My law partner, Gabe Jiran, talks today about whether it’s all that easy to change the terms of a collective bargaining agreement.  Is it just as easy as a vote? Or does it require something more? The answer has implications for all employers.  

With all of the talk about the financial difficulties faced by the government, I, and others in here, sometimes get the question of whether the State of Connecticut or other states might try to change the laws on collective bargaining or try to pass legislation to alter the terms of its existing collective bargaining agreements.

Other states have started down this road, but it is not that easy.

Recently, the Connecticut Attorney General was asked to opine on whether the General Assembly could statutorily change the contracts covering State employees to address the fiscal crisis.  A link to the opinion is here.

The short answer is that the State could do so, such as by passing a statute that wage increases be delayed or eliminated in State contracts.

However, the United States Constitution imposes a pretty heavy burden on the State to justify any such changes.

The relevant factors are:

  1. the severity of the fiscal crisis;
  2. the nature and duration of the contractual changes;
  3. the extent that the State has attempted to implement other alternatives in the past;
  4. the extent to which the State has studied and made findings about the feasibility of other alternatives;
  5. whether these alternatives would be a less dramatic option;
  6. the extent to which the fiscal crisis existed or was foreseeable when the State entered into the existing contract; and
  7. the State’s representations during negotiations for the existing contract.

Based on cases utilizing some or all of these factors, the State would face an uphill battle if it wanted to change an existing contract.

For example, a federal appeals court struck down the State of New York’s plan to delay wage increases for employees because New York had alternatives such as raising taxes or shifting money around in its budget.  In another New York case, the same court found that a $1 billion deficit was not a dire enough fiscal crisis to justify a delayed wage increase.

However, one case found that the City of Buffalo was able to impose a wage freeze when it was undeniable that Buffalo was in a fiscal emergency and that the wage freeze was a last resort after looking at other options.

In discussing the matters with others here, we expect that Connecticut and other states will continue to look for creative options to address their financial situations with employees.

However, it is doubtful that these options will involve changes to existing contracts without negotiation with the unions involved.  In addition, any State attempts to change contracts in the private sector would be almost certain to fail.

Several years ago, Connecticut passed a law that, for the first time, required employers to take special precautions to protect the personal data of their employees. 

For a refresher, you can see my prior posts here and here

Now, there is news of some tweaks to the law with some implications for employers and companies.  My colleague, Steve Bonafonte, has this update:

For those of us who were watching proposed legislation on data breaches unsuccessfully move its way through the 2012 General Session, we see now that it was passed as part of the Connecticut General Assembly’s Special Session by attaching it as Section 130 of the Budget Bill.

The new statute, Section 36a-701b, is effective October 1, 2012. 

It requires the reporting of a “breach of security” to the Connecticut Attorney General.  This is in addition to any other data breach reporting requirements that exist in the Connecticut Statutes or promulgated by industry regulators (e.g., Connecticut Department of Insurance Bulletin IC-25).   

Failure to comply constitutes an unfair trade practice under Connecticut General Statutes Section 42-110b  and is enforceable by the Attorney General.

What’s the takeaway for employers? This is yet another reminder that businesses should have a system to monitor and adjust internal data breach response policies and procedures in order to comply with these actively changing laws, particularly when it comes to protecting the private information of your employees.

While Connecticut-based businesses ought to give special attention to Connecticut law, the laws of other states may apply if you maintain or use personal information of residents of those states.   Additionally, these laws are increasingly providing for more active enforcement mechanisms that enable monetary damages or fines – both of which can be costly to defend and harmful to the brand reputation of the business if reported in the media.

What a difference a few weeks can bring.

Back on May 5th, Attorney General George Jepsen issued a letter to legislators expressing his support of the so-called "captive-audience" bill.  That letter was used in the debate by Connecticut House members as proof that the bill would pass a legal challenge.  Indeed, on May 11th, the bill passed the House.

In a May 12th post, however,  l expressed serious reservations about whether the bill, if passed, would be preempted by federal law. 

