justiceLate last month, a federal court in Connecticut took another look at the prohibition of discrimination “because of sex” with a case that has all the elements of a “can you believe it” fact-pattern that will surely be used for harassment training going forward.

The case involves a male employee posed for Playgirl nearly two decades prior and who, according to the decision, faced harassment from male and female co-workers.

But what does that phrase “because of sex” mean in today’s workplace climate?  And should it be extended when we’re looking at issues of same-sex harassment?

The case, Sawka v. ADP, can be downloaded here, and I’ll talk about it a bit more below.

The EEOC has been pushing an expanded view of this language, particularly as efforts to prohibit employment discrimination on the basis of sexual orientation have been floundering at the federal level.

(It should be noted that Connecticut law explicitly prohibits sexual orientation discrimination but there are case of male on male, or female on female harassment that don’t involve sexual orientation — like this case.)

But this case touches on same-sex harassment unrelated to the employee’s sexual orientation.  The case came to my attention by David Wachtel in a detailed post that is worth a read.  In it, Wachtel notes that in cases of same-sex harassment, there have been limited theories for employees to pursue.

Based on Supreme Court precedent in the Oncale case, a plaintiff would have to show either that:

  1. The harasser was motivated by sexual desire;
  2. The harasser was expressing a general hostility tto the presence of one sex in the workplace;
  3. One sex was treated differently from the other;
  4. Defiance of a sexual stereotype.

Wachtel argues that there is another kind of motivation that should also be covered by the “because of sex” principle.  Likening it to the “Fifth Beatle”, he says that a court should focus on the employee’s sexual characteristics and that this case seems to expand on it.

For employers, though, the case is easier to understand without the legal theories, notwithstanding the complicated facts that involved, among other things, teasing by both male and female coworkers for nude photos that the employee has posed in Playgirl for nearly two decades ago.

Ultimately, the federal court said that there was sufficient evidence to send the case to a trial (thereby denying the employer’s motion for summary judgment at least partially).

For example, one woman referenced “the existence of pictures or searching for Mr. Sawka online” and said she saw “everything”.  Another said that everyone had seen the pictures and that he had a “beautiful c***” and she just wanted to “f*** the s*** out of you.”

The court said that these comments and behavior (and other) could be viewed by a jury as being motivated by sexual desire and thus “because of sex”.  And the comments by male co-workers about the “size and state of his genitals” could also be harassment “because of sex”.  Thus, the court said, the employee could proceed with his hostile work environment claims.

It’s not a full victory for the employee however. The employee resigned and claimed that he was “constructively discharged.”  The court rejected that claim because to proceed, the employee must produce “evidence of even more severe conditions” than those that create a question of fact on a hostile work environment claim.

Nevertheless, the case is a notable one that reinforces something that I talk about in sex harassment prevention training.  Sex-based jokes, comments, and teasing by EITHER gender can lead to liability for an employer if that behavior interferes with an employee’s ability to do his or her job.

generalassemblyThe dust has finally settled from the close of the Connecticut General Assembly on Wednesday.  And it’s time to take a look at the last few days to see what employment law bills passed.

(I’ll tackle the changes that have been made to the CHRO in a post later today.)

As I’ve noted in prior posts (here, here and here), several employment law-related bills had already passed including: a bill regarding online privacy rights of employees (signed by Governor); a bill allowing double damages in wage/hour cases awaiting Governor’s signature); a bill protecting interns from discrimination and harassment (same); and a bill introducing labor history into school curriculum (same).

In the last days, however, a closely-watched bill that prohibits employers from enacting rules that prevent employees from sharing information about their wages, passed. It also awaits the Governor’s signature.

The bill has been amended since it was first introduced but still places additional restrictions on employers. As a result, employers should consider updating their policies and revisiting their approach to salary discussions.

