roadIf you had a million dollars (or more) to investigate your culture, what would you find out? (Music fans may appreciate the classic “If I Had a Million Dollars” song from the Barenaked Ladies. You’re welcome.)

Well, Uber engaged a lawfirm, Covington & Burling, and the former Attorney General Eric Holder to do just that — interviews with over 200 people, reviews of over 3 million documents — and discovered a lot.  It isn’t pretty.

Thankfully, the firm released its recommendations for all the world to see. In doing so, the report actually can serve as a bit of a road map of what to do at your company if you have some similar issues.  All for free.

You can and should review the report here.  There are some specifics that won’t be helpful — like allocating the responsibilities of the CEO.  But there are many others which show what the best practices are at companies in 2017.  Here are a few to get you started:

  • Use Performance Reviews to Hold Senior Leaders Accountable.  This recommendation is straightforward, but suggests that companies should have metrics that are tied to “improving diversity, responsiveness to employee complaints, employee satisfaction, and compliance.”  If you don’t hold senior leaders accountable, things will fall through the cracks.
  • Increase the Profile of [] Head of Diversity and the Efforts of His Organization.   This recommendation suggests something that may come as a surprise to some companies but reflects a growing shift in corporate culture, that is, that an “empowered senior leader who is responsible for diversity and inclusion is key to the integrity of” a company’s efforts.  Note the dual emphasis. As the report later explains, “It is equally important that the role address both diversity and inclusion. Diversity is generally viewed as focusing on the presence of diverse employees based on religion, race, age, sexual orientation, gender, and culture. Inclusion, on the other hand, focuses not just on the presence of diverse employees, but on the inclusion and engagement of such employees in all aspects of an organization’s operations.”
  • Human Resources Record-Keeping.  With the buzz about data, this recommendation reflections the growing wisdom that a company should have “appropriate tools, including complaint tracking software, to keep better track of complaints, personnel records and employee data.”  More than that, a company should “emphasize the importance of record-keeping to all Human Resources staff, and impose consequences for failure to adhere to record-keeping requirements.”  In other words, no longer should HR be viewed as secondary to a company’s mission. It’s front and center.
  • Training, Training, and Training.  I’m cheating a bit on this one because the report actually breaks down training at various levels, but the need for training is emphasized for senior leaders, HR staff, and managers.  And more than that, the company should also “require employees who routinely interview candidates…to undergo training on interviewing skills, conducting inclusive interviews and unconscious bias.”

There’s much more to the report, including additional suggestions specifically on diversity and inclusion efforts.   It’s a helpful roadmap for all companies.

 

numbersThis week, the Yankee Institute for Public Policy, a self-described “free market” think tank, issued an article suggesting that Connecticut had nearly the same number of discrimination complaints as our neighboring state, Massachusetts.

(This isn’t the first time it’s been critical of the CHRO.)

In doing so, the Yankee Institute claimed that these statistics raise “questions as to whether Connecticut is simply more litigious or if the policies at the Commission on Human Rights and Opportunities are encouraging more claims.”

The basis for its analysis is a raw look at the statistics of claims filed — something I covered way back in December 2016 in two posts here and here.

I noted back then that the statistics only told part of the story and unfortunately here, the Yankee Institute’s arguments fall into this trap of relying too heavily on just a few statistics.

For example, yes, discrimination complaints have risen in the last few years as the Yankee Institute argues, but the types of complaints being filed are changing.  The Yankee Institute’s article lumps them all together as if they are fungible.

For example, as I noted in December: If you look at the claims involving termination of employment, there were 1216 filed in FY 2016, which is actually down from historical peaks in 2003, when there were 1385 such claims.

Instead, a different type of claim is being filed over the last 15 years — with huge increases in 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 things like hiring, promotions and pay.  It could also mean an employer is not approving leaves, or granting breaks or any other term or condition of employment, however small.

In 2003, there were 411 such claims filed.  In 2014, there were 782.  By FY 2016, however, that number has skyrocketed to 1056!

In my mind, that likely means that more current employees are bringing discrimination claims against their employers.

chro99This is bolstered by a look at the “harassment” statistics. Notably, I’m not talking about sexual harassment claims, which continue to trend noticeably downward.  Just 135 such claims were filed in FY 2016, down from 185 the prior year and the lowest number by far in the 15+ years of available data.

