chro99Yesterday, I had the opportunity to sit on a panel discussion sponsored by the Commission on Human Rights and Opportunities. Charles Krich, a Principal Attorney, also spoke and it was moderated by Deputy Director Cheryl Sharp.

The purpose of the discussion, before dozens of practitioners in the state, was to look at the state of affairs at the CHRO.  More specifically, though, we spent a good deal of time addressing the Case Assessment Review and Early Legal Intervention processes.

As I noted at the presentation itself, the CHRO is to be commended to having such open sessions and being responsive to suggestions and criticisms offered by me and others.

There were several items of note from the meeting itself:

  • The CHRO’s resources continue to be severely tested. Krich mentioned afterwards that the staffing levels are down to just 66 people, across all the offices.  That’s down nearly 50 percent from years ago.  Positions are not being filled when people retire.  Presently, two Regional Manager positions are being filled on an interim basis by Krich and Sharp, which even they acknowledged is less than ideal.
  • That said, the CHRO is still keeping its backlog of cases a historically low levels, so the CHRO is doing better at doing more with less.
  • Nevertheless, Krich noted that they are looking at Case Assessment Review process because it is not working as intended. Previously, too many cases were knocked out at Merit Assessment Review, Krich said; now the pendulum has swung in the opposite direction.  A fix, though, isn’t easy.
  • One of the problems, Krich noted, is that those who are required to do the Case Assessment Review are not equipped to apply the standards evenly.  As a result, it is easier to just send the cases through to mediation and investigation, than to knock them out.
  • Krich himself has now started to review the Case Assessment Reviews in the Bridgeport region the last two months and believes that more cases are not passing CAR as a result.  He is able to apply some consistency to the approach there.
  • Krich said that employers should consider submitting more information in the answer process itself which he believes can be helpful in getting more cases dismissed. I pointed out that employers have resisted that of late because, it seems no matter how much information is submitted, the cases still get retained for investigation.
  • One “safety valve” that Krich believes should be used by parties more, however, is the Early Legal Intervention.  That allows the legal department to review complaints (typically after a mediation) and figure out the best course of action for a complaint.
  • I had asked what the statistics, though, were on Early Legal Intervention and I was surprised by the results. Krich indicated that over the last three months (since September 1, 2016), there were 69 cases that had gone through that.  Of that, 3 were sent directly to public hearing and 31 cases were returned for investigation. But of the remainder, 20 were given a release of jurisdiction and 15 more were tagged with a “no reasonable cause” finding.  That allows the CHRO to focus its resources on less cases.
  • Thus, for employers and the attorneys who represent them, it may be worth exploring Early Legal Intervention more.  The risk of the case going directly to public hearing remains low.

During the discussion, I also brought up the CHRO’s ineffective handling of complaints that are brought on the same facts, but against different respondents — such as against the employer (for discrimination) and a supervisor (for aiding and abetting discrimination).  Currently, those cases are each processed separately and each office handles such complaints differently. In response to additional audience support for review of this, Deputy Director Sharp indicated she would review the process further.  It was a good example of what can come out meetings like this.

There was more to the two-hour presentation and discussion than can be wrapped up in a blog post, but suffice to say that it was a productive meeting.  Hopefully, more meetings like this will be scheduled in 2017 — perhaps in another location or two throughout the state so those in Fairfield County might have the benefit of attending the next ones.

The CHRO is screaming for a reboot - like Star Trek
The CHRO Complaint Process is screaming for a reboot – like Star Trek

Lately, I’ve been hearing a lot of complaints about the Connecticut Commission on Human Rights & Opportunities from both attorneys and clients. And I’ve come to one conclusion:

The CHRO Complaint Procedure needs a reboot.

Now, before you dismiss this as a critical column – let’s be clear. I like many reboots.  Sure, the Superman Returns movie paled in comparison to the Christopher Reeve version, but I thought the new Star Trek reboot was pretty snazzy.

Why do movies go through reboots? Because the formula that had worked for the movie series for so long has just stopped working.

Think George Clooney in Batman & Robin and then the reboot with Christian Bale.

And right now, the process that the CHRO has created is just not working. It’s not working for individuals, it’s not working for companies and, I believe, it’s not really working well for the agency itself.  (And note too that I’m not suggesting the agency itself needs a reboot — though some have argued for that — rather, it’s the process as mandated by the law that this post is addressing.)

