Discrimination & Harassment

Yesterday, I tackled the bills floating around the Senate-side of the Connecticut General Assembly,  In today’s post, let’s look at the House side to see what bills are under consideration there:

  • House Bill 5003 is the mirror-image bill of Senate Bill 1 on Paid Family & Medical Leave.  Yesterday’s post gave the highlights, which apply equally to this bill too.
  • Similarly, proposed House Bill 5004 would raise the minimum wage in the state. The details are still to be drafted, but the CBIA has been asking for the raise to $15/hour to be scheduled over multiple years.  Some version of this is very likely to happen; it’s just a matter of timing of increases from the current $10.10 rate.  $15 per hour seems to be the prevailing wisdom.
  • Proposed House Bill 5053 would create a task force to look for employment opportunities for persons recovering from substance abuse. The details are to be drafted by the Labor & Public Employees committee and the bill will be up for discussion at a public hearing on February 14, 2019.
  • Proposed House Bill 5271 would re-introduce requirements that would broaden sexual harassment prevention training for employers.  The details, again, are still lacking but at a press conference last week, several legislators reintroduced a so-called “Time’s Up Act”.  This is definitely going to be subject to negotiation and change. While the 2018 died in session, it seems likely we’ll see something coming up again later this spring.
  • Proposed House Bill 6111 would allow employers to require employees participate in a direct deposit program for paychecks.  This bill is up for a public hearing on February 14, 2019.
  • Proposed House Bill 6113 is one that I don’t think we’ve seen much before. It would prohibit asking about an applicant’s date of birth or date of graduation on employment applications to “reduce age discrimination”.   Many employers have already taken those questions off their job applications to avoid even the impression that age is a consideration in their decisions; this bill would make that more explicit.  A hearing on this bill is set for February 14, 2019 as well — looks to be a busy hearing.
  • Proposed House Bill 6913 would prohibit “certain employees” from being required to sign “unfair” non-compete agreements.  Who those employees are and what terms would be “unfair” is likely to be the subject of the public hearing on this proposed bill on February 14th as well.  Proposed House Bill 6914 would create a similar ban on non-compete agreements for employees below a certain salary threshold.
  • Proposed House Bill 6936 would take a look at deductions for union dues, seemingly in direct response to the Janus decision. The details are still TBD but this is one that still merits an eye on.
  • Proposed House Bill 7043 would dictate certain requirements for lactation rooms in the workplace.  Rooms should be private, should contain or be near a refrigerator, and include access to a power outlet.  The bill also would make employers provide “breastfeeding support” for up to three years after childbirth.  The details of this bill are still TBD and this bill will be up for discussion at the February 14th hearing.  

To be clear, these are only the list of bills coming out of the Labor & Public Employees committee.  Each year, bills from other committees (including Judiciary) also have a tendency to impact employers.  There is plenty for employers to keep an eye on this year.

The Connecticut General Assembly is already busy with a full compliment of employment law bills under consideration.  At this point, it seems likely that several will pass in one form or another and thus employers should be playing close attention to the developments.

Here are a few of the Senate ones that I’m watching (I’ll tackle the House bills in tomorrow’s post – now available here):