As recapped by the General Assembly, the bill accomplishes the following:

This bill prohibits employers, including the state and municipalities, from taking certain steps to limit their employees’ ability to share information about their wages. Under the bill, such sharing consists of employees under the same employer (1) disclosing or discussing the amount of their own wages or other employees’ voluntarily disclosed wages or (2) asking about other employees’ wages. Specifically, the bill bans employers from (1) prohibiting their employees from such sharing; (2) requiring employees to sign a waiver or document that denies their right to such sharing; and (3) discharging, disciplining, discriminating or retaliating against, or otherwise penalizing employees for such sharing.

The bill allows employees to bring a lawsuit to redress a violation of its provisions in any court of competent jurisdiction. The suit must be brought within two years after an alleged violation. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.

The amendment to the bill that was passed limits an employee’s sharing of another employee’s wage information to information that (1) is about another of the employer’s employees and (2) was voluntarily disclosed by the other employee.

I’ve noted before that I think many of the provisions are duplicative of federal law and a concern that there isn’t a big public policy need to create a new cause of action here.

But it’s a bit too late for that. The Governor proposed this bill so he is very likely to sign it.  The provisions go into effect on July 1, 2015.  (Contrast that with other bills that go into effect on October 1, 2015.)

Another bill that passed in the closing days was House Bill 6707 which allows employers to fire employees for failing some off-duty drug tests without impacting their unemployment rating.  It awaits the Governor’s signature.  As recapped by the General Assembly:

This bill expands the circumstances under which a private-sector employer can discharge or suspend an employee without affecting the employer’s unemployment taxes. It creates a “non-charge” against an employer’s experience rate for employees discharged or suspended because they failed a drug or alcohol test while off duty and subsequently lost a driver’s license needed to perform the work for which they had been hired. (The law disqualifies a person from operating a commercial motor vehicle for one year if he or she is convicted of driving under the influence (DUI.)) In effect, this allows the discharged or suspended employee to collect unemployment benefits without increasing the employer’s unemployment taxes.

Several other bills failed in the final days including a low wage penalty, paid family & medical leave, a minimum work week for janitors, limits on criminal background checks and on credit reports,

Overall, it was a busy year for the legislature. For employers, the next few months should keep you busy with a review of your existing policies and procedures to ensure compliance with these new laws.

Back in May 2012, I wrote this about a book that was making its way around various book clubs that was dubbed by The New York Times as “Mommy Porn”.

[H]aving someone read [Fifty Shades of Grey] alone during a lunch break, by itself, is probably not enough to establish a sexual harassment claim. The fact that it is a book makes a difference. (Contrast that with, say, someone watching “9 1/2 Weeks” on the lunch room television.) …

Reading a book is, by its very nature, a somewhat private and solitary endeavor.

Now, that view could change a bit, however, if there was a workplace book group discussing the more outrageous plot points in front of others. In that case, the discussion might naturally revolve around sex which might (emphasis on might) may some feel uncomfortable. …

So, go ahead. Break out the book (or Kindle, or Nook, or iPad). But its probably still best, if you hear employees discussing the book, to have those conversations kept to a PG-level.

Flash forward three years, and here we are about to have the same discussion with the theatrical release of Fifty Shades of Grey this week.   In fact, Suzanne Lucas (otherwise known as the Real Evil HR Lady) echoes similar themes in a recent post to Inc.

How can discussing a movie turn your workplace into a hostile work environment? Well, if you start to get into details, you’re likely to have someone who is offended. You can’t just assume that because Jane doesn’t speak up that she’s not offended. And if the discussions go on long enough and it’s deemed an acceptable topic in the workplace, it’s possible that it could create an environment where sexual discussion starts to become the norm, and that could mean a reasonable person would find it hostile. That, plus your offended employee, is what it will take.

Now, does this mean you should go into full on panic mode and ban all mention of the movie? Probably not. Most discussions are going to be short lived, which won’t rise to the occasion of “sufficiently severe or pervasive.” But you do want to nip such conversations in the bud.

A quick reminder to keep conversation clean can go a long way toward reminding people that sexual discussions–whether real or fictional–should not have a home in the office. When you hear people talking, quip, “Hey, remember, this is a PG office.”

The workplace just isn’t the place to talk about topics like the main plot points in the book and movie.  It has the possibility to offend some.  The fact that women are discussing it instead of men is of no consequence.

