”

Suffice to say that Professor Hulk is unprecedented and there are people who worry that he’s a bit unhinged.  But ultimately, he assures you that his “Hulk” personality has mellowed and that he is really the best of both worlds — smart AND strong. He says that instead of his personalities fighting, they are now living in harmony.  Based on the most current medical knowledge, who are you to disagree?  After all, just your hunch that this might not work out isn’t enough to invoke the Direct Threat rule.

You think about it further. Professor Hulk seems to be a rock star. He’s taking selfies with students and his job performance is consistent. He even gives out autographs at restaurants.

Bottom line: If he needs a few rest breaks — give it to him.

What other employment issues are out there in Avengers: Endgame?

Late on Tuesday (April 23, 2019) the CHRO released new Legal Enforcement Guidance on “Pregnancy, Childbirth, or Related Conditions at Work”. 

Or you might call it a “Bluepaper” instead – as a “one-pager” on the subject called it.

That one-pager was prepared by the Worker & Immigrant Rights Advocacy Clinic at Yale Law School’s Jerome N. Frank Legal Services Organization seemingly with the blessing and approval of the CHRO which also posted it to its website late Tuesday.

So is it a Bluepaper or Guidance? Well, it’s titled “Guidance” so let’s go with that.  Indeed, the CHRO’s guidance here follows similar guidance released on other laws by the Connecticut Department of Labor such as this one on Paid Sick Leave.

What are the highlights of the guidance?  In a lot of ways, the guidance mimics (as it should) the current law on the subject. It also mirrors the language already present in the posters released by the CHRO back in 2017.  For example:

  • Workers are entitled to reasonable accommodations for pregnancy, childbirth, and related conditions.
  • Workers are entitled to reasonable leaves of absence due to disability resulting from pregnancy.
  • Workers are entitled to reasonable accommodations and reasonable leaves of absences for any pregnancy-related condition or symptom.
  • Workers are entitled to reasonable accommodations for lactation needs.

The guidance also clarifies that workers are entitled to confidentiality and that an “employee may choose to keep any medical diagnosis
confidential. Likewise, an employer should not directly contact the employee’s doctor without first obtaining the employee’s permission.”

Along with my firm, I’ll continue to review the guidance and provide an updated post with any notable findings in the next few days as well.

Employers, however, that have been following the new laws on pregnancy discrimination (see my post) should be well on their way to full compliance.

Until then, Happy Reading.

Earlier this month, the EEOC released its statistics regarding charges for 2018.  I love looking at these because there are certain trends that always pop out. (You can see some prior years here and here.)

Here are five big takeaways that employers in Connecticut can learn from these numbers.

  • Charges Continue to Go Down — a Lot.  For the seventh year in a row, the number of charges processed by the EEOC continued to go down.  In 2018, the EEOC handled 76,418 charges, a 9.3 percent drop from 2017.  This is down substantially from the high water mark in 2011 of 99,947 and the lowest total in general since 2006.
  • But, Some Claims are Way Up.  Perhaps not surprisingly given the attention that continues to be paid to the #metoo movement, sexual harassment claims are up. In 2018, the EEOC received 7,609 sexual harassment charges — a 13.6 percent increase from 2017.
  • Sex Harassment Claims are Also More Costly.  The EEOC received $56.6M in monetary benefits from sexual harassment claims in 2018 — up from $46.3M the prior year.  But interestingly, the number of EEOC-negotiated settlements for such cases is down.  That’s an interesting point — but why?
  • Retaliation Claims Continue their Climb.  20 years ago, retaliation claims of all types represented just 21.7 percent of all charges filed. in 2018, they represented 51.6 perfect of all claims filed. That means over half of all claims filed contain a retaliation charge. I have long said that retaliation claims are far more difficult for employers to defend against — and the rise in the number of claims no doubt represents the success that employees have had in bringing such claims. Success follows success.
  • First-Filed EEOC Claims in Connecticut are Down.  In Connecticut, most claims are first brought to the state agency. But there are some attorneys — and some individuals — who like to file first at the EEOC.  In 2018, there were 214 such claims — down from 264 in 2017. Interestingly, retaliation claims make up just 37 percent of all of these filed charges — less than the national numbers.

Does this mean that there is less discrimination occurring? While it’s tempting to draw that conclusion, statistics on charges are always impacted by the unemployment rate. When it’s easier to find another job, people are less inclined to file charges.

If April Showers bring May…Oh never mind. In Connecticut, April might as well mean that the General Assembly is getting serious about the bills under consideration.  All the proposals that make headlines in February mean nothing until committees start to vote on the bills and the bills start getting the spotlight on them.

