Human Resources (HR) Compliance

With the final few working days of the General Assembly session, we’re starting to see the outlines on bills that are pretenders vs. contenders.

Yesterday, the House passed a contender on the subject of pay equity in a bi-partisan vote.  Unless the Senate decides not to bring up the matter (as it decided last year), employers should start preparing for its likely overall passage and implementation later this year.

Four other states (including Massachusetts) have a bill of this type on the books.

So what does House Bill 5386 say exactly?

Well, less than it originally said. At the vote yesterday, the House passed “Amendment A” that eliminated some of the more controversial provisions of House Bill 5386.

Ultimately, the bill would expand the prohibitions on pay secrecy now found in Conn. Gen. Stat. 31-40z, and prohibit an employer from:

Inquiring or directing a third party to inquire about a prospective employee’s wage and salary history unless a prospective employee has voluntarily disclosed such information, except that this subdivision shall not apply to any actions taken by an employer, employment agency or employee or agent thereof pursuant to any federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes. Nothing in this section shall prohibit an employer from inquiring about other elements of a prospective employee’s compensation structure, as long as such employer does not inquire about the value of the elements of such compensation structure.

So, while there is a general prohibition about asking applicants about their salary history, it does not apply (1) if the prospective employee voluntarily discloses his or her wage and salary history or (2) 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.

The bill also allows an employer to ask about compensation structure, but the employer may not ask about the value of the compensation structure’s elements, except for the value of stocks or equity.

Ultimately, the compromise that was reached was applauded by business groups like the CBIA:

Approval today of legislation addressing gender-based pay inequity is the result of discussions and compromise between multiple parties, including the business community, Democratic and Republican legislative leadership, and the governor’s office, and we thank them for all their commitment to forge a consensus.

If passed by the Senate and signed into law, the bill would take effect January 1, 2019.

It was only a few years ago that the phrases “unconscious bias” or “implicit bias” started making the rounds in the legal community.

I can trace the discussion on this blog to a 2014 guest post from a former law professor of mine, Kim Norwood, who talked about it in the context of her own experiences here.  I also talked about it in the context of a 2014 study that showed that married men with stay-at-home wives had negative attitudes towards working women.  

Implicit bias has gained steam over the last several years. Indeed, Professor Norwood came to our firm in 2015 to give a presentation on The Mischief Biases Play in Law and the Legal Profession.  Suffice to say, it was well received and she was asked back again for a further presentation.

All of this is a precursor to what I think may be the biggest development thus far in the mainstreaming of the “implicit bias” theory and training.

Earlier this week, Starbucks announced that it will close all 8000+ of its stores next month to conduct anti-bias training for its 175,000 employees.  My guess is that it is one of the biggest single-day training events of its kind attempted in the United States.

The open question is: Will such training work? 

According to The New York Times article, the answer remains unknown.  Some studies show their effectiveness. But in some instances, it can have a negative effect as well.

Other academics and experts on bias caution that anti-bias training is a sensitive exercise that can be ineffective or even backfire if handled incorrectly. Any training that involves explicitly telling people to set aside their biases is especially likely to fail, said Seth Gershenson, an economist at American University who has also studied anti-bias training, because it requires so much mental energy it can exhaust people.

Even with training, some said, it is exceedingly easy to revert to the original biases. “In the moment of stress, we tend to forget our training,” said Mark Atkinson, the chief executive of Mursion, which provides a simulation platform for training workers in skills like interpersonal interactions.

I’m eager to see how Starbucks continues to develop this. Its response to an earlier incident may be used as a role model to other companies who have had to deal with these types of issues. We should all be hoping its succeeds.

There’s been a lot in the news of late about “outrageous” provisions found in an separation agreement between an employer and an employee, like confidentiality.  Indeed, some proposed legislation would restrict the use of some provisions.  

So I thought it would be helpful to go over what we typically see in a separation agreement.

First a big caveat: My description of a “typical” agreement does not mean that these provisions are in every agreement or even that these provisions ought to be in some agreements. Each separation or settlement has differing facts that may make certain provisions more important than others. And some employers or employees negotiate differently.

In other words, there is not a one-size-fits-all to this and employers should definitely not attempt to do this without legal guidance.

One more caveat, back in 2009, I provided a link to a great checklist that existed at the time about key provisions to have in a separation agreement. Nearly 10 years later, it still holds up pretty well.  You could do a lot worse than rely on that.

So what are typical provisions?

