I’ll confess. I’m excited about today’s post.  It’s hard to find something new to do after nearly 10 years of blogging, but I think today’s post is pretty innovative. Unless you read The New York Times “The Conversation” which we’ve tried to copy emulate here.  Except this post (and hopefully others) will be called “The Dialogue”.  Somehow different, right? 

Today’s post tackles some of the legal issues regarding hiring but does so in a back-and-forth format between a management-side attorney (myself) and an employee-side attorney (Nina Pirrotti).  I’d insert a reference to the letters of Alexander Hamilton and Aaron Burr discussing the issues of the day, but then I remembered that ended in a duel, and it’s not exactly what I was foreseeing here.  I think Nina and I can exchange some thoughts without trying to kill one another. 

Anyways, Nina and I have tried something new below.  Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association and a frequent presenter on employment law topics.   My thanks to her for being brave enough to try this with me.  Let me know what you think. 

The Dialogue Begins

Dan Schwartz: Welcome to the blog and thanks for engaging in this discussion on employment law. I promise that we here at the blog don’t bite and we pay all of our workers (me) minimum wage. (Ok, that’s a lie. I get nothing for writing the blog, but moving on….)

I know we were planning on talking about some developments in the world of hiring and employment law, but I can’t pass up the opportunity to ask you something about the new Trump Administration.  From the perspective of an attorney who typically represents employees, what are one or two things you’re keeping an eye out for?

nina_t_pirrotti1-150x150Nina Pirrotti: Thank you, Dan, for your warm welcome.  We plaintiffs’ employment lawyers have been feeling mighty chilly since November 8th and have been bracing ourselves ever since for even more frigid temps ahead.  Ironically, I felt the impact of Trump’s election virtually immediately.  On November 9th, I flew to Chicago and spoke at the ABA’s annual Labor & Employment conference.   

The topic of the panel on which I spoke revolved around laws which prohibit employer retaliation against employees for discussing their wages.  The laws are designed to protect female employees who are trying to figure out whether they are being paid less than their male counterparts.  

I was all set to talk about the Paycheck Fairness Act which would have expanded the protection provided by those laws and was expected to be one of the first pieces of legislation signed by Hillary Clinton.  As you can imagine, my plane ride there was consumed with a furious re-write of my outline! The next day I flew to Dallas to participate in the semi-annual Executive Board meeting for the National Employment Lawyers’ Association where we also had to nimbly adjust our focus to reflect the new (surreal) reality.  

I did not thaw out after learning that Trump nominated Andy Puzder, CEO of chain restaurants, including Hardees (which, sadly, is the maker of my all -time favorite breakfast biscuit) to head the Department of Labor.  Puzder’s employee track record, which includes opposing overtime and minimum wage laws and underpaying his own workers is abysmal.   

I can only hope that the rumors that he might back out of consideration prove to be true.  I did feel  a glimmer of hope after I learned this week that Trump has tapped EEOC Commissioner Victoria A. Lipnic as Acting Chair of EEOC.  Lipnic, who was nominated by President Obama, has served as EEOC Commissioner since 2010.

I was also mildly heartened by Trump’s expression of (granted, lukewarm) support in his campaign for pay equity laws and paid FMLA leave, both championed by Hillary Clinton and I can only hope that the person who might most positively influence him in that regard (Ivanka) is able to carry the day.

Unfortunately, the Trump administration does seem poised to reverse or suspend the changes to Fair Labor Standards Act’s overtime rules which went into effect on December 1, 2016.  

Of course, the most important event that we plaintiffs’ employment lawyers are waiting for is the announcement of Trump’s Supreme Court nominee who would replace the very conservative Justice Antonin Scalia.  That person may likely cast the deciding vote on cases that impact the rights of workers in a myriad of ways.  Unfortunately for us, the three oldest justices – Ruth Bader Ginsburg Kennedy  and Breyer  – are liberal or moderate and Trump may have more than one bite at that proverbial apple during his (hopefully only) four-year stint. 

Since your excellent blog has national appeal and one or more of these justices might actually read it, I hereby urge all three of them to eat well, exercise moderately and avoid all high risk activities! Continue Reading The Dialogue: Hiring Employees the Right Way (From Different Sides)

So this week, I’ll be speaking at our firm’s semi-annual Labor & Employment Law seminar.  Amazingly, we have reached capacity for this event and are now taking names for a waiting list! Many thanks to all who have signed up.  It should be a lot of fun.

