Alas, no Powerball for me.  So, it’s back to the law we go.

Over the last 24 hours, there has been a lot of other news in Connecticut about General Electric moving its headquarters to Massachusetts.  The reasons for the move are already in dispute, although to some, it’s because Connecticut is not as employer-friendly as other states.

I’ll leave it to the politicians to debate whether that is actually the case or not.

But from my employment law perspective, there are a few areas that politicians can look at if they are looking to change the perception of Connecticut not being receptive to businesses.

First: Connecticut ought to leave the non-compete law alone. This might sound surprising to some but Connecticut actually has an area of law that is fairly employer-friendly right now. Employers are free to impose (reasonable) restrictive covenants to allow employers to protect their business interests.  For a few years, the legislature has been pondering making a change.

As you might have noticed, things have been a bit slower around these parts.  There are a bunch of reasons for that (clients, cases, family, commitments, etc.), but in part, it’s because I’ve been thinking about the next generation of the blog and there’s been a lot going on behind the scenes.  Only so many hours in the day, as they say.

In fact, it’s been many years since this blog has gotten a redesign. So, I’ve been working to get that into a high gear. Along with the redesign will come some additional voices — attorneys at Shipman & Goodwin who have been writing guest posts for this blog — that I think have a lot to offer for loyal readers.

The blog will also get a lot easier to read on smartphones and tablets.  It’ll have a responsive design with (hopefully) some newer typefaces and graphics too.

One thing that won’t change will be my commitment to ensuring that you are kept up to date on new and noteworthy developments in Connecticut.

But in the meantime, I ask for your patience in getting this relaunched blog off the ground.  This blog will have its tenth anniversary later this year, and my hope is that it enters the next decade stronger and better than ever.

Thanks as always for your continued interest and patience while I get this project off the ground.

I don’t know about you, but this year end has been crazy and the blog posts have dwindled a bit.

So rather than putting together a few haphazard posts, I’m just going to call it a year and we’ll start it over again in a week or so.

There’ll be lots to talk about in the new year.

In previous years, I’ve pulled out my crystal ball with a few predictions. Something tells me though that 2017 is going to be a lot like 2009 — lots of legislation out of DC and a lot of back-and-forth.

But let’s not get too ahead of ourselves. For now, I’m going to dust off my mom’s excellent latke recipe and enjoy some great donuts as well for Hanukkah. Then on to the New Year.

Merry Christmas, Happy Hanukkah, Happy Holidays and I hope you all have a very Happy New Year.

— Dan

roadLast year, my colleague Gabe Jiran, had a series of posts on telecommuting as a possible reasonable accommodation. In one post, he reported on a Sixth Circuit decision that allowed an employee (and EEOC) to proceed to trial on claims that the employer, Ford Motor Co., failed to provide a reasonable accommodation to her.

Now, one year later, the Sixth Circuit – upon hearing the matter en banc (or before all of the Circuit Judges, not just a panel of three) — has issued a decision reversing itself. In doing so, it affirmed summary judgment to the employer.  The decision now makes it more difficult for employees to make an ADA claim on the issue of telecommuting as a reasonable accommodation.

I won’t rehash the original decision here (just read Gabe’s post) but it’s worth noting that the original decision emphasized ideas such as: while attendance at work is still an essential function of most jobs, “attendance” can no longer be assumed to mean presence at the physical workplace; and the “workplace” is anywhere that an employee can perform the job.

The new decision — which is now controlling — basically says “nonsense”: Attendance is essential for most jobs.  “That general rule—that regularly attending work on-site is essential to most jobs, especially the interactive ones—aligns with the text of the ADA.”

The court goes on to state that such a rule is “common sense”.

A sometimes-forgotten guide likewise supports the general rule: common sense. Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job.  But equipped with a 1400-or-so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult. Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

The court rejected the EEOC’s argument that technology somehow changes things. The court states:

Despite its commonsense charm, the EEOC’s appeal to technology ultimately fails to create a genuine fact issue. It is “self-evident,” the EEOC declares without citation to the record or any case law, that “technology has advanced” enough for employees to perform “at least some essential job functions” at home. In the abstract, no doubt, this is precisely right. But technology changing in the abstract is not technology changing on this record. Our review of a district court’s summary judgment ruling is confined to the record. And no record evidence—none—shows that a great technological shift has made this highly interactive job one that can be effectively performed at home. The proper case to credit advances in technology is one where the record evinces that advancement. There is no such evidence here.

In fact, the evidence here shows the opposite: technology has not changed so as to make regular in-person attendance marginal for this job. Ford uses “fairly limited” video conferencing and “tend[s] more towards audio conferencing.” Harris also testified that she used email and her computer. These technologies—email, computers, telephone, and limited video conferencing—were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs. The extra-record changes in technology, like Harris’s testimony and her coworkers’ practice before it, therefore do not create a genuine issue of fact as to the essential nature of regularly and predictably attending work on-site. Summary judgment remains proper.

