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Last week the CHRO released its case data for FY 2018.  Overall, the numbers do not dramatically differ from FY 2017.  However, perhaps not surprisingly given the media coverage of the viral #MeToo movement beginning in October 2017, some notable increases emerged.

The increase in the overall number of complaints filed in FY 2018 rose slightly from FY 2017 (up from 2376 to 2484).  While not alarming, in the past we have seen the number of complaints filed against employers drop during periods of low unemployment such as currently reflected in the U.S. labor market.

Historically, employment claims alleging discrimination based on race, age, physical disability, sex, and color make up the greatest percentage of CHRO complaints.  In FY 2018, however, the number of complaints based on sex jumped more than 20%, elevating sex discrimination complaints to the head of the pack while the number of complaints based on race, age, physical disability and color remained fairly consistent. Even more dramatically, the number of complaints alleging sexual harassment rose by nearly 62% over FY 2017.

The data in Connecticut mirrors national trends. The EEOC released preliminary FY 2018 sexual harassment data in early October showing that the Commission filed 66 harassment lawsuits, including 41 alleging sexual harassment, reflecting more than a 50% increase in suits challenging sexual harassment over FY 2017.    Charges filed with the EEOC alleging sexual harassment increased by more than 12% over the same time period.

The increase in sexual harassment claims and complaints based on sex discrimination coincides with the explosion of media headlines and high profile sexual harassment cases which sparked last year’s #MeToo movement.  Anecdotal information regarding the number of sexual harassment complaints filed with the CHRO in the current fiscal year suggests an even more dramatic rise in the number of these claims in the first half of FY 2019.

What’s the takeaway?

As legislative, legal and cultural shifts addressing sexual harassment in the workplace continue to develop, employers should brace for an increase in the number of sexual harassment and sexual discrimination claims.  However, maybe – just maybe – these shifts will result in long term changes to the culture that allowed this conduct to exist in the first place.

Employers should revisit, review and revise their company’s Sexual Harassment Prevention policy and ensure compliance with Connecticut’s sexual harassment prevention training requirements.  Perhaps more importantly, employers should strive to go beyond the legal requirements in addressing and responding to sexual harassment complaints, and seek to change workplace culture so that these – and other forms of discriminatory conduct – find zero tolerance in the workplace.

Federal law requires employers to verify the identity and employment eligibility of their current and prospective employees and document their compliance using the Employment Verification, Form I-9. U.S. Immigration and Customs Enforcement (“ICE”) Homeland Security Investigations (“HSI”) has the authority[1] to inspect and review employer’s Forms I-9 and conduct workplace raids. Employers in Connecticut and other parts of New England face a fair chance of an I-9 audit and enforcement activity in their place of business.  This note covers compliance with Forms I-9.

A violation for the unlawful employment of an undocumented worker can result in the imposition of fines to employers, the arrest of employers who knowingly employ undocumented workers, and the arrest of workers working without lawful authorization for employment in the United States.[2]

Continue Reading Is your business ready for an inspection from U.S. Immigration and Customs Enforcement?

Workplace Investigations – and the need for them – have been in the news a lot lately.  So it seems like a good time to review some basics, such as what triggers them, who should conduct them, and why are they important.

A workplace investigation can be triggered by myriad reasons, including a complaint or report of a policy violation or other employee misconduct; employee injury; complaint filed with EEOC, CHRO, NLRB or other agency; lawsuit; or compliance audit.  Upon the occurrence of any one of these triggers, the employer, often with the assistance of counsel, should assess the allegations or issues involved and make a determination as to whether an investigation is warranted. Some situations, such as alleged violations of non-discrimination laws, or workplace accidents, require an investigation be conducted. Continue Reading Back to Basics: Workplace Investigations

The importance of training supervisors on how to recognize and deal with employee leave issues cannot be overstated. And here’s a painful example of why…

Grace, an employee at a group home where she provided support to residents with mental impairments, was unexpectedly hospitalized due to a mental health condition. Grace had her son call her employer to tell them that she was in the hospital and could not report to work. Grace’s son called the employer at least four times over the next week to advise that his mother was still in the hospital. He spoke with Grace’s direct supervisor, as well as the program manager and the HR department. Such notifications should have sounded alarm bells that Grace might have a “serious health condition” and may be entitled to leave under the FMLA. Which it did – sort of; an HR department staff person prepared an FMLA packet acknowledging that the employer had been informed Grace was on a medical leave. However, when Grace’s son informed her supervisor that Grace was able to speak, the supervisor became angry and said it was inappropriate for him to be calling on his mother’s behalf and told him not to call again. The supervisor did not ask the son any questions regarding Grace’s condition or whether there was something preventing Grace from calling herself. Continue Reading FMLA: A Painful Reminder of the Importance of Supervisor Training