Usually by now, we start to see a significant fall off between aspirational goals and practical bills.

Not this year.

Right now, however, it feels like there is still so much in play.  Things are changing rapidly so it doesn’t make a lot of sense to look at each bill individually.  But beyond the Paid FMLA and the Minimum Wage bills that have gotten the most press, there are still several others that are worth following.

  • SHB 6913 would make massive changes to the state’s non-compete laws. The current version would limit non-competes to one year unless special circumstances would apply. Non-competes would also be unenforceable if the employer terminated the employment of the employee. And despite the fact that Connecticut is an at-will employment state, an employee could resign for “good cause” (which is undefined) and the non-compete would be unenforceable then as well.  It’s been favorably reported out of committee.  This is a bill to keep an eye on.  
  • Senate Bills 64 and 440 would restrict employers from being able to speak on certain political or religious matters, including during union organizing campaigns.  This bill has also been favorably reported out of committee and would likely be the subject of a court challenge, if passed. 
  • Senate Bill 358 would require employers to provide employees with a minimum of four hours off for each regular and special election held “to fill a vacancy in a state, district or municipal office.”  That is a remarkable amount of time off on certain days.  That bill has also been reported favorably out of committee.
  • Senate Bill 3 — reflecting legislative priorities — is also one to keep an eye on because it too has been has been reported out of committee.  The bill would mandate two hours of training on sexual harassment prevention to all employees who work at employers with 3 or more employees. The bill would also allow employers to have these employees watch a 2 hour training video online that is to be created by the CHRO.  The bill would also allow for punitive damages in cases of discrimination.

For more on these bills, you can follow the CBIA’s posts on the subject.  

Suffice to say — if you haven’t been paying attention yet to the legislative session, it’s not too late. Things are just getting interesting.  Who knows what May will really bring.

The Connecticut Appellate Court has an interesting case coming out officially early next week about an employer’s obligations to provide leave as a “reasonable accommodation”. You can download Barbabosa v. Board of Education here.

In it, the Court concludes that when attendance is an essential function of the job (as it will be for most jobs), an employee’s request for intermittent extended leave — that is, more days off — is not a reasonable accommodation under the state’s anti-discrimination laws.

The decision provides some much needed guidance to an area that has been increasingly litigated — namely whether a medical leave, above and beyond FMLA leave, is required as a reasonable accommodation under anti-discrimination laws. The court here finds that there are definite limits.

The facts of the case are pretty straightforward:

  • Plaintiff was a full-time one-on-one, and then classroom paraprofessional for a school system.
  • Throughout her employment, she had “long-standing and well documented issues with absenteeism and tardiness.”
  • By November 2012, a meeting was held to discuss her continued absences and the “negative impact” her attendance was having on students.  She was warned that further violations or unapproved absences could result in suspension.
  • By the end of 2013, she was given another verbal warning and another meeting was held about her absences.
  • In early January 2014, she filed a request for intermittent leave for the entire 2014 calendar year because of a serious health condition.  The request was denied because she had not met the hours requirement under the FMLA.
  • Eventually she was suspended for 30 days without pay in 2014 and yet still her employment was not terminated.
  • The Plaintiff filed a claim under state law alleging that she was discriminated against and suspended because of her disability and that her employer had failed to provide her with a reasonable accommodation. The lower court granted summary judgment to the employer.
  • On appeal, the Plaintiff argued that her generally positive performance reviews created an issue of fact as to whether she was “qualified” for her position. She also argued that her request for intermittent leave constituted a reasonable accommodation that did not eliminate the essential function of her job.
  • The Appellate Court rejects both arguments.

The court starts off by stating that both this court and other federal courts “have recognized that attendance at work is a necessary job function.”  And the court finds that there is no dispute that “Plaintiff failed to perform this essential function in the years leading up to her suspension. ”

The fact that she received generally positive performance reviews is of no concern to the court because the evaluations make repeated references to her attendance being an issue. Of the 13 reviews submitted by both parties, 10 contain a concern about her attendance or punctuality.

As to the request for intermittent leave, the court finds that because attendance is essential, it also shows that “plaintiff’s proposal for intermittent extended leave was not a reasonable accommodation, as a matter of law, because that proposal would eliminate the very essential job function it purports to address.”

The court continues: “Put another way, we fail to see how it is possible to perform the essential function of attending work through an accommodation that provides for even more absences from work”.

What are the takeaways from this case? Two things stand out.

