Today marks an important milestone in the development of the Connecticut Employment Law Blog.  It marks the second major redesign of the blog since it was launched 10 years ago (!) this month in 2007.

Back then, the iPhone was just announced and social media was something that a few college kids played around with.  And some of us used a feature called Google Reader to read RSS feeds.

(Don’t believe me? I even wrote a blog post about how to read blog posts on an RSS feed here!)

And the notion of using blogs or specialized websites to get employment law news was still in its infancy.  I would read “George’s Employment Blawg” — now defunct – and sometimes BNA’s Daily Labor Reports, but there wasn’t much else beyond that.

So much as changed in ten years. It was time to design and structure my blog to meet the 2017 world as it stands now.

First, because smartphones are a massive part of every day life, the blog needed to have a “Responsive Design” to make it easy for people to read on their phones. That’s been done now and the shape of this blog reacts to the platform you are reading it.  I don’t understand all the technicalities of it but it’s pretty cool.  Everything should be easier on the iPhone (or Android).

Second, there are now plenty of outlets that now cover breaking news at a national level.  I love reading things like the “Morning Shift” each day because I can get updated news from people who have the time to spend sourcing it and covering it.   So, the goal of the blog going forward is to do less chasing of headlines, particularly at the national level. Indeed, my firm already does a really good collective job reporting on things in online newsletters and alerts. Look for more of that from my firm later in 2017.

So what else does that mean instead? Hopefully more analysis. More insights from an experienced employment law attorney.

I’ve always tried answering the question for employers of “How Is This Important to Employers in Connecticut”. I will continue to have a laser focus on this question by focusing on issues of importance. This doesn’t mean that I won’t share things I learn from time to time that others should know about (the proposed CTFMLA post from earlier this month is a great example of this). But if you’re looking for who the latest appointee to the NLRB is, you should broaden your horizons.

My schedule is such that I just don’t have the physical hours in the day to do so and, if I’m being completely honest, I don’t have the desire to do so either.  I’ve always said I love employment law because at the end of the day this work is about PEOPLE.  And posts that focus on the practical aspects of the law and what can be meaningful to people who work at companies will always carry the day for me.

Third, because of social media and video, there are now more ways than ever to communicate. Watch for more posts using videos and supplemental posts on LinkedIn and Facebook that go beyond the corners of the blog itself.  Expect a Facebook live session or two as well.  The blog will serve as a hub for these adventures but it won’t be the only place to continue to find information.  And if there’s a next thing out there, I’ll probably try it.

Fourth, you should see an increased emphasis on seeking input from outside sources. I’ve loved doing the Dialogue posts with Nina Pirrotti, a well-known Plaintiff’s attorney. And the interviews I’ve done with others are too irregular but are among the more well-read posts.  I’m hoping to do more of these.

Fifth, at the start of the blog, I tried to write nearly every day.  I would share links to articles and other things like that.  Then a few years ago, due to personal circumstances, posts became to several times a week.  Then as I was working with my firm on a re-launch of this blog and we were deciding its fate, the posts dropped even further. I think there was even a week without a post! Gasp. But that’s been resolved and this blog is alive and well.  So look for a big more regularity now that the new blog is in place.

Oh, and there’s the new design you’re seeing — easier to read, easier to search, easier to share, more visual, etc etc.

There are other changes I’ve got planned too, but I think that’s enough talking about myself and the blog for one post.

To those who have been with me since the start — thank you. To those just discovering this blog, I promise this isn’t like coming into the middle of Game of Thrones.  You’ll do just fine jumping in now.  We’ve got a lot of employment law left to discuss.

Day One of the Connecticut Employment Law Blog is ready to go.

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?

The Connecticut Appellate Court released three significant employment law decisions on Monday — one of the busiest days in recent memory for the court.

For employers, the cases are a mixed bag but do provide some useful practice pointers.

City Sheriff Was Not an “Employee” Entitled to Statutory Protection 

In Young v. Bridgeport, the Court ruled that a plaintiff could not proceed with his whistle-blower retaliation claims because he was an independent contractor, and not an employee. Because only “employees” can bring a cause of action under Conn. Gen. Stat. 31-51m and 31-51q (claims for whistle blowing and free speech protection), the court lacked jurisdiction over the claim.

So what was the Plaintiff’s position? He was a City sheriff, elected to hold office for a term of two years, and had held the position for approximately 18 years.  Notably, City sheriffs have no affirmative duties, have no scheduled work hours or office space in a city building, but may serve process on behalf of the city, private entities or even individuals.  This, in the court’s view, was not enough to satisfy the employee-control test outlined by the Court in 2004 in the Nationwide Mutual Ins. Co. v. Allen case.

For employers, it’s another reminder of the importance of clear rules of who is an employee and who is an independent contractor.  It can be the difference between a claim going forward and a claim being dismissed.

Failure to Return Personnel Belongings Promptly May Be Retaliatory

In Eagen v. CHRO, an UConn attorney who specialized in labor & employment law, unsuccessfully appealed a finding that he had retaliated against a former university laboratory animal veterinarian for whistle blowing activities.  For me, the most notable part is that the veterinarian’s name is — get this — “Daniel Schwartz”.  (To be perfectly clear, that is an entirely different Dan Schwartz and has no relation to me.) But of course, there’s more to the case than the name.

