cgaOver the next week or so, I’ll be providing updates on various bills to pass (or fail) at the state general assembly.  They’re coming in fast and furious so patience is the order of the day.

But as we review various bills, there are employment-related aspects in places that you might not think. The first of these is in a human trafficking bill (House Bill 5621).  After passage in the House last month, this bill passed the state Senate last night. It now moves to the Governor’s office for his signature.

Section 5 of the bill sets forth new requirements for hotel (and similar lodging) operators to train and educate their employees.

Specifically, it requires that the employees receive training at the time of hire on the “(1) recognition of potential victims of human trafficking, and (2) activities commonly associated with human trafficking.”

But in addition to training, the hotel operator shall also conduct “ongoing awareness campaigns” for employees on the “activities commonly associated with human trafficking.”

Of course, the legislation is silent as to what exactly are the “activities commonly associated with human trafficking”, though prostitution is obviously mentioned in one aspect of the legislation.  It is unclear how detailed this training and the awareness campaign must be.

Beyond that, on or before October 1, 2017, and annually thereafter, hotel operators must “certify that each employee of any such establishment has received the training prescribed by this section in each employee’s personnel file.”

But again, it does not appear that this training needs to occur yearly — only at the time of hire — and only that the hotel operator certify that the training happened at the time of hire.  So the bill has a gap; current employees do not appear to need to be trained in this. And the employer must only conduct “awareness campaigns” which perhaps can be as simple as an email reminder or inclusion in employee handbooks.

In any event, hotel operators should consider updating their hiring packages to include this aspect and should update their employee handbooks to have a provision in there.

Upon signature from the Governor (which is expected), this provision becomes effective October 1, 2016.

Lastly, I would be remiss if I did not mention the efforts of both the Connecticut Bar and the American Bar Associations on raising awareness and seeking legislation on this important issue.   Members of the CBA testified at the legislature on this bill and its passage last night was an end product of their efforts.

Retired Justice Harper at last night's event
Retired Justice Harper at CBA event

Last night, I had the opportunity to attend the Connecticut Bar Association’s awards dinner — titled, “Celebrate with the Stars”. It was a lovely event filled with accolades for some of the state’s best and brightest in the legal profession and beyond.

Yeah yeah, I can hear some of you say. Just another lawyers’ dinner. Boring.

But hear me out for a second.  What dinners like these remind me of — and should inform you of — is the fact that so many lawyers in the state continue to treat the work we do as a profession — rather than simply a business.

Yeah yeah, I can hear some of you say.  Nothing like lawyers talking about their self-importance. 

And my response is: If that’s what you believe, then as lawyers, we have to do a better job informing you about the system we are all involved with.  It’s just not like Law & Order. (Nor is it like Ally McBeal either, sadly.)

To understand our system, one can start by hearing the words from some of the giants of the Connecticut legal scene, like famed criminal defense lawyer Willie Dow and retired Supreme Court Justice Lubbie Harber, Jr., both of whom received awards last night.

During their remarks, both Dow and Harper talked about the central role that lawyers play in society — not only as people who look out for their clients, but as citizens who also look to the serve the profession, and the public.  Indeed, Dow received the bar association’s “professionalism” award.

When I work with new clients, that dynamic sometimes come into play.

When I was a younger lawyer, I attended a similar bar dinner with a federal judge at the time. He made a statement that has really stuck with me; he reminded the young lawyers that a client may have only one case in the courts, but it is likely that the lawyer will have to come up against the other side’s attorney time and again. He urged the lawyers in the room to never forget that the client’s case is not the lawyer’s case and to treat the case accordingly.  Objecting to an extension of time did not, for example, advance the interests of justice in most instances.

He was not suggesting that we avoid our duty to be a zealous advocate for our client. But he reminded us that our role was larger than that as well.  And he suggested that when you view the other side as a respected opponent (perhaps even when they may not deserve it), it serves the legal system and our system of justice better.

I know there are some who disagree with this approach. These lawyers preferred a scorched earth approach in which they object to everything and agree with nothing.   And, if you’re reading this looking for such a lawyer, you should look elsewhere.

