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Dan represents employers in various employment law matters such as employment discrimination, restrictive covenants, human resources, retaliation and whistle blowing, and wage and hour issues. He has extensive trial and litigation experience in both federal and state courts in a variety of areas, including commercial litigation and trade secret enforcement. Dan is the author of the independent Connecticut Employment Law Blog. The blog discusses new and noteworthy events in labor and employment law on a daily basis.

I’ll never forget the day I drove into Newtown, Connecticut.  As NBC 30’s Gerry Brooks tweeted this morning: How could you?

It was probably the first time I had made my way to that town outside of Danbury.

But that wasn’t the reason I remember that day.

It was the empty hearse outside a church.

Outside a Newtown church

It was the massive flag on the history Newtown flagpole at half-mast, blowing in the wind on a crisp December day.

It was the countless makeshift memorials and signs reading “Pray for Newtown” that dotted the road.

And it was days after one of the worst events in Connecticut and in the nation’s history.

Today marks five years since that awful, despicable day in Newtown when 26 children and adults were shot and killed in Newtown.

And in the days afterwards, I went to Newtown to deliver dozens upon dozens of gift cards that my wife and I collected in 48 hours after that tragedy from friends, friends of friends, and others.

Our gift card donation

At the time, I didn’t mention the amount here. It was too soon to the tragedy.  I noted in a post just days afterwards that there was a tangible hole you could feel in Connecticut.

It’s still there.

But with time, I recognized that it’s important to acknowledge what we can do when we work together.

In just 48 hours, with nothing more than a few Facebook status updates, back in 2012 my wife and I collected $11,000 worth of gift cards in $25 to $100 increments.

It was so overwhelming that I asked an accounting firm to assist to make sure we tracked each card.

Things were so chaotic that I remember walking in to the administrative offices not quite sure what to do next.  I don’t think anyone there knew either. This was just before the massive relief funds were getting started.

I never did hear what happened to those gift cards that were destined to teachers.  At the time, it was thought that they could be used for supplies that the teachers might need.

I think back a lot to that time. The people I’ve met since. The work that everyone has done to help that community.

Five years later, and it still feels like yesterday.

And it still feels so painful.

My posts on the subject can be found here, here, here and here.  For more on contributions, please check out Sandy Hook Promise.  

There is news in the employment law world beyond sexual harassment.  Arbitration clauses to be exact.

Yesterday, the Second Circuit issued a small, but important decision for employers that will continue to limit FLSA wage & hour claims.

The court ruled that an employee’s FLSA claims in court were barred by the arbitration clause contained in his employment agreement.  While it isn’t the first time, it’s clear logic will be tough to ignore.

(The case, Rodriguez-Depena v. Parts Authority, Inc. et al can be downloaded here.)

For the court, it was not even a close call. The court ruled that the Supreme Court’s pronouncement years ago that age discrimination claims were barred by an arbitration clause controlled.

The court also looked at whether its decision in the Cheeks v. Freeport Pancake House, Inc. – which required oversight of settlements of FLSA claims — precluded arbitration. The court said it did not.

The rationale of Cheeks, however, is assurance of the fairness of a settlement of a claim filed in court, not a guarantee of a judicial forum.

For employers in Connecticut it remains to be seen if the Connecticut Supreme Court will be all in on such a logic for state wage & hour law claims, but the federal endorsement of arbitration provisions provide a strong basis for doing so.

The case is yet another sign that employers have a few options when it comes to FLSA claims.  It has previously held that class action waivers for FLSA claims are also valid.  

Nevertheless, employers should once again consider whether mandatory arbitration provisions are right for their workforce, particularly when combined with class action waivers.  Having such provisions in place could make a big difference in the future.

In yesterday’s post, I talked about the basics of what is and is not “sexual harassment”.

Continuing the theme of going back to the basics, employers in the Constitution State have certain posting and training requirements that must be followed.

These requirements are found in the administrative regulations set up by the CHRO regarding sexual harassment prevention.

I first detailed these in a post WAY back in October 2007 (!) but they remain just as important today as ten years ago.

For posting: All employers who have 3 or more employees must provide notices that say sexual harassment is illegal and address what the remedies are for such harassment.

But here’s a free shortcut: The CHRO has prepared a model poster that complies with the statute and is free to download.  You can do so here. 

It’s a good time to remind employers too that employers should also update their “Discrimination is Illegal” poster also offered by the CHRO.  The poster was updated in October and again, is free to download here.  

For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.

Of course, this does not mean that employers who have less than 50 should NOT provide the training; indeed, offering the training can assist with a defense of a potential sexual harassment training.

