The supervisor did it.

Yep, you’ve concluded that he sent unwanted texts to his subordinate telling her she looked “beautiful.”  Maybe even stopped by her hotel room unannounced one night at a conference for a “nightcap”.

While the subordinate’s career does not appear to have been harmed in the legal sense (i.e. there’s no “tangible employment action”), you’ve concluded that there was something “inappropriate” that happened.

(And let’s state the obvious: harm can exist even outside the “tangible employment action” context — that’s an issue for another post.)

So, back the the issue of the day — something “inappropriate” happened; maybe even something that meets the legal definition of “sexual harassment”.

What then?

Firing? Perhaps.

But what if you conclude that a lesser type of sanction is warranted?  Can you do that? If so, what’s the standard?

In cases where there has been no tangible employment action taken, the EEOC has actually set forth in its guidance a whole discussion that says that firing is but one possibility.  What’s important is that the remedial measures should be designed to:

  • Stop the harassment;
  • Correct its effect on the employee; and,
  • Ensure that the harassment does not recur.

The EEOC’s guidance notes that these remedial measures “need not be those that the employee requests or prefers, as long as they are effective.”

Moreover, “in determining disciplinary measures, management should keep in mind that the employer could be found liable if the harassment does not stop. At the same time, management may have concerns that overly punitive measures may subject the employer to claims such as wrongful discharge, and may simply be inappropriate.”

The EEOC suggests that the employer balance the competing concerns and that disciplinary measures should be proportional to the seriousness of the offense.

What does that mean?

If the harassment was minor, the EEOC suggests, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary.

On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

And importantly, remedial measures also should correct the effects of the harassment. In the EEOC’s words, “such measures should be designed to put the employee in the position s/he would have been in had the misconduct not occurred.”

The EEOC provides various examples of measures to stop the harassment and ensure that it does not recur.  These include:

  • oral or written warning or reprimand;
  • transfer or reassignment;
  • demotion;
  • reduction of wages;
  • suspension;
  • discharge;
  • training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and
  • monitoring of harasser to ensure that harassment stops.

As for examples of measures to correct the effects of the harassment, these include:

  • restoration of leave taken because of the harassment;
  • expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
  • reinstatement;
  • apology by the harasser;
  • monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and,
  • correction of any other harm caused by the harassment (e.g., compensation for losses).

How does this apply in the real world?

Jon Hyman of the Ohio Employer’s Law Blog, highlighted a case several years back where the employer didn’t terminate the offending supervisor on the first go around, but rather gave them a last chance.

Unfortunately, the employer didn’t follow through when the supervisor STILL engaged in harassment.  The case, Engel v. Rapid City School District, is worth a read to show how an employer’s reasonableness the first go around, can be used against it when it doesn’t follow through.

The EEOC’s guidance is a helpful guide to employers in navigating these issues.  The employer should look to the particular circumstances of any matter and determine what punishment is appropriate in that particular matter.

Perhaps it will conclude that firing is appropriate.

But if it concludes, based on an analysis of the entirety of the situation, that something less than that is appropriate too, the EEOC’s guidance can be a useful guidepost for that determination.

As you’ve no doubt noticed, I’ve taken a few days off from the blog to attend to the logistics that a new job entails and also attend the ABA Annual Meeting earlier this week.  There have been some interesting developments in both the FLSA and FMLA the last few days so look for posts on those topics and the ABA meeting soon.

In the meantime, I’ve had several discussions with people lately about the implications that Connecticut’s revised Personnel Files Act will have on their companies on October 1st — the law’s effective date.

I’ve previously summarized the law in a prior post here so I won’t repeat all I said there.

The most frustrating provision is the new Sec. 31-128b(c) which states as follows:

Each employer shall provide an employee with a copy of any documentation of any disciplinary action imposed on that employee not more than one business day after the date of imposing such action. Each employer shall immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.

There are a few issues that come out of this:

  • First, the requirement to provide a copy of any documentation of any disciplinary action is a new one. More than that, it needs to be done “not more than one business day” after imposing the action.  Is that the date that the decision is made or told to employee? What about a suspension that takes place the following week; is it the date the suspension first occurs or some other date?
  • But then suppose the employee is out of the office on suspension, will mailing a copy of the notice suffice? If so, when is the notice effective? The date of mailing or date of receipt? What about e-mail? These questions are left unanswered though you have to think from an enforcement perspective that the CTDOL will adopt some type of reasonableness standard along with this.  (Remember too that any violations of the Act are to be handled by the department itself.)
  • But the issues go on: look at the phrase “any documentation of any disciplinary action imposed on that employee”.  What is exactly the scope of “any documentation”? Just the notice of the discipline itself? Or everything leading up to it too, including an investigation? The reasonable interpretation would seem to suggest just the actual discipline itself, but will the CTDOL take a similar position for enforcement purposes?
  • Next up, when an employee’s employment is terminated, the employer must “immediately” provide a copy of any documented notice.  What about a notification over the phone with a followup letter? Does that satisfy the purposes of the statute? After all, in some instances, it may be impractical to bring an employee who has been suspended back to the workplace just to fire him or her.  Again, the new law leaves this bit confusing too.