Indeed, the lawyers and judges last night would also take umbrage with that approach. These folks understand that the legal profession deserves something more than that.  Indeed, Dow relayed advice he heard from a jurist as well: A lawyer has two roles — look out for your client and look out for the other attorney.

As an employment lawyer mainly representing companies, one of the things I’m always conscious of is the fact that the employees who sometimes bring suit are real people with families and dreams and aspirations of their own.  They are not villains to be vilified for sport.

Yes, it’s a case and we are brought in to defend our client’s position. But empathy for the other side and respect for the attorney bringing the case also brings, in my view, an enlightened approach where you can better understand the weaknesses in your client’s own position.

While the overwhelming majority of the employers I deal with are simply business people trying to do the right thing under difficult circumstances, they are not infallible either.  Sometimes they make mistakes — whether in not understanding the law or in overreacting to the situation.  Listening to the other side can make everyone better.

So, kudos to all the award recipients last night. You are models to our legal profession and help remind all of us that our work is never done and that we can always strive for excellence.

Instagram_Icon_LargeOn Thursday, February 26th, I’ll be speaking on a panel discussion for the Connecticut Bar Association, Young Lawyers Section discussing the legal considerations of social media.

The topic covers how the evolving world of new social media is constantly churning up interesting legal issues and problems. The panel will present insights on some of the hot issues related to cutting edge social media in a variety of sectors, including employment and law enforcement.

We’ll also talk about cases like the attorney who thought it was a good idea to post pictures of his, ahem, body part online. 

Among the issues we hope to address:

  • The unique legal challenges of new social media applications such as Vine, Snapchat and Instagram
  • Use of social media content in investigations by human resources and police departments
  • Examples of how practicing attorneys have run into legal trouble through their social media activity

I’ve grateful to be joined by author David Lat, who was the founder of the Above the Law blog and Lauri Stevens, of LAwS Communications.  Britt-Marie K. Cole-Johnson of Robinson+Cole will moderate.

It begins at 6p at the Quinnipiac Club in New Haven and the cost is just $10 for members and includes dinner.  A book signing by David Lat starts at 4:30p.

I am happy to sign David’s book as well, but I think I’ll probably stick to tweeting about the event.

Many thanks to my firm, Shipman & Goodwin and Robinson+Cole for sponsoring the program and underwriting a lot of its cost.  It’s not too late to register here.

In the July/August issue of the Connecticut Lawyer magazine, attorney Joseph Blyskal has the first of a two-part article on the state of restrictive covenants in employment agreements in Connecticut.  I’ve talked about this several times before (most recently earlier this summer), but the Connecticut Lawyer article is recommended reading as well (it’s behind a paywall).

It’s worth reviewing a few key points that can be derived from the article.

First, the author concedes that there has been a lack of controlling cases from any of the key appellate courts lately.  He readily admits that the recent cases do nothing to change the “welll-established standards governing enforceability of restrictive covenants in employment agreements.”

And what is that standard? Over 50 years old, it remains a fact-specific inquiry that “requires the actual impact of particular arrangements on competition [to] be examined to determine whether they have a pernicious effect on competition and lack any redeeming virtue.”

The article then goes on to discuss how various cases apply the factors that courts use to decide whether or not restrictions are reasonable.  Employers are fairing in the middle on a cursory review of the cases.  Where the restrictive covenants are in writing and are not overreaching, courts have upheld them, but too often employers try to enforce overbroad provisions or, in one instance, try to create restrictions after-the-fact.

Another takeaway from the article is the observation that claims are also being made lately on a related law: The Connecticut Uniform Trade Secret Act (CUTSA).  The author teases that this will be discussed further in part two, which will be published later this month.

All told, for those interested in the subject, the article provides a good recap of the state of affairs for restrictive covenants.

Collins, left, addresses CBA; Shipman & Goodwin Partner Gabe Jiran, right, moderates.

