Somewhere, some employer might be thinking: Hey, why don’t I make employees sign a promissory note to pay me back if they leave before six months! That would be a great idea!

It would also be against the law.

Thus, the next installment of the Employment Law Checklist Project #emplawchecklist.  The law is set forth at Conn. Gen. Stat. Sec. 31-51r. The key prohibitions are set forth in subsection (b) and (c) as follows:

(b) On or after October 1, 1985, no employer may require, as a condition of employment, any employee or prospective employee to execute an employment promissory note. The execution of an employment promissory note as a condition of employment is against public policy and any such note shall be void. If any such note is part of an employment agreement, the invalidity of such note shall not affect the other provisions of such agreement.

(c) Nothing in this section shall prohibit or render void any agreement between an employer and an employee (1) requiring the employee to repay to the employer any sums advanced to such employee, (2) requiring the employee to pay the employer for any property it has sold or leased to such employee, (3) requiring educational personnel to comply with any terms or conditions of sabbatical leaves granted by their employers, or (4) entered into as part of a program agreed to by the employer and its employees’ collective bargaining representative.

Scope:  And here we have yet another definition of what an “employer” is! For this statute, it is “any person engaged in business who has twenty-six or more employees, including the state and any political subdivision thereof.”  Why 26? Why not.

What’s Prohibited or Required? Employers can’t require — as a condition of an employment — that an employee sign an “Employment Promissory Note”.

So what’s an “Employment Promissory Note”? It means “any instrument or agreement … which requires an employee to pay the employer, or his agent or assignee, a sum of money if the employee leaves such employment before the passage of a stated period of time.”  This would include any requirement that such payments would be reimbursement for employer-provided training.

Are There Any Exceptions? Yes, agreements that merely mandate that an employee repay an advance by the employer is permissible, as well as agreements that require the employee to reimburse the employer for anything sold or leased to the employee (such as a house.).  Sabbaticals and agreements under a collective bargaining agreement are also covered by this exception.  And note, this is only prohibiting such notes as a condition of employment.  Nothing in this statute talks about sign on bonuses and even attorneys that represent employees typically find such provisions unobjectionable.  

Private Right of Action or Other Penalty Allowed? No.  The statute simply says that such agreements are against public policy and are void.  But it’s possible that a court might entertain a “declaratory judgment” action to rule that an agreement is, in fact, void.  As a practical matter, though, the biggest takeaway is that such agreements aren’t going to be enforceable.

What May Be Recovered? Nothing.

Any Practical Steps Employers Can Take? Yes.  Double check your onboarding documents to make sure you are in compliance.  If you use signing bonuses, make sure that they are not really just “promissory notes” in disguise.  And anytime you loan an employee money, check with a lawyer to make sure the documentation complies with the law.

Any Other Interesting Information or Background? Not really. What you see with this law is really what you get.

In preparation for a webinar I gave this week with my colleague Chris Engler (which, by the way, you can access here) I took a deeper dive into the statistics from the annual report released by the CHRO, in a followup to my initial report here.

When you look at the numbers in a snapshot, it’s sometimes hard to see where things are going. But thankfully, the CHRO has nearly two decades’ worth of data to parse through.

So, I thought it might be useful to go back a decade to the 2008-09 annual report and compare it with 2018-2019 to see if we can gain a larger perspective on both the work of the CHRO and where we are in the state of employment law.

Overall, I was left with questions that don’t have easy answers.

So, let’s go through a few of the data points; the reports are all pretty much written the same way, with the same categories used:

