Are you looking for something new to end the year with?

Then I have two quick links to share with you this morning.

First, on December 7 from noon to 1 pm (ET, of course), I, along with Eric Meyer (The Employer Handbook Blog), Jeff Nowak (FMLA Insights), Jon Hyman (Ohio Employer’s Law Blog), Robin Shea (Employment & Labor Insider), and our fearless moderator, Suzanne Lucas (Evil HR Lady) will present The 2017 Employment Law Year in Review.

The event is free, but space is limited. Register now for our one-hour recap of all the big employment-law and HR-compliance news of 2017, along with some practical tips to help you prepare your workplace for 2018.

Click here to register:  https://register.gotowebinar.com/register/5767568894289723906

Second, I’ve gotten an early listen to a brand-new podcast, entitled “Hostile Work Environment.” Set up by two employment lawyers who have a great sense of humor and a terrific ability to tell a story, the podcast shares various cases with facts that are too fantastic to make up.

You can download it at all the usual podcast locations. Worth a listen if you’re an HR type or employment lawyer.

Update: As noted below, the redesigned blog should be up at some point Tuesday, perhaps late – a new post will follow thereafter.  If it’s Tuesday and you’re seeing this blog post and the old design first, it’s coming later in the day. Promise.  

Every good superhero story needs an origin story.  I’m not a superhero but I’ve got a super origin story to tell.

Not a Daredevil

You may have heard it before, but humor me. I’m turning 10.

You see it was ten years ago, in a hotel conference room in where my life changed.

Of course, like lots of such “a-ha” moments that people have, I didn’t realize it at the time.

(Pause here to acknowledge that there are plenty of moments you know are going to be big: kids, marriages, your first iPhone).

I was at the Spring Conference for the American Bar Association Young Lawyers Division in, of all places, Canada.  Montreal, to be specific.

But I woke up early, on a few hours sleep, to hear from this guy, Kevin O’Keefe, who had this company called “LexBlog”.

He talked about how lawyers could set up a law blog. Sounded interesting.

At the time, I kinda thought I was late to the party.  But I had long since wanted to do some type of writing – a remnant from my days as an editor on my college newspaper.

If you had asked me, I probably would’ve said that I just wanted to have my own New York Times op-ed piece.

(Pause here for having to explain to my kids how we used to read The New York Times in paper form etc.)

And so, over the summer months of 2007, I worked with Kevin’s company to design a blog.

What should it be called? Well, lawyers should have a geographic area and a practice area, I heard Kevin say to me.

What do you think about “Connecticut Employment Law Blog”, I asked? Sure, that sounds specific enough.

(Pause here to reflect on names I could’ve used, like “Dan’s Uber Employment Law Blog” or “Snapchatting About Employment Law”.)

And then in September 2007 — ten years ago this month — I was ready to launch.  You can see my first “Welcome” post here.

For the first few years, I used to joke that the blog didn’t make me a better lawyer — only “Google” search results suggested I was by moving this blog to the top of the charts.

(Pause here to say my best party trick is telling people to Google “Connecticut Employment Law”. There’s now something called “EmploymentLawHandbook” that pretends to be number 1 sometimes– someone tell Google.)

But after 10 years, I’m not quite sure that’s accurate anymore. I’ve come to conclude that the blog has improved my life in immeasurable ways, which is why it’s so valuable as a “origin” story.

Here are three things I think about:

  1. I’ve met amazing people through the blog. Readers, fellow lawyer bloggers, special clients, technology people, reporters, and more.  Perhaps I would’ve met a few of them somehow, but the blog has expanded my own horizons. And in turn, I’ve learned a lot more than I ever would’ve though about employment law, the state of the legal profession, and myself.
  2. Writing nearly every day helps shape your own writer’s voice.  You start to hear yourself when you write and, like riding a bike, it just gets easier the more you do it.  That, in turn, has helped my legal writing as well.  I’ve become less afraid to experiment more with my legal writing. To write shorter sentences. To speak directly to the reader. To be direct.
  3. Rather than be “late” to the party, I’ve come to realize that I was early. In fact, when Twitter and Facebook took off, I wasn’t nearly as afraid to use them for professional and personal purposes.  Instead, I realized that they were opportunities to expand my network and learn more from others.

