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Earlier this week, I made my long-awaited (ok, long-awaited by ME) return on WNPR’s ever-popular “Where We Live” show.

As always, I’m thankful for the invite.

My appearances date back quite some time (remember pizza and child labor in 2010?), so it was nice to be back in the studio to talk about age discrimination and other workplace issues.

So, is age discrimination still a problem?

The answer is plainly “yes”.

A related question, though is how MUCH of a problem? And is it getting better or worse?

By one measure, it’s been going down in a noticeable way the last several years.  In 2008 for example, there were over 24,500 charges filed on age grounds; in 2017 – it was down below 18,500 – a drop of over 20 percent.

Statistics, though, only tell part of the story because historically, you’d expect more to see more charges in a recession than an improving economy.

An article by The New York Times over the winter raised concerns that Facebook Job Ads were being used in a way to target younger potential applicants.  And some have suggested that the federal law itself is too weak.  

So, recognizing the age discrimination remains an issue in society is an easy task. But solving this — and ensuring that workplaces have a diversity of ages, remains a issue of which there are no easy answers.

Earlier this week, the Judiciary Committee (by a 25-16 vote) approved of Senate Bill 132, being labelled by it’s proponents as the “Time’s Up” bill but covers both harassment and discrimination cases. I covered an announcement of this a while back.  

As the bill moves closer to consideration now to the state Senate, it’s time for employers to start paying attention to what’s in the bill.  The CBIA has expressed concerns about some aspects of the bill.

Here are a few highlights:

  • To require employers to provide every employee with information concerning the “illegality of sexual harassment and remedies available to victimes of sexual harassment”.
  • To require employers of three or more employees (currently set at 50) to provide two hours of sexual harassment prevention training and with such training being provided not just to supervisory employees, but all employees.
  • To eliminate affirmative defenses that employers otherwise have that: “(i) the claim of sexual harassment was properly investigated, immediate corrective action was taken and no act of sexual harassment subsequently occurred, (ii) the claim of sexual harassment was not reported to a respondent prior to the filing of a complaint with the commission, (iii) an employer has a policy of prohibiting sexual harassment or recently trained its employees on sexual harassment in accordance with subdivision (15) of section 46a-54, as amended by this act, or (iv) the sexual harassment was not severe or pervasive.”  These defenses would only be allowed to be introduced on the question of damages.
  • To prohibit employers from modifying the “conditions of employment” of the employee making the claim of sexual harassment when the employer takes “immediate corrective action”, unless employee agrees in writing to such a modification.
  • To allow the CHRO to order the promotion of an employee in response to a claim of discrimination.
  • To allow claims of discrimination that occur on or after October 1, 2018 to be subject to a new three-year statute of limitation, instead of the current 180 day requirement.
  • To allow punitive damages for discrimination claims to be awarded in some instances.
  • To allow lawsuits to be brought two years after the CHRO releases jurisdiction over a discrimination, instead of the 90 day requirement.

There’s more as well, so employers are best advised to review it and talk with their attorneys about the impact that this bill might have on their workplace.

From a procedural perspective, the change in the statute of limitations would be significant.

Take this example: Suppose an alleged discriminatory act took place on May 15, 2019.  An employee would then have until (approximately) May 15, 2022 to bring a CHRO charge.  The CHRO could investigate the claim for a while — say a year and release jurisdiction on May 15, 2023.  The employee could then have two additional years to bring suit in Court — taking it out to May 15, 2025.  Add another 18-24 months before a trial date, at best.

Ultimately, this could result in a claim being heard nearly eight years (or more!) after the alleged discrimination took place.

Supervisors may have long since left the company and evidence might not be available anymore for employers to defend themselves.  All told, these types of delays were exactly the type of issue that a shorter statute of limitations was designed to prevent.  Companies would be at a significant disadvantage in defending themselves, all the while damages continue to accrue.

This bill would also require the CHRO to renegotiate significantly large portions of the worksharing agreement in place with the EEOC.

There is certainly momentum for some type of action here; stay tuned to see what further modifications are made to this bill.

Last week, I posted about a proposed Governor’s bill that would expand the training requirements for some employers.

However, that appears to be just a small part of a wider political battle that is about to be raised.

Yesterday, a group of Senate Democrats proposed, according to a handout, the “Largest Overhaul in Modern Connecticut History of Sexual Harassment Laws” that would significantly alter the landscape for nearly all Connecticut employers.

They’ve titled their proposal the “Time’s Up Act: Combating Sexual Harassment and Sexual Assault”.  