A reboot doesn’t mean failure; it doesn’t mean to throw out the entire formula. The agency has made some good strides on public outreach, for example, under the new leadership team.  It is closing cases at a good clip and the mediation process seems better than in years past with dedicated staff just for mediations.

And I wouldn’t go so far as to say we live in a post-modern age where it has completely outlived its usefulness.

But the complaint procedure which was reworked a few years ago just isn’t working for anyone. Here’s why:

Continue Reading The CHRO Complaint Process Needs A Reboot

maxSo in a post earlier on Friday, I recapped most of the employment law legislation that passed — except one. That bill, Senate Bill 446, was titled “AN ACT CONCERNING THE DEFINITION OF THE TERM “DOMESTIC WORKER”.  

Innocuous enough, right?

But as it turns out, that bill was used as a cover to pass through significant changes to the CHRO process.

You will see that many of the changes are ones that I had tipped you all on earlier this year. Then back in April, we were told that the bill was “mostly dead”.

But like the Princess Bride, “Miracle Max” worked some magic and the bill came back from the dead during the session’s last week.

And there are so many changes that a separate blog post seemed like the best way to get through it all.

So let’s get to it, shall we?

Overall, the OLR summary of the bill recaps four main areas of change to the CHRO. It:

  1. shortens certain time frames for CHRO’s processing of complaints;
  2. allows the respondent (i.e., the alleged wrongdoer) to elect to participate in pre-answer conciliation;
  3. prohibits the same person from being assigned to conduct the mandatory mediation conference and investigate the complaint;
  4. transfers certain responsibilities from the CHRO executive director to the CHRO legal counsel.

But it also makes a significant change to the definition of who is an employee:

The bill also brings domestic workers who work for employers with at least three employees under the employment-related anti-discrimination laws administered by CHRO. Among other things, this provides them with (1) protections against employment-related discrimination based on their race, color, religion, age, sex, gender identity, marital status, national origin, ancestry, and mental or physical disability; (2) a right to a reasonable leave of absence for a disability resulting from a pregnancy and other pregnancy-related protections; and (3) protections against sexual harassment. By law, employees covered under the CHRO statutes can enforce their rights by filing a complaint with the commission.

If signed by the governor, the CHRO provisions will go into effect October 1, 2015, while the provisions on domestic workers will become effective January 1, 2016.

In more detail, the bill makes several changes to the CHRO process.

Responding to the Complaint Continue Reading Back from the Dead: Procedural Changes Coming to CHRO and New Protections for Domestic Workers

Last year, the General Assembly considered changes to the Commission on Human Rights and Opportunities. That bill did not receive a final vote. This year, it’s back but recently died in the Judiciary Committee, according to the CBIA.  Will it get attached to another bill? Will it be tweaked further this fall in preparation for next year’s term? My colleague, Christopher Parkin, chimes in with the details and why employers need to keep an eye on any proposed changes.

The ink is still drying on the most recent round of changes at the CHRO, the massive amendments known as PA 11-237 (in fact, the CHRO website still points to old versions of the General Statutes), but the legislature has been grappling with proposed changes to the statutes that govern the CHRO in the last few months.

These amendments, Senate Bill 385, represent a considerable effort to clean up antiquated language and recodify the statutes to make them more accessible to the public.    

Among the hundreds of technical amendments built into the bill are plenty of new substantive changes that employers and their counsel will need to become familiar with.  Recently the CBIA has noted that this particular effort has seemed to die in committee; however, the bill is likely to reappear at one point or another. Here are the details and the impact on employers when this is considered again.  

Investigator and mediator will no longer be the same person

The CHRO has long been criticized for its practice of combining the mediation and investigation process by assigning a single investigator to handle both duties, a process the Commission has insisted is a function of insufficient funding.  Until recently, mediations and fact findings were very frequently held consecutively in one marathon day. 

Nobody is best served when these processes are combined.  Neither employers nor employees can fully trust the confidentiality of the mediation process when the mediator will be tasked with soliciting testimony a few hours later if the case doesn’t settle. 

It’s also not fair to the investigators to expect that they can fully partition their brain between mediation and investigation to conduct both appropriately.

Continue Reading A New “CAR” And Other Proposed Changes to CHRO – Can They Get It Right?

Earlier this week, I wrote about the perception among some that the CHRO has been retaining more cases for investigation by letting more cases through the Merit Assessment Review.  These cases that used to be dismissed — mainly “frivolous” ones as  I’ve collectively termed them — mean more headaches for employers who have to spend time and money defending against them.

