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.

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements.

After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers.

Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish.

Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did.

And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement.

When I heard this, I scratched my, well, proverbial head about this one.  Did I miss something?

The short answer is no, I didn’t miss something.  Connecticut law doesn’t say this.  You can see for yourself in Conn. Gen. Stat. 46a-60.

But how did the employee get such advice?

The first answer may be the simplest one: The attorney he spoke with doesn’t routinely practice in the area.  Sometimes, well-meaning lawyers just overstep their knowledge basis.

Another obvious answer is that the employee’s so-called advice was from “Attorney” Google.  Google is really good at finding things that might apply to your situation — not as good yet at telling you whether it actually applies to your situation.

And if you Google a topic like this, you might actually find a state court decision that looks — at first blush — like it might be on point.

State courts often use the following language in their decisions:

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.

What does THAT mean?

Typically for the same types of disparate treatment claims for, say, gender discrimination claims, courts in Connecticut don’t have as much as experience as federal law. So where the law is the SAME, it makes sense to look to federal laws that are similar.

The problem in the age discrimination statute context is that Connecticut law is DIFFERENT than federal law at times. There is no state equivalent. So looking to federal law makes no sense whatsoever.  And sure enough a quick search of Google Scholar reveals NO state law case applying that federal law to a review of separation agreements.

So how ARE separation agreements to be reviewed in Connecticut? In essence, you would most likely look at the agreement under state laws dealing with contracts.  Typically, this is also done through the “common law’ – that is precedent from the courts.  And Connecticut courts haven’t said much about separation agreements.

Employers are sometimes caught in the middle of receiving advice from their counsel (hopefully correct) and what the employee believes is true whether through an attorney or otherwise.  Employers should understand the misinformation that exists out there and, when confronted with these issues, try to explain them to employees.

Otherwise, a seemingly innocuous situation could turn much more stressful when the employee thinks (and worse, is being told) that the employer is violating a non-existent state law.

If you’ve ever tried a case in federal or state court, you know that picking a “jury of your peers” is often a challenge for all.  Sometimes, otherwise qualified prospective jurors say that they have conflicts with their schedules, while others are all too happy to feel like they are participating in a Law & Order episode. (Lifted from a real-life experience.)

But there’s a bigger issue in play too — jury diversity.

What does it really mean to have a jury of our peers? And is jury diversity still an issue?

These will be among the issues that will be on the table in an “In Community” program that my law firm is producing on September 27, 2017 along with the George W. Crawford Black Bar Association.  I sit on the firm’s Diversity and Inclusion committee and have been among the people charged with pulling this together.  I’m excited to see this program come together.

You can find more information about the program here.

The panel includes:

  • The Honorable Victor A. Bolden, United States District Judge, District of Connecticut
  • Allison M. Near, Partner and Litigator, Sheehan, Reeve & Near, LLC
  • Edward P. Schwartz, Ph.D., Jury Consultant, DecisionQuest
  • Robert R. Simpson, Partner and Litigator, Shipman & Goodwin LLP
  • James W. Bergenn, Moderator, Partner and Litigator, Shipman & Goodwin LLP

For those that think the issue is one of the past, I need only point you to a September 5th concurring decision at the Appellate Court by Judge Douglas Lavine.

The case is a criminal one, State v. Holmes, but the notion that the process of peremptory challenges in picking juries is working smoothly is one that he takes issue with.

The U.S. Supreme Court’s decision in Batson years ago, which held that removing potential jury members is unconstitutional, only is the start of a solution, not the end point:

It is my view, however, that no amount of judicial diligence and oversight can remedy a problem that has become embedded in the Batson procedure itself unless that procedure is revised. I write separately because this case brings into sharp relief a serious flaw in the way Batson has been, and can be, applied. Batson is designed to prevent lawyers from peremptorily challenging prospective  jurors for manifestly improper reasons based on race, national origin, and the like.

It was not designed to permit prosecutors—and other lawyers—to challenge members of suspect classes solely because they hold widely shared beliefs within the prospective juror’s community that are based on life experiences.

This flaw is in plain sight for all to see and must be remedied if the jury selection process is to attain the goal of producing juries representing all of the communities in our state and gaining their confidence and trust. I believe a blatant flaw that significantly disadvantages black defendants—and people belonging to other suspect classes—has become part of the Batson process itself. I conclude that Connecticut should reform its jury selection process to eliminate the perverse way in which Batson has come to be used.

