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On “Survivor”, one of my favorite broadcast TV shows (or, as my YouTube/Netflix watching teens might say — “what’s that?”) the notion of “immunity” plays a central role in the outcome of an episode.

And in a decision released last week by the Connecticut Supreme Court, whether or not to grant immunity again plays a pivotal role for religious employers. In its unanimous decision, the court refused to grant outright immunity to a religious institution from an employment discrimination claim.  The case, Trinity Christian School v. CHRO, can be downloaded here.

For religious institutions, the case serves as reminder that while the employment discrimination laws may be more limited in their impact (more on that in a second), seeking “immunity” from such claims is a step too far for the courts.

In doing so, it’s helpful to note that the U.S. Supreme Court decided earlier this decade that the “ministerial exception” under federal anti-discrimination law only served as an “affirmative defense” against such claims.  That has important implications on the procedural posturing of a case and prevents appeals early on in the case on “jurisdictional grounds”.

Here, the court said that an additional state statute on the subject did not purport to confer on religious institutions immunity from employment discrimination actions.  That statute, § 52-571b (d), was intended to operate as a rule of construction for § 52-571b as a whole rather than a grant of immunity.  The effect of § 52-571b (d) was to retain the determination of the United States Supreme Court that the ministerial exception to employment discrimination laws, which requires secular institutions to defer to the decisions of religious institutions concerning their employment of religious employees, serves as an affirmative defense to an otherwise cognizable employment discrimination claim.

In doing so, the court notes that its prior decision, Dayner v. Archdiocese of Hartford, has now been explicitly overturned by the U.S. Supreme Court’s pronouncement on the subject. “hat decision, of course, was short-lived in light of the United States Supreme Court’s holding in Hosanna-Tabor that the
exception operates as an affirmative defense to an otherwise cognizable employment discrimination claim rather than a jurisdictional bar.”

 

The U.S. Supreme Court this morning in Janus v. AFSCME (download here) reversed 40 years of labor law precedent and concluded that  requiring public employees to pay “agency fees” for labor unions that they don’t want to belong to violates the First Amendment of the U.S. Constitution.

Previously, prior cases have banned forcing public sector employees from joining a union and paying union dues. But a number of states permitted union contracts that required employees to still pay an “agency fee” to cover the costs of collective bargaining.

In its 5-4 decision, the U.S. Supreme Court rejected this — leaving public sector unions, particularly in states like Connecticut, to potentially lose significant funds from employees who say that they want no part of their salary to go towards unions.

Given that this blog covers more employment law than labor law, and focuses more on private-sector than public sector, I’m not going to do a deep-dive today into the case. The SCOTUSBlog is one good resource. 

But my labor law colleagues at my firm have spending the morning looking into this.  Here’s the quick recap posted this morning on the Employment Law Letter blog and the impact to Connecticut public-sector employers.:

The immediate effect of the Court’s decision is that agency fee (or “fair share” fee) provisions in collective bargaining agreements are invalid. The Court specifically states that agency fees and similar payments may not be deducted from an employee’s pay unless the employee has expressly consented to the deduction.

This statement suggests that employers should stop deducting agency fees unless and until an employee has affirmatively consented.

Because Connecticut law requires express employee consent for payroll deductions, Connecticut public sector employees have likely already consented to the deduction of agency fees.

However, public sector employers should be prepared for employees approaching them and requesting that the agency fee deductions be stopped, effectively withdrawing their consent.

Justice Alito’s decision is emphatic in this point and the significant dollars at stake:

We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

Watch my firm’s blog for more details on this critical decision in the public-sector.

Ten years ago today, I wrote about the then-Tenth Anniversary of one of the horrible events that made a lasting impact on Connecticut employers.

I recounted the Connecticut Lottery shootings that happened a decade earlier.

Today, marks 20 years. (The CT Mirror has another perspective here.)

The New York Times report of that event is still chilling in its matter of factness:

Angered about a salary dispute and his failure to win a promotion, a Connecticut Lottery accountant reported promptly to his job this morning, hung up his coat and then methodically stabbed and gunned down four of his bosses, one of whom he chased through a parking lot, before turning the gun on himself.

Since that time, we’ve had other workplace shootings in Connecticut including one even deadlier (Hartford Distributors) and, of course, the massacre in Sandy Hook.

