As I highlighted last month, Vine – a new video-sharing app — is quickly infiltrating the workplace.  Since my original post, I’ve been keeping tabs on what people are doing on it.

And it isn’t pretty.  Videos seem to be increasing with people using hashtags like “#work” or “#worksucks” daily.  They are also using hashtags like “#fml”; if you’re not familiar with the shorthand, the Urban Dictionary has the details.  Hint: It doesn’t mean Fix My Lighthouse anymore.

The Wall Street Journal Law Blog wrote about it in a post today (welcome WSJ readers!). 

But I remain amazed at the lack of discretion some employees have. Take this employee who smokes weed IN HIS COMPANY UNIFORM (Vine app required).  Insert your “hashtag” joke here.  (Actually, search for “#tokedaily” or “#wakeandbake” on Vine – you’ll be shocked.)

Or this employee who posts from a popular fast-food restaurant using the hashtags “#hatework” and “#bored”.

Or this employee who seems to work at a popular clothing store and used the hashtag “#hatework”…along with the name of her employer. 

A firewall isn’t going to stop employees from doing this anymore. Instead, some policies and guidelines, and some training is your first line of defense.  

Those who are also quick to attack Vine (much like people derided Facebook) are shooting the messenger. Employees will use whatever seems easy to them; Vine is just the latest example.  It’s up to employers to provide the guidance to employees about what is appropriate. 

Until then, Vine will remain the newest front-line in the ever-increasing use of smartphones in the workplace.

Shortly after passage of the Paid Sick Leave law a few years ago, it became apparent that there were several quirks in the law that would make enforcement and compliance challenging in some places. I highlighted a few issues in a post back then.

Well, the General Assembly has been working on a bill to “fix” these issues.  Senate Bill 1007 passed the chamber last week and focuses on several issues that needed clarification or revision.

Both the CBIA and the Office of Legislative Research have neatly summarized the bill here and here, but there are a few points worth highlighting because passage is expected before the end of the session.

• The biggest change is that employers would be allowed the administer PSL using the same calendar method as they use for other benefits (like FMLA) instead of a using a January-December model.
• The current PSL law uses a quarterly model to determine if an employer has reached the 50 or more employee threshold.  The bill would change that.   Under the bill, employers would annually determine if they meet the threshold based on their payroll for the week of October 1, which is consistent with other existing laws.
• The bill also modifies the law to make it clear that, as the CBIA says, “employees cannot use ‘intermittent’ periods of paid sick leave that would result in disrupting work shifts. (For example, preventing an ambulance driver from taking paid sick leave midway through a shift when her or she may be needed at an emergency.)”  Again, this change isn’t controversial and gives employers a bit of flexibility in dealing with PSL issues.

If you’ve been having trouble with PSL or even if you haven’t, these are notable changes to the law that will impact all eligible employers. Take a look at the complete list of revisions and contact your local counsel with any questions you have about the bill.

If passed, the changes would become effective January 1, 2014.

Yesterday, I had the distinct pleasure of delivering the keynote address at Adnet Technologies’ Worksmart 2013. My thanks to Adnet (Christopher, Ed, Amanda, and Faith in particular) and the hundreds who attended.  We were able to sprinkle in a few Star Trek references in light of the new movie out. 

One of the issues that I talked about in the presentation and, indeed, afterwards with conference attendees, was the question of ownership of work-related social media accounts. I talked a bit about the PhoneDog/Noah Kravitz case that has been used as an example of what can happen with such accounts. 

This is something I covered more in depth in a post last year as well. 

Lisa Stam, of the Employment and Human Rights in Canada blog, sets up the issue pretty well for both U.S. and Canadian companies in a post yesterday. 

A Gen-Y employee would find it rather unseemly that their relationships with their colleagues, friends, and general network is somehow owned by one’s employer. None of us expect to stay with the employer for 30 years anymore. Compiling, developing and working hard to nurture our network of relationships is a critical tool of business that we need to take with us.