  • Complaints filed by Region: Overall, all complaints (housing, employment etc) were up in FY 2019 to 2625 from 2001 ten years ago. But where the complaints are being filed are not spread out evenly.  The Eastern region (Norwich office) had 461 vs. 438 claims in FY 2009. But look at the West Central region (Waterbury); the number of complaints filed there has skyrockted from 451 to 816 complaints (FY 2019).  The obvious question: Why?
  • Complaints filed by Charge: As the economy was crashing in 2008, there were 1716 employment discrimination complains filed in FY 2009, but by FY 2019, claims are now at 2016.  (We’ll put aside a big increase in “public accommodations” discrimination too.) But it still remains odd to me that in a relatively good economy, employment claims are noticeably higher; the unemployment rate in Connecticut by mid 2019 was nearly 8 percent.  Now, it’s around 3.6 percent. Moreover, companies have increased their trainings. So the obvious question: Why are claims still so relatively high?
  • Case Closures: Anyone who has dealt with the agency of late has seen a dramatic improvement in the closure rates of the agency. And the statistics bear this out. In FY 2009, there were 2118 case closures; in FY 2019, that number is 2640.  But the number is even more striking when you look at FY 2011. In that year, only 1299 cases were closed, resulting in a big backload.
  • CAR is up, but still down from MAR peak: The CHRO’s relatively new Case Assessment Review has led to 20 percent of cases getting dismissed, essentially, on a paper review. That number is up significantly from just a few years ago, but, let’s not forget — 10 years ago, Merit Assessment Review was doing even better (or worse, depending on your perspective).  Back then, over 630 complaints were dismissed on MAR; this past year CAR was up to 434 claims dismissed. So, is it progress or not? Again, perspective is everything. But it seems like we have come full circle.
  • Releases of Jurisdiction Up, A lot: Look at releases of jurisdiction — that is, a Complainant asking the CHRO for the ability to file in court.  In FY 2009, there were 310 releases. In FY 2019, there were 612!  Is this the result of — as I suspect in part, certain lawfirms filing CHRO complaints only to pull them to go to state court? Or just merely a reflection of more complaints? That’s a question for another day.
  • Reasonable Cause Findings are Flat? So, here is a strange statistic — in FY 2009, there were 91 reasonable cause findings. 10 years later? 95.  Since we know there are more claims being filed, it means that as a percentage of overall claims, reasonable cause findings are down over the last 10 years. So back to my original question: Why?

As I said last week, the report provides a lot of information and raises a lot of questions too. How do we get answers? That remains to be seen.

But for employers – one answer is clear: Employment discrimination claims show no real signs of any big dropoffs anytime soon.  Employment law lawyers will continue to be in demand.

If you’ve been reading this blog long enough, you know that this is my absolute favorite time of the year.

No, it’s not Thanksgiving (though we should give thanks as I’ll explain in a second). But rather, it’s the release of the Annual Case Processing Report from the CHRO! 

Yes, we should give thanks to the CHRO for putting this out.   It really is helpful to understand some trends and to see how the CHRO’s statutes are being put into practice.

But before we look at this year’s numbers, you should probably read my post from last year to get your bearings.  When last we checked, sexual harassment claims were up, employment discrimination claims were up, and cases withdrawn with settlement were down.

So what trends does the report for 2018-2019 show? Here’s what stands out.

  • Sexual Harassment claims continue to rise and are now at their highest numbers in the last 20 years. In 2017/18, there were 235 claims file. Last year? 279. Representing a nearly 20 percent increase in just one year.  To put this into perspective, compare this number to 2015/16.  In that year, just 135 claims were filed — meaning we’ve seen an over 100 percent increase in claims in just 3 years.  The #metoo movement is the obvious difference.
  • Overall, employment discrimination claims actually dropped last year from 2091 to 2028.  The drop is obviously even more remarkable when you account for the 20 percent rise in sexual harassment claims.  Trying to find the root cause isn’t readily apparent on first glance.  Employment discharge claims are actually up last year from 1188 to 1245 and terms and conditions claims are also up from 902 to 1018.  In fact, a lot of categories are up such as retaliation and harassment too.  The general conclusion? People are filing “kitchen sink” complaints listing multiple issues but the number of complaints is just down overall.
  • The CHRO is also closing more cases.  In 2018/19, the agency closed 2089 cases versus 2001 in the prior fiscal year.  Withdrawals with settlements are up substantially as part of that – suggesting that the agency is either more effectively using the mandatory mediation process or the parties are just more inclined to settle.
  • Case Assessment Review (CAR) is now real. It wasn’t that long ago that I had a discussion with CHRO personnel about the flaws in the CAR process.   This was important because an effective CAR process means employers don’t have to go through a costly mediation and fact-finding process; the cases get dismissed early on.  But what a change a few years makes. Back in 2014/15, just 131 cases were dismissed using the old Merit Assessment Review process.  In 2018/19? 434 claims — approximately 20 percent of all claims filed – were dismissed using the new CAR process.  That’s obviously a massive shift.  I’ll use a future post to talk more about this.

