As I continue to work on a major redesign and relaunch that I hope (!) to roll out by month’s end which has held up some blog posts, my colleague Gary Starr returns this morning with a new post regarding a recent Connecticut court decision and temps. 

starrEmployers who use a staffing company to supplement their employees may find themselves in for a rude awakening if the temp gets hurt at their worksite.

Ordinarily, an employee injured on the job would be covered by the workers compensation insurance.

A recent Superior Court decision rejected the idea that the temp is covered by the employer’s workers compensation insurance and is allowing a lawsuit to go forward against the employer.

The court found that the temp was an employee of the staffing company and not the employer, even though the temp accepted the assignment with the employer, the work was being done for the employer, and the temp was under the control of the employer at the worksite, and not the staffing company.

While there are several state court decisions that have found this arrangement to be a dual employment situation, other courts have rejected the concept of dual employment.  Under dual employment, the temp would have been covered under the employer’s workers compensation insurance.

Until an appellate court or the Connecticut Supreme Court rules on this issue or the legislature clarifies the statutory scheme, employers using staffing companies to fill out their employment needs, run the risk that if the temp gets hurt, they could be sued.

Such a lawsuit would present a risk of liability that could exceed the workers compensation formulas, with possible punitive damages.

Employers should be careful in their negotiations with staffing companies to try to establish a dual employment relationship with the temp, even having the temp sign a written agreement with the employer accepting the assignment with the employer.  There should also be clarification of the scope of any indemnity.  The employer should check with its workers compensation insurance carrier to ensure coverage of any temps.

While these steps may not avoid the consequences described above, it may provide a basis for arguing for dual employment and for coverage under workers compensation.

Of course, dual employment has its own set of challenges as well so employers using temps need to understand both the pros and cons in such a relationship.

Is more change on the way to the CHRO?

This week, the Connecticut Law Tribune reported on some significant legislative proposals that continue to be floated. One of them would take the agency and move it to the Judicial Branch. 

Previous proposals would consolidate the agency with other ones but keep much of the same structure.

Suffice to say that this is something to keep an eye on over the closing weeks of the General Assembly. 

In the meantime, the agency continues to press forward with its public hearings and making do with the limited resources it has. It released an updated newsletter this week.

Unfortunately, the CHRO has yet to update their statistics on cases filed and processed.  No word yet on when (or if) that will occur.

Imagine there’s no …..

A few years ago it would have been unfathomable to be considering life in Connecticut without a Commission on Human Rights and Opportunities.  After all, it is a necessary step in filing a discrimination complaint in this state.

Imagining a Connecticut without the CHRO? No way.

But suddenly, dramatically, here we are.   With the union concession package widely expected to be voted down later Friday morning, we’re into uncharted territory.  And, there are a lot of questions still to be answered.

First, will Governor Malloy actually shut down the agency? That’s unknown, though closing it down was among the various list of cuts proposed back in May. Resulting savings are over $6M.  Pure speculation among lawyers at the CBA Annual Meeting yesterday about whether that would happen was split, though some type of cuts to the agency would certainly seem likely.

Shutting down the agency would be relatively easy compared to what might happen afterwards, though.

For example, what will happen to existing claims at the CHRO? Presumably, the legislature would have to enact legislation that immediately provides those individuals with a “right to sue” in state court.  Some coordination would need to be planned, though, with the EEOC since every claim filed at the CHRO is typically cross-filed with that agency.  Will the EEOC pick up investigating some claims? Given their budget issues, that appears unlikely as well.

Next question: What happens to the statute of limitations? After all, in order for state discrimination claims to proceed, a complainant must file a CHRO complaint within 180 days.  When there’s no complaint to be filed, what happens next? Again, we’ll have to await word from the General Assembly.

But while some have previously called for the elimination of the CHRO, be careful for what may happen next, which is filing of many more lawsuits against employers that would otherwise have been handled by the agency.  Indeed, if all those cases went to court, you could see an 5-8 percent rise in the number of cases in our court system.  On the flip side, the courts are likely to be so overwhelmed with new claims with diminishing resources, that cases may drag on and on there.

What’s the Takeaway for Employers?

The budget battle may hit home in unexpected ways.  Keep up with the developments surrounding the CHRO and stay tuned to see if there are going to be any other cuts to relevant state agencies such as the Department of Labor.