Conversely, employers have a good reason to assert a proprietary interest over its customer list.

What to do as a result? There is no one-size-fits-all solution, but for some companies, getting the employee to sign an acknowledgement of ownership or to provide the username and password for a work-related account, can go a long way to avoiding disputes if and when that employee leaves.

As I said in yesterday’s talk, inevitably, there will be that one or two employees who can cause massive headaches in the absence of a documented relationship. 

It’s unfortunate that employers need to create a policy that is really targeted at just a few employees. But as the documented cases demonstrate, the absence of something in writing will only hurt businesses in the long run.

Law firms can help in that process but such documentation need not be several pages long and full of legalese. What’s more important is to get it done. As I noted in my presentation, an “old” Klingon proverb says:

Act, and you shall have dinner; wait, and you shall be dinner.

Don’t be dinner.

Whenever someone tells you that a proposed bill “clarifies” something or “simplifies” existing law, you should view such talk with a dose of healthy skepticism.

Indeed, viewing the written testimony of CHRO Executive Director Robert Brothers in support of Senate Bill 1164, you could be left with the impression that the changes being proposed to the state’s anti-discrimination laws were nothing more than technical in nature. 

But a more detailed review of the proposed bill reveals significant changes to how the state processes anti-discrimination complaints and what the scope is of such laws.   It would seemingly add emotional distress damages, for example, to the relief available at a public hearing for the first time. 

To be fair, some of the changes really are technical in nature, such as to make the statute more gender neutral. The problem is that such innocuous changes are lumped together with the significant ones.

The Office of Legislative Research’s summary of the bill is far more complete than the CHRO testimony and highlights some of the substantive changes, but even that office’s summary misses some troubling changes. 

Here are three (among many) notable items from the bill worth a review, illustrating why this rushed bill is a bad idea at this time. 

Changes to “Mental Disability” – The bill expands the definition of a “mental disability” to not only “mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’, but also to including having “a record of or regarding a person as having one or more such disorders”.  

Put aside, for the moment whether including everything in the new DSM5 is worthwhile, the new bill would cover “regarded as” claims for mental disabilities for the first time.  The references to a “past history” of mental disability in existing law being removed by this bill are less significant because a “record” of disability would now be covered. 

More problematic is that the definition is inconsistent with how a “physical” disability is treated; where is the reference to being “regarded” as having a physical disability? 

Rather than continue to treat mental and physical disabilities as distinct from each other, the legislature should take its cues from the ADA and match its definitions accordingly. Otherwise, we’ll continue to have three different standards to analyze disability claims — one for ADA claims, and two for state disability-related claims. 

Addition of “Emotional Distress” Damages — The CHRO has long sought the recovery of emotional distress damages (a subject I’ve covered here) at the public hearing stage, but it has been routinely been rejected by the courts. The CHRO has argued that the statute allowed for damages to make the Complainant whole. 

The problem for the CHRO has been that such language wasn’t in the statute itself. With the addition of one small, seemingly innocuous clause, this bill would dramatically increase the types of damages available to a Complainant by now allowing a hearing officer to ”make the complainant whole” — the exact argument it has been making for years. 

Thus, with the passage of the bill, compensatory damages and all sorts of relief would be available — changing the hearings at the CHRO.  One can only imagine the other types of “make whole” relief that could be issued at the public hearing. 

Mr. Brothers’ testimony suggests that this section is “consistent with court cases requiring action to make complainant whole.”  The problem is that the court cases have consistently ruled against the CHRO’s position. There are no major cases that suggest that emotional distress damages are available.  This bill would change that. 

Not content with that change, the bill would try to formalize the other argument the CHRO has raised — namely that it has the power to enforce federal laws on anti-discrimination.  That is significant because it would allow the CHRO to include damages that had never before been allowed.  The result would be the same as before: the introduction of additional damages at a public hearing stage. 