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.

The format of the training should be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

The CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Those topics are:

  • (A) Describing all federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply, including, but not limited to, the Connecticut discriminatory employment practices statute (section 46a-60 of the Connecticut General Statutes) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section 2000e, and following sections)
  • (B) Defining sexual harassment as explicitly set forth in subdivision (8) of subsection (a) of section 46a-60 of the Connecticut General Statutes and as distinguished from other forms of illegal harassment prohibited by subsection (a) of section 46a-60 of the Connecticut General Statutes and section 3 of Public Act 91-58;
  • (C) Discussing the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving persons of the same or opposite sex;
  • (D) Describing the remedies available in sexual harassment cases, including, but not limited to, cease and desist orders; hiring, promotion or reinstatement; compensatory damages and back pay;
  • (E) Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
  • (F) Discussing strategies to prevent sexual harassment in the work place.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.

What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should consider following this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training.

Again, it is a wise course of action to follow.

If you haven’t taken a look at your posting and training materials at your company, now is a good time to do so.

With all the focus on sexual harassment in the news lately, one thing missing from most of the coverage is an actual explanation of what is (and is not) “sexual harassment”.  At least according to the law.

Sounds simple right?

Except that it’s not because the prevailing view of sex harassment differs from that found in the law.

But I will try in a few short paragraphs to sum up decades of sexual harassment law.  (Obviously, I can’t but humor me.)

Though the first thing you should know — the federal law on the subject actually doesn’t use the word harassment!

Robin Shea pointed this out a while back in a blog post and I thought it was a good reminder to start with.  It’s a definition built from U.S. Supreme Court cases.

There are two overall types of sex harassment that the courts have determined.

  1. Quid Pro Quo.  Sound smart: Basically this for that.  It’s a demand (express or implied) for sexual favors for either employment benefit (promotion etc.) or to avoid a negative employment action (firing etc.).  Important to this notion is the element of power — that is a supervisor over someone else.
  2. Hostile Work Environment.  The courts have defined this as harassment that is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” In determining whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the central inquiry is whether the conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3).Thus, sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.

    Note the “severe OR pervasive”.  One isolated but severe action can be enough; similarly, smaller actions can be enough if it is rampant throughout a department or company.

But not all sexual conduct in the workplace is illegal.  As the EEOC notes in policy guidance:

Sexual harassment is “unwelcome . . . verbal or physical conduct of a sexual nature . . . .” 29 C.F.R. § 1604.11(a). Because sexual attraction may often play a role in the day-to-day social exchange between employees, “the distinction between invited, uninvited-but-welcome, offensive- but-tolerated, and flatly rejected” sexual advances may well be difficult to discern.  But this distinction is essential because sexual conduct becomes unlawful only when it is unwelcome. The Eleventh Circuit provided a general definition of “unwelcome conduct” in Henson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be unwelcome “in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”

This notion of welcomeness is critical to any determination of sexual harassment in the workplace.

There’s far more to sexual harassment than a mere blog post can provide.  But before we throw around uses of the word in a workplace context, it’s important to understand the legal basis as well.  Some of what has been discussed is far beyond sexual harassment; it’s sexual assault.

On the flip side, an single off-color joke isn’t going to rise to the level of sexual harassment.

And note that the use of the phrase “hostile work environment” is tied to a sexual conduct not a boss who is difficult to work with. . As a state court said in another sexual harassment case recently, “[a]n unfortunate fact of life is that the modern workplace is sometimes a rough and tumble environment, where pettiness, inconsideration and discourtesy reign. . . .”

Connecticut typically follows federal law on the subject but has its own rules too.   For more on the subject, you can see some of my prior blog posts here and here.

Sexual harassment needs to be vanquished from the workplace; understanding exactly what it is (and is not) will help employers spot it and stop it.

This current wave of sexual harassment (and, in some cases, sexual assault) allegations that are making headlines every single day is downright astonishing to many employment lawyers that I know.

It is the tsunami that knows no end.

And right now, that makes me nervous.  But maybe not for the reason you might think.

It’s not that I am nervous for companies or the risk of lawsuits.

I think many companies are prepared to deal with claims of harassment that arise and will adapt quickly to the landscape where more employees are bringing such matters to their attention.

What makes me nervous is the potential rush to judgment that seems to increase with every case.

Think of Matt Lauer last week: A claim brought Monday evening and he was fired late Tuesday night. Quick.

Thorough? Perhaps. Correct? Probably (based on the media reports).  But still pretty quick.

