It’s late March, which means that it’s too soon to predict which bills at the Connecticut General Assembly are going to have enough support for final passage, but not too soon to take a look at what is on the table.

By “on the table”, I mean bills that have been voted out of the Labor & Public Employees committee.  Before that happens, a lot of proposals are good for headlines but may never see the light of day.

But now that the Labor committee has finished up its work last week, the bills outlined below have been voted out of committee.  As we know from our Schoolhouse Rock songs, these bills still have a long way to go — other committees, the House, the Senate, the Governor — and that presumes a vote too.

Here are a few that are worth keeping an eye on:

The CBIA has done a full recap on the Labor & Public Employee Committee’s work here. 

 

Last week, along with my colleagues Lisa Zana and Robert Grady, I presented to the Association of Corporate Counsel group from Westchester County and Southern Connecticut on Returning to the Office.

Of course, it’s still premature.  The COVID-19 cases in Connecticut and New York are among the highest in the nation. While vaccinations continue to be ramping up, right now at least, it seems that the virus is willing — particularly among the twenty- and thirty-something generation.

The pandemic isn’t over.

Before my partners talked about the legal issues surrounding office leases and I talked about how some employers might bring some employees back sometime, we also had a representative from CBRE, the largest commercial real estate services company in the world, talk about workplace current trends.

There was lots to digest, but his overall pitch — which I think is the correct one — is that the pandemic did not create new trends; rather it vastly sped up the existing ones and will continue post-pandemic.

Among them was a realization by the C-suite that remote work has maintained or increased workers’ productivity, that employees realized they preferred to work remotely 2-3 days a week and that offices workplaces need to be reconfigured.

As a result, CBRE was predicting that there will be a more fluid workforce in the future, in which offices have more unique hospitality-inspired experiences, where flexibility and technology still rule the day.

Of course, this isn’t going to change some of those essential workplaces, like manufacturers or grocery stores, but for many traditional white-collar jobs in finance, legal, insurance or technology, there is not “going back to normal”.

“Activity-based work” is now under widespread consideration as office occupiers, as CBRE calls them, try to take advantage of the hybrid work model that may spring.

2021 is already shaping up as a whiplash kind of year where we’ve gone from the quiet solitude of the cold winter months, and a state where vaccinations become widespread by summer.

Still, the rush back to the office is more likely to be gradual at best. Employees have grown comfortable with some of the aspects of working from home and employers take stock of whether offices should be reconfigured.

In the meantime, stay safe everyone. The next month or so promises to test everyone’s patience as this latest wave builds (and hopefully crests).

A few days ago, I drafted a pretty somber take on the last year in lockdown.  It recounted those early hectic days and the long slog of working from home.

Candidly, it was kind of depressing. Maybe I’ll post it one day here. But not now. (If you want a post from a year ago, I can give you that link.)

Vaccinations have a tendency to make you start to think about the future in ways that seemed only theoretical before.  Why look back when right now, it’s never been better to look forward?

Don’t pop my balloon by telling me that the UK or NY or South Africa or Brazil variants are spreading.  It’s a race with the vaccines and I’m going to remain optimistic that the vaccines are winning.

Over the weekend, the CDC posted eye-popping statistics showing the country doing nearly 3 million vaccines in one day. That’s over 1 percent of the eligible population.

You don’t need a math degree to understand that if this pace continues or even increases, we could be getting to widespread immunity (along with those who have already had COVID-19), sometime over the summer.

That means that employers will have a whole new set of issues to think about. Business travel, for example, is set to make a return. Not in same numbers as before, but in-person meetings, business golf trips, conferences and the like are going to return in some fashion. And maybe sooner than was previously thought.

And after that, in-person dining, cocktail hours, and the bad judgment tales that have historically accompanied such endeavors will also likely return.

For employment law lawyers, I’m still not quite sure what to make of 2021.  Will litigation turn around and rise again? Will wage & hour claims continue to dominate? Will government agencies investigate and pursue safe workplace rules relating to COVID-19 when workforces return in person in droves? And how long will it take for the case backlog to work through the courts?