“Future” Discrimination?  Another provision worth mentioning is in Section 2 (line 191) of the bill.  Under this new provision,  employees who have not yet been discriminated against, but who believe discrimination is “about to occur”, could still file a discrimination complaint. 

Of course, the obvious question is “for what?”  The law only covers actual discrimination, not possible discrimination. But would this language change things? Could you now file a claim for “future” discrimination? When does the statute of limitations begin to run on discrimination that is “about to occur”?

What’s The Takeaway? These are but just three examples of how a seemingly “technical” bill is being used to make significant changes to the state’s discrimination laws with barely any public hearings or review. 

 This is not something that should be rushed through; there is no “crisis” that needs to be addressed.

The General Assembly would be wise to circulate these changes among all the constituency groups and save the wholesale changes for 2014.

UPDATED 5/14/13 3p

With just a few weeks left in what has turned out to be a very unpredictable legislative session in Connecticut, there are still several bills up for consideration that employers need to be on the look out for. (I’ve touched on some others earlier this month here and here.)

Employer Access to “Personal On-Line Accounts”

One bill would prohibit employers from asking for account information from employees or applicants for any “personal on-line accounts”. 

This is quite broad and includes e-mail, social media, and retail-based (think: Amazon) accounts.

As I’ve noted before, this is a bill in search of a problem. But beyond that, this draft bill does a lot more damage than that.  (For a better background on the subject, see this briefing paper.)

It fails to address various questions:

• If an employee accesses personal accounts from a company-issued device or computer, does the employer have any rights to that information?
• Where is the exception for employers who seek such information as part of a workplace harassment/violence investigation?
• How do you reconcile this bill with Connecticut’s Electronic Monitoring laws?

There are several amendments up for consideration too, but hopefully the legislation will approach this slowly, rather than jumping in with legislation that isn’t really needed in the first place.

Study for “Paid FMLA”

Two years ago, the legislature passed the first of its kind Paid Sick Leave.  Now, a new bill currently under strong consideration would study whether some type of Paid FMLA Leave should be next. 

To be sure, House Bill 6553 would merely create a study that would look at the ”feasibility of establishing an insurance program to provide short-term benefits to workers who are unable to work due to (1) pregnancy or the birth of a child, (2) a non-work-related illness or injury, or (3) the need to care for a seriously ill child, spouse or parent.”

A more thorough discussion of the bill was done on a “Coffee with Cathy” video, produced by State Senator Cathy Oster.  And there’s lots of useful testimony on the subject, including this prepared statement by PCSW Executive Director Teresa Younger

The concern, of course, is not with the study itself. New Jersey and California have some type of FMLA-insurance programs so Connecticut would be just the third state to implement it.  And the idea of a short-term-disability-like insurance program may have some utility.

But the burning question is whether this study will lead to another employer mandate or a request that employers shoulder some or all of the cost of insuring all types of FMLA leave.  After all, many employers now provide for short-term disability but pay for it themselves. Will FMLA leave insurance paid for by the employer be far behind?

The CBIA, as you would expect, is calling into question this bill:

Surprisingly, it’s not a “should-we-do-this?” study but a “how-to” mission. That’s a decidedly wrong focus in a state struggling with high unemployment and low job creation.

Worse, the bill calls for only two positions within the 23-member task force to be directly staffed by representatives from Connecticut’s business community.

Update: After this post went live, the Connecticut House of Representative approved of the measure.  It will now go on to the Senate.

What will the next few weeks bring? We will soon find out.

“Is social media a good thing?”

That question is typically on the minds of people who don’t use it for personal or business reasons. 

But I would argue that is the wrong question to be asking.   After all, are we still wondering if e-mail is a good thing? Of course not. We take the good with the bad, and even the “reply all”. 

Social media is quickly maturing into a “must” technology for businesses to understand.  Yes, it is important to understand the ROI for social media and, different businesses will use it in different ways.  But if you’re not utilizing the technology, you can bet your competitors will.  Is that a risk your company can afford to take? 

