Back in 2010, I wrote a simple blog post about how organ donors were protected under Connecticut’s FMLA law.  In it, I recount how my father — 25 years prior at that time — donated a kidney to his brother (my uncle).  At the time, I noted that both were well.  

On Sunday, October 28, 2018, my uncle passed away after a short illness.   Dr. Allen Schwartz was retired as the Deputy Director of Policy and Enterprise solutions at NYS Office for People with Developmental Disabilities and recently served as a Senior Policy and Research Analyst at Westchester Institute for Human Development. He leaves behind his wonderful wife, Andrea, and two adult children.  Allen was blessed to contribute so much to society in the 33 years since that organ transplant and he will be sorely missed. 

In honor of Allen, I’m reprinting the blog post below.  Become an organ donor today.  

FROM THE ARCHIVES – September 2010

25 years ago nearly to the day, my father donated one of his kidneys to his brother.

What have you done today? Have you done everything you could? Could you have done better?

They may seem like unfair questions after the first sentence.

But tonight is the start of Yom Kippur – a Day of Atonement in the Jewish religion and one of the holiest days of the year.  And as part of the services tonight and tomorrow, Jews around the world will be asking tough questions of themselves all with the goal of being a better person next year.

And so, to honor my father and his heroism and provide education and insights in the employment law context in the way I know best, today’s post is all about organ donation and what employers need to know.  My goal is to begin a discussion this important issue in Connecticut.

FMLA is typically thought of in the medical context or childbirth/adoption process.  But Connecticut’s FMLA statute actually provides protection for those employees who become organ or bone marrow donors.

Donors are to be provided with the same amount of leave (16 weeks over a 2 year period) that, say, new mothers and fathers are accorded.

This is still a relatively new law — having been passed just six years ago fairly quietly.

If you’re an employer, what does this mean? Well, for one, your FMLA policies should be updated to let your employees know that they can be a living organ donor — and still have their job protected.

Employers can also update their FMLA forms to provide for organ donation is a category to check off. Many employers tend to use the Connecticut DOL’s forms (at the end of the regulations) — assuming that they are the most complete forms out there. But even those forms do not include language about being an organ donor.  (Don’t look to the US Department of Labor either; their forms just follow federal law, not state law.)

Enterprising employers might think to seek out the Connecticut DOL regulations for some guidance. But those employers would also be out of luck. Those regulations haven’t been recently updated and say nothing about how employers should handle such requests.  (Authors note: Still not updated in 2018!) Indeed, if you just read the regulations, you might even think that organ donors are not protected because language about “organ donors” isn’t even there.  (Conn. Regs. Sec. 31-51qq-7 is a perfect example.)

Perhaps a representative from the Department of Labor can take the opportunity to update their website on this category and provide additional information, in the absence of formal regulations.   Without that, organ donors may be left wondering if their jobs are protected if they choose to donate.

In the meantime, employers are on their own to take steps to educate their workforce about the protections offered under Connecticut’s FMLA for organ donation.  Employers should be sure their forms and policies are up-to-date and remove any barriers to organ donation that their employees might think exist.

Credit should be extended to the many employers that have done a lot in this area, including some local companies (Aetna and Bank of America).  The Workplace Partnership for Life initiative is truly a win-win campaign in which everyone can play a significant role in recruiting potential organ, tissue, marrow, and blood donors. Thousands of U.S. corporations, organizations, and associations are working to create a “donation friendly America” by joining the Workplace Partnership for Life.

(And, of course, if you haven’t become an organ donor, do it today.  You can download the form from the DMV off their website and mail it in. Or when you renew your license, you can become a donor then.  The DMV has a FAQ about the process on their website as well.)

And what of my father and his brother? They’re both living healthy and productive lives.  And we continue to celebrate many holidays together.

If through this post and actions by employers, we can ensure that another family has that same benefit, I think we can say that today was at least a pretty good day and we did what we could. Think about the simple changes that your workplace can make today.

In the last few months, I’ve had some inquiries from employers asking about resources for layoffs.

Yawn.

Everyone remembers the layoffs of the recession, right?

Actually no, as it turns out.

