On “Survivor”, one of my favorite broadcast TV shows (or, as my YouTube/Netflix watching teens might say — “what’s that?”) the notion of “immunity” plays a central role in the outcome of an episode.

And in a decision released last week by the Connecticut Supreme Court, whether or not to grant immunity again plays a pivotal role for religious employers. In its unanimous decision, the court refused to grant outright immunity to a religious institution from an employment discrimination claim.  The case, Trinity Christian School v. CHRO, can be downloaded here.

For religious institutions, the case serves as reminder that while the employment discrimination laws may be more limited in their impact (more on that in a second), seeking “immunity” from such claims is a step too far for the courts.

In doing so, it’s helpful to note that the U.S. Supreme Court decided earlier this decade that the “ministerial exception” under federal anti-discrimination law only served as an “affirmative defense” against such claims.  That has important implications on the procedural posturing of a case and prevents appeals early on in the case on “jurisdictional grounds”.

Here, the court said that an additional state statute on the subject did not purport to confer on religious institutions immunity from employment discrimination actions.  That statute, § 52-571b (d), was intended to operate as a rule of construction for § 52-571b as a whole rather than a grant of immunity.  The effect of § 52-571b (d) was to retain the determination of the United States Supreme Court that the ministerial exception to employment discrimination laws, which requires secular institutions to defer to the decisions of religious institutions concerning their employment of religious employees, serves as an affirmative defense to an otherwise cognizable employment discrimination claim.

In doing so, the court notes that its prior decision, Dayner v. Archdiocese of Hartford, has now been explicitly overturned by the U.S. Supreme Court’s pronouncement on the subject. “hat decision, of course, was short-lived in light of the United States Supreme Court’s holding in Hosanna-Tabor that the
exception operates as an affirmative defense to an otherwise cognizable employment discrimination claim rather than a jurisdictional bar.”

 

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.

Typically, in our court system, we operate under the “American Rule” which means that parties have to pay their own attorneys’ fees in cases, regardless of whether they win or lose.  (Contrast that with the English Rule which is a “loser pays” system.)

But there is one big exception to the American Rule — and it can be found in lots of employment law cases.   In several instances, the governing statute allows the prevailing party (or, in some instances, just the Plaintiff — read “employee”) to collect attorneys fees.

This is often seen in wage & hour claims, where an overtime claim may get dwarfed by a claim for attorneys’ fees.  One blog pointed out a few years ago in an FLSA case on “how attorney’s fees can grow to be the tail that wags the dog.”

A recent case out of the District Court of Connecticut also shows the impact in employment discrimination cases too.

The decision flows from a jury trial that awarded damages in an employment discrimination case to an individual suing a major employer.  Afterwards, both parties engaged in extensive post-trial litigation concerning attorneys’ fees, damages and more.  Ultimately, the court issued a ruling and then a final ruling after both parties asked for reconsideration.

The court awarded the Plaintiff in the discrimination claim the following:

  • Compensatory damages: $125,000
  • Punitive damages: $175,000
  • Economic damages (back pay): $ $243,711.89
  • Pre-judgment interest (on back pay): $15,665.37
  • Reinstatement

So, ultimately, the verdict is a little more than $550,000.

But the court also awarded attorneys’ fees.  And these fees far exceeded the verdict itself.

Grand total?  $973,083.50 in attorney’s fees and $30,960.24 in costs.

Such awards make employment cases unique animals in the law.  They provide extraordinary incentives to attorneys to not only take such cases, but pursue them.

For employers, the case is a difficult reminder that even when you value the case as somewhat small based on damages, the award of attorneys’ fees can add a substantial amount to what a case is worth.

 

The U.S. Supreme Court this morning in Janus v. AFSCME (download here) reversed 40 years of labor law precedent and concluded that  requiring public employees to pay “agency fees” for labor unions that they don’t want to belong to violates the First Amendment of the U.S. Constitution.

Previously, prior cases have banned forcing public sector employees from joining a union and paying union dues. But a number of states permitted union contracts that required employees to still pay an “agency fee” to cover the costs of collective bargaining.

In its 5-4 decision, the U.S. Supreme Court rejected this — leaving public sector unions, particularly in states like Connecticut, to potentially lose significant funds from employees who say that they want no part of their salary to go towards unions.