  1.  Last Day of Employment
  2. Benefits Upon Separation of Employment
  3. A Release of all possible claims related to employment (maybe even broader) with lots of legalese
  4. Confidentiality of Agreement
  5. Nondisparagement of one or more of the parties
  6. No Admission of Liability
  7. No Obligation by Employer to Re-Hire
  8. Return of Property
  9. Affirmation of Any Prior Restrictive Covenants (such as Non-Compete periods)
  10. References or Removal of Negative Information from Personnel File
  11. Many more technical provisions regarding what the governing law is, indemnification in case of breach, incorporation provisions making sure this agreement supersedes prior agreements, and, OWBPA-compliant provisions if necessary.

So, before you read headlines or “expert” commentary expressing shock that a separation agreement contains a confidentiality provision, understand that typically these are sought by both an employer and employee.  There may be good reasons that both have for wanting to keep the reasons for the separation and any separation agreement private.

Ten years ago today, I wrote about the then-Tenth Anniversary of one of the horrible events that made a lasting impact on Connecticut employers.

I recounted the Connecticut Lottery shootings that happened a decade earlier.

Today, marks 20 years. (The CT Mirror has another perspective here.)

The New York Times report of that event is still chilling in its matter of factness:

Angered about a salary dispute and his failure to win a promotion, a Connecticut Lottery accountant reported promptly to his job this morning, hung up his coat and then methodically stabbed and gunned down four of his bosses, one of whom he chased through a parking lot, before turning the gun on himself.

Since that time, we’ve had other workplace shootings in Connecticut including one even deadlier (Hartford Distributors) and, of course, the massacre in Sandy Hook.

I’m reminded of a post I did early on that was titled: Are there really any lessons to be learned from evil? In it, I suggested the answer was “perhaps” — if only because employers need to keep reviewing their workplace violence policies and keep figuring out ways to spot trouble before it arises.

Just in 2014 alone, there were over 400 workplace homicides nationwide reported to OSHA.

Indeed, it seems the rare case where workplace violence just pops up out of nowhere.

OSHA does have some resources on the subject — but many of them are starting to be dated. 

One of the more useful items was a set of guidelines issued in 2015 targeting healthcare and social service workers.

It calls on employers to develop workplace violence prevention programs from five building blocks:

  1. Management commitment and employee participation;
  2. Worksite analysis;
  3. Hazard prevention and control;
  4. Safety and health training, and
  5. Recordkeeping and program evaluation.

There are far more details in the report than a blog post could recap but for employers looking to reduce the risk of a workplace shooting at their facility, getting started on your own program is as good a place to start as any.

As we remember the victims of the Connecticut Lottery shooting, may we honor their memories to keep bringing change and safety to our workplaces.

Last week, I posted about a proposed Governor’s bill that would expand the training requirements for some employers.

However, that appears to be just a small part of a wider political battle that is about to be raised.

Yesterday, a group of Senate Democrats proposed, according to a handout, the “Largest Overhaul in Modern Connecticut History of Sexual Harassment Laws” that would significantly alter the landscape for nearly all Connecticut employers.

They’ve titled their proposal the “Time’s Up Act: Combating Sexual Harassment and Sexual Assault”.  

The bill has yet to be drafted, but the outlines are being shared by Senate Democrats and will be pursued first in the Judiciary Committee (not the Labor & Public Employee Committee as you might expect).

According to their handout, the proposed bill will contain the following relating to discrimination or harassment laws:

  • Require that any notice of sexual harassment remedies and policies by e-mailed to each employee at least once a year, in addition to the required posting.
  • Increase the fines that the CHRO can impose for failing to provide notice (currently at $250)
  • Require sexual harassment training to all employers with three or more employees (instead of the current 50 or more threshold)
  • Require training of all employees, not just supervisory employees with broader topics
  • “Give CHRO the resources it needs to go out into the community and conduct on-site trainings”
  • Increase the statute of limitations from 180 days to 2 years for not just harassment complaints, but all discrimination complaints
  • Eliminate the 90 day deadline after receiving a release from the CHRO to file a lawsuit but extend it to two years after a release from the CHRO.
  • Permit the CHRO to ask for injunctive relief for employers of 3 or more employees, not the current threshold of 50.
  • Allow for punitive damages in all discrimination and harassment complaints
  • Increase funding for the CHRO
  • Create a similar model to California in passing a Private Attorney General Act, which would allow litigants to, after giving notice to the CHRO, bring a claim for violations against himself or herself, but also against other employees as well.
  • Prohibit settlement agreements that prohibit a party from disclosing information regarding sexual harassment or sexual assault.

This is still in the early stages but expect to see a lot more about this in the weeks and months to come.  No doubt, the Connecticut Business and Industry Association will have something to say about this as well.

I’ll have more details as they become available.

The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage.

Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months.