Instead, this is a catch all claim for “I’m harassed” because of some other reason.  Just 175 such claims were filed in 2003, though that number was up to 380 in 2014.  For FY 2016, that number is up to 545.

That’s a more than 210% increase in over a decade!

Is the CHRO to blame for this trend? Without more critical analysis, I am hesitant to place the blame on the Connecticut Commission on Human Rights and Opportunities.

Anecdotally, I hear more arguments that employees are throwing around the phrase “hostile work environment” — not understanding that having a difficult boss is not illegal harassment.

The Yankee Institute’s article is also critical of the CHRO’s closure rate for “No Reasonable Cause” at 54 percent, compared to 87 percent of the Massachusetts claims closed for a lack of probable cause.

The CHRO issued a statement of their own on Facebook this week, with its own explanation for the discrepancy:

Many companies in Connecticut choose to resolve those matters prior to going through the full investigation process, by mediating those claims. Mediation works to the benefit of both parties, allowing for faster resolution and less time and money spent on investigations. These cases are frequently closed in fewer than six months from filing.

Here too, I think there is a danger than just looking at the numbers.  Both sides have some merit to their arguments.

As the Yankee Institute correctly notes, complaints ARE more costly and employers sometimes feel that they should pay something on even meritless claims to avoid the cost of litigation.

But the CHRO can also point to the fact that it has been dismissing more cases of late on Early Legal Intervention, giving employers more opportunities to avoid the cost of the CHRO process.  And the CHRO has been using mediation more effectively in the past — even if cases are getting through Case Assessment Review that probably shouldn’t.

Statistics are helpful; but when a state agency or a think tank starts using the numbers without providing context, reader beware.

roadcircleIf you like getting lost on roads with your head spinning on which way to go, this is your post.  (Everyone else, well, try to keep up.) I recap a case for companies with unions to pay attention to.

Let’s start with this example:

Employee X is required by law to report suspected abuse in her job. She fails to do so for a few days, but ultimately does.  After investigation, employer terminates employee for her failure to report the suspected abuse and notes that she had been on “final” warning for previous misconduct. Employee and her union appeal.  After a hearing, an arbitrator reinstates the employee while similarly stating that she should be subject to a one month unpaid suspension. Employer appeals saying the arbitration decision violates the important public policy of reporting suspected abuse.

That’s the ground work for a new Connecticut Supreme Court decision (Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199) that will be officially released next week.

The court said that it was not readily disputed that Connecticut has a clear, well-defined public policy of protecting nursing home residents from abuse.  Thus, the sole issue for the court was whether the arbitration decision violates that important public policy.

In doing so, the court emphasized that a party seeking to vacate an award reinstating a terminated employee “bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. ”  But the court was quick to note that a consensus on how to handle such claims was “elusive” from its prior decisions.

Thus, the court said it was using this case to “take this opportunity to clarify the factors a reviewing court should consider when evaluating such a claim.”

When a court speaks like this, it’s probably worth listening to.  And what are those factors? This is where it gets complicated with factors upon factors. First:

Specifically, in determining whether termination of employment was necessary to vindicate the public policies at issue, both the majority and the dissenting opinions of this court have, either expressly or implicitly, focused on four principal factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible.

Of course, each of these factors have their own set of considerations as well. For example, on the relative “egregiousness” factor, the court said it encompasses “myriad considerations” including, but not limited to:

(1) the severity of the harms imposed and risks created by the grievant’s conduct; (2) whether that conduct strikes at the core or falls on the periphery of the relevant public policy; (3) the intent of the grievant with respect to the offending conduct and the public policy at issue; (4) whether reinstating the grievant would send an unacceptable message to the public or to other employees regarding the conduct in question; (5) the potential impact of the grievant’s conduct on customers/clients and other nonparties to the employment contract; (6) whether the misconduct occurred during the performance of official duties; and (7) whether the award reinstating the employee is founded on the arbitrator’s determination that mitigating circumstances, or other policy considerations, counterbalance the public policy at issue.

And what does it mean to be “incorrigible”? Well again, the court sets forth various considerations:

Here, relevant considerations include whether, on the one hand, the grievant has committed similar offenses in the past and has disregarded an employer’s prior warnings or clear policy statements; or, on the other hand, whether the grievant: (1) has generally performed his work in a competent and professional manner; (2) has demonstrated a willingness to change and an amenability to discipline; (3) has exhibited remorse and attempted to make restitution for past offenses; and (4) is likely to benefit from additional training and guidance.

