In yesterday’s post, I talked about the basics of what is and is not “sexual harassment”.

Continuing the theme of going back to the basics, employers in the Constitution State have certain posting and training requirements that must be followed.

These requirements are found in the administrative regulations set up by the CHRO regarding sexual harassment prevention.

I first detailed these in a post WAY back in October 2007 (!) but they remain just as important today as ten years ago.

For posting: All employers who have 3 or more employees must provide notices that say sexual harassment is illegal and address what the remedies are for such harassment.

But here’s a free shortcut: The CHRO has prepared a model poster that complies with the statute and is free to download.  You can do so here. 

It’s a good time to remind employers too that employers should also update their “Discrimination is Illegal” poster also offered by the CHRO.  The poster was updated in October and again, is free to download here.  

For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.

Of course, this does not mean that employers who have less than 50 should NOT provide the training; indeed, offering the training can assist with a defense of a potential sexual harassment training.

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.

The format of the training should be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

The CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Those topics are:

  • (A) Describing all federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply, including, but not limited to, the Connecticut discriminatory employment practices statute (section 46a-60 of the Connecticut General Statutes) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section 2000e, and following sections)
  • (B) Defining sexual harassment as explicitly set forth in subdivision (8) of subsection (a) of section 46a-60 of the Connecticut General Statutes and as distinguished from other forms of illegal harassment prohibited by subsection (a) of section 46a-60 of the Connecticut General Statutes and section 3 of Public Act 91-58;
  • (C) Discussing the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving persons of the same or opposite sex;
  • (D) Describing the remedies available in sexual harassment cases, including, but not limited to, cease and desist orders; hiring, promotion or reinstatement; compensatory damages and back pay;
  • (E) Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
  • (F) Discussing strategies to prevent sexual harassment in the work place.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.

What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should consider following this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training.

Again, it is a wise course of action to follow.

If you haven’t taken a look at your posting and training materials at your company, now is a good time to do so.

With all the focus on sexual harassment in the news lately, one thing missing from most of the coverage is an actual explanation of what is (and is not) “sexual harassment”.  At least according to the law.

Sounds simple right?

Except that it’s not because the prevailing view of sex harassment differs from that found in the law.

But I will try in a few short paragraphs to sum up decades of sexual harassment law.  (Obviously, I can’t but humor me.)

Though the first thing you should know — the federal law on the subject actually doesn’t use the word harassment!

Robin Shea pointed this out a while back in a blog post and I thought it was a good reminder to start with.  It’s a definition built from U.S. Supreme Court cases.

There are two overall types of sex harassment that the courts have determined.

  1. Quid Pro Quo.  Sound smart: Basically this for that.  It’s a demand (express or implied) for sexual favors for either employment benefit (promotion etc.) or to avoid a negative employment action (firing etc.).  Important to this notion is the element of power — that is a supervisor over someone else.
  2. Hostile Work Environment.  The courts have defined this as harassment that is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” In determining whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the central inquiry is whether the conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3).Thus, sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.

    Note the “severe OR pervasive”.  One isolated but severe action can be enough; similarly, smaller actions can be enough if it is rampant throughout a department or company.

But not all sexual conduct in the workplace is illegal.  As the EEOC notes in policy guidance:

Sexual harassment is “unwelcome . . . verbal or physical conduct of a sexual nature . . . .” 29 C.F.R. § 1604.11(a). Because sexual attraction may often play a role in the day-to-day social exchange between employees, “the distinction between invited, uninvited-but-welcome, offensive- but-tolerated, and flatly rejected” sexual advances may well be difficult to discern.  But this distinction is essential because sexual conduct becomes unlawful only when it is unwelcome. The Eleventh Circuit provided a general definition of “unwelcome conduct” in Henson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be unwelcome “in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”

This notion of welcomeness is critical to any determination of sexual harassment in the workplace.

There’s far more to sexual harassment than a mere blog post can provide.  But before we throw around uses of the word in a workplace context, it’s important to understand the legal basis as well.  Some of what has been discussed is far beyond sexual harassment; it’s sexual assault.

On the flip side, an single off-color joke isn’t going to rise to the level of sexual harassment.