On Thursday, April 16th, I’ll be talking about social media and the legal issues associated with it in more detail at a keynote presentation for the Worksmart 2013 conference, produced by Adnet Technologies, Inc.    Several hundred participants are expected.  If you haven’t already signed up, there’s still time to do so. The best part is that it is free. 

As I was preparing for the presentation, I came across an good article from the SHRM Foundation Executive Briefing on “Issues and Strategic Questions” to think about with social media in the workplace. If you’re thinking about the topic, it’s a good place to get started. 

And if you prefer your education on social media to be done with videos, the Ohio Employer’s Law Blog has links to a few here. 

Otherwise, I hope to see you all on Thursday at Worksmart 2013.  You can follow along on Twitter using the hashtag #worksmart. 

My sincere thanks to Adnet Technologies, Inc. for the invitation.

A while back, the NLRB proposed that all employers would need to put up posters detailing employee rights to form a union.  If employers did not, then the employers could be subjected to an unfair labor practice charge — a serious charge.

Implementation of that rule was delayed pending court challenges.

This morning, the DC Court of Appeals issued a broad ruling striking down the poster rule.  You can download the decision here.  The decision will effectively apply to Connecticut employers because of the jurisdiction the DC court has over many NLRB matters.

If you’re interested in the analysis behind the decision — which includes a notable discussion about how the posters would violate First Amendment free speech principles — than I commend the decision to you.

But for employers, the takeaway is a simple one: For now, you don’t need to worry about those NLRB posters after all.

The busy season for the Connecticut General Assembly is continuing with the final push for bills now underway.

Another bill that has been sneaking below the radar is House Bill 6658.  The bill, entitled “Employer Use of Noncompete Agreements”, has passed the Judiciary Committee, again without being referred to the Labor & Public Employee committee.  It is now pending before the House.

The bill would apply to all employers in the state and, for the first time, attempt to regulate all restrictive covenants or non-compete agreements through a law. (Previously only broadcast employees and security guards were covered by such restrictions.)  Only agreements created after October 1, 2013 would be covered.  Currently, the rules regarding such agreements have been developed through caselaw. 

The bill allows an employer to use such an agreement “if (1) the agreement or covenant is reasonable as to its duration, geographical area, and the type of employment or line of business, and (2) prior to entering into the agreement or covenant, the employer provides the employee a reasonable period of time, of not less than ten business days, to seek legal advice relating to the terms of the agreement or covenant.”

It’s the second part of the bill that should concern employers because it goes far beyond current caselaw.  It would create a new cause of action (or way an employee can bring a lawsuit) for employers that violate the law and allow for the recovery of damages and attorneys fees.   

Any person who is aggrieved by a violation of this section may bring a civil action in the Superior Court to recover damages, together with court costs and reasonable attorney’s fees. To the extent any such agreement or covenant is found to be unreasonable in any respect, a court may limit the agreement or covenant to render it reasonable in light of the circumstances in which it was entered into and specifically enforce the agreement or covenant as limited.

The implications of this are enormous.   Theoretically, all employees who sign such an agreement could decide to file a lawsuit or threaten to file a lawsuit on any agreement. If they are successful in any way, they could be entitled to damages and then tens of thousands in attorneys fees.   Even if the employee won only a partial success in their case, the language of the bill allows for the employee to recover a disproportionate amount of money.  Such a statute would encourage litigation.

As a practical matter then, employers would be at great risk for trying to enforce any restrictive covenant.   Contracts would be very difficult to enforce and employees would use that leverage not only to avoid such contracts but also to gain some type of settlement amount.

Another issue with the proposed bill is that it is not entirely consistent with the caselaw.  Cases use a variety of factors to evaluate the reasonableness of a restrictive covenant including: (1) the length of time the restriction operates, (2) the geographical area covered, (3) the fairness of the protection afforded the employer, (4) the extent of the restraint on the employee’s opportunity to pursue his occupation, and (5) the extent of interference with the public interest.  

