Last week, the National Labor Relations Board (“Board”) announced that it had proposed three rules aimed at protecting employee free choice on questions concerning representation. These rules address the NLRB’s blocking charge policy, voluntary recognition, and collective bargaining in the construction industry.

  • Blocking Charge Policy. Generally, the Board suspends the processing of an election petition if an unfair labor practice charge is filed alleging that a party coerced workers to vote a certain way. Under the proposed rule, the Board would institute a “vote-and-impound” procedure where it would no longer pause the election and instead would seize the votes until the charges are resolved.
  • Voluntary Recognition Bar. Currently, a union that has been voluntarily recognized by an employer as a bargaining representative cannot have its status challenged during a “reasonable period” for bargaining, which is defined as six months to a year.  Under the proposed rule, the Board would return to the standard articulated in the Dana Corp.  Under this standard, employees and rival unions would be given a 45-day window after voluntary recognition to either file a decertification petition or election petition respectively before the voluntary recognition bar period takes effect.
  • Section 9(a) Recognition in the Construction Industry. Section 9(a) of the National Labor Relations Act (the “Act”) covers most unions and requires that unions obtain support from a majority of workers, which is usually obtained by a vote. However, the construction industry is unique in that Section 8(f) of the Act allows unions and employees in the construction industry to enter into “pre-hire” agreements before the union achieves majority status.  This is usually done for short-term construction work on a project.  The proposed rule would overrule a decision titled Staunton Fuel which held that a full-fledged Section 8(f) bargaining relationship can transition to a Section 9(a) bargaining relationship based on the contract language alone.  The Board’s proposed rule would require a construction union to show “extrinsic evidence” of a majority of support and will no longer allow the union to rely on contract language alone.

Board Chairman Jonathan Ring is a proponent of using the rulemaking process to change Board Rules.  For example, the Board proposed a new rule to overturn the current joint employer rule last year.  Based on his support, we can expect the Board to continue to use the rulemaking process in the future.

If you are interested in commenting on any of these proposed rules you can do so here until October 11, 2019.

The U.S. Department of Labor’s Wage and Hour Division has announced proposed changes to the information forms used by employers in the administration of the Family and Medical Leave Act (FMLA). Qualification for FMLA leave requires disclosure of information to employers and employees about their FMLA rights and it also requires collection of information to determine whether FMLA leave is applicable. The proposed changes include the following:

  • Questions requiring written responses replaced by statements answered by checkboxes
  • Reorganized medical certification forms to expedite determination of seriousness of health condition
  • Reduce follow-up information required of health care providers
  • Added details on notification forms to communicate leave conditions to employees
  • Clarification to qualifying exigency certification form noting what information is required
  • Changes to military caregiver leave forms for consistency and ease
  • Formatting changes to improve readability

The public has a 60-day comment period on the proposed revisions before they can go into effect.

Stay tuned!

Please save the date for our 2019 Annual Labor and Employment Seminar on Friday, October 18th at the Aqua Turf Club in Plantsville, CT. This year’s seminar is particularly important because of new Connecticut laws that affect all employers.

Schedule of Events:

8:00 a.m. Registration and Networking Breakfast
9:00 a.m. Program
12:30 p.m. Lunch

For more information, please click here.

On August 1, 2019, the United States Senate voted to confirm Attorney Sharon Gustafson as the General Counsel of the Equal Employment Opportunity Commission (“EEOC”) and Obama-era appointee Charlotte Burrows to another four-year term on the Commission.  General Counsel Gustafson was sworn into her position today (August 8, 2019).

EEOC Confirms New General Counsel

The EEOC now has its first General Counsel in over two years.  The position had been vacant since Obama-era General Counsel David Lopez resigned in late 2016.

General Counsel Gustafson practiced employment law in Virginia for nearly 25 years, having represented both employers and employees.  Gustafson is most known for representing the plaintiff, Peggy Young, before the United States Supreme Court in Young v. United Parcel Service.  In that case, the Supreme Court held that employers were required to provide reasonable accommodations for pregnancy and related conditions in certain situations.

As General Counsel, Gustafson will be responsible for determining which cases the EEOC will bring on behalf of former and current employees and will issue guidance clarifying the EEOC’s position on importance issues of employment law.

EEOC Regains A Quorum With Confirmation of New Member

After confirming Charlotte Burrows to another four-year term, the EEOC has regained a quorum.  By way of background, the EEOC is a commission comprised of five presidentially appointed members including a Chair, Vice Chair, and three Commissioners. A quorum, meaning three of five members, is necessary for the EEOC to make any important decision.  Prior to Burrows’ confirmation to another term, the EEOC was functionally down to two members (Chair Janet Dhillon and Commissioner Victoria Lipnic.)  Now, the EEOC again has enough members to make important decisions, however, there are still two vacancies.