First, the court was impressed by the patience showed by the employer and documentation provided at each step.  Don’t try to do shortcuts.

Second, employees who are continually absent will receive little protection from the courts — assuming employers can show that attendance is critical to the job. Make sure to highlight that in job descriptions if there is going to be some question about that.

There are certain expressions in the employment law world that don’t make much sense.   Call them: Employment Law Oxymorons.

At least for me, hearing an employer ask what they should do about their “1099 Employees” is one of them.

Let’s back up one step:

  • Employees are paid wages and as such, they get issued a W-2 tax form at the end of the year.
  • Independent contractors are paid fees and as such, they should be issued a 1099 tax form.

See the difference?

So when someone says a “1099 employee”, under the law, there really is no such thing.  The problem is that some employers still do not understand the differences or, worse, improperly label workers as “independent contractors” instead of employees.

The modern day example of this was a series of tweets put out last week by a website advertising for a “full-time freelance position.”

See the contradictions?  Full-time and freelance don’t really mesh together.  If you’re truly freelance, you should be able to set your time, place and manner of work.

How do you tell the difference? I previously covered the different tests that should be used but suffice to say that using the phrases “full-time freelancer” and “1099 employees” may indicate that you may not be following either.

Readers of the blog will no doubt know that it’s been far too long since I had Nina Pirrotti on the blog for a conversation about employment law topics.

Excuses abound, but Nina — who mainly represents individuals in employment-related disputes — recently penned a piece for the Connecticut Law Tribune that is too good to let more time pass.

So, knowing still that titling a piece a “Dialogue” while just offering up a link to her piece is less than ideal, it’s important that we move beyond labels to get at the heart of sexual harassment issues remaining in the workplace.

Nina suggests that there are still far too many employers that have chosen to “bury their heads in the sand rather than confront the harassers who line their pockets.”

You can disagree about the scope of the issue but the underlying premise is sound — sexual harassment remains a scourge of the workplace for too many.

What are some of her tips for employers?

  • Conduct Live Trainings
  • Investigate Responsibly
  • Reject the “He Said/She Said” Cop-Out
  • Incentive the Bystander to Come Forward
  • Support the Survivor

There can and should be those who might suggest other paths for employers to follow.

I might suggest that Boards of Directors require their CEOs to provide quarterly reports on what the company is doing to combat sexual harassment, for example.

But having this discussion makes sure that companies continue to focus on combating sexual harassment in the workplace.  That way, as Nina says, we can turn #metoo into #allofus.

 

The Connecticut Commission on Human Rights and Opportunity (CHRO) was sued yesterday by its longtime (and former) Regional Manager Pekah Wallace.  The federal lawsuit claims her employment termination was improper and provides a whole host of information about what has been going on behind the scenes at the agency.

You can download the complaint here.  

(As with all new lawsuits, my standard warning applies — these are allegations in a complaint, not a determination from a court.)

I’ll leave it for others to opine on the merits of the case because my firm represents a number of clients before the agency.

The allegations, however, show, at a minimum, that there was a great deal of friction going on at the agency for a number of years — even while the agency was investigating the outside complaints of employees against their own employers too.

Ms. Wallace alleges violations of: Conn. Gen. Stat. Sec. 31-51q (applying the First Amendment to the workplace); First Amendment retaliation under the Constitution itself and 42 U.S.C. Sec. 1983; Denial of Equal Protection; Intentional Infliction of Emotional Distress; Tortious Interference with Contractual Relations; and Defamation.

The lawsuit, in which she is represented by Anthony J. Pantuso, III, seeks an unspecified amount of dollars.

Among the allegations raised are a series of allegations that Ms. Wallace claims were unfair accusations that she released confidential CHRO case information to her own personal attorney, Miguel Escalera, of Kainen Escalera and McHale, LLC during the course of her employment.

Ms. Wallace claims that the “information included in the reports which Wallace prepared at the direction of [CHRO employee Cheryl] Sharp included only processing dates, and did not include information as to ‘what has occurred in the course’ of CHRO investigations…” (Complaint, Paragraph 145).

