Rojgar Job News

“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...

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...

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...

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 ...

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...

Last week, I had the opportunity to again represent Connecticut as the State Delegate for the American Bar Association’s House of Delegates at the Vancouver ABA Midyear Meeting. Among the resolutions debated was Resolution 302 which “urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that prohibit, prevent, and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.” Although it lacks some of the specificity found in “best practices” that I’ve highlighted elsewhere, it does establish some basics for employers to use.  Some should be well known but they are worth reiterating. What are some of the policies and procedures should have?  For example: dissemination to all employees, management and directors of a clear statement that harassment, including harassm...

The American Bar Association (ABA) holds its Midyear Meeting later this week in Vancouver (Canada!) and the House of Delegates is scheduled to debate several resolutions of interest to employers and employment lawyers. As readers of this blog, you happen to “know” the Connecticut State Delegate (me!), coordinating a delegation of several esteemed lawyers from Connecticut. Thus, if you have any questions or concerns about the resolutions, please e-mail me this week at dschwartz@goodwin.com. Or feel free to add a comment below. You can review all the resolutions here but the few that I would pay attention to are as follows: Resolution 116A supports an interpretation of Title VII of the Civil Rights Act of 1964 that defines sex discrimination by covered employers to include discrimination on the basis of sexual orientation and gender identity. Resolution 117 urges courts to recognize that service in the United States Armed Forces should not be restricted and that individuals sh...

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 ...

After a break for the holidays, my long-running discussion with Nina Pirrotti, an employee-side attorney , returns. Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association, a current member of the Executive Board of NELA, and a frequent presenter on employment law topics. In one of our prior discussions last year, we talked about whether we were seeing the beginning of a trend of sexual harassment matters after the Fox News scandals.  Now, after the last few months, we revisit the topic further to see where we are.  Let us know what you think about posts like this in the comments below.     Nina: A warm hello to my management lawyer friend!  I could not think of a more opportune time to re-kindle our dialogue about sexual harassment.  For me, having Time Magazine name its P...

In yesterday’s post, I talked about the basics of what is and is not “sexual harassment”. Continuing the theme of going back to the basics, employers in the Constitution State have certain posting and training requirements that must be followed. These requirements are found in the administrative regulations set up by the CHRO regarding sexual harassment prevention. I first detailed these in a post WAY back in October 2007 (!) but they remain just as important today as ten years ago. For posting : All employers who have 3 or more employees must provide notices that say sexual harassment is illegal and address what the remedies are for such harassment. But here’s a free shortcut: The CHRO has prepared a model poster that complies with the statute and is free to download.  You can do so here.  It’s a good time to remind employers too that employers should also update their “Discrimination is Illegal” poster also offered by the CHRO....

With all the focus on sexual harassment in the news lately, one thing missing from most of the coverage is an actual explanation of what is (and is not) “sexual harassment”.  At least according to the law. Sounds simple right? Except that it’s not because the prevailing view of sex harassment differs from that found in the law. But I will try in a few short paragraphs to sum up decades of sexual harassment law.  (Obviously, I can’t but humor me.) Though the first thing you should know — the federal law on the subject actually doesn’t use the word harassment! Robin Shea pointed this out a while back in a blog post and I thought it was a good reminder to start with.  It’s a definition built from U.S. Supreme Court cases. There are two overall types of sex harassment that the courts have determined. Quid Pro Quo.   Sound smart: Basically this for that.  It’s a demand (express or implied) for sexual favors for either e...

This current wave of sexual harassment (and, in some cases, sexual assault) allegations that are making headlines every single day is downright astonishing to many employment lawyers that I know. It is the tsunami that knows no end. And right now, that makes me nervous.  But maybe not for the reason you might think. It’s not that I am nervous for companies or the risk of lawsuits. I think many companies are prepared to deal with claims of harassment that arise and will adapt quickly to the landscape where more employees are bringing such matters to their attention. What makes me nervous is the potential rush to judgment that seems to increase with every case. Think of Matt Lauer last week: A claim brought Monday evening and he was fired late Tuesday night. Quick. Thorough? Perhaps. Correct? Probably (based on the media reports).  But still pretty quick. This is not a defense of harassers or even of Matt Lauer.  If someone commits sexual harassment, companies ought t...

The supervisor did it. Yep, you’ve concluded that he sent unwanted texts to his subordinate telling her she looked “beautiful.”  Maybe even stopped by her hotel room unannounced one night at a conference for a “nightcap”. While the subordinate’s career does not appear to have been harmed in the legal sense (i.e. there’s no “tangible employment action”), you’ve concluded that there was something “inappropriate” that happened. (And let’s state the obvious: harm can exist even outside the “tangible employment action” context — that’s an issue for another post.) So, back the the issue of the day — something “inappropriate” happened; maybe even something that meets the legal definition of “sexual harassment”. What then? Firing? Perhaps. But what if you conclude that a lesser type of sanction is warranted?  Can you do that? If so, what’s the stand...

