Connecticut Employment Law Blog

Followup: Fox61 Responds to Discrimination Complaint Brought by Reporter

Daniel Schwartz — Wed, 08 Jul 2009 21:03:32 -0500

Late today, Fox61 (also known as WTIC-TV) released the following statement in response to the publicity surrounding the complaint brought by Shelly Sindland (which I covered last night):

Although WTIC-TV typically does not comment on personnel matters, in this case, because of the personal nature of Ms. Sindland’s attacks on the station and her colleagues, we feel we must respond by saying emphatically that this complaint has no merit and that WTIC-TV will vigorously defend itself in this matter. WTIC-TV takes very seriously allegations of discrimination, harassment and retaliation, all of which are prohibited by company policy.

The company's strong denial of such claims is of no surprise. Indeed, because of the Tribune Company's strong "zero tolerance" for discrimination and harassment, anything less from the company would have signaled that the company had issues it wanted aired out.

Various press coverage of the complaint has been slowly trickling, with the Hartford Courant finally releasing a story about the complaint on its website late this afternoon.

The story has also been picked up in various legal circles as well, including the national Above the Law legal tabloid, which featured this blog's post prominently. Moreover, the Law and More blog suggests that the story falls serves as a nice bookend to the Connecticut media's coverage of "Travis-gate".

I'll have more about the legal implications of this matter in the coming days.

Ricci v. DeStefano Webinar Presentation and Materials Now Available Online

Daniel Schwartz — Wed, 08 Jul 2009 14:56:27 -0500

Thank you to all the attendees of our webinar earlier this afteroon on "Ricci v. DeStefano - What Employers to Know". The attendance was up substantially over our first webinar and the feedback has been terrific.

In case you missed it, however, you're not out of luck. You can view and download the Powerpoint slides of the presentation through a link here. You can also view and download the complete presentation (with audio) through a link here. My only request is that if you find the materials helpful, please drop me a line so we can continue to provide useful, relevant content for our readers.

My thanks as well to my colleague Adam Mocciolo for his significant contributions.

Our next webinar is scheduled for August 12, 2009 at noon EST and is tentatively scheduled to tackle the issues Connecticut employers face in dealing with both the federal and state FMLA laws and regulations (which now differ in some significant ways). We may make a last minute substitution of the topic if there are any late breaking legal developments (which tends not to happen in August).

Look for details on the blog soon.

Quick Hits: Ricci Webinar and Panel Discussion, Kreisberg Installation, New CBA Section Chair

Daniel Schwartz — Wed, 08 Jul 2009 08:10:21 -0500

Even though it's the summer, there are several employment law events going on today and in the upcoming weeks that you may be interested in:

First, at noon today, we are holding a free webinar on the implications of the Ricci v. DeStefano case for employers. You must register here for the webinar in order to receive a link to join us. It should last no more than an hour. I'll try to post the presentation link later this week.
Later this afternoon, at 2:30 p.m. the Connecticut Bar Association will be hosting a reception immediately following the installation of Jonathan B. Kreisberg as Regional Director of Region 34 of the NLRB. It will be held at the William F. Starr Hall of UConn School of Law. You can contact the CBA for more details.
I also received word that the Labor & Employment Committee of the CBA Young Lawyers Section will be hosting a panel discussion about the Ricci v. DeStefano case on August 18, 2009 at the Quinnipiac Law School. Details will be forthcoming, but early indications are that the attorneys involved directly with the case, Karen Lee Torre and Rick Roberts, have agreed to appear.

Lastly, I would be remiss if I did not extend my warm congratulations to my colleague Joshua Hawks-Ladds for his appointment to be chair of the CBA's Labor & Employment Section, effective July 1, 2009. I know he has big plans for this year and I look forward to being able to report on the upcoming events.

Fox 61 Reporter Files Age and Gender Discrimination Claim with CHRO; Is History Repeating Itself?

Daniel Schwartz — Tue, 07 Jul 2009 20:47:35 -0500

Over ten years ago, former WFSB (Channel 3) news anchor Janet Peckinpaugh shook up the media market in Hartford with claims of gender and age discrimination against her former news station. She claimed that she had been let go because she had gotten too old.

At the time, the case had all the elements of a soap opera, including the testimony from a sitting Connecticut Supreme Court justice and sensational allegations involving another high-profile television news anchor. Respected journalist Mike Allen wrote a thorough piece about the claims in the New York Times.

Ultimately, a jury awarded her $8.3M for her claims; the court later reduced that amount to $3.75M. The parties later resolved the matter as the judgment was vacated.

I couldn't help but think about that case when I learned that Fox 61 political reporter Shelly Sindland, all of 40 years old and yet a fixture at that station for 14 years, filed a complaint of gender and age discrimination (and retaliation) with the Connecticut Commission on Human Rights and Opportunities earlier today. (Due to a work-sharing agreement between the CHRO and the EEOC, the complaint is automatically cross-filed with the EEOC too).

