This post is for the employment law nerds out there.

You know who you are.

You pore over the statistics that show a correlation between the unemployment rate and EEOC filings.  (I see you Lawffice Space.)

You rate who the “Worst Employer” is of 2017.  (Can’t wait for the announcement next week, Ohio Employer’s Law Blog.)

You listen to podcasts about employment law. (Yes you, Hostile Work Environment podcast from Marc Alifanz.)

And, if you’re the publisher of this blog, you pore over meeting minutes of the Connecticut Commission of Human Rights and Opportunities.

Someone has to do it.

And in reading the minutes of an August 2017, I saw a references to a new Case Assessment Review process in place since July 1, 2017.

“What was this?”, I thought at the time.  I got excited.

And then in October 2017, in a moment of brilliance extreme employment law nerd-ism, I sent an old-fashioned Freedom of Information request for that procedure.

Then I waited.  And waited.  At least it seemed like I waited.

Actually, it wasn’t long at all. Just a few days, in fact. My thanks to the agency for complying with state law humoring me and responding so promptly.

It arrived in my inbox. All 18 pages worth.

I wish I could tell you that it was groundbreaking.

It wasn’t.  A lot of the details in it are so pedestrian (“Clerical creates a case folder in the S drive”) that it’s only surprising in the level of detail.

There are a few nuggets of data.  It confirms that the Case Assessments are being handled by “Legal” now in a centralized location.

In fact, the cases are assigned to different people for drafts based on the last digit of the case number.  (Rejected slogans: “C’mon Lucky #7!” or “Stay Alive with #5!”)  The Principal Attorney will then review the proposed drafts.

And…I’ve probably lost you already.

See? It really only something for the employment law geeks.

If you are such a person, you can read the document here.  Consider it your Hanukkah present.

You’re welcome.

 

Recently, I had the opportunity to see Rags, a new revival now running at the classic Goodspeed Opera House.

I don’t often do theater reviews on this site, but I give it a thumbs up.

The musical tells the story of Jewish immigrants coming to the Lower East Side just after the turn of the century.

They experience outright discrimination and difficult working conditions.

So much so, that they end up even participating in a labor strike asking for better working conditions.

Of course, as an employment lawyer, I’m always looking for a good story to relate.

The musical obviously has undertones of today’s political environment, where refugees are facing barriers to entry from certain countries.

Workplace laws actually limit what employers should be asking in the interview process about immigration status.  And even when a Form I-9 is being process, an employer cannot reject valid documents or insist on additional documentation too.

And it can’t target certain people either.

The EEOC recaps it here:

For example, an employer cannot require only those who the employer perceives as “foreign” to produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment.

According to the EEOC, “applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application”:

In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.”

I’ve always been a fan of learning from history. With a musical like Rags, you can get many employment law lessons in one.

Probably not the endorsement you will see from other theater critics, but you work with what you have.

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.

 

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 hearing by the NLRB into objections raised by Foxwoods resumed Wednesday with new details about alleged harassment experienced by dealers in the course of the election last fall.  (For background on the objections and the elections, click here.) 

As usual, The Day is quick with the details this morning.  According to the report, one employee testified that after telling co-workers she would be voting "no" in the upcoming election, other dealers harassed her:

On the floor, one blackjack dealer said, “If you were a man I’d kick your (expletive).”

Another dealer told her she was a “backstabber” and was told, “You’ll get what you deserve.”

Another claim that has not surfaced in much detail before (other than in the Tribe’s opening statement) is the claim that there may have been improper campaigning going on.  The Day reports:

Many of the dealers, both men and women, testified that unidentified individuals were polling people in the restroom across from the Sunset Ballroom, where the election was held on Nov. 24.

The individuals, according to several witnesses, were holding a piece of paper and either a pen or pencil. Because some of the dealers were wearing their name tags, they believed the unidentified individuals were recording their name along with their vote.

They presumed the individuals were writing down names of people who did not support the union.

The Tribe is expected to rest their case sometime today at which point the UAW will have an opportunity to call their own witness to refute the testimony presented.  Obviously, as lawyers are apt to say, there’s often two (or three or four) sides to every story so expect to hear some balance to these claims over the next few day. 

For a better idea on what the tribe is claiming in the objections as a whole, I’d also suggest reviewing the Tribe’s opening statement available here

NLRB Hearings are best left to those who have lots of patience and time, two things I’m missing this week. Thus, unless there are major developments that occur, I’ll only briefly recap where things stand, on occasion, on the ongoing Foxwoods/UAW saga.

  • Yesterday, the NLRB (also called "The Board") denied Foxwoods’ Request for Review, which was discussed here.  It did so with little comment other than to note that the request "raises no substantial issues warranting review."  UAW indicated that it was a "major victory", according to The Day, and yet, given prior Board decisions on the subject, the result is not surprising.  As I indicated previously, the Tribe is likely not focusing on the Board, but establishing a record for an appeal to the Circuit Courts and perhaps the U.S. Supreme Court someday.
  • The Hearing has continued with the Tribe making a little — but not much — progress in its argument that the election ballots should have been printed in two Chinese dialects.  The Day has a thorough report on Day 2 with an update on the goings on during Day 3.  Apparently, the judge had a few reservations about the ballots used.