And note that the use of the phrase “hostile work environment” is tied to a sexual conduct not a boss who is difficult to work with. . As a state court said in another sexual harassment case recently, “[a]n unfortunate fact of life is that the modern workplace is sometimes a rough and tumble environment, where pettiness, inconsideration and discourtesy reign. . . .”

Connecticut typically follows federal law on the subject but has its own rules too.   For more on the subject, you can see some of my prior blog posts here and here.

Sexual harassment needs to be vanquished from the workplace; understanding exactly what it is (and is not) will help employers spot it and stop it.

With every new law that gets passed, it’s easy to overlook the existing requirements that employers must follow.

After all, if employers are just tracking the new laws down without first nailing down compliance with “older” ones, then they are leaving themselves just as vulnerable to potential claims.

One area that is easy to overlook is sexual harassment prevention, particularly in Connecticut. Indeed, some employers believe that simply adopting a policy is all that is required.

And they would be wrong.

So, it’s time to go back to the basics and make sure you’ve hit the checklist when it comes to sexual harassment prevention in Connecticut.  Here are some things to consider: Continue Reading Back to the Basics on Sexual Harassment Prevention

If you’re wondering if the applicant you’re planning on hiring is a closet Justin Bieber fan or a Russian spy, odds are that a background check won’t uncover that information. 

What is may, uncover, however is whether that applicant has been arrested for say, vomiting on a police officer’s kid at a baseball game .

But what are the rules in Connecticut for background checks?

Continuing a weekly summer series of posts on the basics of various laws, background checks in Connecticut just received some publicity due to legislative action. But here are the basics:

1) For public employers, effective October 1, 2010, new rules go into effect on background checks. Unless certain exceptions apply, prior convictions cannot be inquired into until the applicant is deemed "qualified" for the position. This will typically mean that a job offer has been made. You can see the language of the new law (which updates Conn. Gen. Stat. Sec. 46a-80) here.  This is similar, in many ways, to the private workplace as I will discuss below.

But who is a "public employer"? That is governed by Conn. Gen. Stat. 5-270 which defines it as follows: 

"Employer" means the state of Connecticut, its executive and judicial branches, including, without limitation, any board, department, commission, institution, or agency of such branches or any appropriate unit thereof and any board of trustees of a state-owned or supported college or university and branches thereof, public and quasi-public state corporation, or authority established by state law, or any person or persons designated by the employer to act in its interest in dealing with employees, but shall not include the State Board of Labor Relations or the State Board of Mediation and Arbitration.

2) If you’re not a public employer, then these state rules do not apply. Rather, most employers are then governed by the Fair Credit Reporting Act.  As its core and very broadly, the FCRA imposes three general requirements on a company that seeks to obtain and use a background check (known as a "consumer report") for employment purposes:

  • the company procuring the report must make certain disclosures to, and obtain authorization from, the job applicant;
  • the company must make certain representations to the consumer reporting agency from which the report is procured; and,
  • the company that uses that report for employment purposes must make certain disclosures to the applicant both before and after taking any adverse action against the applicant based on the report.

I’ve discussed these requirements in more detail in a 2007 post here.  The federal government has posted some good resources on this topic as well. Keep in mind that there are other rules that may govern the use of investigative reports, or reports in particular industries. Be sure to seek legal counsel if you’re contemplating the use of such reports in your hiring process. 

If you’re interested in the subject further, the Employee Screen blog does a good job of providing frequent updates in this area. 

Always keep in mind the following, though: background checks aren’t perfect.  And distinctions matter: The last thing you want is to confuse a gun conviction with someone who enjoys getting into watergun fights (see above). 

During the summer last year, I started a weekly series of posts about various "basics" of employment law, with a particular focus on Connecticut.

I had planned to start it again this week on a different topic, but in driving into work this morning after a meeting, I was struck by what I saw and inspired to write this post.

While stopped at an intersection, on the far corner was a group of college-aged kids all dressed in suits in black. It took me a moment to realize that in the otherwise barren sidewalk in the heat of the summer sun, they were carrying a casket. 

It was a surreal scene. In the midst of all the bustle of a busy street, there were 8 people carrying a casket for a friend or relative in solemn fashion.  They were stoic and yet the sadness was easily seen on their faces.

Death and funerals are a way of life, and they become all the more common with each passing year.  They happen with such frequency that it takes a moment like the one above to sometimes wake you from their routine occurrence.