It’s not just job cuts that we are likely to see, but programs and services being eliminated too.

Imagine a world without the CHRO? Ready, Set, …….

Sometime last summer, Connecticut attorney Karen Lee Torre sparked a few fires with her suggestion to eliminate the Connecticut Commission on Human Rights and Opportunities — the organization charged with, among other duties, investigating and remedying discrimination in the workplace.  (You can find my prior posts on the exchange here, here and here.

The crux of Attorney Torre’s arguments at the time was as follows:

CHRO was and remains crippled by internal race politics with staffers suing each other and maintaining demographic battle lines. It is Afro-centric, politically correct to a grievous fault and brazenly hostile to the civil rights of white males. It is time to dissolve it or at least gut it with a budget that reflects its worth.

This month, the Connecticut Lawyer published an opinion piece written by my colleague, Joshua Hawks-Ladds, in which he suggests another radical change in the CHRO but for different reasons. You can download the article here

First, he highlights what he believes needs fixing at the CHRO:

Unfortunately, the Commission has become an underfunded, understaffed and perpetually backlogged bureaucracy. Along with many valid discrimination complaints, the Commission’s offices are clogged with specious claims that the Commission is required to investigate. This means that the bona fide discrimination claims against landlords and employers get lost in the morass. Some of the valid claims are removed from the CHRO and litigated in the state and federal courts. However, the many of the claims (over 2,000 are filed each year) languish for years in the agency’s offices. The system is unfair to claimants with bona fide claims, as well as employers and landlords with bona fide defenses.

As a result, he proposes a fix:

a complete overhaul of the Commission’s procedures to mirror the state Department of Labor’s Unemployment Compensation system, with one exception: if either party does not agree with an appeal referee’s decision relating to a charge of discrimination, then that party may appeal that decision, de novo, to the superior court.

It’s a new approach to an old problem.  He acknowledges up front that his proposal is likely to be met with opposition from some. But with many people (on both sides of cases) unhappy with the status quo, the time may be right to at least consider something new. 

An advisory committee charged with making recommendations about changes to the CHRO has been in the works for many many months now.  It’ll be interesting to see what changes they propose to an agency that continues to draw criticism. 

In Connecticut, it’s well known that the state agency responsible for investigating complaints, the Connecticut Commission on Human Rights and Opportunities (CHRO) has been the subject  of lots of discussion and criticism for over a decade, dating back to the years under Executive Director Louis Martin.

Recently, a new series of criticisms have been heard about the agency, and the agency appears to be having difficulty keeping up with the caseload.  As such, Governor Jodi Rell has quietly formed a working group to review the agency and its ability to carry out its stated goals.

A recent article by the Waterbury Republican-American picks up the story from here:

The review is expected to take several months, said Christopher Cooper, the governor’s chief spokesman. He said the assessment grew out of contacts between the state NAACP and the governor’s office this summer.

There are well-documented problems at the human rights commission, including a backlog of complaints, high caseloads for investigators, and allegations of discrimination within the agency itself. Additionally, three executive directors have left under questionable circumstances in the last 10 years.

Cooper said the commission’s troubles entered into Rell’s decision to look into its possible restructuring….

The governor’s working group initially met last month; its second meeting is scheduled for Dec. 13.

Ann Noble, the governor’s deputy counsel, is heading the working group. It also includes representatives from the Connecticut Women’s Education and Legal Fund, the Connecticut Business and Industry Association, the NAACP, the state’s African-American Affairs Commission, Latino, Puerto Rican Affairs Commission and Commission on Aging, and the University of Connecticut’s Asian American Cultural Center.

In the article, I was asked to comment on the issues facing the CHRO.  I’ll let you read the article (in part, to give the intrepid reporter, Paul Hughes, credit for the article) but suffice to say that I indicated that more needs to be done to speed up the resolution of cases.  Indeed, cases are falling further and further behind, while the caseloads of the investigators increase.

This is an issue that affect both the employee and the employer.  Neither side can be happy with the delays that are plaguing the agency right now.  It increases the cost of litigation to both sides — which can only serve to make settlement more difficult down the road.

For an agency that has had its share of difficulties over the years, a working group to review it is certainly a welcome addition.   There will be no shortage of issues for the group to address.  Hopefully, the group will reach out to practitioners from both sides of the cases to provide the group with additional feedback and suggestions.