In the ten years since the last great round of layoffs, there is a big group of new managers, directors, human resource personnel, lawyers etc that have joined the workforce.  And, as it turns out, they really DON’T remember the layoffs.  Unemployment is low. “Why would I need to worry about a Reduction in Force?

The stock market’s drop yesterday should remind all of us that good times aren’t always going to last.

What’s ironic about this is that back in 2008 — when the unemployment rate was skyrocketing — programs about reductions in force were just taking off and I noted the same concerns about whether employers were sufficiently aware of the issues.

History may repeat itself. Back then, I highlighted a few items that employers had to think about:

  • The WARN Act – If you’re doing a mass layoff, you need to notice affected workers in advance and provide notices to local and state officials.
  • Separation Agreements – If you want employees to sign a separation agreement (and you probably should), you need to give employees who are terminated in a layoff 45 days to consider an agreement and provide additional background information about the layoff itself.
  • Disparate Impact Analysis – With computers, checking your layoff data to ensure that it doesn’t have a disproportionate impact on protected groups (or, if it does, a legitimate business reason why it might) remains important.

Much of this remains valuable advice today.  And for employers who don’t remember this, now would be a good time to start your refresher courses.

Layoffs may not be right around the corner. But employers that are looking ahead in their business plans for 2019, would be wise to ensure that their staff are aware of the obligations that attach if the economy turns cold.

Lawyers love their cocktail chatter. And at a recent bar event, an interesting hypothetical came up among lawyers:

Suppose an employee is trying to get pregnant and is thinking about infertility treatments.  She’s considering time off for rest, and perhaps even for some in vitro fertilization (IVF) appointments. Perhaps even the doctor has said that the employee needs “light duty” work during certain days.   Maybe things are a little more hazy; suppose the employee just says that they are undergoing infertility treatment and needs some time off.

Is the employer obligated to provide such an accommodation?

The answers aren’t entirely clear.

Let’s go through some of the laws that may be implicated:

Employment decisions related to infertility treatments implicate Title VII under limited circumstances. Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.

In doing so, the EEOC has cited to a Seventh Circuit case from 2008 which also found that the employer was liable for discrimination when it terminated employee for taking time off to undergo IVF.

  • ADA – Infertility may be an impairment that may “substantially limit” the major life activity of reproduction. Why is this important? Because it may then qualify the employee under the ADA as having a “disability”.   So, in such an instance, employers should review the “reasonable accommodation” portion of the statute. And the employer may decide that a day off for IVF treatment in “reasonable” under the circumstances.
  • State Laws – Connecticut has comparable laws on the subject as well.  Thus, employers should do the same analysis for CTFMLA and comparable state anti-discrimination laws as well.

But despite this, there are some courts — including the Second Circuit — that have found that a woman suffering from infertility does not have a medical condition related to pregnancy under Title VII and the Pregnancy discrimination Act because infertility is a condition that also affects many men as well.

Employers that have employees undergoing treatment for infertility should tread carefully in this uncertain area of law.  Each set of facts should be looked at on a case-by-case basis and consider enlisting trusted legal counsel for advice.

One of the benefits of writing a blog as long as I have is that you get to track the progress of a law or legal development over a number of years.

It was back in 2012, for example, that I first provided a comprehensive summary of a new medical marijuana bill that was making it’s way through the legislature.

And I was quick to note that the law had enough questions attached to it that employers would be wise to spent a late night or two studying all of the quirks.

Now, years later, we have the first case to look deeply at the statute. And for employers, the answers are becoming clearer.

My colleague, Chris Engler, recently recapped the case in a post on my firm’s sister blog.

The plaintiff in the case had applied for a job with a health and rehabilitation facility. The plaintiff ultimately received a job offer, subject to completing a background check and a drug screen. Prior to the drug screen, the plaintiff informed the company that she was a qualifying patient who used medical marijuana to treat her PTSD. Nevertheless, when her drug screen came back positive, the company revoked the job offer on the day before she was to begin work. Based on these facts, the court granted summary judgment for the plaintiff….

