OSHA TAKES AIM AT WORKPLACE BULLYING AND HARASSMENT

General Duty Clause Applies 

The Occupational Safety and Health Act’s (OSHA) General Duty Clause requires employers to provide a safe and healthful workplace for all covered workers.  This has been interpreted to require that an employer provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees. Under this provision, employers who do not take reasonable steps to prevent or abate a recognized violence hazard in the workplace can be cited for an OSHA violation.

An employer that becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, could be considered on notice of the risk of workplace violence.  In such cases, OSHA advises the employer should take measures to mitigate the risk by implementing methods such as a workplace violence prevention program combined with engineering controls, administrative controls, and training. 

Principal Attorney Loraine Cortese-Costa Elected to CTS Board   

Principal Attorney Loraine Cortese-Costa has been re-elected to the Board of Directors of Coordinated Transportation Services (“CTS”) for a four-year term.

The CTS mission is to increase the availability of cost effective and efficient transportation services to transportation disadvantaged individuals and communities.

The CTS Board is made up of individuals with extensive experience in transportation and human services.  Attorney Cortese-Costa has served on the Board since 2015. 

TRANSIT CORNER           

Issues of Interest to Transit Agencies

Under the ADA, which of the following could not be considered a reasonable accommodation for a Bus Operator’s disability?

A.           allowing a leave of absence not provided for under company policy or union contract and after FMLA leave has been exhausted;

B.           changing an employee’s schedule or a run cut;

C.           assigning certain pre-trip inspection duties to a more highly paid Mechanic;

D.           adding a piece of equipment to the bus;

E.            waiving the MEC requirement;

F.            all of the above. 

Answer Box

Licensing requirements for Drivers of public transportation vehicles are mandated by statute and cannot be waived or modified by an Employer.  A Driver’s failure to maintain the proper credentials including the MEC (Medical Examiner’s Certificate) legally precludes her from driving. A Driver ineligible for an MEC is not qualified for the position and thus without recourse under the disability laws.

The other possible modifications listed could each be considered reasonable accommodations depending on such factors as the cost, the length of time it would be required, the size and financial capability of the Employer, whether similar modifications have been made in the past, the number of other employees available to assist with the job duties involved, and union contract requirements.  Inconvenience, the employee’s failure to request a specific accommodation and objections by other employees are not usually considered.

The correct answer is E.  

 

FEDERAL APPEALS COURT ENFORCES LABOR BOARD ORDER REQUIRING REINSTATEMENT OF UNION MEMBER DISCHARGED FOR RACIAL SLURS

Compliance With Discrimination Laws Not Sufficient Justification for Firing

In August 2017, a federal Court of Appeals enforced ¬an Order of the National Labor Relations Board requiring a private employer to rehire a union ¬employee who had been discharged for yelling from a picket line at a group of mostly black replacement workers “h¬¬ey anybody smell that? Smell fried chicken and watermelon” and other similar comments.

The Labor Board acknowledged that the comments were ¬racist, offensive, and reprehensible¬ but said the company violated federal labor laws by firing an individual for legally protected collective activity,¬ participating in a strike¬ that didn’t involve violence. The company took the dispute to court and argued that it has a right to enforce rules against racial harassment, but a majority of the three judge panel said federal anti-¬bias laws didn’t require that an employer go so far as to fire -the employee.  Since his activity was otherwise protected under the National Labor Relations Act, reinstatement was an appropriate remedy.

Principal Attorney Loraine Cortese-Costa named to the Best Lawyers in America© 2018  

For the second year in a row, Principal Attorney Loraine Cortese-Costa has been named to Best Lawyers in America© for:

Labor-Management

Employment-Management

Lawyers on the Best Lawyers in America© list are divided by geographic region and practice areas. They are nominated and reviewed by their peers on the basis of professional expertise. 

