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Kind of ironic that the ABA Labor and Employment Law Section Conference is in Philadelphia this week.  After all, one of the most famous employment law movies is, in fact, “Philadelphia” with Tom Hanks. Alas, Tom is not scheduled to appear at the conference.  However, for better and/or worse, I will.  In fact, I’ll be talking on a panel regarding social media on Friday afternoon. Its amazing to to think of how far we’ve come with social media since the time I started this blog. If you’re going to be at the conference, please let me know.  I always enjoy talking with readers.  See you then. The post Heading to ABA Labor and Employment Conference appeared first on Connecticut Employment Law Blog.

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...

USDOL Headquarters in DC Over the last few weeks, there’s been a lot of bluster about lawsuits filed that are challenging the new overtime rules that are set to take place in just a few weeks. And there was also news that Congress was considering a law restricting the law as well. Both seem unlikely to come to pass and employers that have been postponing action in the hopes of a “white knight” on the issue should think twice. I covered the new rules in several prior posts (here and here, for example). But as a reminder, the rule becomes effective December 1, 2016. Note that December 1 is a Thursday, so employers will have to make sure that the entire pay period is compliant with the new rule. So, that leaves you with precious few weeks to get into compliance.  There are a number of different approaches to take and its definitely not a one-size-fits-all type of law. One suggestion though is to have your trusted attorney or HR consultant take a look at any questions...

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...

U.S. Department of Labor Headquarters A federal district court in Texas yesterday struck down (once and for all?) the changes to the overtime rules proposed by the Obama Administration.  Previously, those rules (affecting the white collar exemptions) had been stayed, but the Court’s ruling suggests that there is a fatal flaw to the proposed rules and barred its implementation. In doing so, the Court said that the salary-level test that was proposed was too high to determine which workers were exempt from overtime compensation. Of course, there was little chance that these rules were going to get the go-ahead anyways because the Trump administration has shown no desire to support them either politically or in court.  Indeed, in July, the Department of Labor sought public feedback on ways to revise the proposed rule. The ruling applies to employers nationwide. While you’ll see a round of headlines today about how this is a big decision, it really should come as no su...

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...

It never seems to fail; I go on vacation and the Connecticut Supreme Court issues one of the few employment law decisions it issues every year during that week. Fortunately for all of us, it concerns the fluctuating work week method of overtime computation which most employers in the state consciously either avoid or try not to understand.  (In very basic terms, the formula calculates a pay rate based on the number of hours an employee actually works in a particular weeks.) I’ve previously discussed the “perils of trying to rely on a fluctuating work week.” As recently as 2012, I said that “while it can provide some benefit for employers, it must be done properly and must not be raised after the fact.”  And I noted way back in 2008 that employers have to jump through a variety of hoops to make sure they are compliant. Add to this cautionary tale the latest Connecticut Supreme Court case of Williams v. General Nutrition Centers, Inc.  The...

Like many of you, I long for vacations.  I like to plan them out in advance and then spend the intervening weeks and months plotting and scheming. What restaurants and new foods should we try? What attractions should we try to visit? And while that private tour my Facebook friend recommended sounds neat and all, what can we really afford to do? Having just returned from a trip overseas, I can attest that vacations are good for the soul too.  They provide time with friends and family and a much needed perspective.  There is simply more to life than the constant barrage of news that seems to infiltrate our lives nowadays. But where do vacations fit in the legal schemes employers set up in Connecticut? Well, for one thing, vacations are not mandated by any state or federal law.  Employers are free to decide whether or not they want to give their employees any vacation days.  But many employers recognize that offering vacation days makes jobs more attractive and als...

Today marks an important milestone in the development of the Connecticut Employment Law Blog.  It marks the second major redesign of the blog since it was launched 10 years ago (!) this month in 2007. Back then, the iPhone was just announced and social media was something that a few college kids played around with.  And some of us used a feature called Google Reader to read RSS feeds. (Don’t believe me? I even wrote a blog post about how to read blog posts on an RSS feed here!) And the notion of using blogs or specialized websites to get employment law news was still in its infancy.  I would read “George’s Employment Blawg” — now defunct – and sometimes BNA’s Daily Labor Reports, but there wasn’t much else beyond that. So much as changed in ten years. It was time to design and structure my blog to meet the 2017 world as it stands now. First, because smartphones are a massive part of every day life, the blog needed to have a ...

