Rojgar Job News

Scary stuff. It’s that time of year again. When employees dress up in inappropriate outfits and engage in general stupidity. I am speaking, of course, about Halloween. Don’t believe me? I’ve got several blog posts to prove it. For example, in prior years, I’ve warned you to be on the lookout for “Naughty Nurses”.   Yes, somewhere out there some employee is thinking this is a good idea. But costumes aren’t the only source of trouble.  Buying an employee Halloween presents with a “lustful” look in your eyes, led to another lawsuit. Then there was the supervisor was fired after he “responded to a question about his stated intention to dress as a woman for Halloween by saying that he was a hermaphrodite who menstruated and used to wear a bra.”  You’ll have to read that one for yourself. In any event, Halloween doesn’t have to be the source of trouble.  Even though one judge told one litigant th...

Caution: You may not want to get your legal advice from reading Cosmo. As I approach the ninth anniversary of this blog this week (watch for that anniversary post soon), I’ve gotten a bit more reflective as well.  Some of that is personal circumstances I’ve mentioned before; perhaps some of it is age and experience. And I find myself wanting to speak directly to employees who have brought suit against their employers. But here’s the thing: I can’t.  The simplest of explanations is that ethics rules prohibit the attorney for one party from contacting the opposing party directly. And so: End of the blog post. Well, not quite.  As I’ve discovered over the years, I also get several phone calls from people looking to sue their employers for one reason or the other. While I have to politely decline many of those requests, I sometimes wish that I could tell them a few things before they brought suit. So here goes: 1)  Odds are, your employer d...

At this week’s CHRO information session, I was able to review the new statistics released by the CHRO this fall regarding case filings and dismissals. They’ve now been posted live on the CHRO’s website here. It’s something I’ve covered each year and I’m always fascinated by what these statistics show — and don’t show. What’s the big takeaway this year? The trend of increasing numbers of discrimination complaints being filed that we have seen in Connecticut since 2012 (when just 1838 complaints were filed) is showing no signs of abating. Indeed, in the fiscal year ending June 30, 2016, 2616 complaints were filed, up from 2482 the year before.  Thus from FY 2012 to FY 2016, that’s a huge 42 percent increase in the number of claims filed. Now, not all complaints with the CHRO are employment-related. But as with prior years, that number has been going up as well. For FY 2016, there were 2160 such complaints filed, up fro...

On Tuesday, May 23rd, the Connecticut House of Representatives overwhelmingly passed a measure that would greatly expand the already broad anti-discrimination provision that exist under Connecticut law.  The bill, House Bill 6668, would make several substantive changes to the protections including defining what is a “reasonable accommodation” instead of leaving that determination open. I’ve previously written extensively about the state laws covering pregnant employees before (here and here for example) so I encourage you to familiarize yourself with the current law so you can fully understand the contemplated change. But I’ll try to break it down here. Existing law makes it a discriminatory practice to: To terminate a woman’s employment because of her pregnancy; to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; to deny to that employee, who is disabled as a result of pregnancy, any compensat...

The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition. The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts. But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court: The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position op...

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements. After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers. Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish. Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did. And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement. When I heard this, I scratched my, well, proverbial head about this one.  Did I mi...

Today marks Rosh Hashanah, the Jewish New Year and one of the holiest days of the Jewish year. But it’s a day of business to many. What should employers be doing for employees, though, that are celebrating the day? There are actually a few different ways to answer the question. The first answer, looking just at the legal obligations, is that the employer must provide an accommodation under Title VII. But that standard is different than an ADA analysis. Instead, 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. Thus, giving an employee a day off to observe the holiday will, in many instances, be deemed to be a reasonable accommodation to the employee. So that answers the legal obligation, but what else should an employer be doing? Well, are you e-mailing that employee on their “day off...

Last week I talked about the new state law regarding pregnancy discrimination that is going into effect on October 1, 2017.  In that post, I mentioned a new notice that was required to comply with the law. Although there is no set form that is required to be used, the Connecticut Department of Labor has created one that is available for employers to use that will comply with the state law.  It is free to download here.   Because the content is useful, I’m using it down below so that employers can cut and paste it into a handbook or into a notice to be given to employee upon starting work too.  One can quibble with some of the word phrasings that are used, but overall — and stating the obvious — if you use this, you’ll be in comp liance according to the state. Covered Employers Each employer with more than 3 employees must comply with these anti-discrimination and reasonable accommodation laws related to an employee or job applicant’...

