As part of my continuing series of posts about the CHRO, and following up from the 75th Anniversary panel discussion earlier this week, I wanted to provide an early look of the statistics that are soon to be released by the agency.

I was provided a preliminary draft in preparation for the panel presentation; it should be out in the next week or two and I was asked not to divulge the specific numbers.  Stay tuned for my deep dive into the numbers when they are officially released. (As a refresher, you can see last year’s numbers here.)

But there are few trends that are readily apparent from the draft.

First, as we have all suspected, sexual harassment claims filed with the CHRO are up substantially over the prior year.  This is not too surprising given the publicity regarding the #metoo movement.  Still, we haven’t seen these types of numbers in nearly 15 years.  When the final numbers are released, expect a big increase in sexual harassment claims from FY ’17 to FY ’18.

Second, we continue to see an increase in the numbers of employment discrimination claims being filed at the state agency.   While it is tempting to draw conclusions from this, the numbers seem to correlate closely to the increase in sexual harassment claims.  Normally, in an improving economy, we see decreases in the numbers of claims filed. We haven’t and that should raise some concerns for employers.

Third, the numbers of cases withdrawn “with settlement” are down substantially.  It’s hard to know what to make of this. With more cases getting dismissed by the agency, it could just be that some of the “nuisance” value cases are getting handled that way, but the drop seems to be much more than that. When the final report is released, it’ll be worth taking a deeper dive into the numbers.

Despite all of the numbers, the numbers of cases certified to public hearing and the number of reasonable cause drafts issues has remained constant from year to year.  This may be the result of the consistent approach that the CHRO has been seeking to implement over the last few years.

The biggest takeaway for employers? Discrimination and harassment complaints are likely at the second highest total they’ve been at in the last decade.

The age of increased discrimination and harassment claims isn’t over; it’s happening right now.

So a few weeks back, I suggested that we were entering into a new era of sexual harassment cases and wondered out loud when the statistics would back up my observations.

We now have our first signs.  Maybe.

In my exclusive continued look at the case statistics from the Connecticut Commission on Human Rights and Opportunities, we can see the first signs of an increase.

But as I’ll explain below, it’s difficult to know if this is a statistical anomaly.

Despite significant drops in most types of discrimination complaints, the number of sexual harassment complaints in Connecticut went up last fiscal year to 145, up from 135 the year before.

As a percentage of overall claims, sex harassment employment claims are just 3 percent of the overall claims filed, up from 2.5 percent the prior year.

But here’s the issue: When you look back at prior fiscal years in 2014 and 2015, the number of sex harassment claims is still below those years.

In other words, is it a trend up? Or overall down? Indeed, the numbers from FY 2012 are comparable to FY 2017’s numbers. Except that as a percentage, there were more sex harassment claims made 5 years ago, then now (3.6% to 3.0).

What else do we see? Well, as expected with an overall drop in cases is an drop in claims of wrongful discharge, refusal to provide reasonable accommodations, terms and conditions, and even demotions.

Remaining constant were claims for failure to promote, termination of employment due to pregnancy, and aiding & abetting discrimination.

When you review the basis for claims filed, we see drops in claims for age (FY 2017 451 vs FY 2016 518), race (551 vs 616), sex (507 vs 532) and physical disability (445 vs 520).

Some other bases hold steady or even slightly increase: ancestry claims (200 vs 188) and mental disability claims (103 vs. 110).

For employers, watch the trends. Will sex harassment claims continue to increase? And will overall claims decline?

There’s more that we can glean from these numbers too. I’ll have more in an upcoming post.

 

 

numbersAt this week’s CHRO information session, I was able to review the new statistics released by the CHRO this fall regarding case filings and dismissals.

They’ve now been posted live on the CHRO’s website here.

It’s something I’ve covered each year and I’m always fascinated by what these statistics show — and don’t show.

What’s the big takeaway this year?

The trend of increasing numbers of discrimination complaints being filed that we have seen in Connecticut since 2012 (when just 1838 complaints were filed) is showing no signs of abating.

Indeed, in the fiscal year ending June 30, 2016, 2616 complaints were filed, up from 2482 the year before.  Thus from FY 2012 to FY 2016, that’s a huge 42 percent increase in the number of claims filed.

Now, not all complaints with the CHRO are employment-related.

But as with prior years, that number has been going up as well.