There are, of course, other issues to deal with on this new law.  Employers have about 6 weeks left to update their policies and figure out how to deal with requests for personnel files too.  Time is ticking so be sure to consult with your local employment counsel if you are unsure how to proceed.

It’s tough to draw lessons from appeals of arbitration decisions.

Why? Because the standard to overturn arbitration cases is high and, it’s only when there are really bad facts (or, perhaps more likely, an really bad error in interpreting the law) that appellate courts consider reversing the decision.

That appears to be the case in State v. AFSCME, Council 4, Local 391, a decision from the Connecticut Supreme Court that will be officially released on August 6, 2013.

In that case, an alleged sexual harasser had been fired; but an arbitrator found the dismissal was unwarranted and ordered the employee reinstated — albeit reinstated after a one year suspension.  The Appellate Court reversed the arbitrator’s finding.  The Connecticut Supreme Court, in its ruling, has upheld that decision.

In doing so, the Court concludes that termination of an alleged harasser may not be appropriate in all cases, but may be required in many others:

We also recognize that the fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct. Rather, we must determine whether the employee’s misconduct was ‘‘so egregious that it requires nothing less than termination of the [employee’s] employment so as not to violate public policy.’’

In this case, the court found it so egregious as to warrant termination.  Here’s a sample:

[T]he complainant testified in the arbitration proceeding as follows: ‘‘[The grievant] stated to [the complainant],‘Hey [h]omo it’s about time you came downstairs and stop sucking c**k.’ [The complainant] also testified that six weeks after that when he was . . . in the pharmacy he felt something touch his buttocks, he jumped and turned around and [the grievant] had a banana held at his crotch area, and made the statement in front of a witness, ‘he jumped like a girl.’ The [c]omplainant went on to testify . . . that at least [thirty] times [the grievant] called him a ‘ripper.’ The [c]omplainant didn’t know what that meant, and asked another employee what it meant and was told it meant ‘child molester.’ He confronted [the grievant] and asked him to stop making those statements, but [the grievant] continued. The [c]omplainant bought a parrot from another co-worker, [the grievant] overheard the conversation and later in the shift asked the [c]omplainant, ‘what did you have to do for the bird, give him a blow job.’ [The grievant] on other occasions also made comments about the [c]omplainant and a co-worker because they lifted weights together, and asked the [c]omplainant, ‘what do you guys do there grab each [other’s] crank.’ ’’

The dissent takes the majority to task saying that while he agrees that Connecticut has a public policy prohibiting sexual harassment in the workplace, it does not mandate termination of employment in every instance.  Rather, a “strong punishment” should be all that the state should force.

For employers, the case is a double-edged sword. On the one hand, the court seems to approve of an employer who says that it has a zero tolerance policy for harassment and supports the termination. But on the flip side, suppose the alleged harasser wasn’t terminated.  Could the employer then be liable for sexual harassment for not terminating the harasser? What will be “so egregious”? Is it the exception or the norm?

We’ll have to see the way this plays out in the court system over the next few years.

As the legislative session winds down, there’s one big issue still alive that has been passing mostly under the radar of the mainstream press.  (To the CBIA’s credit, they’ve been tracking this bill for a while.)

Under current law, an employee has the right to inspect and receive a copy of his or her personnel file.  House Bill 5235 would amend this statute in several important and significant ways.

Changes to Personnel Files Act?

First, it would speed up the the time an employer has to provide a current or former employee with access to his or her file.  Second, it would require employers to provide employees with copies of documentation of any disciplinary action or termination.  Third, it would require employers to notify employees that they can include a written statement in their personnel file disagreeing with the employer’s discipline, evaluation, or termination of the employee.

These proposed changes do not come in the middle of any “crisis” with the current law in Connecticut. Indeed, I’m not aware of any notable case pending at the Connecticut Department of Labor brought by an employee who complained that the current system was unfair or that his or her employer was not complying with the law.  Connecticut is one of the few states with laws on the books to begin with. 