Indeed, to establish a “hostile work environment”, an employee has to show that it is both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the person did find offensive.

So, as the next week goes on, keep your ears perked for conversation in the workplace.  That conversation about an airplane ride in the movie (hey, I’ve seen the previews like everyone else in the Super Bowl commercial)? Sounds ok. That conversation about ropes and blindfolds? Not as much.

First off, let me say that I’m really obsessed with enjoying this year’s World Cup.

But Thursday presents some special problems for employers.  The United States Men’s Team has a very important game at 12 ET.  Right in the middle of the lunch hour (or two?).  Beat or tie Germany and the U.S. is through to the next round. Lose, and they have to hope on the results of another game at the same time.

Apparently, the team enjoys having the support of lots of U.S. supporters. So, the coach drafted a note for employees to give to their employers tomorrow.

First off, let me applaud the coach for his creativity.  But if you’re an employee, it’s just probably definitely not a good idea to submit this unless your workplace has a real good sense of humor.

Take a recent case reported out of Canada. An employee asked for a day off to play in a softball tournament.  When his request was denied, he still took a sick day off.  I’ll let a recent blog post take it from there:

 Suspicious that he was not actually sick, the Grievor’s manager had attended the ball diamonds where he witnessed the Grievor playing baseball. When confronted, the Grievor stated that he was suffering from a severe case of diarrhea on the day in question and was not playing baseball. The Grievor later admitted to being at the baseball diamonds when confronted with the fact that someone had seen him there; however he stated that he was only watching. The Grievor subsequently admitted to playing, but minimized his involvement on the basis that he was “only pitching”.

Ultimately, the employee’s termination was upheld by a local court — but not until after an arbitrator found that the termination was overly harsh.

For employers, make sure your employees know the rules that must be followed.  And certainly, productivity will require many employees to work during this time. But it’s also around the time for lunch, so if a few of them straggle back to their desks a little slowly, put that tardiness under some perspective.   If you don’t discipline employees from coming back from lunch late on a “nice” day, then follow that same approach here.

I’ve previously discussed it a few weeks ago, but it bears repeating again.  The soccer game last week was among the most watched soccer games EVER in the United States.  No doubt a few of them are going to watch it on their phones, or televisions at work on Thursday.  Be prepared.

In a decision officially released today, the Connecticut Supreme Court (Sarrazin v. Coastal, Inc.) has concluded that a plumbing foreman who carried his tools to and from work was not entitled to be compensated for his commuting time.

That’s about the only simple thing about the decision for employers.

The case addresses complicated and head-spinning issues such as pre-emption, interpretations of administrative regulations, and something called the Portal-to-Portal Act.    Arguably, it took the court over a year (!) to issue a written decision on it after argument way back in April 2013 because the issues are so dense.

(So much for my prediction of a decision on the case last year.)

A case that had the potential to be a blockbuster ends up being a bit of a snoozer for employers.

Don’t get me wrong — lawyers will love this case. Dan Klau, in his delightful Appelingly Brief blog on, well, appellate law, highlights a technical issue with the decision and calls out this blog to respond which I will do in a followup post.

But for employers, it’s hard to imagine you’ll get too excited about it.

That said, if you have relied upon page 38 of the Connecticut Department of Labor’s Guide to Wage & Workplace Laws (you don’t use it for bedside reading?), you may not want to believe everything in its description on “Travel Time”.  The Connecticut Supreme Court concludes that the CTDOL’s interpretation in this section should be rejected because it ignores additional legislative history.

The department’s interpretation of § 31-60-10 of the regulations was not promulgated pursuant to any formal rule-making procedures or articulated pursuant to any adjudicatory procedures, has not been time-tested or subject to judicial review in this state.

So, for now, employers in Connecticut can continue to follow federal law in travel time compensation and should beware of reading the CTDOL’s Guide too literally.

The Hartford Courant and Fox CT last week released their list of “Top Workplaces” in the Greater Hartford area.

