As the decade comes to a close, a time traveler from 2009 might be surprised to see how rapidly laws on marijuana have changed.  Last night’s Democratic Debate even featured a heated discussion about legalizing marijuana.

But let’s imagine that this traveler is from Human Resources. The laws regarding medical marijuana are head-spinning; these laws have resulted in a significant impact in the areas of drug testing, hiring, discipline and ADA accommodations.

Now add the fact that a neighboring state – Massachusetts – has legalized pot and, well, no wonder HR professionals are just trying to play catch up.

Oh, and will Connecticut join Massachusetts in 2020 and legalize pot?

I’ll try to make sense of all of this at an upcoming breakfast sponsored by the Western CT chapter of SHRM. The breakfast is set for December 11, 2019 at 8 a.m. at the Hampton Inn in Danbury.  I’ve even been promised a hot breakfast.

In the interim, I recently came across an excellent slide deck produced by the Connecticut Department of Labor on drug testing. I recommend it as required reading to understand the benefits (and limits) of such testing.   Kudos to Stephen Lattanzio over there for making this resource available for all employers.

 

First off, let me dispense with the elephant in the room — Yes, the show “Survivor” is still on the air and yes, I haven’t missed any of the 39 seasons of it.

In fact, I shared lessons that employers could learn from Survivor way back in 2010.

Last week’s episode of Survivor, however, brought far more reality than most would think a “reality show” could or should bring.

There’s a lot of nuance to the episode that a short blog post can’t get into (though this podcast by Rob Cesterino gives it a try), but the show’s episode revolved around legitimate sexual harassment claims, using harassment claims for nefarious purposes, and bystander syndrome.

And it was ugly. Really ugly.

Why?  Here are a few things that stood out to me from an employment perspective:

First, a female player (Kellee) complained to a producer that another male player (Dan) was a little too “touchy” and made her feel uncomfortable. To be sure, there was plenty of video evidence to back her up.   The male player was given a “warning” and play continued.  But here’s the thing: The female player never knew that a warning was issued and Dan worked with others to get Kellee voted out of the game immediately thereafter.  Not telling the complainant what was going on with her complaint is just one of the ways the producers seem to have mishandled things.

Continue Reading Sexual Harassment Prevention Lessons from the Television’s “Survivor”

Last Friday, I had the opportunity to talk about Artificial Intelligence in the Workplace at the CBIA’s HR Conference.  There was a lot to cover in our discussion and a lot of takeaways too.

For those in Human Resources or in-house lawyers reviewing a company’s potential use of AI in the workplace, here are three areas of concern to think about.

  1. Bias in Recruiting Efforts.  Some areas of AI are further along in adoption than others. One of those areas is in recruiting. Already, there are companies that are marketing services to review hundreds (or thousands) of applicants and give each candidate a “score” based on multiple factors.The potential pitfall is that the output from some of these systems may have a disparate impact on a protected group. The most notable example was a system being developed (and rejected) by Amazon that did not like women.  Thus, HR needs to have a seat at the table when these systems are being considered.  How is the output from any AI algorithm being reviewed and analyzed? Whose responsibility is it to ensure that the law is being followed?
  2. Monitoring Existing Employees.  No longer are employers just checking when employees are punching in or punching out on time. With AI, employers can now monitor nearly everything about an employee’s day. Think about a system that can monitor keystrokes, can analyze the content of e-mail and text messages, can track how long employees are taking breaks and where, and even the employee’s social media content.  And then such a system could predict – is an employee happy? Being productive? Thinking about leaving?While such a system seems far into the future, the truth is that AI is being used NOW for some of these same things. Being the potential for bias being introduced, such a system raises important privacy considerations. In Connecticut, we have an electronic monitoring statute that requires employers to notify employees of the types of monitoring being used. But in Europe, such a system might also implicate GDPR.  And do employees have any remaining expectation of privacy in the workplace? Thinking about this issues holistically before creeping implementation is critical.
  3. Automation and Job Replacement.  Have you met Marty? It’s one of the robots deployed at Stop and Shop to patrol the aisles and assist customers.  (Or, maybe you haven’t met Marty because you do all of your grocery shopping online now).  It might seem a bit foreign for now, but think about the robots that can (and will?) be deployed in the workplace. Imagine one that can go to each employee to determine if he or she has filled out the forms in Open Enrollment and can process all of the data to make sure it matches the information the employer already has.  Or what about a system that will automate the on-boarding process for new employees?   What will HR be needed for in the future?Think this is just fantastical? I think back to the law offices of 25 years ago with big word processing teams, librarians, and more.  It’s far different now. Why? Because automation and technology rest for no one.  Human Resources is no different.   Yet, it will likely lead to roles where higher-level analysis is needed and where a “human touch” is still preferred.  Still, where there is going to be job replacement, employers should document the decision-making process to avoid legal claims.

As one of my co-presenters from Tallan, Doug Smith, said: We are going through yet another technology revolution in the workplace.  HR and Employment Law will continue to need to evolve to play a role in this new workplace.

