The results are in: The General Assembly and the Governor’s office have been caught up in the Blue Wave in this state.  Instead of a split, the Democratic party will control a sizable majority in both houses and the Governor’s Office.

But with Governor-Elect Ned Lamont coming from a business-side perspective and touting the need to grow business in Connecticut, what are we likely to see in the next legislative session?

Already legislative leaders are talking about a push for a series of progressive-leaning bills that have been held up the last few years. The CT Mirror has this initial report:

A day after Connecticut experienced its own blue wave in the midterm elections, Senate and House Democratic leaders said addressing a minimum wage increase, tolls, and paid family medical leave will likely be among the top priorities the majority takes on in the upcoming legislative session.

Yes, two out of the three items cited are big employment law topics. Indeed, paid family leave has been talked about for several years.

Back in 2015, I noted what the contours of such a package might look like.  

Beyond minimum wage and paid family leave, what else should employers be on the watch for? A new bill on sexual harassment prevention training and perhaps even an expansion for claims of sexual harassment isn’t out of the question either.

The bill died on the floor earlier this year, but it’s hard not to think that with sexual harassment claims in the state on the rise, a bill on the topic isn’t far behind.

My early prediction? The 2019 legislative session is going to be a busy one.  Additional bills on strengthening unions may ultimately be on the table.

With a Blue Wave in the state, employers should be mindful that elections have consequences and those are going to be seen in 2019 at the General Assembly.

From time to time, I take a look back at a prior post that may have particular relevance now. With Halloween knocking on our doorstep and sexual harassment claims on the rise, this post from 2010 has just as much meaning today.

For most people, Halloween is a fun and silly holiday.

Yet the holiday has a distinct place in employment law history.  Indeed, for some employers, the holiday has brought more tricks than treats.

  • In Marrero v. Goya of Puerto Rico, 304 F.3d 7 (1st Cir. 2002), a supervisor was alleged to have gone out to buy Halloween presents. Allegedly, he gave the employee “a direct penetrating look with lust,” and said: “I have a little present for you that you’re never going to forget and if you don’t do the things I tell you and order you to do I am going to fire you.”
  • In Grubka v. Department of Treasury, 858 F.2d 1570 (Fed. Cir. 1988), a supervisor appealed his demotion for engaging in alleged acts of misconduct in kissing and embracing two female employees at a Halloween party organized and staged by the employees at a hotel after hours away from their workplace and for their entertainment.  While he prevailed, i’m not quite sure its the type of activity one would put on a resume.
  • In Lester v. Natsios, 290 F. Supp. 2d 11 (D. D.C. 2003), an employee claimed racial harassment after a costume incident that is probably best left to the court’s analysis: “The …incident is best described as silly, although perhaps also somewhat offensive. It involved a supervisor who dressed up for a Halloween party in a costume as a plant, and then snipped scissors at plaintiff in a conference room.” Um, ok.
  • In Richardson v. New York State Dept. of Corr. Ser., 180 F. 3d 426(2d Cir. 1999), an employee claimed that at Halloween, a co-worker said to the plaintiff something to the effect that “all you spooks have a nice Halloween.” According to the court, the Plaintiff “perceived that the word “spooks” was used as a derogatory term for Black people, and recalled that her co-workers all turned to look at her when the remark was made.” The Court ultimately allowed some hostile work environment claims to proceed, though other references to “lynchings” probably had something to do with it too.
  • Then of course, there’s the supervisor who was alleged to have had a frank discussion of what he was going to wear for Halloween. In Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134 (D. N.H. 2005), a female cashier, alleged that the supervisor “responded to a question about his stated intention to dress as a woman for Halloween by saying that he was a hermaphrodite who menstruated and used to wear a bra.”  The court upheld his termination.

So, as your employees dress up and act silly, keep on the lookout for employees who cross the line.

As these cases show, Halloween is no excuse for harassment.

As part of my continuing series of posts about the CHRO, and following up from the 75th Anniversary panel discussion earlier this week, I wanted to provide an early look of the statistics that are soon to be released by the agency.

I was provided a preliminary draft in preparation for the panel presentation; it should be out in the next week or two and I was asked not to divulge the specific numbers.  Stay tuned for my deep dive into the numbers when they are officially released. (As a refresher, you can see last year’s numbers here.)

But there are few trends that are readily apparent from the draft.

First, as we have all suspected, sexual harassment claims filed with the CHRO are up substantially over the prior year.  This is not too surprising given the publicity regarding the #metoo movement.  Still, we haven’t seen these types of numbers in nearly 15 years.  When the final numbers are released, expect a big increase in sexual harassment claims from FY ’17 to FY ’18.

Second, we continue to see an increase in the numbers of employment discrimination claims being filed at the state agency.   While it is tempting to draw conclusions from this, the numbers seem to correlate closely to the increase in sexual harassment claims.  Normally, in an improving economy, we see decreases in the numbers of claims filed. We haven’t and that should raise some concerns for employers.

Third, the numbers of cases withdrawn “with settlement” are down substantially.  It’s hard to know what to make of this. With more cases getting dismissed by the agency, it could just be that some of the “nuisance” value cases are getting handled that way, but the drop seems to be much more than that. When the final report is released, it’ll be worth taking a deeper dive into the numbers.

Despite all of the numbers, the numbers of cases certified to public hearing and the number of reasonable cause drafts issues has remained constant from year to year.  This may be the result of the consistent approach that the CHRO has been seeking to implement over the last few years.

The biggest takeaway for employers? Discrimination and harassment complaints are likely at the second highest total they’ve been at in the last decade.

The age of increased discrimination and harassment claims isn’t over; it’s happening right now.

Last year I talked about how the new era of sexual harassment claims was coming.  The open question was: Would the number of claims actually increase?

The answer to that is now known: Yes.

The Equal Employment Opportunity Commission released its preliminary data regarding workplace harassment today. And it’s findings shouldn’t be a surprise if you’ve been paying attention.

Among the notable pieces of data:

  • Charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from FY 2017.
  • The EEOC recovered nearly $70M for victims of sexual harassment through administrative enforcement and litigation, up from $47.5M in FY2017.
  • Reasonable cause findings in harassment claims increased to nearly 1200, up from 900 in FY 2017.
  • And public interest is skyrocketing: The EEOC’s website traffic to its sexual harassment page more than doubled in the last year.

In Connecticut, the Commission on Human Rights and Opportunities hasn’t yet released their statistics on their website.  In years past, it’s been released in the fall — so stay tuned for that. But I anticipate hearing much more from the CHRO this month.

The CHRO is celebrating its 75th anniversary with a whole host of programs including one on Overcoming Barriers in Employment (I’ll be speaking at that one — details soon) and a #MeToo and LGBT Panel Discussion as well.

Interest in sexual harassment cases and actual cases show no sign of slowing down.  If anything, I would argue that public consciousness and awareness of these issues are nearing all-time highs.

Employers should continue to review their policies and procedures in this area and take another look at the training they are providing.

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.