While you might think our department at Shipman & Goodwin LLP would be content to rest on just this blog, my fellow colleagues have actually been passing along tidbits for years in its quarterly Employment Law Letter publication.

The latest issue is now available online here.

I really like the cover article on cameras in the workplace — a topic I’ve touched on a little bit before here and here.

Our opinion is that we will probably see more and more litigation that in some way involves cameras. These days, most adults and many children carry phones or other electronic devices that are capable of recording images wherever they go, including the workplace. However, employers should think twice before prohibiting the taking of photos at work. Today’s activist NLRB has issued some decisions suggesting that such a prohibition may have the effect of interfering with employee rights to engage in concerted protected activity, for example by documenting unsafe working conditions,

The newsletter also focuses on other topics including non-compete agreements as well.  It’s definitely worth a read to catch up on things — particularly in the public sector.

I had another post scheduled to go up this morning, but the news of the Newtown elementary school shooting makes it irrelevant. 

As of midday Friday, the reported death toll was 27, with over a dozen kids included.

As a father myself, the news is horrifying.  Absolutely horrifying. 

A few years ago, there was another mass shooting — this time at Hartford Distributors, Inc.  At the time, I penned a piece that asked, “Are there really any ‘lessons’ to be learned from evil?” 

I concluded no. Not really. And I knew, like we all do, that this type shooting would happen again. After all, it had happened in Connecticut with the Lottery Headquarters shooting back in 1998 too

Indeed, as we look for answers from this tragedy, perhaps its best to acknowledge that we can never truly understand what brings people to commit evil and that despite whatever efforts we might make, something like this will sadly happen again.

Today, Connecticut is in shock.  And we’re filled with unbelievable sadness.  My heart goes out to everyone in Newtown and all those affected by this.

Last week the Connecticut Bar Association’s Labor & Employment Law Committee held an informational breakfast with the NLRB to discuss the NLRB’s proposal to make Hartford (Region 34), a subregion of the Boston office (Region 1). 

Nick Zaino, the CBA Committee chair, forwarded these highlights as to why the consolidation is very likely going to become reality:

  • The overall NLRB caseload and the number of NLRB employees is down by about 50% from the 1970s
  • A “normal size” region generally process between 700 and 1000 cases annually
  • There are a number of regions–approximately 10–that are considered small regions, including Hartford. Hartford currently processes around 450-500 cases
  • The NLRB has been evaluating the possibility of making smaller regions subregions as vacancies occur at the Regional Director level
  • The NLRB looked at consolidating the Boston and Hartford regions when the Boston Regional Director, Rosemary Pye, announced that she would retire
  • Under the proposal, Jonathan Kreisberg would become the Regional Director of the combined Boston and Hartford regions with his main office in Boston
  • There are no planned reductions in personnel in the Hartford NLRB office, although the Boston and Hartford offices could look to consolidate positions as vacancies occur through attrition
  • John Cotter will be the officer in charge of the Hartford office, but there will be no change to his job duties
  • There should not be any significant changes to the investigation or case handling process
  • The consolidation of the Boston and Hartford offices would not become effective until notice is published in the Federal Register
  • The anticipated date for the consolidation is October 1, 2012.

 

A few odds and ends to start the day:

  • Last Friday, I appeared on the 100th installment of The Proactive Employer podcast— a podcast devoted to covering various employment law developments.  The podcast is hosted by Stephanie Thomas, who covers statistical and economic consulting for employers in he
    It's "Hot" in Hartford

    r “real life”.  Along with fellow interviewees Jon Hyman and Philip Miles, I talked about the hot topics in employment law and laid out some predictions for employers to think about over the next year.  Be sure to take a listen to this informative podcast here.

