Connecticut Employment Law Blog

Do You Really Want To Take on the 350 Million Pound Gorilla in the Room?

Daniel Schwartz — Wed, 03 Feb 2010 12:50:49 -0500

So, you're an employer and you've just been sued for disability discrimination. Allegedly, you fired an employee who was out of work without a legitimate reason. You had heard grumblings that the worker had actually taken a four-day weekend in Vail but never had definitive proof, so you just relied on the no-call/no-show policy to say the employee abandoned his job.

But what now? You think "I know where I'll look -- Facebook! (After all, Facebook has 350 million users now!)" Surely, you think, there must be pictures, or a wall post, or a status update, or SOMETHING that can prove that the employee was really just having fun.

You write a nice letter to Facebook first asking for information about the individual. No response.

You then ask opposing counsel for copies of the Facebook page, but they refuse citing relevancy and privacy considerations.

So, you say, we're going to subpoena Facebook. Problem solved.

Not so fast. You're likely to get a response from Facebook that can be summarized with three simple words: Stored Communications Act. And you're not likely to get the information you want as a result. Facebook takes the position that the content of users on their site is protected by this law.

Is it right? That's still unclear, but what is clear is that Facebook is willing to fight about its response if forced. So spoke Facebook Deputy General Counsel Mark "Howie" Howitson in an entertaining keynote speech at yesterday's Legal Tech conference. (A full recap is here.)

So how to avoid this fight while still getting the information you desire?

Review your own computer systems. Very likely, you've told employees that you monitor their computers and that the computers remain the property of the company. If so, there may be e-mails that you can track down in the system that might contain that information that do not violate the SCA.
Some employees might carry company smart phones to access Facebook. Howitson said it was unclear if that type of usage was covered under the SCA.
And finally, you can always access this information if you get the person's "lawful consent". But what happens if the court "orders" the former employee to "consent" to the release of information? That's a gray area as well.

What's the takeaway for employers? Before you want to go peeking behind Facebook's privacy curtain, understand the rules that apply and be prepared for a fight. And learn about the Stored Communications Act.

Social Media Policies and Practices Developing as Companies Begin to Embrace It

Daniel Schwartz — Mon, 01 Feb 2010 22:15:38 -0500

Among the interesting programs at the Legal Tech 2010 conference in New York this week, was panel discussion tackling social media at companies. Three attorneys with significant in-house experience (American Express, Lincoln Center, Kraft), all took turns describing how social media is here to stay -- and how companies can take advantage of it.

First off, the moderator noted that people are likely talking about your company; but if you're not on social media, you may not realize it until it has spread like wildfire. Example #1: "United Breaks Guitars" a viral video that has sparked sequels, copycats, and lots of publicity. The video, in case you missed it, is as follows:

The first speaker, Lesley Rosenthal (Lincoln Center) emphasized that while most companies view social media through the prism of labor & employment issues, there are many other issues that are implicated. Among them: Copyright, Trademark, Consumer Protection, Lobbying Laws, Raffles and Privacy. That's not to minimize employment law issues; there are plenty of things to consider there as well: trade secrets, confidentiality, harassment, discrimination, job listings/OFCCP, background checks, and state laws that protect leisure-time activities.

Another speaker (Ted Banks, who recently left Kraft after 32 years) described how a total ban on social media for employees only leads to resentment and invites violations. He suggested that companies have an opportunity to engage employees who are creative; taking advantage of that can work within a corporate framework.

How? But making sure that the use of social media is consistent with the values of a company. Training personnel as to proper use is crucial to its success. (After all, when e-mail was introduced, we trained employees on how to use it; for social media, there should be something similar). Limits can be set but just saying no doesn't work.

The final speaker, Mark Bisard, a cyberlawyer from AmEx spoke passionately that he viewed social media as something that companies can no longer avoid. Companies can influence the discussion (and realize that they will lose total control over their message) but that if companies fail to do so, they will lose their influence altogether. He suggested that employee productivity and efficiency can still be measured. And for those concerned about measurable statistics, he suggested using the "Net Promoter" site.

He closed with this view: Your company's new home page is Twitter, Facebook and YouTube. You better embrace it because your customers are there (and your competition).

While a lot of what they said wasn't particularly new, the fact that the message is no longer coming from attorneys, but from the clients themselves, is an indication that social media is no longer on the fringe.

Developing a social media policy and practice should be part of many companies' overall strategy for 2010.

(To follow all the developments at Legal Tech, you can search on Twitter for the hashtag #ltny.)

Enforcing Restrictive Covenants - What Employers Need to Know

Daniel Schwartz — Fri, 29 Jan 2010 14:52:25 -0500

There were signs this morning that the economy is starting to pick up again. If that continues to happen, there is no doubt that we'll start to see many more employees changing jobs to take advantage of new opportunities.

