Rojgar Job News

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...

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...

If you’ve ever tried a case in federal or state court, you know that picking a “jury of your peers” is often a challenge for all.  Sometimes, otherwise qualified prospective jurors say that they have conflicts with their schedules, while others are all too happy to feel like they are participating in a Law & Order episode. (Lifted from a real-life experience.) But there’s a bigger issue in play too — jury diversity. What does it really mean to have a jury of our peers? And is jury diversity still an issue? These will be among the issues that will be on the table in an “In Community” program that my law firm is producing on September 27, 2017 along with the George W. Crawford Black Bar Association.  I sit on the firm’s Diversity and Inclusion committee and have been among the people charged with pulling this together.  I’m excited to see this program come together. You can find more information about the program her...

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...

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...

In college, I wanted to write for some of the major newspapers and be on their front page. Little did I know that my big break would now come years later, as a result of being on the cover of the Hartford Business Journal.   Wow. But enough about me.  This blog is about employment law so let’s talk about the article inside the HBJ because it’s definitely worth a read.  ‘ You see, the photo, has little to do with the content.  And the content is what employers should really be paying attention to. The article is all about the topic of sexual harassment in the workplace, which continues to make headlines each day. As I noted in the article, we just haven’t seen an increase in lawsuits….yet. [F]or non-celebrity victims and their employers, the implications are just as dangerous and costly, so prevention is becoming a greater focus for many companies, lawyers say. “It’s been the topic of conversation,” said ...

Suppose there’s an old employment agreement between the employer and employee. Then the employer fires the employee. But there’s been a few intervening events and it’s not exactly clear that the employment agreement still applies. Indeed, there’s another contract (let’s call it an supplier agreement) that seems to provide an independent basis for ending the relationship. Nevertheless, the employment agreement contains an arbitration provision.  Are the parties still required to go to arbitration even when one party (namely the employer) argues the contract is void? Yes, says a new Connecticut Appellate Court decision called Stack v. Hartford Distributors, Inc.. (For background, the employment lawyers out there should look first at a 2007 Supreme Court case that established the strong preference to enforcement of arbitration provisions, which you can find here.  The rest of us can carry on.) For the court, it noted that the employer appears to ...

There is news in the employment law world beyond sexual harassment.  Arbitration clauses to be exact. Yesterday, the Second Circuit issued a small, but important decision for employers that will continue to limit FLSA wage & hour claims. The court ruled that an employee’s FLSA claims in court were barred by the arbitration clause contained in his employment agreement.  While it isn’t the first time, it’s clear logic will be tough to ignore. (The case, Rodriguez-Depena v. Parts Authority, Inc. et al can be downloaded here.) For the court, it was not even a close call. The court ruled that the Supreme Court’s pronouncement years ago that age discrimination claims were barred by an arbitration clause controlled. The court also looked at whether its decision in the Cheeks v. Freeport Pancake House, Inc. – which required oversight of settlements of FLSA claims — precluded arbitration. The court said it did not. The rationale of Cheeks, h...

My colleague, Gary Starr, returns this morning with a post on a recent case that has implications for employers nationwide. You wouldn’t think that fingerprinting would be brought into the world of religious accommodations. After all, the importance of background checks cannot be denied, particularly when the prospective employee is going to work with children or the elderly. Vulnerable populations need assurance that those with whom they will be dealing have their best interests at heart. Background checks, however, can raise strange issues for employers when the person asked to authorize a background check indicates that he/she has a religious objection to fingerprinting. In a recent federal case (download here), a bus driver, who was required to submit to a background check to retain her position, refused to undergo a fingerprint background check. She explained that it was her sincere religious belief that fingerprinting is the “mark of the devil” and that fingerpri...

You might think the title of this post is a bit self-serving or even self-promotional. Is this post just going to be a backhanded way to hire me, an employment law attorney? I want to dissuade you of the notion because that’s actually not my purpose.  (Really.) But over the years, I’ve had friends and colleagues struggle with finding the right lawyers for their business.  In some cases, my firm (Shipman & Goodwin LLP) might be a good fit for them. In other situations, whether because of conflicts or costs, we might not be. What I tell people is to take a step back and ask yourself a series of questions to start with.  I thought I’d share just a few of them to start the conversation: What are my needs?  This is perhaps the hardest, but most important question to ask yourself before you start.  If you don’t know what your needs are, it’s really tough to find a good match.  If a lawsuit is filed against you, then obviously you...

The U.S. Supreme Court this morning in Janus v. AFSCME (download here) reversed 40 years of labor law precedent and concluded that  requiring public employees to pay “agency fees” for labor unions that they don’t want to belong to violates the First Amendment of the U.S. Constitution. Previously, prior cases have banned forcing public sector employees from joining a union and paying union dues. But a number of states permitted union contracts that required employees to still pay an “agency fee” to cover the costs of collective bargaining. In its 5-4 decision, the U.S. Supreme Court rejected this — leaving public sector unions, particularly in states like Connecticut, to potentially lose significant funds from employees who say that they want no part of their salary to go towards unions. Given that this blog covers more employment law than labor law, and focuses more on private-sector than public sector, I’m not going to do a deep-dive today...