The entire complaint -- filled with its own claims of lewdness and alleged inappropriate behavior -- can be downloaded here. (As I have often preached before, readers should be aware that these are mere allegations, not proven, and the Company has denied comment on the matter. UPDATE: The Associated Press is reporting that the station would, once again have no comment on the matter)

But among the allegations Ms. Sindland has made in the Complaint:

That fellow female anchor was asked to "appear on the news as though she were naked as part of a promotional campaign for her news reporting on April 1";
That during a meeting with reporters and anchors Jan. 30, 2009, the Fox 61 news director stated that the "Friday newscasts looked like “Big Boob Fridays,” and the station’s ratings were up as a result of at least one female reporter wearing a tighter shirt. "
That other older female anchors have been removed from various newscasts and replaced with younger women.

The attorney for Ms. Sindland, Elizabeth Conklin, provided the following comment to me via e-mail on Thursday afternoon:

As her complaint affidavit alleges, Fox 61 actively encourages younger women to 'be sexy,' and favors younger women and men of all ages over older, more experienced female on-air news professionals. It is always a difficult decision for someone who is still employed to file a complaint against their employer, particularly in this industry. The issues in the complaint have been raised by Shelly and others internally without any corrective action, however, and as a result, Shelly felt it was appropriate at this point to file a formal complaint with the Commission.

Ms. Sindland, who has her own blog, put up the following statement there which reads, in part:

I am doing this for my daughter as well as the other women at the television station both young and “old”. I do not in any way see this as a case of of “us” versus “them.” It is quite the contrary. I have come to think of the younger women at the station as friends and truly care about them. What is happening to me, is, by no means, their fault.

It’s just that, one day, they too will also be older and perhaps, mothers as well, and may not be considered “sexy enough.” The simple truth is that such issues should not be considered negative factors in a workplace – whether it is a factory or a television news organization.

I'll discuss some of the legal issues flowing from this in an upcoming post; in fact, the complaint itself raises a whole host of factual and legal issues. For now, however, don't expect to hear much about this after the next few days as it relates to the legal process. The company has at least 30 days to file a response with the state agency.

After that, the CHRO will issue a Merit Assessment Review within 90 days after the Complaint is received (basically determining whether the complaint is frivolous on its face -- which probably isn't much of an issue here) and, if it passes, then eventually set the matter down for a fact-finding and mediation. (The CHRO process is described here.)

Even then, don't expect the case to linger with the CHRO. Unless some type of resolution is reached, I would expect Ms. Sindland to ask the state agency from a release of jurisdiction so she can bring the case directly to court (she must wait approximately 210 days from the date of filing to ask for such a release of jurisdiction).

And expect another soap opera involving some of the state's media stars to begin again.

(H/T The Laurel)

The Basics: Workplace Conditions of Meal Periods, Breastfeeding, Electronic Monitoring, Lie Detector Tests

Daniel Schwartz — Tue, 07 Jul 2009 09:35:13 -0500

Continuing the summer series on the basics of some employment laws in Connecticut, we turn this week to laws regarding working conditions.

Indeed, while the anti-discrimination laws and FMLA laws get all the press, there are a whole host of other laws that regulate the workplace conditions. These are no less important and ignoring this rules can often lead to a larger investigation on workplace issues.

Here are a few to remember:

Meal or Rest Periods: Every employee who works at least 7 1/2 hours, is entitled to a consecutive 30 minute period for a meal. This meal period cannot occur in the first 2 hours or last 2 hours of work, unless there is a written agreement in place. The DOL has set up various exceptions however for public safety or because of the nature of the position. (Conn. Gen. Stat. 31-51ii.)
Breastfeeding in the Workplace: Every employee who wishes to express breast milk or breastfeed at work can do so during a meal or rest period. Employers are obligated to find a suitable room or other location (other than a toilet stall) where the employee can express her milk in private. (Conn. Gen. Stat. 31-40w.)
Electronic Monitoring: I've previously covered this more extensively in various posts like this one, but suffice to say that Connecticut allows employers to monitor their employees so long as the employees have prior written notice of such monitoring (with limited exceptions).

To provide the notice, the employer must indicate the types of monitoring that may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.)(Conn. Gen. Stat. 31-48d.).

If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment."
No Polygraph Tests: Connecticut also has a blanket prohibition on the use of polygraph (lie-detector) tests by employers for employment purposes (with the exception of such police or correctional facilities) . (Conn. Gen. Stat. 31-51g.)

Interestingly, the ban on polygraphs appears limited to situations where the employer "requests or requires" any employee or prospective employee to submit to or take a lie detector test as a condition of obtaining or continuing employment (and cannot discipline an employee for failing to do so.) Of course, that leaves open a question of whether an employer - as part of an investigation - can ask an employee to do so. But even in that case, it may run afoul of federal laws on the subject. Suffice to say that any employer wishing to use lie detector tests should consult with counsel about it.