She alleges that CHRO Executive Director Tanya Hughes and Sharp have instead “repeatedly disclosed information on pending CHRO cases to Attorney Escalera when it suited their purposes,” (Complaint, 144), and that the information they disclosed “falls more closely within the prohibitions of the statute, contrary to the information Wallace provided.” (146)

Ms. Wallace alleges that when her employment was terminated, the CHRO “falsely stated” that Wallace had  “deliberately violated policies on the use of [her] state email account and the state network, by sending numerous non-business related emails;” (b) “on multiple occasions and in voluminous amount in violation of C.G.S. 46a-83(J) [she] had released to Miguel Escalera . . . information on active CHRO cases;” and (c) “that [she] had acted in an offensive manner to me, Tanya Hughes on January 29, 2018, when via email, [she] instructed me to contact [her] attorney if I wished to meet with [her].” (Complaint, 161)

The CHRO has yet to file an answer or a motion asking for a dismissal and there’s no indication yet that the agency has been served with the Complaint yet either.  The case has been assigned to U.S. District Court Judge Michael Shea.

This is not the first time that Ms. Wallace has sued the agency she works for.

In 2006, she brought a federal lawsuit making allegations regarding her employment as well including a claim that she was denied equal protection in violation of the 14th Amendment under 42 U.S.C. Section 1983. (Download here.)  That claim was dismissed by stipulation before trial.

In 2007, two other employees filed suit against the agency alleging discrimination. In that Complaint, the former employees that “at least ten (10) women other than the Plaintiffs also experienced this discrimination and hostility” and that this individuals included “…Pekah Wallace…” (2007 Complaint, 38)

Later today, I’ll be speaking to the next group of startups chosen to participate in the Accelerator for Biosciences in Connecticut, or ABCT. 

ABCT is a Branford-based program spearheaded by Design Technologies LLC, which supports Connecticut’s aim of being a bioscience hub.

It’s an exciting time for new businesses in Connecticut like those chosen to participate in the program.

But employment law issues are often an after-thought for startups.  They shouldn’t be.

I’ll be talking in more detail to the startups in my presentation but here are three things I’ll be talking about for startups and new business ventures:

  1. Startups should document the relationships with new employees.  Offer letters or, in some instances, contracts should be set up so that new employees know the terms and conditions of their employment.  Even more important, the documentation should detail all forms of compensation — whether salary, bonus, equity etc.  And at-will disclaimers are crucial.
  2. Startups also need to consider protecting the intellectual property of the company from the outset.  After all, if a new employee can just take the knowledge and set up shop across the street, how valuable is the company? Thus, having Non-Disclosure Agreements or other restrictive covenants in place when employees or consultants start is critical to making sure a company’s intellectual property is protected.
  3. Lastly, just because the business is a startup, doesn’t mean there’s an exception to paying employees their wages.  Those businesses must comply with all the rules regarding weekly payment of wages.  Failure to do so can result in significant legal exposure and, worse for some, an investigation from the federal or state department of labor.  Startups should make sure they have the cash flow necessary to make payroll.  If you can’t afford to pay your employees, don’t hire them.

Obviously, there are other questions startups should ask themselves too: Are you going to use a PEO? (or perhaps, What is a PEO?) Are you going to use independent contractors? If so, how is that relationship documented and is it proper? Are employees classified as exempt vs. non-exempt? Are the employees even authorized to work in the United States?

If all these questions give startups some concerns — they should.  Employment law issues are an important part of building a company’s foundation.  Ignore them, and the business that you build might be the proverbial house of cards.

Sometime soon, your e-mail inboxes are going to be bombarded from attorneys telling you that you need to pay attention NOW to new overtime rules by the U.S. Department of Labor.  ROFL.  

At least based on what we know now, it’s best taking a lesson from my teenagers and ignoring the messages and hype (and all the text abbreviations too.)  SMH. 

Late last week, Bloomberg news reported that the DOL is considering changing the rules regarding who is eligible to receive overtime by increasing the salary threshold from about $24,000/year to $35,000. IKR?

In plain English, employees who make less than $35,000 would have to be paid overtime on any hours worked over 40 — no matter what their duties are.   MEGO. 

If all this sounds vaguely familiar, you may recall that the Obama-era proposed rules were enjoined by a court before implementation and then we had an election.  Those proposed rules would have set the bar even higher to approximately $47,000.  RIP.

But here’s the thing – we don’t have anything yet. And when released, the proposed rules will be just that — proposed.  They are still very much subject to change.  And even then, there will likely be a significant period of time before implementation.  My guess — and it’s just that — would be late 2019 or early 2020 at the earliest.  SWAG.

For now, here’s the one thing to think about: If you have any exempt employees that are paid about $35,000 or less, keep in mind that you may need to start paying them overtime…at some point.  MEH.

But remember: Just because you are paying employees a salary does not mean you’re following the law. Employees must also have “duties” that are exempt — typically, professional, executive or administrative.  

BOL.