The Dialogue — one of the more popular recurring posts — returns for the third time. Does that mean the third time’s the charm? Or is it three strikes and we’re out? In any event, Nina Pirrotti of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, P.C. returns for this installment where an employee-side and employer-side attorney discuss the issues of the day. Today’s topic discusses the lay of the land when an employee files a complaint against his or her current employer. Well, that and Unicorn Frappuccinos….

unicornsNina Pirrotti: It is that time, once again for the two of us to lock horns, I mean engage in a spirited discussion about, how we both help our clients to navigate thorny issues which arise in the workplace.    One such issue is how to advise our clients when an employee has alleged discrimination while she is still employed with the very employer she is accusing of wrongdoing.  Wow.  I feel a knot forming in my stomach just contemplating it!   

There are many complexities inherent in this scenario at each stage, from how the complaint is initially expressed, to the manner in which it is investigated, to whether the employee who complains should stay or go (or something in the middle like a leave of absence) to various resolution options.  In fact, I feel so strongly that employees and employers often botch one or more facets of this fraught situation  that I proposed it as a subject for a panel at NELA’s annual employment conference this June and I will be speaking on that panel!

I think I will start the ball rolling by saying that my biggest fear is that clients who remain working in a hostile work environment often feel so powerless and outraged by their situation that they are vulnerable to doing everything wrong from making more frequent mistakes to lashing out at supervisors or peers or far worse.   I used to save my admonishments about refraining from such behavior for my less sophisticated clients until it became clear that my C-Suite executive clients were just as likely to partake.   Now, no matter who my clients are, a big part of my counseling session revolves around how they should conduct themselves in the workplace.  If anything, I want them to strive even harder to be consummate professionals, above reproach.   My most common refrain is:  Do not arm your employer with a legitimate justification for terminating you!

There is so much to territory to explore here, Dan, but, could you highlight for me one or more of your biggest concerns when a client comes to you and says one of its employees has alleged discrimination or harassment in the workplace?

Dan Schwartz: Locking horns, eh? Perhaps you’ve had one too many Unicorn Frappuccinos (R.I.P.)  from Starbucks.  Alas, I do tend to agree with you that this is one area where rainbows and happy endings are rare.

When I hear about current employees who bring suit against their employers, I tend to think an apt comparison may be the spouse that files for divorce but the couple still has to live in the same house.  It’s awkward.  Everyone is walking on eggshells.

The fact is that one big concern I have for employers in this situation is to avoid a retaliation claim.  You say you encourage employees to be “above reproach” and I wish that were always the case, but sometimes employers will get these types of claims and they’re in the midst of either terminating or disciplining an employee — what then? If they do so after the claim, they’re opening themselves up to a retaliation claim. And we know how nasty those can be.  (Documentation is critical.)

But if it’s a harassment complaint that the employer gets, it typically becomes a real fire drill — drop everything and begin an investigation. That investigation may or may not need your client’s help, Nina. So what do you do in that situation where an investigation pops up?

Nina: Ok – you got me.  I couldn’t resist looking up the Unicorn Frappuccino on Google after my husband assured me you weren’t making it up.  This is how Starbucks describes it:  “Magical flavors start off sweet and fruity transforming to pleasantly sour. Swirl it to reveal a color-changing spectacle of purple and pink.”    It sounds like a liquid nightmare.  Hmmm could the Unicorn Frappucinno’s “magical flavors” be a metaphor for the very type of employer-employee relationships of which we are speaking?! Continue Reading The Dialogue: Workplace Complaints and Happy Endings As Rare As Unicorn Frappuccinos?

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.

Numbers everywhere
Numbers everywhere

As I noted on Friday, the Connecticut Commission on Human Rights & Opportunities has, at long last, released case statistics for 2014-2015 fiscal year and has updated their statistics for the last several years.

As a result, there are lots of new numbers to pore over and information to be gleaned.

The biggest takeaway? The number of discrimination complaints filed with the agency is up — and up big over the last few years.

For the fiscal year ending June 30, 2015, 2482 complaints were filed state-wide, up from 2172 the year before and up from a low of 1838 just three years ago.

For those playing at home, that translates to a whopping 35% increase in discrimination complaints from FY2012 to FY2015.

