So a few weeks back, I suggested that we were entering into a new era of sexual harassment cases and wondered out loud when the statistics would back up my observations.

We now have our first signs.  Maybe.

In my exclusive continued look at the case statistics from the Connecticut Commission on Human Rights and Opportunities, we can see the first signs of an increase.

But as I’ll explain below, it’s difficult to know if this is a statistical anomaly.

Despite significant drops in most types of discrimination complaints, the number of sexual harassment complaints in Connecticut went up last fiscal year to 145, up from 135 the year before.

As a percentage of overall claims, sex harassment employment claims are just 3 percent of the overall claims filed, up from 2.5 percent the prior year.

But here’s the issue: When you look back at prior fiscal years in 2014 and 2015, the number of sex harassment claims is still below those years.

In other words, is it a trend up? Or overall down? Indeed, the numbers from FY 2012 are comparable to FY 2017’s numbers. Except that as a percentage, there were more sex harassment claims made 5 years ago, then now (3.6% to 3.0).

What else do we see? Well, as expected with an overall drop in cases is an drop in claims of wrongful discharge, refusal to provide reasonable accommodations, terms and conditions, and even demotions.

Remaining constant were claims for failure to promote, termination of employment due to pregnancy, and aiding & abetting discrimination.

When you review the basis for claims filed, we see drops in claims for age (FY 2017 451 vs FY 2016 518), race (551 vs 616), sex (507 vs 532) and physical disability (445 vs 520).

Some other bases hold steady or even slightly increase: ancestry claims (200 vs 188) and mental disability claims (103 vs. 110).

For employers, watch the trends. Will sex harassment claims continue to increase? And will overall claims decline?

There’s more that we can glean from these numbers too. I’ll have more in an upcoming post.

 

 

A lot has been made of the recent district court decision on legal job protections for qualifying medical marijuana patients.

But the decision has another piece that has been overlooked and which may cause employers some heartburn as well.

The “Negligent Infliction of Emotional Distress” cause of action has been on life support for the last decade or so as courts have limited its applicability for claims arising in the workplace.

Indeed, the Connecticut Supreme Court held back in 2002 that a claim for negligent infliction of emotional distress cannot arise from conduct occurring in an ongoing employment relationship, as distinguished from conduct occurring in the termination of employment.

But what should happen to claims by job applicants that allege that rescinded job offers have caused emotional distress?

The recent decision by Judge Meyer allows that claim to continue and denied an employer’s motion to dismiss.

It found that the allegation of the complaint — and specifically, that the employer knew that plaintiff suffered from post-traumatic stress disorder (PTSD) and then waited to rescind her job offer until one day before she was scheduled to begin work (and after she had already left her prior job), was sufficient to establish a possible claim. The allegations of the complaint were that such actions caused plaintiff to experience severe emotional distress, including anxiety, sleeplessness, and loss of appetite.

The Court, in its ruling, analyzed the decisions in Connecticut in the last 15 years and found that “Connecticut courts have not squarely decided whether a rescinded job offer could serve as the basis for a negligent infliction of emotional distress claim”:

The practical,workplace-related reasons … for precluding a claim for negligent infliction of emotional distress on the basis of events occurring in an ongoing employment relationship do not apply in the context of an employer who rescinds a job offer before the prospective employee can begin work. … Because the withdrawal of a job offer is more akin to termination than to conduct occurring in an ongoing employment relationship, it seems consistent … that a claim for negligent infliction of emotional distress could arise from the withdrawal of a job offer.

Although the decision itself shouldn’t necessarily change how employers manage their job offers (or withdrawals of job offers), it is a reminder to treat job applicants with some care.  If an employer does need to withdraw the job offer, it should be done in a way to minimize the harm to the applicant.

The worry, of course, with the court’s decision is that there are going to be cases that allege that the mere withdrawal of the job offer is sufficient to state a claim; the court’s decision doesn’t go that far and it seems that the plaintiff’s allegation of PTSD was a significant factor in allowing the claim to proceed.

But employers who face such claims in the lawsuit should be sure to review the circumstances to see where on the spectrum the particular claim falls.

Connecticut Supreme Court
Connecticut Supreme Court

In a decision that will be officially released next week, the Connecticut Supreme Court has, at last, ruled that punitive damages are not an available remedy for state law employment discrimination claims.