Frequent blog contributor (and, well, a colleague) Chris Engler and I will be talking about the nuts and bolts of the hiring process.  Hiring is, after all, the engine that runs companies.  And making good hiring decisions can yield a ton of benefits in the long run.  Moreover, hiring good employees can help avoid lawsuits from arising too.

So what are we going to talk about? Well, we’re going to look at some of the new laws on hiring.  “Ban the Box” is the latest law to arise — limiting the ability of employers to ask about criminal histories on job applications.  Limits on the use of credit reports is another relatively recent law in the last few years.

After I put together the presentation, though, I came across a really interesting article in the Wall Street Journal about how some companies are using quirky interviews in their hiring process.    In doing so, the companies are striving for “culture fit”.

At Zappos, an online retailer famed for its offbeat office culture and corporate values, veteran employees size up candidates’ ability to blend in—and have veto power over those who miss the mark. The culture experts ask candidates questions that seemingly have little to do with the job, such as “If you were to write your biography, what would the title be?”

Rick Jordan, who leads talent acquisition for the nearly 1,500-person company, says longtime employees sometimes have a “gut feeling” about who is likely to succeed. About 1 in 8 don’t make the cut, he notes. “People who are true fits to the culture and believe what we believe—they’ll do anything for the business.”

But as the article notes, “culture-fit interviews raise concerns among employment experts, who warn that such screenings may be rife with potential for bias. Though these screenings haven’t been at the center of a major employment lawsuit, legal experts are concerned that they could put companies at risk.”

Indeed, there’s already a backlash against such interviews. Facebook, the article notes, “discourages its managers from using culture fit as a criteria in hiring, and calls the term ‘a bias trap,’ according to a spokeswoman.”

Where to from here? Well, employers should continually look at their hiring processes to ensure that the message of fair, non-discriminatory hiring is getting across to those who are making the decisions.

We’ll discuss this and more at the upcoming seminar. If you’re coming, please feel free to introduce yourself to me (during a break!).  See you then.

(P.S. Many thanks to Jon Hyman who alerted me to the hilarious video of President Obama’s “job interview” with Stephen Colbert. Worth a watch.)

In the course of my litigation cases, I’ve had a good-natured argument at times with a few counsel who represent employees about the mindset of employers.  The argument I’ve heard from them is that employers are too cavalier in firing employees and just go about hiring someone else (someone younger, they argue).

headahbBut what I’ve heard from my clients over the years is something different.

Typically, the decision to fire an employee is tough, made only after a series of internal conversations.  Employees with performance issues weigh on the supervisor’s minds — the struggle between trying to help the employee improve while still making sure that the needs of the business get done.

Mostly they get it right. But firing a poor performer doesn’t typically solve the issues for employers. Rather, they then need to find the RIGHT person to fill that position.

Hiring the right person is hard.   Just the process of searching for that person can sometimes feel like the proverbial needle in the haystack.  Online resumes come in by the dozen and business pressures make it difficult for employers to just find the time to parse through the resumes and interview candidates.

The headaches with hiring have only gotten worse over the last decade as well.

New laws have been put in place that place restrictions on what employers can and cannot ask and when they can ask those questions. And further restrictions on things like non-compete agreements in certain professions make hiring the right person all the more important.

For example, “Ban the Box” is now the law in Connecticut. Have you amended your employment applications to address this issue? Restrictions on the use of credit reports were put in a few years ago. Have you revised your process accordingly? And how can you search social media without running afoul of laws that ban “shoulder surfing”?  Do you give employees an “offer letter” that outlines the terms of their employment as Connecticut law requires?

I’ve talked about some of these things in prior posts, but I’m going to expound upon it further at our firm’s upcoming Labor & Employment Law seminar later this month.  You can register for the program here; space is very limited at this point.

Are there other topics related to hiring that you’d like to hear addressed at the seminar or on the blog? Be sure to post a comment so we can incorporate that in our free presentation.

rockRemember “Ban the Box” and the fair chance employment bill from earlier in the session?

Well, it passed last night. Sort of.

An amendment to the original bill essentially wiped the prior version clean.  Thus, whatever you think you knew about the measure you can put that aside.

What passed last night (House Bill 5237) was a very watered-down version of the measure.   It moves on the Governor’s office for signature and will become effective January 1, 2017.

