The Dialogue – an occasional discussion between myself and a prominent employee-side attorney, Nina Pirrotti returns today after a late summer hiatus. Today’s chat focuses on employee separations and severance agreements.  Share your own tips or observations in the comments below. As always, my thanks to Nina for sharing her insights here.

Dan: Hi Nina! How was your summer? Mine was fine except I can’t stop hearing news about President Trump.

It seems to drown out everything else going on and I think I have a headache from it all. But let’s give it a try, shall we?

I know I’m often confronted with having to fashion separation and settlement agreements for employers.   

What do you find are the items in agreements that you think both sides ought to be paying attention to?

Nina: Drowning in Trump-related noise.  The image is horrifying!  My husband and I were chatting the other day about an old Saturday night live weekend update skit.  As we recall it (it was decades ago), the news media was focused on other events when all of a sudden the character playing Kim Jong Un pops into the screen, holds both arms out and complains:  “What do I have to do to get attention around here?!” 

In the age of Trump that glib remark becomes bone-chilling. 

The art of crafting a fair and balanced settlement agreement isn’t the most riveting of topics in our world but it is among the most important.  

One key strategy I use in evaluating them is to put myself in the position of the employer to ensure I understand company’s (reasonable) priorities. 

Clearly the company seeks to contain the dispute itself, keep the fact that it is settling it confidential, and do everything possible to obtain closure.    If the settlement terms go beyond meeting those priorities, a red flag goes up for me and I scrutinize those terms closely.  

In light of the company’s priorities in containing the dispute and keeping it confidential, I expect to see a confidentiality provision, limiting the disclosure of the settlement agreement to those on a need to know basis (typically immediate family members, financial/tax advisor and lawyer). 

I am also not surprised by a non-disparagement provision which prevents the employee from spreading ill will about the former employer. 

Since I generally advise my client that it rarely reflects well on an employee to speak negatively about his/her former employer (no matter how justified the employee might be in doing so) I usually do not oppose such provisions. 

I will often, of course, make them mutual so that key employees at the company also commit to not disparaging my client. 

In light of the company’s priority in seeking closure, I do not have a one-size fits all response to no re-hire provision.  I understand the company’s concern that should the employee who has settled claims for discrimination apply for a position down the road and the company (for legitimate reasons) declines to hire that employee, it nonetheless remains exposed to a potential retaliation lawsuit by the employee. 

No re-rehire provisions in certain situations can be appropriate but only if they are narrowly tailored to the company itself.  Alarm bells go off for me, therefore, if the employer is large and has numerous affiliates and subsidiaries and the employer insists on including them within the scope of the no-rehire provision. 

In such cases, no-rehire provisions can be tantamount to mini-restrictive covenants and, where they hamper my client’s ability to find comparable work, I will reject them as untenable. 

Speaking of restrictive covenant  provisions, it irks me to no end when an employer tries to slip one into a settlement agreement where the employer was not bound by one during the course of his/her employment!   Such provisions are generally a non-starter for me, absent considerable additional compensation for them. 

Finally, as we discussed in an interview you conducted with me many years ago, I do not abide by liquidated damages provisions. 

If a court determines that my client has breached the agreement, even if that breach is deemed a material one, the employer should still bear the burden of proving that it has been damaged and, to a reasonable degree of certainty, the monetary amount of that damage. 

What are your thoughts, Dan?   Have I articulated the company’s main priorities well?  Are there others I am missing that I should consider the next go-round?   Do tell and I promise to listen with an open mind!

Dan: Well, one day we could talk about Trump-related employment litigation, if you’d like to really talk more about Trump.

You’ve hit on some of the highlights from an employer perspective. When crafting one for an employer, I will let you in on a “secret” – we have a template.

I know — probably not a big surprise to you since our firms have negotiated enough of them.

As a result, I find that agreements at this point are sometimes more of finessing around the edges, rather than major re-writes.

The problem I see is that there are some employers who are using a form separation agreement handed down to them years ago, without understanding what’s in them.

First off, the agreements — regardless of whether you’re trying to comply with federal law or not — should really be written in “plain English”.

Get rid of the “Whereas” clauses.

Use bold language or simply to understand provisions.

And try not to have it be 15 pages.

Second, the agreements should contain: a) a release of all state and federal claims (and local ones if you’re in places like New York City); b) confidentiality (and if it needs to be mutual, so be it); c) non-disparagement (same).  There’s more of course, but start with the basics.