It seems that Attorney General Jepsen’s office has now come to the same conclusion, according to a report in The CT Mirror.  Because of that opinion, legislators have decided not to pursue it further.

Legislators said Friday that Attorney General George Jepsen, a staunch ally of labor, effectively has killed a legislative priority of the Connecticut AFL-CIO by advising them that federal labor law appears to pre-empt the state from passing a "captive audience" bill.

The House of Representatives passed the controversial bill two weeks ago, 78 to 65, after an 11-hour debate in which the key sponsor, Rep. Zeke Zalaski, D-Southington, relied on a letter from Jepsen assuring him that the bill was legally sound.

An unhappy Zalaski said that Jepsen visited him earlier this week to inform him that additional legal research by his staff concluded that the state cannot bar employers from requiring employees to attend a meeting called to discuss religious or political matters.

The CBIA had also come to the same conclusion and had an opinion from from Clinton-era NLRB appointee to back it up.  

But for now, it appears that the "captive audience" bill is dead in this year’s General Assembly.

The big news in Connecticut this morning has to be the retirement of Senator Chris Dodd and the announcement by Attorney General Richard Blumenthal that he will seek that seat.

This is most definitely NOT a political blog so I’ll leave it to others to figure out the political ramifications.

But what has yet to be explored is the impact that Blumenthal ‘s departure from the AG’s office will have.  Whether a Democrat or Republican fills that seat will certainly determine the scope of that change. But, assume for a moment that a Democrat retains that seat, will it have any impact on employers in the state in the enforcement of labor & employment laws? 

The short answer is that it probably won’t have a direct impact, but indirectly, it’s hard to see of a future Attorney General taking as public a stand on issues as Blumenthal has for nearly twenty years.

So why no direct impact? As a practical matter, enforcement of the state’s labor & employment laws actually resides primarily with the state Department of Labor and the Commission on Human Rights & Opportunities. While the office does get involved from time to time, it is mainly at the request of the state agencies and departments.

The AG’s office does have an "Employment Rights Office" but that unit doesn’t do what you might think it does. Rather, by its own description, it defends the state against discrimination claims:

This department defends state agencies and state officials in employment related litigation and administrative complaints and provides legal advice and guidance to state agencies on employment issues. We are currently defending the state in approximately 160 employment cases in the state and federal courts, as well as a similar number of complaints before the Connecticut Commission on Human Rights and Opportunities and the Equal Employment Opportunities Commission.

But indirectly, Blumenthal’s departure has the potential to change the landscape for employers in Connecticut.  Blumenthal has made no secret of his strong support for labor unions, for example.  Indeed, on several occasions, he has filed "friend of the court" briefs in various cases where he thought the state’s interests were at stake. (For example, his office filed a brief in the recent Pratt & Whitney plant closing dispute.) 

It remains to be seen if the next Attorney General has anywhere near the level of commitment that Blumenthal had to getting involved but even if a Democrat is elected, it will be big shoes to fill. 

Yesterday, I had seen some headlines at first about Attorney General Eric Holder’s comments discussing race, but had simply glossed over them. After all, it was a busy workday and well, was there going to be anything new?

But by late in the day, I received an e-mail from a former law professor of mine.  Listen to it, she implored, because it is a "fantastic" speech. 

Having listened to it, I have to agree; it’s great and the headlines about his "nation of cowards" remark do a disservice to the entire substance of his speech.  He may not have the same oratorical style as our new President, but the content of speech and the issues he discusses (and the manner in which he does so) are compelling.  If you don’t have 10-15 minutes, you can read the transcript but if you have a little time, you can watch the video below. 