This is not a defense of harassers or even of Matt Lauer.  If someone commits sexual harassment, companies ought to take prompt corrective action. Companies that ignore complaints do so at their own peril.

As a lawyer though, I’m think I’ve been trained to be wary of allegations.  I went to law school in St. Louis, Missouri where they are proud of the slogan “Show Me”.

I have yet to see two identical sex harassment cases. Each matter brings a different set of people, a different set of circumstances, and different set of facts.

Facts still matter.

I’m waiting for the potential (or inevitable?) backlash to come from the current wave.

It may just start with a Duke Lacrosse-type situation — allegations so outrageous that everyone will want to believe them true.  And then we’ll find out that the allegations aren’t true.

And I worry about the harm to the process as a result.  It will set back those with legitimate complaints as well.

So, deep breathes everyone.

See harassment allegations come your way? Investigate. Seek to get the truth. Or as close to it as possible.

Some complaints will be true; others may not be.  What is alleged to be harassment, may instead be a consensual relationship.

And most of all, be cautious. And avoid the rush to judgment.

My partner Gary Starr returns with this pre-Thanksgiving tale that seems appropriate not for the holiday, but for the headlines of late. 

Happy Thanksgiving and stay out of trouble.

Another day, another celebrity figure accused of harassment.

Or worse.

Many of the accounts reveal the abuse of power and the lack of respect shown to women.  A recent case adds another aspect to the ways in which harassment or discrimination against women may occur.  While the case is out of New York, the scenario is one that has applicability in states like Connecticut.

The basic facts:

  • A chiropractor hired an attractive yoga and message therapist to his office staff.
  • While he oversaw the medical aspects of the business, his wife served as the chief operating officer.
  • During the therapist’s six months of employment, she described her relationship with the doctor as professional.
  • His wife, however, was disturbed by her presence.
  • Within 3 months, the chiropractor commented to the therapist that she might be “too cute” and his wife may become jealous.
  • Three months later, the wife texted the therapist that she was no longer welcome at the office and she “should stay the [expletive] away from my husband.”
  • Later that day, the chiropractor fired the therapist.

So what happened next?

Perhaps not surprisingly, the therapist filed a gender discrimination claim under New York law.

She said her firing was motivated by sexual attraction and as such was unlawful gender discrimination.

She did not claim that she was actually harassed, but argued that it could be inferred that the discharge resulted from the chiropractor’s desire to appease his jealous wife and therefore the motivation was sexual in nature.

The discharge allegedly occurred for reasons of jealousy, not because the employee had a consensual affair with her boss.

This case was not based on the employee’s conduct, but because the therapist was sexually distracting to the doctor and disturbing to his wife.

While this case originally was dismissed, the appellate division of the New York Supreme Court decided to allow the therapist to pursue her claim.

The court explained that what potentially made the discharge unlawful was not that the wife had urged the firing, but the reason she urged her husband to do it and his compliance.

The therapist had not done anything inappropriate and had allegedly performed her work satisfactorily.  She now has an opportunity to overcome her status an at-will employee to prove that the motivation of the chiropractor and his wife was sexual in nature.

The court made clear that a spouse can urge a husband to fire an employee, but what makes it unlawful is the basis for the firing.  In this case, there are allegations of a gender-based motivation, which was sexual in nature.

What the court ruling suggests is that attractiveness can be a protected condition … if the person is singled out because of his/her appearance. It’s not always going to be the case, but at least here, the allegations are enough to let the case proceed.

The motivation to fire someone due to his/her appearance can be viewed as sexual in nature and therefore discriminatory.  In light of the headlines on sexual harassment, this decision adds a new dimension and another source of problems at work.

You can download the case here.

Employment law lawyers are asked to review a lot of employment decisions.

If we’re lucky, we’re brought in early in the process when the decision isn’t yet final and where our input can be useful.

Other times though, we’re asked to opine on decisions after the fact.

And truth is, it’s really pretty easy to Monday morning quarterback employment decisions.  Because there is sometimes something that wasn’t thought of before the decision was made.

Often, it may not be important. The employer would have still made the same decision if something else was looked it.

Had you known that there was a law protecting free speech in the workplace, would you still have disciplined the employee for putting up a post on Facebook about his working conditions?

Many employers can’t afford an in-house attorney to bounce their decisions off.

So, for those companies, here are five questions to get you thinking BEFORE you make an employment decision.

(Usual caveat: This isn’t advice, isn’t intended to be comprehensive, and isn’t a substitute for actual legal counsel.)