It’s hard to think that remote work is going to disappear. In fact, what this last year has demonstrated is that remote work can be terrific — when properly utilized.  I’ve gotten used to making that pot of coffee at home in the morning, and not fighting with traffic as well.

But if I’m being honest, I miss those moments in my commute or travelling, when nothing is going on. Those times when I can collect my thoughts and just listen to music or a podcast.  It’s a much needed respite.

One year in, I’m mostly grateful every day for my family that I’ve gotten to spend more time with than they are used to and for my work colleagues who have had to work extra time addressing client issues.

And I’m more optimistic that I’ve been in a long time that the future is looking brighter. The fog of this pandemic is starting to lift. It’s not over and heaven knows there are still far too many people who are refusing to get the vaccine for reason that I can’t quite grasp.  But right now, it feels like the worst may be behind us.

Let’s all hope that it stays that way.

Big changes are on the way for employers in Connecticut that have been operating for close to a year under “Sector Rules” — mandatory practices that were set out by the state that businesses had to follow in order to reopen.

All that changes effective March 19th. 

Late Friday, the state updated the website regarding sector rules for reopening. While some mandates remain, most of the requirements are changing to best practices. As the webpage indicates by the DECD:

The following rules apply to all Connecticut businesses and organizations and are effective March 19, 2021. Please keep in mind that it is the cumulative effects gained from social distancing, hand washing, and mask-wearing that will continue to prevent the spread of COVID-19. Businesses should take these rules as the minimum baseline of precautions needed to protect public health in Connecticut and refer to the recommended guidance by sector listed at the bottom of this page for best practices. Individual establishments should also take additional measures as recommended by industry experts or by common sense applied to their particular situation.

There’s a lot to unpack here; watch for further posts either here or on my firm’s sister site, Employment Law Letter, as we piece this together.  For now, I’m just going to hit a few highlights.

First, what’s still mandated?

  • Capacity limits are now up to 100%, subject to social distancing requirements (unless otherwise noted).
  • 6 ft. spacing and social distancing continues to be required where possible (unless otherwise noted).
  • Masks continue to be required in all public settings where social distancing is not possible.
  • All establishments must follow CDC Cleaning and Disinfecting guidelines.

What is now “recommended”?

  • Businesses/organizations should continue to support local public health contact tracing efforts, such as maintaining a log of employees on-premises over time.
  • Employers should continue to encourage employees to stay home when sick and encourage working from home when possible. In the event of a positive COVID-19 case, employees shall inform their employers and follow state testing and contact tracing protocols.
  • Businesses have the right to refuse service from customers not wearing masks.
  • Social distance markers, signage, and one-way traffic are still encouraged.
  • In terms of ventilation, facilities should work to increase the percentage of outdoor air that circulates into the system where possible, or use window units.
  • Businesses are still encouraged to post clear signage that includes the state hotline (211) for employees and customers to report potential violations of these rules.

For businesses, this is a bit confusing still.  If something is “encouraged”, what happens if employers decide not to follow these recommendations? The state seems to be saying that it will not enforce any penalties but query whether this still leaves employers open to claims by others that employers “should” be following certain rules. As I’ve talked about before, OSHA requires employers to provide a safe workplace; should that mean employers ought to be following this recommendations to provide a safe workplace? Or is a workplace safe without this?

Beyond the above, the new guidance is even more confusing.  Remember all those sector rules that employers have followed? According to the state, beginning on March 19, 2021, those documents “should be treated as recommended best practices”.  Moreover, the rules on the website supersede any conflicting recommendations in the sector guidance.  There are also some specific mandates that still must be followed in certain industries such as restaurants or event venues.

For now, employers should tread carefully.   These changes seem to be a work in progress.  This is a big shift from how businesses have been operating and we’re likely to see more changes over the next few weeks.  Clearly employers can bring more employees back to the workplace. But that doesn’t mean that on March 19th, employers should. The pandemic is still raging despite good progress on the vaccines.  And the risks to employees remain.

One last note: The emergency orders from Governor Lamont are set to expire April 20, 2021. There’s some indication that he may not renew it. So it’s possible that even these recommended practices might change further in another month or so.