The bill has yet to be drafted, but the outlines are being shared by Senate Democrats and will be pursued first in the Judiciary Committee (not the Labor & Public Employee Committee as you might expect).

According to their handout, the proposed bill will contain the following relating to discrimination or harassment laws:

  • Require that any notice of sexual harassment remedies and policies by e-mailed to each employee at least once a year, in addition to the required posting.
  • Increase the fines that the CHRO can impose for failing to provide notice (currently at $250)
  • Require sexual harassment training to all employers with three or more employees (instead of the current 50 or more threshold)
  • Require training of all employees, not just supervisory employees with broader topics
  • “Give CHRO the resources it needs to go out into the community and conduct on-site trainings”
  • Increase the statute of limitations from 180 days to 2 years for not just harassment complaints, but all discrimination complaints
  • Eliminate the 90 day deadline after receiving a release from the CHRO to file a lawsuit but extend it to two years after a release from the CHRO.
  • Permit the CHRO to ask for injunctive relief for employers of 3 or more employees, not the current threshold of 50.
  • Allow for punitive damages in all discrimination and harassment complaints
  • Increase funding for the CHRO
  • Create a similar model to California in passing a Private Attorney General Act, which would allow litigants to, after giving notice to the CHRO, bring a claim for violations against himself or herself, but also against other employees as well.
  • Prohibit settlement agreements that prohibit a party from disclosing information regarding sexual harassment or sexual assault.

This is still in the early stages but expect to see a lot more about this in the weeks and months to come.  No doubt, the Connecticut Business and Industry Association will have something to say about this as well.

I’ll have more details as they become available.

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.

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • “Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.

A while back, I had a good discussion with a colleague on a topic with no real firm answers.

No, it wasn’t on whether the Yankees are better franchise than the Red Sox.  The answer to that is unequivocally yes.  (Sorry, Sox fans.)

Rather: When is a employee-related issue a legal one? Or alternatively, when can human resources handle the issue on it’s own?

What comes to mind at first is the old Justice Potter Stewart quote of, “I know it when I see it” but that seems unsatisfying.

For some smaller employers, the answer may lean more heavily towards “legal” in part because there may not be an in-house human resources professional to call on.

But on the flip side, there are some other employers that might rely heavily (perhaps overly so) on their HR contacts to handle matters, trying to avoid unnecessary legal expenses.

What I’ve concluded is what I’ve started with — there are no real answers to the question.

But I can outline a few (non-exclusive) times when a lawyer should probably get involved.

  1. You get a letter from a lawyer threatening legal action on behalf of an employee or, in the case of a non-compete, from a former employer.  Pretty self-evident; lawyer = legal issue.  I’m going to not even dwell on the obvious: an actual lawsuit being filed means an attorney ought to be contacted.
  2. You get a notice from a state or federal agency investigating wage/hour laws, anti-discrimination laws, workplace safety issues, or labor union-related issued. Anything from the DOL, CHRO, EEOC, OSHA, or NLRB (to name a few) has the potential to be a big deal. Things you say there can be used against you too.  The earlier the better.
    1. But unemployment compensation claims may not always rise to that level.  Some employers handle unemployment claims and appeals internally.  For those situations, it depends on the complexity of the situation.
  3. You have to conduct an investigation into a workplace issue, such as sexual harassment, AND you may want that investigation to be privileged and confidential.  Again, HR may be able to conduct a whole host of minor investigations but there are going to be some that involve sensitive issues, or perhaps raise company-wide concerns. Bring counsel involved and let them help to manage the investigation.
  4. You have a complex issue that doesn’t have a clear legal answer.  It’s pretty well-settled now that employers need to engage in interactive discussions with an employee regarding reasonable accommodations that they may need.  Qualified HR can handle those discussions.  But suppose the employee is injured on job, is out on workers’ compensation, has exhausted FMLA time and needs additional time off — what then?

But I’m interested hearing from other lawyers or human resources personnel. When is an issue a legal one and when is HR perfectly capable of addressing it? Leave your best tips in the comments below.

There’s an old(?) Bonnie Raitt song that my parents used to listen to when I was in college called “Let’s Give Them Something to Talk About”.  It’s about a crush, but the intro could be just as applicable to a new court decision. The lyrics start: “People are talkin’, talkin’ ’bout people, I hear them whisper, you won’t believe it.”

