Yesterday, I tackled the bills floating around the Senate-side of the Connecticut General Assembly,  In today’s post, let’s look at the House side to see what bills are under consideration there:

  • House Bill 5003 is the mirror-image bill of Senate Bill 1 on Paid Family & Medical Leave.  Yesterday’s post gave the highlights, which apply equally to this bill too.
  • Similarly, proposed House Bill 5004 would raise the minimum wage in the state. The details are still to be drafted, but the CBIA has been asking for the raise to $15/hour to be scheduled over multiple years.  Some version of this is very likely to happen; it’s just a matter of timing of increases from the current $10.10 rate.  $15 per hour seems to be the prevailing wisdom.
  • Proposed House Bill 5053 would create a task force to look for employment opportunities for persons recovering from substance abuse. The details are to be drafted by the Labor & Public Employees committee and the bill will be up for discussion at a public hearing on February 14, 2019.
  • Proposed House Bill 5271 would re-introduce requirements that would broaden sexual harassment prevention training for employers.  The details, again, are still lacking but at a press conference last week, several legislators reintroduced a so-called “Time’s Up Act”.  This is definitely going to be subject to negotiation and change. While the 2018 died in session, it seems likely we’ll see something coming up again later this spring.
  • Proposed House Bill 6111 would allow employers to require employees participate in a direct deposit program for paychecks.  This bill is up for a public hearing on February 14, 2019.
  • Proposed House Bill 6113 is one that I don’t think we’ve seen much before. It would prohibit asking about an applicant’s date of birth or date of graduation on employment applications to “reduce age discrimination”.   Many employers have already taken those questions off their job applications to avoid even the impression that age is a consideration in their decisions; this bill would make that more explicit.  A hearing on this bill is set for February 14, 2019 as well — looks to be a busy hearing.
  • Proposed House Bill 6913 would prohibit “certain employees” from being required to sign “unfair” non-compete agreements.  Who those employees are and what terms would be “unfair” is likely to be the subject of the public hearing on this proposed bill on February 14th as well.  Proposed House Bill 6914 would create a similar ban on non-compete agreements for employees below a certain salary threshold.
  • Proposed House Bill 6936 would take a look at deductions for union dues, seemingly in direct response to the Janus decision. The details are still TBD but this is one that still merits an eye on.
  • Proposed House Bill 7043 would dictate certain requirements for lactation rooms in the workplace.  Rooms should be private, should contain or be near a refrigerator, and include access to a power outlet.  The bill also would make employers provide “breastfeeding support” for up to three years after childbirth.  The details of this bill are still TBD and this bill will be up for discussion at the February 14th hearing.  

To be clear, these are only the list of bills coming out of the Labor & Public Employees committee.  Each year, bills from other committees (including Judiciary) also have a tendency to impact employers.  There is plenty for employers to keep an eye on this year.

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.

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.

franklinUp on Fortune magazine’s column “Practically Speaking” is the following question:

Frank has been with us for more than 20 years. He works in the warehouse and has done a good job for us. I like him. But, to be honest, for the work he performs I could easily replace him someone younger and … cheaper. Would it be wrong to let him go?

Well, what a loaded question.  The advice column side-steps an important issue and gets into a discussion regarding overhead, benefits, etc.

If you follow this path blindly, you may walk right into a lawsuit.

Why? Because discrimination laws prohibit discrimination on the basis of age and you’re already acknowledging that you want someone “younger” — even if salary considerations may also be involved.

In fact, there have already been cases that talk about similar scenarios. In one case, a supervisor told an employee that he was “looking for younger single people” and that, as a consequence, the employee “wouldn’t be happy [at the company] in the future.”  In other cases, comments about replacing workers with “younger, cheaper” ones can also be used to support an age discrimination claim.

Even without the comment, a replacement by an employer of an employee with someone significantly younger can give rise to an inference of age discrimination.

So, case closed?

Well, maybe in this instance, since the employer already has this “younger” notion embedded in its decision-making process.

But suppose the employer is looking to cut costs and wants to replace higher salaried workers with cheaper ones: Can it do that?

