HRACC 2011

1. HRACC 2011 Susan K. Krell Jackson Lewis LLP krells@jacksonlewis.com Margaret J. Strange Jackson Lewis LLP strangem@jacksonlewis.com

2. TOPICS • Paid Sick Leave Law • Ban on Gender Identity Discrimination • Ban on Use of Credit Reports as a Condition of Employment • Procedural Changes at the CHRO • Increased Penalties for Violations of Personnel Files Act

3. Paid Sick Leave Law: The Basics • Effective January 1, 2012 • CT will become first state in U.S. to mandate paid sick leave for employees • Mandates 40 hours paid leave per calendar year for covered absences • Prohibits retaliation against employees who request or use sick leave

4. Paid Sick Leave Law: Covered Employers • Public and private employers: • With 50+ employees in the state in any one quarter in the previous calendar year • Exemptions: • Manufacturers (as defined in the North American Industrial Classification System) • Any nationally-chartered non-profit which provides recreation, child care and education (e.g., YMCA)

5. Paid Sick Leave Law: Covered Employees • “Service Workers” • Hourly and salaried employees not exempt from the federal Fair Labor Standards Act • Primarily engaged in any one of a number of listed occupations • 68 occupations listed in statute include: waiters and waitresses, home health aides, social workers, dental hygienists, physician assistants, cashiers, receptionists, secretaries and administrative assistants, bus drivers, librarians, pharmacists, retail clerks and tellers. • Does not include “day or temporary workers”

6. Paid Sick Leave Law: Covered Reasons • Illness, injury or health condition • Medical diagnosis, care or treatment of mental or physical illness, injury or health condition • Preventive Care • For service worker or child or spouse of service worker • Leave related to family violence or sexual assault

7. Paid Sick Leave Law: Accrual and Eligibility • Beginning January 1, 2012 (or date of hire) • One hour of leave for each 40 hours worked • Up to 40 hours per calendar year • Employees are eligible to use leave after working 680 hours starting January 1, 2012 (or date of hire)

8. Paid Sick Leave Law: Accrual and Eligibility • Part time employees accrue paid sick leave, but must have worked average of 10+ hours per week in preceding quarter to use the leave • Carryover of up to 40 hours of leave permitted, but may not use more than 40 hours in any one calendar year

9. Paid Sick Leave Law: Notice from Employee • If leave foreseeable, up to 7 days notice • If leave unforeseeable, as soon as practicable • If leave is 3 or more consecutive days, employer may require that employee provide documentation to support that leave being taken for covered purpose

10. Retaliation Prohibited • Applies to all employees, not just covered service workers • No employer shall take retaliatory personnel action or discriminate against an employee because the employee: • Requests or uses paid sick leave under the paid sick leave law or under the employer’s policies • Files a complaint with the Dept. of Labor alleging a violation of paid sick leave law

11. Safe Harbor For Existing PTO Policies • Safe Harbor Provision: An employer that provides paid sick leave or “other paid leave,” such as vacation, personal days or paid time off (PTO) is deemed to be in compliance with the law if employer’s PTO policy mirrors or exceeds, the requirements of the paid sick leave law for 40 hours of leave per calendar year.

12. Safe Harbor For Existing PTO Policies • To take advantage of “safe harbor,” an employer’s PTO policy must: • Accrue at a rate equal to or greater than the rate under the law • Allow use of accrued hours for reasons allowed by the law • Allow use as necessary, without regard to any minimum increment requirements (legislative history suggests 1 hr)

13. Safe Harbor For Existing PTO Policies • To take advantage of “safe harbor,” an employer’s PTO policy must: • Allow carry over of accrued, unused time up to 40 hours to next calendar year • Satisfy employer’s notice requirements under the law

14. Paid Sick Leave Law: Penalties and Enforcement • Enforced by DOL • Civil fine of $500 per violation of anti-retaliation provision • Civil fine of $100 per violation of any other provision • All appropriate relief, including payment of used paid sick leave, rehiring or reinstatement to previously held job, back wages, lost benefits. • Commissioner’s decision may be appealed to the Superior Court

15. Paid Sick Leave Law: Posting Requirement • Employer must provide notice to all employees at time of hire that: • Employee entitled to paid sick leave, including amount available and terms of use • That retaliation for requesting or using leave is prohibited • That the employee can file a complaint with the Labor Commissioner for any violation • May comply by displaying poster in both English and Spanish