But as that happens, some of those employees' employers will be left scratching their head and asking: How can I protect my clients, customers and confidential data from walking out the door?

What's one possible solution? Restrictive Covenants are typically contract provisions that restrict an employee from competing with your business, soliciting clients or employees, or using trade secrets in their new business. They take many shapes and sizes but overall, courts will give them serious consideration if they are reasonable in time and scope.

Our monthly webinar series returns in February (after a holiday absence) to discuss this very issue and how employers can draft restrictive covenants that will hold up in court. My fellow partners, Jon Orleans and Rick Robinson have agreed to spearhead this production and should be both educational and entertaining.

It will be held on February 10, 2010 at 12 noon EST. Sign up through this link (and, as always, it's free).

The monthly webinars will continue on the second Wednesday of each month at noon. If you have any suggestions on topics that you'd like to hear, please feel free to drop me a line.

New CHRO Agency Head: Changes are Coming

Daniel Schwartz — Fri, 29 Jan 2010 09:42:11 -0500

The Connecticut Law Tribune snagged an in-depth interview with new CHRO Executive Director Robert Brothers this week.

in it, Brothers shares his views that the CHRO has made missteps in the past and that he is going to try to turn that around. Among the changes that he is considering are an revamp of the agency's website and perhaps a shift to e-filing (greatly reducing the amount of paper generated). He also indicated that he is looking for a way to expedite complaints because he believes that the system is taking too long.

Another notable part of the interview focused on the limits to what the CHRO could do:

I think one of the greatest misconceptions of what the commission is, is how much a person can achieve by way of remedies, by way of damages. The commission is limited by statute in what we can recover for damages in employment discrimination cases. In housing cases, you can recover attorney fees. In employment cases, you can’t.

Emotional damages is another area [where CHRO is different from the courts]. It makes it extremely difficult for attorneys who want to pursue [an emotional damages] claim with the commission.

I'm a bit surprised by his last statement regarding emotional distress damages. As I have discussed in an earlier post, the CHRO in recent years has actually seemed more willing to try to find a way to award emotional distress damages despite language from the Connecticut Supreme Court to the contrary.

Does this signal a policy shift at the CHRO? Probably not. But its at least refreshing to hear from an Executive Director who understands the legal issues involved and isn't afraid to try to discuss them publicly.

If the CHRO is serious about changing its image, here's one unsolicited suggestion: Have a open-house session with members of the bar to have a frank discussion of legal issues like this one (much like the NLRB has done this week). I'm certain that such a suggestion would be met with enthusiasm from attorneys who practice in the area.

Breakfast with NLRB Regional Director - (Part 3) - What Issues Should Employers Be On the Lookout For?

Daniel Schwartz — Thu, 28 Jan 2010 11:05:09 -0500

In posts earlier this week, I've discussed what the NLRB's Connecticut Office is doing and what to expect for 2010.

But as I continue to recap the breakfast I attended earlier in the week with NLRB (Region 34) Regional Director Jonathan Kreisberg, of particular importance to employers was the discussion about what issues the NLRB may see reoccur from time to time. The NLRB recapped some of these in its January 2010 newsletter and its worth a read through (page 4).

Here are some highlights from our discussion:

Kreisberg indicated that employer rules that have broad confidentiality provisions prohibiting employees from discussing wages, benefits and working conditions with co-workers are likely to be struck down. While protecting "trade secrets" is a legitimate concern, he indicated that many employer rules -- in his view -- go too far.
He also said that rules that prohibit employees from discussing non-confidential matters with the media are likely overbroad, though rules that restrict an employee from talking with the media as the company's "spokesman" may be more palatable. For more information, he pointed to a relatively new NLRB case which discusses this in more detail: Trump Marina Assocs., 354 NLRB 123 (2009).
Kreisberg also noted that anti-solicitation rules may be properly drafted so long as the rule does not prohibit employees from distributing written materials during non-working time in non-working areas. Kreisberg said however that employers often run into difficulties in the selective application of the rule. (And in this time of Girl Scout cookies, it's a good reminder.)
He did note that employers can prohibit the use of employer's e-mail system for union solicitation but he again cautioned that selective enforcement of the rules could lead to issues with the NLRB down the road.
We also discussed "anti-harassment" policies. For the most part, if such policies are in the context of discrimination/hostile work environment discussions, he did not see much of an issue with it. But he indicated that the NLRB will look to see if the application of the rule is showing an anti-union bias. He also reminded everyone that during elections, the NLRB seems to allow behavior (particularly from union personnel) that might not otherwise be tolerated if in the context of daily working activities.
Lastly, Kreisberg indicated that the NLRB had produced a video designed to inform the public about the role of the Agency in conducting elections. It is also available on DVD upon request to employers and others. (And he noted that if an employer uses this video during an election, it would pass muster as an neutral educational video.)

