Jan 27 2017
By Daniel Schwartz on
I’ll confess. I’m excited about today’s post. It’s hard to find something new to do after nearly 10 years of blogging, but I think today’s post is pretty innovative. Unless you read The New York Times “The Conversation” which we’ve tried to copy emulate here. Except this post (and hopefully others) will be called “The Dialogue”. Somehow different, right?
Today’s post tackles some of the legal issues regarding hiring but does so in a back-and-forth format between a management-side attorney (myself) and an employee-side attorney (Nina Pirrotti). I’d insert a reference to the letters of Alexander Hamilton and Aaron Burr discussing the issues of the day, but then I remembered that ended in a duel, and it’s not exactly what I was foreseeing here. I think Nina and I can exchange some thoughts without trying to kill one another.
Anyways, Nina and I have tried something new below. Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters. She’s a past-President of the Connecticut Employment Lawyers Association and a frequent presenter on employment law topics. My thanks to her for being brave enough to try this with me. Let me know what you think.
The Dialogue Begins
Dan Schwartz: Welcome to the blog and thanks for engaging in this discussion on employment law. I promise that we here at the blog don’t bite and we pay all of our workers (me) minimum wage. (Ok, that’s a lie. I get nothing for writing the blog, but moving on….)
I know we were planning on talking about some developments in the world of hiring and employment law, but I can’t pass up the opportunity to ask you something about the new Trump Administration. From the perspective of an attorney who typically represents employees, what are one or two things you’re keeping an eye out for?
Nina Pirrotti: Thank you, Dan, for your warm welcome. We plaintiffs’ employment lawyers have been feeling mighty chilly since November 8th and have been bracing ourselves ever since for even more frigid temps ahead. Ironically, I felt the impact of Trump’s election virtually immediately. On November 9th, I flew to Chicago and spoke at the ABA’s annual Labor & Employment conference.
The topic of the panel on which I spoke revolved around laws which prohibit employer retaliation against employees for discussing their wages. The laws are designed to protect female employees who are trying to figure out whether they are being paid less than their male counterparts.
I was all set to talk about the Paycheck Fairness Act which would have expanded the protection provided by those laws and was expected to be one of the first pieces of legislation signed by Hillary Clinton. As you can imagine, my plane ride there was consumed with a furious re-write of my outline! The next day I flew to Dallas to participate in the semi-annual Executive Board meeting for the National Employment Lawyers’ Association where we also had to nimbly adjust our focus to reflect the new (surreal) reality.
I did not thaw out after learning that Trump nominated Andy Puzder, CEO of chain restaurants, including Hardees (which, sadly, is the maker of my all -time favorite breakfast biscuit) to head the Department of Labor. Puzder’s employee track record, which includes opposing overtime and minimum wage laws and underpaying his own workers is abysmal.
I can only hope that the rumors that he might back out of consideration prove to be true. I did feel a glimmer of hope after I learned this week that Trump has tapped EEOC Commissioner Victoria A. Lipnic as Acting Chair of EEOC. Lipnic, who was nominated by President Obama, has served as EEOC Commissioner since 2010.
I was also mildly heartened by Trump’s expression of (granted, lukewarm) support in his campaign for pay equity laws and paid FMLA leave, both championed by Hillary Clinton and I can only hope that the person who might most positively influence him in that regard (Ivanka) is able to carry the day.
Unfortunately, the Trump administration does seem poised to reverse or suspend the changes to Fair Labor Standards Act’s overtime rules which went into effect on December 1, 2016.
Of course, the most important event that we plaintiffs’ employment lawyers are waiting for is the announcement of Trump’s Supreme Court nominee who would replace the very conservative Justice Antonin Scalia. That person may likely cast the deciding vote on cases that impact the rights of workers in a myriad of ways. Unfortunately for us, the three oldest justices – Ruth Bader Ginsburg Kennedy and Breyer – are liberal or moderate and Trump may have more than one bite at that proverbial apple during his (hopefully only) four-year stint.
Since your excellent blog has national appeal and one or more of these justices might actually read it, I hereby urge all three of them to eat well, exercise moderately and avoid all high risk activities!
Dan: So I guess Justice Ginsburg should expect a gift card to a local health club from you soon? I will say the the appointment of Lipnic was applauded by attorneys from both sides. It’ll be interesting to see, however, how that translates in the EEOC’s strategic plan. And I guess we’ll just see next week who the U.S. Supreme Court pick will be.
As for Pudzer’s nomination, it can’t be that bad, can it? (Well I suppose it can.) Though just some predictability from the DOL would be helpful to all. Stay tuned.
Anyways, let’s talk hiring. “Ban the Box” legislation passed last year. Do you think it’ll make much difference in hiring in Connecticut?
Nina: It may for more open-minded employers. I love the full name for the legislation: “An Act Concerning Fair Chance Employment.” And that is essentially what it does: it gives those with prior arrests, criminal charges and convictions a shot (no pun intended!) at actually getting an interview.