The last time this blog was redesigned was back in 2011.  That is the look you still see today, Monday.

But with some luck and a lot of perseverance (as well as continued help from Lexblog — which has become a partner to me), this blog gets relaunched tomorrow.

What will that look like? What will happen? Stay tuned for tomorrow’s post where I look at where this blog goes forward.

Day One of the new Connecticut Employment Law Blog begins tomorrow. (Probably late in the day, tomorrow if you’re really paying attention.)

Credit: Wikipedia Commons

Over the weekend, I was doing a lot of driving.  Having a kid at camp near the New Hampshire border to pick him up will do that.

So, it was time for me to catch up on some podcasts I had downloaded but hadn’t yet listened to.

I had already finished S-Town (worthy of a listen) but one of the others that I had been meaning to catch up on was Malcolm Gladwell’s “Revisionist History”.

In these episodes, he revisits an item from history that is often overlooked.

The first two episodes I picked were the most recent ones (State v. Johnson, and Mr. Holloway Didn’t Like That) and were based, in part, on interviews with legendary attorney Vernon Jordan and concerned legal cases from the Civil Rights Era.  Start there.

But the other one I listened too was from earlier in the season, called “Miss Buchanan’s Period of Adjustment”.

It too is riveting.

It tackles the landmark case of Brown v. Board of Education (the legendary school desegregation case) but from the perspective of the teachers who worked at the “colored-only” schools and who were subsequently laid off — allegedly for “performance” related reasons.

Even as a history major in college, I don’t remember hearing about this — how thousands upon thousands of black teachers lost their jobs when the schools that they taught at were closed. Different reasons were given — sometimes it was deemed to be too “difficult” for white students to be taught by black teachers.

But the effect was the same — a generation of teachers were lost to history.

That could be the end of a discrimination story, but Gladwell notes that the impact of this decision isn’t just that these teachers lost their jobs.

But rather, black students lost the opportunity to be taught by black teachers. And empirical research has shown that for black students, having a black teacher can be pivotal in reducing drop-out rates and ensuring students’ success.

The impact of these decisions still resonates today.

Gladwell highlights a study from just last year that looked for explanations about the under-representation of students of color in gifted programs.  Their conclusion?

Even after conditioning on test scores and other factors, Black students indeed are referred to gifted programs, particularly in reading, at significantly lower rates when taught by non-Black teachers, a concerning result given the relatively low incidence of assignment to own-race teachers among Black students.

For schools that employ teachers (including many of our clients), the podcast is a good reminder that the employment decisions that are made have a big impact beyond just the teachers themselves. Students lives and their successes and failures depend, in part, on the teachers that they have in life.

For other employers, listening to this podcast is a reminder that our laws governing the workplace are not all that old. Our current laws are a reflection on what occurred in the recent past. Indeed, the major federal law — Title VII — wasn’t passed until 1964 — nearly a decade removed from the Brown decision.

We’ve made a lot of progress, thankfully, since then. But ensuring fairness and eliminating race discrimination are still items that should remain high up in a company’s “must-do” list.

If you’re looking for something different to listen to, give the podcast a listen.  Gladwell may have his own agenda, but it’s thoughtful and entertaining.  And it’s a good reminder that compliance with employment laws is about more than just doing the right thing.

last jediYesterday, news came out that Episode 8 (I mean, VIII) of the Star Wars series would be named “The Last Jedi”.

Which reminded me about an article in The New York Times I saw a few weeks ago that I had been meaning to write about.

Turns out there are, according a BBC report cited in the Times (I swear I did not make this number up on my own), 177,000 practitioners of Jediism in Britain.

Wait, I hear you saying. Jediism? What is that? Like a religion? For real?