So what's the bottom line for employers?

Review your confidentiality, anti-solicitation and anti-harassment policies to ensure that they will pass muster under scrutiny.
Perhaps more importantly, educate staff about the appropriate application of the policy to union activities.
And finally, even if you do NOT yet have a union at the workplace, these rules (such as blanket prohibitions on employees' discussions of wages) may still apply, so if you're concerned, be sure to seek appropriate legal counsel.

Second Circuit Clarifies First Amendment's Protections of Employee Speech: When Is Speech "Pursuant To" Employee's Duties

Daniel Schwartz — Wed, 27 Jan 2010 15:20:08 -0500

In a case with wide-ranging implications for First Amendment cases in Connecticut (and New York), the Second Circuit today held that a school teacher's union grievances were not protected speech.

The case, Weintraub v. Board of Education of New York (download here) covers a lot of ground, but it chimes in on an issue the federal courts have had to grapple with: how do you determine whether an issue raised by employees is "pursuant to" the employee's duties. (If it is "pursuant to" such duties, the Supreme Court has held that it is not protected by the First Amendment.

In the case released today, the Second Circuit discussed what "pursuant to" means. It took the path advocated by the employer (and followed by other Circuits) that:

speech can be “pursuant to” a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer. In particular, we conclude that Weintraub’s grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” as a public school teacher -- namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.

The Court also addressed the manner in which the speech was made. Of particular interest to the Court was the path chosen by the employee to publicize his issues -- an internal one. Had the employee chosen a path available by other "citizens", the Court said it might be protected. But where the speech was made to a purely internal source, it too was not protected.

The lodging of a union grievance is not a form or channel of discourse available to non-employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general. Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication made pursuant to an existing dispute-resolution policy established by his employer, the Board of Education.

The case had been pending for over 14 months at the Second Circuit; its release today will no doubt send reverberations to all sorts of First Amendment cases now pending in the Connecticut courts.

Breakfast with NLRB Regional Director - (Part 2) - What To Expect in 2010

Daniel Schwartz — Wed, 27 Jan 2010 08:21:27 -0500

As I indicated in my post yesterday, the bar-related breakfast with NLRB Region 34 office was a big success.

In the presentation and discussion, Regional Director Jonathan Kreisberg made a few predictions and observations about what 2010 would bring.

Kreisberg noted that the NLRB was going to be using press releases to a far greater extent than ever before. (He could not recall more than 10 instances in the last 30 years when press releases were issued by the Connecticut office). He said that the NLRB's hiring of two new media personnel in late 2009 would make it much easier to do so. As a result, he expected more publicity for notable complaints, settlements and findings.
Related to that, he indicated that the NLRB already had up an active Twitter feed @NLRB) which would only be used even more frequently in 2010.
Kreisberg noted that he hoped that the 3 vacancies at the Board level would be filled soon. While two of the nominees were uncontroversial, the re-appointment of Craig Becker has stalled things. Because there is a desire to approve all 3 nominees at the same time, the Board is still only operating with 2 out of 5 possible members.
In discussing the Employee Free Choice Act, there remains a great deal of uncertainty whether it will be brought to the floor of Congress for a vote in 2010. If it does come up, among the provisions to keep an eye out for are a provision that would expand the injunctive authority of the NLRB and would speed up elections to seven days. As a result, of the latter provision, Kreisberg indicated that post-election challenges to ballots would become much more prevalent. (Although he didn't comment on it directly, it appears likely that card-check provision of EFCA is going nowhere.)
Kreisberg also indicated that there would likely be a new Field Attorney hired in 2010. This might allow for even more enforcement actions and speedier proceedings.

What does this mean for employers?

It means that if you're employer with a labor issue, you're likely to get more press and publicity than you may be used to. In addition, even if only a few provisions of EFCA get passed, it's likely to impact how cases are processed at the NLRB-level.

Whether or not you have a union at your workplace, now's the time to refresh yourself and your workers about your legal obligations. And if you do become entangled in an issue, have a labor counsel ready to go; you may not have a lot of time to respond when you get a notice.

Informal Breakfast with NLRB Regional Director - (Part I) What's Going On

Daniel Schwartz — Tue, 26 Jan 2010 13:45:00 -0500

The Connecticut Bar Association's Labor & Employment Section sponsored an informal breakfast with NLRB (Region 34) Regional Director Jonathan Kreisberg earlier today to talk about various issues in the labor arena. (Also in attendance were John Cotter, Deputy Regional Director and Terri Craig, Supervisory Attorney).

