chro99Last week, the Legislative Program Review and Investigations Committee released a 129-page report on the Commission on Human Rights and Opportunities, with a focus on Discrimination Complaint Processing.  You can download it here.

The report is worth a deep dive at another time, and a final report from the Committee is due in January 2017.

Fortunately, for those of us that prefer the “Executive Summary” there is also a key staff findings sheet that recaps the main findings.

Many of these are not a real surprise given my observations and others on the CHRO over this past year.

But still, there are a number of items worth consideration:

  • Additional data collection and reporting are needed — noting that information to fully track performance is lacking in some instances and the CHRO has not fulfilled its reporting requirements in recent years.
  • Budget and staffing resources have generally decreased — noting that investigative staff within regions was at a six-year low as of July 1, 2016.
  • Written policies and procedures are outdated — noting that the manual for processing complaints was developed in the 1990s.
  • The workload of all units processing cases is not fully accounted for in overall performance — noting that the commission’s Legal Division is not required to report in its entire performance.

As a result, staff has listed several recommendations:

  • Address data limitations
  • Begin reporting on the performance of all units for greater accountability
  • Focus on meeting statutory case processing timeframes
  • Develop uniform case processing procedures
  • Make technical changes to the housing statutes to separate out the housing discrimination complaint process from the non-housing process

There are additional recommendations as well.  Overall, the report is another useful tool to help update the CHRO, as I discussed in a post earlier this month.  I’ll try to take a deeper look into the report in an upcoming report, but the report itself is worth a read for those who deal with the agency on a frequent basis.

Thanks to all who came to our Labor & Employment seminar on Thursday. Our biggest crowd yet. In it, we talked about the importance of offer letters.  Marc Herman returns today with a post updating us on a recent Connecticut Supreme Court decision that came out while I was on vacation a while back that makes that point even clearer.  

hermanPicture this: Jill works for you.  You fire her as an at-will employee.  Two weeks later, you receive a letter from Jill claiming that she is owed commission for several sales that she completed prior to her termination.

What should you do?

Let’s look at her offer letter.  That it usually a good starting place.

Blah, blah, blah. . . ah, something about commission.  Let’s see what it says:

Commission is only paid once work has been performed and invoiced to the client.  Upon termination of employment, all commissions cease, except those commissions that have been invoiced to the client.

You look again at Jill’s letter and look-up her recent sales.  You realize that the commission to which she refers relates to sales that had not yet been invoiced to the client when Jill was fired.

You excitedly draft a response to Jill  – “Sorry, Jill – you’re out of luck!” (or words to that effect — your lawyer can probably help with the wording).

Jill sues you.  She argues that you owe her money.  Moreover, she argues that the commission provision is unenforceable as a matter of public policy — “you can’t deprive me of commission that I worked hard for!”

Now what?

Well, in a recent decision, the Connecticut Supreme Court concluded that provisions like the one above may be enforceable — and that employers may not have to pay a commission because of the language used in the offer letter.

In Geysen v. Securitas Security Services USA, Inc. (bearing facts very similar to Jill’s), a former employee argued that such compensation provisions are unenforceable as a matter of public policy and therefore his former employer had violated the law by not paying him commission.

The trial court agreed.

On appeal, the CT Supreme Court issued a thoughtful decision.  It made two main points:

Point One: Parties should have the freedom to make contracts with unfavorable terms.

Point Two:  You cannot draft a contract that simply tries to work-around the law.  They violate public policy — A big no-no.

So what about provisions like the one above?

The easiest answer is that such provisions should pass legal muster.  Sure, it may contain terms that favor the employer, but that’s ok because the parties bargained for it.  Nor is it a work-around the law; the law simply requires that employers pay employees in accordance with any agreement.

After concluding that the provision was enforceable, the Court read it literally: no commission due.  The Plaintiff’s hard work aside, he had previously agreed that no commission would be “due” prior to the client being invoiced.

The Court also agreed with the defendant-employer that the employee’s claim of wrongful discharge (as a matter of public policy) was also without merit.  No violation of public policy and therefore no wrongful discharge.

Note, however: the Court left open the possibility that such practices could amount to a breach of the implied covenant of good faith and fair dealing.  This really concerns the employer’s motive.

For example, an employer’s motive for firing an employee was simply to avoid paying commission, that would be a breach of the implied covenant of good faith.

What’s the lesson here? Agreements with employees are not unenforceable simply because they may seem unfair to the employee.  However, apply caution in drafting agreements that seek to work-around the law.