  • I know there are numerous paralegals that are loyal readers to this blog.  To that end, I’ll be speaking to the Central Connecticut Paralegal Association on February 16th at The Hartford Club.  I’ll be covering new employment laws for 2012.  Be sure to sign up and attend.
  • I’ll also be speaking to the Staffing Management Association on March 14th at Dakota’s in Rocky Hill.  SMA is a special interest chapter of SHRM.  (You can learn more on their website.)  I’ll be discussing the impact of social media in the hiring process and in the workplace.  Be sure to sign up on their website soon and save the date.
  • And for something completely different: last week, the respected Sad City Hartford blog released its “Hot in Hartford 2012” nominations list.   The list features such luminaries as Mayor Pedro Segarra, WNPR Host Colin McEnroe and even The Russian Lady.  Oh, and me.   The blog, in nominating me, states: “Mr. Schwartz is not only a very successful Hartford lawyer, but also a popular blogger as well. Hard to believe anyone could do both of those things.”  I would’ve added, “hard to believe anyone would get excited about an employment law blogger” too, but my sincere thanks for the inclusion.

 

The Connecticut Supreme Court today ruled (in a decision that will be effective August 2, 2011) that the ministerial exception found under the First Amendment bars certain employment related claims brought against religious institutions.

Ministerial Exception Applies to More Than Churches

The court’s unanimous decision in Dayner v. Archdiocese of Hartford can be downloaded here.

In doing so, the Court explicitly adopts the rule found in the Second Circuit in Rweyemamu v. Cote — a case I discussed back in 2008 here.

That rule requires a court to consider whether: “1) the employment relationship is religious in nature; and 2) if so, whether adjudicating the particular claims and defenses in the case would require the court to intrude into a religious institution’s exclusive right to decide matters pertaining to doctrine or its internal governance or organization. ”

In this case, the court said that the claims must fail. Victory to the religious employer.

For religious institutions in the state, this case is a must read and will clarify the standards that will (or will not) apply to reviewing employment decisions it makes.   The case — which concerns the dismissal of a religious school principal — will have a more wide-ranging impact than you must first think about.

The case applies to ministerial exception to more than simply discrimination-type claims. Rather, the court applied it equally to common-law tort and contract claims as well.

The case has a lot of interesting tidbits – including some buried in footnotes — and I hope to point out a few of them in an upcoming post. Until then, religious institutions in the state have some new required reading.

Ministerial Exception

UPDATED 2 p.m.

About five weeks ago, I wrote about the new Bureau of Labor Statistics report that showed union membership and representation was down in Connecticut in 2010 from 17.1 percent of the overall workforce to 16.7, or in raw numbers from 265,000 workers to 258,000. 

But I also noted that compared with 2007 (when there were 253,000 union members), there was still an increase in union membership.  In essence, the numbers have remained relatively constant when reviewed over a span of years.

So imagine my surprise at this morning’s headline from the Hartford Courant

Connecticut’s Union Coverage Falls By 17 Percent

Holy Cow! Had I missed something? Uh, no. 

The headline is just outright wrong. (UPDATE: The Courant has revised their website to this new headline "Connecticut’s Union Coverage Falls Slightly In 2010.")  Indeed, when you read the story itself, you can see that the numbers merely show what I previously reported: That the percentage of workers who are union members fell below the 17 percent level.

In actual percentage terms. union membership declined 2.6 percent in 2010.  Considering the reductions in force that occurred in 2010, it’s not surprising to see such a dip. Let’s wait to see the long-term trend before pronouncing a massive decline in unions. 

Mistakes happen, but headline goofs like this only reinforce some people’s perceptions that unions are in much worse shape in Connecticut than they are. 

UPDATE: The Conference has been postponed until Fall 2011.  

I’m looking forward to next week’s BizBuzz Social Media Conference at the Connecticut Convention Center. I’ll be speaking on the "CEOs Who Blog" panel discussing this blog along with some tips to companies who are considering jumping into the social media scene.

For those unfamiliar with BizBuzz, it is a full-day event that will explore the impact social media has on marketing, advertising and public relations as well as the latest tools to engage the public. Participants will learn how to use social media for marketing, customer service, and public relations. There will be three tracks available for conference participants: Nuts and Bolts, Marketing, and Business Management. The event will be held at the Connecticut Convention Center in Hartford from 8:00 am to 5:00 pm

If you’re going, stop by the panel and please feel free to introduce yourself.  They’re expecting over 500 attendees. 

