As I noted earlier this week, the U.S. Supreme Court has approved of the use of class action waivers in arbitration agreements with employees.

My colleague, Gabe Jiran, has a recap of Epic Systems v. Lewis on my firm’s blog, Employment Law Letter, that you can access here.

So, it’s a foregone conclusion that employers of all shapes and sizes will start using arbitration agreements and insert provisions with class action waivers, right?

Not so fast.

As Jon Hyman astutely noted in his Ohio Employer’s Law Blog yesterday, this decision may not be the panacea employers are looking for.

For example, it might end up being more costly for employers because arbitration may be more costly than litigation.

Moreover, these costs only increase if you are arbitrating dozens, or hundreds, or thousands, of individual claims instead of one class or collective action. Don’t think for a second that this decision will end wage and hour litigation. Instead, plaintiffs’ lawyers, who currently have claimants opt-in to FLSA collective actions, will instead merely file a plethora of individual arbitration claims.

It’s a valid point but I’m not sure I buy into this entirely.  Arbitration may be cheaper in many instances.

Moreover, part of the attraction that some lawyers have to wage/hour class actions are the attorneys’ fees that can get added on to the case automatically.  Filing a lot of individual arbitration cases may be good in theory, but in practice? That’s still a lot of work for a plaintiff’s-side attorney to follow.  While some enterprising attorneys will continue, we may see a thinning in the practice area as a result.

That said, I could certainly see unions encouraging this type of action at some workplaces — the death by 1000 paper cuts is something to keep in mind.

Employers may also be wary of entering into arbitration agreements with class action waivers because of the public backlash against forced arbitration, particularly  in sexual harassment matters.

This is not new — indeed, there was a Law Tribune editorial in 2014 before #metoo was well-known that suggested legislative reforms in the area.

Employers that are seen as enforcing “coercive” arbitration provisions may face a social media or publicity campaign. Each employer will have to figure out its risk tolerance and how it wants to be seen by its employees and the public before implementing arbitration agreements.

Moreover, in states like California, there are statutes that allow for an employee to sue over workplace violations individually as well as on behalf of others, allowing for “representative suits”, similar to class actions.  These “Private Attorneys General Act” cases may become the norm in California.

Could Connecticut follow?

These are just a few of the considerations that employers ought to be thinking about in light of the Epic Systems decision.  The decision certainly provides employers with another tool in managing their workforce. The question on the table now is whether that tool is useful or not.

Last night, I had the honor of being elected as Chair of the James W. Cooper Fellows Program of the Connecticut Bar Foundation, after serving for a year as Vice-Chair and Chairperson of the Fellows Education & Program Committee.

The Fellows are comprised of outstanding Connecticut lawyers, judges, and teachers of law; the Fellows put on a variety of programs during the year including symposia, roundtable discussions and mentoring programs for high school students.

At the annual dinner, I sat next to and talked with the Keynote Speaker for the evening, Teresa Younger, who is currently President & CEO of the Ms. Foundation — the Foundation started by icon Gloria Steinem.

Those of you with memories here in Connecticut may remember that she was Executive Director of the Permanent Commission on the Status of Women and Executive Director of the CT Chapter of the ACLU, before leaving to go to the Ms. Foundation.

I’ve met her several times — each time, I’m left with just awe at her accomplishments and, more importantly, by her wisdom and insights.

During her prepared remarks, Ms. Younger had a lot to say about the #metoo and #timesup movements in ways that I think many employers can take notice of.

Among them was her reminder to all of us that the movement isn’t just about stopping harassment in the workplace.

Rather, it’s designed to listen to voices that haven’t yet had the seat at the table, or who have been too timid to speak up thus far.

She highlighted a ABC News report and conversation recently about the shifting views in the workplace and that even among women, there are differences based on age.

As one of the participants in that ABC News conversation said:

From this conversation, I recognized that not everyone feels comfortable and assured in their position to speak up and voice concerns when they experience inappropriate behavior that makes them feel uncomfortable or unsafe. Recognizing this, I encourage people experiencing any form of what they interpret as inappropriate behavior not to feel intimidated and talk with a colleague or a supervisor whom they trust and ensure that there is support if they decide to take next steps.

The workplace continues to shift and evolve.  It’s up to all of us to be cognizant of this and adjust our expectations and actions accordingly.

My thanks to Ms. Younger for providing a valuable insight at last night’s CBF meeting.

Today is the last day of the General Assembly session and there are only so many hours to debate and pass bills.

