Manager & HR Pro’s Resource Center

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.

Over the weekend, the General Assembly approved a bill prohibiting employers, including the state and its political subdivisions, from asking, or directing a third-party to ask, about a prospective employee’s wage and salary history.

I have previously discussed the measure here.  There were a few versions floating around and it was House Bill 5386 that carried the day (as amended).

The prohibition does not apply in two situations:

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

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

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

As amended, the effective date of the bill is now January 1, 2019.

The final bill is different from a prior bill because it eliminates provisions that generally would have (1) allowed employers to ask about the value of a prospective employee’s stocks or equity, (2) allowed employers to seek a court order to disallow compensatory or punitive damages, and (3) required certain employers to count an employee’s time spent on protected family and medical leave towards the employee’s seniority.

For employers, upon signature from the governor, this bill will become law.  As such, employers should notify all of their hiring personnel of the new restrictions that are likely to go in place effective January 1, 2019. I’ll have more updates after the legislative session winds down this week.

When was the last time you said you’re sorry to someone at work.  Last week? Last month? Last year? Never?

There isn’t a right answer to this but I was thinking about this yesterday on the Jewish New Year.

Jews are asked to spend the next 10 days to reflect on the past year and ask those who they may have slighted in last year for forgiveness.

Call it prep work for Yom Kippur – the Day of Atonement.

First, an acknowledgement (apology?) up front: This isn’t the firm time I’ve written about workplace apologies.

Back then, I referred you to the SorryWatch blog, which tracks good, bad and ugly apologies.  (There is also a category for “Evil Twin” apologies too. Worth checking out just for that.)

More recently, the blog authors recount the apologies of the Royal Canadian Mountain Police in settlement of a massive discrimination and workplace harassment claim a while back.

It’s a terrific and rare example of the power of an apology in the right circumstance.  You can read the whole thing here, but here’s a brief cut from it:

Instead of succeeding and thriving in a supportive and inclusive workplace, many women have suffered careers scarred by gender and sexual discrimination, bullying and harassment. …

Harassment and the lack of effective systems and processes to have prevented it and eliminated it from our workplace is absolutely at odds with what the RCMP is supposed to be. It is at odds with what we all need the RCMP to be.

To the representative plaintiffs here today: Janet Merlo, who has so courageously taken the lead to represent so many women who have been adversely affected, and to Linda Davidson and all the women you represent; indeed to all the women who have been impacted by the Force’s failure to have protected your experience at work, and on behalf of every leader, supervisor or manager, every Commissioner: I stand humbly before you and solemnly offer our sincere apology.

You came to the RCMP wanting to personally contribute to your community and we failed you. We hurt you. For that, I am truly sorry. You can now take some comfort in knowing that you have made a difference. Because of you, your courage and your refusal to be silenced, the RCMP will never be the same.

I must also apologize to all Canadians. I know how disappointed you’ve been with the Force as you heard some of these very public and shameful examples of disgraceful conduct within our ranks.

The SorryWatch blog gives a big thumbs up to the apology because it meets their suggestions for a good apology.  There are five steps to lay the foundation for a good apology:

  1. Say you’re sorry.
  2. Say the thing you are sorry for. (As an aside, this is notoriously hard for my kids.)
  3. Say you understand the import of what you did.
  4. Make amends.
  5. Figure out what steps to take so it doesn’t happen again.

It won’t work in all instances. But in some it will.

So have your employees say “I’m sorry” to one another when appropriate; it may just prevent your next discrimination case from happening.

Last week I talked about the new state law regarding pregnancy discrimination that is going into effect on October 1, 2017.  In that post, I mentioned a new notice that was required to comply with the law.

Although there is no set form that is required to be used, the Connecticut Department of Labor has created one that is available for employers to use that will comply with the state law.  It is free to download here.  

Because the content is useful, I’m using it down below so that employers can cut and paste it into a handbook or into a notice to be given to employee upon starting work too.  One can quibble with some of the word phrasings that are used, but overall — and stating the obvious — if you use this, you’ll be in compliance according to the state.

Covered Employers

Each employer with more than 3 employees must comply with these anti-discrimination and reasonable accommodation laws related to an employee or job applicant’s pregnancy, childbirth or related conditions, including lactation.

Prohibition of Discrimination

No employer may discriminate against an employee or job applicant because of her pregnancy, childbirth or other related conditions (e.g., breastfeeding or expressing milk at work).

Prohibited discriminatory conduct includes:

  • Terminating employment because of pregnancy, childbirth or related condition
  • Denying reasonable leave of absence for disability due to pregnancy (e.g., doctor prescribed bed rest during 6-8 week recovery period after birth)*
  • Denying disability or leave benefits accrued under plans maintained by the employer
  • Failing to reinstate employee to original job or equivalent position after leave
  • Limiting, segregating or classifying the employee in a way that would deprive her of employment opportunities
  • Discriminating against her in the terms or conditions of employment

    *Note: There is no requirement that the employee be employed for a certain length of time prior to being granted job protected leave of absence under this law.