The key provision is as follows:

No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Any violation of this rule is subject to a complaint filed with the Labor Commissioner, but not a lawsuit.

I don’t expect that this will be the end of the issue however. The measure also creates a “fair chance employment task force to study issues” related to employment for individuals with a criminal history.

For now, employers need only amend their employment application to remove the box that asks about “prior arrests, criminal charges, or convictions.”  But nothing prevents a followup form from being requested or prevents these issues from being discussed in the job interview itself.

As the CBIA noted, the revised version that passed is a “wise reworking” that also affirms that businesses may run background checks on candidates if state or federal law prohibits people with criminal backgrounds being hired for a job.

Employers ought to review their existing applications and update them to comply with this new state law by January 1, 2017 (assuming the Governor’s signature, as noted.)

GA2So last week I provided a recap of a few of the labor & employment law bills still being kicked around the legislature.  From talking with a few folks in on the process, here are some other bills to keep an eye on (whether in this original form or as an amendment to an existing bill).

  • House Bill 5367 would reform the unemployment compensation process a bit. It makes several changes to unemployment benefits and eligibility requirements for receiving them by 1) increasing from $15 to $50 the minimum amount of weekly unemployment benefits most claimants can receive; 2) increasing from $600 to $2,000 the minimum amount most claimants must earn during their base period (the first four of the last five calendar quarters) to be eligible for benefits; and, 3) requires most claimants’ benefits to be based on their average quarterly wages during all four quarters of their base period, instead of during their two highest earning quarters.  The reforms would make Connecticut more consistent with neighboring states. The CBIA has supported this bill.
  • House Bill 5237 — the so-called “ban the box” bill — is one I’ve touched on before.  It was recently referred to the Appropriations Committee. It’s being closely watched by business interests and should be a top item for employers to track.
  • House Bill 5591 would create a Connecticut Retirement Security Authority (“authority”) to establish a program for individual retirement accounts (IRAs) for eligible private-sector employees, who are automatically enrolled in the plan unless they opt out.  The bill would apply to all private sector employers that employ at least five people each of whom was paid at least $5,000 in wages in the preceding calendar year.  There is a significant administrative cost however to this bill and in light of the state’s fiscal crisis, it seems unlikely that it will be passed this year.
  • House Bill 5402 is still kicking around too.  It would greatly expand the state’s whistleblower protection laws by expanding protection to employees who (1) make reports to their supervisors or managers (either directly or through a third party) or (2) participate in the employer’s or a public body’s investigation or similar proceeding on request of a supervisor or manager or the public body. Not surprisingly, business interest groups have been opposing this bill because it greatly expands the scope of the protection and would change time deadlines as well.

Many other bills died in committee earlier this month so at least the scope of the potential changes out there is known. How much gets passed this year will depend, at least in part, on how the state can resolve its projected deficits.  Connecticut has been seen, of late, as being anti-business (see, e.g., GE) and the governor has made it clear that he’s not in favor of additional tax hikes on businesses.

So stay tuned!

In various posts, I’ve talked about how there is a slow but increasing trend to encourage employers to “ban the box” when it comes to job applications. That catchy (yet non-descriptive phrase) refers to a checkbox that is often found on job applications that asks applicants if they have any criminal convictions.

The news this week on that issue is that Target is the latest big employer to adopt such a  practice.    This is also in response to the EEOC’s guidance from 2012 strongly encouraging employers to eliminate the practice. 

It’s quite likely that the Connecticut General Assembly will also revisit the issue in the upcoming 2014 legislative session.

For employers, it’s important to note that banning the “box” does not mean that employers shouldn’t consider past convictions at all in determining an employee’s eligibility for employment.  Rather, like many background checks, the employer in those instances will wait until the applicant reaches the interview stage or gets a conditional job offer to ask about those convictions.

Right now though, EEOC guidance notwithstanding, private employers still remain free (mostly) to use those convictions as they see fit in the hiring process.

Public employers have some additional restrictions, so if you’re using criminal convictions to make decisions about who to hire, make sure you understand all of the limitations, which cannot be fully summarized in a single blog post.

Footnote: In an earlier post last July, I criticized the Office of Legislative Research for a report that I thought did not accurately state the status of the law in the area. I’m pleased to report that the OLR has updated their report to better reflect the status and I strongly recommend it as further background on this important subject.