Just before the end of the legislative session, Public Act 17-118: An Act Concerning Pregnant Women in the Workplace, passed and is expected to be signed by the Governor.  Effective October 1st, this Bill amends Connecticut’s existing Pregnancy Discrimination Statute, Conn. Gen. Stat. § 46a-60 by expanding the employment protections provided to pregnant women and requiring employers to provide a reasonable workplace accommodations unless the employer demonstrates that the accommodation would be an undue hardship. The bill also prohibits employers from (1) limiting, segregating, or classifying an employee in a way that would deprive her of employment opportunities due to her pregnancy or (2) forcing a pregnant employee or applicant to accept a reasonable accommodation if she does not need one. It also eliminates certain employment protection provisions related to transfers to temporary positions for pregnant workers. Continue Reading Legislature Expands Pregnancy Protections, Malloy Set To Sign

A pharmacist was terminated after he claimed he was unable to administer vaccinations to customers.  Christopher Stevens sued Rite Aid for discrimination, retaliation and failure to accommodate under the Americans with Disabilities Act (ADA) and other state non-discrimination laws.  The jury awarded him $2.6 million, including $900,000 in non-economic damages.

By way of background, Rite Aid revised the job description for its pharmacists to require an immunization certification and made administering vaccinations an essential function of the job. Stevens, who suffers from trypanophobia (fear of needles), claimed he was disabled under the ADA and requested a reasonable accommodation excusing him from giving injections.  Rite Aid determined that Stevens was not disabled under the ADA, and therefore, it was not required to offer him reasonable accommodation. Instead, Rite Aid informed Stevens that if he did not comply with the vaccination requirement, he would be terminated. Stevens was thereafter discharged for refusing to perform an essential function of his job. For full text of decision click here. Continue Reading 2d Circuit Court of Appeals reverses $2.6 million jury verdict in disability discrimination case

This election, seven states and the District of Columbia passed expansive marijuana laws that permitted the recreational use of marijuana or cannabinoids.    This means that within these states and the District of Columbia people can openly smoke or ingest cannabis with no criminal repercussions.

While Connecticut has not embraced this libertine attitude toward marijuana use, Connecticut’s Palliative Use of Marijuana Statute (Conn. Gen. Stat. § 21a-408 et seq.) permits the use of marijuana by qualifying patients to treat certain medical conditions.  This statute also prohibits an employer from refusing to hire, disciplining, or discharging an employee because of their status as a qualifying patient or primary caregiver.  Conn. Gen. Stat. § 21-408p(3).

However, this issue can be problematic for private employers who conduct reasonable suspicion or random drug tests pursuant to Conn. Gen. Stat. § 31-51t et seq. or through a collective bargaining agreement for municipal employers.  It also raises questions about what an employer should do if an employee comes and/or returns to work under the influence of medical marijuana.

For starters: employers can still restrict employees from coming to work under the influence of drugs even if those drugs are medically required. Having a drug use policy that lays out what is prohibited as well as explaining what action will be taken for violations is imperative.  This policy should be provided to employees or posted in a highly visible area to put employees on notice.

In addition, drug testing may still be used especially if the business falls under federal regulations (which still prohibit the use of marijuana as a class 1 narcotic).  These businesses may employ CDL drivers; drivers whose occupation is considered “safety sensitive”; or who otherwise fall under the regulations of the Federal Motor Carrier Safety Administration.  In addition businesses who receive federal grants or who are considered a federal contractor may be required under the Federal Drug Free Workplace Act to have a policy that prohibits the “unlawful manufacture, distribution, dispensation, possession or use of a controlled substance” as well language explaining what remedial action that will be taken for violations.  If a federal regulation does require drug testing, it is important to ensure your drug testing policy includes all required provisions of the regulation or else civil fines (and in some cases debarment from federal contracts) can ensue.

Because this issue is evolving, and medical marijuana may open the door to a number of other issues (including the Americans with Disabilities Act and the State and Federal Family and Medical Leave Act) it is best to speak with an attorney about drafting a drug use policy and/or a drug testing policy.  Our attorneys are well versed in this facet of the law and have decades of experience drafting drug use and testing policies as well as advising employers on best practices.

Election season is here and the evidence can be viewed all around an employer’s campus: from bumper stickers on the cars in the parking lots; buttons festooned to employees; even screen savers on company computers; now more than ever broadcasting your support is easy.  However, with that support may come problems for the workplace.