 

As a fellow Connecticut blogger Ryan McKeen has said before, the Connecticut Judicial Branch Law Libraries’ Newslog, is one of those hidden-in-plain-sight web gems that ought to be discovered more often.  In a recent post, they referenced new reports from the Office of Legislative Research which provides answers to some questions that might otherwise go unanswered.

Among the reports recently released is a fascinating look at the Connecticut insurance labor data. The report was compiled in response to a request to determine how many jobs the insurance industry provides to Connecticut while also determining what jobs may have been (1) outsourced to offshore vendors and (2) given to workers here on a visa.

Notably, Connecticut’s place as the "insurance capital" of the world has eroded, as the employment numbers confirm:

It appears that the employment level peaked in 2002 at 67,828 positions and has eroded since then. Over the past year, from June 2008 to June 2009, the employment level has dropped from 66,100 to 64,200, a loss of 1,900 jobs, which represents 2.9% of the jobs. According to the Courant, the industry’s employment peaked in July 1990 at 83,300 and ended 1999 at 71,500. Thus, from July 1990 to June 2009, the Connecticut insurance industry’s employment level dropped from 83,300 to 64,200, a decrease of 19,100 jobs or about 23% of its workforce.

For employers that rely on the insurance industry for its livelihood, this drop represents a significant portion of business over the years.

There is a practical use to such numbers as well.  As companies defend themselves in discrimination claims arising from layoffs and reductions in force, numbers like this can provide a much needed context to the company’s business losses.  This may provide further support to a company’s legitimate nondiscriminatory reason for its decision.

On Wednesday, May 27th, National Labor Relations Board Chairman Wilma Liebman and General Counsel Ronald Meisburg announced the appointment of Jonathan B. Kreisberg as the Regional Director of the NLRB’s Regional Office in Hartford, CT (Region 34).

Mr. Kreisberg succeeds former Director Peter B. Hoffman, who retired in March 2009.

Employers and attorneys in Connecticut will no doubt be familiar with Mr. Kreisberg. He has been a career NLRB employee, and has served as Regional Attorney in the Hartford Regional Office since 1989. He is also a former chair of the Connecticut Bar Association’s Labor & Employment Law Committee.

In a press release announcing the appointment, Chairman Liebman and General Counsel Meisburg stated:

Jonathan Kreisberg brings a wealth of experience and abilities to his new position. During his many years of service with the Agency, Jonathan’s excellent legal and organizational skills have resulted in the amicable resolution of many labor disputes and meaningful remedies for employees, unions and employers under the NLRA. We are confident that his considerable experience with the Agency and his active involvement with the labor-management community in Connecticut will enable him to continue the tradition of excellence in the Hartford Regional Office.

A native of Bayside, Queens, New York, Mr. Kreisberg earned his B.S. degree in 1974 from Cornell University’s School of Industrial and Labor Relations, and his J.D. degree in 1977 from American University’s Washington College of Law.

Remember last year’s mess on the roads? If you recall, lots of Hartford-area employers sent their employees home early during a snow storm — creating gridlock and lots and lots of headaches. As a result, Gov. Rell set up a task force to coordinate with the largest area employees on their dismissal patterns. 

Tomorrow will be the first big test of that, with the forecast calling for heavy snow during the afternoon and evening commute.  

But suppose you’re not one of those employers affected by the task force, what are some issues to think about (which follows up a post I did last year on the subject as well).  If you don’t already have an inclement weather policy (or even if you do), you can ask yourself:

  • Will employees be paid for the time when the business is closed?
  • Will employees be paid if they don’t report to work due to inclement weather when the business is open?
  • Can an employer discipline or discharge and employee for failing to report to work due to weather conditions when the business is open?

Quite simply, absent a declaration of a state of emergency, private employers are free to determine their own policies for handling snow storms (or another natural events.) 

Some employers may ask — what should I do for our company? The answer is, of course, it depends. Some employers who need to maintain operations 24/7 (a hospital, hotel, etc) may want to designate certain employees as "essential". Others may decide that they can deal with telecommuting employees for a half-day.

But establishing a policy at the outset so employees know what to expect is essential to avoiding problems later on. Ultimately, setting reasonable expectations (asking employees to call in if late, and having them make up for lost time) may be all that is needed for some.