Third, employers should think about provisions that may actually be helpful: a) What are you going to do about references? Is it “name, rank, serial number” or something more? b) Do you want an arbitration provision for any breach of the separation agreement?

Neither is typically a high priority but taking care of some of these details are important.

A few employers are trying to get the “best” deal and negotiate strongly but I find most employers just want to move on; the termination was probably not something that they wanted to do anyways and putting some distance between the employee and the company is probably a good thing for the business ultimately.

Since you’re not finding separation agreements all that exciting, what about how employers handle the termination or termination meeting itself? I’m sure you’ve heard some stories from clients.

Nina: Wow – you hit the jackpot with that question!   

I was once asked at an ABA conference at which I spoke what was one step management lawyers could take to maximize the chances that a departing employee won’t seek out the counsel of someone like yours truly. 

My answer?  Treat them like human beings when you terminate them.   

Don’t do what one Fortune 500 company did to one of my clients which was to call her as she lay in a hospital bed with her infant daughter who had been born earlier that day and inform her that she need not return to work because her job had been eliminated.

Time and again prospective clients had told me that they would have gone quietly into the good night had their employers treated them with a modicum of respect during the termination process. 

I recently settled a case involving a woman in her mid-60s who had worked for the same company for 20 years and proven time and again that she would do ANYTHING for that company and, indeed, had worn a number of hats over the years, shedding one and donning another as the company’s needs shifted.  In her 20th year, a new CEO was hired and you can guess what happened next.  He terminated her and replaced her with a brand new hire, decades younger, who my client had helped train.   

Doesn’t sound kosher right, but that is not the worst part! 

It was the WAY the company terminated her that prompted this lovely, meek, non-confrontational woman to summon up the courage to pick up the phone and call me. 

Her termination consisted of a three minute meeting in which the CEO informed her she was no longer needed and handed her a severance agreement that provided her with two measly weeks’ pay. 

She was literally sobbing as she signed it then and there after which she was immediately escorted out the door.   She contacted me weeks after she signed her agreement.  Too bad, so sad, right?  Wrong. 

The employer neglected to include in her severance agreement language required by the Older Worker Benefits Protection Act (OWBPA), including a 21-day period to consider the agreement and a seven-day revocation period.  She was able to keep her paltry two weeks and I got her many months more on top of that!   

There are so many morals to that story, the least of which is that severance agreements for employees over 40 should comply with the OWBPA.   Employers should be expressing their gratitude to terminated employees who have proven their devotion to the company by providing them with severance that sends the message that they valued that devotion.  

There other ways to go that extra mile to treat such employees with dignity.   Think about how you would want to be treated if you were undergoing one of the worst days of your life and act accordingly.  Thank them for their service, tell them how sorry you are, assure them that you will do everything in your power to facilitate their transition, allow them to say goodbye to their colleagues, hell, even offer to throw them a farewell gathering.  The possibilities are endless.  Sometimes we lawyers get in our own way. 

Dan, I know none of the clients who have had the benefit of your wisdom prior to terminating an employee would succumb to such pitfalls.  But what do you do when you have to clean up after the fact?

Dan: You’ve raised a good question, but I want to address something you said first. 

You said: “Employers should be expressing their gratitude to terminated employees who have proven their devotion to the company by providing them with severance that sends the message that they valued that devotion.”  

It’s that phrase that I think gets to the heart of the issues with severance in 2017. 

When I first started practicing (a few years ago, ahem), there were still many companies that offered severance without ANY release because that just seemed “the right thing to do.”

After all, there was still a bit of an unspoken contract that employers would take care of employees.

Think back to the “Mother Aetna” description of the insurance company.  But as the recessions took their toll and employee mobility took root, that social contract has definitely been frayed over the years.  In part too is the rise of employment litigation. 

Now each employer has to worry: Is THIS going to be the employment termination that leads to a lawsuit?

 I can’t even remember the last time that an employer offered severance without also demanding the employee sign a release. 

In other words, the idea of severance as “gratitude” and “thanks”, has now been replaced with much more of a quid pro quo. 

For employers, the thought ii: If we give you this severance, please don’t sue us. 

And yet for employees, some of them still remember the days when severance was just something companies did without worrying about the lawsuit. And so when the employer demands the release, some employees take offense to it, not realizing that times have changed. 

As a result, I have also seen employers trying to offer less and less; the notion of one week of severance per year of service (with caps) is still strong, but not universal. 

As to being the fixer – yes, sometimes it happens.  The lack of OWBPA provisions is really something that just shouldn’t happen anymore. 