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them. One area that we can evaluate is whether the training that is provided is effective. A report yesterday from NPR concluded that training is just not working at many workplaces.  The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability. For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed. But I’ve wondered whether we could be doing more. Indeed, the EEOC issued a report last year highlighting the problems with existing training programs. In its executive summary, it noted two big issues with the current model of training: “ Training Must Chang...

As I noted earlier this week, the U.S. Supreme Court has approved of the use of class action waivers in arbitration agreements with employees. My colleague, Gabe Jiran, has a recap of Epic Systems v. Lewis on my firm’s blog, Employment Law Letter, that you can access here. So, it’s a foregone conclusion that employers of all shapes and sizes will start using arbitration agreements and insert provisions with class action waivers, right? Not so fast. As Jon Hyman astutely noted in his Ohio Employer’s Law Blog yesterday, this decision may not be the panacea employers are looking for. For example, it might end up being more costly for employers because arbitration may be more costly than litigation. Moreover, these costs only increase if you are arbitrating dozens, or hundreds, or thousands, of individual claims instead of one class or collective action. Don’t think for a second that this decision will end wage and hour litigation. Instead, plaintiffs’ lawyers,...

Last night, I had the honor of being elected as Chair of the James W. Cooper Fellows Program of the Connecticut Bar Foundation, after serving for a year as Vice-Chair and Chairperson of the Fellows Education & Program Committee. The Fellows are comprised of outstanding Connecticut lawyers, judges, and teachers of law; the Fellows put on a variety of programs during the year including symposia, roundtable discussions and mentoring programs for high school students. At the annual dinner, I sat next to and talked with the Keynote Speaker for the evening, Teresa Younger, who is currently President & CEO of the Ms. Foundation — the Foundation started by icon Gloria Steinem. Those of you with memories here in Connecticut may remember that she was Executive Director of the Permanent Commission on the Status of Women and Executive Director of the CT Chapter of the ACLU, before leaving to go to the Ms. Foundation. I’ve met her several times — each time, I’m l...

Today is the last day of the General Assembly session and there are only so many hours to debate and pass bills. And so, in a year when so many labor & employment law bills were up for consideration, it’s come down to a finish line where just one or two might pass. The Pay Equity bill I highlighted earlier this week is on to the Governor’s desk, where he has indicated he will sign it. But the bill making broad changes to the harassment and discrimination laws in the state now appears to be on life support. Perhaps even “mostly dead”. You will recall from my post earlier this week that the bill passed the Senate with an overwhelming majority with language that seemed to have broad support. According to a report in CT News Junkie, a deal has yet to be reached in the House and there may be too many issues with it to come to a deal today. At issue has been the language eliminating the statute of limitations for some sex crimes.  It’s possible that a fi...

From time to time, I take a look back at a prior post that may have particular relevance now. With Halloween knocking on our doorstep and sexual harassment claims on the rise, this post from 2010 has just as much meaning today.… For most people, Halloween is a fun and silly holiday. Yet the holiday has a distinct place in employment law history.  Indeed, for some employers, the holiday has brought more tricks than treats. In Marrero v. Goya of Puerto Rico, 304 F.3d 7 (1st Cir. 2002), a supervisor was alleged to have gone out to buy Halloween presents. Allegedly, he gave the employee “a direct penetrating look with lust,” and said: “I have a little present for you that you’re never going to forget and if you don’t do the things I tell you and order you to do I am going to fire you.” In Grubka v. Department of Treasury, 858 F.2d 1570 (Fed. Cir. 1988), a supervisor appealed his demotion for engaging in alleged acts of misconduct in ...

As part of my continuing series of posts about the CHRO, and following up from the 75th Anniversary panel discussion earlier this week, I wanted to provide an early look of the statistics that are soon to be released by the agency. I was provided a preliminary draft in preparation for the panel presentation; it should be out in the next week or two and I was asked not to divulge the specific numbers.  Stay tuned for my deep dive into the numbers when they are officially released. (As a refresher, you can see last year’s numbers here.) But there are few trends that are readily apparent from the draft. First, as we have all suspected, sexual harassment claims filed with the CHRO are up substantially over the prior year.  This is not too surprising given the publicity regarding the #metoo movement.  Still, we haven’t seen these types of numbers in nearly 15 years.  When the final numbers are released, expect a big increase in sexual harassment claims from FY...