Freedom of contract is alive and well. . . for now.

I sometimes lament that employers get the short end of the stick when it comes to matters before the Commission on Human Rights and Opportunities.  There’s little doubt, as I’ve said before, that more cases are being retained for investigation.

But what happens after an investigation has concluded that there is “reasonable cause” to believe that discrimination occurred? How do employers fare at a public hearing stage which is supposed to be a “clean slate”?

It’s hard to judge because there aren’t easily identifiable statistics to work from. Instead, you have to piece together a few recent decisions.

In one case this past summer, the employer (the state Judicial Branch) successfully defended itself against a claim of race discrimination. In doing so, the presiding human rights referee found that the evidence was insufficient to support a claim.  (From a legal perspective, there isn’t much to be gleaned from the fact-specific analysis.)

In another case, the employer also successfully defended itself against a claim of age discrimination. The referee found that the evidence of discrimination to be “tenuous, at best”.  The referee said that “While I do not doubt his personal conviction that the failure to hire him was ill advised, for his discrimination claim to be viable the record must either contain evidence sufficient to prove that Respondent harbored and acted with discriminatory animus, intentionally taking Complainant’s age into account in failing to consider him for a…position, or evidence of pretext.”

That burden was not met here.

But in another case, the employer (the state’s Joint Committee on Legislative Management), the presiding human rights referee found that the employer did not provide reasonable accommodations to the employee and discriminated against him on the basis of her disability.  In doing so, the hearing officer awarded over $177,000 in back pay damages and ordered the employer to reinstate the employee.

Unfortunately, there just aren’t many more recent cases published by the CHRO’s hearing office to make a determination.  Employers lately seem to win some and lose some.   Others get settled without a disclosed outcome.

All hope isn’t lost for employers at the CHRO. It just may take a while (and a good amount of attorneys fees) to get there.

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.

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. 

Over the last year or so, I have been hearing on and off about problems that the Connecticut Commission on Human Rights and Opportunities (CHRO) has been having with its computer system. 

Want statistics about how many cases are open or closed? Good luck, I’ve been told.  In fact, the detailed statistics that the CHRO used to provide on their website haven’t been updated in over two years

A recent report on the Tech Crunch column of CT.com highlighted the problems with the agency:

Right now, there’s a persistent glitch with the agency’s central computer system that the state’s technology gurus haven’t been able to fix. And that means CHRO officials can’t tell exactly how well new reforms initiated by Gov. Dannel Mallow are working and how many of those old backlogged cases are being resolved.

The problem involves access to past files on complaints to the agency, which makes it more than a little difficult to tell what is happening with hundreds of old cases.

“We get 1,500 to 2,000 complaints a year,” says CHRO spokesman Jim O’Neill. “And I can’t access them … Now I can’t find out a damn thing.”

The problem is more important than ever because, as noted above, with new reforms having been adopted by the agency, it would be useful to know if those reforms have been working to cut the overall caseload.

But with a computer system on the fritz, your guess is apparently as good as the CHRO’s. 

(The next CHRO meeting is scheduled for June 13, 2012.)

Earlier this week, I wrote about the perception among some that the CHRO has been retaining more cases for investigation by letting more cases through the Merit Assessment Review.  These cases that used to be dismissed — mainly “frivolous” ones as  I’ve collectively termed them — mean more headaches for employers who have to spend time and money defending against them.

(To simplify the blog post for readers, I labelled all these cases that had been dismissed at MAR together as “frivolous” even though there are technically different reasons why the CHRO may dismiss a case on Merit Assessment Review, including that there is “no reasonable possibility” that an investigation will lead to a reasonable cause finding of discrimination. )

In response to my blog post, CHRO Principal Attorney Charles Krich crafted a reply. While it is attached to the original blog post, I thought it notable enough that it warranted its own blog post.   While he indicated that there were no statistics yet available, he “would not be surprised if fewer cases are being dismissed for no reasonable possibility” under the Merit Assessment Review.

Here’s his reply in full (my further comments are below): Continue Reading CHRO Attorney Agrees Emphasis at Agency “Has Shifted From MAR to Mediation”

A new state auditor’s report released this month shows that the CHRO continues to struggle with compliance with statutory timeframes.

The report — which can be downloaded here — shows that from 2007-2009, 56 percent of the cases exceeded the statutory maximum of 370 days.   As the report notes, “the longer it takes to make a determination of cause, or no cause, the longer the complainant must wait for a resolution of his or her complaint.”