I’m reminded of a post I did early on that was titled: Are there really any lessons to be learned from evil? In it, I suggested the answer was “perhaps” — if only because employers need to keep reviewing their workplace violence policies and keep figuring out ways to spot trouble before it arises.

Just in 2014 alone, there were over 400 workplace homicides nationwide reported to OSHA.

Indeed, it seems the rare case where workplace violence just pops up out of nowhere.

OSHA does have some resources on the subject — but many of them are starting to be dated. 

One of the more useful items was a set of guidelines issued in 2015 targeting healthcare and social service workers.

It calls on employers to develop workplace violence prevention programs from five building blocks:

  1. Management commitment and employee participation;
  2. Worksite analysis;
  3. Hazard prevention and control;
  4. Safety and health training, and
  5. Recordkeeping and program evaluation.

There are far more details in the report than a blog post could recap but for employers looking to reduce the risk of a workplace shooting at their facility, getting started on your own program is as good a place to start as any.

As we remember the victims of the Connecticut Lottery shooting, may we honor their memories to keep bringing change and safety to our workplaces.

By now, you may have read about yesterday’s decision by the Second Circuit Court of Appeals that Title VII bars discrimination on the basis of sexual orientation.

Connecticut is in that federal circuit (along with New York and Vermont).  You can download the decision in Zarda v. Altitude Express, Inc., here. (You’ve been warned though — there are 163 pages to the various opinions!)

The decision talks a lot of “associational discrimination” and other academic theories of proving a case under Title VII; that’s beyond the practical aspects of this blog for employers but practitioners in the area should review the decision as a whole.

So what IS the practical impact on Connecticut employers? 

Not as much as you might first think.

Connecticut state law already bars employers from discriminating on the basis of sexual orientation.

Indeed, last year, I wrote that the debate over whether federal law includes a bar against discrimination on sexual orientation was largely moot because of state law.

Yes, there are some slight differences; for example, Connecticut has an exception for “religious corporations” that I talked about in a prior post in 2014. How would that play out when compared with Title VII’s “ministerial exemption”.

The one change that can occur now is that employees can bring claims of sexual orientation discrimination to federal court instead of just state court.

But whether we will see that is an entirely different question. Historically, employees (and their attorneys) have preferred the looser rules of state court to bring claims of employment discrimination. It’s widely perceived that it is harder for employers to get motions for summary judgment granted in state court when compared with federal court.

This is also not the last we’ve heard about this issue; no doubt an appeal to the U.S. Supreme Court will be coming sooner or later. Until then, employers in Connecticut should be aware now that the prohibitions against sexual orientation are now rooted in both federal and state law.

The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage.

Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months.

Governor’s Bill 5043 sets up the following changes:

  • First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15.
  • Second, the bill would also require all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years.
  • The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religious creed, age, sex, gender identity or expression, marital status, and national origin.
  • The training would also be required to include information about the employer’s policy against harassment, examples of the types of conduct that constitute and do not constitute harassment, strategies to prevent harassment, bystander intervention training and a discussion of “workplace civility” that shall include what is acceptable and expected behavior in the workplace.
  • The bill would require employers of three or more employees to continue to post information regarding all types of harassment and, on an annual basis, to “directly communicate such information and remedies to employees on an annual basis”.

My best guess is that this item of legislation will go through some additional tweaks to satisfy various constituencies, particularly because of the increased costs involved.

For example, expanding the training to all employees would create a massive new industry for training and, as the CBIA has said, a costly mandate as well.

There is more legislation coming down the pike in the employment law area.  This is just one of the items being floated so stay tuned.

Summer feels really far away right now.  It’s just been brutally cold here in the Northeast.

(How cold? Too cold for skiing.  That’s brutal by any stretch.)

But summer WILL eventually come. So we’re told.

So the news late Friday that the U.S. Department of Labor was scrapping the test it had released just a few years ago about interns probably went a bit unnoticed.

At first blush, it might look like a big deal. But, in reality, not so much because the federal courts here (including New York as well) had already adopted the new test that the USDOL announced on Friday.

I’ve covered both before, but the TL;DR version is this: The DOL is going to the “primary benefit” or “primary beneficiary” standard that had been outlined in 2015 by the Second Circuit.