The panel discussion later this month will address these and other issues.

For employers, jury trials are becoming rare; but jury diversity is essential to ensuring that justice is administered fairly.  Ultimately, everyone involved in the system should be supportive of.

A lot has been made of the recent district court decision on legal job protections for qualifying medical marijuana patients.

But the decision has another piece that has been overlooked and which may cause employers some heartburn as well.

The “Negligent Infliction of Emotional Distress” cause of action has been on life support for the last decade or so as courts have limited its applicability for claims arising in the workplace.

Indeed, the Connecticut Supreme Court held back in 2002 that a claim for negligent infliction of emotional distress cannot arise from conduct occurring in an ongoing employment relationship, as distinguished from conduct occurring in the termination of employment.

But what should happen to claims by job applicants that allege that rescinded job offers have caused emotional distress?

The recent decision by Judge Meyer allows that claim to continue and denied an employer’s motion to dismiss.

It found that the allegation of the complaint — and specifically, that the employer knew that plaintiff suffered from post-traumatic stress disorder (PTSD) and then waited to rescind her job offer until one day before she was scheduled to begin work (and after she had already left her prior job), was sufficient to establish a possible claim. The allegations of the complaint were that such actions caused plaintiff to experience severe emotional distress, including anxiety, sleeplessness, and loss of appetite.

The Court, in its ruling, analyzed the decisions in Connecticut in the last 15 years and found that “Connecticut courts have not squarely decided whether a rescinded job offer could serve as the basis for a negligent infliction of emotional distress claim”:

The practical,workplace-related reasons … for precluding a claim for negligent infliction of emotional distress on the basis of events occurring in an ongoing employment relationship do not apply in the context of an employer who rescinds a job offer before the prospective employee can begin work. … Because the withdrawal of a job offer is more akin to termination than to conduct occurring in an ongoing employment relationship, it seems consistent … that a claim for negligent infliction of emotional distress could arise from the withdrawal of a job offer.

Although the decision itself shouldn’t necessarily change how employers manage their job offers (or withdrawals of job offers), it is a reminder to treat job applicants with some care.  If an employer does need to withdraw the job offer, it should be done in a way to minimize the harm to the applicant.

The worry, of course, with the court’s decision is that there are going to be cases that allege that the mere withdrawal of the job offer is sufficient to state a claim; the court’s decision doesn’t go that far and it seems that the plaintiff’s allegation of PTSD was a significant factor in allowing the claim to proceed.

But employers who face such claims in the lawsuit should be sure to review the circumstances to see where on the spectrum the particular claim falls.

Labor Day has come and gone. Summer is over.  Can we all stop listening to Despacito now. (Please?)

But it’s time to look at a decision that came out during the dog days of summer that might have been overlooked.  A recent federal district court case (Noffsinger v. SSN Niantic Operating Co. LLC, download here) has answered the question of whether Connecticut’s medical marijuana laws were preempted by federal law.

The decision held that Connecticut employees who have received approval from the state agency to use medical marijuana outside of work cannot be fired just because they test positive for marijuana during a drug screening.  In doing so, the court held that employees and job applicants can sue based on a termination or a rescinded job offer.

As my colleague wrote for my firm’s alert:

Unlike the laws of other states permitting residents to be prescribed medical marijuana, Connecticut’s statute expressly makes it unlawful to refuse to hire or to discharge an employee solely because of the individual’s status as a qualifying patient, or for testing positive in a drug screening as a result of using medical marijuana within the protections of the statute. However, Connecticut does not protect such individuals if they are found to be using or are under the influence of medical marijuana during working hours.

The court analyzed federal drug laws and determined that they do not address the issue of employment and do not make it unlawful to employ a medical marijuana user. As a result, even though federal law prohibits possession or use of marijuana, those restrictions do not apply to someone properly using medical marijuana under state law.

The decision follows one from Massachusetts that we previously recapped here.

In prior posts, I’ve talked about the difficulties for employers trying to navigate this still-developing area of law.  Employers should proceed carefully under such circumstances and ensure compliance with the state’s medical marijuana laws that prohibits firing employees solely because of the individual’s status as a qualifying medical marijuana patient.

If an employee is under the influence of marijuana during working hours, that may afford employers the opportunity to take decisive employment action but other circumstances may not be so clear.

Consulting with your legal counsel on this changing area of law is advisable for the foreseeable future while more court decisions define the parameters of acceptable action.