I’ll continue to do a deep dive on the numbers and share more analysis as warranted. In the interim, feel free to join us at our free webinar next week. The timing is perfect – we’ll be talking about strategies for employers in dealing with the CHRO.

Last night, I had the opportunity to attend a terrific little CLE program at the Hartford County Bar Association about practicing before administrative agencies in the state.  And while the discussion regarding the Department of Children and Family Services wasn’t exactly helpful for my own practice, a short presentation by Charles Krich of the Commission on Human Rights and Opportunities was.

He offered up a description about the CHRO practice but even more helpful, offered up practice tips and descriptions of the pet peeves of CHRO staff.

Among the pet peeves? “Lack of communication makes things difficult. There are some firms, particularly complainant representation, that are difficult to schedule with.”

I won’t share all his secrets here on a blog, but as it turns I’ve got the perfect opportunity coming up to talk about this and more.

Next week, my colleague Chris Engler and I are presenting “When the CHRO and EEOC Come Calling: Strategies for Employers” — a free webinar scheduled for November 12th at noon. You can sign up here.  

We’ll talk about the important things for employers to do when they receive a CHRO complaint and how to handle key events like mandatory mediations and fact-finding conferences.

See you then.

What does it feel like winning the lottery? I don’t know but it has to feel a lot like getting picked for jury duty.

(Wait, am I the only one to get excited at the prospect of jury duty? <grins sheepishly>)

If you’ve been reading this blog long enough, you may remember that I’ve been called to jury duty before.  Sometimes, it’s been cancelled but back in 2011, I made it all the way to a courtroom — only to be dismissed when I noted that I knew the attorneys at both lawfirms.

Anyways….I’ve been called to jury duty again next week, which gave me the inspiration for this week’s Employment Law Checklist Project post #emplawchecklist. The law is found in a different section than most — and a reminder that not all the laws that employers have to follow are in one neat package.

In fact, this might be one of more confusing employment laws out there.

The key portions of jury duty are actually found in two separate provisions. If your eyes glaze over at the laws, just skip to the summary down below.

Continue Reading Employment Law Checklist Project: Protecting the Sacredness of Jury Duty

As I noted last week, I’l be talking at CBIA’s Employment Law Conference on the topic of “Artificial Intelligence & Analytics for HR: Recruiting, Retention & Engagement” next month.

Joining me on the panel is Doug Smith, the SVP Client Delivery at Tallan, which has offices in the Greater Hartford area.  I thought it might be enlightening to ask Doug a few questions about AI and Analytics in the Workplace before our talk. He was gracious enough to humor me with answers to my questions. Really looking forward to our discussion in two weeks. 

In any event, here’s a return of my ongoing Five, Six Questions Series….

Is there really a place for data analytics in HR?

Definitely.  It has the most impact in larger companies, but even the smaller companies can gain insight by tracking and analyzing their data.  It’s amazing what you can find when you start to really look.

Fair enough. What are the opportunities?

There are so many opportunities here, it really depends on what an organization’s goals are. Higher retention, enhanced engagement, recruiting, and corporate culture are just a few. There are data points hidden in so many different places.  How you collect those data and what you do with them depends on what your goals are.

A great example is employee retention.  Companies can predict which employees are at a high risk for leaving by looking at things like commute distance, attendance history, advancement, and compensation.  Changes to one or more of these will change their risk, which can trigger an alert, allowing the HR department to proactively intervene.

What types of data are being looked at by companies who want to stay on top of this trend?