 The proposed bill seemingly simplifies the analysis but it is unclear how courts would interpret the reasonableness requirement. Is the same as existing law? Or does it mean something different?

The CBIA has also flagged other issues with the statute. Employees could have a cause of action merely if the employer did not give a ten-day waiting period.  And the definition of an employee is so broad that it may even cover independent contractors.

Restrictive covenants are a complicated area. While having some legislatively-created rules in the area may be beneficial in the long run, no one has identified why there is a pressing need to rush this bill through now. 

We should learn from other states’ experience that this is a complicated issue.  Georgia, for example, passed a similar bill that created more questions than it answered.  The General Assembly would be best served by evaluating the merits of this type of legislation for a few months and figure out the best way to address any issues it sees — not rush a bill through without a proper vetting of the legal issues.

Since the publication of my post last week on House Bill 6667 on free speech in the workplace, there’s been a lot of followup press coverage.  Two that I would highlight include this Patch.com article, and this blog post by Mara Lee at the Hartford Courant. 

The CBIA also highlighted the post on its website as well. 

Today, a new substitute of the bill was released that erased any pretense about the stealth nature of the bill.  It deleted all of the first 16 sections of the bill, and merely left the last section on employee free speech.   The report from the Office of Legislative Research is being compiled now and should be released any day now. 

Last week I discussed a lot of issues with the bill, but today’s post focuses on three in particular.

1.  First, the new substitute would do something remarkable.  It would amend Conn. Gen. Stat. Sec. 31-51q to delete public employers from its scope.  In other words, if passed, it would apply the free speech protections merely to employees of private-sector companies. 

Of course, for public employees, that distinction won’t matter as much because public employees would still have First Amendment protection.

But its a strange thing to happen nonetheless because it was only through a judicial decision, Cotto v. United Technologies Corp. in 1999, that 31-51q was applied to private sector employees. 

By eliminating this distinction, the law (if passed) would put a concern outlined by Justice Zarella in his recent concurrence into the spotlight again — namely that it would place the “employee’s statutorily created free speech right in potential conflict with the employer’s constitutional free speech right”. 

In other words, the employer’s right to free speech is protected by the Constitution while the employee’s right is statutorily created.  The proposed law says that the employer will not have a “defense” to a claim to say that the employee’s speech was job related.

But if the employer’s right to free speech is protected by the Constitution, there are then serious questions about whether this bill – even if it were a good idea — would withstand Constitutional muster.  After all, a statute cannot overturn the Constitution. 

As the Connecticut Supreme Court concluded, limiting the protection of speech in the workplace to non-work related speech, “keeps courts from the constitutionally untenable task of, in essence, having to choose sides in a work-related viewpoint dispute between two private actors.”

The proposed bill would create a conflict of exactly the type that the unanimous court worked so hard to prevent and create constitutional issues, the likes of which we haven’t seen in a long time. 

2. This goes, of course, to the second issue with the bill.  A careful reading of the Court’s decision in Schumann — for which this bill is in response to — shows that the court did not create a “defense” for employers to use in free speech cases.  Rather, it held that job related speech was not protected speech in the first place. 

What would the language in the bill then do? That’s a good question that — putting the Constititonal issues aside – would also be the subject of years of litigation.  

Perhaps that’s the point.

3. Another issue with the bill is the strange result it is trying to achieve.   In my brief research, I could find no court decision or state statute that would give private-sector employees more free speech protection than their public-sector counterparts. 

Testimony from groups like the Connecticut Employment Lawyers Association and the Connecticut Trial Lawyers Association, suggested that the bill merely ensures that whistleblowers at private companies would have enough protection.

But the Schumann case was quite clear that the whistleblower protections under Conn. Gen. Stat. 31-51m are unaffected by the decision. 

As the court stated in footnote 21, “[O]ur opinion in this case does not affect the whistle-blower protections afforded statutorily by General Statutes § 31-51m, which are not at issue in this case.”