 Veterans Added To Protected Classifications Under Connecticut Human Rights Laws

Effective October 1, 2017, discrimination based upon veteran status will be prohibited in employment, public accomodations, the sale or rental of housing, and under other laws administered by the Connecticut Commission on Human Rights and Opportunities (CHRO).  A veteran aggrieved by an alleged discriminatory act may file a complaint with the CHRO.

CONNECTICUT LEGISLATIVE SESSIONS ENDS WITHOUT PAID FAMILY LEAVE BUT WITH NEW PREGNANCY-RELATED PROTECTIONS

The Connecticut General Assembly finished its session earlier this month with thankfully few changes in employment laws.  A bill to “create a system to provide paid family and medical leave benefits” failed as did a measure to prohibit employers from conducting pre-employment credit checks on potential employees.  Of course, either or both may be revisited when the legislature returns for its special session and “budget implementer.”

A bill that was passed and which will take effect on October 1, 2017 if signed by the Governor makes substantial changes and additions to Connecticut’s Pregnancy Disability Law.

The legislation: 

·         Broadens the definition of “pregnancy” by including not just pregnancy and childbirth but also any “related condition, including, but not limited to, lactation”  

·         Expands reasonable accommodations for such conditions to include “being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk”

·         Requires written notice of the right to be free from discrimination in relation to pregnancy, childbirth and related conditions, and the right to a reasonable accommodation.  A poster containing the required information will also suffice.     

Issues of Interest to Transit Agencies

Q: Can a Transit Agency Make Any Criminal Complaint Against a Passenger Who Threatens or Attacks a Bus Operator or Who Damages a Bus?

A: Connecticut Law makes it a Class C felony to assault public transit personnel but, in some cases, the Bus Operator victim is unwilling to press charges.  If the transit agency itself seeks to do so and the Operator is unwilling, there are other Connecticut criminal provisions which may apply:

·         Disorderly Conduct, a Class C Misdemeanor, includes, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, a person engages in fighting or in violent, tumultuous or threatening behavior; or by offensive or disorderly conduct, annoys or interferes with another person; or makes unreasonable noise.

·         Criminal Mischief in the First Degree, a Class D Felony, includes, with intent to cause an interruption or impairment of service rendered to the public and having no reasonable ground to believe s/he has a right to do so, a person damages or tampers with tangible property of a mode of public transportation and thereby causes an interruption or impairment of service rendered to the public.

Principal Attorney Loraine Cortese-Costa Provides Labor & Employment Law Training To CACT Membership

On April 26, 2017, at GNHTD, Principal Attorney Loraine Cortese-Costa presented a workshop to Connecticut Association for Community Transportation members on Labor and Employment Law and its applicability in the transit industry.  Among the issues addressed by Attorney Cortese-Costa was the elimination of “past practices” which the Firm successfully achieved for a transit district this past year in both a grievance arbitration and interest arbitration.

OVERTIME REGULATIONS STOPPED

The new Department of Labor Regulations regarding overtime, that were scheduled to go into effect on December 1, have been stopped by a federal court in Texas until a decision is rendered on challenges made in that court.  

For more information, go to https://www.dol.gov/whd/overtime/final2016/litigation.htm.

PRINCIPAL ATTORNEY LORAINE CORTESE-COSTA NAMED TO Best Lawyers in America© 2017

Labor-Management
Employment-Management

Lawyers on the Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process.  "For more than a third of a century," says CEO Steven Naifeh, "Best Lawyers has been the gold standard of excellence in the legal profession."
 
EEOC SOLIDIFIES LGBT RIGHTS UNDER FEDERAL DISCRIMINATION LAW-
Title VII Applies

The Equal Employment Opportunity Commission has stated definitively that it interprets, and will enforce accordingly, the Civil Right Act’s prohibition of sex discrimination as encompassing employment discrimination based on gender identity and sexual orientation.

The Commission bulletin released on July 15, 2016 confirms the agency’s position that protection for members of the LGBT (lesbian, gay, bisexual, and transgender) community against employment discrimination, and retaliation for reporting discrimination, is available under that law.  The agency cautions employers against terminating, demoting, or failing to hire an individual because of the individual’s sexual orientation or gender identity. Additionally, employers are instructed to take precautions against workplace harassment of LGBT employees.  Denying benefits because of gender identity or sexual orientation is also prohibited according to the EEOC.  