The speech is directly relevant to today’s workplaces.  Indeed, Holder (whose background you can find here) is quick to point out that workplaces are doing better than most on addressing the issues of race.  Even still, there are limitations to that progress:

As a nation we have done a pretty good job in melding the races in the workplace. We work with one another, lunch together and, when the event is at the workplace during work hours or shortly thereafter, we socialize with one another fairly well, irrespective of race. And yet even this interaction operates within certain limitations. We know, by "American instinct" and by learned behavior, that certain subjects are off limits and that to explore them risks, at best embarrassment, and, at worst, the questioning of one’s character. And outside the workplace the situation is even more bleak in that there is almost no significant interaction between us. On Saturdays and Sundays America in the year 2009 does not, in some ways, differ significantly from the country that existed some fifty years ago. This is truly sad. Given all that we as a nation went through during the civil rights struggle it is hard for me to accept that the result of those efforts was to create an America that is more prosperous, more positively race conscious and yet is voluntarily socially segregated.

But Holder is not doom and gloom in his speech; rather, he suggests that discussing and learning about "Black History" and treating it simply the history of America, can help bridge the divide:

There is clearly a need at present for a device that focuses the attention of the country on the study of the history of its black citizens. But we must endeavor to integrate black history into our culture and into our curriculums in ways in which it has never occurred before so that the study of black history, and a recognition of the contributions of black Americans, become commonplace. Until that time, Black History Month must remain an important, vital concept. But we have to recognize that until black history is included in the standard curriculum in our schools and becomes a regular part of all our lives, it will be viewed as a novelty, relatively unimportant and not as weighty as so called "real" American history.

Several workplaces around the state take time to recognize Black History Month.  Holder’s comments would suggest that is a worthwhile endeavor, but ultimately, employers can play an important role in educating the workforce on the importance of diversity as well.  (Of course, treating employees fairly and with respect will continue to help build the bonds in the workplace.) If those actions are not taken, mistrust and bad feelings are left to fester and, in this economy, those feelings can gain traction fairly quickly. 

As Holder warns, " An unstudied, not discussed and ultimately misunderstood diversity can become a divisive force."

Employers would do well to consider Holder’s comments and determine if they should do more to emphasize the importance of broad diversity in the workplace and the role that everyone can play in doing so.  Holder’s comments do not serve to blame anyone for how we got to this point in history, but they do serve to provide a guide to where we from here.

A few weeks ago, a report came out blasting the hiring procedures that existed at the Department of Justice in prior years.  Because this is not a political blog, I left it for others to comment on it, such as The Word on Employment Law

But the basic gist of the report was that there were several instances where DOJ staffers improperly included political considerations in the hiring decisions of career staffers.  While there are definitely some political positions at the DOJ, there are also many nonpolitical career positions. 

Of course, for other companies, the issue may be something related — considering age in hiring decisions, or gender, or even physical disabilities.

Earlier today, I had the opportunity to hear from the current United States Attorney General Michael Mukasey directly at the ABA House of Delegates meeting in New York.  What was striking to me was not his comments about the decision not to prosecute the staff people responsible for the faulty hiring decisions, but his comments laying bare the breakdowns in supervision that occurred at the Department.  In essence, supervisors failed to supervise. (The full text of his speech is available here and a cell picture to get a flavor of the scene is attached):

Some people at the Department deviated from that strict standard, and the institution failed to stop them.

I want to stress that last point because there is no denying it: the system failed. The aABA Meeting scene of Mukaseyctive wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system – the institution – failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.

…. I am confident that the supervisors working under me know that they are expected to live up to their titles – to supervise – and that they have primary responsibility to ensure that hiring in their divisions and other units is lawful and is proper. I am also confident that, if problems were to recur and anyone in the Department became aware of them, those people would promptly alert more senior officials in the Department, up to and including me if necessary.

To me, Mukasey’s comments are a prime illustration that no matter what policies or procedures a company (or here, a government agency) has, those policies are worthless without supervisors willing to implement them. 

Don’t believe that this happens within your organization? Take a look at your annual performance review process.  If your organization is like most, the reviews are often-watered down as supervisors fail to do what is needed — supervise.  

When the failure occurs at the Department of Justice, it shows that these types of failures can occur anywhere.  Only through diligence of senior executives and dedicated human resources staff, can these failures be minimized.  Giving supervisors the tools to supervise can help your organization avoid the problems of the type at the Department of Justice.