(Photo: Library of Congress, Women workers employed as wipers in the roundhouse having lunch in their rest room, C. & N.W. R.R., Clinton, Iowa, 1943)

Statements Made During Affirmative Action Proceedings Are Entitled to Immunity, Appellate Court Rules

Daniel Schwartz — Tue, 07 Jul 2009 05:36:08 -0500

In a decision to be officially released later this month, the Connecticut Appellate Court has ruled that statements made by a worker during an affirmative action proceeding are subject to absolute immunity from defamation claims.

The decision in Morgan v. Bubar (download here), resolves, at least for now, the unanswered question of what protections should attach to a less-than-traditional investigation and proceeding, such a complaint to a state affirmative action officer. The court held that the proceeding is "quasi-judicial", which triggers the protection of absolute immunity.

The court's reasoning is consistent with other types of investigations where there is an interest in having facts told to the investigator without fear of retribution. "We conclude ... that the policy of encouraging candid disclosure of discriminatory occurrences outweighs the risk that statements made in the context of an affirmative action investigation may be false or malicious."

For private employers, the decision will have less of an impact because the use of affirmative action officers is not nearly as common as various human resources professionals. Nevertheless, it provides the employer (and the employees involved in the investigation) with more clarification that statements made by employees in the context of investigations are likely to be protected by the courts..

Quick Hits: Ricci Webinar, Performance Reviews, Web-Based E-mail, Two-Member NLRB Decisions, Retirees vs. Employees, "Engaging" Work Environments

Daniel Schwartz — Mon, 06 Jul 2009 08:43:20 -0500

With the holiday weekend now firmly behind us (and hopefully the wet weather and storms behind us too), it seems like a good time to recap some items you might have missed over the last few weeks in employment law.

First, a gentle reminder that our free webinar on the Supreme Court's decision on Ricci v. DeStefano and the implications for private employers is just 48 hours away. Details and registration are available here.
There was a excellent pair of articles last week on writing effective performance reviews posted at the HR Daily Advisor here and here. The key takeaway: Be specific both in what you expect as an employer and what needs to be done (with a timeframe).
A recent Law.com article asks (and answers) the question for in-house counsel and human resources representatives: Can you access and read your employee's web-based e-mail systems when the employee has accessed it through their workplace computer? The conclusion: It's not worth the risk.
The National Labor Relations Board has, for the last year or so, been issuing decisions from its two appointed members (out of 5). Are these decisions "legal" because they are not a majority of the board? If the decisions are not legal, what happens? Do they get thrown out? That is the subject of many different appellate court decisions of late. The Second Circuit (the federal appeals court covering Connecticut) recently issued a decision that gave the thumbs up to the practice, furthering a split among the circuits.
The Connecticut Supreme Court, in Garcia v. Hartford (download here) recently addressed the question of whether a retiree is an "employee" under a collective bargaining agreement. If so, the retiree would have to exhaust their remedies under the Agreement. The Supreme Court answered the question no, finding that the intent of the parties in this Agreement was that former employees had a different status than current employees. It's yet another example how proper drafting of agreements can avoid years of litigation later on.
And finally, the Connecticut Innovations blog has a post on how to build an engaging work environment. This is particularly important for start-up companies than may not have an established culture in place.

Happy 4th of July

Daniel Schwartz — Fri, 03 Jul 2009 08:35:32 -0500

If there's one holiday that everyone seems to relish, it's the Fourth of July. After all, you've got hot dogs, hamburgers, apple pie, and if the rain finally holds off, fireworks.

So, happy 4th of July everyone. See you next week.

The Basics: Weekly Payment of Wages

Daniel Schwartz — Thu, 02 Jul 2009 10:11:06 -0500

Given the typically slower summer months, I'm going to highlight some basic Connecticut employment laws that most employers should be familiar with (but that some may not). Picking up on yesterday's post, it'll be entitled "The Basics" and hopefully will run at least once every week.

Today's topic: Weekly Payment of Wages.

Connecticut law (Conn. Gen. Stat. 31-71b) provides that employers in Connecticut have to pay their employees on a weekly basis. Not every other week. Not twice a month.

For multi-state employers on may have a bi-weekly payroll schedule across the country, this can cause a few headaches (though most payroll companies have long since been able to adapt payroll schedules on a state-by-state basis).

But of course, there's a big exception to this: Employers can ask the Department of Labor for a waiver. Conn. Gen. Stat. 31-71i provides that the department has the discretion to grant or deny such a waiver, so long as the employee is paid at least once a month.

To request a bi-weekly payment schedule, in fact, the Conn. DOL has set up an online form that the employer can fill out; these requests are typically granted by the CTDOL.

For employers who request a semi-monthly or even monthly pay schedules, those requests have to be sent directly to the Department of Labor. Those are typically scrutinized in much more detail and there ought to be a pretty good rationale behind that request.

