I had a lot of plans this week to do another deep dive into an employment law issue but then, well, let’s just say life happens.

Among the things? Lots of questions from clients about the new overtime rules.  While everyone has had months to plan, there are definitely a few procrastinators out there.

But this may (and I emphasize and underline MAY) work out to those procrastinator’s advantage.   Reports this week are that a Texas court is considering issuing an injunction that would stop the overtime rule in its tracks.  The court has indicated that it will consider the matter by November 22nd. And moreover, even if it doesn’t issue an injunction on that date, it will consider the entirety of the case by 11:59:59p on November 30th.

While I still think the lawsuit may be a reach, it doesn’t seem as far fetched as it did a few weeks ago. Earlier this week, a similar Texas court issued a permanent injunction prohibiting the implementation of the so-called “Persuader Rule” from the NLRB.  Government overreach seems to be a theme in Texas.

What should this mean for employers? Well, I still think planning is very much in order. But if employers haven’t yet flipped the switch on their plans, they may want to hold out for a few more days to see if this Texas case leads to anything.

Why? Because once you raise an employee’s salary, for example, it’d be very hard to roll it back.

So procrastinators take heart! Maybe, just maybe, your tardiness will pay off.

But I still wouldn’t count on it.

Author’s note: I will be proverbially “going fishing” for a few days, so don’t expect any late breaking posts until after Thanksgiving here.  I’ll be posting a few “From the Archives” posts in the interim.

Throw out the release?
Throw out the release?

Yesterday, I had the opportunity to talk at the Connecticut Legal Conference about employment law issues. My talk focused on free speech rights in the workplace — a topic I’ve covered well in some prior posts here and here, for example.

One of the other topics of our discussion was the Cheeks v. Freeport Pancake House case — a recent case by the Second Circuit discussing wage & hour claim settlements under the Fair Labor Standards Act.

I’ve talked about this issue in prior posts as well but the general takeaway from the discussion yesterday was a renewed emphasis on receiving approval from either a federal court or the U.S. Department of Labor on any wage/hour claim settlements.

In most employment law cases filed in federal court, when a settlement is reached, the parties typically stipulate to the dismissal of the claim under a rule of civil procedure (Rule 41).

In Cheeks, the Second Circuit said that wasn’t good enough due to the unique nature of wage/hour claims and that employees were particularly susceptible to bad settlements:

We conclude that the cases discussed above, read in light of the unique policy considerations underlying the FLSA, place the FLSA within Rule 41’s “applicable federal statute” exception. Thus, Rule 41(a)(1)(A)(ii) stipulated dismissals settling FLSA claims with prejudice require the approval of the district court or the DOL to take effect. Requiring judicial or DOL approval of such settlements is consistent with what both the Supreme Court and our Court have long recognized as the FLSA’s underlying purpose: “to extend the frontiers of social progress by insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work.”

The Court pointed out settlements in other cases which might be troubling.

In [one case], the proposed settlement agreement included (1) “a battery of highly restrictive confidentiality provisions ․ in strong tension with the remedial purposes of the FLSA;” (2) an overbroad release that would “waive practically any possible claim against the defendants, including unknown claims and claims that have no relationship whatsoever to wage-and-hour issues;” and (3) a provision that would set the fee for plaintiff’s attorney at “between 40 and 43.6 percent of the total settlement payment” without adequate documentation to support such a fee award….. In [another case], the district court rejected a proposed FLSA settlement in part because it contained a pledge by plaintiff’s attorney not to “represent any person bringing similar claims against Defendants.” … “Such a provision raises the specter of defendants settling FLSA claims with plaintiffs, perhaps at a premium, in order to avoid a collective action or individual lawsuits from other employees whose rights have been similarly violated.”

Would these apply to claims that were not filed in federal court to begin with? The speakers said the decision left that open a bit but still recommended that parties seek USDOL approval or even file the suit in federal court and seek judicial approval at the same time.

While the court noted that this might be difficult, “the burdens…must be balanced against the FLSA’s primary remedial purpose: to prevent abuses by unscrupulous employers, and remedy the disparate bargaining power between employers and employees.”

Note: These same rules do not apply to settlements under the state wage/hour laws and if you’re not covered by the FLSA, there isn’t much of a need to follow that — at least until the issue is raised in state courts.

But suffice to say that if you get a claim by a current or former employee regarding, say, past overtime wages, be wary of settling the claim without receiving outside approval.

My colleague, Jarad Lucan (who just won a New Leader of the Law award from the Connecticut Law Tribune!) returns today with a post about the protections employees who testify in court may have. 

Lucan_J_WebMost employers (at least those employers that read this blog on a regular basis) know that it is illegal to subject an employee to an adverse employment action, such as termination, because that employee raised a claim of discrimination or was absent from work due to a serious health condition.