For FY 2016, there were 2160 such complaints filed, up from 2017 last year, and up from 1559 four years ago.  Again, that’s a 39 percent increase in employment-related claims filed over the last four years!

I’ve noted this in prior years but these increases are head-scratchers.  Normally, in an improving economy, claims go down.  While the Connecticut economy hasn’t been growing a lot, it is still somewhat stable.  

Moreover, such increases are counter to the national trends which have seen the numbers of claims filed with the EEOC decrease from their peaks in 2010, 2011 and 2012.    (Though I should note that in FY 2015, the EEOC did see a slight increase — but the numbers are still down 10 percent from their peaks early this decade.)

I speculated at this week’s informational session that it could be that more claims are being filed because it’s easier than ever to pass the Case Assessment Review stage and try to get something at a mediation.  Those at the CHRO challenged that argument but no one at the meeting had a good idea of what could be causing the rise.

Regardless, employers who have been sensing that more complaints than ever are being filed aren’t far off the mark.

I’ll take a deeper dive into the statistics in tomorrow’s post.

Two women strikers from Ladies Tailors union on picket line during the garment workers strike, 1910, New York City - Library of Congress
Two women strikers from Ladies Tailors union on picket line during the garment workers strike, 1910, New York City – Library of Congress

The death of unions has been predicted time and again.

Each time a new round of statistics come out, we (me included) try to make some sense of it.

Just check out some of my posts from the last several years.

So, a few weeks back, a new round of statistics was released.

And once again, the latest numbers show big gains for unions in the state.  In 2013, union representation stood at just 220,000 people (or 14.3 percent of the workforce).  By 2015, that number jumped to 277,000 (or 17.4 percent of the workforce).

That represents an increase of nearly 25 percent over the last two years.

Last year, the agency cautioned that the change may not be as large as it appears because “Connecticut has a small sample size in the survey” (according to a Hartford Courant report).

Indeed, Connecticut private businesses expanded employment across all sectors in 2015 by adding 22,600 jobs.  So, the statistics make it seem that nearly all of that gain (and the loss of 400 jobs from the public sector) went to unions.

Something doesn’t add up.

Nevertheless, I think it’s fair to conclude that the unions in the state are more than holding their own in Connecticut.

Nationally, union membership rate stands at 11.1 percent — unchanged from 2014, but down from 20.1 percent since 1983.

 

 

 

You might need a calculator
You might need a calculator

For yet another year, Connecticut’s minimum wage is on the increase.

Effective January 1, 2016, the Connecticut minimum wage will be raised to $9.60 per hour effective January 1, 2016.

Although the federal minimum wage is $7.25, Connecticut employers must pay the higher rate under state law. The updated wage and hour law poster, including the minimum wage rate for this year is available here.

This notice is required to be posted wherever covered workers are employed, and employers should make sure that the posting is up prior to January 1.

In addition, remember that the minimum wage will increase once again on January 1, 2017 to $10.10 per hour.  All of these changes were mandated as part of Public Act No. 14-1, which was passed in 2014.

Of course, the minimum wage isn’t applicable in all circumstances. In some limited areas, a sub-minimum wage can be used. And for waiters and bartenders, a still different minimum wage can be used too.

In any event, review your payroll now so whatever changes that need to be made can go into effect in a few weeks.

chro2In yesterday’s post, I talked about how employment claims being filed are up big at the CHRO.

Indeed, in looking at the statistics further, I realized that it is the second highest number of claims being filed in the last 15 years.

So, FY 2015 was a very big year for claims.

But typically, in an improving economy, claims go down.  At least that’s the prevailing wisdom. So, what gives?

I wondered if the statistics could help explain the increase further?

In part, yes.

abacusIf you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — those claims are basically the same (1174 for FY 2015 vs. 1164 in 2014.)

Compared with 2003 – the peak year for employment claims at 2211 — discharge claims are actually down substantially.  Indeed, in 2003, there were 1385 claims.  Thus, discharge claims are actually down 15 percent since 2003.

So, where are these claims coming from? One is from an obvious source: Retaliation claims.

In 2003, there were 516 claims filed. In 2014, 625. And in 2015, 753.  A 46 percent increase in the last decade or so and 20 percent over the last year alone.

Another is from a not so obvious source: from the “terms and conditions” area.  That is, employees who claim that they are being discriminated against in the “terms and conditions” of their employment when it comes to such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment – however small.