But it’s more that employers go ahead with the termination without thinking about what comes next.  And some employers are moving so fast, that the details such as having two people in the termination meting and having COBRA information available, get lost in the shuffle.

I don’t know of a single employer that has enjoyed firing an employee.  

Even when they catch an employee red-handed, many employers are aware of the consequences that may flow for the employee from a firing. The employee may have a tough time finding a new job, for example. 

But it strikes me that a small subset of terminated employees are LOOKING to bring suit or a payday instead of looking forward to a new time in their life. 

Obviously sometimes past discrimination has to be examined, but what do you think makes employees sue their employers instead of signing severance agreements that are presented to them?

Nina: I think that employer conduct that rises to the level of actionable discrimination and/or retaliation is alive and well, unfortunately. 

The only up side of all of this is that I get to keep my day job, which I love! 

Of course there are those (“small subset” would accurately describe them) who seek to avoid accountability and are looking for a quick pay out of claims. 

Virtually all of those individuals never make it to our front door. 

I say “virtually” because we are human, after all, and one or two may sneak through the cracks in that door. 

But then we have competent lawyers like you for whom we have great respect who (very politely) convince us – – with facts – – that we are being misled. 

That is why I believe that the only situations in which early negotiations are successful are those in which both sides fight their natural inclinations to hold their cards close to their chests and actually share meaningful information from the get go.  

But how to conduct negotiations effectively is a topic worthy of its own separate dialogue, no?

Dan: I think so. Now, I have to save whatever energy I have left to stay up late to watch playoff baseball with the Yankees. Hopefully, it’s a long October filled with lots of late nights and distractions.  Until next time, Nina!  

starrMy colleague Gary Starr sits next to my office and sometimes we bounce ideas off each other. One of the things we were talking about recently was a new case that discussed an employer’s obligations to enter into the interactive process.  

This often comes up in ADA cases where the employee may need a reasonable accommodation.  As we discuss in this joint post below, there are no magic words needed — and sometimes no words needed at all.  

Both federal law (ADA) and state law (CFEPA) require employees and management to meet and discuss what might be a reasonable accommodation when an employee with a disability seeks an accommodation.

This interactive process was envisioned as a way to work collaboratively to find a reasonable accommodation.  Certainly when an employee asks for an accommodation, an employer must engage in the process.

But here are a few questions to ponder:

  • What should happen when the employee does not quite use the right words to start the process?
  • Can the employer be liable for failing to engage in the interactive process after terminating an employee who has not been accommodated?
  • While there are no magic words that must be uttered to start the interactive process,  what will trigger the obligation?

A recent federal appeals court case (Kowitz v. Trinity Health) discussed this situation, where the employer apparently ignored the signs requiring it to explore possible accommodations.  As a result, the employee will get her day in court.

The basic facts:

  • A respiratory therapist was diagnosed with a degenerative disease.
  • She requested and was granted time off for surgery under the Family and Medical Leave Act (FMLA).  After she exhausted her FMLA leave, she returned to work with restrictions.
  • During her leave, management reminded the department’s employees that they needed to submit proof of their certification in CPR, an essential job function.  Employees who needed to get recertified were required to say when they were going to take the course and the written and physical tests.
  • Having discussed the matter with her doctor, the therapist left a voice mail message for her supervisor that she would take the course and the written exam, but needed to complete 4 more months of physical therapy before she could do the physical portion of the test.
  • The next day, the respiratory therapist was terminated because  she was unable to perform CPR.

She sued, claiming that her employer did not engage in the interactive process.  The court found that while the therapist did not expressly ask for an accommodation, she provided sufficient information to start discussions.

The court pointed out that the employer was aware of the disability.  It approved the FMLA leave.  It received the Return to Work form from her doctor with work restrictions.  And there was evidence that the employee had told her supervisor about her problems completing the CPR certification and she told her supervisor about her doctor appointments and her continuing pain.

What’s the Takeaway?

This decision warns employers that if you know about an employee’s medical limitations, that knowledge may be sufficient to trigger the informal interactive process.

While it is not clear whether other courts will adopt this liberal approach, which is better in the long run: Sitting down with the employee or litigating?

It is important to remember that not all requests for an accommodation are reasonable.  The expense of a requested accommodation may not be reasonable; what the employer offers may be reasonable, even if rejected by the employee; and there may not be a solution to the situation.

But engaging in the process makes much more sense than trying to convince a judge or jury that you were too busy to meet for an hour or so and were unwilling to listen to possible ways to have the employee be productive and contribute to the company.