But what if your employee is summoned to court to fulfill his or her civic responsibility as a juror or is subpoenaed to provide witness testimony during a criminal proceeding?  Is an employer similar restricted in the actions it takes against an employee for participating in such activities?

The answer is “Yes.”  There are numerous statutes applicable to Connecticut employers providing protections to employees who attend jury duty or appear in court.

  1. Connecticut General Statute §51-247a prohibits an employer from discharging, threatening to discharge, or otherwise coercing an employee for responding to a summons or serving on a jury.  In addition, any employee who serves eight hours of jury duty in any one day must be deemed to have worked a full day’s work and an employer cannot require an employee to work in excess of those eight hours.  Any employee who is discharged in violation of this statute may bring a civil action against his or her employer for up to ten weeks’ wages plus attorneys’ fees.
  2. Connecticut General Statute § 54-85b prohibits, among other things, an employer from discharging, threatening, penalizing, or coercing an employee who obeys a legal subpoena to appear before any court in the state as a witness in any criminal proceeding.

    Further, this statute was amended in 2010 to provide protection to victims of family violence who attend court proceedings and who participate in police investigations related to that crime.   These employees also may not be discriminated against for having a protective order issued on their behalf.

    An employee who is discharged, threatened, penalized or coerced in violation of this statute may bring a civil action for damages and for an order requiring the employee’s reinstatement or otherwise rescinding such action. If the employee prevails, the employee shall be allowed a reasonable attorney’s fee to be fixed by the court.

    Aside from any possible civil liability, employers that violate either statute may be guilty of criminal contempt, and upon conviction, may be required to pay a $500 fine and serve up to thirty days in prison, or both.

  3. Under federal law, 28 U.S.C. § 1875 prohibits employers from discharging or taking any other adverse employment action (threatening to discharge, intimidating, etc.) against a permanent employee because that employee provides jury services in federal court. Employers that violate this statute may be sued for back pay, reinstatement, and attorneys’ fees and may be fined up to $5,000.
  4. Lastly, employees who testify on behalf of another employee in a discrimination claim may also be protected under both federal and state anti-discrimination laws.  Dan reported on the U.S. Supreme Court’s case back in 2011 that discussed what this “zone of interest” may look like.

gavelSo yesterday, I said that while the topic of implicit bias was important to understand, I indicated that it was far from settled in the legal context.

One recent case demonstrates why.

The plaintiffs in an age discrimination case in Pittsburgh attempted to introduce testimony from Dr. Anthony G. Greenwald, who has developed the “Implicit Association Test” or IAT.  The plaintiffs wanted Dr. Greenwald to be able to testify about processes that function outside of conscious awareness.

The judge, however, rejected the testimony in part because Dr. Greenwald did not visit the employer or speak with any current or former empoyees or subject any of those individuals (manager or employees) to his “self-invented IAT”.  Therefore, the court found that there was insufficient facts and data to base his opinion in this case.

The case, Karlo v. Pittsburgh Glass Works, is an important one because it shows that just because someone’s research may be credible, it’s the application of that research to a particular situation that can (and perhaps should) be called into question.

However, the court in Karlo was not persuaded that the research is credible either:

The Court also finds that Dr. Greenwald’s methodology is unreliable, to the extent that the IAT informed his analysis and provided a basis for his opinion that most people experience implicit bias. Although taken more than fourteen million times, Dr. Greenwald cannot establish that his publicly available test was taken by a representative sample of the population—let alone any person or the relevant decision-maker(s) at PGW. Dr. Greenwald also fails to show that the data is not skewed by those who self-select to participate, without any controls in place to, for example, exclude multiple retakes or account for any external factors on the test-taker. Perhaps to compensate for these shortcomings, Dr. Greenwald explains that his test is widely-used by “[m]any social cognition experts as a method in their own research” and that “[t]here exists near unanimous agreement among social psychologists as to the validity of the IAT as a method for implicit measurement of attitudes and stereotypes.” Be that as it may, the IAT still says nothing about those who work(ed) at PGW.

And it’s that last sentence that is critical. It is all fine to conclude that implicit bias may exist in society, but the court was cautious about applying it to the employer in this case.

But lest employees think that it can fix this testimony for use in other discrimination cases, the court said it had serious concerns about that too. (I’ve removed the cites for easier reading).

One final point bears mentioning: the Court doubts that Dr. Greenwald’s testimony regarding implicit bias is even relevant in deciding ADEA disparate impact or disparate treatment claims, which are analytically distinct from each other.  Where, as here, a plaintiff asserts a disparate treatment claim, he or she must “prove that intentional discrimination occurred at th[e] particular [employer], not just that gender stereotyping or intentional discrimination is prevalent in the world.” Moreover, disparate treatment claims require proof of a discriminatory motive, which seems incompatible with a theory in which bias may play an unconscious role in decision-making. In a disparate impact claim, evidence of implicit bias makes even less sense, particularly because a plaintiff need not show motive.  Accordingly, the Court finds that Dr. Greenwald’s opinion does not meet the requirements of Rule 702, and therefore, it will bar his testimony at the trial of this action.