And so, in a year when so many labor & employment law bills were up for consideration, it’s come down to a finish line where just one or two might pass.

The Pay Equity bill I highlighted earlier this week is on to the Governor’s desk, where he has indicated he will sign it.

But the bill making broad changes to the harassment and discrimination laws in the state now appears to be on life support. Perhaps even “mostly dead”.

You will recall from my post earlier this week that the bill passed the Senate with an overwhelming majority with language that seemed to have broad support.

According to a report in CT News Junkie, a deal has yet to be reached in the House and there may be too many issues with it to come to a deal today.

At issue has been the language eliminating the statute of limitations for some sex crimes.  It’s possible that a fix that revises the training requirements could perhaps see it’s way out of the mess but that is seeming increasingly unlikely according to news reports.

There are other bills still floating out there: Paid FMLA, changes to minimum wage, etc. None of them though seems to have enough steam at this stage to get over the finish line.

So stay tuned.  There’s a budget bill that is still up for grabs and the last day always has a way of surprising.

I’ll have a full legislative recap once the dust settles.

Update: A few days after this post, the General Assembly failed to give final approval to this measure, leaving it to die at the end of the legislative session on May 9, 2018.  

Early Friday morning, the state Senate approved a bill that would significant broaden the sexual harassment prevention training requirements and many other provisions in discrimination law.  A similar (but notably different) bill passed the House; now, this Senate bill on the House calendar for this week.

It’s not a done deal just yet, but here are the key provisions of Senate Bill 132 (as amended) as it seems probable this bill is close to final passage.  Thanks to the OLR for summarizing the key aspects of the bill of which I’ve borrowed heavily from.

TRAINING

  • The bill would change the training requirements for sexual harassment prevention.
    • It would require training for supervisory employees of all employers, regardless of size
    • For nonsupervisory employees of employers with 20 or more employees, it would also require training.
    • Overall, the training would need to take place by October 1, 2019 with some additional tweaks specified in the bill.
  • The bill requires CHRO to develop and make available to employers an online training and education video or other interactive method of training and education that fulfills the bill’s training requirements.
  • Under the bill, employers who are required to provide such training must, at least every ten years, provide supplemental training to update employees on the content of the training and education.

INFORMATION AND POSTING

  • Currently, employers must post a notice that (1) that sexual harassment is illegal and (2) of the remedies available to victims. Under the bill, this information must be sent to employees by email, within three months of hire, if the (1) employer has provided an email account to the employee or (2) employee has provided the employer with an email address. The email’s subject line must include “Sexual Harassment Policy” or something similar.

Continue Reading Revised Sexual Harassment Training Bill (And So Much More) Close To Final Passage

Earlier this week, the Judiciary Committee (by a 25-16 vote) approved of Senate Bill 132, being labelled by it’s proponents as the “Time’s Up” bill but covers both harassment and discrimination cases. I covered an announcement of this a while back.  

As the bill moves closer to consideration now to the state Senate, it’s time for employers to start paying attention to what’s in the bill.  The CBIA has expressed concerns about some aspects of the bill.

Here are a few highlights:

  • To require employers to provide every employee with information concerning the “illegality of sexual harassment and remedies available to victimes of sexual harassment”.
  • To require employers of three or more employees (currently set at 50) to provide two hours of sexual harassment prevention training and with such training being provided not just to supervisory employees, but all employees.
  • To eliminate affirmative defenses that employers otherwise have that: “(i) the claim of sexual harassment was properly investigated, immediate corrective action was taken and no act of sexual harassment subsequently occurred, (ii) the claim of sexual harassment was not reported to a respondent prior to the filing of a complaint with the commission, (iii) an employer has a policy of prohibiting sexual harassment or recently trained its employees on sexual harassment in accordance with subdivision (15) of section 46a-54, as amended by this act, or (iv) the sexual harassment was not severe or pervasive.”  These defenses would only be allowed to be introduced on the question of damages.
  • To prohibit employers from modifying the “conditions of employment” of the employee making the claim of sexual harassment when the employer takes “immediate corrective action”, unless employee agrees in writing to such a modification.
  • To allow the CHRO to order the promotion of an employee in response to a claim of discrimination.
  • To allow claims of discrimination that occur on or after October 1, 2018 to be subject to a new three-year statute of limitation, instead of the current 180 day requirement.
  • To allow punitive damages for discrimination claims to be awarded in some instances.
  • To allow lawsuits to be brought two years after the CHRO releases jurisdiction over a discrimination, instead of the 90 day requirement.