In 2003, there were 411 such claims filed. In 2014, 782. And in FY2015 —  a spike to 941.  That translates to a 130 percent increase in such claims over the last 12 years and 20 percent over the last year alone.

In my mind, that means that many current employees are bringing discrimination claims against their employers based on the terms and conditions of their employment.

One other source? Harassment claims.  Notably, I’m not talking about sexual harassment claims which are actually down from last year and down 24 percent from 2003.

Instead, this is the catch all claim for “I’m harassed” because of some other reason.  503 claims were filed in FY 2015 vs. 380 in 2014 and just 175 in 2003.  That’s an increase of nearly 190 percent in the last 12 years and 32 percent last year alone!

Again, these are typically brought by current employees who may be dissatistifed with things at work and believe that they are being “harassed” by their supervisor.

Indeed, the notion of “workplace bullying” movement is premised, at least in part, on this idea.

So, what’s the takeaway here? You may be looking for claims in the wrong spot. Dismissal claims are fairly constant, but it is claims by current employees that are up substantially over past years.

And while we’ve talked about the increase in retaliation claims for many years, but harassment and “terms & conditions” claims are now the hot areas — at least in Connecticut.

Is there anything else to be gleaned from the statistics? Any other reasons why we’re seeing an increase? Stay tuned for the next post.

Numbers everywhere
Numbers everywhere

As I noted on Friday, the Connecticut Commission on Human Rights & Opportunities has, at long last, released case statistics for 2014-2015 fiscal year and has updated their statistics for the last several years.

As a result, there are lots of new numbers to pore over and information to be gleaned.

The biggest takeaway? The number of discrimination complaints filed with the agency is up — and up big over the last few years.

For the fiscal year ending June 30, 2015, 2482 complaints were filed state-wide, up from 2172 the year before and up from a low of 1838 just three years ago.

For those playing at home, that translates to a whopping 35% increase in discrimination complaints from FY2012 to FY2015.

Now, not all complaints filed with the CHRO are employment-related. But even those employment discrimination complaints are also up big.  In FY2015, 2017 employment complaints were filed, up from 1817 the year prior and up from 1559 three years ago.

Thus, employment complaints are up 29 percent in the past three years, and up 11 percent in the last year alone.

Given the improving economy and the corresponding drop in claims at the federal level, these state statistics are pretty surprising.

Diving deeper in the numbers, raises more eyebrows.  Where is this increase coming from?

  • Age claims? 503 in 2014 vs. 505 in 2015. Nope.
  • Sexual orientation claims? 62 in 2014 vs. 51 in 2015. A decrease.
  • Sex claims? 544 in 2014 vs. 575 in 2015. A modest increase.
  • Physical disability? 450 in 2014 vs. 484 in 2015. Again a modest increase.

But a few areas stand out:

  • Ancestry? 133 in 2014 vs. 189 in 2015. A huge increase of 42 percent!
  • Color? 409 in 2014 vs. 480 in 2015. Another big increase of over 17 percent.
  • Race? 538 in 2014 vs. 596 in 2015.  An increase of 11 percent, consistent with the overall trend.
  • National origin? 218 in 2014 vs. 258 in 2015.  A corresponding increase of over 18 percent.

Thus, while the statistics can only tell part of the story, it is apparent that claims for race, color, ancestry and national origin all account for a substantial part of the increase.

What does this mean for employers? What else can we glean from the statistics? Why are complaints going up in a relatively good economy?

I’ll tackle these questions and more in upcoming posts.

On New Year’s Day, I had the opportunity to launch model rockets with my son on a gorgeous (but very cold) day.

As it turns out, it was also a windy day.  We discovered this through launching two rockets super high — only to see them carried away deep into the woods a mile away.

But it was a good way to start the year. So with that image in your mind, it’s also time to go back over the minimum wage in Connecticut. We’ve seen increases over the last few years, and this year has yet another raise.

So, as of yesterday, the minimum wage has blasted forward another 45 cents to $9.15 per hour. For restaurant workers who are eligible to receive tips, there was also an increase to $5.78 per hour.

The minimum wage will continue to increase. On January 1, 2016, it will increase to $9.60 per hour. And finally on January 1, 2017, it will max out (at least for now) at $10.10 per hour.

The Commission on Human Rights and Opportunities released a new set of statistics yesterday (my thanks to CHRO liaison James O’Neill for the update which I had requested a while back).  Unlike years past, the statistics this year show some dramatic changes; those changes should have a significant impact on how employers view the agency and the state of affairs in Connecticut.

