Like most of America, I spent a few hours this weekend seeing the new Avengers movie.

(Don’t worry – no spoilers here in this post.)

But it’s amazing how much the Marvel Universe has permeated our pop culture the last few years.

So, it is with tongue firmly in cheek, when I use this post to talk about a presentation I’m doing tomorrow with my colleagues that plays off one such segment of these movies.

Entitled, “Guardian of Your Own Galaxy: Making Informed Decisions on Hiring (Legally) and Sharing Information (When Appropriate)”, we’re going to talk a lot about how the hiring decisions of Tony Stark (i.e. Iron Man), Pepper Potts and how Stark Enterprises is run.

Ok, one spoiler alert: No Tony Stark.

Instead, we’re going to talk all things related to the hiring process: Background checks, interview questions, school-related employment history checks, registry checks, credit checks, ban the box, etc.

We’re also going to talk about personnel files and how FOIA requests should be addressed in the context of information about personnel.

All of this is part of my firm’s Labor & Employment Spring Seminar: 2018 Public Sector Legal Update tomorrow.

Star-Lord and Drax will not be there but we hope to see you there.

Are you one of those people who thinks two is better than one? I know I am.

So, with that in mind, I’m pleased to announce that my lawfirm, Shipman & Goodwin has launched a new labor & employment law blog called “Employment Law Letter”.  The firm’s blog is an extension of the firm’s long-standing newsletter led, most recently, by my partner Brian Clemow.

And when I mean long-standing, I mean 40 years worth of production. That’s a publication record worth recognizing!

As announced by my fellow partner, Gabe Jiran, the new blog will also provide frequent and timely articles on a variety of topics as they occur.  In addition, the blog will post announcements of upcoming seminars and events, including my firm’s popular CLE webinar series.

One of the first posts of that blog highlights a CLE program that I’m doing this Tuesday via webinar entitled “Are You at Risk? An In-Depth Look at Workplace Sexual Harassment Prevention and Company Culture.”  It’s not too late to sign up for this FREE webinar here.

Never fear as well – this blog will continue just fine.  We’ll have a little less “guest posts” from my colleagues here now that there’s an additional platform for their posts and I’ll also be cross-posting over there from time to time.  But as with posts about my ABA involvement, etc., this blog will continue to share my perspectives and build from there.

See? Two really IS better than one.  Be sure to subscribe to Employmentlawletter.com today.  

In trying to eliminate sexual harassment in the workplace, how do we go beyond just training?

That is, in essence, the question that my colleagues (Jarad Lucan and Ashley Marshall) and I have been talking about recently.

And, fortunately for you, a topic of a free CLE webinar we are putting on a few weeks.  It’s set for February 13th at 12 p.m.

What we are really looking at is how do you get your company culture and actions in line to try to reduce and eradicate sexual harassment from your workplace?

It does not, obviously, happen overnight.  Perhaps it’s revising your policies. Perhaps it’s adding an ombudsman program if you’re large enough.

Or perhaps it involves encouragement of employee complaints so that you can tackle the issue more directly.

There is no one size fits all to this but it’s an important enough topic (naturally) that we wanted to devote a CLE webinar just to this.

Hope you can join us for this timely topic.

In college, I wanted to write for some of the major newspapers and be on their front page.

Little did I know that my big break would now come years later, as a result of being on the cover of the Hartford Business Journal.  

Wow.

But enough about me.  This blog is about employment law so let’s talk about the article inside the HBJ because it’s definitely worth a read.  

You see, the photo, has little to do with the content.  And the content is what employers should really be paying attention to.

The article is all about the topic of sexual harassment in the workplace, which continues to make headlines each day.

As I noted in the article, we just haven’t seen an increase in lawsuits….yet.

[F]or non-celebrity victims and their employers, the implications are just as dangerous and costly, so prevention is becoming a greater focus for many companies, lawyers say.

“It’s been the topic of conversation,” said Dan Schwartz, an employment lawyer at Hartford law firm Shipman & Goodwin, who has his own blog where he’s been tackling the issue. “It is at a level we haven’t seen in at least 10 to 15 years. There’s always been a steady stream [of inquiries] but we’re getting more calls from clients. It doesn’t mean we’re seeing more legal cases being filed. Lawsuits are a trailing indicator here.”

The article also summarizes things that employers can be doing now, even if there isn’t a sexual harassment complaint made. Update policies. Train managers and supervisors. Continually create an environment where harassment isn’t tolerated.

Each week seemingly brings new issues to the table; employers that can keep their focus on the issue while also maintaining perspective will do well in the long-term to reduce the likelihood of a claim at the workplace.

Did you ever have an employee post a status update from his termination meeting with HR?

I wrote about it a few years ago.  It seemed shocking then, and if anything, we’ve only seemed to be shocked more and more as each new tweet or blog post gets distributed with some outrageous behavior from an employee (or sometimes an employer!).