The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition.

The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts.

But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court:

The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position open indefinitely while [she] attempt[ed] to recover. . . .’’

Under these circumstances, the court said that the Plaintiff cannot establish even a prima facie case of discrimination because she cannot show that she “requested a reasonable accommodation that enabled her to perform the essential functions of the job”.

In doing so, the state court reviewed federal law and noted that “[R]easonable accommodation does not require [an employer] to wait indefinitely
for [the employee’s] medical conditions to be corrected . . . .’’

In this particular case, the court said, the plaintiff, prior to her departure, informed her supervisor that she would be taking leave for ‘‘over thirty days depending on my lung condition . . . .’’  At a subsequent deposition, the court went on to say, the plaintiff was asked, with respect to her request for leave, that ‘‘you didn’t know how long you were going to be out, correct?’’ The plaintiff responded, ‘‘[c]orrect.’’

The forms submitted by the employee at the time were confusing and the Plaintiff did not respond after requests by certified and regular mail by the employer for more information.  When the employee was told to submit information by a date certain and did not do so, the employer just went ahead and fired her. The court upheld that termination.

For employers, the case offers some helpful reminders:

  • Reasonable accommodation is an interactive process. So long as the employer holds up its end, courts will be more inclined to support the employer in the end.
  • Seeking medical documentation from employees regarding their requested leaves is both necessary and essential to defending a claim where the documentation is vague.  Don’t hesitate to followup and set firm deadlines to the employee to provide the information.
  • As always, seek legal counsel to help navigate through this and work through any issues regarding termination.

Employers may feel like anti-discrimination laws are rigid, but there is built-in flexibility for employers if they know where to look.

The case, Thomson v. Department of Social Services, can be downloaded here. 

U.S. Supreme Court
U.S. Supreme Court

Over the last week or so, there have been two prominent Circuit Court decisions addressing whether Title VII (the federal law prohibiting employment discrimination on the basis of race, color, sex, religion and national origin) can be interpreted to also protect employees from being discriminated against because of their sexual orientation.

The Second Circuit, which covers Connecticut, basically said no in a decision last week in Christiansen v. Omnicom Group.  The court did open the door a bit to a claim that an employee was discriminated against because of sex stereotyping.

Yesterday, the Seventh Circuit created the first split at the appellate level, finding that Title VII does cover such claims in the Hivley v. Ivy Tech Community College case.   Jon Hyman, of the Ohio Employer’s Law Blog, does a good job addressing the historic nature of the case here.

Back in 2016, I wrote that it was somewhat disappointing that we were still having these battles at the federal level, considering that Connecticut already had state laws prohibiting discrimination on the basis of sexual orientation.  “Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.  Until then, the battles over the scope of Title VII will continue.”

Indeed, the battles are now going to get bigger. One or more of these cases are now likely to get heard at the U.S. Supreme Court level where it is far from certain whether Title VII can really be read so broadly.

Of course, Congress could end these debates once and for all by passing a bill prohibiting employment discrimination on the basis of sexual orientation as I discussed way back in 2008.

But unfortunately, we seem to be no closer to passage of a bill than we were a decade ago.

Connecticut employers should largely ignore the press reports about Title VII and instead focus on their obligations to comply with state law.  Eventually the federal courts will work these issues out, but the issue is mainly moot in Connecticut.

file0001835967537The Connecticut Supreme Court, in a unanimous decision that will be officially released April 4, 2017, has ruled that employers may not use the “tip credit” for pizza delivery drivers and therefore, the employees must be paid the standard minimum wage.

You can download the decision in Amaral Brothers, Inc. v. Department of Labor here.  The decision is no doubt a disappointment to employers who believe that the Connecticut Department of Labor’s regulations in this area far outstretch the plain language of the applicable wage/hour statute.

The case arises from a request by two Domino’s franchises for a “declaratory ruling” from the Connecticut Department of Labor (DOL) that delivery drivers are “persons, other than bartenders, who are employed in the hotel and restaurant industry, …who customarily and regularly receive gratuities.” The request arises from Conn. Gen. Stat. §31-60(b), which has been amended over the years.

Why would the employer make such a request? In doing so, the employer wanted to take advantage of the “tip credit”, in which employees are paid below the conventional minimum wage, but his or her salary is supplemented by tips from customers.