It was a terrific session with lots of substantive and useful information. In fact, there was so much substance out of it, that I'm going to break my recap up into various posts for the rest of the week.

Today, I'll focus on a few happenings around the Connecticut office and some region-specific information.

First, the Connecticut region released its "NLRB News", a newsletter chock full of notable items. You can download a copy here. It includes a very helpful professional staff roster with phone numbers and e-mail addresses.

Second, Kreisberg indicated electronic filing would be used more frequently in the region as the year progressed and that mandatory e-filing would occur later this year. For employers, that means both preservation of data, but also making sure that the information is readily accessible via computer.

Third, Kreisberg indicated that the office will be moving to the federal office building at 450 Main Street in Hartford in approximately May 2010. This move has been in the works for some time but it will give the office a needed upgrade.

Fourth, Kreisberg indicated that his office will also be hiring another field attorney in 2010 to be able to handle more cases and litigate them. Already in 2009, the budget situation for the office has improved, so much so that they did their first hire since 2001 -- a new field examiner named Andrew Starr.

Lastly, the Region has -- for some time -- referred up to 5 cases a month out to the Buffalo NLRB region for investigation because of a lack of resources in this region to handle the caseload. Kreisberg indicated that may come to an end with the hirings last year and this year.

Much of the information discussed at the issue was contained in the newsletter referenced above but in upcoming posts, I'll talk about some of the changes being discussed at a national level, as well as some of the trends that the NLRB has been seeing lately with regard to employer rules.

My thanks to the NLRB for its willingness to engage the bar association in this area and for providing useful information that will ultimately help both practitioners but their clients as well.

Connecticut Department of Labor Commissioner Patricia Mayfield Dies at 65

Daniel Schwartz — Tue, 26 Jan 2010 10:58:54 -0500

Department of Labor Commissioner Patricia Mayfield -- who had signaled that she was retiring as of February 1st -- died yesterday at her home in Waterbury of an undisclosed illness. In her place, Linda Agnew, of West Hartford, will serve as acting commissioner.

The Hartford Courant has a full report on her life and accomplishments here. And the Waterbury Republican-American does an admirable job providing some personal anecdotes about Ms. Mayfield as a person and leader.

Ms. Mayfield has had to manage the agency in difficult economic times. Yet despite the challenges, in recent years there has been a noticeable uptick in the amount of outreach that the DOL has done to the public and to businesses.

Indeed, as she noted in her website page, she touted the ability of the DOL to serve as a partner to the business community for "job-related consulting services, apprenticeship programs, recruiting services through the job bank and the One-Stop Centers, OSHA assistance, regulations, wage and workplace standards, rapid response to company downsizing or closure, shared work programs, and labor market information."

The DOL's ramped-up use of the shared work program --- while not new -- has been ramped up over the last 2 years in response to the desire from employers to minimize job losses and keep continuity in their business operations. That program has no doubt kept hundreds, if not thousands, of people from losing their jobs entirely.

Governor Rell's statement goes a long way to explaining what made Ms. Mayfield special:

Her distinguished career with the state of Connecticut stood as an outstanding example of dedicated public service and consummate professionalism...Pat Mayfield deeply cared for the people she served, and she made a difference in the lives of countless Connecticut citizens.

Well said.

More on True Cost of Litigation: Opponent's Attorneys Fees May Trump Damages

Daniel Schwartz — Mon, 25 Jan 2010 07:49:28 -0500

Last week, I talked about how the time spent litigating an employment discrimination case can be a big part of the cost of the defense of such a matter.

That "time" has another consequence as well: It increases the amount of attorneys' fees that an employee has to spend litigating a case.

As a result, a relatively small matter can get quite expensive to attempt to settle.

Case in point: Over the weekend, the Hartford Courant reported on the settlement between a Connecticut Department of Transportation employee and the state. The employee claimed that she had been discriminated against because of her gender and retaliated against as well. (You can download the amended complaint here.)

The terms of the settlement: 1) A Promotion; 2) Back pay in the amount of $16,000; and 3) Payment of her attorneys fees of $130,000. (Interestingly, although the Courant reported on it this weekend, the settlement was reported to the Court in August 2009 -- a fact left off of the report.)

And so, before your company goes down the path of litigating a matter against a current or former employee, take a hard look at the cost of such a matter. Even though the employee's damages may be relatively small, the nature of the matter as well as the court process, can make even a small matter get quite a bit larger.

Social Networking and Social Media Guidelines - Is It Time Your Company Developed Some?

Daniel Schwartz — Fri, 22 Jan 2010 07:35:42 -0500

Let's face it: There are still way too many people who think social media and social networking sites are a fad and time-waster.

I mean, how else do we explain the thousands of companies that have strict firewalls at their companies to prevent employees from using these sites.

