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.

rockRemember “Ban the Box” and the fair chance employment bill from earlier in the session?

Well, it passed last night. Sort of.

An amendment to the original bill essentially wiped the prior version clean.  Thus, whatever you think you knew about the measure you can put that aside.

What passed last night (House Bill 5237) was a very watered-down version of the measure.   It moves on the Governor’s office for signature and will become effective January 1, 2017.

The key provision is as follows:

No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Any violation of this rule is subject to a complaint filed with the Labor Commissioner, but not a lawsuit.

I don’t expect that this will be the end of the issue however. The measure also creates a “fair chance employment task force to study issues” related to employment for individuals with a criminal history.

For now, employers need only amend their employment application to remove the box that asks about “prior arrests, criminal charges, or convictions.”  But nothing prevents a followup form from being requested or prevents these issues from being discussed in the job interview itself.

As the CBIA noted, the revised version that passed is a “wise reworking” that also affirms that businesses may run background checks on candidates if state or federal law prohibits people with criminal backgrounds being hired for a job.

Employers ought to review their existing applications and update them to comply with this new state law by January 1, 2017 (assuming the Governor’s signature, as noted.)

As I take some extended time off from the office, frequent guest poster Chris Engler takes a look back at some of the earliest background on labor history.

Because I majored in history in college, I’m a firm believer that understanding history is of great benefit when planning for the future.

Early “Workers”

Autumn is in many ways a time of heritage and traditions.  With the trifecta of Columbus Day, Veterans Day, and Thanksgiving, we have numerous opportunities to step back and reflect on our predecessors and forefathers.

I have always enjoyed pondering the effects of their actions and considering where we’d be, for better or for worse, without them.

That’s a worthwhile exercise to do with employment law as well.  To better understand the current state of the law, as Dan said above, it’s helpful to know what the workplace was like in the days of old.

As fate would have it, this is also the perfect time of year for this type of reflection.

They didn’t exactly make the front page, but the anniversaries of three important milestones in the development of American labor relations recent came and went.

The late summer and early fall marked the 180th anniversary of a pair of cases involving Thompsonville Carpet Manufacturing Company, late of Enfield.  In one of the first recorded strikes in Connecticut, carpet weavers had walked off the job.

The company sued them, claiming that they were illegally interrupting the company’s business.  One of the strikers returned the favor and sued his employer on the grounds that the first lawsuit was just an attempt to get him arrested.  (Back then, civil defendants without property to cover their potential liability were often imprisoned.) 

A win for the employer in these important early cases might have crippled the nascent labor movement.

However, the jury in the first case sided with the strikers, empowering and emboldening workers in other industries.  (The second lawsuit was eventually withdrawn, presumably when the striker was released from jail.)

However, this did not end the question of the legality of strikes and unions.  That question was dealt with again by the Clayton Antitrust Act, which celebrated its centennial on October 15.

Antitrust law generally has no place on an employment blog, but the Clayton Antitrust Act had one nugget of relevance for us.

Clever employers (or clever employers’ clever lawyers) had taken to using earlier antitrust laws against striking unions by claiming that they were cartels and restricted trade.

The Clayton Act sought to put an end to this by specifically exempting unions from the act’s provisions.

Both of these developments arguably came at the expense of employers.

The third development pointed the other direction and limited the behaviors of unions.  The case was Steele v. Louisville & Nashville Railroad Co. which turns seventy in a few weeks.

In this case, the U.S. Supreme Court recognized for the first time the duty of fair representation.  This duty requires unions to be diligent and fair in representing the interests of all members of the bargaining unit.  While the case involved racial discrimination (white union members were trying to keep their African-American coworkers out of the union), the doctrine has since expanded significantly.

The merits of these three legal developments are still debated.  Regardless of one’s viewpoint, however, there can be no doubt that they have had profound impacts on American labor relations and, by extension, on society as a whole.

Just think what the workplace will look like in another 180 years.

Yesterday, I recapped part of the CHRO program on the new Public Act 11-237 which revises the procedures for processing and investigating complaints.

Next up was CHRO Principal Attorney Charles Krich.  (Careful blog readers may note that he comments on the blog from time to time.)

First off, Charlie gets kudos from me just for giving this blog a shout-out at the program.  He cited to one of the posts last month where I trumpeted that it was a “whole new world” for the CHRO on October 1st.

But substantively, Charlie had a frenetic powerpoint presentation that summarized where the CHRO has been and why the changes in the procedures were needed.

While he, like CHRO Executive Director Robert Brothers, Jr. before him, said that part of the problem was decreased staffing levels (69 employees, down from 108 nearly 20 years ago), he acknowledged that the problems with the agency were far deeper than that.  He also acknowledged that, even back in the late 1980s, the CHRO was under fire — as a result of a series of articles from the Hartford Courant (Hartford Courant articles from 1984-1992 are not online).

