merit assessment review

Yesterday I had the opportunity (along with my fellow Shipman & Goodwin partner Peter Murphy) to speak as part of the Commission on Human Rights and Opportunities’ (CHRO) 75th Anniversary celebration.

The panel — The Barriers to Employment Legal Update and Panel Discussion  — was chock full of the types of insights, data and analyses that is so often overlooked in this Twitter generation.

We spent a good 90 minutes talking about the changes that have been going on at the CHRO and talked about what types of changes could be made in the future.

Frankly, it’s far too much for one blog post.

So I’m going to tackle them in a few posts.  Today’s post: The re-emergence of the Case Assessment Review.

Indeed, if you haven’t been before the CHRO in the last year, you may be unaware that this is perhaps one of the biggest changes to the agency procedure over the last year.

Hyperbole? Actually no. At least not when you look at the statistics regarding CAR. (I did a deep dive into CAR last December which I’d strongly recommend if you want to learn more.)

Since the Legal Division has taken over this task — which is, in essence, a gatekeeping function — the dismissal rate has increased to 23% (up from just 5%).  Or, put another way, just 77% of cases are getting retained for mediation and investigation, down from 95% just a year ago.

This has big implications on how employers should view the CHRO process.  No longer is it the case that nearly all cases will get retained for investigation; as a result, position statements should play a greater role in telling the story.

The panel discussed other strategic implications of the numbers as well. Suffice to say, employers who are still viewing the CHRO in terms of 2015 (where I humbly suggested the CHRO Complaint process needed a reboot) are missing out on the changes happening right now.  Attorneys and their clients need to definitely stay up to speed with the latest developments.

What else is new? More on that in an upcoming post….

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

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?

 

 

Continuing my series of posts on the public program produced by the CHRO on new Public Act 11-237 (for prior posts go here and here), the remainder of the program focused on the changes to the CHRO procedures including a new early mediation option.

Various legal staff members provided the details on the new act through a Powerpoint presentation (which you can view below).  Throughout the presentation, however, feedback was sought from various panel members made up of attorneys representing employers and employees throughout the state.  I was invited to represent the “employer” perspective.

The goals of the new law are certainly laudable:

  • Expedite case processing
  • Focus on early mediation of cases
  • Make the best use of limited CHRO resources
  • Clear CHRO backlog
  • Increase uniformity among the regional offices
  • Involve legal department with case processing
  • Increase use of technology

How does the CHRO believe that the new law will accomplish this? Through several key changes.

  • If cases are dismissed on a Merit Assessment Review, the legal department will review those cases to provide more consistency
  • After a case is retained for investigation, an early mediation will now get scheduled quickly
  • Moreover, a specific investigator will also be assigned to the case early on to prevent the case from “sitting in file drawers”
  • Another major change is that the parties can seek an expedited legal review which could, in some circumstances, send the case directly to a Public Hearing.
  • Finally, the CHRO will also now be using e-mail as the primary means of communicating.

Overall, I expressed optimism on the proposed changes. But I think we’ll only be able to tell whether these changes are truly working in another year or so.  In the meantime, attorneys and the companies they represent should be prepared to address these new procedures and figure out how these procedures will change the strategy that employers have used at the agency.

Public Training 11-237 Power Point

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.