(To simplify the blog post for readers, I labelled all these cases that had been dismissed at MAR together as “frivolous” even though there are technically different reasons why the CHRO may dismiss a case on Merit Assessment Review, including that there is “no reasonable possibility” that an investigation will lead to a reasonable cause finding of discrimination. )

In response to my blog post, CHRO Principal Attorney Charles Krich crafted a reply. While it is attached to the original blog post, I thought it notable enough that it warranted its own blog post.   While he indicated that there were no statistics yet available, he “would not be surprised if fewer cases are being dismissed for no reasonable possibility” under the Merit Assessment Review.

Here’s his reply in full (my further comments are below): Continue Reading CHRO Attorney Agrees Emphasis at Agency “Has Shifted From MAR to Mediation”

 

State Law Changes To CHRO

As I’ve noted before, the CHRO procedures were changed effective October 1, 2011.  One question that we had at the time was whether the CHRO would be retaining more discrimination claims by employees for investigation — getting past the Merit Assessment Review stage.

Previously, employers have had at least a little luck getting plainly frivolous claims thrown out at MAR.

If the reports I’ve been getting from multiple reliance sources are true, then it appears those days are over.

I’ve spoken with several people this month about cases that they are seeing at the CHRO.  Universally, the reports are that the CHRO is retaining nearly every case for a fact-finding and mandatory mediation, even the blatantly frivolous ones.

This has a few implications for employers:

1) First, employers may want to consider whether it is worthwhile preparing a long position statement and response to the initial complaint. If the case is going to move forward anyways and there is no hope of getting the case dismissed early, then what is the benefit to spelling out the entire case?

2) Second, this also means that cases at the CHRO are now going to be even more expensive.  Even the frivolous cases will have some nuisance value attached to them now because the employer will have to be involved with a full investigation if the case doesn’t settle early on.

3) Third, employers should now respond to the allegations with the idea that the case will virtually always go to investigation. That may schange the strategy and the time expended.

The CHRO has yet to publicly release any statistics about this (they still haven’t even released their FY 2010-2011 statistics; indeed, minutes from the CHRO’s meeting in October reveal only that “With the New Public Act #11-237 the cases should be moved along quickly. Agency training has started, which wilil produce more closures with less people.”  While that may be a long term trend, it is just as important to understand when the case will close.

So readers, what have you been seeing at the CHRO? Any trends over the last quarter?

 

 

The dust is still settling on the flurry of activity in the closing hours of the General Assembly last night. It’s going to take a few days to get caught up on all the bills that were passed.  Watch for more updates soon.

Changes are Happening for CHRO

One of the bills that will merit a closer look is House Bill 6595 which amends some of the processes that the Connecticut Commission on Human Rights and Opportunities (CHRO) has been using. You can find the text of the bill here (and as amended by this amendment too).

Among the changes present in the bill:

  • The bill eliminates the “certified mail” requirement in many instances, and allows for e-mail to be used to transmit correspondence and notices. (Welcome to the 21st century, CHRO!)
  • The bill gives the CHRO more time to conduct a merit assessment review if an employer asks for more time to respond to the complaint.
  • The bill provides an internal, automatic review of cases dismissed during the merit assessment review (MAR) process.
  • It also allows a complainant to request a right to sue after his or her complaint has been dismissed at the MAR stage.
  • If a complaint gets through MAR, then the bill sets up a new mandatory mediation conference within 60 days.  Previously, the parties might have to wait months (or longer) before a mediation and investigation occurred.
  • If the mediation does not resolve the situation the case, the CHRO then has the option of requesting early legal intervention.
  • If a request for early legal intervention is made, the bill states that the executive director has 90 days to decide whether the case should be heard further or the complaint dismissed.  The investigator has to then decide whether to adopt the executive director’s recommendations.
  • If a complainant fails to attend a fact-finding conference, the CHRO can also dismiss the complaint, according to the bill.
  • The bill also clarifies how private attorney fees will be awarded.
  • Lastly, the bill changes the time period that a complainant must wait to request a release of jurisdiction from CHRO from 210 to 180 days, allowing complainants who wish to proceed in court to begin the process sooner.

All told the changes seem to streamline the process and allow for opportunities for the CHRO to tackle the claims more quickly.

If signed by the Governor, which is expected, the bill will become effective October 1, 2011.