Originally, as noted by the employer’s brief to the Court: “The DOL denied Plaintiff’s Petition for the following stated reasons: (1) the regulations were valid because they served a remedial purpose, were time-tested and subject to judicial scrutiny…; and (2) the only act of “service” was handing the food to the customer at the customer’s door and so delivery drivers’ duties were not solely serving food as required under Regulations of Connecticut State Agencies § 31-62-E2(c). The DOL’s decision was that only employers of “service employees” as defined by the DOL could utilize the credit, and Plaintiff’s employees were not service employees.

A lower court upheld the DOL’s conclusions “agreeing that the regulations were ‘reasonable’, ‘time tested’, and had ‘received judicial scrutiny and legislative acquiescence’. The court also determined that the ‘minimum wage law should receive a liberal construction.'”  (You can also view the DOL’s brief to the Court here.)

The Connecticut Supreme Court upheld the Department of Labor’s interpretations here finding that the regulations issued by the agency were “not incompatible” with the enabling statute.  In doing so, the Court noted that this is a bit unusual because the employer was contending that the regulations were originally valid when issued, but repealed by implication when there was an amendment to the statute at issue.

The Court’s decision traced the origin of the tip credit in a portion of the decision that only lawyers will love. But then they get to the heart of the matter: “It was reasonable for the department to conclude that the legislature did not intend that employees such as delivery drivers, who have the potential to earn gratuities during only a small portion of their workday, would be subject to a reduction in their minimum wage with respect to time spent traveling to a customer’s home and other duties for which they do not earn gratuities.”

While the court’s decision directly implicates delivery drivers, it only impacts those employed directly by the employer (see also: UberEats, GrubHub etc.).  Nevertheless, in upholding the DOL’s interpretation here, the scope of who falls within the tip credit at restaurants is going to be further challenged in the courts.

Before employers make any further conclusions, Connecticut businesses should also be aware that the scope of the tip credit and of tip pooling is being debated at the federal level as well.  The National Restaurant Association has joined many others in asking the U.S. Supreme Court to hear a case on the subject. We should hear shortly whether the Court will accept such a case.

The Court’s decision is yet another reminder that restaurants in Connecticut should review the situations in which the tip credit is being utilized. Issues regarding tip pooling should be reviewed as well.  This case doesn’t answer all the questions that come up in the restaurant context. But in terms of figuring out the scope of the law, it helps to answer (albeit in a manner not helpful to employers overall) some outstanding questions.

shotYou don’t need to look for a needle in a haystack to figure out this latest case from the Second Circuit.

But you do need to know what “trypanophobia” is.

Ready? Fear of needles.

That becomes important in a Second Circuit court decision yesterday holding that an employee’s fear of needles prevented that employee from performing an essential function of his job and rejecting his disability discrimination claim.

The background of Stevens v. Rite Aid Corp. (download here)  is fairly straightforward as cases go.  As you’ve probably noticed of late, many of the big pharmacy chains have been requiring pharmacists to perform immunizations in order to fill an unmet need for vaccinations in the health care market.

In April 2011, Rite Aid revised its job descriptions for pharmacists to require them to hold a valid immunization certification and noted that immunizations were part of the pharmacists’ essential duties and responsibilities.

The plaintiff in the above case worked as a pharmacist for 34 years.  When the job description was changed, he received a note from his physician explaining that the employee was “needle phobic and cannot administer immunization by injection.”  When he refused to perform that role (and I’m simplifying for purposes of a blog post), Rite Aid terminated his employment.

A trial did not go well for Rite Aid.  A jury determined that the employee had been discriminated against and awarded over $2M in damages.

Hence the appeal.

In reviewing the matter, the the Second Circuit rejected an employee’s disability discrimination claim because the evidence “compels a finding that immunization injections were an essential job requirement.”

While “it is understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia”, “his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence”.

The court also looked at whether there was a reasonable accommodation that could have been provided to him.  But the court said that the employee failed to show a reasonable accommodation existed at the time.  An accommodation does not require elimination of an essential function of the job.

The court case is a very helpful decision in clarifying whether an employer can insist on having its employees perform the essential functions of a job. Too often, employees suggest accommodations that would have them avoid an essential function of the job altogether. This court case should put a damper on such arguments.

For employers, the case is also a helpful reminder on having clear descriptions on what the essential functions of a job are and being able to explain why the duties are created that way.   Nonetheless, employers should still engage in an interactive process with an employee about whether there are any reasonable accommodations that can be provided.