 

Last month, our webinar on vaccines was really very popular.  Given the breadth of the topic, we didn’t get a chance to answer all the questions that people had.  In addition, since that initial program, Connecticut has modified its vaccination eligibility rules meaning employers that thought that they would have some time to think about things are now having to address these issues.

While we’ve been following up with clients on questions, we came up with the idea to hold a “mini-webinar” to address just those questions that people have.

On Wednesday, March 10th at 1p ET, I’ll be moderating a discussion where we try to answer as many questions as we can in a 30 minute webinar about COVID-19 vaccines and the very latest that employers need to know.

My colleagues, Keegan Drenosky and Sheridan King, will lead the program.  Best of all, it continues to be free to all.  Register here.

We encourage you to submit your questions ahead of time so we can make sure to know what you are most concerned about right now.  

Lastly, if you missed our first program on vaccines, we encourage you to watch that program ahead of time as we will be assuming some basic knowledge of the laws involved and will really try to get at some of more nuanced questions that have been arising as well.

Today, I bring back one of my favorite recurring features – my conversations with employee-side attorney Nina Pirrotti.

As we’ve moved our conversations (“The Dialogue”) from written to virtual format, we still find the effects on employment law by the pandemic to be wide-ranging.  While vaccinations are welcome, the move to remote work has created new sets of issues for employee and employers to be concerned about.

We hope you enjoy the conversation as much as we have.  My thanks to Nina as always for her time.

And, in the spirit of the lawyer-cat meme, I’ve titled it: We are not a cat. 

 

 

Yesterday, Governor Lamont announced a major series of rollbacks of COVID-19-related restrictions for businesses. We’re still getting all the details, but for employers, the key thing to understand first with all the rollbacks is that certain things are not being rolled back.

  • Face coverings and masks continue to be required
  • Bars that only serve beverages continue to remain closed
  • 11PM closing time remains in place for events at venues, restaurants, and entertainment
  • Indoor theaters continue to have a 50% capacity

But beginning March 19, 2021, the state’s sector rules that have been in place for nearly a year will be getting a rewrite. Again, we’ll have to wait for the details but they will include the following:

  • All capacity limits will be eliminated for Restaurants, Retail, Libraries, Personal services, Indoor recreation, Gyms/fitness centers, Museums, aquariums, and zoos, Offices and Houses of worship;
  • Gathering sizes will be revised to the following amounts:
    • Social and recreational gatherings at private residence – 25 indoors/100 outdoors
    • Social and recreational gatherings at commercial venues – 100 indoors/200 outdoors
  • All sports will be allowed to practice and compete, and all sports tournaments will be allowed, subject to Department of Public Health guidance
  • Connecticut’s travel advisory will be modified from a requirement to recommended guidance

For employers, these are the most significant changes in quite some time and again, let’s await some details.

For offices, the return to the office may not (and probably shouldn’t) happen overnight. Employees have tremendous concerns about returning and there will still be needs to be met to keep unvaccinated employees safe.

Similarly, although the travel advisory will be changed back to a “recommendation”, employers may wish to have employees who travel out of state to quarantine upon return “to be safe”.

For now, employers can start thinking about what this rollback may mean to them. But the advice that has been handed out from the start remains true today: Move cautiously, be flexible, and make sure you get the details right.

I’ve talked previously about how there are two sets of laws in Connecticut regarding claims arising from termination. There is the law arising from statutes – like the one I discussed this week– and then there is the common law that recognizes a “wrongful discharge”.

“Wrongful Discharge” claims were recognized by our state Supreme Court decades ago. Those are claims that arise when the dismissal would violate an “important public policy” that relates to an explicit statutory or constitutional provision.  This can be things like keeping food safe.

It’s designed to catch claims that might otherwise fall between the cracks in areas that the legislature has otherwise seen fit to talk about.

Earlier this week, the Connecticut Appellate Court added a chapter to the “wrongful discharge” caselaw in the case of Sieranski v. TJC ESQ (which you can download here) by allowing a former paralegal to proceed on her claim against her former employer, a lawfirm.