Record-Keeping for Employers in Connecticut - The Basics

Daniel Schwartz — Wed, 01 Jul 2009 08:24:08 -0500

With all the talk this week about Title VII and what I would call slightly more "advanced" issues in employment law, it's always wise to make sure that you, as an employer, have the basics down.

One issue, for example, that employers sometimes wonder about but rarely figure out is "What Records Must I Keep Related to Wage & Hour Laws?"

Fortunately, the Connecticut Department of Labor website contains a concise summary. These records, listed below, must be kept at the employer's place of business. They are:

The employee's name and address;
The employee's occupation;
The total daily and total weekly hours worked, showing the beginning and ending time of each work period, computed to the nearest unit of 15 minutes;
The total hourly, daily or weekly basic wage;
The overtime wage as a separate item from the basic wage;
Additions to, or deductions from, wages each pay period;
Total wages paid each pay period;
Working papers/statements of age for each employee under the age of 18.

That's not to say that these are the only records that must be kept. There are a whole host of other regulations (both state and federal) that may apply, including safety records and the like. But for smaller employers in particular, there's no time like the present to make sure you have the basics down correctly.

For more answers to Frequently Asked Questions, the Connecticut DOL has redesigned their webpage to answer 21 common questions in a short, concise manner. It's worth checking out.

Five Things Employers Can Learn from the Ricci v. DeStefano Case

Daniel Schwartz — Tue, 30 Jun 2009 07:53:11 -0500

Although I tipped my hand yesterday through some posts (here and here) and an interview with the Connecticut Law Tribune, here are some takeaways for employers from the Ricci v. DeStefano case.

The Decision Applies to Private Employers. Before Ricci was decided, the case could've gone two ways -- it could have been based on constitutional (equal protection) grounds, or on statutory (Title VII -- the law prohibiting race and gender discrimination) grounds. The Court decided to go with the latter. Why does that make a difference? Because Title VII applies to both private and public employers; if it had been decided on equal protection grounds, it would likely have applied only to public (governmental) employers.
Testing Will Never Be The Same. Whether public or private, employers who use tests to assist them in hiring and promotional decisions get some guidance now in the area. Unfortunately, the guidance that the Supreme Court provides isn't particularly illuminating. Parsing things out, the court suggests that if a test is designed to be race-neutral, the fact that the numbers come out differently than an employer expects is not, in and of itself, enough to throw out the results of the test. There needs to be something more, some "strong evidence in fact". What that is remains to be seen.

But supposing that an employer does accept the results of the test, can it defend itself from a disparate impact claim? The court says yes. The court suggests that as long as an employer designs a test that is that is “job related for the position in question and consistent with business necessity” that might get the employer some traction in defending a claim of disparate impact. Even in that case, however, the Court opens to the door to employees too: The employee can still win a disparate impact claim if the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.

As a result, employers who use testing in particular will need to be able to rule out other alternatives that it might have used to make its hiring and promotional decisions. (Note: Title VII does contain specific provisions regarding testing as well so employers should not forget to look to the statutory language as well.)
Affirmative Action Plans and Diversity Plans Are OK For Now. Maybe. Some larger companies have programs now that try to ensure that the makeup of their workforce properly represents the makeup of the population. For example, the employer may track "high potential" employees (particularly minorities) within their corporation to ensure that they receive proper consideration for promotions and opportunities. Are these programs ok?

The court suggests that it will allow for some affirmative action plans and notes that employer's "voluntary compliance efforts" are essential to the success of Title VII:
"[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. ... "

For employers, it suggests that you can review your policies and practices that ensure that minorities have a fair chance to succeed, but reinforces the view that you still cannot make your decisions to hire and promote based on race. But how much "affirmative efforts" an employer can use, remains an unanswered question from Ricci.
Tread Cautiously In Conducting a Disparate Impact Analysis for Layoffs and Terminations. One area that disparate impact claims arise is in the context of layoffs and reductions in force. For example, an employee may claim that the black workers were twice as likely to be laid off as white workers. As a result, many employers have started to conduct a disparate impact analysis before the termination to see if the raw statistics are of concern. If they are, employers sometimes reconsider their decisions or re-engineer the layoff criteria to remove such a disparate impact. In other cases, employers simply review the particularly data to ensure that the decisions were fair.

Ricci leaves open the question of whether that practice is legal under Title VII. The court does suggest that the city "was not entitled to disregard the tests based solely on the racial disparity in the results". Does this mean that employer -- once it settles on a process for terminations -- cannot change that system after it runs the numbers? At one point is the employer "stuck" with the results? That will likely be the subject of litigation at some point.
Don't Expect This Law to Remain Static. One thing is certain -- there are likely to be some more changes to this law in the years to come. One way is through Congressional action (as Senator Patrick Leahy has already suggested). Another way is through additional Supreme Court action. Indeed, Justice Scalia has suggested that there are battles yet to come on this issue:

[The] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.

