chro2In yesterday’s post, I talked about how employment claims being filed are up big at the CHRO.

Indeed, in looking at the statistics further, I realized that it is the second highest number of claims being filed in the last 15 years.

So, FY 2015 was a very big year for claims.

But typically, in an improving economy, claims go down.  At least that’s the prevailing wisdom. So, what gives?

I wondered if the statistics could help explain the increase further?

In part, yes.

abacusIf you look at the “discharge” claims — that is, the claim that “I was fired because of discrimination” — those claims are basically the same (1174 for FY 2015 vs. 1164 in 2014.)

Compared with 2003 – the peak year for employment claims at 2211 — discharge claims are actually down substantially.  Indeed, in 2003, there were 1385 claims.  Thus, discharge claims are actually down 15 percent since 2003.

So, where are these claims coming from? One is from an obvious source: Retaliation claims.

In 2003, there were 516 claims filed. In 2014, 625. And in 2015, 753.  A 46 percent increase in the last decade or so and 20 percent over the last year alone.

Another is from a not so obvious source: from 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 such things as hiring, firing, promotions, and pay. It also means an employer may not discriminate, for example, when granting breaks, approving leave, assigning work stations, or setting any other term or condition of employment – however small.

In 2003, there were 411 such claims filed. In 2014, 782. And in FY2015 —  a spike to 941.  That translates to a 130 percent increase in such claims over the last 12 years and 20 percent over the last year alone.

In my mind, that means that many current employees are bringing discrimination claims against their employers based on the terms and conditions of their employment.

One other source? Harassment claims.  Notably, I’m not talking about sexual harassment claims which are actually down from last year and down 24 percent from 2003.

Instead, this is the catch all claim for “I’m harassed” because of some other reason.  503 claims were filed in FY 2015 vs. 380 in 2014 and just 175 in 2003.  That’s an increase of nearly 190 percent in the last 12 years and 32 percent last year alone!

Again, these are typically brought by current employees who may be dissatistifed with things at work and believe that they are being “harassed” by their supervisor.

Indeed, the notion of “workplace bullying” movement is premised, at least in part, on this idea.

So, what’s the takeaway here? You may be looking for claims in the wrong spot. Dismissal claims are fairly constant, but it is claims by current employees that are up substantially over past years.

And while we’ve talked about the increase in retaliation claims for many years, but harassment and “terms & conditions” claims are now the hot areas — at least in Connecticut.

Is there anything else to be gleaned from the statistics? Any other reasons why we’re seeing an increase? Stay tuned for the next post.

As I take a few days off, here’s a post from WAY back in 2009 about offer letters that you may have missed. With employers doing more hiring in 2013, it takes on added relevance.

 

In my series of the “basics” of various employment laws (see prior installments here,here and here), this week the topic is offer letters. Specifically, at the time of hiring an employee, does Connecticut require any documentation be provided to employees?20

 

The answer is yes.  Perhaps not in the form of an “offer letter” but it must be something resembling it.  Specifically, Conn. Gen. Stat. 31-71f requires that every employer, at the time of hiring, tell employees:

  1. What his or her rate of pay will be;
  2. What hours the employee will be expected to work;
  3. How often the employee will be paid (weekly, bi-weekly, etc.).

Connecticut law also requires that employers “make available” to employees (in writing or through a posted notice) any policies or practices relating to:

  • wages;
  • vacation pay;
  • sick leave;
  • health and welfare benefits;
  • and comparable matters.

The employer must provide notice to the employees if it makes any changes to these policies or practices.

For employers, strongly consider using a standard offer letter for each of your hires.  Also be sure that any such letters confirm that the employee is “at-will”, meaning that the employer can fire the employee at any time for any reason (and the employee can leave anytime for any reason too).

The title of this post is, of course, a bit misleading.  Any lawyer will tell you that each employment case you may have is unique and that any settlement must take into account the facts and circumstances of the particular case.

All true.  And, if your company is negotiating a settlement, you ought to have your agreement reviewed by an attorney.

But for those wondering what provisions “most” settlement agreements contain, I thought it would be helpful to outline a few from an employer perspective.

  • Consideration/Payment — This paragraph describes what the employer is typically paying in the settlement and whether the paymen
    What's on YOUR checklist?

    t is to be made in a lump-sum or over time.