Somewhere, some employer might be thinking: Hey, why don’t I make employees sign a promissory note to pay me back if they leave before six months! That would be a great idea!

It would also be against the law.

Thus, the next installment of the Employment Law Checklist Project #emplawchecklist.  The law is set forth at Conn. Gen. Stat. Sec. 31-51r. The key prohibitions are set forth in subsection (b) and (c) as follows:

(b) On or after October 1, 1985, no employer may require, as a condition of employment, any employee or prospective employee to execute an employment promissory note. The execution of an employment promissory note as a condition of employment is against public policy and any such note shall be void. If any such note is part of an employment agreement, the invalidity of such note shall not affect the other provisions of such agreement.

(c) Nothing in this section shall prohibit or render void any agreement between an employer and an employee (1) requiring the employee to repay to the employer any sums advanced to such employee, (2) requiring the employee to pay the employer for any property it has sold or leased to such employee, (3) requiring educational personnel to comply with any terms or conditions of sabbatical leaves granted by their employers, or (4) entered into as part of a program agreed to by the employer and its employees’ collective bargaining representative.

Scope:  And here we have yet another definition of what an “employer” is! For this statute, it is “any person engaged in business who has twenty-six or more employees, including the state and any political subdivision thereof.”  Why 26? Why not.

What’s Prohibited or Required? Employers can’t require — as a condition of an employment — that an employee sign an “Employment Promissory Note”.

So what’s an “Employment Promissory Note”? It means “any instrument or agreement … which requires an employee to pay the employer, or his agent or assignee, a sum of money if the employee leaves such employment before the passage of a stated period of time.”  This would include any requirement that such payments would be reimbursement for employer-provided training.

Are There Any Exceptions? Yes, agreements that merely mandate that an employee repay an advance by the employer is permissible, as well as agreements that require the employee to reimburse the employer for anything sold or leased to the employee (such as a house.).  Sabbaticals and agreements under a collective bargaining agreement are also covered by this exception.  And note, this is only prohibiting such notes as a condition of employment.  Nothing in this statute talks about sign on bonuses and even attorneys that represent employees typically find such provisions unobjectionable.  

Private Right of Action or Other Penalty Allowed? No.  The statute simply says that such agreements are against public policy and are void.  But it’s possible that a court might entertain a “declaratory judgment” action to rule that an agreement is, in fact, void.  As a practical matter, though, the biggest takeaway is that such agreements aren’t going to be enforceable.

What May Be Recovered? Nothing.

Any Practical Steps Employers Can Take? Yes.  Double check your onboarding documents to make sure you are in compliance.  If you use signing bonuses, make sure that they are not really just “promissory notes” in disguise.  And anytime you loan an employee money, check with a lawyer to make sure the documentation complies with the law.

Any Other Interesting Information or Background? Not really. What you see with this law is really what you get.

In preparation for a webinar I gave this week with my colleague Chris Engler (which, by the way, you can access here) I took a deeper dive into the statistics from the annual report released by the CHRO, in a followup to my initial report here.

When you look at the numbers in a snapshot, it’s sometimes hard to see where things are going. But thankfully, the CHRO has nearly two decades’ worth of data to parse through.

So, I thought it might be useful to go back a decade to the 2008-09 annual report and compare it with 2018-2019 to see if we can gain a larger perspective on both the work of the CHRO and where we are in the state of employment law.

Overall, I was left with questions that don’t have easy answers.

So, let’s go through a few of the data points; the reports are all pretty much written the same way, with the same categories used:

  • Complaints filed by Region: Overall, all complaints (housing, employment etc) were up in FY 2019 to 2625 from 2001 ten years ago. But where the complaints are being filed are not spread out evenly.  The Eastern region (Norwich office) had 461 vs. 438 claims in FY 2009. But look at the West Central region (Waterbury); the number of complaints filed there has skyrockted from 451 to 816 complaints (FY 2019).  The obvious question: Why?
  • Complaints filed by Charge: As the economy was crashing in 2008, there were 1716 employment discrimination complains filed in FY 2009, but by FY 2019, claims are now at 2016.  (We’ll put aside a big increase in “public accommodations” discrimination too.) But it still remains odd to me that in a relatively good economy, employment claims are noticeably higher; the unemployment rate in Connecticut by mid 2019 was nearly 8 percent.  Now, it’s around 3.6 percent. Moreover, companies have increased their trainings. So the obvious question: Why are claims still so relatively high?
  • Case Closures: Anyone who has dealt with the agency of late has seen a dramatic improvement in the closure rates of the agency. And the statistics bear this out. In FY 2009, there were 2118 case closures; in FY 2019, that number is 2640.  But the number is even more striking when you look at FY 2011. In that year, only 1299 cases were closed, resulting in a big backload.
  • CAR is up, but still down from MAR peak: The CHRO’s relatively new Case Assessment Review has led to 20 percent of cases getting dismissed, essentially, on a paper review. That number is up significantly from just a few years ago, but, let’s not forget — 10 years ago, Merit Assessment Review was doing even better (or worse, depending on your perspective).  Back then, over 630 complaints were dismissed on MAR; this past year CAR was up to 434 claims dismissed. So, is it progress or not? Again, perspective is everything. But it seems like we have come full circle.
  • Releases of Jurisdiction Up, A lot: Look at releases of jurisdiction — that is, a Complainant asking the CHRO for the ability to file in court.  In FY 2009, there were 310 releases. In FY 2019, there were 612!  Is this the result of — as I suspect in part, certain lawfirms filing CHRO complaints only to pull them to go to state court? Or just merely a reflection of more complaints? That’s a question for another day.
  • Reasonable Cause Findings are Flat? So, here is a strange statistic — in FY 2009, there were 91 reasonable cause findings. 10 years later? 95.  Since we know there are more claims being filed, it means that as a percentage of overall claims, reasonable cause findings are down over the last 10 years. So back to my original question: Why?