In a column accompanying it, columnist Dan Haar suggests the ingredients that go into a good place to work: Passion, Freedom & Direction. He states:

One common thread is a system that shows respect for employees and customers alike, with a clear sense of direction, whether that means doing a better job managing behavioral health caseloads for the state (ValueOptions, Connecticut) or growing stock value a breathtaking 18-fold in less than five years, as Virtus Investment Partners has done.

But it’s more than just systems and strategies. Employees are not just dedicated to the business, to the team, but to the particular craft that they perform, with passion. The whale trainers love training whales, assisted-living program coordinators love working with elderly clients and the healers love healing.

It is about identity and it is not interchangeable. In short, it’s not just a job.

Now, I’m under no illusions that awards like these are mainly vehicles to boost advertising revenue.  The contests are far from scientific.  (Indeed, I’d argue that these surveys make the U.S. News college rankings look like Nobel Prize-winning scientific studies.)  Heck, Connecticut Magazine has its own list of “Great Places to Work”.

But there is clearly something to be said about how some workplaces are able to build a culture that employees find rewarding.

A Harvard Business Review article from earlier this year — which compiled research over a three year period — suggests that there are six attributes to a successful company:

We call this “the organization of your dreams.” In a nutshell, it’s a company where individual differences are nurtured; information is not suppressed or spun; the company adds value to employees, rather than merely extracting it from them; the organization stands for something meaningful; the work itself is intrinsically rewarding; and there are no stupid rules.

I haven’t seen any study that suggests that companies that get on such list are less likely to get sued by former employees. But that doesn’t mean that employers should simply give up; rather, having a place where your employees are happy to work at, surely is a way to reduce exposure to potential employment law claims.

It’s Friday before Labor Day.

Is anyone there?  If you are, you are probably watching every phone call and e-mail with an eye towards the clock too.  The unofficial end of summer is upon us (time to get your ice cream soda.)

So, rather than recap the basis for Labor Day (which I’ve done before here and here and here) I’m going to do something completely different today and, if you’ll indulge me, just plain fun.

It’s a list of ten of the best workplace/job-related songs.

Why not just the best? Two reasons. One, these lists are inherently subjective.  But second, I’ve tried to put down songs that are actually in my music library.

And (didn’t I just say it would be two reasons?), it gives me an opportunity to do a followup list in the future.

So without further ado…..

10.5. Employment Law Sing-A-Long Song – Mark Toth

While I’m not going to use an official pick for this song, any workplace songlist would be incomplete without this classic from Manpower Chief Legal Officer Mark Toth — who runs the Manpower Employment Law Blawg.  Anyone who loves employment law will appreciate this song.  “Employment Law Can Be Easy….” sings Mark.

10. Get a Job – Sha Na Na

A few months back, our kids were interested in Woodstock, so we downloaded a bunch of songs from artists at the time. Sha Na Na is easily overlooked in that (they performed right before Jimi Hendrix), but their version of Get a Job is eminently singable in the car.  And yes, I know the Silouettes originally performed the classic song, but we have the Sha Na Na version. So Sha Na Na it is.

9. 9 to 5 – Dolly Parton

Ok, so you’re rolling your eyes already. But really, your memory is decieving you. This song — far from the song you have in your head — actually holds up very well.  (The movie, of course, was a walking billboard for why we need employment lawyers with a “sexist, egotistical, lying, hypocritical bigot” for a boss.)   The problem with the song now, of course, is that very few of us work 9 to 5 anymore.  It’s enough to drive you crazy if you let it. Continue Reading Ten of the Best Workplace Songs for Labor Day

It’s been a while since I had a First Day of Work experience.

So, of course, as an employment lawyer, I had on my lawyer’s hat as I went through the process myself yesterday.

How much paperwork is done on the first day?

No doubt the first day is filled with excitement (and a bit of nervousness).  People are introducing themselves left and right.  (Was that Mary? Or Marilyn? Or Jane?)   And you’re just trying to remember where the coffee room is (Down the Hall, make a left, then a right — or is that the bathroom?).But there was one thing I had forgotten about The First Day of Work: the number of forms that need to be filled out.

The insurance forms.  The I-9 employment authorization forms.  The policy acknowledgment forms.