Jon Hyman thinks the decision “stinks” for those who advocate workplace flexibility.  I don’t necessarily see it that way.  Rather, I think the Sixth Circuit — rather sensibly — said that while telecommuting can still be an option for jobs, it isn’t going to be the right solution for all jobs.

Indeed, in this particular case, the court notes that the employer did afford the employee flexibility.  “Three times Ford allowed Harris to telecommute on an as-needed basis (on flex time, no less). And three times Ford developed plans to improve her attendance. But all six efforts failed because Harris proved unable “to establish regular and consistent work hours” or “perform the core objectives of the job.” The ADA does not give her a seventh try.”

For employers in Connecticut, the case isn’t controlling, but it should provide some substantial guidance in this area.  The Second Circuit has indicated that such decisions should be made on a case-by-case basis.

Employers should understand that telecommuting remains an option for accommodating employees with a disability in some instances.  But employers are free to still propose other reasonable accommodations that allow the employee to perform the essential functions of the job. That may mean some additional schedule flexibility or something else.

In one of my very first posts way back in 2007, I said this:

For employment lawyers and HR professionals, it’s “old” news that overtime lawsuits are a major concern.  Business Week picks up on that trend in next week’s Cover Story entitled: “Wage Wars: Does your Boss Owe You Overtime”.

According to the article:

No one tracks precise figures, but lawyers on both sides estimate that over the last few years companies have collectively paid out more than $1 billion annually to resolve these claims, which are usually brought on behalf of large groups of employees.

Yes, you read that right. A BILLION dollars.

Since that time, the numbers of lawsuits have only increased.  Indeed, during the 2013-2014 year, a record 8126 federal wage & hour cases were filed. That is up over 436 percent since 2000.

The attorneys’ fees and the existing potential for additional damages have long been a large incentive for attorneys representing employees to bring these claims.

Heck, fellow blogger and Connecticut lawyer Richard Hayber alone lists 18 class action claims on his site for people to get involved with (you’re welcome, Rick.).

And yet, for some reason, the Connecticut General Assembly thinks that this is somehow an underrepresented area of litigation.

Why do I make that conclusion? Because last week, the Labor & Public Employee Committee approved of a bill (Raised Bill 914)  that would mandate double damages in cases of a failure to pay overtime wages unless the employer could prove that it had a “good faith belief” in its underpayment.

Let’s be clear: That good faith belief standard — which isn’t defined in the bill — would be a very high hurdle to clear.  And it would make settlement of cases much more expensive.

For that reason, the CBIA has opposed the bill stating it “discourages employers from ever being able to challenge employee wage claims, because the only possible results would be to pay double damages if wrong on the claim or pay high legal costs to be proved right.”

Whatever the legislative intention, this is yet another bill in search of a problem.  Indeed, if anything, the wage & hour lawsuit craze is booming right now.  Passage of the bill would only create additional incentives for litigation.

There’s still a long way to go in this legislative session, but bills like these are giving employers in Connecticut a good deal of heartburn.

Here’s a hypothetical: A observant Jewish worker who is a recent leg amputee comes to you seeking an “accommodation”.  She works on the candy wrapping line that requires constant supervision and is staffed by only one or two people typically.  She seeks to leave her shift 4 hours early on Fridays to observe the Jewish sabbath.  She also seeks to take frequent breaks to rest for her disability. 

Let’s call this employee, “Lucy” and use this video as an “example” of the candy-wrapping line.  

In other words, suppose “Lucy” wants an “accommodation” for both her religion and her disability.  What do you do as an employer?

As an employer, the obligations to provide an accommodation for a disability are not the same as for a religion because, while each may use the language of “accommodation”, the standards are quite different.

For a disability under the ADA, generally, employers must provide a “reasonable accommodation” so long as it doesn’t cause an “undue hardship”.  Frequent rest period may be reasonable under the circumstances, because the other person on the candy wrapping line can easily cover for the disabled employee.  (Ignore the “video” above, which still shows some difficulty even with two people.)  The cost of doing so may be something more than minimal, but it is not so difficult that the employer can’t do it.  The employer doesn’t need to hire anyone for the breaks.

For a religious belief accommodation under Title VII, the standard is slightly different. The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

In the hypothetical above, the employer may say that they can’t leave a candy wrapping line shift unstaffed for four hours and would need to hire someone for that shift. In that instance, the employer may argue that providing the accommodation could cause more than a minimal burden.

Two types of accommodations; two different results.

Of course, the usual warnings apply to this: Each case has different facts and what may work for one employer may not be workable for another.  Also, there may be state laws that apply different standards as well. Thus, the hypothetical above is for illustration purposes only.