Indeed, the language would directly contradict decades of well-established precedent in courts that have held that their role is ”to prevent unlawful [employment] practices, not to act as a `super personnel department’ that second guesses employers’ business judgments.”

Creating free speech protections for job-related speech by private employees would inevitably force the courts to second-guess employers’ business judgments — something that just doesn’t happen in employment law.

Once again, the bill is a solution in search of a problem and should be rejected by the legislature.

Employers: If there is one proposed bill at the Connecticut General Assembly to be concerned about this year, it is the stealth House Bill 6667.  It could have the single biggest impact on employer/employee relations in a generation.  

And that’s just for starters.

If you look at the bill on the legislative website, it looks innocuous enough.  It didn’t go through the normal channels, like the Labor & Public Employee committee, and thus has been off most people’s radar screens.  There hasn’t even been an analysis done by the Office of Legislative Research.   Most of the bill actually discusses something entirely different. 

That’s a ploy. 

Buried in the very last section in the very last sentence is the proverbial trojan horse, one that would change the workplace in significant ways. This section would overturn a vital Connecticut Supreme Court case (indeed, one that I was on the winning side of) that said that employee speech that relates to the job is not protected as “free speech” under the Connecticut or U.S. Constitution.   Notably, it would also overturn U.S. Supreme Court precedent in Connecticut as well. 

It is crucial for employers to call their legislators immediately to make sure this bill does not pass.  Time is of the essence.  If you need to look up your legislator, you can find all the contact information on the CBIA website here. 

So why the uproar?

Last year, the Connecticut Supreme Court decided Schumann v. Dianon. I represented the employer in that case and reported on it on the blog in a detailed post.  That case was important because it applied well-established Connecticut and federal law that said that employee speech that relates to his or her job duties was not protected. 

Imagine if an shoe salesman told customers not to buy shoes because he thought the company does not pay its overseas workers sufficient wages.  Should that “free speech” prevent the employer from taking action? What about a cook at a fast-food restaurant who refused to serve hamburgers because he thought such food contributed to obesity? What then?

These issues were posed to the court; it sided with the employer.

“The defendant contends that precluding the application of Garcetti to private employers in an action brought pursuant to § 31-51q would render the statute “an absurdity” as applied to the health care industry because “[v]irtually every workplace dispute involving a health care worker would become a free speech case . . . with every employee serving as a roving ombudsman free to overrule her employer,” thus creating a “lose/lose situation, no matter what the company does [wherein] someone will be unhappy with the result and could claim a free speech right to refuse to accept the employer’s decision.”

The court found that all employers need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of services.

As we argued to the Connecticut Supreme Court — and its equally applicable now — the proposed bill seeks to constitutionalize common workplace grievances and provide a level of protection never before seen in the private workplace.   It would allow employees to stand in the way of change because his or her views failed to win out.   Moreover, it would insulate from discipline employees who complain about — and eventually refuse to do — their job. 

The Connecticut Supreme Court found that it would be terrible public policy to do so in a 7-0 unanimous decision. There is no good reason to overturn that judgment here. The proponents seem to recognize this which is why the bill is taking an unusual path and why the provision is buried deep in an unrelated bill. 

Notably, the existing rule does not impair a whistleblower ‘s rights at all. Why? That is protected by a separate state statute that was unaffected by the Court’s ruling.  Any suggestion to the contrary is a ploy for votes and should be rejected outright.

Left unaddressed by the bill is another important question: What about the employer’s free speech rights? Suppose that it has three doctors on staff who disagree about a new medicine that could cure cancer. Two doctors say the benefits outweigh the risks, but one disagrees and refuses to work on that medicine. The employer decides to go with the majority. Can the employee file a lawsuit?

Why are the free speech rights of one doctor more important than the other two? And who’s to say that individual doctor is right?  Will every workplace dispute then need to be litigated?

The CBIA has been lobbying for opposition to this bill.  Employers should join the CBIA’s efforts to defeat this stealth bill.