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

Employment law lawyers are asked to review a lot of employment decisions.

If we’re lucky, we’re brought in early in the process when the decision isn’t yet final and where our input can be useful.

Other times though, we’re asked to opine on decisions after the fact.

And truth is, it’s really pretty easy to

monkeyIn yesterday’s post, I talked about some of the reasons why an employee’s lawsuit against his or her employer was destined for failure.

But employers, I’m afraid you’re not off the hook that easily. This post is for any employer that just got sued or threatened with suit.

Maybe that lawsuit isn’t so frivolous after all.

Wait a second! You said yesterday that ‘Odds are, you probably weren’t discriminated against’!”  

Ah, but isn’t that rub? Odds. Statistics.  Yes, some (many?) lawsuits brought by employees are losing propositions. But some are not.

Here are some things I tell clients or prospective clients when I see a lawsuit filed or threatened as to why they should take the lawsuit seriously.

1. That frivolous lawsuit is still going to cost you thousands (if not tens of thousands) to defend.  But I thought you said this post was about non-frivolous lawsuits?  True. But for my first point, that’s beside the point entirely.  Whether a lawsuit is frivolous or not, the system of justice through our courts and administrative agencies moves slowly and with some cautiousness.  Even the frivolous ones need to be defended.  Court filings need to be, well, filed.  And court conferences need to be attended.  So your first point always is to recognize that all employment law cases have a cost associated with them.

And as such, all cases have what we call a “nuisance” value as well.  That is — you are going to spend X amount of dollars defending the lawsuit.  It may be cheaper to just pay a certain amount to avoid the cost of defense.  Now, there are business reasons why you won’t want to do so in all or even many cases, but the employer who fails to recognize the nuisance value of the case is destined to be disappointed in the long run.

It’s a bit of hyperbole to say that any person can sue anyone at any time for any reason. But not that much.  Lawsuits are a part of doing business.  Frivolous or not, you will still have spend money to defend your decision. Be prepared for this eventuality when making your employment decisions and deciding whether or not to offer severance in exchange for a release.

2. “At Will” Employment Is a Misnomer.   In Connecticut, the default employment relationship between an employer and employee is “at-will”.  As many offer letters suggest, that means either the employer or employee can terminate the employment relationship at any time for any reason or no reason at all.  And so, I sometimes hear employers exclaiming “Connecticut is at-will! We should be able to just fire them for any reason!  How can they still sue?


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Raise your hand if you know what “Donning and Doffing” is?

To those that have raised your hand, you are most likely: a) an employment lawyer; b) a Scrabble nerd; or c) not being honest with yourself.

It’s just not a phrase anyone uses in real life — like a “snood” (I’ll get to the relevance of that term down below.)

But on Monday, the U.S. Supreme Court issued an important decision on the subject that will have a direct impact on when employers need to pay their employees for putting on (donning) and taking off (doffing) protective gear.

The case, Sandifer v. U.S. Steel, can be downloaded here.

History buffs will appreciate the decision for its lengthy discussion of the origins of modern day wage & hour law. But the basic gist is this: Many decades ago, wage & hour law developed a theory that “changing clothes” before and after a shift is not compensable working time.  The question remained – what about things like a hardhat? Or a special flame resistant jacket? Or safety goggles?

In other words, should an employee be able to get compensation for putting on and taking off protective gear? 

The court said it would first adopt the 1950s definition of “clothes” — namely “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  Jackets, pants, suits, but also protective clothing like a hardhat that is, after all, still a “hat”.

What’s excluded from that definition?  Things like tools and accessories. According to the court, “Many accessories—necklaces and knapsacks, for instance—are not ‘both designed and used to cover the body.’ Nor are tools ‘commonly regarded as articles of dress.’” Our definition leaves room for distinguishing between clothes and wearable items that are not clothes, such as some equipment and devices.


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Attorneys can go months — if not years — without Supreme Court guidance on employment law issues. But today, the Supreme Court issued its second employment-law related decision in as many days.

However, for the second day in a row, the Supreme Court issued a decision that, at the end of the day, isn’t really about