  • First, the number of claims filed (which includes employment law claims as well as other types of discrimination — including housing) with the agency rose 16 percent for the fiscal year ended June 30, 2014.  The claims rose from 1850 to 2146.  After years of modest decline, significantly more claims were filed in the last year.  What were the reasons for that increase? That remains to be seen.
  • To its’ credit, the CHRO continues to improve on its ratio of closed cases to open cases.  Last year the rate was 106%; it edged up slightly to 107%.  It closed 2303 cases (as compared with the 2146 cases it opened).  That means cases are less likely to linger at the agency.
  • But how those cases are being closed should be concerning to employers in some respects.  The agency dismissed just 97 cases on Merit Assessment Review (basically, the paper review after the parties submit their initial filings).  Compare that with over 800 cases closed on MAR review ten years ago.  That means a lot more cases are going to mediation and investigation and cases cost a lot more to defend than in past years.
  • And what else does that mean?  It means that more cases are also getting settled at the investigation stage.  935 cases were “withdrawn with a settlement” last year.  Compare that with just 481 over ten years ago.  For employers, even the cases that would be deemed as without merit years ago are getting some type of settlement now.  Again, an increase in costs for employers.

Unfortunately, the statistics don’t yet show how many cases were found to have “reasonable cause” to proceed to a public hearing, nor how many cases were the subject of early legal invention as well.

What’s interesting as well is that the increase is consistent with the increase in claims at the EEOC for claims filed in Connecticut as well.  Over the last five years, the number of EEOC claims in Connecticut has risen by 53 percent (from 191 charges to 294.)

I’ve previously covered the trends of such statistics in various posts for the last seven years, so it’s worth reviewing them (here, here and here for example) too to see the larger trends.

For employers who believed that the discrimination claims are a relic of history, the statistics show that such claims are alive and well.  And they are costing more in time and money than ten years ago.

 

So, remember back in February where I noted that employers ought to “consider having an attorney review some of your [employment] agreements … [because sometimes,] poor drafting can sometimes be avoided by having an attorney involved”?

We have another appellate court case that emphasizes that point quiet well in Stratford v. Winterbottom.

The case involves a town and one of its employees.  The town gave the employee an employment agreement that stated:

Based upon the annual performance evaluation, and at the [m]ayor’s sole discretion and recommendation, the base salary may be increased on July 1 of each fiscal year, subject to the approval of the [council], which by Charter fixes the salaries of all mayoral appointees.

The issue? The town reduced the employee’s salary.  The question for the Appellate Court was whether the town had permission to do so.

No way, says the Appellate Court.  By including increases but not mentioning decreases, the employer is reading too much into the agreement; it simply does not have the power to do so.

Yes, the court acknowledged, the employee was at-will but that at-will clause was never used by the employer and the employee never consented to the change in salary.

Ken Adams of Adams on Contract Drafting, did a quick post about this from a contract drafting perspective last night after I mentioned it on Twitter.  I recommend the whole post, but here’s the key point:

A grant of discretion to do one thing doesn’t necessarily equal a prohibition against doing other things. If a mother tells her son that he may play video games, it wouldn’t necessarily follow that she’s thereby forbidding him from engaging in any alternative activity.

But the presumption that a grant of discretion doesn’t also entail prohibition comes up against what this manual refers to as “the expectation of relevance.” (Relevance is a principle of linguistics. According to The Cambridge Grammar of the English Language, at 38, “A central principle in pragmatics . . . is that the addressee of an utterance will expect it to be relevant, and will normally interpret it on that basis.”) The more specific a grant of discretion is, the more likely it is that the reader would conclude that the discretion is limited—otherwise there would be no point in being so specific. And the more likely a court would be to invoke the arbitrary principle of interpretation expressio unius est exclusio alterius—the expression of one thing implies the exclusion of others.

So, what’s an employer to do? Well, a salary clause can be written in a variety of ways. Consider that the employer may “revise” the salary at any time or “change” it. Or perhaps the employer can be more direct that it may “increase or decrease” the salary based on a variety of factors.  Some employers may choose to avoid discussing it altogether which would be an interesting question of contract interpretation then.

Whatever you choose, make sure the agreement accurately reflects what you intend.  Otherwise, you may not have the discretion to change something that thought was implied.