You may recall that I discussed the Appellate Court’s decision that had originally found the same thing back in 2015.  The case, Tomick v. United Parcel Services, has been one I’ve also discussed in other places too.

The decision itself is one for the lawyers to get. The court was more interested in dealing with issues of “statutory construction over which [the court] exercise[s] plenary review.”

So, the court started with the statute itself. It states that a court “may grant a complainant… such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney’s fees and court costs… ”

Notably, the court says that this language could be considered ambiguous, so the court had to dig a little deeper.  Ultimately, the court says that “To construe this language as encompassing punitive damages without expressly stating as much, as the plaintiff advocates, would be inconsistent with our approach to the statutory construction in [a prior case], in which we required, at least as a default rule, express statutory authorization for statutory punitive damages as a form of relief.”

From there, it’s a fairly easy path forward for the court.  It notes that the legislature used the term “punitive damages” in other human rights statutes, so it knew how to craft such language and remedies.  For example, public accommodation discrimination has punitive damages as a possible remedy.

Ultimately, the court says it is not for it to read punitive damages into the statute.

But it suggests one final avenue: The General Assembly.  “Had the legislature intended for § 46a-104 to provide for statutory punitive damages, it could have amended the state statute to reflect the changes to its federal counterpart, and remains free to do so.”

However, given the split in the state senate and other pressing state business, it seems unlikely we’ll see this change for a while.

What does this mean for employers? Well, it means that state law discrimination claims became worth a little less than they used to — though the Appellate Court’s decision had been factored in for a while now.  It doesn’t mean that such claims are dead — but it does mean that employees bringing claims will have one more reason to try to pursue the claim in federal court, than state court.

 

I know. We’re a bit of a broken record here. Another post on the perils on retaliation claims. (I’m resisting adding the “so sue me” joke here.)

But new decisions from the courts keep coming out which give us an opportunity to do refreshers to employers and provide subtle tweaks to the associated wisdom surrounding defense of retaliation claims.

Today, my colleague, Gary Starr returns with recaps of both a Second and Sixth Circuit case and the implications for employers.  

starrFor employers, retaliation is often worse than the original challenged behavior.

But left unanswered in some instances is this question: What does an employee have to do to actually be protected by anti-retaliation laws? While different laws have use different words to protect that who oppose what they believe are unlawful conduct, what is clear is that the employee must take some action.

Certainly an employee who files a complaint with an agency and notice sent by the agency would fall within the statute.  If an employee is then subjected to some adverse action, that may be considered by the courts to be retaliatory.

Similarly, if an employee goes to a manager and provides details about a claim of harassment, discrimination, a paycheck problem, or an unsafe work condition, then any adverse action following that complaint may be considered retaliation.

The tougher problem arises where there is some grumbling or a passing comment. In that case, would the employer understand the comment to have been an assertion of rights protected by a statute?

Still not a good idea
Still not a good idea

In a recent Fair Labor Standards Act case, an employee complained that he had not been paid in several months. His employer responded that he would be paid when the employer felt like it. Then without warning the employer drew a gun and pointed it at the employee, who interpreted the response as the end of the conversation as well as the end of his employment.

The court in Greathouse v. JHS Security Inc. (decided last week at the Second Circuit) had no problem determining that the failure to pay proper wages was a violation of the law, however, whether the comment about not being paid leading the employee to quit in the face of the gun incident, was sufficient to be the basis of a retaliation was the more difficult question. There was no formal complaint to a state or federal agency and no written request to be paid. Even though the FLSA requires the filing of a complaint as a precondition to a retaliation claim, the court determined that a formal filing was not necessary, only notice to the employer.  Consequently, it is then a question of content and context whether the employee let his/her employer know of the problem.

In the Greathouse case, the court found that the employee’s comments were enough.

(Incidentally, we do not advise pointing a gun at your employees in this situation too.)

When it comes to sexual harassment retaliation situations, what does the employee have to do to be protected for having opposed the conduct?

The Sixth Circuit in EEOC v. New Breed Logistics, found that simply telling the supervisor who was doing the harassing to stop it was sufficient. The supervisor would regularly make sexually suggestive comments to a group of women employee who asked him to stop talking dirty to them. On one occasion he rubbed against one of the women under his supervision who immediately told him to stop touching her. He did not stop his verbal barrage, nor did he report it to his manager. The employees also did not raise the problem with other managers or with the human resources department.