Connecticut’s free-speech statute Conn. Gen. Stat. §31-51q protects an employee (acting in his or her private citizen capacity and not as an agent of the employer) from discharge or discipline for engaging in speech that would be protected by the First Amendment of the United States Constitution or Sections 3, 4 or 14 of the Connecticut State Constitution.  This includes what is called “political speech.”  Stated differently, an employee who voices support (such as campaigns for or speaks positively/negatively about a particular candidate) may not suffer any reprisal from the employer merely because the employer disagrees with that particular political philosophy.  This includes discipline (demotions, write-ups, suspensions etc.) and discharge based on that speech.

However, much like other issues concerning free speech rights, Conn. Gen. Stat. § 31-51q tapers the rights of employees from engaging in speech that “substantially and materially interferes with the employee’s bona fide job performance or the working relationship between the employee and the employer.”  Thus, while an employee may show support toward a particular candidate, that support cannot disrupt the business operations of the employer.  In other words, if the conduct of the employee is consuming so much of his or her working time; leading to political fights with other employees; and/or resulting in substandard work product or harm to business relationships, discipline is appropriate.

Given the nuances of Conn. Gen. Stat. § 31-51q and free speech laws in particular, it is always a good idea to consult with an attorney well versed in free speech rights in the workplace.  Our attorneys have handled these issues for both public and private employers and are familiar with this changing area of the law.

On January 1, 2017, Connecticut will “ban the box” for private employers, as well as public employers.  “Ban the box” laws prohibit employers from asking questions about criminal background on employment applications, with some exceptions.  Such laws are becoming increasingly common in states and municipalities throughout the United States.

The new Connecticut legislation, known as Public Act 16-83, An Act Concerning Fair Chance Employment, defines “employer” as “any person engaged in business who has one or more employees, including the state or any political subdivision of the state.”  The law prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application.  There is an exception when the employer is required to do so by state or federal law.  However, it is not clear whether this exception will apply only when the employer is bound to inquire about criminal background on an initial application or if it will apply as long as the employer is required to ask at some point in the process.  A literal reading of the language implies the former.  There is also an exception when a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Notably, the legislation only bans employers from asking about criminal history on an initial employment application.  It does not prohibit asking altogether, nor does it require a conditional offer prior to asking.  Therefore, employers need to check their application forms to ensure they do not ask about criminal background (unless an exception applies), but may ask such questions at any later point in the application process.

Existing state law requires that an employment application form that contains any question concerning the criminal history of the applicant contain a notice, in clear and conspicuous language:

(1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a,

(2) that criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and

(3) that any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

Further, employers may not reject an applicant or terminate an employee based on erased records or because of a prior conviction for which the individual has received a provisional pardon or certificate of rehabilitation pursuant to Conn. Gen. Stat. § 54-130a, or a certificate of rehabilitation pursuant to Conn. Gen. Stat. § 54-108f.

While the ban-the-box legislation does not allow an individual to sue an employer, a complaint may be filed with the state Department of Labor.

Employers should remain aware of other considerations relating to the role of prior convictions in the application process.  Employers in certain regulated industries, particularly where employees will work with children or finances, may have special requirements to inquire about criminal background.  Employers in all fields should ensure that they make carefully reasoned decisions about the relevance of prior convictions to the employment sought; failure to do so could give rise to discrimination charges based on race and national origin, even where a policy is applied evenhandedly.  Finally, before conducting a criminal background check, employers should ensure they are complying with notification requirements of the federal Fair Credit Reporting Act.

Due to the complexity of the law in this area, employers should consider having their applications and other onboarding materials reviewed by a labor and employment attorney.  Further, before taking adverse action (including refusing to hire an individual) based on a criminal conviction, it is advisable to seek counsel, as certain enumerated factors should be considered and documented.

Our team of labor and employment attorneys can assist employers in adjusting to the new criminal background inquiry restrictions and ensuring compliance with all applicable labor and employment laws.

In a decision that marks a clear departure from national case law, the Connecticut Supreme Court recently expanded the protection of employees who speak out against their employers.

In Trusz v. UBS Realty Investors the Connecticut Supreme Court rejected the standard set by the U.S. Supreme Court as to the U.S. Constitution, ruling, in effect, that the state constitution affords Connecticut employees broader protection than federal law.  In a case called Garcetti v. Ceballos, the U.S. Supreme Court had ruled that employee statements made as part of their official duties were not protected.  In Trusz the Connecticut Supreme Court rejected that exception as to the Connecticut Constitution.

As such, even statements made by an employee as part of their official duties may be protected under Connecticut law assuming the other requirements for bringing a free speech claim are met, e.g. it must be a matter of public (not private) concern.  This means that as compared to other employers throughout the rest of the Country, a Connecticut employer has less latitude to discipline an employee who speaks out against their employer, even if the statements are associated with their regular job duties.  Connecticut employers seeking to discipline an employee for speaking out against them should think twice and consult with counsel before doing so.