In rejecting the employer’s defenses in the new decision, the court addressed various important issues regarding [the law’s] non-discrimination provision. First, the court clarified that [the law] protects both an individual’s status as a qualifying patient of medical marijuana and that individual’s actual use of medical marijuana. However, the court pointed out that employers can still discipline employees who are under the influence at work.

The case can be downloaded here.  

As more people apply for cards to use medical marijuana, employers would be wise to understand the rules of the road before rejecting job applicants who test positive for marijuana on a drug screen.

Trying to follow both state and federal wage and hour laws isn’t that hard.

But it isn’t that easy either.

Let’s say you’re a restaurant with a waitstaff.  Like most restaurants nowadays, your customers pay by credit card and you, the employer, have to pay the credit card company a percentage on each sale.

You know there are rules regarding deductions of the wages to employees. But what about tips? Can you take out the percentage of fees being charged by the credit card company on the tips?

According to the U.S. Department of Labor: Yes.

In its fact sheet, the USDOL makes it plain that such actions by an employer do not violate federal law, so long as they are limited to the fees on the tips themselves.

Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the FLSA.

The DOL also has 2006 opinion letter bolstering its views here. Even Connecticut, in an unofficial guidance, permits the practice.

While that aspect is clear, the remaining aspects of tip pooling are still very much being debated.  According to a DOL Field Bulletin this spring, in the Conolidated Appropriations Act, 2018, the Act provided that certain other portions of DOL regulations that barred tip pooling when employers pay tipped employees at least the full FLSA minimum wage and do not claim a tip credit no long have further force or effect.

As a result, according to the DOL, “employers who pay the full FLSA minimum wage are no longer prohibited from allowing employees who are not customarily and regularly tipped—such as cooks and dishwashers—to participate in tip pools.”

And if that weren’t confusing enough, employers in Connecticut also need to comply with the Wage Order drafted by the Connecticut Department of Labor that has additional guidance on tip pooling.

Employers must continue to tread cautiously in the area of wages. Minefields continue to be ever present — and the impact of a failure to comply with the law can be costly.

 

Like a lot of people, I’ve got the summer bug and, given the choice between a walk outside and a blog post — well, you can figure out what has been winning.

But I’ve got a few posts lined back up the next few weeks.  In the interim, I want to share with you one of the most meaningful and amazing speeches I’ve ever heard in person.

It’s from last week when I attended the American Bar Association Annual Meeting in Chicago, where I serve as the State Delegate for Connecticut (and on the ABA Nominating Committee as well).  At that meeting, the ABA presented it’s ABA Medal (it’s highest honor for exceptionally distinguished service by a lawyer to the cause of American jurisprudence) to Bryan Stevenson.

Stevenson is the founder and executive director of the Equal Justice Initiative. During a 40 minute speech (which you really must listen to), he called on attendees to do four important tasks:

  1. Get close to people who live in the margins of society
  2. Change the narrative
  3. Stay hopeful
  4. Do things that are inconvenient and uncomfortable

Sounds straightforward enough. But with Stevenson’s brilliant oratory, he encouraged all of us to find meaning in the work we do through this and allow all of us to strive towards justice.

You may not even agree with him that those convicted of the death penalty deserve mercy. His book on “Just Mercy”  has won numerous awards.  But there is little denying that Stevenson is a voice well worth listening to.

For employers, no doubt Stevenson would encourage employers to considering hiring those who have been convicted of a crime to a second chance after they are released from prison.  It might be doing what Bear’s Smokehouse does — looking at individuals and not judging them solely by their past. As Jamie McDonald, the owner of Bear’s recently said, “Sometimes all they need is somebody to believe in them and give them that chance.”

There may be other times when Stevenson’s advice might apply too; suppose you have an employee who failed to show up for work for three days in a row.  You might just fire them immediately for job abandonment.  But there might be circumstances where you should also try to understand the reasons behind the absence.  Sometimes there will be a good excuse behind it.

If you can find time to listen to Stevenson’s speech, you won’t be disappointed. For those of us who attended the ABA Annual Meeting, it was one that we will never forget.

Cars. Lots of really fancy cars.