It used to be that companies would have weeks, if not days, to respond to publicity.  Now, it’s hours or even minutes.

Companies want to preserve their culture and reputation — and their corresponding products and services — more than ever. One misstep can get the online outrage machine going.  heck, even McDonalds’ got into a online snafu when it released (and then promptly sold out of) a unique retro szechuan sauce.

This Thursday, my colleague Jarad Lucan and I will be talking about these issues at our annual Labor & Employment Fall Seminar.  It’s nearly sold out, but you can still see about registering here.

The program session is entitled: Culture Shock: Preserving and Protecting Your Company’s Culture and Reputation in the Digital Age.

And the description is as follows:

In today’s social-media-obsessed digital age, your company and its culture may be put on display for the world to see in mere moments. Whether it’s a Google engineer’s memo claiming gender differences, the sexual harassment scandals at Fox News or the Weinstein Companies, social media rants by employees, or employees participating in hate riots, it has never been more incumbent upon employers to address these issues immediately and appropriately. This session will review state and federal laws and provide employers with steps they can take to create and foster positive company culture and mitigate legal risks.

Of course, it goes without saying that some cultures that have been exposed to the harsh light of social media deserve to be discarded.  Over 20 employees were dismissed at Uber following a detailed sexual harassment investigation into some 215 claims.

Come join us this Thursday and hear about other stories of employees (and employers) behaving badly online and elsewhere.

 

In the course of my litigation cases, I’ve had a good-natured argument at times with a few counsel who represent employees about the mindset of employers.  The argument I’ve heard from them is that employers are too cavalier in firing employees and just go about hiring someone else (someone younger, they argue).

headahbBut what I’ve heard from my clients over the years is something different.

Typically, the decision to fire an employee is tough, made only after a series of internal conversations.  Employees with performance issues weigh on the supervisor’s minds — the struggle between trying to help the employee improve while still making sure that the needs of the business get done.

Mostly they get it right. But firing a poor performer doesn’t typically solve the issues for employers. Rather, they then need to find the RIGHT person to fill that position.

Hiring the right person is hard.   Just the process of searching for that person can sometimes feel like the proverbial needle in the haystack.  Online resumes come in by the dozen and business pressures make it difficult for employers to just find the time to parse through the resumes and interview candidates.

The headaches with hiring have only gotten worse over the last decade as well.

New laws have been put in place that place restrictions on what employers can and cannot ask and when they can ask those questions. And further restrictions on things like non-compete agreements in certain professions make hiring the right person all the more important.

For example, “Ban the Box” is now the law in Connecticut. Have you amended your employment applications to address this issue? Restrictions on the use of credit reports were put in a few years ago. Have you revised your process accordingly? And how can you search social media without running afoul of laws that ban “shoulder surfing”?  Do you give employees an “offer letter” that outlines the terms of their employment as Connecticut law requires?

I’ve talked about some of these things in prior posts, but I’m going to expound upon it further at our firm’s upcoming Labor & Employment Law seminar later this month.  You can register for the program here; space is very limited at this point.

Are there other topics related to hiring that you’d like to hear addressed at the seminar or on the blog? Be sure to post a comment so we can incorporate that in our free presentation.

ashleymendoza1alfredoMy colleagues, Ashley Mendoza and Alfredo Fernandez, return today for a guest post today that shows that employment law issues can sometimes present themselves in different formats.  My thanks to the both of them in presenting a fairly advanced topic in a form that will hopefully be of interest to a few of you out there.

Imagine your company has employed a research scientist to support your technology programs.  The scientist is a citizen of the People’s Republic of China and holds an H-1B visa, but is not authorized to view certain export-controlled technical data.  Unclear of the restrictions in place, other company employees provide the foreign scientist with technical data related to a military program in the course of his job duties.  This real life scenario recently resulted in a $100,000 settlement penalty with the U.S. State Department this summer.

It appears that a company policy to screen out foreign candidates for job openings of this sensitive nature would have prevented this violation and penalty, but a company also faces the challenge of avoiding discrimination in its hiring practices.  Is this a lose-lose scenario?  Not quite, but companies must pay close attention to recent guidance and regulatory revisions to understand their compliance obligations.

The Tricky Intersection of Legal Obligations

On March 31, 2016, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (the “OSC”) released its most recent guidance to employers to aid them in navigating the murky waters where export regulations meet immigration antidiscrimination regulations.

These two regulated areas may contradict each other when it comes to the hiring practices of U.S. companies soliciting candidates for a position where the job duties impose compliance with export control laws. Unfortunately, the limited governmental guidance confounds some employers when it comes to complying with both sets of regulations in certain scenarios.   The OSC’s recent guidance and upcoming definitional changes within the export control laws do provide some general direction for employers; however several ambiguous issues remain unresolved.