At one point, after the third dealer testified, the judge presiding over the hearing, Raymond P. Green said a lot of the confusion could have been avoided if the ballots were printed in multiple languages.

“If it was me, I would have translated the ballot,” Green said, but added that more evidence is needed to overturn the election.

  • A decision on the objections that the hearing is focusing on will likely come down within the next few weeks — though it could be longer given the scope of the testimony.

UPDATE: The Day, has a more thorough report of Day 3 of the hearing available here now.  The attorneys representing the regional NLRB challenged the Tribe’s arguments a bit more.

William O’Conner, an attorney representing the regional NLRB, said no written complaints from any employees about the lack of a multilingual ballot were provided to the board, despite a subpoena requesting such documents.

There was “not one iota of evidence” that any one was affected or disturbed by the ballot, O’Conner said.

Richard Hankins, an attorney for the tribe, responded after the hearing concluded for the day.

“That’s grandstanding by Mr. O’Conner,” Hankins said. “Because he’s trying to cover for the fact that the region didn’t do its job.”

While the mainstream press has been reporting on the upcoming hearing tomorrow on some of Foxwoods’ objections to the election, Foxwoods has also been challenging the Regional Director’s decision on December 21, 2007 rejecting the other objections raised by Foxwoods.  Thus, readers should be aware that reporting on the hearing tomorrow is only one front in the battle over unionization at Foxwoods. 

Earlier this month, Foxwoods filed a lengthy "Request for Review" of that December 21st decision, which can be downloaded here. While it repeats some of the same arguments made earlier, when read in conjunction with yesterday’s column in The Day, it highlights the strongest argument that the Tribe has — that tribal sovereignty and Indian law trump the "normal" rules of construction.

For instance, on pages 16-18, it notes that although federal agencies are generally afforded some deference to their rules, that deference should not be afforded when the rule is construed towards Indian tribes.

In line with that canon, the Board is consequently duty bound to interpret the NLRA’s jurisdictional reach in a manner which furthers tribal interests.  Here, that inexorably leads to a conclusion that tribes, including [Foxwoods/Mashantucket Pequot Tribal Nation] fall outside the NLRA’s scope…"

Foxwoods also argues that the effect of a potential strike on the tribe’s ability to provide governmental services was not considered properly by the Regional Director.  Foxwoods’ brief attaches multiple exhibits, which can be downloaded here, here and here, including its prior briefs which can give the reader additional insight into the tribal sovereignty argument. 

Notably, the State of Connecticut filed a brief in opposition on Friday, January 11th.  The State has taken a very aggressive approach to this matter and has again challenged the tribe’s arguments — saying they essentially nothing but a retread and dismissing the remaining arguments.   The  State’s brief can be downloaded here.   It’s also worth reading (its much smaller in scope) to understand the counter to the arguments raised by the Tribe. 

UPDATE: Jeff Hirsch, at the Workplace Prof blog, also has his thoughts on the arguments that are worth taking a look at. 

A few weeks ago, I covered the basics of personnel files, in response to an article on whether there was a "crisis" in personnel file litigation.  But a few questions remain, so consider this the third part in a trilogy about personnel files.  In other words, once you determine what is and isn’t supposed to be in a file, what are the action items for those files? 

Remember, each employer is unique so employers should always check with an attorney about implementation of any rule to ensure compliance with the laws that may apply.  Connecticut’s law on personnel file can be found at Conn. Gen. Stat. Sec. 31-128a. 

  • Can Employees Review and/or Copy Their Personnel File?
    Yes.

    • Employers must "within a reasonable time after receipt of a written request from an employee, permit such employee to inspect his personnel file….Such inspection shall take place during regular business hours at a location at or reasonably near the employee’s place of employment."
    • An employer is not required to allow such an inspection more than twice in any calendar year.
    • An employee has a right to a copy of his/her personnel file, although the employer may charge a reasonable fee for copying it. If an employer charges a fee for copying, it should do so consistently.
  • What if the Employee Disagrees with the Information in the Personnel File?
    • The law provides that an employee who disagrees with any information contained in a personnel file may, with the employer’s permission, remove or correct the information. If the employee and employer cannot agree on removal or correction, then the employee can submit a written statement explaining his position and that statement must then become part of the personnel file.   The employer is NOT required to remove any aspect of a personnel file simply because the employee requests it.
  • How Long Must You Keep Personnel Files?
    • Personnel Files must be kept a minimum of one year following termination.
    • Medical files must be kept for at least three years following termination.
    • Given the confidential nature of information in personnel and medical files, such files should be kept in a secure location (i.e., a locked file cabinet).
    • Beware, however. There may be situations where a personnel file must be kept longer, such as when there is a "litigation hold" on such personnel files. 
  • What Else Should You Know About Personnel Files?
    • Consider doing an audit of existing personnel files to ensure compliance.  In that review, a company can check for offer letters, can separate out  I-9 forms, etc.
    • Always remember to keep medical and personnel information separate
    • Before producing a personnel file, the employer should review it to ensure its accuracy.
    • Personnel files can be stored electronically; the idea of a "paper file" may be antiquated for some employers.