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The Commission on Human Rights and Opportunities can sometimes be seen as an easy punching bag by legislators, employees, employers and employment law attorneys.

But there’s one area that has been an unequivocal success and where you won’t see almost any headlines.

The CHRO several years ago developed the Kids Court Essay Competition which runs each year.  In it, it gives high school and middle students the opportunity to talk about topics that are important to them and shine a spotlight on others who may not have the same opportunity.  In doing so, the competition focuses on important and contemporary civil justice issues.

This year’s essay topics were:

The CHRO received over 300 (!) entries.  Out of that, five essays were chosen as finalists at both the middle school and high school levels.  Each student then had the opportunity to address the Kids Court — a panel of distinguished lawyers, judges and others assembled for this purpose.

This week was this this year’s Kids Court and I was grateful the CHRO asked me to participate as a judge.

The students displayed a keen awareness of the local community; they each talked about topics that were important to them.  The students that talked about Hate Crimes and Educational Equity had a particular resonance to the current events of today.

As an employment lawyer, I found it notable that none of the finalists’ essays were actually on #metoo.  I don’t think there’s much to conclude from that, other than that the students’ essays on other topics were judged to be better.

In 2018, we’ve seen high school students rise to national prominence in Florida over the issue of school safety and gun violence. Listening to these “kids” and making sure their voices are heard is something that employers should consider. Today’s generation of students are increasingly impatient with the pace of change.

Congratulations to all the finalists and I look forward to hearing their continuing contributions to our civil discourse in the years to come.

 

With a weekend of football championships behind us, this post tackles the privacy developments that employers here in Connecticut need to run down.  Indeed, while I could just pass off two recent posts from my colleagues, it’s worth going through a progression of options.

One development is for the U.S. “patriots”, while another one lets you fly like an eagle to Europe to understand the implications that an EU regulation can have on US employers.

Since my beloved New York football giants were out of it since week one, I’m going to just quarterback what you need to know and, for the sake of everyone, put the football puns on the sideline for the rest of the post.

First up, the Connecticut Supreme Court last week recognized a private right of action that patients have against their doctors for unauthorized disclosure of confidential information obtained in the course of that relationship.”  My colleagues in the Health Law group have a detailed post here. As noted by my partners:

This case is significant because it provides yet another avenue by which physicians may be held liable for violating HIPAA. This is because the Court decided in 2014 that “HIPAA and its implementing regulations may be utilized to inform the standard of care applicable to such claims arising from allegations of negligence in the disclosure of patients’ medical records …” Thus, if physicians owe a duty of confidentiality to their patients and violating HIPAA is found to breach that duty, the Court held that patients now have the right to sue their physician for damages caused by a violation of HIPAA. Whether a patient will be successful in such a lawsuit remains to be seen.

The case serves as a reminder to health care professionals and, perhaps just as importantly, to their staff to protect confidential health information to comply with the law and avoid legal liability from patients.  If you do any work in the health care area, the decision and the tips flowing from the case are a must read.

On a broader scale, Connecticut employers that do business in Europe or do business from EU citizens should also take note of new regulations coming into effect in late May 2018.  Again, my colleagues posted about this on the School Law blog, but it’s worth a look.

So what are we talking about? As my colleagues noted:

The requirements of the European Union (“EU”) General Data Protection Regulation (“GDPR”) come into effect on May 25, 2018.   These regulations promise to usher in sweeping changes to the way institutions, companies, and other organizations collect and handle the personal data of EU residents.

The GDPR is a holistic set of data privacy requirements that address the entire life cycle of collection, use, and disclosure of the “personal data” of EU residents. While we anticipate jurisdictional challenges that may someday limit the GDPR’s reach outside of the EU, the law as currently drafted purports to affect institutions of higher education, companies, and other organizations, such as boarding schools, worldwide. This means that the GDPR will affect not only institutions that do business with or operate inside of the EU, but will also affect institutions in the United States that processes the personal data of persons residing in the EU.

For more on the subject, check out this comprehensive post from my fellow law partners.  

Privacy law has increasing implications for employers and employees.  Employers need to ensure proper training in these areas to ensure compliance.

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.  

My colleague, Gary Starr, returns this morning with a post on a recent case that has implications for employers nationwide.

You wouldn’t think that fingerprinting would be brought into the world of religious accommodations.

After all, the importance of background checks cannot be denied, particularly when the prospective employee is going to work with children or the elderly.

Vulnerable populations need assurance that those with whom they will be dealing have their best interests at heart.

Background checks, however, can raise strange issues for employers when the person asked to authorize a background check indicates that he/she has a religious objection to fingerprinting.

In a recent federal case (download here), a bus driver, who was required to submit to a background check to retain her position, refused to undergo a fingerprint background check.

She explained that it was her sincere religious belief that fingerprinting is the “mark of the devil” and that fingerprinting would bar her entry into heaven.

She asked for an accommodation.

The employer checked with state and federal authorities responsible for doing the background checks, including the FBI, the State Department of Education, and the School District for whom she drove.

They were unable to provide guidance on what alternatives there were under the state law.  As a result, the bus company, faced with a criminal charge and fine if the driver were not tested, terminated the driver.