Yet, these proposed changes could have a substantial impact on the way employers manage their workforce.

As noted above, an employer would be required to provide an employee with a copy of “any documentation of any disciplinary action imposed on that employee” not more than one business day after the date of imposing such action. Each employer shall immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.

But there are two important questions left unaddressed by this.

First, many times employers just provide a “verbal” warning to an employee.  This is done in many instances for the employee’s benefit; after all, if an employee is late for work, employers don’t want to turn that incident into a big deal. Thus many employers simply use a:  “Hey, Sue, I’m just warning you, let’s try not to be late again. Next time, I’m going to have to write you up.”  Does this now need to be in writing?

Which leads to the second question: What is a “disciplinary action”?  Is it an actual penalty? A meeting with the employee? A verbal warning described above? Is it similar to an “adverse employment action” as that term is used in discrimination cases?

I understand from several sources at the legislature that the portion of the bill regarding “disciplinary action” is being strongly opposed by several groups so it remains to be seen whether this bill will be considered in its current form or even considered at all.  An amendment is being floated around so you can keep track of the bill here.

"Progressive Discipline" is a policy or practice that, over the years, has fallen out of favor with some employers.

What is it? It’s a practice — found also in some collective bargaining agreements — that typically provides a multi-step disciplinary process for many employment policy violations: a verbal warning, a written warning, a suspension, and finally termination.

Why has it fallen out of disfavor? Because for employers, it can be used to tie their hands.  If an employer is not free to terminate the employee for a violation, it runs the risk of having a few serial offenders who do just enough not to get fired, but not enough to satisfy the employer.  

Thus, some employers now draft disciplinary policies to state that the violations of policies and procedures of the company may lead to discipline "up to and including termination of employment."

A recent case out of the Second Circuit illustrates how one employer has gotten tied up in the legal system because of the perceived failure of the company to follow such a progressive discipline practice consistently. 

In Berube v. Great Atlantic & Pacific Co. (decided in October 2009), the Second Circuit vacated judgment in favor of the employer and found that there was sufficient evidence that the employer applied a progressive discipline practice differently towards an older worker. 

(Readers are cautioned that at the summary judgment stage, facts are to be seen in a light most favorable to an employee; a jury will now decide the actual merits of the case.)

In doing so, the Court took pains to note that the other individuals that were allegedly not fired (and who were younger than the employee) need not have the same supervisor or have engaged in the same activity. Rather, the actions must only be of "comparable seriousness" to be sufficient for use to establish a claim of age discrimination. 

The case has now returned to the District of Connecticut where is apparently awaits a trial date. (If you’d like to read the original district court decision granting the employer’s motion for summary judgment in February 2008, you can download it here.) 

So what’s the takeaway for employers? Consistency in discipline.   And if there isn’t consistency, there ought to be good documentation and support for the reasons for inconsistency.  Moreover, if the employer has a handbook with policies regarding discipline, making sure those policies are actually followed in practice is another way to provide further support to any discipline handed out.

And while I’ll leave it to others to debate the merits of a progressive discipline policy, an employer ought to make sure that if it has such a policy, it understands the consequences.  

UPDATED 2/10/09

Sometimes, by coincidence, two unrelated decision get released in close proximity to one another that they bring some greater clarity to the law.

Yesterday, I discussed a Connecticut Superior Court cacourtesy morgue file - NOT public domainse that found that certain discussions did not create an employment contract and that the employee was properly classified as "at-will".

Earlier this week, a federal court in Connecticut granted an employer’s motion for summary judgment after finding that a Corrective Action memorandum did not create an employment contract either (and did not create any other claims).

In Ide v. Winwholesale, Inc. (download here), Judge Squatrito was asked to address whether the employee’s termination — after allegedly being "coerced" into signing a Corrective Action memorandum — violated an important public policy. The court found that it did not and found that there was nothing inherently wrong with the memorandum either. 

The court indicated that, in essence, the plaintiff and a co-worker were engaging in a back-and-forth tit-for-tat that ultimately led to them both being disciplined.  The employer then issued a Corrective Action memorandum to address the issues.  The memo is similar to the type that many companies use to address disciplinary and performance issues with their employees: it spells out what was unacceptable and sets forth a plan to make sure the employee follows procedures on a going-forward basis. 

The employee blamed a fellow co-worker for his problems. But the court rejected that argument calling it the "But he started it!" defense.  This court did not stop there; the Court also found that the employee’s argument that there was a "genuine issue of fact" concerning the Corrective Action memorandum forced the court to ask "So what?" 