Well, according an application submitted to the Charity Commission for England and Wales:

Jediism draws on “the mythology of Star Wars,” and centers on a belief in the power of the Force,” according to a Temple document used by the Charity Commission to evaluate the application. It also draws on major world religions like Hinduism and Christianity, and on “the existential phenomenology of Heidegger, Kierkegaard and Buber.”

The application as it turns out, was from a group known as the Temple of the Jedi Order that sought nonprofit or charity status because, it claimed, Jediism was a religion.

The Charity Commission, however, disagreed saying it does not “promote moral or ethical improvement” and thus is not a religion.

That is not the end, however, of the Temple — as noted by a new The New York Times article yesterday as well.  Others, including, those in the United States, are still persisting.

Which led me to thinking — what would happen if an employee here in Connecticut asked for a religious accommodation on the basis of “Jediism”?

Lest you think I’m really stretching, no less than the President of the United States (Obama, that is) made remarks about this phenomenon when commending George Lucas on his Kennedy Center honors.  In that December 6, 2015 speech, he stated:  “He created a mythology so compelling that in a 2001 census, the fourth-largest religion in the United Kingdom was ‘Jedi.'”  

So, it’s out there.  But not in the courts yet. A quick search of court decisions has yet to find a case where Jediism is listed.  So, back to the question: what would the courts do if confronted about it?

Probably laugh.  After all, pledging allegiance to the Flying Spaghetti Monster (FSM) was not enough to survive a motion to dismiss a religious discrimination claim.  The federal court that was confronted with the issue took swift note about the origins of the religion and ruled that it wasn’t enough to satisfy the legal requirements:

This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a “religious exercise” on any other work of fiction. A prisoner could just as easily read the works of Vonnegut or Heinlein and claim it as his holy book, and demand accommodation of Bokononism or the Church of All Worlds. 6 See, Kurt Vonnegut, Cat’s Cradle (Dell Publishing 1988) (1963); Robert A. Heinlein, Stranger in a Strange Land (Putnam Publ’g Grp. 1961). Of course, there are those who contend—and Cavanaugh is probably among them—that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not “religious” simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.

Case closed, right? Well, perhaps, but even the EEOC has recognized that legal protections aren’t just for well established religions like Christianity.  In one Q and A, it notes the broad language of Title VII:

For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

So perhaps someday we’ll see this tried in courts. But for now, please don’t tell my kids its not real.  And someone save seats for me at The Last Jedi when it opens.

targetFor many years, I’ve used my first post each year to look back and ahead at the area of employment law.  My record of predictions has been about what you would expect someone predicting the future — about average.

Last year at this time, I said a few things though that seem to resonate with me including this:

That said, it feels like we’re in a period where employment law issues are being tweaked rather than rewritten.  There hasn’t been a new federal law on employment law in many years, for example.  And at the state legislature, you wonder how much more laws can be put in place on employment law before employers say “enough”.  (See, e.g., General Electric.)

Instead, what we are seeing and will likely continue to see are new rules being promulgated at the agency level — such the decision from the NLRB last week regarding recordings in the workplace.  Even the new white-collar overtime regulations may have less of an impact in Connecticut than some fear.

Thus, for 2016, I don’t think we’ll see as much as some predict.

So far pretty good. Even the white-collar exemptions got placed on hold, so there’s been no impact in Connecticut.

But I went on with this kicker:

Then again, let’s just check back in again in a year. There will be a new President and perhaps a change of political parties.

If there’s one thing I’ve learned about predictions, it’s that the future is never exactly what we think it will be.

Not bad, though I’m not sure there were many predicting both a Trump administration with Republican majorities in Congress to boot.

And so, 2017 is going to be different. Very different it seems.  The USDOL nominee is an outgoing fast-food company CEO for starters.  He’ll bring a management perspective far different than the current administration.

The biggest change we’ll see will come from the appointments to the National Labor Relations Board.  Expect the appointees to be management-friendly and roll back several decisions and rulings from the NLRB.  Those decisions, however, may take some time to work through however.

Federal increases to minimum wage or federal legislation on things like paid sick leave or employment law protection based on gender identity or sexual orientation also seem unlikely.