So what does the future hold for implicit bias in legal cases? That remains to be seen. The American Bar Association is putting on a presentation about implicit bias next week if you’d like more information.

For now, employers should continue to be aware of this issue and not dismiss it out of hand simply because the courts have yet to adopt it fully.  Something tells me we are still figuring out where implicit bias fits in the legal analysis of discrimination claims.

Having this blog for nearly eight years, it’s fair to say that I’ve covered quite a few topics. But every once in a while, a never-before-discussed issue makes it way to the forefront. Today is one of those days.

My colleague, Gary Starr, has a post today about a recent Connecticut Appellate Court decision (CHRO v. Echo Hose Ambulance) that analyzed whether a volunteer could be an “employee” under the state’s anti-discrimination laws and how courts are to make that determination. For additional background, the Connecticut Law Tribune has this article. starr

Volunteers are essential in supporting some public services and supplementing the work force of many not-for-profit organizations. But suppose a volunteer has a complaint about how he or she is being treated.

Perhaps that person even believes that he or she is being harassed.

When a volunteer believes he/she has been mistreated,  is he/she protected by the Connecticut Fair Employment Practices Act (FEPA), even though the volunteer is not “employed”?

What other avenues does the person have except to stop volunteering?

Or, put another way, when that person is carrying out important functions related to the mission of the agency and acting under the direct supervision of the leadership of the agency, can claims of discrimination be brought to and be resolved by the CHRO?

A recent appellate court decision, in a case of first-impression in Connecticut, better defined how a person can make a claim that he or she was an “employee”.

In doing so, the court first held that it does not matter whether the agency controls or directs the volunteer’s services or defines the methods or means by which the services are provided.  What matters instead is whether and how the volunteer is remunerated.

Does the volunteer receive job-related benefits and, if so, how great are such benefits?  This means that the volunteer must allege and prove that he/she receives benefits far greater than a thank you commendation and a party celebrating his/her service.

The volunteer must establish that he or she receives such benefits as health insurance, vacation and sick pay, eligibility for a disability pension, group life insurance or other significant remuneration, which are the type of benefits employees are provided. The court said it is not enough to be given training, a uniform, equipment for carrying out an assignment, or even a modest payment.

Simply put, volunteers are volunteers and not employees, unless and until the “employer” provides significant benefits which will make the volunteer look like an employee and therefore will need to be treated like an employee.

When an organization starts providing tangible compensation or benefits to its volunteers in meaningful ways, the person who was willing to help out from “the goodness of her heart” may be transformed into an “employee” under state law and then has an avenue for objecting to discriminatory treatment.

For employers and organizations, the decision provides a notable reminder to review the status of your volunteers to ensure that you haven’t transformed any of them into “employees”.

A case out of the Second Circuit Court of Appeals (of which, Connecticut is part of) addresses an interesting question:

When a jury  finds that sexual harassment has been perpetuated by a single employee, is injunctive (non-monetary) relief required to be issued by the District Court?

The EEOC argued yes and argued that remedies such as preventing the harassing employee from returning to the workplace were appropriate. 

Um, there’s a problem in Aisle 3.

The Second Circuit agreed in part, saying that ordinarily a termination of a lone harasser should be enough. But the court said that given the egrigious facts of this particular case, something more should’ve been done to protect the female employees from potential future harassment.

The case, EEOC v. KarenKim, Inc. (d/b/a Paul’s Big M Grocery), can be downloaded here. 

There’s a lot of facts to the case, but this summary, by the Outten & Golden Employment Law Blog, captures some of the salient points:

KarenKim is a grocery store whose employees largely consist of teenage female employees. The company is owned and managed by Karen Connors. In 2001, she hired Allen Manwaring as the store manager. In 2006, Connors and Manwaring became romantically involved and had a son together.

At trial, a number of current and former employees testified about Manwaring’s sexual harassment of the female employees, which consisted of verbal and physical harassment. Some of his verbal comments included making comments of a sexual nature to employees and compliments about parts of their body. He told one employee that if he was her boyfriend, he would never “let her out of his sheets” and that “if he was 10 years younger, he would be on top of her.” He also physically harassed the women by touching and massaging them in inappropriate ways and on a daily basis. He would brush up against them to deliberately touch their breasts, put his crotch against their buttocks, breath on their necks, hug them, and squeeze their hips.

Oy.

Continue Reading What Remedy Is Appropriate When a Jury Concludes Sexual Harassment Occurred?