Law360 summarized it pretty well here:

Under the [Second Circuit] test, courts have analyzed the “economic reality” of interns’ relationship with their employer to determine which party is the primary beneficiary of the relationship. The standard has been applied in various cases where courts have ruled that interns in a variety of industries, as the primary beneficiaries of their internships, don’t qualify as employees for FLSA purposes and can’t collectively pursue claims for misclassification and wage violations under that statute.

That said, employers in Connecticut don’t have it easy. As I noted in a prior post as well, Connecticut passed anti-discrimination law protection for interns that uses another test too.  That law better tracked the old DOL interpretation which has now been overturned.   That said, that law does not apply to wage and hour claims, only discrimination claims.

So, what does it mean? Employers have a tricky time structuring internships to meet both federal and state law guidance. The “primary beneficiary” test is going to carry the day in many instances, but employers that often use interns should still consult their legal counsel to see if there are any particular issues that need to be addressed for your company.

flag1

“Joe, in response to all this NFL stuff, we want you to display U.S. flags at your workstation.”

“No.”

“Well, then you’re fired.”

Don’t think that can happen? Then you haven’t heard about the Cotto v. United Technologies Corp. case — a long-forgotten Connecticut Supreme Court case from 20 years ago that has particular meaning in today’s environment where standing for the national anthem has become front page news.

Is this patriotic too?

The basic facts are as I described them above:

  • The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years.
  • In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations.
  • The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag.
  • After a suspension, he was fired by his employer on or about May 16, 1992.

The Supreme Court had two things to say on this. First, the Court held that the employee could raise a claim under a state law that an employee’s free speech claims were being violated. Again, i talked more about this law in a post last month.

But that’s only part of the decision. In the other half of the decision, the Court was asked to decide whether the employee actually had a free speech claim.

The Court reminds us first that not everything is a federal or even state case.  “As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question.”

And then the court reminds us, in language that has direct implications for the discussion we’ve been having about standing for the national anthem, that the Complaint was missing a few essential aspects to rise to that level.

Significantly, the plaintiff has not alleged that:  (1) he was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto;  (2) he was directed to affix the flag to his person or to his private property;  or (3) he was indirectly directed to associate himself with the symbolism of the flag because the location of his workstation was such that members of the public, or his fellow employees, reasonably could have attributed that symbolism to him personally.

Instead, the claim rested on the requirement for the Plaintiff to affix the flag to the workstation. The Court saw no meaningful difference to that act, versus an employer who did it for the employee — which would not violate the First Amendment.

A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs.   Because a flag was to be affixed to  each workstation, and because the plaintiff’s workstation was not exposed to public scrutiny, he was not required to assume the risk that others might attribute to him any political beliefs about the flag that he did not share.   In other words, the direction to the plaintiff, as a matter of law, was not a “coercion of belief.”

Hmmm.

Now, if you’ve been paying attention, you’ve been seeing press reports that the NFL and its teams may require its players to stand at the national anthem.  Let’s suppose that happened in Connecticut too and that a paid employee was fired for refusing.

Given the language in Cotto, could the employee allege that he “was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto” — a fact that was missing in the Cotto case?

That obviously is an unanswered question, but it just goes to show that you can learn a lot through your history.

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements.

After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers.

Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish.

Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did.

And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement.

When I heard this, I scratched my, well, proverbial head about this one.  Did I miss something?

The short answer is no, I didn’t miss something.  Connecticut law doesn’t say this.  You can see for yourself in Conn. Gen. Stat. 46a-60.

But how did the employee get such advice?

The first answer may be the simplest one: The attorney he spoke with doesn’t routinely practice in the area.  Sometimes, well-meaning lawyers just overstep their knowledge basis.

Another obvious answer is that the employee’s so-called advice was from “Attorney” Google.  Google is really good at finding things that might apply to your situation — not as good yet at telling you whether it actually applies to your situation.

And if you Google a topic like this, you might actually find a state court decision that looks — at first blush — like it might be on point.

State courts often use the following language in their decisions:

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.

What does THAT mean?

Typically for the same types of disparate treatment claims for, say, gender discrimination claims, courts in Connecticut don’t have as much as experience as federal law. So where the law is the SAME, it makes sense to look to federal laws that are similar.

The problem in the age discrimination statute context is that Connecticut law is DIFFERENT than federal law at times. There is no state equivalent. So looking to federal law makes no sense whatsoever.  And sure enough a quick search of Google Scholar reveals NO state law case applying that federal law to a review of separation agreements.