Update: As noted below, the redesigned blog should be up at some point Tuesday, perhaps late – a new post will follow thereafter.  If it’s Tuesday and you’re seeing this blog post and the old design first, it’s coming later in the day. Promise.   Every good superhero story needs an origin story.  I’m not a superhero but I’ve got a super origin story to tell. Not a Daredevil You may have heard it before, but humor me. I’m turning 10. You see it was ten years ago, in a hotel conference room in where my life changed. Of course, like lots of such “a-ha” moments that people have, I didn’t realize it at the time. (Pause here to acknowledge that there are plenty of moments you know are going to be big: kids, marriages, your first iPhone). I was at the Spring Conference for the American Bar Association Young Lawyers Division in, of all places, Canada.  Montreal, to be specific. But I woke up early, on a fe...

When was the last time you said you’re sorry to someone at work.  Last week? Last month? Last year? Never? There isn’t a right answer to this but I was thinking about this yesterday on the Jewish New Year. Jews are asked to spend the next 10 days to reflect on the past year and ask those who they may have slighted in last year for forgiveness. Call it prep work for Yom Kippur – the Day of Atonement. First, an acknowledgement (apology?) up front: This isn’t the firm time I’ve written about workplace apologies. Back then, I referred you to the SorryWatch blog, which tracks good, bad and ugly apologies.  (There is also a category for “Evil Twin” apologies too. Worth checking out just for that.) More recently, the blog authors recount the apologies of the Royal Canadian Mountain Police in settlement of a massive discrimination and workplace harassment claim a while back. It’s a terrific and rare example of the power of an apology in ...

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’...

“President Trump is a Big Fat Idiot” or, for that matter, “Secretary Clinton is a Sore Loser.” Let’s suppose you see one of your employees tweeting one of these expressions on Twitter during non-work hours from a personal account. Can you discipline or even fire your employee over that tweet? That, in essence, is at the heart of an issue that has been circulating in the sports pages (and in the President’s press briefings) over the last week due to the tweets of ESPN Sportscenter Anchor Jemele Hill from her personal account that were critical of the President. The New York Times, in fact, ran a story on Saturday discussing the legal ramifications; it was nice to be quoted in the article. While that article does a good job of summarizing the law in part, there’s a bit more to the story that is useful exploring (however briefly) in a blog post. First off, people do not generally have a First Amendment protection for things that that they say that ...

Update August 16th: Late yesterday, I received further confirmation that the provisions regarding FMLA were withdrawn entirely from the proposed Democrat-led budget bill. Moreover, the General Assembly early this morning voted on a Republican version of the budget implementer, which now goes on to Governor Malloy (who has indicated he will veto the bill). That version did not contain language on the FMLA changes either. So for now, employers can stand down. However, employers should continue to track the changes both this year and next. FMLA changes may make a return at some point.    Update at 2:06 p.m.: Since publishing this article, I’ve now heard from three people who work at or with the legislature that while they can’t find fault with my analysis of the proposed legislation as described below, the section on FMLA was intended to address a separate issue.   As a result, it appears that the section on CTFMLA changes discussed below may be withdrawn this...

“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...

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...

Sometimes, government is thought of as the enforcer of rules.  But sometimes, the government is also in the business of helping businesses too. The latest example of this is an Employer Resource Guide put out a few weeks ago by the Connecticut Department of Labor. You can download it directly here.   According to its introduction: This employer resource guide was created to educate all employers on the wide array of programs, services, and incentives available in Connecticut. This guide will be  periodically updated, and automatically emailed to all registered employers in CTHires, ( www.cthires.com), the Department of Labor’s no cost online job bank. In addition, a link to the resource guide will be available on the Department of Labor’s website, http://www.ctdol.state.ct.us/employerresourceguide.pdf. For some larger employers, much of the information contained here may not be news. But for others, there are programs that the government runs that ma...

“Joe, in response to all this NFL stuff, we want you to display U.S. flags at your workstation.” “No.” “Well, then you’re fired.” Don’t think that can happen? Then you haven’t heard about the Cotto v. United Technologies Corp. case — a long-forgotten Connecticut Supreme Court case from 20 years ago that has particular meaning in today’s environment where standing for the national anthem has become front page news. Is this patriotic too? The basic facts are as I described them above: The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years. In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations. The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing o...

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...