At Monday’s Connecticut Legal Conference, CHRO Chair Gary Collins spoke for a bit about the developments at the oft-maligned agency since he’s come on board.  (You can follow all the tweets from the conference on Twitter using #ctlegalconf as the hashtag.)While he joked that attendees could just read this blog to find out what was going on, he did highlight a few new developments at the agency that are worth sharing here.

  • First, he noted that Cheryl Sharp, a 21 year veteran of the agency, was just appointed Deputy Executive Director.  Sharp — who received her law degree from UConn Law — is fairly well regarded by both sides of the labor & employment law bar.  She is also credited with starting the Kids Speak and Kids Court outreach programs as well.
  • Next, he noted that Human Rights Referee Ellen Bromley submitted her resignation last month.  No replacement has yet been named.  One look at the public hearing calendar for the agency and its clear that in order to maintain some of the gains made in reducing the backlog, one will have to be named relatively soon.
  • Mr. Collins also noted that the agency is looking to make some tweaks to Public Act 11-237 — the law that made significant changes to how the CHRO processes discrimination complaints.  (For background on that law, see my prior posts starting here.)  He encouraged attorneys and other stakeholders to provide him feedback on how changes in the law can help improve the agency.
  • Notably, he said that the agency is now closing significantly more cases than a year ago.  He indicated that while the agency is still taking in more cases each year than it closes, he hopes that within the next year, that trend will be reversed. He cautioned that he wanted the agency to do so in the right way  — not just closing cases solely to meet certain “numbers” or benchmarks.

While I won’t speak for other attendees, Mr. Collins’ outreach should be welcomed.  He is genuine in his concern to improve the agency.  To that end, here are a few minor suggestions that can be done easily to continue to increase the transparency and visibility of the agency.

The agency still has a lot of work to do to remain relevant and useful.  While opinions about the agency are still down among practitioners anecdotally, with a new Executive Director last fall and Mr. Collins’ as its Chair, the agency is certainly far from out.

The Connecticut Legal Conference on Monday (produced by the Connecticut Bar Association) had several noteworthy programs, including a few on labor & employment law.  In today’s post, I’m going to recap the presentation by David Lopez, the current EEOC General Counsel.   He talked about the Top 10 Developments in EEOC Litigation over the last few years.

Fortunately, most of my tweets do a good job of recapping the event but I want to highlight one aspect.

Of all the cases he cited, not one is from Connecticut.  Why is that? Because of a strong plaintiff’s bar (that is, attorneys who represent employees) and strong state laws as well.

Kudos to the Connecticut Bar Association for this noteworthy speaker and presentation. Very informative.

My colleague, Peter Murphy, was invited to speak at a recent Connecticut Bar Association panel about the Connecticut Commission on Human Rights and Opportunities. Peter is well-versed in the intracacies of the agency and I asked Peter to share his insights from the panel discussion below.

As Dan noted in a recent blog post, I was a panelist at a CBA program entitled “CHRO 101 – From Complaint to Public Hearing.” Other panelists were Judge Henry S. Cohn, Mary Kelly from Livingston Adler Pulda Meiklejohn & Kelly PC, Hartford, and Michele C. Mount, a CHRO Public Hearing Referee.

The turnout was great, and the panel provided discussed each stage of the complaint-handling process at the CHRO. Although impossible to summarize every topic discussed by the panel that night, there are several topics that merit discussion in this blog post.

What should be included in the complaint was, appropriately, the first topic of discussion. Plaintiffs have wide latitude here, both in regard what facts and what protected categories to include in the complaint.

The CHRO recently added a fillable complaint form to its website, which lists all potential protected categories and lets plaintiffs decide how many to check. The attorneys on the panel agreed, however, that including too many protected categories or too many facts (especially untimely ones) can be a disservice to Plaintiffs.

Attendees also heard about a similar concern facing employers, who need to provide a well-written, informative answer to the complaint, yet who has to balance that need against the numerous reasons for limiting information presented at that early stage of the proceedings. Experienced employment lawyers can counsel both plaintiffs and employers on these decisions under the facts and circumstances of each particular case.