As I said last week, the report provides a lot of information and raises a lot of questions too. How do we get answers? That remains to be seen.

But for employers – one answer is clear: Employment discrimination claims show no real signs of any big dropoffs anytime soon.  Employment law lawyers will continue to be in demand.

If you’ve been reading this blog long enough, you know that this is my absolute favorite time of the year.

No, it’s not Thanksgiving (though we should give thanks as I’ll explain in a second). But rather, it’s the release of the Annual Case Processing Report from the CHRO! 

Yes, we should give thanks to the CHRO for putting this out.   It really is helpful to understand some trends and to see how the CHRO’s statutes are being put into practice.

But before we look at this year’s numbers, you should probably read my post from last year to get your bearings.  When last we checked, sexual harassment claims were up, employment discrimination claims were up, and cases withdrawn with settlement were down.

So what trends does the report for 2018-2019 show? Here’s what stands out.

  • Sexual Harassment claims continue to rise and are now at their highest numbers in the last 20 years. In 2017/18, there were 235 claims file. Last year? 279. Representing a nearly 20 percent increase in just one year.  To put this into perspective, compare this number to 2015/16.  In that year, just 135 claims were filed — meaning we’ve seen an over 100 percent increase in claims in just 3 years.  The #metoo movement is the obvious difference.
  • Overall, employment discrimination claims actually dropped last year from 2091 to 2028.  The drop is obviously even more remarkable when you account for the 20 percent rise in sexual harassment claims.  Trying to find the root cause isn’t readily apparent on first glance.  Employment discharge claims are actually up last year from 1188 to 1245 and terms and conditions claims are also up from 902 to 1018.  In fact, a lot of categories are up such as retaliation and harassment too.  The general conclusion? People are filing “kitchen sink” complaints listing multiple issues but the number of complaints is just down overall.
  • The CHRO is also closing more cases.  In 2018/19, the agency closed 2089 cases versus 2001 in the prior fiscal year.  Withdrawals with settlements are up substantially as part of that – suggesting that the agency is either more effectively using the mandatory mediation process or the parties are just more inclined to settle.
  • Case Assessment Review (CAR) is now real. It wasn’t that long ago that I had a discussion with CHRO personnel about the flaws in the CAR process.   This was important because an effective CAR process means employers don’t have to go through a costly mediation and fact-finding process; the cases get dismissed early on.  But what a change a few years makes. Back in 2014/15, just 131 cases were dismissed using the old Merit Assessment Review process.  In 2018/19? 434 claims — approximately 20 percent of all claims filed – were dismissed using the new CAR process.  That’s obviously a massive shift.  I’ll use a future post to talk more about this.

I’ll continue to do a deep dive on the numbers and share more analysis as warranted. In the interim, feel free to join us at our free webinar next week. The timing is perfect – we’ll be talking about strategies for employers in dealing with the CHRO.

Last night, I had the opportunity to attend a terrific little CLE program at the Hartford County Bar Association about practicing before administrative agencies in the state.  And while the discussion regarding the Department of Children and Family Services wasn’t exactly helpful for my own practice, a short presentation by Charles Krich of the Commission on Human Rights and Opportunities was.

He offered up a description about the CHRO practice but even more helpful, offered up practice tips and descriptions of the pet peeves of CHRO staff.

Among the pet peeves? “Lack of communication makes things difficult. There are some firms, particularly complainant representation, that are difficult to schedule with.”

I won’t share all his secrets here on a blog, but as it turns I’ve got the perfect opportunity coming up to talk about this and more.

Next week, my colleague Chris Engler and I are presenting “When the CHRO and EEOC Come Calling: Strategies for Employers” — a free webinar scheduled for November 12th at noon. You can sign up here.  

We’ll talk about the important things for employers to do when they receive a CHRO complaint and how to handle key events like mandatory mediations and fact-finding conferences.

See you then.

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.