  • Senate Bill 1 – This is the Paid Family and Medical Leave bill that has been kicking around for a few years.  Late last week, the Labor & Public Employees Committee issued a new draft.  There are a LOT of details to this but in essence, the bill would have two major changes. First, it would create a new paid family leave insurance program that would take contributions from employees and distribute those contributions to employees who need to take paid leave — similar to a workers’ compensation program.  Second, the bill would make significant changes to the existing Connecticut Family Leave law, to broaden the law’s application to all types of employers and broaden when an employee may take the leave as well.  More to come as this bill progresses.  A hearing on the bill is scheduled for February 14, 2019.
  • Proposed Senate Bill 64 – This is a rehash of a bill that would limit so-called “captive audience” meetings.  The details are still in flux but the Labor & Public Employee committee voted to draft the bill on February 7, 2019.  I’ve discussed prior versions of the bill here, including the Attorney General’s concern that such a bill may not be legal.
  • Proposed Senate Bill 358 – This proposed bill would provide employees with time off to vote in elections.  The committee voted to draft the bill late last month but there’s no indication yet whether this would apply to all local elections (such as a town budget referendum) or just broad state elections.
  • Proposed Senate Bill 697 – This proposed bill, which is scheduled for a hearing on February 14, 2019 and is lacking details as of yet, would “place restrictions on workplace nondisclosure agreements to prohibit the silencing of victims in the workplace and to prevent sexual harassment by repeat offenders.”  This would seem to go further than the recent federal law which limited tax deductions for confidential sexual harassment settlements.
  • Proposed Senate Bill 700 – This bill would allow for electronic signatures by employees in the restaurant industry when distinguishing between service and non-service duties. This bill is also scheduled for a hearing on February 14th.  It would be a small but significant help to small employers who have trouble keeping up with the record-keeping requirements in this area.
  • Proposed Senate Bill 764 – This bill would prohibit on-call shift scheduling — something that has been under attack in prior sessions as well.  Specifically, the bill would “prohibit the employment practice of requiring an employee to call an employer prior to a scheduled shift to confirm that the employee is needed for the shift, and to require employers to give an employee at least twenty-four hours prior notice if the employee is not needed to work a scheduled shift.” The Labor & Public Employee committee voted to draft this proposal so watch for a full-fledged bill soon.
  • Proposed Senate Bill 765 – And then there’s this proposed bill scheduled for a hearing on February 14, 2019.  Right now, it states that the law would ensure all employees “receive fair and equal pay for equal work”.  What that means for employers is anyone’s guess right now.

This is about a busy a listing as you can reasonably expect to see from our part-time legislature.  It’s still early but that’s just the half of it.  I’ll tackle the House bills in my next post.

In my prior post, I wondered aloud whether there were some rough waters ahead for employers.  Apple recently announced that it would not meet it’s earnings estimates in the first quarter of 2019, in part because of soft demand from China. Other companies are expected to announce some similar issues.

Honestly, I’ve had enough conversations in the last few years with HR professionals who just haven’t lived through a major downturn.

Think about this way: For anyone who joined the workforce since 2010 or so, the era of massive layoffs in the financial and automobile sectors had just passed.

But fortunately, there are still a few of us around who remember.

So here are four things to think about:

  • Performance Reviews.   Why? Because when a downturn hits, your company will need to start a selection process as to who stays and who goes.  Inevitably, you will start looking at performance reviews to see about ranking employees.  You know what you might find? They all start looking alike. Everyone is slightly above average.   While I’m not suggesting everyone convert to a forced ranking system, your performance reviews should be honest indicators of how an employee is doing. Take a look at the ones you are doing this quarter.
  • WARN.  The Workers Adjustment and Retraining Notification Act  is one of those federal laws that you might not have even heard about. But if your company has 100 or more employees, you should. It requires that 60 days notice be given in instances of a mass layoff or plant closing. Before you go down the road of layoffs, you may have obligations to notify your workers and the government of the potential for layoffs. Be sure to comply.  Here’s a brief recap.  
  • Consider a Statistical Analysis.  I know — you didn’t like math in high school. But trust me: There is an entire profession of statistical experts available to help you figure out if the proposed layoff may have a disparate impact on a protected class of workers.  How is this done? You look at the class of workers that may be impacted by the proposed reduction in force and have an analysis done to see whether your neutral criteria may not be so neutral after all. Sometimes there are explanations for the disparate impact; but sometimes, the analysis can force employers to take a second look. Regardless, this can be an important step.  Just make sure to use an attorney to help give guidance here.
  • Understand the OWBPA.  It stands for the Older Workers Benefit Protection Act and it’s part of the federal law on age discrimination.  And if you want your employees to sign separation agreements (as I think you should) when you do your layoffs, your agreements better comply with this act.  I did a recap in 2008 that still holds up today.  

Before you have a crisis on your hands, talk internally about what the reasonable expectations for 2019 are going to be. If a possible cutback to personnel is even being discussed, now is the time to get ahead of things.

You do a blog long enough and everything comes full circle.  Back in January 2008, I took out my crystal ball and suggested that reductions in force (RIFs) and lawsuits would soon follow.

We all know what happened next. The economy crashed and discrimination claims at the EEOC peaked at their highest levels in more than 20 years.  

So here we are 11 years later.  A whole generation of HR professionals have never experienced a significant downturn.  Are we headed there again in 2019?

I’ll leave that to the economists and politicians.  Two weeks ago, the stock market was topsy-turvy. Now, we seem pre-occupied with the partial government shutdown.  And at least in Connecticut, new Governor Ned Lamont has a plan for growth, growth, growth.