It’s an unusual decision.  At the CHRO, a Human Rights Referee awarded Schwartz $5000 in emotional distress damages for the attorney’s actions in failing to return all of Schwartz’ personal belongings following termination.   The court said that failure to return the belongings could be seen as being an “personnel action”, which the court interpreted as the same as an “employment action”.

For employers, this case has some significant implications if the logic is upheld. Typically, the employee’s employment termination will “end” the type of actions that can be viewed by an employer as retaliatory.  But here, the Court suggested that the failure to return personnel belongings could be viewed as retaliation for the actions of the employee and that it may have a chilling effect on other whistle-blowers.

Look to the “Adverse Employment Action” Date to Determine if Employee is “Qualified Individual”

Lastly, but perhaps just as significantly, the Court decided Tomick v. UPS upholding most of a $500K+ verdict against the employer but also sending part of the case back for further consideration.   The case has a long and tortured history and also a complicated background.  Frankly, it’s a mess try to briefly recap in a blog post.

Among the issues the court decided was whether an employer’s request of an employee to take a drug test without reasonable suspicion violates Connecticut’s drug testing statute, regardless of whether the employee actually takes the test.  The Court concluded that the mere fact that the request was made was sufficient to give rise to a claim, at least given the circumstances of the case.

The court also answered a question that has been out there on disability discrimination cases. Someone has to be a “qualified individual” in order to fall within the the state’s disability anti-discrimination laws.  But what is the proper  date for making that determination.  The employer argued that the relevant date is the date of the adverse employment action, not the date when the termination process occurred or began.  The court agreed.  Notably and by contrast, when evaluating a claim of negligent infliction of emotional distress, the relevant inquiry is whether the employer’s conduct was unreasonable during the “termination process.”  On this issue, the Court remanded the case back to the Superior Court for further findings.

The court also examined attorneys’ fees and emotional distress damages and upheld them as well.

For employers, the case emphasizes the need of employers to seek legal counsel the instant an employment situation seems complicated.  The facts of this case show things moving at a rapid pace.  In addition, it’s important for employers to consider the termination process as well; be fair and respectful to avoid possible “emotional distress” claims later on.

If you look carefully, you might have noticed something new in the title of the blog.  It now says the blog is written by Daniel Schwartz of "Pullman & Comley, LLC". 

You might be asking: Who? And why are you telling me this? And most importantly, where are the recent developments in Connecticut employment law that we’ve grown accustomed to?

All those questions will be answered in due course, and I promise the updates will return promptly.  But for one day, I’ll be blogging about my own experiences with employment law  — and it’s a new development. It’s admittedly a bit less "formal" of a post than others so make some popcorn and pull up a seat for a quick story.

The story begins like this: Once upon a time there was this attorney….

And the story ends like this:….and he started a new job. The end.

In the middle, I announce that, effective February 7, 2008, I have relocated my practice to Pullman & Comley LLC in their Hartford, Connecticut office.  In that role, I will continue to service clients in the labor & employment field as well as additional types of commercial and trade secrets litigation.

Of course the story is more complicated than that.  Leaving a firm — or any job for that matter — is always bittersweet.  Saying goodbye to good people is tough.  And no matter how smooth you try to make the transition, someone somewhere will always feel like one more thing needed to be done before you leave.  And then there is always that one person who seems to hint telepathically "Can I go too?" (to which the answer is usually "you’ll be fine").

But tinged with that emotion is always the excitement of something new.  New office, new phone numbers, new people, new equipment, new opportunities. 

It reminds me of that feeling I had when I got behind the wheel of my first car.  The road suddenly seemed wide and possibilities endless.  Sure the road may actually be filled with some potholes along the way, but those obstacles seemed insignificant at least for a while.  And, having the classic U2 song, "Where the Streets Have No Name" playing in the background certainly doesn’t hurt either.

For me, my practice has been — and continues to be — a Connecticut-focused one.  In that way, Pullman & Comley LLC is an terrific fit for clients and contacts.   As a full-service firm, It has an established reputation (nearly 90 years) of practicing law at the highest levels while providing strong client service at reasonable rates for clients big and small.  

Even more important to me, however, is the fact that the Hartford office is close to my family and other nearby connections — no small feat in a state where traffic jams are among the worst in the country.

Very soon, I’ll be posting more about the new job in the About Me section, the Services section and other portions of the blog. 

However, for the next few days, the postings may be a bit sparse. Between a new job, and a quick trip out to LA to receive an award by the American Bar Association for being Finalist, Outstanding Young Lawyer of the Year, there is simply not enough time to do everything.  But the blog will return in full force early next week.

So check back in later on and I promise to exchange some new stories about the labor & employment law developments in Connecticut.  With the blog logging its 20,000th reader today after just a few short months out there (and growing each day), I’m grateful for your support and readership.

And if you too want to remember the days of a new car — put the video for the U2 song on below.