Now, not all complaints filed with the CHRO are employment-related. But even those employment discrimination complaints are also up big.  In FY2015, 2017 employment complaints were filed, up from 1817 the year prior and up from 1559 three years ago.

Thus, employment complaints are up 29 percent in the past three years, and up 11 percent in the last year alone.

Given the improving economy and the corresponding drop in claims at the federal level, these state statistics are pretty surprising.

Diving deeper in the numbers, raises more eyebrows.  Where is this increase coming from?

  • Age claims? 503 in 2014 vs. 505 in 2015. Nope.
  • Sexual orientation claims? 62 in 2014 vs. 51 in 2015. A decrease.
  • Sex claims? 544 in 2014 vs. 575 in 2015. A modest increase.
  • Physical disability? 450 in 2014 vs. 484 in 2015. Again a modest increase.

But a few areas stand out:

  • Ancestry? 133 in 2014 vs. 189 in 2015. A huge increase of 42 percent!
  • Color? 409 in 2014 vs. 480 in 2015. Another big increase of over 17 percent.
  • Race? 538 in 2014 vs. 596 in 2015.  An increase of 11 percent, consistent with the overall trend.
  • National origin? 218 in 2014 vs. 258 in 2015.  A corresponding increase of over 18 percent.

Thus, while the statistics can only tell part of the story, it is apparent that claims for race, color, ancestry and national origin all account for a substantial part of the increase.

What does this mean for employers? What else can we glean from the statistics? Why are complaints going up in a relatively good economy?

I’ll tackle these questions and more in upcoming posts.

These are not the interns you are seeking
These are not the interns you are seeking

Believe it or not, harassment against summer interns isn’t directly prohibited under Connecticut law.  (But treating them like employees without paying them is against the law.)

This is not, however, a column about the best ways to harass your interns.  Indeed, regardless of the law, it’s bad in so many ways.  (And the CHRO has taken the position — yet to be tested in courts — that interns are already covered.)

But all that is about to change. Earlier this week, the Connecticut General Assembly passed legislation (Senate Bill 428) that would make it illegal to do so and allow those interns to file claims not only with the Connecticut Commission on Human Rights & Opportunities but ultimately in Superior Court too.

The bill, which awaits the Governor’s signature, would go into effect October 1, 2015 and has several important aspects that employers should be aware of now.  The bill follows a trend in California, New York, and other states to protect interns more explicitly under the law.

So, who IS an intern?

An intern is defined as someone who performs work for an employer for the purpose of training, provided:

  1. the employer is not committed to hire the person performing the work at the conclusion of the training period;
  2. the employer and the person performing the work agree that the person performing the work is not entitled to wages for the work performed; and
  3. the work performed meets five conditions.

Those five conditions are that the work:

  • supplements training given in an educational environment that may enhance the employability of the person;
  • provides experience for the benefit of the person;
  • does not displace any employee of the employer;
  • is performed under the supervision of the employer or an employee of the employer; and
  • provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer; and

If you’ve seen some or most of these factors before, that’s because the U.S. Department of Labor has outlined something similar in its definition of interns.

And what exactly is prohibited?

Well, for most part, the things that are prohibited against employees are prohibited against interns.

For example, the bill prohibits discrimination based on an intern’s race, color, religious creed, age, sex, gender identity or expression, sexual orientation, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness. The bill’s prohibition covers hiring, firing, and advertising internships.

It also prohibits sexual harassment against interns.

The bill also bans an employer from retaliating against an intern for filing a complaint or testifying in a proceeding about a discrimination complaint.

For employers, this new law (when signed by the governor) should lead to a few steps being taken:

1) Amend your policies and procedures to cover interns. That includes your anti-harassment policies.

2) Educate your managers and your interns on what is appropriate in the workplace.  It is particularly important for the interns who may have had little workplace experiences before this.

3) If you have insurance, ask your insurer whether it will cover claims made by interns (who are not, by the way, defined as employees).

4) Consider the risk factors of continuing an internship program.  If these interns can now bring suit against your company, I have no doubt that some companies may say that the risk is too high.

There are still unanswered questions about this. If an unpaid intern gets “fired”, what are his or her damages? There is no back pay so then what? Reinstatement? And if the employer has the right not to hire the person after the training period, then what?