When layoffs then were necessary, the supervisor identified the women who had asked him to stop his comments as the persons to be let go. While the persons making the decision were unaware of the harassment and of the objections raised to it, the role of the supervisor in the selection process was sufficient to hold the employer liable for retaliation if the employees had adequately opposed the harassment. The court found that simply telling the harasser to stop was sufficient to be protected. As the employer relied on the word of the harasser to choose the persons for layoff, the employer was liable for retaliation.

These cases tell us that greater scrutiny is needed when making employment decisions. Failing to look at the complaints or what is going on in the area where layoffs are occurring, may land an employer in big trouble. While we all think we can trust supervisors to report problems, it is important to verify that there are no existing problems or complaints that we don’t know.

Ignorance is not bliss; it can come with a hefty price tag.

There are a few words in our language that still have the ability to shock and hurt others.  The N-word is one of them.

(I’ll use it sparingly here but note that courts use the actual language in court opinions too; for courts, accuracy is important.)

Frankly, it’s not a word that pops up in a lot of race discrimination cases in Connecticut any more. (A search of federal court decisions in Connecticut from 2008 revealed just 8 such instances.)

So what happens when an employee alleges that the N-word was used in the workplace?

In the case of Gaston v. Sun Services, a District Court of Connecticut case decided a few weeks ago, the court said that a single use of the word “nigger” in the employee’s presence, along with a single reference to being called “boy” was not enough to establish a hostile work environment.

While “offensive”, the court said that no reasonable juror could find these incidents constituted “pervasive harassment” or resulted in a workplace “permeated with discriminatory intimidation… sufficientlly severe or pervasive to alter the conditions” of Plaintiff’s employment.

In doing so, the court granted the employer’s motion for summary judgment.

The court cited the case of Alfano v. Costello, a 2002 case from the Second Circuit that is also worth reading as a reminder.  In it, the court emphasized that single episodes typically are not enough to show a hostile work environment:

As a general rule, incidents must be more than “episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness.

The court in Alfano made another interesting observation — that “many” supervisors can be difficult to work with.

Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.

So what should employers take away from this line of cases?

Well, for one, the use of the n-word should still be highly unacceptable at work or elsewhere.  To state the obvious, the fact that a court is willing to excuse its usage once should not give employers license to use it or condone it at all.   While an employer may still be able to win a hostile work environment where it is alleged,  employers should still investigate claims that the word is being used and respond appropriately.

Employers should remember that courts will look to how employees are treated in general.  Having a policy prohibiting a hostile work environment and taking steps to ensure that such a policy is being followed in practice, can help defeat a claim — even where one employee is alleged to have use the n-word once or even twice.  Taking prompt remedial action will ensure that those isolated instances don’t become the basis of an actual legitimate claim.

Gaston v Sun Services LLC

Management-side lawyers like myself like to joke that a former employee can sometimes sue any employer for any reason at any time.

It’s not true, of course, but at times it feels like there is no limit to the creativity of lawyers filing claims against employers.

One such tactic was recently rejected by the federal court in Connecticut.

In the complaint, the employee alleges that the employer failed to pay mandatory prevailing wages on public works projects and failed to pay him overtime.  While he alleged a violation of the Fair Labor Standards Act, he also alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA).

CUTPA, as noted by the federal court, is a remedial statute that states that no person shall engage in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

The court in Matysiak v. Spectrum Services Co. (download here) rejected the CUTPA claim here saying that the claims arise from the employer-employee relationship and thus fall outside the scope of the statute.

In the case at bar, allegations that Defendants”repeatedly certif[ied] that prevailing wages were being paid to all employees on public works projects [while they] instead retain[ed] the prevailing wage premiums as profit” could certainly suggest damages to competitors through undercutting, as well as to taxpayers and other individuals, and could conceivably be found to fall within the above-enumerated requirements of the Cigarette Rule. However, Defendants’ alleged practice of misreporting wages in bids for public works projects, which the Court takes as true for the purposes of adjudicating this Partial Motion to Dismiss, did not injure or cause damage to Plaintiff. Rather, Plaintiff’s alleged injury and damages stem from what Plaintiff describes as a lack of proper wage and salary payments, a strictly employment-related matter which underlay any wage misreporting in public works projects bids rather than resulted therefrom. Simply put, then, Defendants’ fraud and misrepresentation as described in the Complaint did not cause or result in Plaintiff’s damages.