Another topic of discussion was the still relatively new program called Early Legal Intervention. At this time, there still does not appear a consensus as to why cases are referred to Early Legal Intervention by the Commission itself, how beneficial it has been to a party that has requested it, or what decisions are being issued by the Legal Division in such cases.

It appears that this is one area where additional information and guidance is needed from the CHRO.

Finally, there was an interesting discussion as to merits of proceeding to a public hearing or pulling the case and going to court before a reasonable cause determination–yet another decision that plaintiffs control.

This decision is important for a number of reasons. One such reason is the evidentiary rules applicable to public hearings, which attendees learned are substantially more relaxed than the Rules of Evidence applicable to court proceedings. Indeed, Hearing Officer Mount cautioned the attendees against filing motions in limine and against objecting to broad classes of evidence, noting that such motions are routinely denied at the Public Hearing stage.

 I thank Peter for sharing his thoughts from the panel presentation.

Next week, one of my colleagues, Peter Murphy will be at the Connecticut Bar Association to present a program entitled “CHRO 101 – From Complaint to Public Hearing”.   Full details are available at the CBA website.

The program includes a discussion of

  • The Complaint Process, MAR (Merit Assessment Review), and Mandatory Mediation,
  • Responding to the Complaint and Fact-finding,
  • Reasonable Cause and Public Hearings, and
  • Considerations for Appeal to the Superior Court

It promises to be an informative session.   In addition to Peter will be The Honorable Henry S. Cohn, Connecticut Superior Court, Judicial District of New Britain, New Britain, Mary Kelly from Livingston Adler Pulda Meiklejohn & Kelly PC, Hartford, and Michele C. Mount, Referee, Commission on Human Rights and Opportunities.

From my perspective, I’d add three observations.

First, the CHRO moves slow. Very slow.  While there has been a sincere effort now to close and move cases faster, old habits die hard.  Employers who expect things to happen quickly at the CHRO will be sorely disappointed.

Second, there is still a good deal of inconsistency between the regions of the CHRO.  In addition, each investigator has his or her own style and quirks.  As a result, for employers that are unfamiliar with the process it is crucial to talk with counsel about what you can expect with a particular investigator or in a specific CHRO office.

Third, the CHRO remains permissive of lousy discrimination claims. What do I mean? The system does not do a good job of getting claims that have no or very little legal merit to them out of the system.  As a result, employers are often times forced to spend thousands of dollars to defend itself at the administrative level. Worse, they may feel pressure to settle those claims for “nuisance” value even though the claims ought to be readily dismissed, just to avoid future costs.

Of course, there is new leadership at the helm so it’s also fair to say that employers should not expect the agency to remain static. Changes are continuing to be made so its important for employers to stay vigilent.

Having talked with Peter, there are lots of other little tips that you can expect at the presentation.  So it promises to be a worthwhile program to attend.

The CBA has another Labor & Employment Law program scheduled for next week as well at the Farms Country Club in Wallingford. Full details on that program are also available on the CHRO website. 

This afternoon, I’ll be speaking to the Connecticut Bar Association’s Annual Meeting on a topic that is familiar to blog readers: The Intersection of Employment Law and Social Media.

If you’re attending, please stop by to say hi.

There are a few resources that I’ll discuss in the presentation that I would recommend here:

And for more posts on this blog about the topic, you can view the tag “social media”.

I look forward to seeing fellow lawyers at today’s event.

 

Following up on her post last week recapping part of the Connecticut Bar Association’s Annual Meeting on labor laws, Guest Poster Rita Trivedi is back with highlights from administrative law and employment law portions of the presentation.

Again, my sincere thanks to her for this insightful post. I hope you all find it as interesting as I do.

In my last guest post, I highlighted some of the labor law developments discussed at the Connecticut Bar Association’s Annual Meeting on June 11. But administrative and employment law was certainly not neglected: attendees heard from representatives at the state Department of Labor and the Commission on Human Rights and Opportunities, giving practitioners a peek into issues to watch in the coming months. Highlights below….

The state FMLA should be an active topic in the coming year: