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.

In the last few months, I’ve had some inquiries from employers asking about resources for layoffs.

Yawn.

Everyone remembers the layoffs of the recession, right?

Actually no, as it turns out.

In the ten years since the last great round of layoffs, there is a big group of new managers, directors, human resource personnel, lawyers etc that have joined the workforce.  And, as it turns out, they really DON’T remember the layoffs.  Unemployment is low. “Why would I need to worry about a Reduction in Force?”

The stock market’s drop yesterday should remind all of us that good times aren’t always going to last.

What’s ironic about this is that back in 2008 — when the unemployment rate was skyrocketing — programs about reductions in force were just taking off and I noted the same concerns about whether employers were sufficiently aware of the issues.

History may repeat itself. Back then, I highlighted a few items that employers had to think about:

  • The WARN Act – If you’re doing a mass layoff, you need to notice affected workers in advance and provide notices to local and state officials.
  • Separation Agreements – If you want employees to sign a separation agreement (and you probably should), you need to give employees who are terminated in a layoff 45 days to consider an agreement and provide additional background information about the layoff itself.
  • Disparate Impact Analysis – With computers, checking your layoff data to ensure that it doesn’t have a disproportionate impact on protected groups (or, if it does, a legitimate business reason why it might) remains important.

Much of this remains valuable advice today.  And for employers who don’t remember this, now would be a good time to start your refresher courses.

Layoffs may not be right around the corner. But employers that are looking ahead in their business plans for 2019, would be wise to ensure that their staff are aware of the obligations that attach if the economy turns cold.

Lawyers love their cocktail chatter. And at a recent bar event, an interesting hypothetical came up among lawyers:

Suppose an employee is trying to get pregnant and is thinking about infertility treatments.  She’s considering time off for rest, and perhaps even for some in vitro fertilization (IVF) appointments. Perhaps even the doctor has said that the employee needs “light duty” work during certain days.   Maybe things are a little more hazy; suppose the employee just says that they are undergoing infertility treatment and needs some time off.

Is the employer obligated to provide such an accommodation?

The answers aren’t entirely clear.

Let’s go through some of the laws that may be implicated:

Employment decisions related to infertility treatments implicate Title VII under limited circumstances. Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.

In doing so, the EEOC has cited to a Seventh Circuit case from 2008 which also found that the employer was liable for discrimination when it terminated employee for taking time off to undergo IVF.

  • ADA – Infertility may be an impairment that may “substantially limit” the major life activity of reproduction. Why is this important? Because it may then qualify the employee under the ADA as having a “disability”.   So, in such an instance, employers should review the “reasonable accommodation” portion of the statute. And the employer may decide that a day off for IVF treatment in “reasonable” under the circumstances.
  • State Laws – Connecticut has comparable laws on the subject as well.  Thus, employers should do the same analysis for CTFMLA and comparable state anti-discrimination laws as well.

But despite this, there are some courts — including the Second Circuit — that have found that a woman suffering from infertility does not have a medical condition related to pregnancy under Title VII and the Pregnancy discrimination Act because infertility is a condition that also affects many men as well.

Employers that have employees undergoing treatment for infertility should tread carefully in this uncertain area of law.  Each set of facts should be looked at on a case-by-case basis and consider enlisting trusted legal counsel for advice.

One of the benefits of writing a blog as long as I have is that you get to track the progress of a law or legal development over a number of years.

It was back in 2012, for example, that I first provided a comprehensive summary of a new medical marijuana bill that was making it’s way through the legislature.

And I was quick to note that the law had enough questions attached to it that employers would be wise to spent a late night or two studying all of the quirks.

Now, years later, we have the first case to look deeply at the statute. And for employers, the answers are becoming clearer.

My colleague, Chris Engler, recently recapped the case in a post on my firm’s sister blog.

The plaintiff in the case had applied for a job with a health and rehabilitation facility. The plaintiff ultimately received a job offer, subject to completing a background check and a drug screen. Prior to the drug screen, the plaintiff informed the company that she was a qualifying patient who used medical marijuana to treat her PTSD. Nevertheless, when her drug screen came back positive, the company revoked the job offer on the day before she was to begin work. Based on these facts, the court granted summary judgment for the plaintiff….

In rejecting the employer’s defenses in the new decision, the court addressed various important issues regarding [the law’s] non-discrimination provision. First, the court clarified that [the law] protects both an individual’s status as a qualifying patient of medical marijuana and that individual’s actual use of medical marijuana. However, the court pointed out that employers can still discipline employees who are under the influence at work.

The case can be downloaded here.  

As more people apply for cards to use medical marijuana, employers would be wise to understand the rules of the road before rejecting job applicants who test positive for marijuana on a drug screen.

Do you remember when the Target store data breach made news? This was not that long ago, and yet, five years later we’ve arguably become immune to the news.

Take Facebook’s latest snafu — 50 million accounts compromised.  And yet, it hardly made headlines for a 24 hour period.

Heck, even the U.S. State Department has had personal information about its employees breached in the last month — though “only” one percent may have been affected – so…yawn.

Have we become that immune to such breaches at this point?  Perhaps.

But that doesn’t mean that employers can let their guard down. Indeed, I would argue that new laws and regulations (including one in California) are making the job of employers even more challenging.

I’ll be talking about all of this at my firm’s upcoming Labor & Employment Seminar later this month with my colleague Ashley Marshall.  It’s scheduled for October 25th at the Hartford Marriott.

Here’s the formal program:

If You Collect It, You Must Protect It: Dealing with Employee Data Privacy Issues
Presenters: Daniel A. Schwartz and Ashley L. Marshall

Cyberattacks are on the rise and employers must take the necessary steps to protect employee data.  This session will address data protection worries of human resources and review state and federal laws and regulations pertaining to workplace privacy, including the Personnel Files Act, GDPR, California statutes, and HIPAA complaint releases. 

We’ve got several other topics being tackled too.  We are probably only a few days away from selling out so be sure to sign up for this complimentary seminar today.

Last year I talked about how the new era of sexual harassment claims was coming.  The open question was: Would the number of claims actually increase?

The answer to that is now known: Yes.

The Equal Employment Opportunity Commission released its preliminary data regarding workplace harassment today. And it’s findings shouldn’t be a surprise if you’ve been paying attention.

Among the notable pieces of data:

  • Charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from FY 2017.
  • The EEOC recovered nearly $70M for victims of sexual harassment through administrative enforcement and litigation, up from $47.5M in FY2017.
  • Reasonable cause findings in harassment claims increased to nearly 1200, up from 900 in FY 2017.
  • And public interest is skyrocketing: The EEOC’s website traffic to its sexual harassment page more than doubled in the last year.

In Connecticut, the Commission on Human Rights and Opportunities hasn’t yet released their statistics on their website.  In years past, it’s been released in the fall — so stay tuned for that. But I anticipate hearing much more from the CHRO this month.

The CHRO is celebrating its 75th anniversary with a whole host of programs including one on Overcoming Barriers in Employment (I’ll be speaking at that one — details soon) and a #MeToo and LGBT Panel Discussion as well.

Interest in sexual harassment cases and actual cases show no sign of slowing down.  If anything, I would argue that public consciousness and awareness of these issues are nearing all-time highs.

Employers should continue to review their policies and procedures in this area and take another look at the training they are providing.