The short lesson? Don’t give your employees something to talk about — namely when a lawsuit is filed, caution is strongly advised in distributing information about that lawsuit.  Interested in more? My colleague, Gary Starr, shares more:

A recent Connecticut district court decision (EEOC v. Day & Zimmerman NPS) is a cautionary tale for in-house lawyers and human resource managers who want to tell employees about an investigation into discrimination claim brought by a former employee, and that investigation may involve those employees.

Following a disability discrimination charge, the EEOC sought contact information about other employees as well as information about their employment.

Rather than simply advise the employees that the EEOC was being provided with their job title, dates of employment, home address, and phone number, the company also described the accommodation that was requested and information that the former employee’s doctor had indicated that without the accommodation, the employee could not perform the essential functions of the job.

The EEOC viewed this as retaliation against the former employee by disclosing the information and interference with the rights of the employees receiving the letter as the agency thought it would discourage others from making claims in the future out of concern that their personal information would be shared widely.

The Company’s efforts to justify the letter were rejected by the court, which decided that a jury will have to decide whether the letter was retaliation and/or interference.

In communicating with potential witnesses in an agency investigation or lawsuit, employers must be clear on why the notice is being sent.  And employers should exercise caution on deciding what information is being shared.  What the decision suggests is that employees do not need to know what the medical condition another employee may have, what accommodation has been requested by that employee, or what recommendation a doctor has made about the employee.

Letting employees know that their contact information has been given to the EEOC and that they may be contacted would likely have have been sufficient and not opened up the employer to criticism.  And the decision does suggest that offering them the choice of having a lawyer present should not interfere with their rights.

In this instance, less information is better than more.

In any case, in the unlikely event you do need to inform employees about a lawsuit, check with your counsel about the details you should (and should not) be sending.

trumpphotoThere haven’t been a lot of stories about what Donald Trump would do as President when it comes to employment law issues. In part, that was due to the polls. But it was also due in part to the lack of policy details that his campaign put out on his website.  Back in September, I lamented the fact that we weren’t getting to hear any debate on those issues.

So, the news this morning that Donald Trump has been elected President is coming with a bit of scrambling.  What does it mean for employers in Connecticut? What’s going to happen with employment laws and enforcement?

The truth is that we really don’t know at this point.  The fact that the House, Senate and President will all be led by Republicans is something that is going to throw the whole system for a loop.

So, here are a few things to keep an eye on over the upcoming months when it comes to employment law issues:

  • As I noted last month, the new overtime regulations are set to be implemented on December 1, 2016.  Will a lame-duck Congress try to block those rules from being implemented? And if they are still implemented, will a Trump adminstration seek to roll those back? That would be a challenge.  Suffice to say for employers, this added uncertainty is a real headache. Until you hear otherwise, employers should continue to implement these changes.
  • One thing that seems clearer: The NLRB’s moves over the last few years will come to a screeching halt once the Board’s makeup is changed. The NLRB, for better or worse, always seems to change with each Presidency.  A Trump Presidency will no doubt bring changes back; this may impact everything from graduate assistants being able to unionize, the quickie election rules. Everything is in play.
  • For those wondering, the Board has two seats open now; along with the existing Republican member, that would give the Trump presidency a pretty quick majority.
  • The EEOC’s strategic plans will now be called into question as well. In recent years, it has taken aggressive litigation approaches on sexual orientation and gender identity issues. Will those tactics be abandoned? Where will the enforcement priorities lead to? Again, don’t expect big changes overnight but over time, this is definitely something to watch.
  • And do not underestimate the impact that a Trump Presidency will have on the federal court system.  He will now be appointing far different judges that we’ve seen over the last eight years — both at the U.S. Supreme Court and at lower court levels.  This will have a long-term effect on employment discrimination cases which are often heard in the federal courts in Connecticut.  As a result, we may continue to see more cases being brought in Connecticut state courts.
  • Let’s not forget that Trump also suggested a six-week paid maternity leave program.  Will we see Congress pick this issue up? Stay tuned too.  

For Connecticut employers, lost in the headlines of a Trump presidency is the fact that Republicans seem to have gained an unprecedented 18-18 split in the State Senate. This could potentially put the brakes on legislation the next two years on issues like non-competes or expanded paid leave.  It’s too early to tell but this is something we’ll be looking into as well.

But for all the uncertainty out there, remember this: Many of our federal laws are unlikely to change.  ADA, FMLA, Title VII are all fairly hearty laws that share widespread support.  The changes that may come are all things around the edges — things like enforcement approaches, guidances, etc.

For employers, it’s best to keep a close eye on the developments for employment law. It’s going to be an interesting couple of years.