Your standard data is all still valuable. Now we’re able to pair it with more interesting data from many different areas and get a more accurate picture of not only what is going on, but why.  So you start with basic demographic information and add in your timesheet information, performance reviews, PTO usage, and other easy data sets.  Then you can start layering in things like recruiting information, education, corporate involvement, and work output.  You can even ask for data using AI to drive polls or chats to make it anonymous for employees.   Companies are really starting to push the envelope of what’s possible with data collection.

What is the pushback you’ve heard from employers about this and how have you overcome them?

This is a great question, I’d love to find out what types of comments and questions you get after people read this. It might make for a great follow-up post!

The biggest concern I have seen is respecting employee privacy.  As we are able to collect more data, we need to continuously check ourselves to ensure we are not crossing moral boundaries.  You could, legally and technically, use an AI to read all your employee emails to identify upset employees.  Most companies wouldn’t do this, but it scares people to know that you can.  I think what you’ll find is people will start with more innocuous data sources, and slowly progress as both HR and the employees learn to trust each other with this technology.

What about machine learning, predictive modeling and artificial intelligence? Hype or reality or somewhere in between?

These are all reality, and in use to some degree in most places already.

There are some requirements for these more advanced technologies that can create a barrier to entry, like data size.  For smaller companies, predictive modeling through Machine Learning could prove to be difficult, but as big businesses continue getting on board, there will be a collective industry learning, which can eliminate that barrier.  Amazon had a spectacular failure using AI to streamline recruiting, but the lessons learned have benefited everyone, and the next company to try will have a better outcome.  As those successes become more commonplace, their benefits will trickle down to the smaller companies as pre-packaged solutions and industry knowledge.

If someone is interested in learning more about this, are there resources available?

So many!  There are many articles and books, videos, and communities in this area.  And if you want to get hands-on to try it, most of the major vendors offer limited trials of their solutions.  Microsoft has a great set of resources that I refer people to, but you can find similar resources at Amazon, Google, and IBM.  Start looking into any specific area, such as HR, and you’ll quickly find a wealth of information, tools, and people willing to help.

It’s been a while since I talked about federal employment law legislation — in part because nothing ever seems to pass Congress nowadays.  It wasn’t that long ago, that Congress passed the ADA Amendments Act (10+ years).  But it feels like a lot longer than that.

So enter Connecticut Senator Chris Murphy.  Last Friday, he held a news conference to push a new bill that he is co-sponsoring with Republican Senator Todd Young of Indiana.

The bill – according to press reports — would ban non-competes everywhere.  While the Congressional website on bills doesn’t yet have it up, I did find a copy here.

According the Senators, the bill would do the following:

  • Narrow the use of non-compete agreements to include only necessary instances of a dissolution of a partnership or the sale of a business.
  • Place the enforcement responsibility on the Federal Trade Commission and the Department of Labor, as well as a private right of action.
  • Require employers to make their employees aware of the limitation on non-competes, as studies have found that non-competes are often used even when they are illegal or unenforceable. The Department of Labor would also be given the authority to make the public aware of the limitation.
  • Require the Federal Trade Commission and the Department of Labor to submit a report to Congress on any enforcement actions taken.

The bill would, at its core, create a massive new way for the federal courts to be involved in employment cases.  For that reason alone, I suspect this bill is DOA.

BUT, the bill highlights a trend that has been increasing of late, that is — the attack on non-compete agreements.

Even in Connecticut, which has long-resisted a broad ban on them, there have been signs that the wall has begun to crack. A few years ago, the legislature banned non-compete agreements for physicians.  And this past session, a ban on non-competes for home health care workers passed.

For employers, the time is ripe to think about a new strategy going forward. That strategy may focus on protection of confidential information and specific non-solicitation clauses.  Regardless, the time of using non-compete agreements broadly may be coming to an end soon.

In just a few weeks, I’ll be speaking at the CBIA’s Employment Law Conference on the topic of “Artificial Intelligence & Analytics for HR: Recruiting, Retention & Engagement”.

As I was speaking to the moderator about potential subjects of our discussion, we were arguing over whether AI is something for the future or something for now.

A news item in the Washington Post today is clearly one to put on the column for “now”.