As a reminder, I'll be participating in a free webinar next week on this subject. I anticipate that it'll focus on the practical implications of the decisions and additional steps that employers can take now to avoid becoming the next test case before the Court.

Ricci v. DeStefano - The Best of Today's Coverage of the Supreme Court Decision

Daniel Schwartz — Mon, 29 Jun 2009 20:23:25 -0500

For a case out of little Connecticut, the Ricci v. DeStefano case today sure has drawn big interest. Seems like everyone has an opinion on the matter.

There are plenty of wrapups of the case out today. Many of them are, predictably, saying much of the same thing: Interesting case; probably applies to private employers; still waiting to see the impact.

For the mainstream local media approach, the Connecticut Law Tribune has two pieces here and here (I'm quoted in the latter). The Hartford Courant's piece is here. For a slightly less-mainstream approach, the New Haven Independent's report has some good local feedback here and here. And Slate magazine has some great "breakfast table" discussion pieces about the case in easy-to-understand language as well.

But there are a few analytical pieces I've reviewed today that stand out and I thought I would highlight a few that break through the clutter.

I've been reviewing the decision today as well and will have some additional thoughts (with action steps for employers) in an upcoming post.

Walter Olson, whose Overlawyered blog is celebrating TEN years this week (amazing, eh?) has a piece in Forbes.com entitled, appropriately, "Sued If You Do, Sued If You Don't". Walter seems to have gotten to the bottom of things -- the court was troubled by the prospect of an employer who basically says "trust me" when it provides its rationale for its decision, when the truth behind the decision is far less clear:

Monday's crucial ruling is on the question: how serious does the prospect of litigation over an employment practice have to be before an employer is allowed to lean over in the opposite (discriminatory) direction to avoid liability? Justice Kennedy's majority rejected New Haven's contention that a "good faith" fear of liability should be enough, but also rejected the firefighters' contention that reverse discrimination could be justified only to avoid an outright collision between the two legal requirements. Instead, Justice Kennedy selected a middle ground: to discriminate against majority applicants, employers will need a "strong basis in evidence" that they otherwise "would have been liable."

Even now, The New York Times is no doubt preparing an editorial grimly portending the return of white supremacy at the hands of a callous Court. But the moral is probably a narrower one: If you're going to shaft white applicants, don't be as blatant about it as New Haven was. Kennedy was clearly angered by the after-the-fact disavowals and excuses by the city that, in his words, were "blatantly contradicted by the record." The Court is traditionally unsympathetic to employers that invent "pretextual" reasons for biased decision making; this time that principle happened to cut in an unexpected direction.

The World of Work blog has its take on the decision and predicts something else -- a bill from Congress. In addition, the blog suggests that employers need not worry about the case (something that I disagree on, to a degree, as I'll discuss in an upcoming post):

Ultimately, the Ricci decision will have little to no impact on most employers, but represents a small victory for employers (despite the positioning here that held against the city/employer). Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists. The Ricci decision may not last for long, however. Political condemnation by Democrats has been swift, with Senator Patrick Leahy (D-VT) saying that "it is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces." Don't be surprised if Congress passes legislation down the road aimed at upending the Ricci decision.

Michael Fox, at the always reliable, Jottings by an Employer's Lawyer, also highlights a little-discussed topic that I have also been thinking about today -- affirmative action plans. He predicts that the decision could impact the way employers think about their affirmative action plans.
The professors at the Workplace Prof blog are, not surprisingly, hard at work trying to make sense of the decision as well. While some of the analysis is geared towards academics, they make a good point for employers: Title VII is going to be a mess to navigate.

The result is also going to make it difficult for employers to navigate Title VII, although maybe not more than it was before this decision. Employers will likely do nothing to evaluate their hiring or promotional processes until those processes have run their courses. There is very little incentive for employers to try avoid disparate impact liability any more than they would have before this decision, and more incentive not to change anything, just in case that change is itself discrimination.

I'm not necessarily sure I agree with this because it presumes that employers don't care about their employees or care about ensuring that their workplace is free from discrimination. Many employers already have systems in place to review their hiring and promotional practices; it's difficult to see why employers would simply dismantle these programs in light of Ricci.

And lastly, I would be remiss if I didn't mention the excellent coverage by the SCOTUSBlog, which provides this analysis (with the rhetoric) today. The likely result from Ricci? More litigation:

The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean. In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.

What Employers Need to Know About Ricci v. DeStefano - A Free Webinar

Daniel Schwartz — Mon, 29 Jun 2009 13:49:09 -0500

A further read-through of the Ricci v. DeStefano case today has reinforced my view that there are going to be some real lessons learned for employers out of this case. The case had the potential of being a very narrow decision which would have minimized the impact to employers. However, because the court addresses head-on various Title VII issues, it's likely to creep into much larger issues and it's not out of the question to see it impact affirmative action plans or diversity programs.