IMG_7083What We Know About the Export Regulations in this Context

Exports are commonly associated with the shipment of a tangible item to a foreign country, but the U.S. export regulations have a much broader application.  An export also includes the transfer of controlled technical data or technology to foreign persons, even when the transfer takes place within the geographic territory of the United States.  Such a transfer is “deemed” to be an export to the country of the foreign person and is referred to as a “deemed export.”

Although not the only federal agencies administering export control laws, the U.S. State and Commerce Departments manage the two broadest export control systems.  The U.S. State Department’s Directorate of Defense Trade Controls administers the International Traffic in Arms Regulations (“ITAR”), found at 22 C.F.R. §§ 120-130, which control defense articles and services.  The U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) administers the Export Administration Regulations (“EAR”), found at 15 C.F.R. §§ 730-774, which control commercial and dual-use items,  as well as limited low-sensitivity military items.  Generally speaking, all articles controlled under the ITAR and many articles controlled under the EAR require an export license before the export, including a deemed export, occurs.

Each set of regulations accounts for deemed exports but have slightly different definitions of key terms.  In fact, new and revised definitions under both regulations become effective September 1, 2016.  One primary intention of the definitional changes is to better harmonize the analogous definitions in both systems. Under both regulations, the deemed export rule applies only to foreign persons and, by definition, does not apply to U.S. citizens, persons lawfully admitted for permanent residence in the United States (e.g., green card holders) or to persons who are protected individuals under the Immigration and Nationality Act (“INA”)(e.g., certain refugees and asylees).

The below table showcases a few of the new definitions, including the improved harmonization for key terms such as export and release. Continue Reading How to Avoid Discrimination in Hiring, While Complying with Export Laws

microphoneWith spring nearly upon us (one can only hope, right?), there are a number of upcoming programs that I’ll be attending or speaking at.

Some are free while others are related to the sponsoring entity.  I hope you can attend one and please feel free to come up to me to chat while we’re there.

  • First up, on March 17th, our firm is putting on our Labor & Employment Spring Seminar focusing on public sector topics.

    Among the topics being explored: Crisis Management; Security in Schools and Workplaces; Title IX Compliance; Trending Topics in Public Sector Negotiations; and, Off-Duty Misconduct.

    Registration is now open and is on first-come, first-served basis.  We expect this to sell out, so please be sure to register today here.

  • On March 23, 2016, my colleague Jarad Lucan and I will be speaking at the CBIA 2016 Human Resources Conference.

    Our topic is one that certainly hot: Namely, Why the NLRB May be Your Biggest Headache in 2016 — Particularly If You Don’t Have a Union.

    Registration is now open for this program as well.

  • And then on May 2, 2016, I will be making a return engagement to the Tri-State SHRM Bi-Annual Conference.

    The event, which is taking place in Rhode Island this year, features a number of tracks. I’ll be kicking things off on Day 1 with a program on Document Retention and Documentation Issues. My colleague Ashley Marshall will be joining me for this interactive and informative presentation.

    Registration is also open for this program now too.

I look forward to seeing you at one of these upcoming programs.

My colleagues at Shipman & Goodwin have, for a lot longer than I have been doing this blog, have been producing the Employment Law Letter recapping some stories you might have missed over each quarter or so.

This week, a new newsletter was released and it touches on several topics of interest.

  • It recaps a Connecticut Supreme Court case that rejected an employee’s claim for lost wages as a result of the Kleen Energy explosion back in 2010.
  • It revisits the NLRB’s cases against a local ambulance company.
  • And it discusses some recent cases regarding FMLA and independent contractors.

If you’re looking for some reading to supplement the blog, I highly recommend the click.

 

lock1Last week, I had the opportunity to speak to the Corporate Compliance Forum for the Connecticut Community Providers Association. My thanks to Gayle Wintjen, General Counsel of Oak Hill, for the invitation to speak.

The topic was a familiar one to this blog — Data Privacy.  In the session, we tackled the new Connecticut law that should be keeping at least some employers up all night figuring things out.

As I said in my talk, employers that have had to adopt HIPAA compliance rules should be in a good shape to get into compliance with Connecticut law. Things like two-factor authentication aren’t nearly as intimidating when you’ve already adopted it for other areas.

Now, the rules don’t need to be adopted by everyone. But those employers who do business with the state of Connecticut are typically covered.

The Privacy and Data Protection Group of my firm put together a FAQ to inform current and potential state contractors of Connecticut’s data privacy and security requirements and to answer the most commonly asked questions about applicable Connecticut law and compliance with it. This article also includes our recommendations for analyzing compliance under applicable Connecticut law and, if necessary, developing a plan to satisfy the pertinent legal requirements.

You can download it free here.

For human resources, I think this is one of the more complicated times to be in HR. Between privacy, discrimination laws, wage & hour laws alone, there are many issues to keep on top of. Make sure data privacy is on your list of things to pay attention to for this year.

And stay tuned for more information on an upcoming program in November.