  • Release — Probably the single most important part of the agreement. The employee is typically waiving all of his or her rights in this paragraph.
  • Covenant Not to Sue – In this paragraph, the employee agrees not to sue the employer in the future.
  • Stipulation of Dismissal – Of course, since there is a settlement, if the matter is pending in court, the employee agrees that the matter will be dismissed as settled (various courts term such a dismissal differently).
  • No Admission of Liability – Each party agrees that the agreement is not an admission of liability but that the agreement merely represents a compromise.
  • OWBPA-compliant provisions — If the employee is over the age of 40, the Older Workers Benefit Protection Act may come into play. If so, provisions relating to OWBPA (covered in this prior post) may need to be added.
  • Confidentiality — Nearly all of the settlement agreements nowadays contain some type of provision that calls for the settlement to remain confidential (with some limited exceptions for attorneys, accountants and those within the company with a business need to know).
  • Non-disparagement — As with the confidentiality clause, often times employers (and employees) insist that the other party cease from saying negative things about the other.
  • No Rehire – If the employer is settling a dispute from a termination, typically, the employer does not want to have to rehire the employee. This provision provides that the employee agrees that he or she will not seek re-employment and waives any right to be rehired.

This list is far from comprehensive but is a starting point for employers to consider.  There are other standard provisions (governing law, severability, etc) that are also routinely added too.

Although it is a bit dated, there’s still a great checklist of all such provisions in employment settlement agreements that you may also want for your library prepared by Attorney Robert Fitzpatrick. It remains among the more comprehensive lists I’ve seen out there on the subject. It doesn’t have some of the more recent developments (such as Section 409A regarding executive compensation), but it’s a good primer on the subject.

(And another  reminder, please be sure to consult with your legal adviser regarding the drafting or reviewing of a settlement agreement that will fit with your unique legal circumstances.)

Among the things we take for granted now is that information about anything and everything has always been available.

(Indeed, if you want to really take a trip back in history, read this article about Time’s pick of the Personal Computer for its Man of the Year award in 1982.)

Google has been at the forefront of making information available and this week, it released another fascinating tool.

Google has taken the 500 billion words it has pulled from its Google Books project and made the data available to anyone here.  The New York Times has full details here.

So, for example, you can see that the usage of the word "Hartford" peaked around 1939 and has been dropping off ever since.

I thought it might be fun to look at a few employment law-related terms to see if any trends could be ascertained from 1920-2008.  The results are not scientific by any stretch, but it’s a fun exercise nonetheless.

So, for example, comparing the terms "Title VII" and "sexual harassment" shows that books referencing Title VII peaked in the late 1970s and have been declining since then. (See the first chart above.)

However, books referencing sexual harassment skyrocketed in the 1991-1992 time frame quickly passing Title VII in interest. But that phrase has also been in decline since peaking in the mid-to-late 1990s.

And what happened in the early 1990s to spark interest in "sexual harassment"? Why, the Anita Hill/Justice Thomas hearings.  

Or compare the use of the terms "overtime" and "labor unions" (reflected in the second chart).  You see peak usage of overtime in the mid-to-late 1940s.  

Similarly, you see "labor unions" usage peaking in the mid-1940s and a slow, steady decline after that point.   Given the decline in the influence of unions in the last several decades, it’s probably not a surprise that the use of the term has also declined.

Comparing terms like "diversity", "discrimination", "harassment", and "affirmative action" (the third chart) also shows a peak usage of all those terms in the late 1990s.  Interestingly, "diversity" overtook "discrimination" in 1993 in prevalence of use.   (I should note that it is unclear what the reasons for the decline are; the data merely shows trends from this set.)

Got your own suggestions of terms to search related to employment law? Post them in the comments below and let’s see if we can ascertain any additional trends from this data.  

You know it’s summer when the most exciting headline in employment law over the last day seems to be the markup of an arbitration fairness bill by a House Judiciary Subcommittee.  Not terribly exciting.  If you’d like more details on that bill, Workplace Horizons has a nice little summary and does it’s typical terrific job on keeping up to date on some federal legislative items.  But it is still a long way off. 

In the meantime, this little lull provides an opportunity to catch up on a series of posts I’ve done on little known employment laws. For some of the previous installments, check out here and here.  

Today’s post addresses offer letters.  For many employers, they are courtesy morgue file typewriterstandard practice, but others seem to ignore them.

Connecticut actually requires something resembling an offer letter to each employee. Specifically, Conn. Gen. Stat. 31-71f requires that every employer, at the time of hiring, advise an employee of three things:

  1. The rate of remuneration (in other words, the salary or rate of pay);
  2. The hours the employee is expected to work;
  3. And the schedule for wage payments (weekly or otherwise).

Notably, that statute also requires that employers "make available" to employees (either in writing or through a posted notice in a lunch room or other accessible location) any policies or practices relating to:

  • wages;
  • vacation pay;
  • sick leave;
  • health and welfare benefits;
  • and comparable matters.

If the employer makes any changes to these policies and practices, the statute requires that the employer provide notice to employees as well.

Thus, offer letters (or something resembling them) are a good business practice, but also the law. Use them as an opportunity to also include language that confirms that the employee is "at-will" meaning that the employer can fire the employee at any time for any reason (and the employee can leave anytime for any reason too).