Fortunately, this bill seems to be in search of a problem that doesn’t seem particularly rampant.  In the testimony in support of the bill, not a single example of intern discrimination or harassment was identified, even by the Connecticut Commission on Human Rights & Opportunities.

That said, stay tuned for more as the particulars of this bill get incorporated into everyday practice.

 

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.

Well, so much for a slow legislative session. New proposals keep popping up with changes big and small for employers.

The latest was reported on by the CBIA in a post entitled “Double Trouble for Businesses?” and talks about Senate Bill 106, which you can download here.

The bill purports to protect immigrants, but as noted by the CBIA, a good portion of it is preempted by federal law.  It would create a new class of discrimination and retaliation complaints entitled “unfair immigration-related practice” that would allow employees to file claims for a variety of reasons, including if an employer “contacted” immigration authorities.

But perhaps most concerning relating to these new immigration-related claims is a presumption that an employer has retaliated against an employee if any action occurs within 90 days of the employee “exercising” his or her rights.  That would create a whole new class of retaliation claims far beyond what even the courts have been willing to do.

Despite its label as a immigration-related bill, the proposal would also amend the state’s wage & hour rules to remove “a judge’s discretion to award less than double damages in a civil action to collect unpaid regular and overtime wages.”

The CBIA notes:

What is gained by mandating double damages when a judge already has the power to impose the penalty on truly bad-acting employers?

Could the answer be that it is to make the penalty so harsh that employers would be forced to settle wage disputes every time, even when the employer believes they did nothing wrong?

If the business doesn’t cut its losses and settle, even when in the right, the only other option is to undergo the expense of defending themselves through costly litigation. In other words, even when the employer is right, they lose.

Hard to argue with the CBIA on this point.  Wage & hour complaints have been one of the biggest areas of growth in employment law in the last decade and are outstripping all other class actions.

Again, it seems like a solution in search of a problem. Stay tuned.

 

 

 

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. 

Connecticut’s whistleblowing statute (Conn.Gen. Stat. Sec. 31-51m) protects employees who have made a complaint to a “public body”.

But what exactly is a “public body”? Well, there is a definition but a recent Superior Court case had to look beyond that to determine if a complaint to a special ombudsman would count.

The facts of the case are somewhat unique but can highlight the law of unintended consequences.

In 2003, the Plaitniff filed a federal lawsuit alleging sex discrimination and harassment.  In 2008, the parties settled that case. The settlement agreement called for the appointment of an ombudsman, employed by the town who was charged with investigating the plaintiff’s discrimination, harassment and retaliation claims.

In February 2010, she filed a complaint under the ombudsman protocol highlighted in the settlement agreement.  On February 10, 2010, the ombudsman released a report substantiating the claims of retaliation and finding that the employer “continue[d] to be impacted” by the prior litigation.

From there, the relationship between the employer and the plaintiff continued to deteriorate, at least as referenced in the court’s decision, and in September 2010, she was terminated from her employment as a police officer.

The threshold question for the court was whether the special ombudsman was a “public body” under state statute. The court concluded that it was, relying on the definition of a public body that “any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law” can be one. The court held that the lawsuit in this case met that standard (whether she will ultimately prevail at trial is a different question altogether).

For employers, the case is significant because it suggests that a “public body” can be both broad and created by the parties themselves.  For public employers in particular, caution should be exercised when creating an ombudsman-like program.

The decision also addresses whether Connecticut’s anti-retaliation statute, Conn. Gen. Stat. Sec. 46a-60(a)(4) pre-empts other statutes, such as Connecticut’s whistleblowing statute, under Sec. 31-51m. The court fairly easily dismisses such an argument concluding, in part, that because the legislature knew of the anti-retaliation provisions at the time it enacted the whistleblowing statute, it must have intended both statutes to exist concurrently.

Back in February, I noted that a motion to dismiss in federal court — while still difficult to achieve — still had a pulse.  That’s important for employers because it provides a mechanism for getting rid of frivolous claims early on with lower costs than federal lawsuits typically cost.

A new district court case gives another example of how employers can use a motion to dismiss and illustrates what type of case is ripe for such a motion.