What happens at the U.S. Supreme Court is still up in the air as well, though don’t be surprised to see a return of a union dues or “agency fees” case.

What will happen at the state level? Stay tuned.

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.

I don’t know about you but the news lately has been awfully serious lately.  Thus, on this Friday before Election Day, let me share something a bit lighter.

So last night, I started watching a few popcorn movie trailers to get my mind off things while finishing up some work.  Sure, there was Star Wars: Rogue One (which I’m going to see — probably twice) and Wonder Woman (likely to see).

But then I came across this, a new trailer for an upcoming movie Office Christmas Party (caution, it’s a little NSFW for language):

(Sadly?) My first instinct was to go — this is going to be a train wreck for employment law issues. But like any good train wreck, I watched anyway.  Because when the motto of a movie is “Party Like Your Job Depends on It”, really, I felt needed to sacrifice for my esteemed blog readers.

And let’s just say — this looks like an epic employment law disaster.  You’ve got employees sledding down stairs only to crash — just a worker’s compensation claim or two there.  You’ve got inappropriate dancing — obviously a sex harassment case in there somewhere.  There’s slip and slides on ice…in the office — clearly an OSHA violation.  And an employee who has apparently stolen some reindeer — a violation of the personnel handbook for sure.

Needless to say, it looked entirely inappropriate for an office setting.

Thankfully, it’s just a movie.  But with stores now having made the changeover from Halloween to Christmas (what happened to Thanksgiving?), it seemed an appropriate reminder to review your office holiday party protocols.  I’ve covered it in many posts like this one.

As for whether I’ll actually see “Office Christmas Party” in the theater, truthfully the odds are I’ll probably see Sing with my kids first.

I only counted one employment law issue in that trailer.

clinton2013Yesterday, I offered up three questions for moderators to use during the Presidential Debates to question Donald Trump on employment law issues.

Today is Secretary Hillary Clinton’s turn.

  1. Secretary Clinton, the National Labor Relations Board has been quite active in the Obama years; in fact, despite the failure of Congress to pass the Employee Free Choice Act (of which you were an original co-sponsor), many of the ideas from that bill have made its way to regulations from the NLRB including new speedy elections.  You have indicated that you will “fight to strengthen the labor movement” on your website.  What additional changes would you like to see to the nation’s labor laws and why isn’t what we have now enough?
  2. You have indicated that you will also “protect workers from exploitation, including employer misclassification, wage theft, and other forms of exploitation.”  Yet our federal and state laws already prohibit the use of independent contractors as employees and cover the so-called “wage theft” examples. What are you going to do differently, if anything?
  3. In a speech yesterday, you spotlighted a constituency that we haven’t heard much about during this election cycle — those with disabilities.  And you have indicated that you want to fulfill the promise of the Americans with Disabilities Act.   Beyond eliminating the sub-minimum wage that is allowable under current law, would you make any changes to the ADA itself? And in “fulfilling the promise” of the ADA, would you ask the Department of Justice make enforcement a top priority of its strategic plan?

I’m under no illusion: These topics are unlikely to get discussed.  We’ll probably hear more about e-mails and taco trucks.  But perhaps someone somewhere will press the candidates on these important issues.

trumpphotoEach election cycle, I hope that employment law issues will move front and center to the Presidential campaign.

And each cycle, I’m slightly disappointed that such issues only get short shrift.  Sigh.

But as I’ve done before, it would be nice to fantasize about employment law questions that could be posed to the candidates at the upcoming Presidential debates.

So, just in case Lester Holt or the other moderators are brainstorming ideas on the internet, here are three questions I’d like to see asked of Donald J. Trump.

(I’ll have a followup post for Hillary Clinton.)