The fired employee then sued.

The bus company sought to have the case dismissed without having to go through discovery or a trial, but the court rejected this effort.

The court found that the bus driver sufficiently described her sincere religious belief about being barred from Heaven if she were fingerprinted and that an accommodation should have been made, as there was an insufficient basis to establish that the employer would suffer an undue hardship, at least at the initial phase of the litigation.

Further, the court said the employer’s assertion that it lacked the power to grant an exception to the fingerprinting requirements required greater exploration during discovery.

The bus company now must go through discovery before it has another opportunity to have the case thrown out short of a trial.

Connecticut employers face the same potential problem, because Connecticut law does not provide an alternative to fingerprinting.

Recognizing that potential issue, it will be important to look for ways to accommodate applicants and employees who raise religious objections.

Certainly, there are persons who cannot be fingerprinted or whose fingerprints cannot be read.  Employers should seek out accommodations and carefully document the steps they take to explore alternative testing techniques.

They must be able to show that the steps to find an accommodation were reasonable and if an accommodation were not possible, why the situation would create an undue burden.

It would be far better to take the time before firing or rejecting an applicant to explore what is possible than to defend a lawsuit.

For more on Kaite v. Altoona Student Transportation, Inc., click here.

 

An applicant for a job posting in education lists his most recent relevant experience as occurring in 1973.  You don’t bring him in for an interview.

Is it gender discrimination?

Beyond that, if he says that he is the most qualified candidate — do you have to hire him?

And if you don’t hire the most qualified person, is that evidence of gender discrimination?

No to all three, says one recent federal court decision.

The decision by the court was quietly released late last month and might otherwise go unnoticed, but it underscores an important point for employers.

In the matter, the Plaintiff argued that the employer discriminated against him because of his gender by denying him the opportunity for a job interview.   The employer chose four female and two male candidates for interviews.

The Plaintiff argued that he was more qualified than the female candidates who were interviewed and ultimately hired by the employer.

The court said, however, that the mere fact that the employer hired people of a different gender does not suggest that it failed to hire the Plaintiff “on account of his gender”.

Indeed, the employer had various reasons as to why the Plaintiff was not interviewed:

  • he hadn’t filled out the entire job application and didn’t answer whether he had any criminal offenses in the last ten years.
  • his resume was “perceived to be outdated, as the most recent job listing in education was from 1973.”

So, you might not think much of the case.

But the court’s decision is notable because it contains language that will be helpful in other cases for employers.  Says the court: “[T]here is no legal requirement that the most qualified candidate be hired.”

In doing so, the quote revisits a quote from an 1980 decision.

Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory. When a decision to hire, promote, or grant tenure to one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn. Indeed, to infer discrimination from a comparison among candidates is to risk a serious infringement of first amendment values. A university’s prerogative to determine for itself on academic grounds who may teach is an important part of our long tradition of academic freedom.

All that being said, employers should have SOME rational basis for their decisions. Even if the candidate is “more qualified”, the employer may determine that there are other reasons why the employee should not be hired; maybe the employee’s qualifications cannot overcome a bad job interview, etc.

Keeping bias out of your decision-making process is central to employers.  But it’s nice to know that employers don’t have to be perfect in its determinations of qualifications either.

Shorter is better.

Why? The slang TL;DR comes to mind.

But it turns out there’s an educational component too — at least according to the results of a new study that examined workplace contracts.

In the study, published in the Journal of Personality & Social Psychology and recapped by Insights by Stanford Business School, “the researchers found that workers whose contracts contained more general language spent more time on their tasks, generated more original ideas, and were more likely to cooperate with others. They were also more likely to return for future work with the same employer, underscoring the durable and long-lasting nature of the effect.”

In other words, contracts that contained pages upon pages of specific do’s and don’t for workers, ended up harming the employment relationship.

Instead, researchers found that “the more general contracts increased people’s sense of autonomy over their work.”

This isn’t the first time I’ve talked about the need to write employment contracts in plain English — something that is at the core of a book by Ken Adams whose work has appeared on this blog before.

It turns out that even “minimal changes”, in the words of one of the study’s authors, can have “important consequences.  Especially when it comes to behaviors that are notoriously difficult to include in contracts, such as increasing effort, task persistence, and instilling a stronger sense of autonomy, which leads to higher levels of intrinsic motivation. Reducing the specificity of contractual language can also increase creativity and cooperation.”

From a legal perspective, I’ll blame some lawyers for introducing some language in a contract that can be overkill at times.

(Don’t think lawyers are at least partly to blame for long contracts? Next time you see a “This space is intentionally blank” line in a contract, rest assured that it probably came from a lawyer.)

A few years ago, our practice group went through a standard separation agreement template to remove the “Whereas” clauses and the “Definitions”  — all in an attempt to simplify the agreement. The process took months.  Simplification does not necessarily mean increasing risk. It just takes more time.

Just ask Mark Twain (actually don’t — it’s a misattributed quote.)

Of course, you probably don’t need me to tell you that shorter is better. I just read the abstract and not the entire article.

After all: TL;DR.