That about sums up my Sunday in which I went to the Concorso Ferrari & Friends car event in West Hartford Center.  It has one of the biggest collections of ultra-expensive cars in the state — all to benefit the Connecticut Children’s Medical Center.

What I wouldn’t do to commute in the Pagani supercar! (Anyone have an extra $3 million lying around?)

Now, the odds on you commuting in a supercar and wondering if you’re getting paid by your employer are probably about the same as winning Powerball, but it’s still worth asking the question: Why don’t you get paid for commuting to work?

The answer lies in the law and something called the Portal-to-Portal Act. 

The Act states that employers are not required to pay for the time employees spend on activities occurring before or after (“preliminary or postliminary”) they perform the principal activities for which they are employed.

Thus, compensable working time generally does not include time spent:

  • Traveling to or from work.
  • Engaged in incidental activities before or after work.

A few years ago, an argument was made that state law ought to allow for some compensable travel time to and from work if the employee was travelling with tools.

The Connecticut Supreme Court rejected that interpretation saying such laws were pre-empted by the Portal-to-Portal Act.

And yet, the Connecticut Department of Labor continues to advance a regulation on travel time that, according to same court, “was not promulgated pursuant to any formal rule-making procedures or articulated pursuant to any adjudicatory procedures, has not been time-tested or subject to judicial review in this state.”

In any event, commuting with a supercar might be fun — but it doesn’t change whether you get paid for it under the law.

If you ever read the state labor laws (wait, you haven’t?), you sometimes come across provisions that seem like they were written for another generation.

And indeed, they were.

Take, for example, Conn. Gen. Stat. 31-23.  It prohibits children under the age of 16 from working in the “manufacturing, mechanical, mercantile or theatrical industry”.

That seems to make some sense as far as child labor laws are written. Then it goes on.

It also prohibits working in a “restaurant or public dining room.”

Public Dining Rooms? I was about to write this off entirely as just outdated but there is at least one reference I’ve found in Connecticut to a “public dining room”.  Grasso Tech’s culinary arts program advertises a “public dining room” on Facebook, so perhaps we can give them a break.

And then the statute singles out three other businesses to add to the prohibition: any bowling alley, shoe-shining establishment or barber shop.

It seems an odd arrangement for businesses. Some of it can certainly be seen rooted in safety — you wouldn’t necessarily want minors dealing with sharp tools if a barber shop or the equipment of a bowling alley.

Indeed, Conn. Gen. Stat. 31-25 prohibits minors from operating elevators! Tell that to my kids who love pushing the buttons.

My best guess from review of the legislative history, though, is that the statute is rooted in something more nefarious — that these industries would somehow show the dark side of society.

Now, there are some exceptions for other businesses over the last decade or so that I’ve covered previously; golf courses, or cashiers in supermarkets etc. all have some exceptions.

But the bowling alleys and shoe shining establishment bar still stands.

Some laws are hard to change.

Earlier this week, I made my long-awaited (ok, long-awaited by ME) return on WNPR’s ever-popular “Where We Live” show.

As always, I’m thankful for the invite.

My appearances date back quite some time (remember pizza and child labor in 2010?), so it was nice to be back in the studio to talk about age discrimination and other workplace issues.

So, is age discrimination still a problem?

The answer is plainly “yes”.

A related question, though is how MUCH of a problem? And is it getting better or worse?

By one measure, it’s been going down in a noticeable way the last several years.  In 2008 for example, there were over 24,500 charges filed on age grounds; in 2017 – it was down below 18,500 – a drop of over 20 percent.

Statistics, though, only tell part of the story because historically, you’d expect more to see more charges in a recession than an improving economy.

An article by The New York Times over the winter raised concerns that Facebook Job Ads were being used in a way to target younger potential applicants.  And some have suggested that the federal law itself is too weak.  

So, recognizing the age discrimination remains an issue in society is an easy task. But solving this — and ensuring that workplaces have a diversity of ages, remains a issue of which there are no easy answers.

With Memorial Day coming up this weekend, it’s often a time (or it ought to be a time) to reflect on the sacrifices made by our military.  And at the same time, consider how we, as a society, treat our veterans.