So how ARE separation agreements to be reviewed in Connecticut? In essence, you would most likely look at the agreement under state laws dealing with contracts.  Typically, this is also done through the “common law’ – that is precedent from the courts.  And Connecticut courts haven’t said much about separation agreements.

Employers are sometimes caught in the middle of receiving advice from their counsel (hopefully correct) and what the employee believes is true whether through an attorney or otherwise.  Employers should understand the misinformation that exists out there and, when confronted with these issues, try to explain them to employees.

Otherwise, a seemingly innocuous situation could turn much more stressful when the employee thinks (and worse, is being told) that the employer is violating a non-existent state law.

Dome of State House in Hartford, Connecticut

Update: As noted below, the redesigned blog should be up at some point Tuesday, perhaps late – a new post will follow thereafter.  If it’s Tuesday and you’re seeing this blog post and the old design first, it’s coming later in the day. Promise.  

Every good superhero story needs an origin story.  I’m not a superhero but I’ve got a super origin story to tell.

Not a Daredevil

You may have heard it before, but humor me. I’m turning 10.

You see it was ten years ago, in a hotel conference room in where my life changed.

Of course, like lots of such “a-ha” moments that people have, I didn’t realize it at the time.

(Pause here to acknowledge that there are plenty of moments you know are going to be big: kids, marriages, your first iPhone).

I was at the Spring Conference for the American Bar Association Young Lawyers Division in, of all places, Canada.  Montreal, to be specific.

But I woke up early, on a few hours sleep, to hear from this guy, Kevin O’Keefe, who had this company called “LexBlog”.

He talked about how lawyers could set up a law blog. Sounded interesting.

At the time, I kinda thought I was late to the party.  But I had long since wanted to do some type of writing – a remnant from my days as an editor on my college newspaper.

If you had asked me, I probably would’ve said that I just wanted to have my own New York Times op-ed piece.

(Pause here for having to explain to my kids how we used to read The New York Times in paper form etc.)

And so, over the summer months of 2007, I worked with Kevin’s company to design a blog.

What should it be called? Well, lawyers should have a geographic area and a practice area, I heard Kevin say to me.

What do you think about “Connecticut Employment Law Blog”, I asked? Sure, that sounds specific enough.

(Pause here to reflect on names I could’ve used, like “Dan’s Uber Employment Law Blog” or “Snapchatting About Employment Law”.)

And then in September 2007 — ten years ago this month — I was ready to launch.  You can see my first “Welcome” post here.

For the first few years, I used to joke that the blog didn’t make me a better lawyer — only “Google” search results suggested I was by moving this blog to the top of the charts.

(Pause here to say my best party trick is telling people to Google “Connecticut Employment Law”. There’s now something called “EmploymentLawHandbook” that pretends to be number 1 sometimes– someone tell Google.)

But after 10 years, I’m not quite sure that’s accurate anymore. I’ve come to conclude that the blog has improved my life in immeasurable ways, which is why it’s so valuable as a “origin” story.

Here are three things I think about:

  1. I’ve met amazing people through the blog. Readers, fellow lawyer bloggers, special clients, technology people, reporters, and more.  Perhaps I would’ve met a few of them somehow, but the blog has expanded my own horizons. And in turn, I’ve learned a lot more than I ever would’ve though about employment law, the state of the legal profession, and myself.
  2. Writing nearly every day helps shape your own writer’s voice.  You start to hear yourself when you write and, like riding a bike, it just gets easier the more you do it.  That, in turn, has helped my legal writing as well.  I’ve become less afraid to experiment more with my legal writing. To write shorter sentences. To speak directly to the reader. To be direct.
  3. Rather than be “late” to the party, I’ve come to realize that I was early. In fact, when Twitter and Facebook took off, I wasn’t nearly as afraid to use them for professional and personal purposes.  Instead, I realized that they were opportunities to expand my network and learn more from others.

The last time this blog was redesigned was back in 2011.  That is the look you still see today, Monday.

But with some luck and a lot of perseverance (as well as continued help from Lexblog — which has become a partner to me), this blog gets relaunched tomorrow.

What will that look like? What will happen? Stay tuned for tomorrow’s post where I look at where this blog goes forward.