Because of that, I've decided to spend a good deal of time discussing this case and the impact on employers in Connecticut and beyond in a webinar scheduled for July 8th at noon EDT. You can register for it for free here. Space will be limited so be sure to sign up today.

In this session, I anticipate we'll discuss::

-- The basics of Title VII and how it applies to employers
-- The differences between "disparate impact" and "disparate treatment" claims
-- How employers should deal with the use of tests in the workplace and what it is permissible to do when the test results seem "off"

-- What the lessons are to be learned from Ricci, and steps employers can take to avoid reverse discrimination claims in the future

-- What is "reverse" discrimination and whether employers need to be concerned about such claims

-- What the impact this decision will have on affirmative action plans and diversity programs

As time permits, we will also wrap up the other Supreme Court employment law decisions in the 2008-09 term and the takeaway for employers in each of those cases, including an important age discrimination case.

Looking forward to having you all join us.

BREAKING: Ricci v. DeStefano - Supreme Court Reverses Second Circuit And Finds New Haven Violated Title VII in 5-4 Decision

Daniel Schwartz — Mon, 29 Jun 2009 10:20:53 -0500

In closing out its 2008-09 term today the U.S. Supreme Court ruled 5-4, along ideological lines that the city of New Haven violated Title VII in refusing to promote a group of white firefighters and refusing to apply the results of a test that it claimed would have had a disparate impact on minorities.

The decision in Ricci v. DeStefano (download here) is bound to be heavily reviewed, scrutinized and analyzed. Indeed, because Judge Sotomayor (who was involved in the original decision at the Second Circuit) has now been nominated for the Supreme Court, the decision has been highly anticipated.

But despite the hyperbole about this case beforehand, the case has pitted two competing issues against each other - the city's alleged fear that the test, if applied, would have had a disparate impact on minorities (opening itself up to a lawsuit) and the firefighter's right to be promoted based on doing well on the test. The Court said that the city's fear was not sufficient to not use the test and that not using the test was a violation of Title VII.

Indeed, in its decision, the Supreme Court goes one big step further; it provides the city with a defense to a possible disparate impact lawsuit:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I've previously discussed the case extensively in a variety of posts which can be found here and here.

Justice Ginsburg provides the dissent here and predicts that the case will be difficult to apply in practice and further suggests that employers may have a difficult time fiting within its parameters:

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—evenfor surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulatean employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.”

I'll refrain from any big snap judgments until I review the decision at length (93 pages and all) but suffice to say that this decision will be the new starting point for employers who worry about disparate impact claims. It's application to private employers will no doubt be scrutinized as well, but I'm going to review the whole decision before drawing too many conclusions.

What's interesting is that the court decided the case on Title VII grounds instead of the "Equal Protection Clause" questions that it also faced. What this means is that private employers need to pay much closer attention to this case than had it been decided on the other grounds. After all, Title VII applies just as much to private employers as it does to the government.

My firm will be presenting a free webinar on this case and its impact on employers on July 8th at noon. Details will be forthcoming in a post later today.

In the meantime, if you're looking for other instant analysis, check out the SCOTUSBlog for their posts.

The Dark Side: Putting a Stop to Workplace Rumors, Gossip and Innuendo

Daniel Schwartz — Fri, 26 Jun 2009 00:58:31 -0500

The news late Thursday afternoon came without warning from friends, a co-worker, and of course, Twitter. There was another death of a popular star. Suddenly. Tragically.

Jeff Goldblum was dead.

Except he wasn't.

And yet, in the span of a day -- when the world lost Farrah Fawcett and Michael Jackson -- a rumor was spreading that actor Jeff Goldblum was the third star to pass away. After all, bad things happen in threes. But it turns out it was completely false.

The news brought to mind situations where an employer is faced with the similar "dark side". Rumors. Innuendo. Gossip.

Word spreads fast in a workplace. Even faster now with e-mail. And for employees, rumors can be toxic, as an old New York Times article explains.

So, what's an employer to do?

Well, the specifics first depend on the facts. Is the rumor that an employee is on drugs? Having an affair? Has mental issues? Or, my favorite, doesn't take showers?

Or is it more general about the company. Is it a rumor that the company is about to layoff employees? Or that the company is in financial difficulties? Or that the chief executive officer is having a liver transplant?

And what's exactly happening? Is e-mail usage about it going up?Is there lots of talk behind closed doors?

Each of these situations (and the many others that get spread) has different levels of response.

For example, perceiving that an employee is disabled may bring claims under the ADA so an employer can discuss with a supervisor ways to comply with the law.

On the other hand, a reminder that harassing, humiliating or abusive comments about another employee via e-mail might be enough to stop rumors about the sudden disappearance of gray from an employee's head.