(And if you think that because you have a firewall, your employees aren't accessing these sites, think again. With iPhones, Droids and other smart phones, employees can do it all anyways if they have one of these devices.)

When I tell people about one oft-repeated statistic, it always seems to perk up their ears: If Facebook were a country, it would be the fourth-largest country in the world.

Yes, Facebook has over 350 MILLION users. They can't all be teenagers and college kids.

That's not to say that companies ought to open the floodgates and let employees spend all their time playing Bejeweled Blitz or Mafia Wars. (If you don't know about them, consider yourself lucky.)

But I do think the time has come for companies to start thinking about these issues. Ultimately, many may want to implement policies and practices that can take advantage of all that these sites DO have to offer and providing employees with needed guidance about what they should and should not be doing with them at work.

LinkedIn, for example, has become a huge resource for companies for recruiting and hiring. And Twitter may be a great tool for customer service.

Yes, it may turn out that for some employees, there are very few practical uses of these sites in their day-to-day jobs. But that doesn't mean that employers shouldn't seriously look at these sites.

I've covered this extensively before, but two posts over the last week or so, are great guideposts that employers can use to benchmark where they are and where they'd like to go.

A Law.com article suggest that employers craft a policy that has "distinct goals that take into account the nature of the company and its workforce." It then provides a number of factors and issues for employers to consider. It echoes what I said at a presentation recently: There is no one size fits all policy; figure out what the business goals are of the company and align your policy to best meet those goals.
But even better, Doug Cornelius -- of the excellent Compliance Building blog -- has compiled a list of 132 Social Networking policies for employers to mix and match. It's a terrific resource and should give employers many ideas on how best to craft their policies or guidelines.

Employers have legitimate reasons to be concerned about employees using social media and social networking sites, particularly for non-work related issues. And there are legal risks associated with these sites are still being analyzed. But ignoring these sites in the hopes that your company will be immune from their spread, is repeating the same mistakes that companies made years ago when e-mail was introduced.

And we all know how that turned out.

The True Cost of Employment Litigation

Daniel Schwartz — Thu, 21 Jan 2010 20:57:33 -0500

Lately, the concept of how much a employment litigation costs has come up time and again -- whether in providing budgets to clients, or discussing settlement, or in the context of managing a case.

And the fact is that for employers, defending an employment matter in state or federal court has gotten very expensive. Whether its discovery, or motions, or even trials, there are tasks to perform and issues to track down.

But as I sat in a courtroom this afternoon with several other lawyers who were also there on cases (several of them employment-related) for a status conference, I was reminded once again by another cost of litigation: time.

Many of the cases started several years ago -- 2003, 2005, 2006, to name some. Each of them was getting ready towards a possible trial date.

But that date would only be yet another marker on the road to an eventual appeal -- in 2011, or 2012.

Think about that: in the time it takes kids to go through high school AND college, your company may be litigating a case.

Needless to say, that's a long, long time.

For employers, this amount of time presents a daunting challenge: supervisors and witnesses leave your company (or worse, are fired or even deceased); documents that seemed clear at the time, now have lost their context; and no one is quite happy.

Are there any solutions? Some. Arbitration clauses could force many of these matters to a quicker arbitration process. Mediating and trying to settle claims early on can avoid those future costs and if you're willing to pay a premium, you can avoid the lost time in the future.

But none of these are real solutions. The fact is that even the strongest employment litigation defense still costs money to execute. So litigation avoidance should continue to be on the minds of HR and in-house counsel whenever an issue comes up.

Yes, some matters need to be litigated. But others don't. Figuring out the difference can ultimately be the difference between a case that gets resolved quickly.

And a case that could last a decade.

CHRO Names Robert Brothers Jr. as New Permanent Executive Director

Daniel Schwartz — Tue, 19 Jan 2010 14:39:42 -0500

Robert Brothers Jr. can remove the "acting" from his job title.

Late last week, the Connecticut Commission on Human Rights and Opportunities (CHRO) appointed Robert J. Brothers, Jr. to a four year term as the permanent Executive Director. Brothers had been acting Executive Director for the last 18 months.

According to the Commission Chairman, "Attorney Brothers has provided tremendous leadership, energy and commitment as the Acting Executive Director for the past eighteen months." Norton continued, We are excited to be entering a new era in human rights advocacy in which the Commission will be an active, vibrant force."

In a press statement, Brothers stated that he looked forward to being part of a "revitalized CHRO".

Brothers has spent nearly the last 25 years with the CHRO. He began his career at CHRO in 1986 as an investigator. During that time he attended Western New England College School of Law at night completing his degree in 1993. He steadily rose through the ranks at the Commission as Investigator, Attorney, Acting Regional Director, and Managing Director and Commission Attorney prior to his appointment as Acting Executive Director.