There’s more as well, so employers are best advised to review it and talk with their attorneys about the impact that this bill might have on their workplace.

From a procedural perspective, the change in the statute of limitations would be significant.

Take this example: Suppose an alleged discriminatory act took place on May 15, 2019.  An employee would then have until (approximately) May 15, 2022 to bring a CHRO charge.  The CHRO could investigate the claim for a while — say a year and release jurisdiction on May 15, 2023.  The employee could then have two additional years to bring suit in Court — taking it out to May 15, 2025.  Add another 18-24 months before a trial date, at best.

Ultimately, this could result in a claim being heard nearly eight years (or more!) after the alleged discrimination took place.

Supervisors may have long since left the company and evidence might not be available anymore for employers to defend themselves.  All told, these types of delays were exactly the type of issue that a shorter statute of limitations was designed to prevent.  Companies would be at a significant disadvantage in defending themselves, all the while damages continue to accrue.

This bill would also require the CHRO to renegotiate significantly large portions of the worksharing agreement in place with the EEOC.

There is certainly momentum for some type of action here; stay tuned to see what further modifications are made to this bill.

It happened again, last week.  An employer was sued.

Wait, what’s that? A new lawsuit gets filed EVERY day against employers?  (Actually, in federal court, at least 11885 employment lawsuits were filed in 2017. Far more than one a day.)

But last week, there were a bunch of headlines – a new sexual harassment lawsuit filed against a major Connecticut employer.

(I’m not going to mention it here for reasons that will become apparent in a second).

News organizations ate the new lawsuit up picking up scurrilous allegations that were even denied by some of the people involved.

This, of course, isn’t the first time that this happened — that is, news organizations publishing the fact that a lawsuit was filed.

Why? Is it really news?

Reporters would say yes, the public has a right to know.  And in fairness to them, a new lawsuit may have some newsworthiness.

But I’d argue that many reports about lawsuits get published for far simpler reasons — they’re easy to write about.  The facts are laid out in a complaint; all that’s really needed is a few quotes and a response from the employers and the story writes itself.

Typically, the news stories aren’t even written on the fly; a lawyer may “tip off” the reporter that the lawsuit is coming and offer “exclusive” interview to the reporter that coincides with the lawsuit.

At that point, the employer is left to say that it doesn’t comment on pending legal matters or that it’s still “investigating” the claims.

And even when the employer files its motion to dismiss, or answer, or actual responsive pleading, the press has long since moved on.

Employers must recognize this and be prepared to either respond to the press quickly, or figure out your plan ahead of time.

Communications expert Andrea Obston goes one step further and notes that with social media, your company’s story is being told — so you might as well get involved in the conversation.

In today’s on-line world, it’s easy for anyone to tell your story.  Don’t let them.  Tell it yourself.  Tell it authentically and tell it often.  If you don’t, expect someone else to do it for you – whether you like it or not.

Employment lawsuits are easy news. You should understand that by now.   Knowing what to do next may at least position your company as something different than just today’s punching bag.

Employment lawsuits can be more than just legal matters nowadays; the pressure of the online world can be huge. Understanding the stakes now in play are important for employers to understand as they defend against such lawsuits.

Last week, I posted about a proposed Governor’s bill that would expand the training requirements for some employers.

However, that appears to be just a small part of a wider political battle that is about to be raised.

Yesterday, a group of Senate Democrats proposed, according to a handout, the “Largest Overhaul in Modern Connecticut History of Sexual Harassment Laws” that would significantly alter the landscape for nearly all Connecticut employers.

They’ve titled their proposal the “Time’s Up Act: Combating Sexual Harassment and Sexual Assault”.  

The bill has yet to be drafted, but the outlines are being shared by Senate Democrats and will be pursued first in the Judiciary Committee (not the Labor & Public Employee Committee as you might expect).