President Trump recently nominated United States Department of Labor Wage and Hour Division Deputy Administrator Keith Sonderling to fill one of the remaining commission vacancies.

We will keep you updated as the EEOC continues to fill its leadership positions.

A year ago, the California Supreme Court’s Dynamex ruling complicated the classification of workers as independent contractors. Employers are still trying to determine how the decision affects them, especially as the decision did not address whether it applied retroactively.

In April 2018, the California Supreme Court ordered courts to apply the strict “ABC test” to job misclassification claims, putting pressure on businesses to show that workers must provide services distinct from their core business in order to be classified as contractors. Typically, employees cost businesses more and have more protections than those of a contractor. As a result, classifying a worker as an independent contractor can be more appealing to businesses.

To prove a worker is an independent contractor under the ABC test, a company must show that the worker (1) is free from the company’s control, (2) performs work outside the company’s usual business, and (3) separate from their work for the company, is regularly working in the trade they have been hired to work.

As a result of this ruling, California employers have been left wondering whether they should reclassify independent contractors as employees. Additionally, the decision did not clarify whether it applied only to cases brought after the 2018 decision or whether it would also apply retroactively to claims as far back as four years. In late July, the Ninth Circuit issued an order stating that it would ask the California Supreme Court to determine whether the ABC test applies retroactively. Simultaneously, in the California legislature, Assembly Bill 5 is under consideration. That bill would codify the ABC test. Business are fighting to add many exemptions to the bill. The next few months will be pivotal in California as the courts and legislature could change the standard for worker classification.

Stay tuned!

Last month, Governor Ned Lamont signed into law Public Act 19-16 (and certain amendments to that Act contained in Public Act 19-93), widely referred to as the “Time’s Up Act.” The Act (and subsequent amendments) makes substantial changes to Connecticut’s harassment and discrimination laws, which will mostly take effect on October 1, 2019.

Changes To Training Requirements

The law makes the following long-anticipated changes to Connecticut’s sexual harassment training requirements:

  • All employers are now required to provide training to current supervisors by October 1, 2020 and to all new supervisory employees within six months of assuming the supervisory role. Employers that trained their supervisors hired on or after October 1, 2018 are not required to provide the training a second time.  Previously, only employers with 50 or more employees were required to provide such training.
  • Employers with three or more employees must provide training to all current employees (supervisors and non-supervisors) hired on or after October 1, 2019 within six months after hire.

The new law also requires that employers provide supplemental training at least every 10 years.  Failure to comply with the training requirements can be considered a discriminatory practice and will result in a fine of $750.

Notice Requirements

Currently, Connecticut law requires employers with three or more employees to post information concerning the illegality of sexual harassment and the remedies available to victims “in a prominent and accessible location.”  The new law requires that employers with three or more employees provide the same information to employees by e-mail within three months of hire: (1) if the employer provides an e-mail account to the employee, or (2) if the employee has provided the employer with an e-mail address.  Employers must include the words “Sexual Harassment Policy” or “words of similar import” in the subject line.  Employers may satisfy this notice requirement by providing the employee with a link to the section of the CHRO’s website which contains information on the illegality of sexual harassment and the remedies available.  Failure to comply with the new notice requirements will also result in a $750 fine.

Employee Consent Required For Corrective Action

Under the new law, when taking “immediate corrective action” to address sexual harassment claims, employers may not modify the conditions of employment of the complaining employee unless the employee agrees in writing.  Corrective action is defined by the law as: (1) complaining employee relocation; (2) assigning the complaining employee to a different work schedule; or (3) other substantive changes to an employee’s terms and conditions of employment.  However, there is an exception to this requirement if the CHRO determines that the corrective action was “reasonable” and “not harmful” to the Complainant.

Filing Deadline Extended for All Harassment, Retaliation and Discrimination Claims

Beginning October 1, 2019, the CHRO filing deadline for claims of harassment, retaliation and/or discrimination will be increased from 180 to 300 days from the adverse action.  Although this is a significant increase, the CHRO deadline is now aligned with the federal standard.

Available Remedies Expanded

The new law significantly expands the remedies available at the CHRO and in court.  The CHRO may now: (1) “make the complainant whole” by determining the actual damages suffered, including awarding actual costs incurred and (2) award reasonable attorney’s fees to a prevailing complainant.  Regarding attorney’s fees, the law explicitly states the amount of attorney’s fees cannot be contingent upon the damages requested by or awarded to the Complainant.