Well, after the court’s decision in Gross (which I discussed way back here): Maybe.  The court there held that age must be the decisive factor in the employer’s decision and that “but for” the employee’s age, the employer would not have made the same decision.

Thus, an employer who believes it can get the same work done by an someone at a lower salary may sometimes survive an age discrimination claim — so long as age doesn’t factor into the decision.  But before you do this, be sure to consult with legal counsel as it’s a minefield to navigate.  This is particularly true in Connecticut where it remains to be seen how closely the courts will truly follow federal law in this instance.

And one more note:  Terminating employees to avoid further pension obligations or other benefits is likely illegal in many instances under federal law.  The Older Workers Benefit Protection Act (OWBPA), which we often think of as only applying to separation agreements, also made it illegal for employers to use an employee’s age as the basis for discrimination in benefits, and to target older workers for their staff cutting programs on the basis that benefits were too costly.

Cost considerations are certainly important for companies to consider. But tying those considerations to age is a step too far under the law.   Be sure to understand the distinctions. And try not to blindly follow advice columns (or even blog posts!); each circumstance is different and getting appropriate legal advice in this instance really is critical.

bitsWith Twitter, I’ve been doing less “recap” posts of late. Why? For the simple reason that you can get all of the posts I’ve read of late on Twitter.

We didn’t have that when I started the blog nearly 8 years ago.

(Side note: It was eight years ago this week that I came up with the idea of doing a labor & employment blog after attending an ABA conference with Kevin O’Keefe in Montreal. Time flies.)

But from time to time, I still think its useful to recap some interesting developments in labor & employment law without a dedicated post. So, here are a few items I’ve read lately that you might find of interest.

  • With Bruce Jenner’s recent interview, the issue of transgender employees in the workplace is moving to the forefront again. This Employment Law360 story recaps the state of affairs.
  • Attorneys who represent empl0yees are looking for new ways to help prove emotional distress damages in discrimination cases.  As BeLabor the Point points out: “For example, doctors can now use functional magnetic resonance imaging (fMRI) and positron emission tomography (PET) scans to measure and visibly observe the effects of emotional distress on the brain.” This may represent a new area of the law in the upcoming years.
  • Many bloggers have been writing on code words for age discrimination that pop up from time to time in job advertisements.  Suzanne Lucas, of Inc., talks about one such example — the use of of the phrase “digital native”.
  • In past years, I’ve talked about how the legislature keeps considering a bill that would force Connecticut schools to teach labor history.  That bill is still alive this year.  And may be making more progress than people realize.

Over the weekend, I asked my colleague, Chris Engler, to think of any employment law lessons that could be divined from the victories of the UConn Men’s Basketball team.  He reminds us in the post below that preparation still matters.  Of course, this isn’t the first time this blog has written about the UConn Huskies (see 2009 and 2011).  Will 2014 bring another championship?

This past weekend, the UConn men’s hoops team reminded us that hard work and thorough preparation can prevail in a contest that looks tough to win on paper. A recent federal court decision shows that those same qualities serve Connecticut employers well too.

The alleged facts are told in the court’s decision: Martin Donovan, a longtime Yale University administrator, was terminated back in 2010 after an investigation revealed numerous problems with his management style. Donovan sued for age discrimination based on three comments by his supervisors.

The background facts are important. A few months before his termination, when Donovan was 61 years old, his supervisor asked him about rumors that he was planning to retire. When Donovan vehemently denied the rumors, the supervisor expressed relief that Donovan would continue working.

Previously, another supervisor had commented on other employees’ ages in Donovan’s presence. The supervisor first conveyed his satisfaction that an accountant left and was replaced by “someone younger.” Later, the supervisor mentioned that a researcher was too old for his research to be valid.

Despite these comments, the federal court for the District of Connecticut concluded that they weren’t enough to show age discrimination. In doing so, the court provided some insight into how an employer can avoid an age discrimination claim. (Readers, get out your notepads.)