The minutes from the meeting have yet to be released, but it seems that Brothers has won over the minor concerns that had been part of his appointment as acting Executive Director. Back in June 2008, one commissioner commented that she thought an outside person would be best; the Commission, however, seems to have concluded that Brothers was best for the job after all.

I expect we'll hear more in the coming days about the changes that Brothers plans to bring to the agency that has had a revolving door at the Executive Director level.

Progressive Discipline Policies: What They Are And Understanding Risks and Benefits to Them

Daniel Schwartz — Tue, 19 Jan 2010 00:11:08 -0500

"Progressive Discipline" is a policy or practice that, over the years, has fallen out of favor with some employers.

What is it? It's a practice -- found also in some collective bargaining agreements -- that typically provides a multi-step disciplinary process for many employment policy violations: a verbal warning, a written warning, a suspension, and finally termination.

Why has it fallen out of disfavor? Because for employers, it can be used to tie their hands. If an employer is not free to terminate the employee for a violation, it runs the risk of having a few serial offenders who do just enough not to get fired, but not enough to satisfy the employer.

Thus, some employers now draft disciplinary policies to state that the violations of policies and procedures of the company may lead to discipline "up to and including termination of employment."

A recent case out of the Second Circuit illustrates how one employer has gotten tied up in the legal system because of the perceived failure of the company to follow such a progressive discipline practice consistently.

In Berube v. Great Atlantic & Pacific Co. (decided in October 2009), the Second Circuit vacated judgment in favor of the employer and found that there was sufficient evidence that the employer applied a progressive discipline practice differently towards an older worker.

(Readers are cautioned that at the summary judgment stage, facts are to be seen in a light most favorable to an employee; a jury will now decide the actual merits of the case.)

In doing so, the Court took pains to note that the other individuals that were allegedly not fired (and who were younger than the employee) need not have the same supervisor or have engaged in the same activity. Rather, the actions must only be of "comparable seriousness" to be sufficient for use to establish a claim of age discrimination.

The case has now returned to the District of Connecticut where is apparently awaits a trial date. (If you'd like to read the original district court decision granting the employer's motion for summary judgment in February 2008, you can download it here.)

So what's the takeaway for employers? Consistency in discipline. And if there isn't consistency, there ought to be good documentation and support for the reasons for inconsistency. Moreover, if the employer has a handbook with policies regarding discipline, making sure those policies are actually followed in practice is another way to provide further support to any discipline handed out.

And while I'll leave it to others to debate the merits of a progressive discipline policy, an employer ought to make sure that if it has such a policy, it understands the consequences.

You Can Still Fire Poorly Performing Employees, Says Second Circuit

Daniel Schwartz — Mon, 18 Jan 2010 00:07:55 -0500

An oft-repeated and only sometimes rhetorical question of employers is: I have an employee that is not meeting performance expectations. I can still fire them, right?

A recent Second Circuit case strongly suggests the answer to that question: Yes.

In Chukwurah v. Stop & Shop Supermarkets (Nov. 25, 2009), an employee appealed a District of Connecticut decision that granted summary judgment to the employer on the grounds that the employee had not provided sufficient support for his claim that he had been fired because of his race.

The employee appealed claiming that the decision to fire him because of poor performance was a coverup for discrimination. The Second Circuit disagreed, and relied on the performance reviews to support its decision:

In the years prior to his termination, Chukwurah received consistently negative employment reviews. Those reviews characterized his performance as requiring improvement or less than competent. Although he asserts that some of the documents in his personnel file are of "dubious origin" and "recent fabrication[s]," Chukwurah himself signed most of the reviews that document his performance as being substandard. Moreover, he fails to identify any evidence that refutes defendants' characterization of his performance.

Besides providing support for the suggestion that yes, employers can still fire employees for poor performance, the case does have one other good takeaway for employers.

Having employees sign and acknowledge receipt of the performance review (even if the employee doesn't agree with it), can be a crucial piece to providing support for a termination decision. Without it here, the employer would have had to rebut charges that it made up the performance reviews.

New Model COBRA Notices Are Finally Released by United States Department of Labor

Daniel Schwartz — Thu, 14 Jan 2010 05:00:22 -0500

Several weeks after the passage of an extension of the COBRA subsidy provisions, the United States Department of Labor has finally released its model notices for employers to use.

All of them are available here.

There are three such forms, a General Notice form, a Premium Assistance Extension Notice, and an Updated Alternative Notice.

The Department of Labor describes the differences and the uses for each of them:

Plans subject to the Federal COBRA provisions must provide the updated General Notice to all qualified beneficiaries (not just covered employees) who experienced a qualifying event at any time from September 1, 2008 through February 28, 2010, regardless of the type of qualifying event, and who have not yet been provided an election notice. This model notice includes updated information on the premium reduction as well as information required in a COBRA election notice.