The court then delivers the knockout punch to the plaintiff’s case:

[The plaintiff] further argues that the Corrective Action memorandum constituted a contract, but, because he was coerced into signing the Corrective Action memorandum, the contract was void. The merit of this argument escapes the Court. There is no indication that the parties expected or intended the Corrective Action memorandum to be a “contract,” nor has Ide established in any way that the Corrective Action memorandum satisfies the legal standard for a contract (i.e., offer, acceptance, consideration).

What’s the takeaway for employers here?

Courts will still use common sense in deciding employment cases.  Here, the employer had detailed the reasons for its decision is a clear and concise fashion and used a corrective action memorandum that backed up its reasoning.  The importance of documentation and, at least the appearance of, fairness, made this a fairly easy case for the Court to dispose of.

In essence, the employer did what would be expected of it. It learned about violations of the company’s policies, addressed them, and then fired the employee when he failed to correct the deficiencies noted.

One important last note for employment law practitioners: The court takes the employer to task on one procedural issue — namely the filing of a motion to strike portions of the plaintiff’s affidavit that was filed in response to the motion for summary judgment. The court suggests that the federal rules of civil procedure do not allow for such a practice and "The parties to an action ‘should have faith . . . that the court knows the difference between admissible and non-admissible evidence, and
would not base a summary judgment decision simply upon the self-serving ipse dixit of a particular party.’"

The court suggests that if a party wants to object to portions of an affidavit, that the party should argue it in the summary judgment briefing itself.

UPDATE: Portions of the underlying decision, which have no impact on the outcome of the case, have been redacted by request.

It has been several months since my last update on the matters involving former state Ethics Chief Alan Plofsky and the strange case of the lawyer who penned an anonymous letter complaining of Mr. Plofsky. (For background on the matters, you can find my prior posts here.)

The developments have been slow to occur, but an article last week in the Connecticut Law Tribune gives us some details.  As to the lawyer that wrote the anonymous letter, state officials have suggested that she be given a reprimand: 

State officials say Maureen Duggan should be reprimanded and ordered to attend legal ethics classes for writing a phony letter that helped bring down former Ethics Commission Director Alan S. Plofsky.

That’s the suggestion that Chief Disciplinary Counsel Mark Dubois made last Thursday to the Statewide Grievance Committee after an investigation into Duggan’s conduct dating to 2004. Duggan, a former attorney in Plofsky’s office, drafted a letter filled with typos to the ethics commission’s chairwoman describing how money was being wasted by the office and employees routinely left before the end of the workday. She made it appear that the unsigned letter was from a parking lot attendant.

Ms. Duggan also apologized for the incident, according to another report. 

And what happened to the underlying case that was brought by the former state ethics chief against the state? The state moved for summary judgment early this year.  However, the court has yet to rule on that motion.  A decision is expected soon.

In the meantime, the parties filed a joint status report in mid-September which provides some further background in the case.

Nearly six months ago, a landmark ruling by the Connecticut Supreme Court held that Connecticut’s anti-discrimination laws required employers to provide a reasonable accommodation to disabled workers, much like the federal counterpart, the ADA.

As I noted in an earlier post about the case, Curry v. Allen S. Goodman, Inc., the Court suggested that the employer had a duty to accommodate an employee even after firing.  In the Curry case, a fired warehouse worker’s attorney raised issues about the employee’s disability; the Connecticut Supreme Court suggested that the post-termination letter formed the basis of an employee’s request for a reasonable accommodation.  In doing so, the Court relied on the ADA to provide some further guidance on what the state anti-discrimination law meant.

Now, six months later, the EEOC has released new guidance on the ADA  and performance-related issues that suggests that the Connecticut Supreme Court’s interpretation of the ADA may be inconsistent with the EEOC’s own interpretation. 

How so?  Well, take a look at question 10 of the EEOC’s guidance.  Question 10 poses the hypothetical question: 

What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?

In response, the EEOC says:

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.

The EEOC guidance adds that "the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including termination) warranted by misconduct."  The EEOC also cites to several federal appellate cases in further support of its interpretation.

This guidance seems to contradict the Curry decision because in Curry the duty to accommodate arose after the employee was terminated.

Where does this leave employers in Connecticut? Perhaps with a split in authorities — at least until this issue is litigated more fully in Connecticut courts.

Until the courts analyze this issue further, employers need to be aware that Connecticut’s anti-discrimination rules may be more stringent than what is required at the federal level.

Ultimately, the legislature should consider some straightforward fixes to these issues. With the ADA about to be amended significantly, having two sets of rules for employers to follow (and for employees to figure out as well) doesn’t serve the public good. It only serves to create confusion and more litigation.  Making state anti-discrimination laws more consistent with federal law will help provide for stability and predictability.