The challenge remains that they still have to wow the employer at the interview, so much so that the employer is then willing to overlook the employees’ criminal histories because under the law, employers may still inquire into applicants’ criminal histories after they complete an employment application.
I still think the law should go further and prohibit criminal history inquiries at any stage of the hiring process, with some exceptions carved out for certain heinous crimes and certain sensitive professions. I remember being so taken by a decision made by Judge Gleeson in the Eastern District of New York when he expunged the conviction of a woman he had sentenced years earlier who could not secure a job because of her conviction. He stated: “ I sentenced her to five years of probation supervision, not to a lifetime of unemployment.” But I’ve been around the block enough to know that there are two sides to this coin.
What factors do you consider in advising an employer whether to hire a candidate with a criminal history?
Dan: For employers, I always focus on the job requirements and then, when they do become aware of the criminal record, take a deeper look. I don’t think that any criminal record should disqualify any person from any job. Indeed, one of my favorite (the favorite?) BBQ restaurants around, Bear’s Smokehouse, has made it part of their business plan to hire people with criminal records. And they’ve had good success with it.
What I also sometimes talk some employers about is not the criminal record per se, but the applicant who lied about having a criminal record at some point during the process. Those types of missteps hurt applicants more than I think they realize. There are a good deal of employers that don’t think a criminal record is a per se disqualifier; but lying is. (So is having a typo in your resume, but I digress.)
I think the point with “Ban the Box” is that employers can still ask about a criminal record — just not until after the interview. Speaking of which, I just posted about a famous job interview on TV and the questions employers can’t ask. How do you suggest applicants deal with those questions and how can employers avoid trouble in interviews?
Nina: Ha! I am betraying my age but I absolutely loved watching Mary Tyler Moore, and I am not talking about the re-runs! While we are on the topic of true confessions, I will also tell you that to this day I become mortified whenever a character becomes embroiled in an embarrassing situation on TV or film, so much so, that I have to walk out of the room during that scene! I did just that many times watching MTM, loving it all the while.
So, assuming that there are good reasons for the applicant to still want to be considered for the position, notwithstanding the discriminatory (or at least inappropriate) queries by the interviewer, I would say that deflection, a bit of wry humor or a combination of the two are fine tactics to employ. For example: Q. How old are you? A. Old enough to have mastered everything there is to know about ____(selling widgets in the Northeast, writing grants for successful not for profits like yours, herding cattle, etc.). For another example: Q. Do you have children? A. I see that you do. Is that your daughter in that photo? She looks so proud holding that diploma! MTM aside, “spunk” is not a word that will come to mind for most employers if the applicant directly confronts them about their illegal questions.
Employers should be urged to stick to questions designed to determine whether the applicant has the experience and skill set to do the job.
Of course, if the applicant answers an illegal question honestly and does not get the job she may very well have a discriminatory failure to hire claim. Unfortunately, as you know, such clams are quite challenging for we plaintiffs’ employment lawyers to prove.
I would love to turn the tables on this one, Dan, are there some common scenarios which come to mind in which you are more apt to tell your client not to hesitate to to open the checkbook and add some zeros?! Inquiring (plaintiffs’ employment lawyer) minds want to know!
Dan: I’m not surprised by your like of Mary Tyler Moore. I grew up thinking she was kinda normal — my mom worked, and I didn’t think anything of it.
But anyways, back to your question which I don’t have to answer since all of my clients always follow the law. Am I right?
Anyways, I will say that hiring discrimination cases are fairly rare in my view. Employers have a tough enough time finding the right people. Unfortunately, when bad things for applicants do occur, most times the applicants may not even know about it. In those instances, each side just moves on and thus I rarely have to advise clients to open up the check book.
But that doesn’t mean employers can just discriminate. Where I think employers can make mistakes are actually on simple things. Don’t advertise that you just want “recent college graduates” – because you’re essentially telling anyone over 30 that you’re not interested. I mean, even Facebook was ensnared in that one!
And having obviously inappropriate questions in the job interview process is just asking an applicant to file a claim with the CHRO.
The one more thing that I think employers should watch is searching social media for disqualifying information. You know I’m a fan of the internet, Nina, but sometimes employers have a little TOO much information at their disposal. There are now laws prohibiting such use in some instances too.
Anything else on your mind or should we stop here and call it a success that we were able to speak so cordially even representing different client? See, maybe there is hope for the nation after all!
Nina: I am a big believer in leaving the party while I am still having fun (the one per year that I get to attend these days, in any event) and I have to tell you, Dan, I found this conversation to be a blast. Does that make me the ultimate employment lawyer geek? If so, I will wear that title proudly! Hope for the nation? The jury is out on that one. Hope for a more productive and even enjoyable relationship between management and employee-side lawyers? Absolutely!