First, the court highlighted the thoroughness of the investigation into Donovan’s managerial problems. The investigators were theoretically impartial, being from another Yale unit, and they interviewed and observed nearly every employee in the department. This convinced the court that these problems weren’t just a pretext.

That brings us to Takeaway #1: Thoroughly investigate and document performance issues, such as Donovan’s managerial problems, as soon as they arise. Yale’s comprehensive investigation was its saving grace in this case.

On a related note, here’s Takeaway #1a: An employer probably has more pressure to conduct a solid investigation if there was a recent incident involving an employee’s protected status. To try to show a pretext, Donovan emphasized that his termination came mere months after the retirement conversation. While the court here wasn’t convinced, another court viewing somewhat different facts might be. Again, consistent and accurate documentation of issues should avoid this dilemma.

Continue Reading Final Four Madness: Preparation Still Matters To Win On (or In) The Court

In Tuesday’s The New York Times, an article (that, as of Monday evening was one of the lead pieces on the NYTimes.com website) argues that age discrimination continues to exist in society and that it is hitting the baby boomers particularly hard.  (Indeed, the article’s tag is “for-laid-off-older-workers-age-bias-is-pervasive”.)

I do not challenge the assertion that age discrimination continues to exist in certain parts of society.  The statistics quoted in the article do undermine the article’s assertion though because the unemployment rate for 55-64 year olds is 5.4 percent (compared with 7.4 percent) for the general population.  I’ll leave it for others to debate what the statistics mean.

But the article does make one blind assertion that should not go unchallenged.

First, the background: The U.S. Supreme Court in 2009 changed the standard of proof needed to establish an age discrimination case to a “but for” standard.  As I noted back then, however, I didn’t think we’d see a huge shift in age discrimination cases.  Yes, it might make it a little more difficult for an employee to prove his or her case, but it wouldn’t change how many cases are handled — particularly in states that have their own anti-discrimination statutes.

Indeed, a recent article suggests that courts haven’t made much of a shift in how they handle ADEA claims in the wake of the Supreme Court’s ruling.  And another article for an ABA conference suggests that the practical impact of the decision has been “vastly overstated.”

But try telling that to the Times. Indeed, it goes on to make a remarkable, uncredited assertion: “Since the Supreme Court ruling, most lawyers won’t even take age discrimination cases.”

Most lawyers? From where does the Times get this assertion? It fails to say. It provides no statistics, no cite, no quote to support this.  Nothing.

A look at the EEOC filing statistics doesn’t support this. Indeed, the statistics fail to show any significant drop off of age discrimination cases after the Supreme Court’s ruling.

In Fiscal Year 2009, there were 22,778 charges filed. In the next year, there was actually an increase to 23,264 claims filed.  By FY 2012 (the last available statistics), there were still 22,857 claims filed — a lesser amount is, in part, to be expected as the economy improves.

Now, admittedly, the charges don’t account for claims that were filed with an attorney’s assistance. But if “most lawyers” won’t take age discrimination cases anymore, wouldn’t you expect to see a significant dropoff?

NELA – the National Employment Lawyers Association — continues to put forward CLE programs discussing how to advance ADEA claims even with the Supreme Court’s decision.  So, even the group that represents employees the most isn’t throwing in the towel.

So, where did the Times get this assertion from? I’ve hunted for a source but have yet to find one.

So, I turn to you readers.  What do you think? Is The New York Times correct in its assertion? Or is this a case for the Times’ Ombudsman?

 

Years ago, it was believed that summary judgment motions by employers should be rarely granted. 

And yet, judges in Connecticut district court keep granting these motions.  A recent federal court case in Connecticut is the latest example of how courts are using their power to weed out cases before they reach a jury.

In Miller v. Ethan Allen Global (download here), a customer service supervisor who resigned after having performance issues, claimed that she was “assaulted” twice by employees. (I use the word “assault” in the legal definition stage which is a bit different than conventional wisdom on assaults.)  The court said that these incidents were insufficient to send the case to a trial.

What were the incidents?

First, she claimed her supervisor knocked her hand off of a phone and shoved her shoulder when she was on the phone to make a call regarding a customer complaint.  The supervisor allegedly said she did not care and that the employee was to stay off the phone. 