Given that this blog covers more employment law than labor law, and focuses more on private-sector than public sector, I’m not going to do a deep-dive today into the case. The SCOTUSBlog is one good resource. 

But my labor law colleagues at my firm have spending the morning looking into this.  Here’s the quick recap posted this morning on the Employment Law Letter blog and the impact to Connecticut public-sector employers.:

The immediate effect of the Court’s decision is that agency fee (or “fair share” fee) provisions in collective bargaining agreements are invalid. The Court specifically states that agency fees and similar payments may not be deducted from an employee’s pay unless the employee has expressly consented to the deduction.

This statement suggests that employers should stop deducting agency fees unless and until an employee has affirmatively consented.

Because Connecticut law requires express employee consent for payroll deductions, Connecticut public sector employees have likely already consented to the deduction of agency fees.

However, public sector employers should be prepared for employees approaching them and requesting that the agency fee deductions be stopped, effectively withdrawing their consent.

Justice Alito’s decision is emphatic in this point and the significant dollars at stake:

We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

Watch my firm’s blog for more details on this critical decision in the public-sector.

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.

The Commission on Human Rights and Opportunities can sometimes be seen as an easy punching bag by legislators, employees, employers and employment law attorneys.

But there’s one area that has been an unequivocal success and where you won’t see almost any headlines.

The CHRO several years ago developed the Kids Court Essay Competition which runs each year.  In it, it gives high school and middle students the opportunity to talk about topics that are important to them and shine a spotlight on others who may not have the same opportunity.  In doing so, the competition focuses on important and contemporary civil justice issues.

This year’s essay topics were:

The CHRO received over 300 (!) entries.  Out of that, five essays were chosen as finalists at both the middle school and high school levels.  Each student then had the opportunity to address the Kids Court — a panel of distinguished lawyers, judges and others assembled for this purpose.

This week was this this year’s Kids Court and I was grateful the CHRO asked me to participate as a judge.

The students displayed a keen awareness of the local community; they each talked about topics that were important to them.  The students that talked about Hate Crimes and Educational Equity had a particular resonance to the current events of today.

As an employment lawyer, I found it notable that none of the finalists’ essays were actually on #metoo.  I don’t think there’s much to conclude from that, other than that the students’ essays on other topics were judged to be better.

In 2018, we’ve seen high school students rise to national prominence in Florida over the issue of school safety and gun violence. Listening to these “kids” and making sure their voices are heard is something that employers should consider. Today’s generation of students are increasingly impatient with the pace of change.

Congratulations to all the finalists and I look forward to hearing their continuing contributions to our civil discourse in the years to come.

 

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.

It was the last semester of my senior year in college – right after Spring Break – when I heard the news that would forever shape my views on mental illness.

A friend and fellow editor of the college newspaper I worked for, Steven Ochs jumped to his death from one of the many bridges near his hometown in Pittsburgh, PA.

A group of us ended up driving out there across the fields of Pennsylvania to mourn his passing. It was the first time I was a pallbearer at a funeral and I knew then that was something I never wanted to be for a friend again.

Steven was a remarkable young adult.

I wish you could’ve known him.  He wrote amazing columns for our college paper and editorials nearly every weekday.  Thanks to the internet, you can still read a few here.

I can still remember sitting in his newspaper office couch and hearing him talk; he was always a few steps ahead of me.  I thought he had a promising future.

I thought about Steve a bunch last week, when the celebrity suicides of Kate Spade and Anthony Boudrain became headlines.

Those people, along with Steve, seemingly had everything that would want.

And yet.

As anyone who has had a friend or relative commit suicide, there’s a certain amount of second guessing that goes on. What signals did I miss? What could I have done differently? Was I a good enough friend? Why didn’t he ask for help?

And a lot times, it just comes down to a simple question too: Why?

Every suicide of a employee impacts the workplace as well.  And sometimes it is at the workplace itself – but regardless, suicides have been on the rise the last several years. As a Wall Street Journal article from earlier this year noted:

Nationwide, the numbers are small but striking. According to the Bureau of Labor Statistics, suicides at workplaces totaled 291 in 2016, the most recent year of data and the highest number since the government began tallying such events 25 years ago. U.S. suicides overall totaled nearly 45,000 in 2016, a 35% increase compared with 10 years earlier, according to the Centers for Disease Control and Prevention’s National Center for Health Statistics.