So what are the rules that employers must follow when it comes to bereavement leave?  For the most part, there aren’t any.  You won’t find the topic on Connecticut DOL’s wage and workplace standards pages. 

While FMLA leave is designed to provide leave to care for a family member (particularly in the end stages of life), an immediate death may not qualify and it does not seem to cover attending funerals.  Indeed, do a search for "death" or "funeral" in the Connecticut FMLA regulations and your searches will come up empty.  Thus, employers have crafted their own set of rules. 

In looking back over this blog, I realized I hadn’t covered this much other than in one of my very first posts back in September 2007.  In that piece, I discussed several issues that employers may want to consider. 

  1. Are your bereavement policies are established? If so, are they non-discriminatory?
  2. What practices do you have to help the grieving worker communicate with colleagues? And do you have a employee assistance program that you can refer employees to?
  3. How can you help co-workers express their sympathy, particularly if the loss is actually in the workplace?
  4. How do you help the bereaved employee and his or her supervisor deal with any lingering productivity issues?

None of this is easy.  Usually, for immediate family members, many employers will provide employees two-three days off with pay, and no pay for any additional time, unless employees arrange to use personal days or vacation time. How you define "immediate family member" is up to the particular employer, but make sure that it takes into account the changes that have been made in Connecticut for same-sex marriages.

Connecticut has a proud history of farms. Many, like Lyman Orchards, have been passed down for many generations. (And if you’ve never visited Lyman Orchards, don’t miss out on their Corn Maze and apple orchards for the next several weeks. I visited it recently and highly recommend stopping by.)

For many of these farms, the growing season is short, which is why some of the wage & hour rules for farms are a bit different.  Indeed, overtime rules in Connecticut specifically do not apply to "agricultural" employees.  (Conn. Gen. Stat. Sec. 31-76i(k) is the specific provision if you’re looking for it.)

But what exactly is "agriculture"?

Turns out, it’s probably much broader than you think.  In fact, you have to look elsewhere in the statutes for that definition.  It is found in the very first statute, Conn. Gen. Stat. 1-1(q), which states, in part: 

[T]he words "agriculture" and "farming" shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses, bees, poultry, fur-bearing animals and wildlife, and the raising or harvesting of oysters, clams, mussels, other molluscan shellfish or fish; the operation, management, conservation, improvement or maintenance of a farm and its buildings, tools and equipment, or salvaging timber or cleared land of brush or other debris left by a storm, as an incident to such farming operations; the production or harvesting of maple syrup or maple sugar, or any agricultural commodity, including lumber, as an incident to ordinary farming operations or the harvesting of mushrooms, the hatching of poultry, or the construction, operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for farming purposes; handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market, or to a carrier for transportation to market, or for direct sale any agricultural or horticultural commodity as an incident to ordinary farming operations, or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market or for direct sale.

So, under this broad definition, everyone from horse breeders, to maple sugar houses (you know about places like the Lamothe Sugar House, right?) to those who freeze blueberries from local farms, are exempt from paying workers overtime. 

Thus, whenever agriculture is implicated in your business, be sure to see if the overtime rules actually apply to your workers.

UPDATED 8/27/09

Continuing our weekly series on "The Basics" of different employment laws, this week we’ll look at a great resource set up by the Connecticut Department of Labor that provides employers with useful information about the "basics" of various wage and workplace laws in Connecticut.

This relatively new document (which can be accessed either online or downloaded as a PDF) entitled "A Guide to Wage and Workplace Standards Division and Its Laws", is designed to answer some basic questions for employers on everything from overtime requirements to record-keeping.

The Department of Labor’s Director, Gary Pechie, describes the motivation behind the project in a message:

One of our primary goals has been to deliver our services efficiently and in a timely manner and what better way than through our Website? It provides a wealth of information as well as permitting employers to access our services such as requesting sample deduction forms, keeping records other than at the place of employment, and requesting permission to pay other than weekly by simply e-mailing us.