Reasonable Accommodation

An employer must provide a reasonable accommodation to an Employee or job applicant due to her pregnancy, childbirth or needing to breastfeed or express milk at work.

Reasonable accommodations include, but are not limited to:

  • Being permitted to sit while working
  • More frequent or longer breaks
  • Periodic rest
  • Assistance with manual labor
  • Job restructuring
  • Light duty assignments
  • Modified work schedules
  • Temporary transfers to less strenuous or less hazardous work
  • Time off to recover from childbirth (prescribed by a Doctor, typically 6-8 weeks)
  • Break time and appropriate facilities (not a bathroom) for expressing milk

Denial of Reasonable Accommodation

No employer may discriminate against employee or job applicant by denying a reasonable accommodation due to pregnancy.

Prohibited discriminatory conduct includes:

  • Failing to make reasonable accommodation (and is not an undue hardship)**
  • Denying job opportunities to employee or job applicant because of request for reasonable accommodation
  • Forcing employee or job applicant to accept a reasonable accommodation when she has no known limitation related to pregnancy or the accommodation is not required to perform the essential duties of job
  • Requiring employee to take a leave of absence where a reasonable accommodation could have been made instead
    ** Note: To demonstrate an undue hardship, the employer must show that the accommodation would require a significant difficulty or expense in light of its circumstances.

Prohibition of Retaliation

Employers are prohibited from retaliating against an employee because of a request for reasonable accommodation.

Notice Requirements

Employers must post and provide this notice to all existing employees by January 28,2018; to an existing employee within 10 days after she notifies the employer of her pregnancy or related conditions; and to new employees upon commencing employment.

Complaint Process

CHRO:

Any employee aggrieved by a violation of these statutes may file a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). Complainants have 180 days from the date of the alleged act of discrimination, or from the time that you reasonably became aware of the discrimination, in which to file a complaint. It is illegal for anyone to retaliate against you for filing a complaint. CHRO main number: 860-541-3400 CHRO website: www.ct.gov/chro/site/default.asp CHRO link “How to File a Discrimination Complaint”: http://www.ct.gov/chro/taxonomy/v4_taxonomy.asp? DLN=45570&chroNav=|45570|

DOL:

Additionally, women who are denied the right to breastfeed or express milk at work, or are discriminated or retaliated against for doing so, may also file a complaint with the Connecticut Department of Labor (DOL). DOL phone number: 860-263-6791 DOL complaint form: For English: http://www.ctdol.state.ct.us/wgwkstnd/forms/DOL-80%20fillable.doc For Spanish: http://www.ctdol.state.ct.us/wgwkstnd/forms/DOL-80S%20fillable-Spa.doc

For those unfamiliar with the way a lot of Connecticut laws get implemented, October 1st could seem like just another day.  (Though for my kids, they would be impressed that it was a different October 1st in 1982 that EPCOT opened at Disney World.)

But a lot of bills that are passed by the Connecticut General Assembly go into effect on October 1st each year. This year is no exception.

For employers, the biggest of these bills is the new law concerning “Pregnant Women in the Workplace”.  I’ve previously recapped the law for pregnant employees in a prior post way back in May, but because we’re getting close to implementation, it’s time for a little refresher.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those rules remain unchanged. But the new law revises some other provisions and adds more to the protections. Effective October 1st, it will now also be unlawful to:

  • Limit, segregate or classify the pregnant employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • Discriminate against an employee or job applicant on the basis of her pregnancy in the terms or conditions of her employment;
  • Fail or refuse to make a reasonable accommodation for an employee or job applicant due to her pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship;
  • Deny employment opportunities to an employee or job applicant if the denial is due to the request for a reasonable accommodation due to her pregnancy;
  • Force an employee or job applicant affected by pregnancy to accept a reasonable accommodation if she (i) does not have known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • Require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of the leave; and
  • Retaliate against an employee in the terms, conditions or privileges of her employment based upon the employee’s request for a reasonable accommodation.

The changes don’t stop there. The new law also explains that the word “pregnancy” will also include “pregnancy, childbirth or a related condition, including but not limited to, lactation”.  It also expands the definition of “reasonable accommodation ” and “undue hardship”.

  • “Reasonable Accommodation” means, but is not limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignment, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk; and
  • “Undue Hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of the accommodation upon the operation of the employer.

Continue Reading Two Weeks Until New Protections for Pregnant Employees Become Effective

Credit: Wikipedia Commons

Over the weekend, I was doing a lot of driving.  Having a kid at camp near the New Hampshire border to pick him up will do that.