But it’s worth considering whether your company is even prepared for a downturn, even if it still is many months away.

Again, we can first look to history. As I said back in 2008:

What is a reduction in force? Really, just a lawyerly way of saying “layoff”. Back in the early to mid 1990s, lots of companies went through them.  And the number of lawsuits arising from those reductions went through a major peak in 1995 or so.

But these types of lawsuits rise and fall with the economy.  When the economy is good, lawsuits go down. When it’s not so good, they go up. One reason is that when people can find another job quickly (i.e. the unemployment rate is low), then tend not to sue as much.

And even back in 2008, I noted that things might be different for employers and indeed they were.  The rise of the internet-fueled lawsuits have been a reality. Here was my prediction back then:

One more factor suggests to me that more lawsuits are on the horizon — it’s much easier for a few employees to band together than in the past. Previously, people would have to use their existing networks to find laid off employees to hear their stories (indeed, outplacement firms were a good source for employees looking to talk with other laid off workers). But now, with the rise of social networking sites, it seems only a matter of time before a group of employees will form a Facebook or MySpace page to compare experiences.  Employees from around the country can share information instantly, making it much easier to figure out if there are trends associated with the layoff that may give rise to a lawsuit.

Just as Uber or the employers in Connecticut facing class action lawsuits that one firm puts on their website have found out.

What’s an employer to do? I’ll tackle that in my next post.

It’s sometimes easy to forget that the government shutdown has very real-world implications. Case in point? The Equal Employment Opportunity Commission.

As of now, it’s closed.  The agency has even posted a notice about it on its’ website. 

That doesn’t mean that the time limits for filing a charge have been extended.   Generally, federal claims must be filed within 300 days of the alleged discrimination. As noted by the EEOC, “These time limits may not be extended because of the shut-down.”

The EEOC thus encourages employees considering filing claims “within 30 days of your time expiring” or unsure “your time expires”, to not wait to file.

For employers with matters at the EEOC, mediations have been cancelled.  It is unclear from the shutdown notice whether the EEOC will continue to press the time frames for submitting position statements, but given the lack of action on anything pressing, the agency would certainly seem amenable to having those deadlines extended.

Employers with specific questions though should certainly check with their counsel to see if their particular case warrants action.

The bottom line is that the backlog that existed at the EEOC will continue to grow because of this delay; mediations are going to get rescheduled and action is just going to take longer.

Stating the obvious: The longer the shutdown, the longer the delays.

January 1st is typically a time for new laws to kick in and 2019 is no exception.

For employers, the biggest change is one that I discussed way back in May with amendments to Connecticut’s Pay Equity law.

The new law prohibits employers from asking a job applicant his or her wage and salary history. But the prohibition does not apply in two situations:

  • if the prospective employee voluntarily discloses his or her wage and salary history, or;
  • to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

While salary may not be inquired, the law DOES allow an employer to ask about the other elements of a prospective employee’s compensation structure (e.g., stock options), but the employer may not ask about their value.

The bill has a two year statute of limitations. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.  (This bill amends Conn. Gen. Stat. Sec. 31-40z if you’re looking for the pinpoint legal citations.)

Note that this ban on inquiries also applies to applications or other recruiting forms too. So, if your application asks for prior salary history, it’s time to eliminate that.  Employers should inform manager and other employees who conduct interviews about this requirement as well.

 

Now that Thanksgiving is in the past, it’s time to look forward to the future.

Well, not before getting a recap of everything that transpired in employment law in the last year. Or at least everything that we can fit in an hour long seminar.

The webinar that broke attendance records last year is back again on December 4, 2018 at noon ET.

This year, five employment law bloggers are presenting the “Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented” webinar.  Registration is just $25 and it’s eligible for CLE/SHRM/HRCI credit.

All that is needed is to sign up here. 

The presenters this year are:

  • Robin Shea, Constangy, Brooks, Smith & Prophete
  • Kate Bischoff, tHRive Law & Consulting
  • Jon Hyman, Meyers Roman
  • Eric Meyer, FisherBroyles
  • Jeff Nowak, Franczek Radelet
  • Daniel Schwartz, Shipman & Goodwin

Among the topics that you can surely expect to hear about: #MeToo, LGBT discrimination, Data Privacy and Security, Wage & Hour issues, and FMLA.

Be sure to sign up; it promises to be the best ever. (At least until next year.)

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….