Notably, the guide contains a "key points" that employers (and employees) should take away from the guide. Many of these points should be familiar to employers; if not, then the guide should quickly be a must-read on how to get into compliance under state law.  The key areas are: 

  • Employers are required to pay non-exempt employees at least the minimum wage.
  • Employers are required to pay non-exempt employees time and one-half their regular rate of pay for hours worked over 40 in a week.
  • Employers are required to maintain true and accurate time records on all non-exempt employees.
  • Discussion of the definition of executive, administrative and professional employees (exempt employees). Salary by itself does not make an employee exempt from minimum wage, overtime, and record-keeping.
  • Requirement to pay wages weekly and/or how to obtain a waiver of this provision.
  • Deductions, other than those permitted by state or federal law, must be on a form approved by the Labor Commissioner.

I applaud the Department’s efforts to try to make this information accessible and understandable to a wide segment of public. 

My only complaint is that it is nearly impossible to find on the Department’s website. It is buried deep in the Wage & Workplace Standards page under a simple "General Information" tab.

Because I know there are several DOL employees who are avid readers of the blog, here’s my open request to them: How about moving this information front and center so EVERYONE can take advantage of this great resource?

[UPDATE 8/27/09 – Kudos to the Department of Labor! They now feature a link to the publication prominently at the top "Wage and Workplace Standards" page. You can still view the document here.]

And for employers, consider yourself warned — Don’t miss out on this free resource put out by the Department. (For another great resource, check out the "cheat sheets" on various employment laws put out by Martk Toth of the excellent Manpower Employment Blawg.)

Continuing our weekly series of basic laws of the workplace, this week will focus on the injuries at the workplace.

In 2008, there were over 67,000 injuries reported at the workplace (with 34 fatalities).  Thus, at some point or another, odds are that one of your employees will get injured.

While there are whole books spent on handling such claims, there are two basic concepts that employers should consider when employees have work-related injuries.

First, all of these type of injuries (with some limited exceptions) are covered by the workers compensation system in Connecticut.  The WCC in Connecticut has a detailed information packet that provides all the necessary forms and information for employers to get refreshed on the topic.

Second, when these injuries occur, the employer should consider three steps: 1) Assist the employee is getting medical treatment; 2) Notify your insurer of the injury and possible claim; and 3) Fill out the "First Report of Injury" to the insurer, which serves as a more official notice of the claim.

Of course, there are always questions that pop up that don’t fit into neat categories. The classic example is an employee who suffers an injury at the company softball game. I suppose the updated example is an office invests in a Nintendo Wii to keep the company morale up and allow people to spend some time during breaks getting in shape.  (Nutmeg Lawyer Adrian Baron takes this one step further; his firm actually bought some Wii games for his staff.) 

Each of these situations will be a little different.  Companies that have risk management departments may be able to address these issues without much outside help, but small to mid-size employers should consider working closely with their insurer to determine the best practices approach to dealing with injuries at the workplace.

And consistent with yesterday’s article, making sure your company has purchased workers’ compensation insurance is critical to avoiding getting ensnared in the government’s crackdown.

Continuing the weekly series of basic (but perhaps not as widely-known) employment laws in Connecticut, this week’s topic focuses on the job application.

Connecticut has an unusual law that prohibits employers from asking about any arrest, criminal charge or conviction that has been erased. 

Conn. Gen. Stat. 31-51i goes one step further too. It requires that certain language be used on the job application form to notify employees of tYour correctional facilitiyhis statute.

If an employer asks information about an applicant’s criminal history (and it should definitely consider doing so), it must list the following in "clear and conspicuous language":

  1. That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a,
  2. That criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and
  3.  That any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

One overlooked portion of the statute is Conn. Gen. Stat. 31-51i(f) which requires that access to the portion of an employment application form which contains information concerning the criminal history record of an applicant or employee be restricted. 

Specifically, it "shall only be available to the members of the personnel department of the company, firm or corporation or, if the company, firm or corporation does not have a personnel department, the person in charge of employment, and to any employee or member of the company, firm or corporation, or an agent of such employee or member, involved in the interviewing of the applicant." 

(Note that some financial institutions are still allowed to look at this information on the applicants, pursuant to an exception to this rule.)

Thus, in the dog days of summer, employers can continue to use this time to make sure that forms like job applications contain the most up-to-date information.

As the dog days of summer now seem firmly entranced over Connecticut, this week’s installment of "The Basics" focuses on minimum wages.  There are lots of exceptions and rules, but the basics are fairly straightforward:

 

Photo courtesy of Library of Congress, circa 1943.