Governor’s Bill 5043 sets up the following changes:

  • First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15.
  • Second, the bill would also require all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years.
  • The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religious creed, age, sex, gender identity or expression, marital status, and national origin.
  • The training would also be required to include information about the employer’s policy against harassment, examples of the types of conduct that constitute and do not constitute harassment, strategies to prevent harassment, bystander intervention training and a discussion of “workplace civility” that shall include what is acceptable and expected behavior in the workplace.
  • The bill would require employers of three or more employees to continue to post information regarding all types of harassment and, on an annual basis, to “directly communicate such information and remedies to employees on an annual basis”.

My best guess is that this item of legislation will go through some additional tweaks to satisfy various constituencies, particularly because of the increased costs involved.

For example, expanding the training to all employees would create a massive new industry for training and, as the CBIA has said, a costly mandate as well.

There is more legislation coming down the pike in the employment law area.  This is just one of the items being floated so stay tuned.

Are you ready for blockchain’s impact in employment law?

This seems to be the new equivalent to the buzz a decade ago that social media was going to change the world (it kinda did).

Perhaps bigger.

At this point in the post, there are probably two reactions: 1) Tell me more!; and 2) What are you even TALKING about?

So, let’s start with the second question first — what is the “blockchain”? There are many discussions, but one recent ABA article had this to say:

Blockchain is commonly defined as a decentralized digital ledger in which transactions are recorded chronologically and publicly. In its infancy stages, blockchain was the mechanism that tracked cryptocurrencies such as Bitcoin. However, as the technology evolved, variations such as private, permissioned, and consortium blockchains have emerged. Ultimately, blockchain technology can facilitate many types of business transactions.

Another article by a lawyer described the hype as follows:

By design, blockchains are inherently resistant to modification of the data—once recorded, the data in a block cannot be altered retroactively without obviously corrupting later blocks, which depend on the original data from the earlier block as part of the hash. It can take enormous time and energy to go back and rehash subsequent blocks to try to hide the earlier alteration, and in the meantime new blocks are being added to the chain. This makes a blockchain extremely resistant to modification.

The applications of the blockchain are still in the infancy phase.  (The hype cycle for blockchain is in the “peak of inflated expectations” period and it projects that we are still 5-10 years off from maturity.) And thus, any discussion regarding its implications in the employment law arena are necessarily speculative.

But let the speculation begin.

For example, one human resources expert suggested some uses for this technology as follows:

  • It may make the concept of a “self-sovereign identity” for employees a reality, making verification of past employment or certifications easier and more secure. (Or this breathless article about “Blockchain-based CVs Could Change Employment Forever.“)
  • Potentially, you could run payroll off the blockchain to make those transactions more secure.
  • It could also be used to help employers keep confidential health information and transmit it more easily.

It only takes some imagination to go beyond that as well.

  • “Smart” employment law contracts, in which transactions automatically happen, could be introduced into the workplace.
  • Or the blockchain could be used to secure IP rights to company products, thereby avoiding the confusion as to whether the employee or the employer “owns” such rights.

Blockchain is still very much developing and I wouldn’t be surprised if this article seemed a bit dated a few years from now.  After all, who would’ve thought you could order a car (Uber) inside a social messaging app (Facebook) just a decade ago?

But employers and their attorneys who stay up on technology should understand the potential implications for blockchain in the workplace and be ready to adapt once the technology becomes mature enough to use.  From my perspective, there’s still time to keep reading about this developing technology; the time for action is still yet to come.

In trying to eliminate sexual harassment in the workplace, how do we go beyond just training?

That is, in essence, the question that my colleagues (Jarad Lucan and Ashley Marshall) and I have been talking about recently.

And, fortunately for you, a topic of a free CLE webinar we are putting on a few weeks.  It’s set for February 13th at 12 p.m.

What we are really looking at is how do you get your company culture and actions in line to try to reduce and eradicate sexual harassment from your workplace?

It does not, obviously, happen overnight.  Perhaps it’s revising your policies. Perhaps it’s adding an ombudsman program if you’re large enough.

Or perhaps it involves encouragement of employee complaints so that you can tackle the issue more directly.

There is no one size fits all to this but it’s an important enough topic (naturally) that we wanted to devote a CLE webinar just to this.

Hope you can join us for this timely topic.

In college, I wanted to write for some of the major newspapers and be on their front page.

Little did I know that my big break would now come years later, as a result of being on the cover of the Hartford Business Journal.  

Wow.

But enough about me.  This blog is about employment law so let’s talk about the article inside the HBJ because it’s definitely worth a read.  

You see, the photo, has little to do with the content.  And the content is what employers should really be paying attention to.

The article is all about the topic of sexual harassment in the workplace, which continues to make headlines each day.

As I noted in the article, we just haven’t seen an increase in lawsuits….yet.

[F]or non-celebrity victims and their employers, the implications are just as dangerous and costly, so prevention is becoming a greater focus for many companies, lawyers say.