Continuing my occasional series of revisiting posts I’ve done over the last (nearly) five years, I look back to one I did during the first month of blogging.

In a post on September 14, 2007, I looked at an online resource often overlooked — the chambers practices of federal judges which is found on the District of Connecticut court website.

I noted that each described the way they handled certain things and that two of the judges went further by describing how they approached an employment discrimination case.  “For employment law practitioners, two of the judge’s chambers practices refer to the judge’s views on discrimination cases and the use or overuse of dispositive motions on such claims.”

As I reviewed those practices again in 2012, another item jumped out at  me this week.  In an era where civil discourse is a seeming lost art, U.S. District Court Judge Stefan Underhill made a specific reference to the importance of civility in his courtroom.  At the very end, the practices state:

At the end of the day, Judge Underhill steps down from the bench and shakes hands with counsel. He finds that this practice promotes civility in the courtroom.

Why should employers care what happens in the courtroom? Because, as much as clients want their lawyers to be bulldogs, the ethical rules and professionalism demand something differently.   I talked about that in a January 2008 post as well.   Indeed, the uncivil attorney risks being viewed as outcast by judges who, like Judge Underhill, expect the attorneys to behave.

If a handshake can promote greater civility, its time to put your hand out and respect the judicial system.

While the legislative session was a relatively quiet one, a few provisions found in a comprehensive domestic violence bill do have some direct implications for employers in Connecticut and create a new leave provision that will require some attention from human resources personnel.  Many employers will be unaffected by the provisions, but those who have employees caught up in family violence will be affected.    

Unlike the Connecticut FMLA and federal FMLA, this bill is much broader because these provisions will apply to all employers with three or more employees.

The full text of H.B. 5497 is available here.  The key provisions are Sections 14 and 15.  Although the bill has yet to be signed by the Governor, such approval is expected.  When signed the provisions become effective October 1, 2010.

First, the bill amends Conn. Gen. Stat. 54-85b which already provided the crime victims or witnesses could take time off to comply with a subpoena or police investigation or otherwise participate in a court proceeding.  

The new law prohibits an employer from terminating, penalizing, threatening, or otherwise coercing an employee with respect to his or her employment because the employee (1) is a family violence victim or (2) attends or participates in a civil court proceeding related to a case in which he or she is a family violence victim. The bill doubles, from 90 to 180 days, the time an employee has to bring a civil action against an employer who takes any of these actions.

Second, the bill requires employers to allow family violence victims to take paid or unpaid leave (including compensatory time, vacation time, personal days, or other time off) during any calendar year in which the leave is reasonably necessary for the following reasons:

  1. seek medical care or counseling for physical or psychological injury or disability,
  2. obtain services from a victim services organization,
  3. relocate due to the family violence, or
  4. participate in any civil or criminal proceeding related to or resulting from such family violence.

The bill allows an employer to limit unpaid leave taken under the bill’s provisions to 12 days per calendar year. However, it specifies that this leave does not affect any other leave provided under state or federal law.

It allows employers to require no more than seven days notice when the need to use leave is foreseeable and notice as soon as practicable when it is not.

The bill requires an employee who takes this leave, on request, to provide the employer with a signed written statement certifying that the leave is for a purpose authorized under the bill.

The bill allows an employer to request from the employee a (1) police or court record related to the family violence or (2) signed written statement that the employee is a victim of family violence from the employee or an agent of a victim services organization, an attorney, an employee of the Judicial Branch’s Office of Victim Services or the Office of the Victim Advocate, licensed medical professional, or other licensed professional from whom the employee has sought assistance with respect to the family violence. The bill requires the employer to keep any written statement or police or court record provided confidential. The employer cannot further disclose the information except as required by law or as necessary to protect the employee’s safety in the workplace, but in these situations the employee must be given notice before the disclosure.

Additionally, the bill specifies that it cannot be construed to require an employer to provide paid leave if (1) the employee is not entitled to paid leave pursuant to the terms and conditions of the employee’s employment or (2) the paid leave exceeds the maximum amount of leave due the employee during any calendar year. However, the bill requires the employer to provide unpaid leave if paid leave is exhausted or not provided.

The bill imposes the same penalty for violations as exists for violations of the laws protecting crime victims. That is, the employee has 180 days from the occurrence to bring a civil action for damages and for an order requiring the employee’s reinstatement or otherwise rescinding such action. If the employee prevails, the employee must be allowed a reasonable attorney’s fee that is fixed by the court.

A comprehensive summary (from which some of these provisions are lifted) of the entire bill is available here.  

What should employers do now? You will certainly need to amend your policies and procedures at some point later this year to address this new law.  How that provision will be crafted remains to be seen, but certain some human resource organizations and law firms may develop some model drafts that will be circulated. Stay current on these developments over the summer.