But that’s not all.  “We also consider whether the penalty imposed by the arbitrator is severe enough to deter future infractions by the grievant or others.”

So if you’re keeping track at home, that’s over a dozen considerations for the court (and the parties) to address. 

Ultimately, the court in this case upheld the arbitrator’s original decision reinstating the employee applying all of the factors set forth above.

For employers, this case provides a roadmap on challenges to an arbitrator’s decision reinstating a terminated employee.  But beware: This map shows a lot of different paths for courts to follow.  Many of those several ways lead to the same conclusion: Challenging an arbitrator’s final decision remains an uphill battle at best.

Bans on taking photos at work are addressed in the NLRB report.
Bans on taking photos at work are addressed in the NLRB report.

The NLRB’s General Counsel’s office today released a lengthy report “concerning recent employer rule” cases.

That sounds generic. It’s not.

Rather, the NLRB is now outlining its views on otherwise-neutral employer policies and whether they could be deemed to violate federal labor law.  While part of the report is a recap of existing caselaw, this is probably the most comprehensive approach I’ve seen in a while. And more importantly, it provides policies that were approved by the NLRB in a recent settlement with Wendy’s.

This is an issue I’ve talked about before, whether policies on photos and videos, or social media, or confidentiality.

There’s a lot to take in but this should provide employers with guidance should they wish to avoid the NLRB’s steely gaze.

The “model” policies it approves of may not be your preferred language (and indeed, in one area, it would seem to almost encourage union-related activities), but employers who want to stay well within the limits of the law will certainly want to use this as a guide.

I’ll have more on this in an upcoming post after a more comprehensive review.

Hat tip: Jon Hyman.

My colleague Peter Murphy and I have been talking a lot about background checks lately.  It’s easier than ever to run a basic Internet search on someone, but what information do you find? And are there any limts?

Today, Peter talks about two recent settlements of background check claims against employers. Both cost the employers big dollars. Here’s what you can learn from them.

Peter Murphy

 

Back in March, Dan noted that plaintiffs’ lawyers were brining an increasing number of lawsuits under the Fair Credit Reporting Act (“FCRA”).

This seems to be occurring for two reasons. First, the FCRA contains very specific steps an employer must follow when obtaining and then using a background check for employment related purposes, including the following:

  1. Make a clear and conspicuous written disclosure to the job applicant that a consumer report may be obtained for employment purposes;
  2. Have the applicant authorize in writing the procurement of the report;
  3. And, before taking any adverse action based in whole or in part on the report, provide the applicant with:
    1. a copy of the report; and
    2. a description in writing of the employee’s rights under the FCRA.

If one of these steps is being systematically violated by an employer, then there is the potential for a lawsuit involving multiple plaintiffs or even a class of plaintiffs across the employer’s operations.

The second reason for the increasing number of FCRA lawsuits is that they expose employers to damages for each FCRA violation, as well as punitive damages, costs, and significant attorney’s fees.

Thus, unless employers review their hiring practices and ensure FCRA complaint, they could be exposed to costly lawsuits, as Dan and others warned back then.

Their warnings were prescient, as demonstrated by two recent settlements in FCRA cases.

In the first case, the employer accepted online job applications–just like almost all employers. The applicants alleged that the employer’s online application system did not comply with the FCRA’s procedural provisions addressing authorizations for a background check, or provide FCRA mandated disclosures to the applicants.

These procedural violations could have been enough to expose the employer to liability under the FCRA.

According to the applicants, however, the employer also was taking adverse employment actions based on information in the background checks without providing them a copy of the report or the required opportunity to correct or explain any discrepancies.

Although the employer denied any wrongdoing, it ultimately agreed to a $5.053 million settlement that recently was approved by a district court judge.

The only ones getting rich as a result of this settlement, though, were the plaintiffs’ lawyers, who received about $1.52 million in attorneys’ fees in comparison to the $50 payment to each of the eligible class members.

Plaintiffs’ attorneys were just as pleased with a district court’s preliminary approval of an FCRA settlement in a case pending in Virginia. Just like the prior case, the claims in this case stemmed from allegations that the employer violated the procedural protections of the FCRA, and then also failed to give job applications the ability to respond to adverse information in the background check.

Under the judge’s recent order, the plaintiffs’ attorneys would get 25 % of the $4,000,000 proposed settlement, and each potential class member would receive statutory damages of $53.