Who is most at risk? According to the BLS study, 45- to 54-year-old males had the highest likelihood of committing workplace suicide. And workers in the public sector had a higher propensity for workplace suicide while workers in the private sector suffered the majority of these fatalities. The private industry sectors with the highest propensities for workplace suicide were finance and insurance; professional, scientific and technical services; and health care and social
assistance.

The solutions are far more complex than a simple employment law blog post can capture.  Some of them are rooted in society.  But discussions regarding mental health — and bringing those discussions in the workplace — is often seen as one important step that can be done.  A renewed emphasis on making sure employees know about and use Employee Assistance Programs is also another important step.

HR staff can sometimes be at the front lines.  Figuring out that an employee might need help can be a part of a solution but as we all know, it might still not be enough.

We can only hope that as we raise awareness of this, that we can stop some suicides from occurring so that 25 years from now, someone else isn’t writing a blog post about one of their friends as well.

 

 

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.

You might think the title of this post is a bit self-serving or even self-promotional. Is this post just going to be a backhanded way to hire me, an employment law attorney?

I want to dissuade you of the notion because that’s actually not my purpose.  (Really.)

But over the years, I’ve had friends and colleagues struggle with finding the right lawyers for their business.  In some cases, my firm (Shipman & Goodwin LLP) might be a good fit for them. In other situations, whether because of conflicts or costs, we might not be.

What I tell people is to take a step back and ask yourself a series of questions to start with.  I thought I’d share just a few of them to start the conversation:

  1. What are my needs? This is perhaps the hardest, but most important question to ask yourself before you start.  If you don’t know what your needs are, it’s really tough to find a good match.  If a lawsuit is filed against you, then obviously you need an attorney who has experience in the area that can represent you.  But is this a one-off matter that will be handled in a few hours, or is this likely to be much larger and need the resources of a firm that can handle this?
  2. Do I have insurance that might cover the lawfirm’s expenses (or, perhaps dictate what lawyer I must hire)? Some employers have purchased insurance to handle defense of employment-related claims and you might not even know about it. Figure that out first because there’s nothing worse than hiring one lawfirm only to find out that you’re going to have to choose another attorney by the insurance company.
  3. Do I have a budget? And if so, what lawfirms can work within that budget so that I can maximize my value? Most lawfirms charge by the hour, but will work with companies to try to fit a budget.   But will that mean you are working with an inexperienced associate? Or a more senior one or a partner on your issue?
  4. Do I have related issues beyond just employment law that a general practice firm can best handle? Over the last 15 years or so, employment law boutiques have popped up and for some companies, they may be a good fit (particularly if covered by insurance). But for others, they may have needs that go beyond that? Will you need to find 2 or 3 lawfirms to handle your issues, or should you go with one firm that can service all of them.
  5. Should I pick a lawfirm or pick an attorney AT the lawfirm? Much like hiring a doctor, there are some tasks that can be handled by a variety of lawyers. But for other issues, you might need to seek out a lawyer with a particular expertise.
  6. Do I know anyone that is currently using a lawyer that can recommend one to me?  You might have found this post via Google, which is both amazing and scary at the same time.  If you have, don’t choose a lawyer just because Google ranked them. Rather, if at all possible, do your due diligence on the lawyer. Word of mouth and recommendations from friends and colleagues remains a great way.  Keep asking around until you find someone you’re happy with. Don’t just settle on the first name that pops up.
  7. Can I find out more about how the lawyer thinks through his or her online presence? And if so, does it match my style?  Have you always envisioned your lawyer being a “pitbull” who will support your view no matter what? Or do you want someone who can methodically look at your issue and perhaps give you advice you may not want to hear? Or something else? There are plenty of different lawyers with differing styles. Find the one that fits your company.

There’s something I left off the list — ratings.  Whether it’s “Best Lawyers”, or “Super Lawyers” or “Chambers” or “Avvo” or something else, be wary of hiring a lawyer exclusively based on such a rating.  While it certainly doesn’t HURT to have a lawyer on such a list, there’s far more important qualities to look for in a lawyer.

What else should you look for? Add your view in the comments below.