As I’ve mentioned before, sometimes cases hit the headlines for a day only to disappear into oblivion. But thanks to some followup reporting, there’s one story that we can give an update on.

Readers may recall a post from May of this year about a state attorney, Maureen Duggan, who wrote an anonymous letter about the state’s Ethics Chief, allegedly purporting to be a parking lot attendant.  Above the Law also ran a post about it as well. 

So what’s happened to that attorney since then? Over the last week or so, two events related to the attorney have hit the headlines.

First, state officials indicated that they planned no disciplinary action against the employee.  According to the Hartford Courant:

An investigator concluded in an Aug. 7 report, released Wednesday, that use of the phony identity by Duggan — who was a State Ethics Commission staff lawyer in 2004, and is now an attorney at the state’s child-protection agency — was not reason to discipline her under state personnel rules.

Her conduct "may be construed to be wrong, improper or even deceitful," but doesn’t add up to "sufficient evidence" to discipline her, wrote personnel administrator Stephen Caliendo of the Department of Administrative Services.

But that doesn’t mean that the lawyer has escaped without punishment. In fact, her current job is dependent on her law license; that license is now in jeopardy after it was also announced that a state grievance panel filed a complaint against her that could lead to discipline or disbarment.  A hearing will likely be scheduled in November or December 2008, according to the Hartford Courant and the employee has retained Hope Seeley to represent her. 

And what’s happened to the underlying employment claim by former state ethics chief? Well, the state filed its reply brief in support of its summary judgment motion in June (download here).   Notably, when the state filed its reply brief, it attached some additional exhibits as well including the full deposition of Maureen Duggan (available here).  Thus, readers can get a full picture of her deposition and not just the portions excerpted before.   

A decision on the motion for summary judgment is expected later this year.

The sad reality is that, on rare occasion, some employees will revert back to their middle school days and behave like a couple of children. Some will even resort to physical fighting. In such a case, employers are faced with a difficult question — can I punish one employee more than other if I think they "started" it?

The answer has not always been as clear as you’d like in Connecticut.  Indeed, earlier this month, I commented about a case where the employer punished both employees — and was still subject to a discrimination claim.  But the Second Circuit provided some helpful guidance to employers and suggests that not all fights need to be treated the same. 

The Second Circuit yesterday released an interesting "summary order" (being it is not "binding precedent") that tackles the subject even further.  In Mincey v. University of Rochester (download here), the Court was faced with an age discrimination claim by a former employee who was terminated for her role in an altercation with a younger co-worker, who was not. 

The employer moved for summary judgment on the claim arguing that the termination, which resulted from determining that the Plaintiff was the instigator, in an altercation, did not give rise to an inference of age discrimination.  The lower court granted the employer’s motion and the employee appealed.

At first, it appears that the court is going to overrule the District Court’s decision. Indeed, it concludes that the district court erred in finding that the employee was not terminated under circumstances giving rise to an inference of discrimination:

Although it is true, from the record, that Mincey admitted to striking [her co-worker], the record also demonstrates that she consistently stated that she had struck [her co-worker] only after he had struck her with his index finger. Taking the evidence in the record in a light most favorable to Mincey, her contention that [her co-worker] hit her first is sufficient to demonstrate that her termination gave rise to an inference of discrimination.

But the court quickly shoots down the employee’s claim that her evidence was sufficient to send the case to trial because it found that the employer’s decision was not false or "pretextual".

[E]ven if the conclusion made by the Hospital after its investigation was incorrect– even if [the co-worker] did actually strike Mincey first — so long as  that conclusion was the “actual purpose” for her termination, Mincey’s age-discrimination claim fails. An incorrect conclusion, while unfortunate for Mincey, does not constitute age discrimination.

Notably, for employees and their counsel, the case does highlight two arguments that could have been made that might have helped the employee’s cause — but were not. 

For example, the court notes that "Mincey offered no evidence that the investigation was improperly conducted for the purpose of providing a pretextual explanation for an otherwise discriminatory termination." The court also notes that plaintiff did not offer evidence "to suggest that other employees who had struck their coworkers had not been terminated by the [employer], or to rebut the [employer’s] evidence that it uniformly terminated employees for fighting. "

The case shows that for employers, a consistently applied disciplinary policy will assist the employer in defending against discrimination cases.  It also reinforces the notion that were an employer conducts an investigation before terminating employees, that investigation should be thorough enough to withstand some criticism.  The case highlights the fact that employers should not be afraid to treat employees in a fight differently, but should be prepared with a good reason for doing so.