According to their handout, the proposed bill will contain the following relating to discrimination or harassment laws:

  • Require that any notice of sexual harassment remedies and policies by e-mailed to each employee at least once a year, in addition to the required posting.
  • Increase the fines that the CHRO can impose for failing to provide notice (currently at $250)
  • Require sexual harassment training to all employers with three or more employees (instead of the current 50 or more threshold)
  • Require training of all employees, not just supervisory employees with broader topics
  • “Give CHRO the resources it needs to go out into the community and conduct on-site trainings”
  • Increase the statute of limitations from 180 days to 2 years for not just harassment complaints, but all discrimination complaints
  • Eliminate the 90 day deadline after receiving a release from the CHRO to file a lawsuit but extend it to two years after a release from the CHRO.
  • Permit the CHRO to ask for injunctive relief for employers of 3 or more employees, not the current threshold of 50.
  • Allow for punitive damages in all discrimination and harassment complaints
  • Increase funding for the CHRO
  • Create a similar model to California in passing a Private Attorney General Act, which would allow litigants to, after giving notice to the CHRO, bring a claim for violations against himself or herself, but also against other employees as well.
  • Prohibit settlement agreements that prohibit a party from disclosing information regarding sexual harassment or sexual assault.

This is still in the early stages but expect to see a lot more about this in the weeks and months to come.  No doubt, the Connecticut Business and Industry Association will have something to say about this as well.

I’ll have more details as they become available.

The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage.

Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months.

Governor’s Bill 5043 sets up the following changes:

  • First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15.
  • Second, the bill would also require all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years.
  • The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religious creed, age, sex, gender identity or expression, marital status, and national origin.
  • The training would also be required to include information about the employer’s policy against harassment, examples of the types of conduct that constitute and do not constitute harassment, strategies to prevent harassment, bystander intervention training and a discussion of “workplace civility” that shall include what is acceptable and expected behavior in the workplace.
  • The bill would require employers of three or more employees to continue to post information regarding all types of harassment and, on an annual basis, to “directly communicate such information and remedies to employees on an annual basis”.

My best guess is that this item of legislation will go through some additional tweaks to satisfy various constituencies, particularly because of the increased costs involved.

For example, expanding the training to all employees would create a massive new industry for training and, as the CBIA has said, a costly mandate as well.

There is more legislation coming down the pike in the employment law area.  This is just one of the items being floated so stay tuned.

Last week, I had the opportunity to again represent Connecticut as the State Delegate for the American Bar Association’s House of Delegates at the Vancouver ABA Midyear Meeting.

Among the resolutions debated was Resolution 302 which “urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.”

Although it lacks some of the specificity found in “best practices” that I’ve highlighted elsewhere, it does establish some basics for employers to use.  Some should be well known but they are worth reiterating.

What are some of the policies and procedures should have?  For example:

  • dissemination to all employees, management and directors of a clear statement that harassment, including harassment based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity will not be tolerated;
  • confirmation that the policy applies to conduct by directors, officers, management at all levels, supervisors, employees, and third parties, at or in connection with any work related function or against anyone protected by this policy irrespective of where that conduct occurs.

For more on the ABA resolution, check out this article from the ABA Journal from last week as well.

Kudos to the ABA for taking a timely stand and to my other delegates from Connecticut at the Vancouver meeting including Austin Berescik-Johns, Livia Barndollar, Linda Randell, Barry Hawkins, Steve Curley, Karen DeMeola and Judge Alvin W. Thompson for their contributions as well.

If you have any questions on what else occurred at the ABA meeting, please feel free to send me an e-mail at the contact link above.

The American Bar Association (ABA) holds its Midyear Meeting later this week in Vancouver (Canada!) and the House of Delegates is scheduled to debate several resolutions of interest to employers and employment lawyers.

As readers of this blog, you happen to “know” the Connecticut State Delegate (me!), coordinating a delegation of several esteemed lawyers from Connecticut.

Thus, if you have any questions or concerns about the resolutions, please e-mail me this week at dschwartz@goodwin.com.

Or feel free to add a comment below.

You can review all the resolutions here but the few that I would pay attention to are as follows:

  • Resolution 116A supports an interpretation of Title VII of the Civil Rights Act of 1964 that defines sex discrimination by covered employers to include discrimination on the basis of sexual orientation and gender identity.
  • Resolution 117 urges courts to recognize that service in the United States Armed Forces should not be restricted and that individuals should not be discriminated against on the basis of sexual orientation or gender identity.
  • Resolution 302 tackles the wave of sexual harassment allegations that have been making headlines every day.  In doing so, it would urge “all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex (including gender, gender identity, and sexual orientation) and the intersection of sex and other protected classes.”  The resolution contains a list of suggestions for employers to follow.

The ABA’s resolutions set the policies for the organization to follow.  Thus, the debates that flow from these are more than just theoretical, they help set the path for the ABA to follow. Attorneys should take note and follow the goings on. I’ll have an update for you in an upcoming blog post as well.