The numerous procedural and substantive provisions of the FCRA can be difficult to decipher, and as the above examples demonstrate small compliance mistakes can lead to costly and time consuming lawsuits.

Although we may sound like a broken record, employers should therefore consult with trusted counsel when necessary to ensure that their job application process can survive a FCRA challenge, and that their authorization forms and disclosure notices comply with FCRA’s requirements.

It’s not as easy as it first appears.

The Gender Wage Gap Task Force in Connecticut issued its report last month with both findings and recommendations on a continued disparities between what men and women, on average, earn. In doing so, it recognized that there are multiple factors that are responsible for the gap in its view.  It paints a far more complicated picture of the wage gap than some politicians suggest.

As it detailed:

Understanding this inequity is not a simple matter. Many factors contribute to the overall wage gap including education and skills, experience, union membership, training, performance, hours worked and the careers women and men choose. However, even after these factors are controlled for, an estimated wage gap of 5-10% remains. The task force has identified six key contributors to the gender wage gap in Connecticut: unconscious bias, occupational segregation, lower starting salaries and positions for women, women’s slower career advancement, the existence of a glass ceiling and a lack of support for working families.

Mara Lee, from the Hartford Courant, does a nice job recapping some of the key findings.  Her take?

The report says that researchers have determined there are two reasons for that disparity: women don’t negotiate salary offers as often as men, and there may be subtle biases among bosses, even ones they don’t realize they have.

The report gives an example of a study of students graduating from Carnegie Mellon with master’s degrees, which found that 57 percent of men negotiated salary offers and 7 percent of women did. The men’s salaries were 7.6 percent higher than the women. And that $4,000 was almost the exact amount more that people who negotiated were paid compared to those who didn’t.

What might we see as a result of the report? There are a number of recommendations, but surprisingly few of them touch on changes to the legal system.

First, it suggests that Connecticut “align” its Family Medical Leave Act with the federal Family Medical Leave Act by expanding it to include companies with 50 or more employees.

If the General Assembly does take that up, legislators should consider narrowing the differences between the two statutes.  For example, Connecticut gives employees 16 weeks of leave over a 24 month period, instead of the federal 12 weeks of leave every twelve months, which can be confusing at times and leaves to strange results that allows employees to get 16 weeks of leave the first year and then another 12 weeks during the second year — far more than just the 16 weeks first contemplated under Connecticut law.

The report also recommends supporting paid leave programs, like those in New Jersey and California. Connecticut is currently studying various proposals.

Employers in Connecticut should remain cognizant of both the issues that this report raises and the legislative developments that may arise from it as a result.

In my post last week about the reporting of crimes, an avid reader of the blog left a great comment that noted that elder abuse must also be reported by certain class of people. 

Photo Courtesy of Library of Congress

Since many of you may not be aware of such a requirement, it can be found at Conn. Gen. Stat. 17b-451 and the related statues. Here are a few of the notable provisions:

First, section (a) requires that “Any physician or surgeonany resident physician or intern … any registered nurse, any nursing home administrator, nurse’s aide or orderly in a nursing home facility, any person paid for caring for a patient in a nursing home facility, any staff person employed by a nursing home facility, any patients’ advocate and any licensed practical nurse, medical examiner, dentist, optometrist, chiropractor, podiatrist, social worker, clergyman, police officer, pharmacist, psychologist or physical therapist,” who has “reasonable cause” to believe that an elderly person has been abused or neglected, must report such abuse within 72 hours to the Department of Social Services.

What’s the penalty? It’s a misdemeanor if it is not reported, with fines and more serious penalties for repeat offenders.

Can other people report that abuse? Section (c) says that “Any other person having reasonable cause to suspect or believe that an elderly person is being, or has been, abused, neglected, exploited or abandoned, or who is in need of protective services may report such information in any reasonable manner to the commissioner or the commissioner’s designee.”

The statute provides for protection for those who make the reports, including immunity for such a report (under section (d)).  In addition, that person cannot be fired or retaliated against by an employer for making the report (under section (e)). 

And who is “elderly”? Anyone who is 60 years or older.

For employers who have employees in the above roles, be sure to remind those employees of the requirements of the state statute and have a policy in place so that employers know where to turn with questions.

The Office of Legislative Research, whom I’ve praised in several posts before (here and here), recently issued a report on the consequences of a felony conviction on employment. 