Further, a court may now award punitive damages to a prevailing plaintiff.  These changes were meant to address a recent Connecticut Supreme Court case which held that punitive damages were not available under CFEPA because the statute did not expressly state that punitive damages were an available remedy.

Other Interesting Changes

The new law makes the following other changes:

  • Appointment of Magistrates. The CHRO may now appoint magistrates from the Chief Administrator of the Connecticut Superior Court’s list of available magistrates to conduct public hearings when there is a backlog of more than 100 cases.
  • Limited Discovery at Public Hearings. The new law provides that parties have the opportunity to “inspect and copy relevant and material records, papers, and documents” of the other party at CHRO public hearings.  The presiding officer may also order production of documents.
  • Actions in the Public Interest. The CHRO may now assign legal counsel to pursue action in court on behalf of the Complainant rather than conducting a public hearing.  If the CHRO is successful in establishing discrimination or harassment by “clear and convincing evidence” the court may award the CHRO’s costs and legal fees and civil penalties up to $10,000.
  • Authorization to Enter Premises for Inspection. The new law allows the CHRO to enter an employer’s premises during business hours to ensure compliance with the posting requirements and to inspect all records, policies, procedures and training materials.  The CHRO’s authority is limited to situations in which the CHRO’s executive director “reasonably believes” the employer is violating the law or during the 12-month period following the date on which a complaint was filed against the employer.  In addition, if the place of business is the employer’s residential home, the homeowner must give the CHRO express permission.

These changes to the law will significantly affect the workplace and how cases are litigated.  We will keep you updated as the new law develops.

While the rest of the country was celebrating with fireworks, last week California celebrated the Fourth of July with Governor Newsom signing the CROWN Act (Creating a Respectful and Open Workplace For Natural Hair) into law. It had already passed unanimously in the California Assembly and Senate. The Act prohibits the enforcement of dress codes or grooming policies in the workplace or K-12 schools that disproportionally affect people of color, in particular black people. The prohibition includes hairstyles such as afros, braids, twists, and dreadlocks.

The bill was introduced earlier this year by Los Angeles Democrat, Senator Holly Mitchell. Senator Mitchell was spurred to action after a black woman from Alabama brought her case to the U.S. Supreme Court in 2018 after she lost a job offer allegedly due to her refusal to cut her dreadlocks. Also gaining national attention last year was a New Jersey high school wrestler who was forced to cut his dreadlocks or forfeit his match.

The impetus behind the bill was to allow for a respectful and open workplace or school environment, irrespective of hairstyle. It also challenges what defines “professionalism” in the workplace.

In February, New York City passed a similar law protecting employee’s rights to have hairstyles that are connected with racial, ethnic or cultural identities. And other states are considering similar laws.  Check out our earlier blog on the New York City law HERE.

At the close of its 2019 session, the New York General Assembly passed substantial changes to the state’s anti-harassment and discrimination laws, which Governor Andrew Cuomo has indicated that he will sign into law.  The new law applies to all protected classes under NY law.

The changes to the New York anti-harassment and discrimination laws are as follows:

  • Employers of all sizes will now be covered by the law. The new law will expand the definition of employer to include all employers within the state of New York, including the state and political subdivisions.  Previously, the definition of employer included only employers with four or more employees.