16. Paid Sick Leave Law: What To Do Now? • Determine if you are a covered employer • Determine if you employ covered service workers • focus on duties, not titles • Review existing PTO policy to see if safe harbor provision applies • Many unknowns, including: • Interaction with FMLA • Minimum increments of leave

17. Ban on Gender Identity Discrimination • Effective October 1, 2011 • Applies to any public or private employer with 3 or more employees • Applies to employment agencies and labor organizations • Broader coverage than under Title VII • Enforced by Commission on Human Rights and Opportunities (CHRO)

18. Definition of Gender Identity or Expression • “Gender–related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

19. Definition of Gender Identity or Expression • Can be shown by: • Medical history, care or treatment of the gender-related i.d. • Consistent and uniform assertion of gender-related i.d. • Any other evidence that gender-related i.d. is sincerely held, part of person’s core i.d. or not being asserted for improper purpose

20. Ban on Gender Identity Discrimination: What to Do Now? • Review and revise employee handbook and non-discrimination policies to make sure that gender identity is included • Make sure HR professionals are aware of change in law so that they can help disseminate information and provide appropriate training/ information • Make sure supervisors, managers are aware of change in law

21. Ban on Use of Credit Scores as Condition of Employment • Effective October 1, 2011 • Applies to public and private employers of 1+ employees, except for financial institutions • Prohibits employers and their agents, representatives or designees from requiring an employee or prospective employee to consent to a request for a credit report as a condition of employment, with certain exceptions

22. Ban on Use of Credit Scores as Condition of Employment: Financial Institutions • “Financial Institutions” means any entity or affiliate of a state bank and trust company; national banking association; state or federally chartered savings bank, savings and loan association, or credit union; insurance company; investment advisor; broker-dealer; or entity registered with the federal Securities and Exchange Commission

23. Ban on Use of Credit Scores as Condition of Employment: Exceptions • Report is required by law • Employer reasonably believes employee committed a violation of the law related to employee’s job • Report is substantially related to employee’s current or potential job • Employer has a bona fide purpose to request or use information in the report that is substantially job-related and is disclosed to the employee or applicant in writing

24. Substantially Related to the Employee’s Current or Potential Job • Is a managerial position that involves setting direction or control of business, division, unit or agency or business; • Involves access to customers’, employees’ or the employer’s personal or financial information; • Involves a fiduciary responsibility to the employer; • Provides an expense account or corporate debit or credit card; • Provides access to confidential or proprietary business information;

25. Substantially Related to the Employee’s Current or Potential Job • Provides access to information which has actual or potential independent economic value because it is not generally known or readily ascertainable and there are reasonable efforts to keep the information secret; • Involves access to employer’s nonfinancial assets of at least $2,005 in value including, but not limited to, museum and library collections and prescription drugs and pharmaceuticals.

26. Ban on Use of Credit Scores as Condition of Employment: Enforcement • Employee or prospective employee may file complaint with the Labor Commissioner • Labor Dept. may impose penalty of $300 for each inquiry made in violation of ban • Even if exceptions apply, employer must comply with federal Fair Credit Reporting Act

27. Procedural Changes at the CHRO • Effective October 1, 2011 • If complaint is dismissed during the Merit Assessment Review process, provides automatic, internal review

28. Procedural Changes at the CHRO • If complaint is not dismissed during Merit Assessment Review process: • Requires mandatory mediation conference within 60 days • Permits request for early legal intervention • Shortens time period that a complainant must wait to request a release of jurisdiction from 210 to 180 days

29. Increased Penalties for Repeat Violators of Personnel Files Act • Personnel Files Act • Requires employers to provide employee with access to his or her personnel files or medical records; and • Prohibits employers from disclosing the file or records without the employee’s consent

30. Increased Penalties for Repeat Violators of Personnel Files Act • Effective October 1, 2011, penalties for violations of Act increased from $300 to $500 for a first violation and to $1,000 for any subsequent violation related to the same employee • No private cause of action

31. Significant Judicial Decisions

32. Dukes v. Wal-mart (2011) _ U.S. _,131 S.Ct. 2541 • Salaried and hourly female employees alleging systemic practice of gender discrimination • Wide range of positions • 3,400 stores nationwide • 1.5+ M member class • Ninth Circuit upheld District Court certification • Relied on Plaintiffs statistical and anecdotal evidence to satisfy commonality requirement

33. Dukes v. Wal-mart • Supreme Court reverses Ninth Circuit • Lack of commonality under Rule 23(a)(2) • No evidence employer had a general policy of discrimination • Local discretion by supervisors couldn’t establish inference of discrimination • Court rejected Plaintiffs’ statistical and anecdotal evidence • Unanimously held back pay claims could not be certified under Rule 23 (b)(2)