Note: Individuals who experienced a qualifying event (that was a termination of employment) in December 2009 but who were not eligible for COBRA coverage until January 2010 were likely not provided proper notice. These individuals should get the updated General Notice AND the full 60 days from the date the updated notice is provided to make a COBRA election.

Plan administrators must provide notice to certain individuals who have already been provided a COBRA election notice that did not include information regarding ARRA, as amended. This model Premium Assistance Extension Notice includes information about the changes made to the premium reduction provisions of ARRA by the 2010 DOD Act. Listed below are the affected individuals and the associated timing requirements.

-- Individuals who were "assistance eligible individuals" as of October 31, 2009 (unless they are in a transition period - see below), and individuals who experienced a termination of employment on or after October 31, 2009 and lost health coverage (unless they were already provided a timely, updated General Notice) must be provided notice of the changes made to the premium reduction provisions of ARRA by the 2010 DOD Act by February 17, 2010;
-- Individuals who are in a "transition period" must be provided this notice within 60 days of the first day of the transition period. An individual's "transition period" is the period that begins immediately after the end of the maximum number of months (generally nine) of premium reduction available under ARRA prior to its amendment. An individual is in a transition period only if the premium reduction provisions would continue to apply due to the extension from nine to 15 months and they otherwise remain eligible for the premium reduction.

Note: To some extent, the groups listed above overlap - creating a situation where an individual may be entitled to multiple notices. Providing the Premium Assistance Extension Notice by the earliest date required will satisfy the notice requirement(s).

Insurance issuers that provide group health insurance coverage must send the updated Alternative Notice to persons who became eligible for continuation coverage under a State law.

A lot to take in at once, but employers who have done a reduction in force recently or who have had former employees whose COBRA subsidy eligibility had expired should start preparing these notices as soon as possible.

Your EPLI Policy May Not Cover What You Think It Covers; Prior Claim for Unemployment Benefits Justifies Exclusion of Wrongful Discharge Claim

Daniel Schwartz — Thu, 14 Jan 2010 00:18:37 -0500

Employment Practices Liability Insurance (EPLI) is, at times, viewed by some employers as a way to control costs. (For a primer on EPLI, check out my prior posts here and here.) Why? Because employers believe that these policies will cover all of their wrongful discharge claims and the insurer will not read its policy narrowly to exclude such claims.

But after a case by the Connecticut Supreme Court that will be officially released next Tuesday, employers should understand that EPLI policies have real and identifiable limits and that not all claims will be covered. Indeed, understanding what is and is not covered should be at the forefront of employer's discussions with an insurance agent when discussing a policy. Moreover, employers ought to discuss prior claims with the insurer so as not to be surprised if they resurface.

Indeed, in National Waste Assoc. v. Travelers Casualty & Surety Co. (download here), the Court found that an insurer was not responsible for covering a new wrongful discharge lawsuit filed in the coverage period because there had already been unemployment benefits hearing regarding that same employee before the coverage period began. The court found that this prior claim for unemployment benefits was a prior "administrative" hearing and fell within one of the policies exclusions.

The basic facts of the case are straightforward:

Employer purchased EPLI for the period of 2/15/07 to 2/15/09 that included a "claims-made" provision (which provides liability coverage for any claim first made during the coverage period).
On 5/12/07, former employee filed wrongful discharge claim.
Insurer denied coverage relying on a standard provision in such agreement that precluded prior litigation:

This [l]iability [c]overage shall not apply to, and the [defendant] shall have no duty to defend or to pay, advance or reimburse [d]efense [e]xpenses for, any [c]laim . . . based upon, alleging, arising out of, or in any way relating to, directly or indirectly, any fact, circumstance, situation, transaction, event or [w]rongful [a]ct underlying or alleged in any prior or pending civil, criminal, administrative or regulatory proceeding, ... against any [i]nsured as of or prior to the applicable [p]rior and [p]ending [p]roceeding [d]ate set forth in [the policy declarations].

As it turns out, the former employee and the employer had been involved in a Department of Labor proceeding in 2005 regarding a claim for unemployment benefits by the individual.

The employer here argued that it did not believe that the prior unemployment proceeding should count as an administrative hearing. The Supreme Court disagreed saying that unemployment benefit hearings are squarely adminsitrative hearings. Case closed.

So, what's the takeaway for employers? If you do have EPLI, understand your policy limits. And if you're considering EPLI, understand that having a policy is not a panacea. And never presume that a claim will be covered just because the lawsuit occurs during the coverage period.

