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.

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.

After a break for the holidays, my long-running discussion with Nina Pirrotti, an employee-side attorney , returns. Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association, a current member of the Executive Board of NELA, and a frequent presenter on employment law topics.

In one of our prior discussions last year, we talked about whether we were seeing the beginning of a trend of sexual harassment matters after the Fox News scandals.  Now, after the last few months, we revisit the topic further to see where we are.  Let us know what you think about posts like this in the comments below.    

Nina: A warm hello to my management lawyer friend!  I could not think of a more opportune time to re-kindle our dialogue about sexual harassment.  For me, having Time Magazine name its Person(s) of the Year as the Silence Breakers has been the gratifying culmination to a year of sea change on this vital topic.

I got to tell you Dan (and in so doing will undoubtedly reveal to our readers that I lead an embarrassingly sheltered life), that before Taylor Swift exhibited the courage to subject herself to countersue David Muellerman (the man who sexually assaulted her and brought an unsuccessful lawsuit against her for defamation when she outed him)  I did not even know who she was.   She is my new hero.  She sued him for a symbolic $1 and she did it, she said, because she wanted to empower other women who have been sexually harassed and assaulted to come forward.

Well, I don’t need to tell you that they are coming forward in droves.  It is as if a switch has been flipped.  The paradigm has shifted and women who once felt that they had to suck it up in order to feed their families and save their careers are beginning to have hope that they no longer have to make that Hobson’s choice.  And just as gratifying as this loosening of fear in victims of sexual harassment and assault about coming forward has been the employers’ swift responses in holding the predator (no matter how lofty his perch) accountable.    Hallelujah!

Is this the beginning of the end to sexual harassment as we know it?  I wish.  Did you notice that cropped elbow that is in the photograph of the otherwise well-known faces on the front cover of Time’s Person of the Year issue?  The elbow symbolizes the millions of women who endure sexual harassment and assault and do not come forward for fear that their careers, their reputations, their families, and/or their personal safety are at stake if they do.

While I am gratified by the swift and appropriately severe responses to sexual harassment and assault committed by powerful men in the public eye, most of the sexual harassment and assault victims I represent do not have that leverage that comes with an outed perpetrator who has a public persona.  In such cases, too often, unless the employer fears public exposure, I find it does not have that same sense of urgency to take action.

What about you, Dan?  What does this surge in reporting indicate to you?  Are you finding more clients who are interested in taking preventative measures?  What are their concerns?

Dan: Happy New Year to you Nina! So, it’s been quite an interesting few months.  Everyone seems more busy.  Before I talk about that, it’s worth emphasizing that lost in all this reporting is that the incidents of misconduct that are making headlines are really varied in scope.  You have incidents of outright sexual assault being tossed together with conduct that may (or may not even) be classified as sexual harassment.    

And that is what I’m concerned about now.  A tasteless joke in the workplace is clearly NOT the same as some of the incidents that, say, Harvey Weinstein is accused of. (You can look it up; this is a safe for work blog, after all.)  And so, yes, we’re hearing more incidents reported. But that doesn’t necessarily translate to more credible claims.  I’ve heard from other attorneys representing employees that they’re seeing twice as many cases come in to them but they aren’t taking a lot more cases. 

And as we know, we’re still months away from seeing new lawsuits arising from these claims too.  What happens by then?

It’s too early to predict that the #MeToo movement won’t have the same impact six months from now (I happen to think that it will) but even since the holidays it seems the press is starting to move on a bit (Golden Globes, notwithstanding).  It’s hard to keep up the pressure that the end of 2017 had.

For employers, it’s important to not get caught up in assuming the worst and thinking that everything they’ve been doing has been a failure.  Much HAS changed over the last 20 years.  I do think, though, it’s an opportunity for employers to re-evaluate their training. They can also take a look at their culture: Are there any expense reports revealing something more nefarious (a Gentleman’s Club visit perhaps?)? Is it time to institute a “no-dating” policy for supervisors/subordinates? And where are your weak spots? Continue Reading The Dialogue: The Shifts That #MeToo Are Creating in the Workplace

In yesterday’s post, I talked about the basics of what is and is not “sexual harassment”.