  • Non-employees and domestic workers will now be covered. The new law will expand its protections to domestic workers and non-employees including contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace or an individual who is an employee of such non-employers.
  • Employees will no longer be required to prove that the harassment or discrimination was severe or pervasive. Under the new law, harassment, discrimination, and retaliation based on a protected characteristic will be unlawful “regardless of whether the conduct was severe or pervasive.”  This new standard is a departure from the long-held burden of proof for these claims.  The new law, however, will provide an affirmative defense if an employer can show that a reasonable person with the same protected characteristics would consider the conduct petty slights or trivial inconveniences.  Without further guidance or court decisions, this affirmative defense may prove difficult to establish.
  • The Faragher/Ellerth Defense will no longer be available. Recall that employers may invoke an affirmative defense under Title VII, called the Faragher/Ellerth defense, if there was no adverse action taken against the complainant, the employer exercised reasonable care to prevent and correct promptly the harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer (e.g., the employer’s internal complaint procedure.)  The new law will remove this affirmative defense under NY state law.
  • Employees will no longer be required to prove that they were treated different than another individual outside the same protected class.
  • Punitive Damages will now be available as a remedy.
  • Attorney’s Fees. The new law will allow a court or the New York Division of Human Rights (“NYDHR”) to award reasonable attorney’s fees to any prevailing or substantially prevailing party.  Employers seeking attorney’s fees must show that the Plaintiff’s claim was frivolous, meaning that the complaint was filed in bad faith and without reasonable basis.
  • Statutory Construction. Under the new law, the state law is to be construed liberally regardless of whether the federal civil rights laws are worded similarly.  Further, exceptions to the law are to be construed narrowly in order to “maximize deterrence of discriminatory conduct.”
  • Non-disclosure Agreements (“NDAs”) will be prohibited in most circumstances for all harassment and discrimination claims. Last year, New York generally prohibited NDAs in settlements of sexual harassment claims unless the employee preferred such an agreement.  The new law will extend this prohibition to NDAs for harassment and discrimination claims based on any protected class unless the employee prefers the agreement.  Employers must give the Complainant the nondisclosure agreement in writing and in plain English or, if applicable, the primary language of the Complainant.  Further, like the Older Workers’ Benefit Protection Act, employees must be given 21 days to review the NDA and 7 days to revoke the NDA after signing it.
  • Exception for NDAs. Effective January 1, 2010, NDAs in any employment contract or other agreement between an employer and employee that prevents the disclosure of factual information related to any future claim of discrimination will be void and unenforceable unless the provision notifies the employee or prospective employee that it does not prohibit him or her from speaking with law enforcement, the EEOC, the NYDHR, a local commission on human rights, or an attorney retained by the employee or potential employee.
  • Mandatory arbitration will be prohibited. Last year, New York also prohibited mandatory arbitration of sexual harassment claims.  The new law will extend this prohibition to all claims of harassment and discrimination.
  • Sexual harassment policy distribution requirements. The new law will require that employers provide to their employees a copy of their sexual harassment policy at the time of hire and at the time of the employee’s annual sexual harassment prevention training.  Employers will be required to provide this information in English or in the language identified by the employee as his or her primary language.  New York will create model sexual harassment policies and model training programs in English and other languages (in its discretion.)  If New York does not create templates in the language required by the employee, an employer may satisfy this requirement by presenting the policy in English.  Further, an employer will not be penalized for errors or omissions in the non-English templates provided by NY.
  • Statute of limitations. Employees will now have three years to bring claims of sexual harassment in the employment context.

These changes will significantly impact an employer’s obligations with regard to harassment and discrimination in the workplace and will change the way employment cases are litigated.  We will continue to update you as the new law develops.

On June 20, 2019, the firm hosted a 2019 Legislative Updates Seminar at the Hilton Garden Inn in Wallingford, Connecticut. We covered the passage of two major employment bills from this past legislative session that will affect virtually every employer: paid FMLA and new requirements for sexual harassment prevention training. We also reviewed other important federal and state law developments such as the increase in the minimum wage, the federal DOL’s proposed new overtime rule, and new U.S. Supreme Court cases.

Our newest attorney at the firm and State Representative, Stephanie E. Cummings, provided an inside view on what transpired during the session and how these laws would impact businesses.

Thank you to all of our client-subscribers for coming. If you subscribe to our blog, but have not attended our seminar before please join our mailing list by clicking here.

We look forward to seeing you at future seminars!

The U.S. Supreme Court ruled unanimously this week that in certain cases federal courts may hear discrimination claims under Title VII of the Civil Rights Act even if the claims were not brought first to the Equal Employment Opportunity Commission or a state administrative agency.

Added Allegations

Employees still generally must bring Title VII discrimination claims to the EEOC or a state agency before going to court.  However, if an employee adds another discrimination claim in the court proceeding (that was not included in the charge when it was filed with the administrative agency), and the employer does not object to the addition at that time of the addition, then the employer cannot later assert the defense that the additional claim must also go through the EEOC or administrative agency.

The Case

In Fort Bend County v. Davis, a former worker, Lois Davis, had filed a retaliation and sex bias charge with Texas’ EEOC.  In the margin of a supplemental form to the original charge, Davis had written “religion.”  The employer, Fort Bend County, argued that the additional charge was not valid because it had not been reviewed by the EEOC with the original charge prior to Davis suing Fort Bend in court.  The Supreme Court upheld the Fifth Circuit’s ruling that Fort Bend lost the defense that Davis did not file the additional claim with the EEOC because it waited too long to object.

What it Means for Employers

Employers should pay close attention to complaints to be sure they match up with administrative charges filed.  If they do not raise objections in their answer to the complaint or in a motion to dismiss.  As a result, employers could risk losing the defense that an employee has an obligation to exhaust administrative remedies.  It is not unusual for an employee to add additional claims after a charge has been filed.  The ruling puts the burden on the employer to closely review the administrative charge filed by the employer.

Stay tuned for more labor and employment news!