“Let’s engage in a Halloween-type party where everybody would be having sex.” Or perhaps, “So, are you going to wear a bikini for your Halloween costume?” What is it about Halloween that brings out the creep factor in the workplace? The first quote is from a real district court case earlier this year which documented a series of alleged comments made relating to a sexual harassment complaint. (If you’re scratching your head at the reference to a “Halloween-type” party, I’m right there with you.) The second is from a different case that is no less offensive in its descriptions of pervasive inappropriate conduct in the workplace. (And, as if you needed confirmation, Princess Leia in a bikini from Return of the Jedi is not appropriate in the workplace, however cool Princess Leia is.) Now, long time readers may recall a 2008 post about the perils of costumes in the workplace, and another post in 2010 about the perils of enabling sexual h...

Through a recent FOI request, I was able to take a peek at the latest case statistics coming out of the Commission on Human Rights and Opportunities. (The CHRO has since added them to the website as well.) I’ve done these recaps in years before (here’s 2016 for example) and I think you can learn a lot not just on the latest statistics but when you compare them to prior years. So, what do the numbers from July 1, 2016 to June 30, 2017 show? Well, for the first time in several years, we’ve seen a noticeable  decrease in the numbers of complaints filed. In FY 16-17, 2376 total complaints were filed, down from 2616 the prior year – a 9 percent decrease.  Of course, it’s still  up from FY 11-12 when just 1838 total complaints were filed. And what about employment discrimination complaints in particular? The report also shows a drop in the number of complaints being filed, 1936, as compared to 2160 in the prior fiscal year.  That represents ...

One of the interesting strains to come out of the new round of publicity surrounding sexual harassment is a renewed focus on mandatory arbitration provisions. And it comes from an unexpected source: former Fox News anchor Gretchen Carlson. Indeed, Carlson recently gave an interview with former ESPN producer and self-titled “Commander-in-She” Valerie Gordon that may have slipped under radar in which she talks about such provisions. She notes that mandatory or “forced” arbitration provisions enable sexual harassment to exist under the radar. I’m doing some advocacy work on Capitol Hill, working on gathering bipartisan support to take the secrecy out of arbitration.  You know the forced arbitration in employment contracts makes these things secret.  We have to stop the silence around it. In another recent interview, Carlson suggested that these arbitration provisions are often “in the fine print” and not focused on when people s...

An applicant for a job posting in education lists his most recent relevant experience as occurring in 1973.  You don’t bring him in for an interview. Is it gender discrimination? Beyond that, if he says that he is the most qualified candidate — do you have to hire him? And if you don’t hire the most qualified person, is that evidence of gender discrimination? No to all three, says one recent federal court decision. The decision by the court was quietly released late last month and might otherwise go unnoticed, but it underscores an important point for employers. In the matter, the Plaintiff argued that the employer discriminated against him because of his gender by denying him the opportunity for a job interview.   The employer chose four female and two male candidates for interviews. The Plaintiff argued that he was more qualified than the female candidates who were interviewed and ultimately hired by the employer. The court said, however, that the...

Back in the 1990s, employers still had the Anita Hill-Clarence Thomas hearings and the tawdry sexual harassment allegations relatively fresh on their minds. Employment lawyers will tell you that they started to see a bump up in claims in the early to mid 1990s as the issues of workplace harassment raised to the surface. I raised it in one of my posts 10 years ago this very week. But even before yesterday’s news that major movie mogul Harvey Weinstein has been accused of sexual harassment of many women over many years, I’d been thinking that we’re seeing another wave. For employers, this new era should be even more concerning. Why? Because back in the 1980s and early 1990s, employers could at least say that “well, we didn’t know we needed to train” or “well, we didn’t know we needed to do an investigation.”  It may not have been plausible (or even good business), but at least it was something. Now with laws in many states ma...