  1. Is the decision fair? If you can’t answer this question honestly, start over. You’re doing it wrong. Fairness matters to judges, juries, and other employees.
  2. Is the employee going to be surprised by the decision? Good management principles dictate that employees should know what is going on. If you’re terminating an employee for poor performance, did the employee know his or her performance was in jeopardy?
  3. Is the decision well documented? Is there backup to support the decision and is the rationale clear from them? And is the decision being properly communicated to the employee too?
  4. Are there any laws that are implicated by the decision?  This is one area that is tough to fake.  You probably know you can’t fire someone because of their age, but what if you are trying to save money; can you fire the highest paid employee who also happens to be the oldest?
  5. Is there anything else going on that should be taken into consideration? For example, did the employee just return from maternity leave? Has the employee been asking for an accommodation?

These five questions won’t solve all your employment law issues.

But it should give you a head start on figuring out what other questions you should be asking and whether the decision you are about to make is one that you’ll be happy with down the road.

Recently, I had the opportunity to see Rags, a new revival now running at the classic Goodspeed Opera House.

I don’t often do theater reviews on this site, but I give it a thumbs up.

The musical tells the story of Jewish immigrants coming to the Lower East Side just after the turn of the century.

They experience outright discrimination and difficult working conditions.

So much so, that they end up even participating in a labor strike asking for better working conditions.

Of course, as an employment lawyer, I’m always looking for a good story to relate.

The musical obviously has undertones of today’s political environment, where refugees are facing barriers to entry from certain countries.

Workplace laws actually limit what employers should be asking in the interview process about immigration status.  And even when a Form I-9 is being process, an employer cannot reject valid documents or insist on additional documentation too.

And it can’t target certain people either.

The EEOC recaps it here:

For example, an employer cannot require only those who the employer perceives as “foreign” to produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment.

According to the EEOC, “applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application”:

In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.”

I’ve always been a fan of learning from history. With a musical like Rags, you can get many employment law lessons in one.

Probably not the endorsement you will see from other theater critics, but you work with what you have.

Yesterday, I had the opportunity to speak to the IASA Northeastern Conference on a favorite topic of mine of late — Privacy and Data Breaches in the workplace.

Of course, that sounds kinda of boring.

So my presentation is actually called the title of this post: “The Rise of Smartphone Fueled, Social Media Addicted Workplace Zombies.”

Much catchier right?

Speaking before the Insurance Accounting & Systems Association (IASA) Northeastern Chapter at their 54th Annual Regional Conference was great fun though.

In my talk, I highlighted items like Business E-mail Compromise scams, Ransomware, and yes, even workplace zombies.

What do I mean by that? Well, too many of us (including me at times) stare at our phones and sometimes respond to e-mails or click without thinking.  (Think Before You Click would make the name of a good book; fortunately, I wrote a chapter in that very book a while back.)

Protecting workplace data IS about thinking. It’s about protecting personnel files, or benefit information, or retirement plan data.  It’s about protecting trade secrets or just plain confidential information.

It’s about building a CULTURE of data privacy. Where employees buy in that protecting data is a core value and where employees are REWARDED for good data practices while enforcement (with a bit of punishment where needed) is encouraged by all.

It’s not the most exciting topic to be sure but everyone wants to be protected from the zombies, right?

I gave a similar talk early this summer as keynote lunch speaker for the ADNET Worksmart conference and it worked so well, word got around.  Maybe data privacy can be interesting after all.

My thanks to IASA for the invitation and opportunity to speak to the group yesterday.

Are you looking for something new to end the year with?

Then I have two quick links to share with you this morning.

First, on December 7 from noon to 1 pm (ET, of course), I, along with Eric Meyer (The Employer Handbook Blog), Jeff Nowak (FMLA Insights), Jon Hyman (Ohio Employer’s Law Blog), Robin Shea (Employment & Labor Insider), and our fearless moderator, Suzanne Lucas (Evil HR Lady) will present The 2017 Employment Law Year in Review.

The event is free, but space is limited. Register now for our one-hour recap of all the big employment-law and HR-compliance news of 2017, along with some practical tips to help you prepare your workplace for 2018.

Click here to register:  https://register.gotowebinar.com/register/5767568894289723906

Second, I’ve gotten an early listen to a brand-new podcast, entitled “Hostile Work Environment.” Set up by two employment lawyers who have a great sense of humor and a terrific ability to tell a story, the podcast shares various cases with facts that are too fantastic to make up.

You can download it at all the usual podcast locations. Worth a listen if you’re an HR type or employment lawyer.