Designed by the recruiting-technology firm HireVue, the system uses candidates’ computer or cellphone cameras to analyze their facial movements, word choice and speaking voice before ranking them against other applicants based on an automatically generated “employability” score.

HireVue’s “AI-driven assessments” have become so pervasive in some industries, including hospitality and finance, that universities make special efforts to train students on how to look and speak for best results. More than 100 employers now use the system, including Hilton, Unilever and Goldman Sachs, and more than a million job seekers have been analyzed.

The technology raises the debate: Is it “pseudoscience” and “a license to discriminate” as one critic called it, or “more objective than the flawed metrics used by human recruiters” as one of HireVue’s executives noted?

The answer, of course, is a lot more complicated than that.  AI is still in its infancy and is prone to errors.  Just ask Amazon, which had to scrap an secret AI tool, that showed a bias against women.

And so, employers who want to be on the cutting edge of technology need to under that legal risks still exist.  Disparate impact claims are ripe for the asking for a company that uses AI in a way that has a disproportionate impact on a protected group.

Interested in more on the subject? Be sure to sign up for the program on November 15th starting at 8:30a at the Hartford Marriott Farmington.

I’ll be speaking along with Doug Smith, Sr., Vice President Client Services at Tallan, Inc.  See you there. 

The laws regarding the protections owed to pregnant employees got far broader a few years back. In fact, the statutory provision prohibiting discrimination against pregnant employees has eleven key items. Rather than tackle them in separate posts, we’ll “super-size” this post to cover it all.

The main law is set forth at Conn. Gen. Stat. Sec. 46a-60(b)(7), though it is to be read in conjunction with the state’s broad anti-discrimination laws.

The key prohibitions state that it shall be a “discriminatory employment practice” for an employer (or the employer’s agent):

(A) To terminate a woman’s employment because of her pregnancy;

(B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;

(C) 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;

(D) 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;

(E) to limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy;

(F) to discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;

(G) to fail or refuse to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer; Continue Reading Employment Law Checklist Project: The 11 Things You Should Know About Pregnant Employees

I was going to save this post for the Yankees run into the World Series, but with the Yankees losing last night, it seems quite possible that they might not get there this year.  

Employment law contracts typically are not that complex. Oh sure, they may LOOK complex but most of the time, you build them with the same building blocks.

As it turns out, even baseball contacts have their own formula.

Turns out it’s not that hard to find — if you know where to look.

The uniform baseball contract can actually be found at the end of the collective bargaining agreement between the players association and the 30 baseball clubs which you can download here.  

It’s on page 350 of the CBA so you might not have stumbled upon it, but it makes for a fascinating read because the building blocks there look different than other contracts.  So what are some interesting terms?

  • Players are paid on a semi-monthly basis but only during the “championship season”.
  • A Player must “keep himself in first-class physical condition and to obey the Club’s training rules, and pledges himself to the American public and to the Club to conform to high standards of personal conduct, fair play and good sportsmanship.”
  • Players cannot engage in “professional boxing or wrestling; and that, except with the written consent of the Club, he will not engage in skiing, auto racing, motorcycle racing, sky diving, or in any game or exhibition of football, soccer, professional league basketball, ice hockey or other sport involving a substantial risk of personal injury.” (So play all the golf you want.)
  • Clubs can terminate the contract for a few reasons including if the player:
    • fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the Club’s training rules; or
    • fails, in the opinion of the Club’s management, to exhibit sufficient skill or competitive ability to qualify or continue as a member of the Club’s team; or
    • fails, refuses or neglects to render his services hereunder or in any other manner materially breach this contract.
  • But never fear, if the player is terminated, he is entitled “to receive an amount equal to the reasonable traveling expenses of the Player, including first-class jet air fare and meals en route.”

In the end, the contract is not like most employment agreements. But even within baseball contracts, there are exceptions too.  I recalled a post I did  “a few years ago” about Yankee great Derek Jeter’s baseball contract. Then I realized it was over 10 years ago. And I figured I should stop this post while I’m not reminiscing about the past.

Let’s hope my Yankees can pull out a victory tonight.