So if last Tuesday’s post about the latest Connecticut Supreme Court decision on travel time was for employers, this post is for the ones who love the nuances of the law.

Dan Klau on his Appealingly Brief blog did a deep dive into the decision. And it wasn’t pretty.

Commuting at 1964 Worlds Fair

The issue Dan highlights is this: The Connecticut Department of Labor’s (“DOL”) interpretation of its own regulation on travel time was first rejected because that interpretation had not been time-tested and was not the product of formal rule-making procedures.

But it was also rejected because the Court said the agency’s interpretation was also not reasonable. Dan questions this:

The DOL based its interpretation of its regulation on a 1995 opinion letter of the United States Department of Labor concerning travel time under the federal Portal-to-Portal Act of 1947. The DOL expressly referenced that letter in a written guide it published, “A Guide to Wage and Workplace Standards.” (The link is to the 2014 revision, which appears to contain the same relevant text (see p. 38) at issue in Sarrazin.) The Court noted that Congress had rejected that position (on policy grounds) in 1996, “yet the department’s handbook inexplicably fails to acknowledge the questionable history of the 1995 opinion letter. . . .” This, according to the Court, is what made the DOL’s interpretation of its own regulation unreasonable.

I fail to see why the DOL’s statement that it interpreted its own regulation in accord with the 1995 opinion letter means that its interpretation is “unreasonable.” It seems to me that the question of reasonableness turns on the “fit” between the 1995 opinion letter and the text of the regulation, not on whether Congress, as a policy matter, disagreed with the 1995 opinion letter. Congress’s intentions are certainly relevant to federal law, but not to the reasonableness of the DOL’s interpretation of its own regulation. Employment lawyers, what say you?

There’s more, of course, to this story. It actually starts with a 1994 US Department of Labor Opinion letter which ruled that the time spent by an employee traveling from home to the first work assignment, or returning home from the last assignment, in an employer provided vehicle was similar to that of traveling between jobs during the day and therefore represented a principal activity, which must be compensated. No compensation would be required in cases where employees used their own personal vehicles.

Continue Reading CTDOL’s Interpretation of Travel Time Not “Reasonable”; What Happens Next?

I sound like a broken record, but once again, the NLRB is striking down reasonable rules as unreasonable. 

My colleague, Gary Starr (as always, read his bio here), today shares a recent case from the NLRB that found that a “Values and Standards of Behavior Policy” of one employer — something that you might think is entirely devoid of labor law implications — is indeed in violation of federal labor law. 

And so, if you “value” compliance with labor laws, you’ll want to be sure to read on….

Suppose your office is more like “The Office” television show — filled with inter-department back-biting and general lack of cooperation.

Besides realizing that hiring Michael Scott to run the place isn’t the best idea, what do you do?

Hills and Dales General Hospital decided it had to change its culture. It set out to develop standards of behavior that all employees would embrace. It solicited the opinions of all employees on customer service, respect, teamwork, attitude, continuous improvement, and fun.

Once its new Values and Standards of Behavior Policy was completed, every employee was given a copy and it was posted in the main lobby.

And it seemed to be working.

The Hospital began to see an improvement in how employees treated each other, how patients were treated and how departments worked with each other.

And they lived happily ever after, right?

Well, not exactly.  Then an unfair labor practice was filed challenging three of the more than 21 provisions of the Values Policy. Those provisions were:

  • Teamwork – 11. “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.”
  • Teamwork -16. “We will represent the Hospital in the community in a positive and professional manner in every opportunity.”
  • Attitude – 21. “We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.”

The National Labor Relations Board (“Board”) earlier this month found that the prohibitions on “negative comments” in Section 11 and reference to “negativity” in Section 21 were unlawful because these rules could prohibit employees from discussing their terms and conditions of employment or sharing their complaints about their supervisors with their co-workers.

The Board found that Sections 11 and 21 of the Values Policy would have a chilling impact on employees and discourage them from exercising their rights as the implicit threat of discipline for being critical of management violates the law.

The effort to present the Hospital in the community in a positive and professional manner did not fare any better.

Despite its effort to improve its reputation and have employees exhibit high standards of professionalism in their dealings with “customers” at every opportunity, the Board viewed Section 16 as overbroad and ambiguous.  The Board found that this section could proscribe employees from making public statements that might not be seen as positive.

For example the language could be seen as prohibiting public protests over any Hospitalviolation of labor laws or could bar employees from making statements protesting their wages, benefits or working conditions.