  1. The U.S. Department of Labor has recent proposed raising the salary threshold requirements for employees to receive overtime. As a result, millions more workers may start to get overtime in December of this year.  But this week, various states and business groups have filed suit to block its implementation. You have previously said that you support a rollback of these new rules.  Why? What specific changes would you propose to the overtime rules if you were going to roll back the current proposal.  Be specific.
  2. You recently said you would advise your daughter Ivanka to “find another career or find another company” if she faced the same harassment as alleged in the sexual harassment lawsuit against former Fox chief Roger Ailes.  Can you explain why you think your daughter should leave a company if faced with harassment? Doesn’t the company bear some responsibility to its employees to stop the harassment and ensure a safe working environment for its employees?
    Followup question: Given the allegations against Roger Ailes and Fox’s payment of $20M to resolve allegations by one of its former employees of sexual harassment, how do you justify consulting with him and what message (if any) do you think it sends to your female workers on your staff?
  3. States like Connecticut have passed a version of Paid Sick Leave. Do you support such a law? As a followup, you recently said you would support a six-week paid maternity leave program.  Why are fathers excluded from your proposal? Do you think fathers should have any paid time off after the birth or adoption of a child?

 

 

USDOL Headquarters in DC
USDOL Headquarters in DC

Late Monday, several reports on Twitter indicated that the Department of Labor would be announcing and releasing the final version of the revisions to the white-collar overtime regulations.  You can see my prior posts on the subject here and here.

This has been a long time coming. It was way back in 2014 (!) that the President indicated that he wanted the USDOL to revisit them.

And the anticipation on Twitter has been breathless with so-called experts predicting for months that the new regulations would be released any day. Or last week.  Or in July.  And speculation on what would be in the final overtime rule has run rampant.

So, rather than predict what will be in the final regulations, I want to highlight three areas that I’ll be looking at in my initial review of the regulation.

  1. Salary Test: The proposed rule last year raised the salary test to $50,440 from its current level of $23,660 (which the vast majority of employees meet in Connecticut due to minimum wage being high.)  The latest thinking is that the final rule will set that threshold at $47,000.  (UPDATED: News reports on Tuesday afternoon indicated that the threshold will be set at $47,476 and be updated every three years.)  What does that mean? It means that any employee who is paid less than that amount regardless of his or her duties would need to be paid overtime for any work over 40 hours.  That would indeed be a big change.  So, when we look at the new rule, first item to look at is the salary threshold set by the USDOL.  There is no question it will be high; it’s just a question of how high.  Bonus item to look at: Will the salary test be tied to inflation? In other words – will the threshold keep up with inflation automatically in future years? The proposed version tied it to the 40 percentile of income; will that remain in the final rule?
  2. Duties Test: The proposed rule did not explicitly change the duties test for overtime — meaning that the administrative, professional and executive exemptions would still apply as current framed — albeit at a higher salary threshold.  However, the proposed rule solicited input from the public about how best to alter the duties part of the test.  Would the USDOL be so bold as to introduce changes to the duties test without first floating it in a proposed rule? The prevailing wisdom is no, but keep an eye on that and any hints about future revisions to this rule. (UPDATED: News reports on Tuesday suggest that no changes to the duties tests will be forthcoming.)
  3. Timing: Another thing to look for in the final rule: How much time will employers have to comply? And how long until the rules go into effect? Back in November 2015, a government official suggested that employers would have 60 days to comply. Will that hold up? (UPDATED: News reports on Tuesday also indicated that employers will have until December 1, 2016.) 

For employers in Connecticut, the new rules will make things particularly challenging. For years, Connecticut’s stricter overtime rules have been the go-to source for employers. However, with the new federal rules being even stricter (or, more favorable to the employee) than the state rule, we may see a return to federal dominance.  So a bonus thing to look for in Connecticut: How will these rules interact with Connecticut’s rule? Don’t just read the federal rule in isolation.

And to be clear, there are other aspects of this rule that we will undoubtedly have to look for.  But I’m not going to make predictions about a rule we haven’t seen.

I will make one overall prediction, however: Publications, blogs and people on Twitter are going to be hysterical over the pronouncements of the new rule. My suggestion? Ignore them.  The hype is designed, in part, on scaring employers into a frenzy.

What to do instead? Employers should view this new overtime rules with a bit of detachment.  Get the facts.  Then, figure out what applies to your business and start work on a plan to meet those requirements.