This issue was highlighted for me many years ago.  During a court proceeding in which fraudulent behavior of the witness was being discussed, the witness brought up his past military service, perhaps as a way to seek leniency from the court.

To my surprise, rather than dismiss the comment as outright pandering to the court, the judge took a few minutes to express appreciation to the witness for his service and to note that the judicial system should be sensitive to the needs of veterans.

The court didn’t rule in favor of the witness but I was still struck by the judge’s sensitivity.  It was a learning moment for me that all of us involved in the legal system ought to treat veterans in a similar way — with, at a minimum, recognition for their service and respect.  It didn’t matter at that time whether the veteran was honorably discharged or not; it was their service that mattered.

It is with that background in mind that employers should consider the new guidance from the Commission on Human Rights and Opportunities (CHRO) entitled “Guide to the Nondiscrimination in Hiring and Employing Connecticut Veterans”.

In it, the CHRO reminds us that employment discrimination on the basis of “status as a veteran” became illegal effective October 1, 2017.

And what is a “veteran”? Anyone who served? Actually no.

According to the statute, “veteran” means “any person honorably discharged from, or released under honorable conditions from active service in, the armed forces.”

Thus, by its own terms, employers cannot discriminate against veterans who received an “honorable discharge” or a discharge “under honorable conditions”.

But the CHRO guidance addresses whether employers can make hiring decisions regarding veterans who have received discharges under the three other primary designations:  “other-than-honorable discharge, bad conduct discharge, and dishonorable discharge.”

The CHRO calls these designations (along with the discharge under honorable conditions) as “less-than-honorable” or “bad paper” discharges.

The CHRO’s guidance suggests that discrimination against someone who received these “bad paper” discharges might also violate the law because of their “disparate impact on veterans of color, LGBT veterans, and veterans with disabilities”.

Thus, the CHRO opines, “reliance on discharge status” may still violate Connecticut’s anti-discrimination laws.

What’s the proposed solution from the CHRO? Several suggestions are offered:

  • “Provide individualized consideration to veterans with less-than-honorable discharges. This means you should consider the nature of the discharge (i.e. why the veteran was discharged—was it for a minor infraction or because of behaviors related to a mental health condition?), the time elapsed since the discharge, the nature of the positions sought and how the discharge is in any way related to the position the veteran is applying for.
  • Second, you should provide the veteran-applicant the opportunity to present her case for why the discharge should not be factored into your hiring decision. You might also consider the presence of mitigating circumstances like PTSD if the veteran discloses them to you.
  • Additionally, for those service members who were discharged due to conduct arising from a disability like PTSD, you have an independent obligation under both state and federal law to provide “reasonable accommodations” such as making the physical work environment accessible or providing a flexible work schedule.
  • Finally, if you contract with a consumer reporting agency such as HireRight or TransUnion to conduct background checks and your background check results in the discovery of information about an individual’s discharge status, you are required under the Fair Credit Reporting Act to provide notice to the veteran applicant prior to taking any adverse action….”

Employer Takeaways

The CHRO’s guidance here is reminiscent of guidance issued by the EEOC in the early 2010s regarding the use of criminal background checks and the potential for a racial disparate impact.

At the time, some argued that the agency overstepped its authority because there was nothing that outright prohibited the use of such checks under the law and the reach to “disparate impact” was a step too far.

One could make a similar argument here that the CHRO’s suggestion that discrimination against veterans of all types of discharges might also be covered — after a new law that was passed that prohibited discrimination against only those veterans those who received honorable discharges — might be deemed to be overreach.  The legislature only sought fit to protect veterans with honorable discharges; why can’t employers consider those with “bad paper” discharges as a factor in their hiring decisions?

I’ll leave that for the policy-makers to debate.

For employers, the takeaway should be that the CHRO will be looking at discrimination against veterans who received so-called “bad paper” discharges more closely.  While the law may not outright prohibit it, the CHRO will be looking at whether the employer’s decisions might have a disparate impact on a protected class.

And for employers, making individualized determinations on an applicant based on the applicant’s overall fit and qualifications for the position isn’t a bad practice anyways.