“It’s been the topic of conversation,” said Dan Schwartz, an employment lawyer at Hartford law firm Shipman & Goodwin, who has his own blog where he’s been tackling the issue. “It is at a level we haven’t seen in at least 10 to 15 years. There’s always been a steady stream [of inquiries] but we’re getting more calls from clients. It doesn’t mean we’re seeing more legal cases being filed. Lawsuits are a trailing indicator here.”

The article also summarizes things that employers can be doing now, even if there isn’t a sexual harassment complaint made. Update policies. Train managers and supervisors. Continually create an environment where harassment isn’t tolerated.

Each week seemingly brings new issues to the table; employers that can keep their focus on the issue while also maintaining perspective will do well in the long-term to reduce the likelihood of a claim at the workplace.

After a break for the holidays, my long-running discussion with Nina Pirrotti, an employee-side attorney , returns. Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association, a current member of the Executive Board of NELA, and a frequent presenter on employment law topics.

In one of our prior discussions last year, we talked about whether we were seeing the beginning of a trend of sexual harassment matters after the Fox News scandals.  Now, after the last few months, we revisit the topic further to see where we are.  Let us know what you think about posts like this in the comments below.    

Nina: A warm hello to my management lawyer friend!  I could not think of a more opportune time to re-kindle our dialogue about sexual harassment.  For me, having Time Magazine name its Person(s) of the Year as the Silence Breakers has been the gratifying culmination to a year of sea change on this vital topic.

I got to tell you Dan (and in so doing will undoubtedly reveal to our readers that I lead an embarrassingly sheltered life), that before Taylor Swift exhibited the courage to subject herself to countersue David Muellerman (the man who sexually assaulted her and brought an unsuccessful lawsuit against her for defamation when she outed him)  I did not even know who she was.   She is my new hero.  She sued him for a symbolic $1 and she did it, she said, because she wanted to empower other women who have been sexually harassed and assaulted to come forward.

Well, I don’t need to tell you that they are coming forward in droves.  It is as if a switch has been flipped.  The paradigm has shifted and women who once felt that they had to suck it up in order to feed their families and save their careers are beginning to have hope that they no longer have to make that Hobson’s choice.  And just as gratifying as this loosening of fear in victims of sexual harassment and assault about coming forward has been the employers’ swift responses in holding the predator (no matter how lofty his perch) accountable.    Hallelujah!

Is this the beginning of the end to sexual harassment as we know it?  I wish.  Did you notice that cropped elbow that is in the photograph of the otherwise well-known faces on the front cover of Time’s Person of the Year issue?  The elbow symbolizes the millions of women who endure sexual harassment and assault and do not come forward for fear that their careers, their reputations, their families, and/or their personal safety are at stake if they do.

While I am gratified by the swift and appropriately severe responses to sexual harassment and assault committed by powerful men in the public eye, most of the sexual harassment and assault victims I represent do not have that leverage that comes with an outed perpetrator who has a public persona.  In such cases, too often, unless the employer fears public exposure, I find it does not have that same sense of urgency to take action.

What about you, Dan?  What does this surge in reporting indicate to you?  Are you finding more clients who are interested in taking preventative measures?  What are their concerns?

Dan: Happy New Year to you Nina! So, it’s been quite an interesting few months.  Everyone seems more busy.  Before I talk about that, it’s worth emphasizing that lost in all this reporting is that the incidents of misconduct that are making headlines are really varied in scope.  You have incidents of outright sexual assault being tossed together with conduct that may (or may not even) be classified as sexual harassment.    

And that is what I’m concerned about now.  A tasteless joke in the workplace is clearly NOT the same as some of the incidents that, say, Harvey Weinstein is accused of. (You can look it up; this is a safe for work blog, after all.)  And so, yes, we’re hearing more incidents reported. But that doesn’t necessarily translate to more credible claims.  I’ve heard from other attorneys representing employees that they’re seeing twice as many cases come in to them but they aren’t taking a lot more cases. 

And as we know, we’re still months away from seeing new lawsuits arising from these claims too.  What happens by then?

It’s too early to predict that the #MeToo movement won’t have the same impact six months from now (I happen to think that it will) but even since the holidays it seems the press is starting to move on a bit (Golden Globes, notwithstanding).  It’s hard to keep up the pressure that the end of 2017 had.

For employers, it’s important to not get caught up in assuming the worst and thinking that everything they’ve been doing has been a failure.  Much HAS changed over the last 20 years.  I do think, though, it’s an opportunity for employers to re-evaluate their training. They can also take a look at their culture: Are there any expense reports revealing something more nefarious (a Gentleman’s Club visit perhaps?)? Is it time to institute a “no-dating” policy for supervisors/subordinates? And where are your weak spots? Continue Reading The Dialogue: The Shifts That #MeToo Are Creating in the Workplace