Despite the criticism that the agency has faced, he also pointed out that the agency has been successful in some areas. For example, he noted that the settlement record at the agency is higher than similar state agencies.  He also noted that the funding that the agency receives from the federal government is also less than others — meaning the agency is doing its job with less resources.

Some of the slides won’t make sense without Charlie’s talk, but he was kind enough to allow me to share them.  You can view them below.

 

Yesterday, the EEOC held a public hearing on the use of credit reports as a basis for making hiring and other employment-related decisions.  Jon Hyman, of the Ohio Employer’s Law Blog, has an excellent recap of the discussion which I won’t attempt to duplicate here.  Jon argues that it would be unfair to employers to prohibit them from using a criteria that may be quite relevant to various job positions. 

A bill to prohibit the use of credit reports by employers in Connecticut never made it to a vote in the Connecticut General Assembly earlier this year.  That bill, (H.B. 5061), would have prohibited employers from requiring:

an employee or prospective employee to consent to the creation of a credit report that contains information about the employee’s or prospective employee’s credit score, credit account balances, payment history, savings or checking account balances or savings or checking account numbers as a condition of employment unless (1) such report is substantially related to the employee’s current or potential job, (2) such report is required by law, or (3) the employer reasonably believes that the employee has engaged in specific activity that constitutes a violation of the law.

I have little doubt that given the emphasis on the federal level on this issues, that we will see this bill re-introduced at the beginning of next term.  Notably, however, there was much criticism of the bill, including opposition from CHRO, the CBIA, the Department of Public Safety and the Division of Criminal Justice.

For more on the EEOC’s hearing, see posts by the DC Employment Law Update and Employee Screen IQ

Let’s face it. It’s downright hot today.  On days like this, it’s easy for the mind to wander to thoughts of lobsters at Abbotts or ice cream from the UConn Dairy Bar. 

And depending on your perspective, it’s a hat-type of day — though for most people, a baseball cap is probably the biggest fashion statement people want to make.

What does that have to do with labor & employment law? I’m getting there. 

Sometime ago, I came across a neat little website put on by the Judicial Branch Law Library entitled a "Dose of Connecticut Legal History."  It recaps interesting cases and events in Connecticut history.

One the cases recaps The Danbury Hatters Case at the early part of the 20th century.  If you haven’t heard of it, the law library site recaps it nicely. 

Before current labor laws were instituted, the case arose out of an employer’s failure to recognize a hatters’ union.  The employees went on stike; the employer hired replacements and the workers organized a boycott. Six years later, the U.S. Supreme Court ruled against the strikers. Seven years after that the Court again ruled in favor of the employer allowing the employer to collect damages.  As a result, the workers’ union organized a "Hatters’ Day" asking for an hour’s pay from members to help pay the fines.

With the rise of National Labor Relations Act and the shrinking of union influence in the Connecticut workforce, it’s hard to imagine a time when Connecticut stood at the center of many labor law battles.

But as you don your cap today, you can think of the Danbury Hatters case as one where Connecticut took center stage on the labor law battles from yesteryear. 
 

Connecticut state law has long made it plain that the "policy of the state to encourage all employers to give favorable consideration to providing jobs to qualified individuals, including those who may have criminal conviction records." (Conn. Gen. Stat. 46a-79.)  

In a prior post, I’ve discussed how state law does not prohibit private employers from using conviction records to make employment decisions, while public employers do have some restrictions under Conn. Gen. Stat. 46a-80.

A new bill being (R.B. 5207) floated in the Connecticut General Assembly (a hearing on it was held on February 25th) would expand the protection by not allowing the public employer to ask about a conviction under after a conditional job offer has been made (with limited exceptions). Specifically: 

Except as provided in subsection (a) of this section, no employer, as defined in section 5-270, shall inquire about a prospective employee’s past convictions using a consumer report, as defined in section 31-51i, until such prospective employee has been deemed qualified for the position and a conditional offer of employment has been made to the prospective employee.

Advocates for the measure held a press conference on the subject last week, according to a report from CT News Junkie.

The measure is still a long ways off from thorough consideration or even passage. It has yet to be voted out of committee.

A few weeks ago, I posted about various issues that I believed the CHRO had and how they were being addressed (including a working group established by Governor Rell).  I’ve also posted on some lawsuits involving CHRO employees and claims of discrimination within the agency,

But the issues regarding the CHRO have been around for many years; they just seem to ebb and flow with the times.

For some historical perspective, there is a fascinating hearing in May 2006 by the Connecticut legislature on the CHRO.  Connecticut’s Network, CT-N, keeps these hearings "on-demand" for viewing anytime (if only I could embed the video here, I’d be in heaven, but you’ll have to settle for a link here to the video or you can download it directly here). 

State Senator Edith Prague presides over the hearing as Chair of the Labor & Public Employee Committee  As with any such hearing, there are moments of pure tedium (and its a bit long, so feel free to browse), but it also provides a different perspective on what some people have viewed as an issue with the CHRO.