Continuing the theme of going back to the basics, employers in the Constitution State have certain posting and training requirements that must be followed.

These requirements are found in the administrative regulations set up by the CHRO regarding sexual harassment prevention.

I first detailed these in a post WAY back in October 2007 (!) but they remain just as important today as ten years ago.

For posting: All employers who have 3 or more employees must provide notices that say sexual harassment is illegal and address what the remedies are for such harassment.

But here’s a free shortcut: The CHRO has prepared a model poster that complies with the statute and is free to download.  You can do so here. 

It’s a good time to remind employers too that employers should also update their “Discrimination is Illegal” poster also offered by the CHRO.  The poster was updated in October and again, is free to download here.  

For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.

Of course, this does not mean that employers who have less than 50 should NOT provide the training; indeed, offering the training can assist with a defense of a potential sexual harassment training.

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.

The format of the training should be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

The CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Those topics are:

  • (A) Describing all federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply, including, but not limited to, the Connecticut discriminatory employment practices statute (section 46a-60 of the Connecticut General Statutes) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section 2000e, and following sections)
  • (B) Defining sexual harassment as explicitly set forth in subdivision (8) of subsection (a) of section 46a-60 of the Connecticut General Statutes and as distinguished from other forms of illegal harassment prohibited by subsection (a) of section 46a-60 of the Connecticut General Statutes and section 3 of Public Act 91-58;
  • (C) Discussing the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving persons of the same or opposite sex;
  • (D) Describing the remedies available in sexual harassment cases, including, but not limited to, cease and desist orders; hiring, promotion or reinstatement; compensatory damages and back pay;
  • (E) Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
  • (F) Discussing strategies to prevent sexual harassment in the work place.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.

What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should consider following this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training.

Again, it is a wise course of action to follow.

If you haven’t taken a look at your posting and training materials at your company, now is a good time to do so.

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.

lock1Last night I had the opportunity to speak to the Colonial Total Rewards Association on the topic of Data Privacy and HR.  I titled the presentation “Is Your HR Data Going Rogue” and really focused on the role that Human Resources professionals should play in ensuring that company data is secured.

For those who have been following the blog for a while, you know that I’ve spoken a bit about this before (see some posts here and here).

Lest you think, this could NEVER happen at your company, the headlines from the last few weeks show otherwise. Company after company keep reporting major  data breaches — in part due to a W-2 scam that keeps claiming victims (see here, here, here and here if you’re not convinced).

Even technology companies are not immune. My favorite blurb from the last month was the following:

On Thursday, March 16, the CEO of Defense Point Security, LLC — a Virginia company that bills itself as “the choice provider of cyber security services to the federal government” — told all employees that their W-2 tax data was handed directly to fraudsters after someone inside the company got caught in a phisher’s net.


So if even tech companies are victims of data breaches, is there any hope for the rest of us? Well, yes. It’s not easy but there are several steps that employers can take.

  1. Learn – This is NOT simply IT’s role; rather, HR professionals should have a key role at the table in discussing a company’s data privacy culture and practice.  And the first step in that is that HR should learn the basics of data privacy.
  2. Assess – HR has access to lots of data; where is it and who has access?  Where are you “leaking” data when it comes to your employees?
  3. Develop – Develop policies and your data privacy program; and develop the teams of people that will respond in the event of a data breach
  4. Educate – Data privacy and protection ought to be part of sustained training program, just like anti-harassment training
  5. Monitor – Figure out risks and review areas; when breach happens, HR needs to be at table to discuss employee impact
  6. Inform – When (not if) if you have a data breach, inform those affected and gov’t officials and implement your data breach plan.

Once you’ve made it through, it’s time to start back at the beginning. Learn from your mistakes in a data breach and re-assess your vulnerabilities.

Data privacy and the need for companies to view it as a key part of your company’s culture should be an integral part of your employee onboarding and training.  My thanks again to CTRA for the invitation to speak to the group and the great conversation we had last night.

Wrapping up my look back this shortened week at some “Basics” posts, here’s a reminder of the obligations employers have to conduct sexual harassment prevention trainings.  Have a wonderful Thanksgiving and thanks for your continued readership.  