In the case, the paralegal reported to Attorney Brooke Goff.  According to the allegations (and remember — these are only allegations), the attorney realized that they had missed a deadline for a time to appeal and asked the paralegal to prepare an affidavit saying that they had never received the decision — a fact that was untrue.  The paralegal prepared it but refused to notarize it.  A week later, the paralegal’s employment was terminated because “she was not a good fit”, according to the complaint.

The lower court dismissed the claim but the Appellate Court reinstated it.

The paralegal cited the public policy present in Conn. Gen. Stat. Sec. 53a-157b which she argued outlines a general policy against making false statements with the intent to deceive.  The employer raised several arguments including that the complaint failed to allege any “affirmative conduct” that would satisfy the elements of the claim.

The Appellate Court disagreed, finding:

Here, contrary to the defendant’s assertion, the allegations, when read as a whole, reasonably can be interpreted to allege that Attorney Goff knew that the statements that she directed the plaintiff to include in the affidavit were false. … [The Complaint] reasonably may be interpreted to allege that Attorney Goff knew that she, in fact, had received the arbitrator’s decision and did not file a timely appeal within the statutory appeal period, and that she wanted the plaintiff to draft a false affidavit that said otherwise

The Court also looked at another statute as well regarding the notarization of documents. Taken together, these statutes, the court said, “outline a public policy against knowingly assisting an affiant in submitting false statements to a court”. In other words, this situation is one where “the defendant allegedly punished the plaintiff for her conduct as a good citizen”.

The case is a notable reminder that employment law claims don’t just arise from the statutes, but can arise from wrongful discharge claims too.  Asking employees (again, allegedly) to do something illegal and firing them (again, allegedly) when they refuse to do it, is likely to fall within this category from time to time.

Remember 2010?

Those were the days of Lady Gaga’s “Meat Dress”. You could also play “Angry Birds” on your new smartphone.

And discrimination complaints to the EEOC were about at their all-time high.

But over the last few years — and in particular, last year — discrimination and retaliation claims have been down.

A LOT.

In 2010, 99,922 claims were filed with the EEOC. In 2020, according to statistics that were just released, there were just 67,448 claims.

That the lowest number of claims that were filed at the EEOC in the last 25 years.  

What’s responsible for this drop? Hard to know precisely.  Obviously, the pandemic has had a big influence over the last year; with employees out of the office, there is less room for interaction and certainly less room for trouble.

But 2020 is just confirming a trend that has been happening since a mini-peak in 2016.  As I noted in an earlier post, claims within Connecticut are down the last few years too.  In federal court, employment discrimination claims were down 10 percent in the year ending September 30, 2020.

I’ll leave it to other to opine on the reasons behind this drop. What’s more critical for employers to understand is that the threat of litigation remains and employers have been well served by updating policies and instituting training.

For the employment law attorneys out there, it means less employment litigation. But that litigation can still be costly.  And with a new administration in DC, it’s quite probable that we’ve seen the lowest numbers of claims filed  for some time. After all, the last time the EEOC were this low was in 2005 — in the middle of the Bush administration.  Claims peaked in the height of the Obama Administration and also during the Great Recession.

Employers should remain vigilant, particularly as employee start to return to the office.  Discrimination claims may be down but change may be on the way.

A few years ago, I talked with some students about a report they were doing for NPR about how hairstyles and race have been historically intertwined.

Earlier this week, the Connecticut General Assembly gave final approval a bill that seeks to right some of these historical wrongs by making it illegal to discriminate in employment on the basis of a hairstyle related to the person’s race.

Specifically House Bill 6515 amends the state’s anti-discrimination laws to define race as being “inclusive of ethnic traits historically associated with race, including but not limited to hair texture and protective hairstyles.”.

“Protective hairstyles” is further defined as including “wigs, headwraps and hairstyles such as individual braids, cornrows, locs, twists, Bantu knots, afros and afro puffs”.

Connecticut now joins several other states in this action. A version of this type of bill is known as the CROWN act.  

Governor Lamont has indicated that he will sign the bill.  The bill becomes effective upon his signature, so employers need to be sure that their workplaces are aware of this new rule.

In particular, employers should update their anti-discrimination policies and employee handbooks. They also also ensure that hiring managers aren’t screening employees based on their hairstyles.