The agency, in the report, indicated that the “most direct cause of delays in investigations is the lack of adequate staff”.  New legislation (which I highlighted in this post) should help matters, but the agency still forecasts a considerable backlog.

The report highlights other shortcomings of the agency as well including failure to submit an Affirmative Action report and Contract Compliance report.  In addition, the agency awarded merit increases while not complying with a performance assessment review.  Under the leadership of a prior Executive director “increase were awarded regardless of whether the agency complied with the requirements, therefore there is no disincentive for failing to comply.”  The report also notes that the agency has failed to update investigator’s forms and procedures manual.

Despite the agency’s requests for more staff, CT Mirror reports that new funds aren’t likely in the immediate future.

While several of the issues in the report fall under the prior Executive Director’s watch, the report is yet another indication of an agency still in need of repair.

 

 

Back in February 2009, I talked at length about whether compensatory damages (for things such as emotional distress) was properly awarded in employment discrimination claims that proceeded to a hearing at the CHRO.  I went on to say back then that I believed the agency and the human rights referees at the agency had been overlooking key Supreme Court cases, including a case Bridgeport Hospital v. CHRO.

My law partner even wrote an article about it a year ago also suggesting the same thing.

Yesterday, the appellate court backed us up. At least in a footnote.

The case is Blinkoff v. CHRO (download here), and if you missed it, that would be understandable as it concerns mainly a housing-type complaint that has gone on for nearly 15 years.  But the court, in a footnote, suggests that even if it found in the plaintiff’s favor, compensatory damages may not have been appropriate. At the very least, the court says that in the “nonemployment context”, it was an open question.

In doing so, it suggests that the opposite is true for employment cases. Indeed, it cites to Bridgeport Hospital v. CHRO for the proposition that referees are not empowered to award compensatory damages or attorney’s fees. Here’s the quote in context:

We note … it is an open question whether the referee would have been empowered under the statutory scheme to award monetary damages. Following a finding of discriminatory conduct, the human rights referee must fashion a remedy pursuant to General Statutes § 46a-86. Our Supreme Court, however, ruled in an employment discrimination case that § 46a-86 does not empower the referee to award compensatory damages or attorney’s fees to remedy a violation of § 46a-60, which was the sole statutory basis of the plaintiff’s claim in the case at hand. See Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 97, 653 A.2d 782 (1995). The question of whether Bridgeport Hospital controls in a nonemployment context such as in this case is left for another day.

Will the CHRO continue to pursue this path – and force employers into having to defend themselves against such possible damages? Time will tell, though, if the footnote is any indication, hopefully that path will end promptly.

The dust is still settling on the flurry of activity in the closing hours of the General Assembly last night. It’s going to take a few days to get caught up on all the bills that were passed.  Watch for more updates soon.

Changes are Happening for CHRO

One of the bills that will merit a closer look is House Bill 6595 which amends some of the processes that the Connecticut Commission on Human Rights and Opportunities (CHRO) has been using. You can find the text of the bill here (and as amended by this amendment too).

Among the changes present in the bill:

  • The bill eliminates the “certified mail” requirement in many instances, and allows for e-mail to be used to transmit correspondence and notices. (Welcome to the 21st century, CHRO!)
  • The bill gives the CHRO more time to conduct a merit assessment review if an employer asks for more time to respond to the complaint.
  • The bill provides an internal, automatic review of cases dismissed during the merit assessment review (MAR) process.
  • It also allows a complainant to request a right to sue after his or her complaint has been dismissed at the MAR stage.
  • If a complaint gets through MAR, then the bill sets up a new mandatory mediation conference within 60 days.  Previously, the parties might have to wait months (or longer) before a mediation and investigation occurred.
  • If the mediation does not resolve the situation the case, the CHRO then has the option of requesting early legal intervention.
  • If a request for early legal intervention is made, the bill states that the executive director has 90 days to decide whether the case should be heard further or the complaint dismissed.  The investigator has to then decide whether to adopt the executive director’s recommendations.
  • If a complainant fails to attend a fact-finding conference, the CHRO can also dismiss the complaint, according to the bill.
  • The bill also clarifies how private attorney fees will be awarded.
  • Lastly, the bill changes the time period that a complainant must wait to request a release of jurisdiction from CHRO from 210 to 180 days, allowing complainants who wish to proceed in court to begin the process sooner.

All told the changes seem to streamline the process and allow for opportunities for the CHRO to tackle the claims more quickly.

If signed by the Governor, which is expected, the bill will become effective October 1, 2011.