Insurance companies are like any other business; they look for ways to control costs. Thus, the fine print that you may otherwise glance over before signing the policy agreement? Read it; that fine print just may dictate whether you have coverage or not.

Supervisor's Dislike of Employees Not Proof of Retaliation or Discrimination

Daniel Schwartz — Wed, 13 Jan 2010 05:54:51 -0500

An employee who is passed over for promotion -- time and again -- may feel like the whole world is against them.

Even so, the fact that supervisors and coworkers may "dislike" a particular employee is not enough to prove that the employer retaliated against the employee for participation in a discrimination claim.

So says, the Second Circuit in a case last month arising out of Connecticut. In Lomotey v. Department of Transportation (Dec. 4, 2009), the Court affirmed summary judgment that had been granted to the employer on claims that it discriminated against an employee when it failed to promote him allegedly because of race and retaliated against the employee.

Time and again, the court said that the proof offered by the employee was just not enough to warrant sending the case to a jury.

For example, the employee alleged that the evidence showed that Caucasian employees would get training that would allow them to get promoted. However, the court said that this was "nothing more than raw numbers which, without further information on key considerations such as the racial composition of the qualified labor pool, cannot support an inference of discrimination" -- suggesting that a statistical analysis was missing.

For employers, the case counters the argument by some that it is nearly impossible to get a case dismissed before a trial. It's not impossible, but employers ought to have their rationale documented thoroughly and be able to support its decisions.

Five Questions with...Dr. Steven Lurie on "Connecting Styles" - Part II

Daniel Schwartz — Tue, 12 Jan 2010 08:04:09 -0500

Yesterday I posted Part I of my interview with Dr. Steve Lurie. Today, we continue the interview and discuss whether the skills for career success can be learned:

Can those skills (for career success) be learned?

Yes. But for some reason, employees typically receive relationship skill training much later in their careers in management development programs using personality tools, 360 feedback, etc. that help them to see who they are as others see them and make them aware of others styles.

We have found that people are actually ready and able to absorb and apply these insights and tools as early as high school. In fact readers tell us that the most engaging and useful part of the book is about how to use Connecting Style awareness for better relationship building.

You've referred to "Connecting Styles." What does that mean?

Study after study shows that what differentiates the best performers from the rest is not subject matter expertise – the what -- but the quality of the connections professionals form with clients and colleagues.

The most powerful connections are formed by those who factor in and respect the learning, communication and interpersonal preferences of the person they are dealing with – and understand their own style and how they are likely to be perceived by others.

While every human being has a unique connecting style fingerprint, we know that people fall into four basic “connecting styles” based on how emotionally and how forcefully they connect:

From this model we can generate a simple roadmap for engaging others based on their connecting style.

For example, analyticals respond best when working within a predictable process that gives them time to prepare in advance, spells out a plan, defines roles, and does not rush them toward a decision. Direct expression of anger, frustration, resentment, whether directed at them or others, makes them uncomfortable and they disengage.

Energizers on the other hand, engage when given the opportunity to express their feelings and ideas and get very impatient when sticking too tightly to process and rules. Once a person understands their own connecting style and how to assess style in others, they can apply these insights with supervisees, supervisors, clients, adversaries, judges, partners, etc. for greater influence and more trusting relationships.

Are there behaviors that lead to strong connections regardless of style of the person sending or receiving the message?

Yes. The extent to which your behavior supports or frustrates the following Six Basic Connecting Needs in the people with whom you are interacting. These are the need to feel:

1. Basic Trust
2. Understood
3. Valued
4. Included
5. Respected
6. Autonomous (in control).

When your behavior supports these needs in others, you will create a receptive and supportive audience. Conversely, violation of one or more of these needs causes almost all defensive and antagonistic reactions.

There are a handful of habits and behaviors that support these needs like listening, behaving with modesty, taking the time to understand the accomplishments of the people with whom you work, demonstrating appreciation through finding merit, giving credit, skillful praise and thanks for good work, including others through getting their advice and sharing your ideas, following up on promises, accepting responsibility for your own mistakes and decisions and apologizing when you have offended someone.

My sincere thanks to Dr. Steve Lurie for agreeing to be interviewed. Again, be sure to check out his website here.

COBRA Subsidy Extension Information Now Available from U.S. Department of Labor

Daniel Schwartz — Mon, 11 Jan 2010 10:30:52 -0500

The United States Department of Labor this morning updated its website to include brand new information about the COBRA subsidy extension that was passed at the end of 2009.

Among the new documents:

Updated Fact Sheet (useful for employers)
FAQs for employees and employers
A new job loss poster
A new flyer for employees
A new flyer for employers
A new flyer for employees on the application for review

Some of the forms have yet to be updated so employers should either seek legal advice if they need to send out such forms or stay tuned from the Department of Labor for their further updates.