How else can a company react? Some practical suggestions include:

Reinforce that the company computers are to be used for company-related business and that inappropriate e-mails such as sexual innuendo will not be tolerated.
If it persists, consider whether you want to engage in "electronic monitoring" of your computer system upon proper notice to your workforce
Maintain consistent intra-corporate communications. In the absence of facts, rumors can spread fast.
Every office seems to have an outlaw or two. Talk with them and make sure they understand that spreading gossip will not be tolerated.
Address rumors immediately. The speed of the Jeff Goldblum rumor on Thursday reinforces that fact to me.

And if you hear the rumor today that Jeff Goldblum is dead, you can put a stop to that too.

Still Awaiting A Decision on Ricci v. DeStefano

Daniel Schwartz — Thu, 25 Jun 2009 09:58:32 -0500

Those waiting for a decision in the hotly-anticipated Ricci v. DeStefano case will have to wait a few more days (likely Monday). The U.S. Supreme Court released the decisions for the day this morning and Ricci was not among them. It is now expected to be released early next week. It is one of just three cases remaining on the court's docket.

In the meantime, Slate has published a lengthy piece today about the story "behind" the case. It appears to be well-sourced and detailed and provides the type of insight you would expect from Slate. As the article states:

The story behind Ricci is just one example of an entrenched conflict over municipal hiring that extends back in time and across the country. For at least two generations, competition for jobs in many cities has been framed as a battle between one ethnic or racial group and another over who is an insider and who is an outsider. Black firefighters first brought a suit over discrimination in New Haven in 1973. They won. So did minority firefighters who sued Cleveland, Birmingham, St. Louis, New York City, Newark, Bridgeport, Buffalo, Philadelphia, Massachusetts (statewide), San Francisco, Baltimore, and Minneapolis, according to the NAACP Legal Defense Fund.

But those victories all came in the 1970s. More recently, white firefighters have begun to fight back in court. Frank Ricci's case isn't the first reverse discrimination suit in a fire department. In 2001, four white men sued the Boston Fire Department for hiring minority candidates who had scored lower than the plaintiffs on a civil-service exam. They were the first to challenge the Boston department's affirmative-action policy since it had been upheld by the U.S. Supreme Court in 1989. In 2004, they won. Last year, a Los Angeles jury awarded two white fire captains $1.6 million in damages in a suit claiming that they had been punished more severely than a minority officer for participating in the same prank. The New Haven suit, meanwhile, has spurred a similar one by white firefighters, also over promotional exams and test scores, in nearby Bridgeport, Conn.

Federal Court Denies Summary Judgment to Background Check Company Based on Alleged Violations of FCRA

Daniel Schwartz — Tue, 23 Jun 2009 10:12:45 -0500

In a case that should send shivers through background check companies, particularly in Connecticut, a federal district court judge recently ruled that a job applicant could proceed to trial with her claims that two background check companies violated in the Fair Credit Reporting Act when they reported that she had been convicted of a crime (when she allegedly had not).

The case, Adams v. National Engineering Service Corp. (download here) has a detailed and, at times, compelling recitation of a background check that appears to have gone awry but also of a background check company that appears to have done quite a bit to try to alleviate the situation.

Nevertheless, the Court found that what the background check company did to try to comply with the applicable law may not have been enough. (The court has sent the matter on to a jury for a determination.) Other portions of the opinion address the issue of when the background check company needs to report the negative information to the job applicant directly.

Another portion of the case answers the sticky question of whether a background check company needs to provide notice of such negative information to the applicant directly. Relying on 15 U.S.C. 1681a(k), the court answers the question "yes", finding that the company's reporting of such information to a potential employer is an "adverse action" that requires such notice.

I've previously discussed background checks before. For companies that engage in background checks (and the employers that use them), compliance with FCRA isn't easy. Add a hodgepodge of various state laws and it is a compliance issue waiting to happen.

Nevertheless, reviewing and auditing your current policies and procedures may be the best step that employers can take from this case. As this case illustrates, no detail about the FCRA will be too small.

Cloud Computing and Employment Law: The Uncharted Sky

Daniel Schwartz — Tue, 23 Jun 2009 08:54:46 -0500

Two articles that I've come across over the last week have sparked my interest in the question of what impact cloud computing has on employment law.

Realizing that there are several of you who may think "cloud computing" is simply using your laptop on your next airline flight, let's start with a discussion of cloud computing. As explained in a very good piece published by Kroll OnTrack:

Cloud computing is best understood as a concept rather than a particular technology. Cloud computing involves entrusting electronic data for storage and/or processing to a third-party provider, and then remotely accessing the data "in the cloud" via the Internet. The data is in fact stored on a server—sometimes on a virtual server—operated by the cloud provider, often alongside data from other clients on the same storage services and processors. By allowing clients to pay based on use, cloud computing provides potentially sky-high cost savings to corporations, which can avoid the serious and recurring capital expenditures associated with setting up and maintaining their own servers, such as IT personnel costs. In other words, the users of cloud computing technology pay for what is used. Cloud computing further enables a corporation to quickly and easily ramp up or ramp down computing and storage capacity based on business needs.