With every new law that gets passed, it’s easy to overlook the existing requirements that employers must follow.

After all, if employers are just tracking the new laws down without first nailing down compliance with “older” ones, then they are leaving themselves just as vulnerable to potential claims.

One area that is easy to overlook is sexual harassment prevention, particularly in Connecticut. Indeed, some employers believe that simply adopting a policy is all that is required.

And they would be wrong.

So, it’s time to go back to the basics and make sure you’ve hit the checklist when it comes to sexual harassment prevention in Connecticut.  Here are some things to consider:

  • All employers with 3 or more employees, must post notices regarding sexual harassment. Rather than tell you what it should say, just download the poster from the CHRO directly.  And it’s free.   (While you’re at it, consider spending some money to buy the all-in-one posters offered by some commercial ventures; alternatively, you can get the notices from each of the agencies.)
  • The CHRO suggests (but does not mandate) that the notices also include: A statement concerning the employer’s policies and procedures regarding sexual harassment and a statement concerning the disciplinary action that may be taken if sexual harassment has been committed; and  contact person at the place of employment to whom one can report complaints of sexual harassment or direct questions or concerns regarding sexual harassment.  Those are good ideas. Add them.
  • The notices need to be posted in a prominent location.  A shared lunch room is typical. Don’t bury them in a location that employees will never see.
  • Employers with 50 or more employees must also provide two hours of training and education to all supervisory employees of employees in the State of Connecticut within six months of their assumption of a supervisory position.  If you haven’t done such training, get it done now.  Your company’s preferred lawfirm should be able to do it or, in some instances, an employer’s EPLI carrier may also provide that service.
  • The training has certain requirements, such as that it is done in a classroom-like setting.  Some e-learning programs are now allowed under a 2003 informal opinion of the CHRO.
  • The CHRO recommends (but does not require) that an update of legal requirements and development in the law be given to supervisory employees every three years.  Again, that’s probably a good idea; it demonstrates an employer’s commitment to this issue.
  • The CHRO encourages employers to keep records of such training. I would go further than that to say that employers should strongly consider it.  If faced with a sexual harassment claim, such records may be key evidence to support the employer’s arguments that it took steps to ensure such harassment did not occur by training its employees.

Do you have all of these items under control? If so, you’re a step ahead.  If not, don’t ignore the issue.

Take steps to get the training done (Shipman & Goodwin provides such seminars on a frequent basis) and make sure your policies and procedures are current.

Rainbow over Hartford
Are Things Getting Better or Worse?

The last few weeks it seems that I’ve been reading about sexual harassment in the workplace issues a lot more. Here are a few examples:

So what’s going on? Is sex harassment increasing? Or is this just another round of increased focused placed on a problem that still persists?

Well, if you look at the statistics, you can see part of the story — and part of the problem trying to glean trends from the numbers too.

Last year, I reported on some statistics from the state level about harassment claims.  Indeed, sex harassment cases were down significantly, but general “I’ve been harassed” claims were up nearly 200% over the last decade or so.

The EEOC statistics show slightly different numbers. Sex harassment claims went up by a modest 4 percent in fiscal year 2015, though more generalized “harassment” under Title VII claims also increased by 6 percent.

So, which is it? Up or down? Statistics on case filing don’t tell the full story.  Surveys (yes, including the one in Cosmopolitan magazine) show that women still think some workplaces have issues.

But I would argue that chasing statistics is missing the point. Rather, it’s the perception of whether this is a hot issue that will drive the discussion.  And to that, we’re definitely seeing renewed interest. For example, a few weeks ago, the EEOC issued some findings and statements from a select task force calling on stakeholders “to double down and ‘reboot’ workplace harassment prevention efforts“.  This increased focus on the area will once again bring the issues of sexual harassment to the forefront.

What’s an employer to do? Well, start with the obvious.  Review your existing policies. Are they strong enough? Do they need to be updated to reflect current practices?  And then review your existing training.  Is it updated? Or is it still stuck in the 1990s?   And then look at how your workplace is actually functioning.