For employers facing lawsuits, it is not enough to simply deny the allegations of a lawsuit. Rather, there may be legal reasons why the claims may fail.   Motions to dismiss like the one made in this case are still difficult to prevail on, but where there is legal justification for dismissing them, they still may be worthwhile.

A side note: Following the court’s ruling, the employer has since denied the remaining allegations overall and has filed a counterclaim against the employee. The employer’s claim? That it paid the employee $20,000 in “full and final settlement of his claims”.   The employer, however, alleges that this was merely an “oral contract.”    Employers should continue to get these types of agreements in writing.

As I continue this week to recap some important FLSA decisions this summer by the Second Circuit, the next one will be important in the long run for employers.

Wage and hour claims have been a thorn in employers side for a while now.  (My friend, Molly DiBianca of the always fabulous, Delaware Employment Law Blog, prefers the term “legal extortion” to many FLSA claims).  The Second Circuit has begun to acknowledge this as well in a series of cases it has decided this year — or at least the tension that has developed from such claims.

As the the court recently pointed out, there is a tension between (1) “the frequent difficulty for plaintiffs in such cases to determine, without first having access to the defendant’s records, the particulars of their hours and pay in any given time period” and (2) “the possible use by lawyers representing plaintiffs in such cases of standardized, bare-bones complaints against any number of possible defendants about whom they have little or no evidence of FLSA violations for the purpose of identifying a few of them who might make suitable defendants — which is to say, the ability to engage in “fishing expeditions.”

To help rein in such claims, the Court — through a series of cases culminating earlier this month in Dejesus v. HF Mgmt. Services (download here) is now requiring some basic allegations before allowing FLSA claims to proceed through discovery.

Molly’s blog neatly summarized the conclusion here:

On appeal, the 2d Cir. affirmed the decision of the trial court, finding that the plaintiff had not plausibly alleged that she worked overtime without proper compensation under the FLSA. The court reiterated the standard that it had announced in Lundy v. Catholic Health System of Long Island, decided earlier this year. Specifically, the standard requires a plaintiff to sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.

In Lundy, the court did not go so far as to require that the plaintiff include an approximation of the number of overtime hours sought but it did say that including such an approximation “may help draw a plaintiff’s claim closer to plausibility” and thereby avoid dismissal.

Perhaps the most powerful part of the court’s opinion in Dejesus was the acknowledgment that the information about the plaintiff’s allegations rest squarely with the plaintiff. As the court explained, if an employee has absolutely no recollection whatsoever about the times worked, then he or she should not have pursued a claim in court.

For employers in Connecticut, the case won’t have much day-to-day impact. But for those employers who are litigating such cases, the Second Circuit’s standard may be used to help dismiss some FLSA claims at an early (and cheaper) stage in the case for the employer.

Back in February, I noted that not all U.S. Supreme Court cases are created equal and warned employers not to get too excited about a case that was then being argued in front of the U.S. Supreme Court — Lewis v. City of Chicago.

Yesterday, the Court released its unanimous decision (download here) in that case. It held that a disparate impact employment discrimination charge filed with the EEOC within 300 days of a discriminatory practice’s application – not merely the announcement of its adoption – will be deemed timely.

The court’s key quote is here:

Employers may face new disparate-impact suits for practices they have used regularly for years. Evidence essential to their business-necessity defenses might be unavailable (or in the case of witnesses’ memories, unreliable) by the time the later suits are brought. And affected employees and prospective employees may not even know they have claims if they are unaware the employer is still applying the disputed practice.

(As an aside, the decision was written by Justice Scalia — countering the prevailing wisdom that he always sides with big businesses.)

What does this mean for employers? It theory, it can mean that employers can now face disparate impact lawsuits significantly later than when a policy that first went unchallenged is implemented. 

But it’s hard to get too worked up about this case. Employers who have consistently reviewed the policies and practices will minimize their risks and the incident that gave rise to a claim here — employment testing — just isn’t that prevalent in the private workplace. 

For various recaps, view these posts here, here and here

In other news, the Court also clarified the rules on when attorneys fees may be issued in ERISA cases. 