All required or (mostly) necessary under the law.

And yet, at the end of the day, I couldn’t help but think that many new employees without a law degree would be left with a blur if they were confronted with the standard first day of work paperwork.

What was that form I signed? What did I authorize my employer to deduct from my salary? And what a contingent beneficiary is anyways?

I’m fortunate.  My new lawfirm made the transition easy for me today and the paperwork was pretty straightforward.  But I wonder how many companies — particularly small to mid-size ones — still miss out on a chance to put the legalese of forms aside and start working on teaching the employees the OTHER things that are important about at company: The Culture. The Unwritten Rules. The People to Talk With.

After all, a happy employee means less risk down the road for a lawsuit by a disgruntled one.

Fortunately, there is a wide range of resources now designed for this process, known as “Onboarding”.  SHRM recently published a report on onboarding that is a good place to start.  The statistics are troubling for companies — half of all hourly employees leave after the first four months, and half of all senior outside hires struggle after 18 months.

Clearly, there is room for improvement, concludes the SHRM report.  Thus, the report suggests that any effective onboarding should include the four “C”s.

Compliance is the lowest level and includes teaching employees basic legal and policy-related rules and regulations. Clarification refers to ensuring that employees understand their new jobs and all related expectations. Culture is a broad category that includes providing employees with a sense of organizational norms— both formal and informal. Connection refers to the vital interpersonal relationships and information networks that new employees must establish.

What do you think? Any other resources for employers on Onboarding? Do you have a good First Day of Work story? I’d love to hear any success stories.

I’m late / I’m late / For a very important date. / No time to say “Hello, Goodbye”. / I’m late, I’m late, I’m late. — White Rabbit, from “Alice in Wonderland” (1951)

Let’s start with the premise, as the Second Circuit does, that “In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff’s inability to arrive on time would result in his failure to establish a fundamental element of a prima facie case of employment discrimination.”

What happens when an employee’s severe disability requires treatment that prevents him from arriving to work at a consistent time each day? Who wins?

The Second Circuit addressed those questions this week in a decision, McMillan v. City of New York. It’s an important case because it emphasizes that what works in “most” cases, may not work for all.  And an employer can no longer just rely on punctuality as being essential for all jobs. 

Because it was not “evident” that a timely arrival for work was essential for this particular employee, the Second Circuit remanded the case back to the District Court for further analysis.

Hurting the employer was the fact that it had a flex-time policy that let employees arrive and leave within a one-hour window, which, the court said, “implies that punctuality and presence at precise times may not be essential.”

The key quote is this: “physicial presence at or by a specific time is not, as a matter of law, an essential function of all employment.” 

As a result, a court must engage in a fact-specific inquiry — making it more difficult for employers to get the case dismissed on summary judgment.

Employers who believe in punctuality should make it clear in various places just as job descriptions, collective bargaining agreements, and  employee handbooks, and should make sure that its practice is consistent with its policies as well. 

The Wait a Second blog has more details on the case here.

From time to time, there are various questions that keep recurring in the labor & employment law area.  One of them is in the area of travel time for non-exempt employees.

(For exempt employees, they get paid a fixed salary no matter how much time they work or travel.)

What if you commute on a cable car?

The easiest question to answer is whether an employee needs to be paid for the time he or she spends going to and from work each day. The answer is plainly no.  Commuting time  — even if it snows on the way home — is not compensable.

(Of course, the law being what it is, there are some notable exceptions. For example, if the employer requires, as a job requirement, that a large company truck, be taken by employee home, that might change the equation in some instances. Also, if the employee does work at home to start the day, the “commute” might simply be an extension of the workday which had already begun.)

And what happens if the employee doesn’t go into the home office first, but goes directly to a client or another office?

The U.S. Department of Labor has guidance as follows:

An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

And what if the employee is travelling away from home on a business trip? Here too, the USDOL’s guidance is instructive.

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

There is, of course, lots more nuance to this law.  My former colleagues who run the Hospitality Labor & Employment Law Blog had a very good post on the subject earlier this year if you’re interested.