Overall, it does a good job summarizing the issues when it comes to state employment.

But later on in the publication it states the following when discussing the federal restrictions on employer use of criminal background information:

Asking job applicants to indicate whether they have been convicted of a crime is permissible but Title VII of the Civil Rights Act of 1964 appears to restrict an employer’s ability to use criminal background information in the hiring process (42 USC. § 2000e, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has decided that disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (Those two groups generally have higher criminal conviction rates than do Caucasian men.)

The EEOC has ruled repeatedly that covered employers cannot simply bar felons from consideration, but must show that a conviction-based disqualification is justified by “business necessity.” The legal test requires employers to examine the (1) nature and gravity of the offense or offenses, (2) length of time since the conviction or completion of sentence, and (3) nature of the job held or sought. Under this test, employers must consider the job-relatedness of a conviction, the circumstances of the offense, and the number of offenses (EEOC Guidance 915.002, April 25, 2012: http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf).

Back in April, I discussed the EEOC’s latest guidance at length.  As a result, I think the OLR’s report has misstated the EEOC’s position and made it sound like the rules on criminal background check are set in stone at the federal level.  They are not.

Indeed, the EEOC appears to be overreaching in its latest application of Title VII.  Courts have rarely interpreted it this broadly and thus the suggestion that Title VII “appears to restrict an employer’s ability” to use convictions is an overstatement.

Moreover, the OLR report’s suggestion that the EEOC has “ruled repeatedly” on the issue is also misleading; even the EEOC’s report suggests that it differs from some prior guidance.  And, contrary to the OLR report, the EEOC has not “decided” that it is “discriminatory” for employers to disqualify people who have criminal records from jobs; it merely issued guidance on the subject.  Indeed, the EEOC recognizes that there may be instances were it is not discriminatory.

What is important to understand is that “guidance” issued by the EEOC (which is what the April EEOC report is) is not the same as a regulation.  Indeed, even the EEOC says its guidance on criminal history is only “designed to be a resource for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff.”  It is not, as the OLR has said, a rule per se. 

A better explanation would be that the EEOC recently issued guidance that suggested to employers the blanket and blind use of background check information could have a disparate impact against some protected classes.  Thus, employers who use such information should consider the business needs of doing so and ensure that the use of such checks is fair. 

From my perspective, employers who seek to use criminal background checks to make hiring decision would be wise to read the guidance itself and seek appropriate counsel.  There are some best practices from the EEOC on the subject, but how employers use that guidance and in what ways, remains up in the air.

A new state auditor’s report released this month shows that the CHRO continues to struggle with compliance with statutory timeframes.

The report — which can be downloaded here — shows that from 2007-2009, 56 percent of the cases exceeded the statutory maximum of 370 days.   As the report notes, “the longer it takes to make a determination of cause, or no cause, the longer the complainant must wait for a resolution of his or her complaint.”

The agency, in the report, indicated that the “most direct cause of delays in investigations is the lack of adequate staff”.  New legislation (which I highlighted in this post) should help matters, but the agency still forecasts a considerable backlog.

The report highlights other shortcomings of the agency as well including failure to submit an Affirmative Action report and Contract Compliance report.  In addition, the agency awarded merit increases while not complying with a performance assessment review.  Under the leadership of a prior Executive director “increase were awarded regardless of whether the agency complied with the requirements, therefore there is no disincentive for failing to comply.”  The report also notes that the agency has failed to update investigator’s forms and procedures manual.

Despite the agency’s requests for more staff, CT Mirror reports that new funds aren’t likely in the immediate future.

While several of the issues in the report fall under the prior Executive Director’s watch, the report is yet another indication of an agency still in need of repair.

 

 

What do blood pressure and batting averages have to do with the unemployment rate? 

Well, more than you might think — at least according to the Office of Legislative Research. This little-known state office is a gem, constantly providing reports that — more often than not — are well written and useful. 

And the report last November on the unemployment rate is just one of them. It answers questions such as: "Who figures out the rate?" (Bureau of Labor Statistics) and "Is it correct that the unemployment rate does not reflect the number of people who are unemployed and not looking for work?" (Yes). 

The OLR has also summarized its reports on "2011 Focus Areas" such as "Economic Development and Jobs" and "State Employees". 

As the 2011 General Assembly session starts to heat up, it’s a great resource.