But for employers who are dealing with “accommodations”, this example should suffice. Understand that there are different standards for religious belief and disability accommodations and apply them appropriately.

Otherwise, “you got some ‘splainin’ to do!”

After the U.S. Supreme Court’s decision in Garcetti several years ago, there was a lot of chatter about whether public employees still had substantive First Amendment free speech rights.

And for a short while, the trend did seem to indicate that speech that related to an employee’s “official job duties” was to be construed broadly and that courts viewed speech that related loosely to the job as not being protected.

A recent federal court case in Connecticut demonstrates, however, that those free speech rights may be broader than some had grown to expect.

The case, Burns v. Department of Public Service (download here), was released a few weeks back. In it, a detective claimed that he was being retaliated against after he raised some concerns about the collection of detective DNA samples by DPS for contamination elimination purposes. Among the issues he is alleged to have raised was a concern about a “lack of a policy” regarding such collections. He is also alleged to have discussed his concerns with his union.

The court then had to consider, among other issues, whether the speech raised an issue of “public concern” and whether the employee’s speech was pursuant to his official job duties. The court concluded that the issue was a matter of public concern and that it was not “pursuant to” his job duties. In doing so, the court took a fairly broad view of both elements and found that the employee could still pursue his First Amendment retaliation claim.

The court concluded that the employee’s comments about DNA collection were not simply about himself but also about others in the department. “[His] statements concerned not solely his own employment conditions, but employment conditions for a class of employees in his department (i.e., DPS detectives). Additionally, [his] conversations … included statements regarding a concern that the scope of people subject to DNA collection by DPS would expand.”  Thus, the court concluded, that it raised an issue of “public concern” that was not merely specific to himself.  (How it is really an issue to the “general public” does not get answered with any specificity.)

Moreover, the court concluded that the speech was not pursuant to his duties and claim that the employer failed “to identify any official duty of [the employee] pursuant to which he was acting.” That some of analysis takes a much narrower view of Second Circuit precedent which has held that the “pursuant to” clause is broad and looked and whether the concerns that he raised was also “part-and-parcel of his concerns about his ability to properly execute his duties.”  Here the court said the concerns did not relate to his job duties.

Of course, as a reminder to readers, the court assumes certain facts as true for purposes of ruling on a motion for summary judgment, so the case merely proceeds now to a potential trial.

For employers, it’s worth continuing to follow the First Amendment retaliation cases for both public and private employers. The scope of free speech rights continues to evolve. When in doubt, consult your local counsel to see if the employee’s speech is something to be concerned about. 

Burns v. Department of Public Safety

Merry Christmas

As we approach the end of the year, I want to wish you all a Merry Christmas (if you celebrate) and a Happy New Year.

We’ve all been through a lot this year (and last year was no picnic either) and this past week in particular. So I wish you health, happiness and solutions to your most vexing HR questions in the upcoming one.

The blog is going to take some deserved (if I may say so) some time off.  I hope you are able to do the same.  I’ll be back in the new year with some changes in store for you.  But just like the presents under the tree, you’ll have to be a little patient.

Peace.

The little gift card collection project that my wife and I did for 48 hours went very well and the cards were delivered earlier today. I’ll have a separate post about our efforts at some point soon.  In the meantime, others have asked what else they can do to help  Sandy Hook elementary school, particularly now that we are not taking any more collections.  I’ve received the following list from the school itself.  These are simple, concrete ways to make a difference. 

(Note: No more teachers’ supplies are going to be needed due to all that they have.)

Snowflakes for Sandy Hook
Please help the students of Sandy Hook have a winter wonderland at their new school! Get Creative!!  Make and send snowflakes to Connecticut PTSA, 60 Connolly Parkway, Building 12, Suite 103, Hamden, CT  06514, by January 12, 2013.

Coins for Sandy Hook:
Students can collect spare change to support their peers at Sandy Hook.  Other fundraising ideas include Walk- A -Thons, Spirit Days, Pajamas Days, etc. Please send contributions to “Connecticut PTSA Sandy Hook Fund” by February 14, 2013.

Ongoing Fundraising Efforts:
Donations are being accepted to the: “Connecticut PTSA Sandy Hook Fund” to support the ongoing needs of the Sandy Hook Community. Send checks to “Connecticut PTSA, 60 Connolly Parkway, Building 12, Suite 103, Hamden, CT 06514.Visit www.ctpta.org to donate online.  Phone: 203-281-6617  For questions please email us at sandyhook@ctpta.org. The Newtown community has requested monetary contributions, but we do know there may be service and product donations that will be offered. For service or product inquiries, please contact newtownboe@gmail.com If you have any questions please email Connecticut PTSA at office@ctpta.org