Day One of the new Connecticut Employment Law Blog begins tomorrow. (Probably late in the day, tomorrow if you’re really paying attention.)

Last week I talked about the new state law regarding pregnancy discrimination that is going into effect on October 1, 2017.  In that post, I mentioned a new notice that was required to comply with the law.

Although there is no set form that is required to be used, the Connecticut Department of Labor has created one that is available for employers to use that will comply with the state law.  It is free to download here.  

Because the content is useful, I’m using it down below so that employers can cut and paste it into a handbook or into a notice to be given to employee upon starting work too.  One can quibble with some of the word phrasings that are used, but overall — and stating the obvious — if you use this, you’ll be in compliance according to the state.

Covered Employers

Each employer with more than 3 employees must comply with these anti-discrimination and reasonable accommodation laws related to an employee or job applicant’s pregnancy, childbirth or related conditions, including lactation.

Prohibition of Discrimination

No employer may discriminate against an employee or job applicant because of her pregnancy, childbirth or other related conditions (e.g., breastfeeding or expressing milk at work).

Prohibited discriminatory conduct includes:

  • Terminating employment because of pregnancy, childbirth or related condition
  • Denying reasonable leave of absence for disability due to pregnancy (e.g., doctor prescribed bed rest during 6-8 week recovery period after birth)*
  • Denying disability or leave benefits accrued under plans maintained by the employer
  • Failing to reinstate employee to original job or equivalent position after leave
  • Limiting, segregating or classifying the employee in a way that would deprive her of employment opportunities
  • Discriminating against her in the terms or conditions of employment

    *Note: There is no requirement that the employee be employed for a certain length of time prior to being granted job protected leave of absence under this law.

Reasonable Accommodation

An employer must provide a reasonable accommodation to an Employee or job applicant due to her pregnancy, childbirth or needing to breastfeed or express milk at work.

Reasonable accommodations include, but are not limited to:

  • Being permitted to sit while working
  • More frequent or longer breaks
  • Periodic rest
  • Assistance with manual labor
  • Job restructuring
  • Light duty assignments
  • Modified work schedules
  • Temporary transfers to less strenuous or less hazardous work
  • Time off to recover from childbirth (prescribed by a Doctor, typically 6-8 weeks)
  • Break time and appropriate facilities (not a bathroom) for expressing milk

Denial of Reasonable Accommodation

No employer may discriminate against employee or job applicant by denying a reasonable accommodation due to pregnancy.

Prohibited discriminatory conduct includes:

  • Failing to make reasonable accommodation (and is not an undue hardship)**
  • Denying job opportunities to employee or job applicant because of request for reasonable accommodation
  • Forcing employee or job applicant to accept a reasonable accommodation when she has no known limitation related to pregnancy or the accommodation is not required to perform the essential duties of job
  • Requiring employee to take a leave of absence where a reasonable accommodation could have been made instead
    ** Note: To demonstrate an undue hardship, the employer must show that the accommodation would require a significant difficulty or expense in light of its circumstances.

Prohibition of Retaliation

Employers are prohibited from retaliating against an employee because of a request for reasonable accommodation.

Notice Requirements

Employers must post and provide this notice to all existing employees by January 28,2018; to an existing employee within 10 days after she notifies the employer of her pregnancy or related conditions; and to new employees upon commencing employment.

Complaint Process

CHRO:

Any employee aggrieved by a violation of these statutes may file a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). Complainants have 180 days from the date of the alleged act of discrimination, or from the time that you reasonably became aware of the discrimination, in which to file a complaint. It is illegal for anyone to retaliate against you for filing a complaint. CHRO main number: 860-541-3400 CHRO website: www.ct.gov/chro/site/default.asp CHRO link “How to File a Discrimination Complaint”: http://www.ct.gov/chro/taxonomy/v4_taxonomy.asp? DLN=45570&chroNav=|45570|

DOL:

Additionally, women who are denied the right to breastfeed or express milk at work, or are discriminated or retaliated against for doing so, may also file a complaint with the Connecticut Department of Labor (DOL). DOL phone number: 860-263-6791 DOL complaint form: For English: http://www.ctdol.state.ct.us/wgwkstnd/forms/DOL-80%20fillable.doc For Spanish: http://www.ctdol.state.ct.us/wgwkstnd/forms/DOL-80S%20fillable-Spa.doc