One occasional feature of this blog is a short post on a law or regulation that is commonly overlooked.

Today’s installment revolves around wage and hour claims in Connecticut.  Suppose that an employee claims that he is entitled to unpaid overtime wages for years because he has been misclassified as an exempt worker. 

How far back is the employee entitled to go for his claim for damages? Or, in other words, what is the statute of limitations on wage & hour claims in Connecticut?

A look at the wage statutes reveals nothing. How can that be? Because you have to go digging somewhere else entirely.   Conn. Gen. Stat. 52-596, entitled "Actions for payment of remuneration of employment" has the rule:

No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the Labor Commissioner of a complaint of failure to pay wages pursuant to the provisions of chapter 558.

In plain English, what does this mean?

Two things. First, claims must be brought within two years after the paydate in which the missing wages are allegedly due. Or, put another way, an employee who claims unpaid wages can only look back over a two-year period for recovery.  Second, the time period can be extended if the employee has filed a claim with the Department of Labor for failure to pay wages.

For employers, this statute should not be overlooked. It can help limit damages in cases of unpaid wages.  And when an employer discovers an issue of unpaid wages, it can determine its potential exposure to this issue by applying this statute of limitations.

 

In recent years, some employers have turned to EPLI (or employment practices liability insurance) to help control their costs. Some find it useful, others do not. But one important part of having the insurance is making sure it applies when you actually have a claim.

A recent federal court case highlights the importance of notifying the insurer of the claims at the Morgue File - public domain credittime they are filed with an administrative agency such as the EEOC or CHRO — not when those charges become a lawsuit.  As a colleague of mine once said, "Just pick up the phone and make the call." 

In American Ctr. for Int’l Labor Solidarity v. Federal Ins. Co., (D.D.C., Oct. 15, 2007), a federal district court held that, where the employer failed to notify the insurance company of the employment discrimination claim when it was filed at the EEOC, the employer cannot recover the costs of settlement an defense from the insurer. 

In doing so, the court concluded that a charge before the U.S. Equal Employment Opportunity Commission constituted a "formal" administrative proceeding requiring notice under the insurance policy. The court reviewed the policy’s definition of a "claim" which was included a "formal administrative or regulatory proceeding commenced by the filing of a notice of charges, formal investigative order, or similar document."

The Background

In American Ctr., the employer (a non-profit) twice received Notices of Charges from the EEOC in August 2002 and November 2002.  While the first charge indicated that no action was required by the employer, the second notice contained a  "perfected" Charge of Discrimination outlining the allegations in greater detail. The EEOC requested that the employer either participate in mediation or submit a position statement. The employer rejected mediation and submitted a position statement instead.  The EEOC ultimately dismissed the charge.

In December 2003, a race discrimination lawsuit against the employer was filed by the employee.
In January 2004, the employer notified the insurer of the lawsuit for the first time. In March 2004, the insurance company declined to cover the claim because of the untimely notice. 

The employer argued that the EEOC proceedings were not "formal" administrative proceedings.  The District Court rejected that argument and reviewed the scope of EEOC administrative proceedings, which includes charges, position statements, evidence, mediation, investigation fact-finding, subpoena powers, settlements and determinations on the merits.  Moreover, statements made by parties at the EEOC can be deemed to be admissions in later court proceedings. 

Ultimately, the court rule that the most "natural reading" of the liability policy was that an EEOC proceeding constituted a "formal administrative proceeding."

What should employers take away from this decision?

  • While each EPLI policy may differ, overall, insurance companies must be notified immediately whenever a charge or notice is received from an administrative agency, such as the EEOC and CHRO.  This should be done even if the employer is unsure the notice constitutes an actual "claim" under their liability policy.   While this case arises out of the District of Columbia, the facts presented in that case are likely to arise in many other jurisdictions, including Connecticut.
  • Employers should also have internal procedures as to how to handle the receipt of such administrative complaints and designate a person who will be responsible for notifying the insurance company and determining how the claim should be processed internally.
  • Lastly, management personnel should be notified that if they receive any notices from any governmental agencies, they should notify the appropriate company-designated personnel for handling the charges.

EEOC and CHRO charges typically have very short time frames for responding (30 days in many cases).  Ignoring them or shielding them from insurance companies will not make them go away and such actions will only compound issues later on.