As a result, the Hospital was ordered to retract these sections of the Values Policy and must delete them from all sources. The Hospital and other employers seeking to address internal conflicts among employees and departments and public perceptions of their business are left to create new behavior standards with more details or with clear statements that their policies are not intended to violate employee rights under the National Labor Relations Act.

Because Connecticut protects its free speech in both public and private work places, employers must be careful not to infringe those rights as well.

Perhaps it’s time to to revise my grandmother’s admonition that if you don’t have anything nice to say do not say anything at all to include “except as protected by law.”

The NLRB has been making it clear of late that enforcing workplace harmony and requiring employees to present the employer in a positive and professional light infringes employee rights. Thus if you want change your company’s culture, you need to navigate around these pitfalls and make clear that such efforts are not intended to infringe employee rights.

Oh, what would Michael Scott think of this!

My colleague, Gabe Jiran predicted the future!

Well, not exactly. But in a post earlier this month, he outlined some of the issues relating to whether telecommuting is a reasonable accommodation under the ADA.

And now we have some court guidance on the subject.  The road to understanding an aspect of the “reasonable accommodation” is paved with court rulings.  Read on….

Close on the heels of my last post on telecommuting as a reasonable accommodation under the Americans with Disabilities Act (“ADA”), a federal court of appeals shown itsheadlights on the issue with a new decision.

In EEOC v. Ford Motor Company, the Sixth Circuit Court of Appeals found that a former Ford employee could proceed to a trial on her claim that the company was required to allow her to telecommute on a regular basis.

First, a quick background on the plaintiff: she was a “resale buyer” at Ford who responded to emergency steel supply issues to make sure that parts manufacturers always had an adequate steel supply on hand.

According to Ford, her job required group problem solving, including interaction with other members of the resale team and suppliers.

However, because the plaintiff suffered from Irritable Bowel Syndrome (“IBS”), she was unable to come to work on a regular basis. She thus asked to telecommute up to four days per week, which was permitted in certain occasions by a company policy. Ford denied her request, and several months later terminated her for performance issues.

The Court decided that Ford had to consider telecommuting as an option for the plaintiff. In reaching this conclusion, the Court made some interesting observations that have implications for any employer confronted with an employee requesting to telecommute.

Here are the key points:

  1. While attendance at work is still an essential function of most jobs, “attendance” can no longer be assumed to mean presence at the physical workplace.
  2. The “workplace” is anywhere that an employee can perform the job.
  3. Even where a job requires teamwork or interaction with colleagues, an employee can often perform those functions remotely with advances in technology such as teleconferencing.
  4. Jobs suitable for telecommuting are no longer extraordinary or unique, and the universe of potential telecommuters is expanding rapidly.

The Court was careful to note that where predictable attendance during core business hours is an essential function of the job, that telecommuting may not work. However, the Court clearly took an expansive view of the company’s requirement to consider a telecommuting relationship for its employees.

While the Sixth Circuit does not cover Connecticut (we are in the Second Circuit, after all), decisions such as this can be persuasive to Connecticut courts and agencies like the CHRO.

Further, you can believe that the EEOC will use this decision in evaluating any telecommuting cases regardless of the state.

The takeaway for employers in Connecticut when “driving” forward (sorry, more car puns with a case name like this): Proceed with caution!

Last week, Attorney Robin Shea of Employment & Labor Insider proposed 10 rules of etiquette that “will save you from a pregnancy discrimination suit”.  Rule No. 1? Pregnancy is always good news.  Always. Always. Always.

If you haven’t read it, I’ll wait.

There are lots of rules regarding pregnancy that may come into play including FMLA, CTFMLA and the Pregnancy Discrimination Act.

But one rule in Connecticut that is often overlooked is found in Conn. Gen. Stat. 46a-60(a)(7).  The first part of this rule is fairly obvious; its illegal to fire someone because she’s pregnant. (If it’s not obvious, we should talk.)

But there are several other subsections that are not as well known. For today’s post, let’s focus on subsection (B) which states that an employer cannot  “refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy.”

Two things of note: First, this refers to “disability resulting from” pregnancy, not pregnancy itself.  So, if an employee is having a difficult pregnancy and is confined to bedrest, that’s the type of situation we are probably most concerned with because it would be viewed as a  “disability.” 