34. Dukes v. Wal-mart • Class actions are still viable, but harder to certify • Plaintiffs seeking monetary relief may still seek class certification under Rule 23(b)(3) • Must show that class issues predominate over individual issues and • Class action is most efficient and desirable means of trying case • Mandatory notice to potential class members who may “opt out” of class Likely outcome is smaller, more focused classes

35. Retaliation Protection Extends to “Zone of Interest” • Title VII does create a cause of action for third-party retaliation for persons who did not themselves engage in protect activity. Thompson v. North American Stainless, LP., No. 09-291 (January 24, 2011) • Adopted a “zone of interest” standard (i.e. does the individual fall within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis of the complaint)

36. Cat’s Paw • An employer, without discriminatory motive, may be liable for firing an employee based on information or advice from biased managers (“cat’s paw” theory) Staub v. Proctor Hospital, 09-400 (March 1, 2011)

37. FSLA Retaliation - Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011) • Facts: Plaintiff alleged that his employer terminated him because he made internal complaints to management about the company’s time-keeping practices. • This case turned on whether the FLSA’s anti-retaliation provision provides that an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint” should be interpreted as in the past to mean a written complaint or whether a verbal complaint suffices.

38. FSLA Retaliation - Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011) • Held: both oral and written complaints of a violation of the Fair Labor Standards Act are protected conduct under the statute’s anti-retaliation provision. • The majority remanded for determination whether any complaint made solely to an employer – orally or in writing – falls under the FLSA’s protective mantle • Justice Scalia dissents—issue was ripe for review

39. ADA Amendments • Act Final Regulations

40. ADAAA: Recent Developments • Disability claims: • Made up 25% of all EEOC charges filed in 2010 • Highest year-over-year growth among all charges filed • New laws and regulations have made it significantly easier to state a disability claim

41. ADAAA: Recent Developments • "You might not think you have a disability, but if you have a medical condition and you feel you are discriminated against based on that condition, then you are covered.“ • EEOC Commissioner Chai Feldblum, quoted in “More Disabled Workers File Discrimination Claims in 2009,” USA Today, 8/20/10

42. ADA Amendments Act Final Regulations • Released March 25, 2011, with emphasis on expansive coverage • Disability Discrimination: To prove employer discriminated based on disability, claimant only has to show that employer “regarded” claimant as disabled – that is, engaged in prohibited conduct because of an actual or perceived impairment • Claimant is not required to show that the impairment did, or was perceived to, substantially limit a major life activity

43. ADA Amendments Act Final Regulations • Employer Defense: No claim if condition was “transitory and minor” • “Transitory” = less than 6 months • “Minor” = ?

44. ADA Amendments Act Final Regulations • Failure to Accommodate: To prove that employer failed to provide a reasonable accommodation, claimant must prove the existence of, or a record of, an impairment that “substantially limits a major life activity”

45. ADA Amendments Act Final Regulations • Two expansive lists of “major life activities”: • Actual activities (broadened to include learning, concentrating, reading, interacting with others, etc.) • Operation of “major bodily functions” (immune system; special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions)

46. ADA Amendments Act Final Regulations • Employer Defense: Employee’s impairment posed a direct threat to the safety of the employee or others in the workplace.

47. ADA Amendments Act Final Regulations • Other Key Points: • Individualized assessment is required … but certain impairments limiting major bodily functions will “in virtually all cases” be disabling, even in their early stages • e.g., deafness, blindness, intellectual disability, mobility impairments, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, MS, major depressive disorder, bipolar disorder, post-traumatic stress disorder, OCD, schizophrenia, etc.

48. ADA Amendments Act Final Regulations • No durational threshold - conditions with <6 months duration can be disabilities • Mitigating measures cannot be considered in establishing disability • Note: An employee who refuses to take mitigating measures (e.g., take medication) is still disabled

49. Leave as a Reasonable Accommodation • Questions to Consider • Avoid applying no-fault leave policies resulting in automatic termination after a set period of time • Consider first if employee is entitled to leave under FMLA • If not, does ADA requires leave as a reasonable accommodation?

50. Leave as a Reasonable Accommodation • How Much Leave? • “Indefinite” leave is not required • Courts ask: • Will the employee be able to return in the identifiable future and be able to resume job functions? • How much leave has the employee already taken? • Would additional leave create an undue hardship?