Continuing his posts on wellness programs, my colleague Marc Herman fills us in on what’s the latest.  

hermanI return today with the second part of a two-part post on wellness programs.

Reference to my prior post is not to be braggadocious, but to remind you that both posts ought be read in tandem.  Shameless, I know.

As I mentioned last time, the EEOC has finally published its long-awaited regulation that attempts to clarify the meaning of a voluntary medical examination.

Why long awaited? I hear you ask.

Well, if you recall, over the past couple of years, the EEOC has embarked on a slightly manic litigation spree against wellness programs.

In its typical altruistic self, the EEOC set-out to remind us that involuntary medical examinations are largely prohibited under the ADA.  I call this the No Exam Rule.

nurseNow, let’s get to the regulation itself.

According to the regulation, a voluntary medical examination (i.e., a lawfully incentivized wellness program) means that an employer:

  1. Does not offer an incentive that, in monetary terms, exceeds 30% of the total cost of self-only coverage for an employee;
  2. Does not deny an employee access to a health plan on the basis that the employee declined participation in a wellness program; and
  3. Does not retaliate against those employees that otherwise choose not to participate.

My self-proclaimed cynicism aside – please, I am English (Editor’s note: Too true!) – the above rules set forth a pragmatic, and dare I say workable, framework.  Employers that are considering such programs or that already have such programs, should be mindful of the regulations.

One thing to keep in mind — the regulation applies prospectively.  Thus, it will apply only to wellness programs that begin on or after January 1, 2017. With that said, the shake-up (or shake-down) due to take place in Washington D.C. very soon could relegate this new regulation to the history books.

Watch this space. Because I have a feeling we haven’t heard the last about wellness programs regulations.

 

hermanMy colleague Marc Herman returns today to bring back the story of wellness programs and whether they will continue to pass legal muster. In the first post of a two-parter, Marc updates us on some litigation. Read on.  

Here’s one for you:  Did you hear the one about the employee that turned down the opportunity to have his annual health insurance premiums waived?   Not a joke, unfortunately.  And there’s not much of a punch line either.

Way back in 2014 –– a time when Donald Trump’s entry into politics was confined to an episode of the Simpsons –– the EEOC embarked on a relentless, and unexpected, crusade against wellness programs.

“Why!?” I hear you cry.  Let me remind you.

The EEOC took issue with various employer-sponsored wellness programs because, according to the EEOC, many such programs violated the Americans with Disabilities Act (the “ADA”).  [Enter smoke, stage left].

Among those employers side-swiped by the EEOC was Orion Energy Systems, Inc. – a Wisconsin-based manufacturer that employs around 250 people.

According to the EEOC, Orion’s incentive-based wellness program violated the ADA by unlawfully subjecting employees to involuntary medical examinations.

What are those? Well, in plain English, involuntary medical examinations are a big no-no under the ADA — consider it the No Exam Rule.  Remember this.  It is important.

Orion had told its employees that if they participated in a wellness program, they would have their annual health insurance premiums waived (a saving of over $400).

Hallelujah!

Wait, not so fast.

Participation in the wellness program also obligated employees to undergo something called a “Health Risk Assessment”  – a fancy name for a medical exam.

Ah, now enter from Stage Right — the No Exam Rule.

You might say – “What’s the big deal!?” “The employees had a choice!”  “How is this involuntary!?”

Well, yes, in a technical sense, the employees had a choice.  They could decline participation if they so wished.  But that’s not the way the EEOC viewed it.

The EEOC said:  Whoa!  No sane employee would choose to forego a waiver of their annual health insurance premium.  Put another way, no employee would voluntarily choose to pay the annual health insurance premium (i.e., opt-out of the wellness program).

The EEOC reasoned that employees have no meaningful choice to opt-out of the program.  Participation would be coerced.  The Health Risk Assessment would be involuntary.

So who’s right?

Well, last week, we finally go through round one: a federal court sided with the employer, Orion.

The court explained that while there “may be strong reasons to comply with an employer’s wellness initiative,” the employee still has a choice.

Orion’s wellness program did not subject employees to involuntary medical examinations.  It was lawful.

Now, before we crack open the cigars and champagne, let us pause.  The decision, while helpful, ought be put in context.

In May, 2016, the EEOC published its long-awaited regulation regarding wellness programs.  The regulation defines exactly what a voluntary wellness program is.  However, it only applies to wellness programs commencing on or after January 1, 2017.  This means that the new regulation did not apply to Orion’s.  The decision should, as they say, be taken with a heavy pinch of salt.

I shall return with part 2 to further explore the new regulation.  Stay tuned.