Second, what does a “reasonable leave of absence” mean? And isn’t this covered by FMLA? Well, not necessarily.  FMLA (and Connecticut’s equivalent) only cover employers who have 50 or more employees and even then, only cover employees who otherwise meet certain qualifications.  This rule covers all employers who have three or more employees and covers all pregnant employees.  

Can this “reasonable leave” run concurrently to FMLA, if eligible? Probably, though there isn’t much out there on the topic. A recent unpublished Superior Court case, Kenney v. DHMAS (Casemaker registration required), suggested that an employee could not make a claim under this section where the employee failed to provide the requisite documentation under FMLA.   

And what is “reasonable”? That too will probably have to be a figured out on a case-by-case basis. The Connecticut Supreme and Appellate Courts have yet to flesh that out.

For now, just know that when dealing with pregnant employees, there are more laws to consider than just FMLA.  And check with your trusted counsel to make sure you aren’t inadvertantly violating one of those rules.

Today, the EEOC has published its final rule clarifying a portion of the Age Discrimination in Employment Act (ADEA).  You can download the rule here and a FAQ from the EEOC here.   The rule comes as a partial response to a 2008 U.S. Supreme Court decision that analyzed the issue. 

The rule has some significance for employers who have policies or take action that may have a disparate impact on older workers. In plain english, disparate impact essentially means an age-neutral rule that affects older workers more than younger workers; disparate treatment means a rule or action that treats older workers differently.

The easiest example to think of is suppose a police department has a physical fitness test so that officers can pursue and apprehend suspects; that practice may have a disparate impact on older workers . 

So what did the final rule clarify? According to the EEOC: Continue Reading EEOC Publishes Final Rule on Reasonable Factors Other Than Age (RFOA)

Over the last week or so, various blogs have discussed a proposed rule released by the EEOC which discusses and defines what is meant by the "reasonable factor other than age" (RFOA) defense under the Age Discrimination in Employment Act (ADEA).

Not familiar with it? The Employer Law Report sums it up nicely here:

In Smith v. City of Jackson and Meacham v. Knolls Atomic Power Company, the Supreme Court held that the RFOA defense acts as a complete bar to disparate impact liability where an employer demonstrates that its facially neutral policy or practice, which had a disparate impact on older workers, was based on a reasonable factor other than the plaintiff’s age. Although the RFOA defense operates similarly to Title VII’s business necessity defense, this defense under the ADEA has traditionally been more “employer-friendly” because it preserves an employer’s right to make reasonable business decisions while protecting older workers from facially neutral employment criteria that arbitrarily limit their employment opportunities without requiring a showing of business necessity.

Here the EEOC has proposed a "prudent" employer standard with several (non-exhaustive) factors to figure out if the employer’s decision makes sense.

Public comment is open until April 19, 2010.  

The World of Work blog suggests that:

an employer who is considering a change in employment practices — such as a layoff, change in employment qualifications, etc. — should examine the impact of the change to determine whether it may create an adverse impact based on age. If it appears that it may, the employer should then apply the EEOC’s six factors to see if it can adequately defend the change as based on reasonable factors other than age. If the change does not appear to pass each of the EEOC’s six factors, the employer may want to consider altering the change to reduce the impact or abandoning it altogether.

That seems like a sensible solution for now.  But there’s also the tried and true view as well: If your layoff is going to have a disparate impact on older workers, you better have a really good reason for your decision. Otherwise, take a look at the underlying data again.  


In prior posts here and here, I’ve discussed an important new Connecticut Supreme Court case released this week, Curry v. Allan S. Goodman, Inc. and the effect it has on providing disabled employees with "reasonable accommodation".

However, the Supreme Court’s decision goes beyond that. The Court also find that state law imposes a duty on employers to engage in an "interactive process" — a term of art found in the Americans with Disabilities Act regulations.

What does it mean?  According to the Connecticut Supreme Court, state law now requires:

that the employer and the employee engage in an ‘‘informal, interactive process with the qualified individual with a disability in need of the accommodation . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion.

The Supreme Court found in Curry that the employer — although it provided some initial temporary accommodations — did not followup further on such issues.  For this reason, the court said that the failure to engage in the interactive process could be "some" evidence of discrimination — enough to defeat summary judgment.

So, for employers in Connecticut — now of all sizes — the Curry decision makes plain that once an employee raises an issue regarding a disability and suggests, even informally, for assistance about it, the employer has a duty to delve deeper into the issue.  Just saying "no" may not be good enough.

The EEOC has provided some guidance on this issue available here.  The Department of Labor also provides the Job Accommodation Network with additional support information available here.