It was only a few years ago that the phrases “unconscious bias” or “implicit bias” started making the rounds in the legal community. I can trace the discussion on this blog to a 2014 guest post from a former law professor of mine, Kim Norwood, who talked about it in the context of her own experiences here.  I also talked about it in the context of a 2014 study that showed that married men with stay-at-home wives had negative attitudes towards working women.   Implicit bias has gained steam over the last several years. Indeed, Professor Norwood came to our firm in 2015 to give a presentation on The Mischief Biases Play in Law and the Legal Profession.  Suffice to say, it was well received and she was asked back again for a further presentation. All of this is a precursor to what I think may be the biggest development thus far in the mainstreaming of the “implicit bias” theory and training. Earlier this week, Starbucks announced that it w...

Earlier this week, the Judiciary Committee (by a 25-16 vote) approved of Senate Bill 132, being labelled by it’s proponents as the “Time’s Up” bill but covers both harassment and discrimination cases. I covered an announcement of this a while back.   As the bill moves closer to consideration now to the state Senate, it’s time for employers to start paying attention to what’s in the bill.  The CBIA has expressed concerns about some aspects of the bill. Here are a few highlights: To require employers to provide every employee with information concerning the “illegality of sexual harassment and remedies available to victimes of sexual harassment”. To require employers of  three or more employees (currently set at 50) to provide two hours of sexual harassment prevention training and with such training being provided not just to supervisory employees, but  all employees. To eliminate affirmative defenses that employers oth...

There’s been a lot in the news of late about “outrageous” provisions found in an separation agreement between an employer and an employee, like confidentiality.  Indeed, some proposed legislation would restrict the use of some provisions.   So I thought it would be helpful to go over what we  typically see in a separation agreement. First a big caveat: My description of a “typical” agreement does not mean that these provisions are in  every agreement or even that these provisions ought to be in  some agreements. Each separation or settlement has differing facts that may make certain provisions more important than others. And some employers or employees negotiate differently. In other words, there is not a one-size-fits-all to this and employers should definitely not attempt to do this without legal guidance. One more caveat, back in 2009, I provided a link to a great checklist that existed at the time about key provisio...

It happened again, last week.  An employer was sued. Wait, what’s that? A new lawsuit gets filed EVERY day against employers?  (Actually, in federal court, at least 11885 employment lawsuits were filed in 2017. Far more than one a day.) But last week, there were a bunch of headlines – a new sexual harassment lawsuit filed against a major Connecticut employer. (I’m not going to mention it here for reasons that will become apparent in a second). News organizations ate the new lawsuit up picking up scurrilous allegations that were even denied by some of the people involved. This, of course, isn’t the first time that this happened — that is, news organizations publishing the fact that a lawsuit was filed. Why? Is it really news? Reporters would say yes, the public has a right to know.  And in fairness to them, a new lawsuit may have some newsworthiness. But I’d argue that many reports about lawsuits get published for far simpler reasons ...

By now, you may have read about yesterday’s decision by the Second Circuit Court of Appeals that Title VII bars discrimination on the basis of sexual orientation. Connecticut is in that federal circuit (along with New York and Vermont).  You can download the decision in Zarda v. Altitude Express, Inc., here. (You’ve been warned though — there are 163 pages to the various opinions!) The decision talks a lot of “associational discrimination” and other academic theories of proving a case under Title VII; that’s beyond the practical aspects of this blog for employers but practitioners in the area should review the decision as a whole. So what IS the practical impact on Connecticut employers?  Not as much as you might first think. Connecticut state law already bars employers from discriminating on the basis of sexual orientation. Indeed, last year, I wrote that the debate over whether federal law includes a bar against discrimination on sexu...

Last week, I posted about a proposed Governor’s bill that would expand the training requirements for some employers. However, that appears to be just a small part of a wider political battle that is about to be raised. Yesterday, a group of Senate Democrats proposed, according to a handout, the “Largest Overhaul in Modern Connecticut History of Sexual Harassment Laws” that would significantly alter the landscape for nearly all Connecticut employers. They’ve titled their proposal the “Time’s Up Act: Combating Sexual Harassment and Sexual Assault”.   The bill has yet to be drafted, but the outlines are being shared by Senate Democrats and will be pursued first in the Judiciary Committee (not the Labor & Public Employee Committee as you might expect). According to their handout, the proposed bill will contain the following relating to discrimination or harassment laws: Require that any notice of sexual harassment remedies and policies...

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, religiou...