TRANSIT CORNER  

Q: Does CT “Ban the Box” Law Conflict with FMCSA Regulations?

A:   In our September issue, we reported on the new “ban-the-box” statute in CT, which will take effect on January 1, 2017. The law prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application.   Inquiries have been received from several transit clients regarding how this impacts a federal requirement regarding mandatory employment application information.  FMCSA regulations provide that acommercial driver must complete and provide to the employer an employment application which includes a list of all violations of motor vehicle laws or ordinances (other than violations involving only parking) of which the applicant was convicted or forfeited bond or collateral during the 3 years preceding the date the application is submitted.  Since the CT statute allows an employer to inquire about an applicant’s prior arrests, criminal charges, or convictions on an employment application form if the employer is required to do so by an applicable state or federal law, there is no conflict. The application query must be strictly confined to the information required under the federal regulation.   

FMLA FACTS

Connecticut FMLA regulations ask:

 What recourse do employers have if employees fail to provide the required notice of a foreseeable leave?

One answer:

If an employee fails to give 30 days notice for foreseeable leave with no reasonable excuse for the delay, the employer may delay the taking of FMLA leave until at least 30 days after the date the employee provides notice to the employer of the need for FMLA leave.

Tip- it must be clear that the employee had actual notice of the FMLA notice requirements. 

MANDATORY PAY INCREASE FOR EXEMPT EMPLOYEES

New Regulations Take Effect December 1

The United States Department of Labor has issued new regulations which raise the minimum salary payable to employees classified as exempt under the federal Fair Labor Standards Act (“Act”).  Currently, an employee needs to be paid a weekly salary of at least $455 ($23,660 annually) plus meet certain job duty requirements to qualify as exempt from overtime provisions of the Act.  The new regulations focus primarily on updating the salary and compensation levels.  Specifically, the minimum salary requirement will be set at $913 per week or $47,476 annually for a full-year worker.  There is also a mechanism for automatically updating the salary and compensation levels every three years.

Additionally, the new regulations amend the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. There are no changes to the duties tests.The effective date of the Final Rule is December 1, 2016. The initial increases (from $455 to $913 per week) must be effective by that date.

BAN THE BOX TAKES EFFECT IN CONNECTICUT ON JANUARY 1, 2017

Employment Application Questions Concerning Record of Convictions Banned

On June 1, 2016, Connecticut Governor Dannel P. Malloy signed into law a “ban-the-box” statute, which will take effect on January 1, 2017. The law, “An Act Concerning Fair Chance Employment,” Public Act No. 16-83, prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application.  An employer may inquire about an applicant’s prior arrests, criminal charges, or convictions on an employment application form only if:

·         the employer is required to do so by an applicable state or federal law; or

·         a security or fidelity bond or an equivalent bond is required for the position.

Under the law, employers may still inquire into applicants’ criminal histories, but such background inquiries must occur after an employment application has been completed, e.g., during an interview.

The Connecticut Labor Commissioner is charged with handling complaints filed by individuals alleging an employer’s violation of the new law which may result in the assessment of fines and penalties. The law does not provide aggrieved individuals with a right to sue an employer for alleged violations.

Is Driving An Essential Job Duty Under The ADA?

Appeals Court Finds Jury Should Decide 

In Stephenson v. Pfizer Inc. (4th Cir. 2016), a federal appeals court ruled that a jury must decide whether driving is an essential duty for a pharmaceutical sales representative.  The lower court had dismissed the disability act claim finding that there was no reasonable accommodation the employer could have offered for an inability to drive due to a vision disorder.  The distinction between driving and traveling was critical to the reversal by the appeals court because if traveling, as opposed to driving, is the essential function, a reasonable accommodation would have to be provided.  The appeals court stressed that the job description for the position didn’t list “driving” as a job duty.