So, it was time for me to catch up on some podcasts I had downloaded but hadn’t yet listened to.

I had already finished S-Town (worthy of a listen) but one of the others that I had been meaning to catch up on was Malcolm Gladwell’s “Revisionist History”.

In these episodes, he revisits an item from history that is often overlooked.

The first two episodes I picked were the most recent ones (State v. Johnson, and Mr. Holloway Didn’t Like That) and were based, in part, on interviews with legendary attorney Vernon Jordan and concerned legal cases from the Civil Rights Era.  Start there.

But the other one I listened too was from earlier in the season, called “Miss Buchanan’s Period of Adjustment”.

It too is riveting.

It tackles the landmark case of Brown v. Board of Education (the legendary school desegregation case) but from the perspective of the teachers who worked at the “colored-only” schools and who were subsequently laid off — allegedly for “performance” related reasons.

Even as a history major in college, I don’t remember hearing about this — how thousands upon thousands of black teachers lost their jobs when the schools that they taught at were closed. Different reasons were given — sometimes it was deemed to be too “difficult” for white students to be taught by black teachers.

But the effect was the same — a generation of teachers were lost to history.

That could be the end of a discrimination story, but Gladwell notes that the impact of this decision isn’t just that these teachers lost their jobs.

But rather, black students lost the opportunity to be taught by black teachers. And empirical research has shown that for black students, having a black teacher can be pivotal in reducing drop-out rates and ensuring students’ success.

The impact of these decisions still resonates today.

Gladwell highlights a study from just last year that looked for explanations about the under-representation of students of color in gifted programs.  Their conclusion?

Even after conditioning on test scores and other factors, Black students indeed are referred to gifted programs, particularly in reading, at significantly lower rates when taught by non-Black teachers, a concerning result given the relatively low incidence of assignment to own-race teachers among Black students.

For schools that employ teachers (including many of our clients), the podcast is a good reminder that the employment decisions that are made have a big impact beyond just the teachers themselves. Students lives and their successes and failures depend, in part, on the teachers that they have in life.

For other employers, listening to this podcast is a reminder that our laws governing the workplace are not all that old. Our current laws are a reflection on what occurred in the recent past. Indeed, the major federal law — Title VII — wasn’t passed until 1964 — nearly a decade removed from the Brown decision.

We’ve made a lot of progress, thankfully, since then. But ensuring fairness and eliminating race discrimination are still items that should remain high up in a company’s “must-do” list.

If you’re looking for something different to listen to, give the podcast a listen.  Gladwell may have his own agenda, but it’s thoughtful and entertaining.  And it’s a good reminder that compliance with employment laws is about more than just doing the right thing.

There are many confusing aspects of employment law — not the least of which is that certain laws only apply to employers of a certain size.

For example, the federal age discrimination law, ADEA, only applies to a business if it has 20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last).

Now in some instances, that might not matter in Connecticut because Connecticut’s general anti-discrimination laws generally (with exception) apply to employers of three or more employees.

Why does this matter? Because there are some aspects of this federal law (and others) that don’t apply to small employers.

One prime example of this is the requirement that employers comply with the Older Worker Benefit Protection Act, which is part of ADEA.  This law requires separation agreements to have certain conditions, including 21 days for the employee to consider the release.  But employers who are under 20 employees are not covered by ADEA and thus don’t need to follow this particular legal requirement (even if it may still be a good idea).

Another area that this comes up is in FMLA coverage.  Most people are aware that FMLA only applies to employers who have 50 or more employees.

But there is a secondary requirement that is often overlooked — that the employee asking for such leave be located in an office that itself has 50 or more employees within a 75 mile radius.

By way of example: Suppose an employer has 1000 employees, but only 25 located in Connecticut and there are no offices within 75 miles.  An employee has a serious health condition; is the employee eligible for FMLA leave?

The answer is no.  At least 50 employees must work for the employer within a 75 mile radius.

Practical Law had a good summary of this:  

Employers should analyze whether the employee meets the 50 employee and 75 miles requirement when the employee gives notice that leave is needed. An employee who is deemed eligible for FMLA leave continues to be eligible for the next 12 months even if the number of employees drops below 50. To determine whether an employee is eligible, the distance is based on:the employee’s physical work site using surface miles over public streets, roads, highways and waterways by the shortest route; or if an employee has no fixed work site, the employee’s work site is his home base, the site to which he reports or the site from which his work is assigned.

Now, nothing prevents an employer from giving all of its employees FMLA-leave, but they’re not required to.

Thus, employers who are in various locations should be sure to look at all the employer-size rules to figure how where they are covered and how. Because size really does matter.