In Davis v. Norwalk Economic Opportunity Now, Inc. (NEON), the plaintiff alleged retaliation. But the extent of her allegations of retaliation consisted of the following:

On or about May 04, 2010, and continuing until August 20, 2010, the Defendant began discriminating against the Plaintiff by harassing her, issuing discipline to her, and eventually discharging her from employment, at least in part, because she opposed a discriminatory practice of the Defendant in harassing a fellow employee on account of the employee’s race (African American) and ancestry (African) in violation of 42 U.S.C. Sec. 2000e(3)(2010).

On its face, it might seem like enough — after all, she cites to a specific statute. But the court said that something more than a conclusory assertion is required; some facts are required too.

Left unstated are crucial facts supporting Ms. Davis’s claim — facts to which someone in Ms. Davis’s position surely must have access.  Whose treatment did Ms. Davis complain about, and when, and to whom? How did NEON respond? In what ways was Ms. Davis herself harassed and disciplined? Was there a connection between Ms. Davis’ complaints and her subsequent treatment? Were the two events close in time? Did they involve the same people?

In so doing, the court provides a roadmap as to what a plaintiff alleging retaliation should claim.  The court went on to add that it was not ruling that “any one of these questions must necessarily be addressed” to survive a motion but the absence of “any such detail” leaves it open to such a motion.

The court also indicated that the “deficiency” is “even more notable given the fact that Ms. Davis is represented by counsel”.  While pro se plaintiffs may be held to less stringent standards, “it necessarily follows that a complaint — such as Ms. Davis’s — drafted by a lawyer must be held to more stringent standards….”  Even so, the court provided the plaintiff with another opportunity to draft a complaint that complied with the rules.

What’s the Takeaway for Employers? In federal court, motions to dismiss should still only be considered a long shot.  But cases like this show that in limited circumstances, it is a shot worth taking.

For anyone who has been following the U.S. Supreme Court’s recent decisions interpreting wage & hour, discrimination and retaliation claims, yesterday’s decision in Kasten v. Saint-Gobain Performance Plastics (download here), can hardly come as a surprise.

Indeed, in a 6-2 decision, the Supreme Court concluded that to "file" a complaint, an employee need only provide an oral complaint of a violation of FLSA to his employer and not a written complaint; once the employee has done so, then the employer is prohibited from retaliating against that employee because of the complaint.

The implications of this case nationally have been well-covered this morning by others, including Jon Hyman over at the Ohio Employer’s Law Blog. He concludes:

This case merely brings the FLSA’s anti-retaliation provision in line with most, if not all, other statutes. Employers simply need to be aware that they take must all complaints seriously, whether communicated verbally or in writing.

The takeaway that is significant for employers, however, is just how difficult oral complaints are to handle. Oral complaints often place employers in the difficult position of having to prove a negative—that is, that the employee did not complain. To combat this problem, employers should consider establishing a protocol that all complaints must be documented, whether by the employee making the complaint or the individual receiving it.

The Employers Handbook blog also has a good summary here. 

But what are the implications for employers in Connecticut?

Notably, Connecticut’s anti-retaliation provision under Conn. Gen. Stat. 46a-60(a)(4) also uses the phrase "filed a complaint", but there is a broader context to that section which, one could argue, makes the Supreme Court’s decision irrelevant.  The statute prohibits employers from retaliating against a person because that person "has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84."

Thus, one could perhaps argue while that the "filing of a complaint" in Connecticut appears to require some action at the CHRO and EEOC (and would not cover oral notice), the phrase "opposed any discriminatory practice" still has to be taken into account.

The anti-retaliation provisions of the state wage and hour laws also should be reviewed by employers, but there too, there may be some issues.

Conn. Gen. Stat. 31-69b states that an employer shall not retaliate against:

any employee because the employee has filed a claim or instituted or caused to be instituted any investigation or proceeding under part III of chapter 557 or this chapter, or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by part III of chapter 557 or this chapter.

Once again, the language is similar to that used under federal law but also has some differences too.  Will a court in Connecticut now interpret it the same way because Connecticut courts are free to look to federal court decisions for guidance on these types of similar statutes? 

Those are the issues that are left unsettled by the U.S. Supreme Court’s decision yesterday.  But the Court’s decision yesterday should put one urban legend to rest: this is not a blindly pro-business court. 

Lastly, take a minute to read Justice Scalia’s amusing dissent.  He takes issue with the whole view of the majority and noted that there still must be an addressee to receive the complaint.  "It presumably does not include a complaint to Judge Judy."