Second, she said she was involved in a physical altercation with a co-worker. She claimed that the co-worker came to her desk, slammed down a one-page e-mail from one of  her employees, grabbed the back of her neck and told her to tell her “goddamn employees to stop emailing me with the same questions over and over again”.  The Plaintiff claimed that when she spoke to her supervisor about it, her supervisor responded by laughing and telling the plantiff to “go tell her to f*ck off.”  The plaintiff did not seek treatment but claimed her neck was sore for a day and a half.

After these two incidents and after her performance had been roundly criticized, the plaintiff offered to resign. The employer took her up on her offer. Quickly. 

But even the resignation did not end a lawsuit.

The plaintiff filed suit in federal court in Connecticut claiming that she was the victim of age discrimination and a hostile work environment (among other reasons). The court rather easily disposed of the claims for a variety of reasons, including that she resigned (instead of being fired) and did not suffer any “adverse employment action”. 

As to the “two incidents of alleged assault”, the court said that these are insufficient to raise a material issue of fact with regard to an adverse employment action.

“Only in limited circumstances does a single, acute incident of abuse qualify as an adverse employment action.” [Citation omitted.] While [Plaintiff] alleges two separate incidents, neither incident was so “extraordinarily severe” as to “alter the conditions of a working environment,” as evidenced by the fact that [Plaintiff] continued to work at EA in the same position and with the same responsibilities…. Further, the two incidences involved two different people. Taking the facts in the light most favorable to [Plaintiff], she does not set forth evidence to support her allegation that she suffered an adverse employment action. Consequently, she fails to set forth a prima facie case under the ADEA.

For employers, the case is another indication that federal courts remain at least receptive to motions for summary judgment — something that can’t be said of state courts.  If an employer is sued in state court and has an option of removing it to federal court (on jurisdiction grounds), it’s worth serious consideration in most employment discrimination cases.

Today, the EEOC has published its final rule clarifying a portion of the Age Discrimination in Employment Act (ADEA).  You can download the rule here and a FAQ from the EEOC here.   The rule comes as a partial response to a 2008 U.S. Supreme Court decision that analyzed the issue. 

The rule has some significance for employers who have policies or take action that may have a disparate impact on older workers. In plain english, disparate impact essentially means an age-neutral rule that affects older workers more than younger workers; disparate treatment means a rule or action that treats older workers differently.

The easiest example to think of is suppose a police department has a physical fitness test so that officers can pursue and apprehend suspects; that practice may have a disparate impact on older workers . 

So what did the final rule clarify? According to the EEOC: Continue Reading EEOC Publishes Final Rule on Reasonable Factors Other Than Age (RFOA)

In this week’s Connecticut Law Tribune, employment lawyer Gary Phelan revisits an old post that I did way back in March 2008 about mandatory retirement policies at law firms. 

Back then, I noted the strange disconnect that sometimes exists between law firms and clients. Why? Because historically, law firm partners have been treated as owners and employers and therefore not covered by age discrimination laws. However, as I noted back then, the prevailing wisdom was being challenged and even the American Bar Association chimed in discouraging such practices.

In Phelan’s article, he expounds further on that suggesting that law firms sometimes miss the point:

[B]y focusing on the threshold “bona fide” partner issue, law firms often fail to examine three vital questions: Do bona fide partners still have any legal basis to challenge these policies? Are mandatory age retirement policies the “right” thing to do? Are there alternative ways to enable law firms to accomplish the business-related objectives underlying these policies other than forcing lawyers to retire or give up their equity status at a certain age?

Phelan does acknowledge that there are some legitimate reasons behind the practice, "such as transitioning responsibilities for clients and providing leadership opportunities to younger partners." But he quickly notes that "other industries also routinely face these challenges" without having to resort to mandatory retirement practices. 

I noted back in 2008 that changes to these types of policies would not occur overnight. And they haven’t. But as society’s notion of what is "old" continues to change, I expect we’ll continue to see incremental changes in law firm practices here as well.