Beyond that the EEOC has a whole list of suggestions for employers to follow. You can view the entire compilation, but here are a few examples:

  • Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted. Employers should communicate and model a consistent commitment to that goal.
  • Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
  • Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.
  • Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership’s commitment to creating a workplace free of harassment.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction. In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.
  • If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.

HR personnel have a lot on their plate now; be sure harassment prevention remains there as well.

cgaOver the next week or so, I’ll be providing updates on various bills to pass (or fail) at the state general assembly.  They’re coming in fast and furious so patience is the order of the day.

But as we review various bills, there are employment-related aspects in places that you might not think. The first of these is in a human trafficking bill (House Bill 5621).  After passage in the House last month, this bill passed the state Senate last night. It now moves to the Governor’s office for his signature.

Section 5 of the bill sets forth new requirements for hotel (and similar lodging) operators to train and educate their employees.

Specifically, it requires that the employees receive training at the time of hire on the “(1) recognition of potential victims of human trafficking, and (2) activities commonly associated with human trafficking.”

But in addition to training, the hotel operator shall also conduct “ongoing awareness campaigns” for employees on the “activities commonly associated with human trafficking.”

Of course, the legislation is silent as to what exactly are the “activities commonly associated with human trafficking”, though prostitution is obviously mentioned in one aspect of the legislation.  It is unclear how detailed this training and the awareness campaign must be.

Beyond that, on or before October 1, 2017, and annually thereafter, hotel operators must “certify that each employee of any such establishment has received the training prescribed by this section in each employee’s personnel file.”

But again, it does not appear that this training needs to occur yearly — only at the time of hire — and only that the hotel operator certify that the training happened at the time of hire.  So the bill has a gap; current employees do not appear to need to be trained in this. And the employer must only conduct “awareness campaigns” which perhaps can be as simple as an email reminder or inclusion in employee handbooks.

In any event, hotel operators should consider updating their hiring packages to include this aspect and should update their employee handbooks to have a provision in there.

Upon signature from the Governor (which is expected), this provision becomes effective October 1, 2016.

Lastly, I would be remiss if I did not mention the efforts of both the Connecticut Bar and the American Bar Associations on raising awareness and seeking legislation on this important issue.   Members of the CBA testified at the legislature on this bill and its passage last night was an end product of their efforts.

interviewOn Friday, I had the opportunity to speak to the Human Resource Association of Greater New Haven. My sincere thanks to them for the invitation.

The group asked me to talk about various legal traps employers face in the hiring process and solutions to avoiding those issues.  Here are some of the points we talked about.

  1. Don’t Ask Bad Interview Questions – This is, in some ways, the easiest area to fix.  There are several types of questions that are (mostly) improper for employers to ask, such as, “Are you disabled?” or “Are you planning on having kids soon?”.  I’ve talked about this before, but the key is to plan your questions ahead of time and know which areas to avoid.
  2. Train Your Managers – Now that you know which questions are proper or improper to ask, be sure to let your hiring supervisors who are doing many of these interviews what the rules are as well. Don’t assume that they will ask good questions. Provide some training to them to give them the do’s and don’ts in the hiring process.
  3. Check the I-9s.  This is an area that can be overlooked, but it is important for employers to review the proper documentation at the time of an employee’s hire. New employees who forget their identification papers in the hopes that you’ll forget about it in a few days are cause for concern. Beyond that, be sure to keep your documentation on this or you’ll be susceptible to a government audit.
  4. Comply with FCRA.   Do you use a third-party to do background checks on new hires? If so, be sure to follow the Fair Credit Reporting Act, which mandates certain documentation be provided to employees and certain procedures to be followed. I’ve talked about it in a prior post as well.
  5. Implement Restrictive Covenants at Hiring.  When you use restrictive covenants (such as non-solicitation provisions) for your key employees, be sure to have that paperwork done at the time of an offer, or, on the employee’s first day at work. While continued employment could be enough consideration in some agreements, making a new job contingent on the restrictive covenants is a near sure-fire way to make sure there is sufficient consideration.  Some states, like Oregon, even mandate it in their laws.