One of the benefits of writing a blog as long as I have is that you get to track the progress of a law or legal development over a number of years. It was back in 2012, for example, that I first provided a comprehensive summary of a new medical marijuana bill that was making it’s way through the legislature. And I was quick to note that the law had enough questions attached to it that employers would be wise to spent a late night or two studying all of the quirks. Now, years later, we have the first case to look deeply at the statute. And for employers, the answers are becoming clearer. My colleague, Chris Engler, recently recapped the case in a post on my firm’s sister blog. The plaintiff in the case had applied for a job with a health and rehabilitation facility. The plaintiff ultimately received a job offer, subject to completing a background check and a drug screen. Prior to the drug screen, the plaintiff informed the company that she was a qualifying patient who used me...

You do a blog long enough and everything comes full circle.  Back in January 2008, I took out my crystal ball and suggested that reductions in force (RIFs) and lawsuits would soon follow. We all know what happened next. The economy crashed and discrimination claims at the EEOC peaked at their highest levels in more than 20 years.   So here we are 11 years later.  A whole generation of HR professionals have never experienced a significant downturn.  Are we headed there again in 2019? I’ll leave that to the economists and politicians.  Two weeks ago, the stock market was topsy-turvy. Now, we seem pre-occupied with the partial government shutdown.  And at least in Connecticut, new Governor Ned Lamont has a plan for growth, growth, growth. But it’s worth considering whether your company is even prepared for a downturn, even if it still is many months away. Again, we can first look to history. As I said back in 2008: What is a reduction in force...

Now that Thanksgiving is in the past, it’s time to look forward to the future. Well, not before getting a recap of everything that transpired in employment law in the last year. Or at least everything that we can fit in an hour long seminar. The webinar that broke attendance records last year is back again on December 4, 2018 at noon ET. This year, five employment law bloggers are presenting the “Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented” webinar.  Registration is just $25 and it’s eligible for CLE/SHRM/HRCI credit. All that is needed is to sign up here.  The presenters this year are: Robin Shea, Constangy, Brooks, Smith & Prophete Kate Bischoff, tHRive Law & Consulting Jon Hyman, Meyers Roman Eric Meyer, FisherBroyles Jeff Nowak, Franczek Radelet Daniel Schwartz, Shipman & Goodwin Among the topics that you can surely expect to hear about: #MeToo, LGBT discrim...

The Connecticut Commission on Human Rights and Opportunity (CHRO) was sued yesterday by its longtime (and former) Regional Manager Pekah Wallace.  The federal lawsuit claims her employment termination was improper and provides a whole host of information about what has been going on behind the scenes at the agency. You can download the complaint here.   (As with all new lawsuits, my standard warning applies — these are allegations in a complaint, not a determination from a court.) I’ll leave it for others to opine on the merits of the case because my firm represents a number of clients before the agency. The allegations, however, show, at a minimum, that there was a great deal of friction going on at the agency for a number of years — even while the agency was investigating the outside complaints of employees against their own employers too. Ms. Wallace alleges violations of: Conn. Gen. Stat. Sec. 31-51q (applying the First Amendment to the workplace); F...

With Independence Day nearly upon us (and with many offices on skeleton crews this week), I thought I would take a very brief look back at a case that has particular relevance to the Grand Old Flag and displays of patriotism in the workplace. If you’ve never read about Cotto v. United Technologies Corp., you should. It’s a long-forgotten Connecticut Supreme Court case from 1999 that is a cornerstone opinion in the area of free speech in the private workplace. The basic facts are as follows: The plaintiff 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 or exerting pressure on employees to display the American flag. After a suspension, he was ...

( Post has been updated to note a legislative development.) Running a restaurant is hard. It’s long hours, short tempers and fickle customers. But add in those wage & hour laws? What a headache. And there are lawyers out there who know it. In fact, there are some that rest their business model on seeking out restaurant workers that can be used as representative plaintiffs in class actions.  Moreover, they use the internet — quite legitimately in most cases — to find them. Indeed, in New York, one enterprising firm has put up a whole website entitled WaiterPay.com to educate workers on their rights.   If that weren’t enough, the United States and the Connecticut Department of Labor both have divisions that continue to investigate aggressively these industries for violations. I’ve been following some of the new lawsuits that have been filed against restaurants and have notice a trend — we’re seeing more lawsuits claiming that wa...

Can an employer ever win a motion for summary judgment on a discrimination case in state court? The prevailing wisdom is no.  A fool’s errand, some might say. But a new Connecticut Appellate Court case (Alvarez v. City of Middletown) shows at least what’s possible. The case has some details that stand out. The Plaintiff was a probationary police officer who was seeking a more permanent position. In the course of his employment, he had performance deficiencies that were noted. In February 2015, an individual made a complaint that the Plaintiff groped her and made her feel his genitals through his pants while he was responding to a reported domestic incident at her home. While the investigation was ongoing, the Plaintiff’s performance still showed deficiencies including a failure to file written reports.  He was sent a letter that he would face a probationary discharge but he resigned before that happened. The Plaintiff then sued on race and national origin....