So what's the downside? Kroll has highlighted a few issues that employers have glossed over so far including data location, forensic investigation recovery, and cloud provider integrity.

Doug Cornelius, who runs the Compliance Building blog, is attending a conference where he has highlighted other issues including: records management; data privacy; and compliance logs. In other words, there's great upside and cost savings to using cloud computing, but has anyone thought about the real-world implications?

From an employment law perspective, I have not seen much, if anything on the subject. For example, Connecticut's wage and hour laws require employers to keep track of various records of the employee including hours worked, etc. The catch? Such records need to be kept at the employer's place of business for three years. Does storing the information in "the cloud" satisfy that?

And suppose an employee is fired for improper use of the Internet and you want to "image" (or copy) the computer that the employee has worked on to preserve the evidence. How do you do that when the computer you want to image may be in a server thousands of miles away?

Or consider the lawsuit filed by an employee and the call that needs to go out to your IT department to put a "litigation hold" on your data. How do you do that when it's based in the "cloud"?

These are not insurmountable issues for employers. Every new technology brings with it new questions. But employers who are jumping into cloud computing should look past the sales pitches of the companies and ensure that what they are doing will allow them to comply with the law.

Live From...The ABA Presidential Summit on Diversity, Day 2 Recap

Daniel Schwartz — Sun, 21 Jun 2009 21:23:07 -0500

While I'm tempted to write on my airplane flight adventures on the way home from the ABA Presidential Summit on Diversity (they involved a "ground hold" and a Congressional member who had the plane return to the gate), there was quite a lot of ground covered in Day 2 of the Presidential Summit that should be of interest to employers and their attorneys. (In case you missed it, the Day 1 recap can be found here.)

The first part of Day 2 focused on recapping the various breakout sessions held the day before. Once again, I used Twitter to describe the morning with various details, which I'll reprint here:

Have to abolish diversity balkanization; how? by emphasizing cross identity mentoring
Real desire [of companies and attorneys] to gather practices that work and publicize them; but also figure out why diverse people leave workplace
Need to move beyond [racial] identity discussion, on to diversity of perspectives; battles still not over but need to develop new approaches
Coordination seems to be theme [for diversity]: between associations, schools, clients, firms; everyone must help schools give students right skills to succeed
How to be accountable for diversity? Suggestions ranged from having clients dictate it (financially), or having 'best practices' that employers can follow

Later on in the morning, Michelle Coleman Mayes, General Counsel for Allstate, provided attendees with her secret to ensuring a diverse workforce, which I also tweeted:

Being a deliberate leader (in any walk of life) is critical to success not only of yourself, but also because of effect on others
Need to be "diverse" - not in traditional sense, but in being comprehensive in learning about others; be willing to fail too
Last part of success in this area is 'be vigilant'; ideas are great, but followup (and more) is even more important

All of the materials from the conference are now available for download to everyone. And the best part, the materials are free. So, you too, can get the benefit of two-day meeting.

At the ABA Annual Meeting in Chicago, the group's core will meet again to go over the results from the summit and continue to provide concrete solutions that the ABA and others can focus on in the short- and long-term.

Live From..The ABA Presidential Summit on Diversity: Day 1 Recap

Daniel Schwartz — Fri, 19 Jun 2009 21:12:33 -0500

Today was Day 1 of the ABA Presidential Summit on Diversity being held just outside Washington, DC.

Recapping such a conference in a blog post is impossible; I won't even begin to try. But I thought I would pass along some thoughts from the conference's Twitter feed.

So, in response to the question on "Why Have Diversity In Your Law Firm and Company?", here were some thoughts from the speakers:

For one, in order to understand and engaged with diverse clients
For another reason, some clients, like Wal-Mart, are also demanding it
Because research proves that a broader team with perspective comes up with better answers
Because minorities will become the majority by 2050; there is a business case and economic imperative to do so
For litigators, if you have broad perspective you can better convince a jury and understand their perspective

Time and again, speakers weren't hesitant to say that there is a legitimate business rationale for having diversity being a top priority.

What company was singled out by some for their successes and their advancement of a more inclusive workforce? In other words, what company has recognized the business case for diversity? Wal-Mart.

The company continues to be held out as a model for their push to their suppliers and law firms to make diversity not only a priority, but a way of doing business. (You can read about their significant efforts at their website here.) And yet there are some who continue to claim that Wal-Mart is unfriendly to workers. Go figure.

But beyond the "Why", we also discussed the "how". In an upcoming post, I'll recap some of the suggestions.

Day 2 starts early on Saturday. You can continue to follow along at search.twitter.com and enter the term "#abadiv". Or, if you'd like, you can view all the conference materials online at the conference's home page.