The Dialogue: A Busy Year in Employment Law in 2019 with a Look Ahead to 2020

Dec 3 2019

As it appeared on The Connecticut Employment Law Blog

By Daniel Schwartz

It’s been far too long since our last installment from March 2019, but my ongoing dialogue with Nina Pirrotti, a prominent plaintiff’s-side employment law attorney, is back. In this post, we talked about the highlights from 2019 with a sneak peek at 2020.  My thanks to Nina for her contributions. You can find her firm’s blog posts here as well.  

Dan:  Nina! Good to talk with you again here.  I hope you had a great Thanksgiving; mine was full of turkey, stuffing and even skiing.  But we have so much to talk about. It seems that 2019 has been a busy year in employment law which is kind of surprising because the economy keeps rolling on. I thought we’d look back on 2019 and look ahead to 2020.

From my perspective, it’s tough trying to recap 2019 in just one or two paragraphs. The most obviously trendline to me sees to be that the #metoo movement shows no signs of abating or of a backlash.  And for people like both you and me who care about social justice, this is a great thing. Real change to root out sexual harassment has been long overdue. We’re now going to see training mandated at basically all workplaces and other changes.  But will it be enough or will it stall out in 2020?

Paid FMLA is obviously another big topic but we’re really not going to see those changes until at least 2021.  What else stands out to you from this past year?

Nina: A warm hello to one of my favorite sparring partners.  It is so great to rekindle our feisty exchanges!

Well, Dan, as you may have guessed from the two articles I wrote for the Connecticut Law Tribune in October 2018 and mid-March 2019, the critical issues raised by the #MeToo movement continue to loom large for me this year.

While we have on rare (and much publicized) occasions, seen the pendulum swing too far in the other direction, (See e.g. “’Survivor’ Contestants Apologize After #Me Too” Backlash”), the movement has largely been a force for healthy, overdue change.

One of the most gratifying changes I’ve seen this year has been spearheaded by the Connecticut Commission on Human Rights and Opportunities (CHRO) which recently released sexual harassment prevention training in accordance with the Time’s Up Act.  Under the Act, all employers are required to provide sexual harassment training to supervisors by October 1, 2020 and employers with three or more employees must provide this training to all employees (not just supervisors) by that date.

You know I love to talk about “win-win”s for employees and employers alike.  I see this Act as falling squarely within those parameters.  There is not a single employer, from the local hair salon or pizzeria to Fortune 500 companies that would not benefit from having such training in place.  And, of course, employees would also be empowered by such training in knowing what their rights and responsibilities are when sexual harassment rears its ugly head.

Of course, the RIGHT training is essential, isn’t it?  I have no doubt you winced when you read how Ernst & Young, the 9th largest privately-owned organization in the United States, saw fit to train 30 of its female executives just last year.   The training, which harkened back to Mad Men days, included admonishing women to avoid being “shrill” when they speak, not to flaunt their bodies and to ensure their nails were well “manicured.”   The wisdom imparted in the EY training materials also included a comparison of women to pancakes and men to waffles.  Apparently, women find it harder to focus because their brains absorb information like pancakes soak up syrup.  Men, in contrast, are better able to focus because their brains are like waffles, allowing information to collect in each small waffle square.  You can’t make this stuff up!

What was EY’s response to all this?  It stated that these shameful nuggets of advice were “taken wholly out of context” and that the company is “deeply committed to creating and fostering an environment of inclusivity and belonging at EY, anything that suggests the contrary Is 100% false.”   A trusted colleague of mine who has litigated employment cases on both sides of the aisle told me that while he was appalled at the training, he found EY’s glib, defensive response, void of any apology, let alone accountability,  to be even more disturbing. Here, here.

One step forward and two steps back, my friend.  Other than breakfast (all this pancake/waffle talk is making me hungry), what stands out in your mind as the issues du jour this year?

Dan: I’m always up for a discussion regarding breakfast. (I’ve taken an appreciation for a good Eggs Benedict, which was a favorite of my late mother-in-law.)

But back to employment law, I couldn’t agree more that training — just for training’s sake — isn’t going to affect change. It needs to be accompanied by changes to a company’s culture too.  When a Board of Directors or a CEO makes it a top priority, that’s when we really start to see change.

If I look back at 2019, I think it’ll also be the year when everyone realized (for better and worse) that some of our employment laws don’t fit squarely within the notions of the “gig” economy that has sprouted up.   The debate over whether a food delivery driver is an “employee” or an “independent contractor” is good for a Twitter-war, but no one should think that the Fair Labor Standards Act of 1938 is the best law to figure that out.

I realize that the FLSA has vital importance in establishing a minimum hourly wage — then 25 cents — and banning youth labor etc., but the patchwork of state laws that have sprouted up in the last few years has made it very difficult for companies in multiple jurisdictions to get into compliance.  What works in one state might not work in another.

Yet, it’s been 10 plus years since we’ve had any bi-partisan legislation on anything employment law related (the last one that I would highlight would be the ADA Amendments Act).  I realize that it’s foolish to think Congress will pass anything in this environment, but it would be good for everyone if our of our wage/hour laws were updated to address newer issues.  Until then, I’ll look back on 2019 as yet another year when our federal law-making process was in serious need of repair.

Before we look ahead, anything else in 2019 stick out to you?

Nina: Since there has been a dearth of legislation this year, I will offer up my own experience in my caseload this year.    In addition to the usual heavy sexual  harassment/discrimination caseload, I have had a disproportionate number of age discrimination cases.  Interestingly enough, they all have one common feature: employees with decades of stellar service to a major company, a new supervisor surfaces, and poof!  that tried and true employee morphs almost overnight into persona non grata.  

The scenario from there takes a variety of formats.  The employees are often repeatedly pressured as to when they plan to retire and, when they make it clear that they have no intention of going gentle into that good night, one of two things happen.  Either (1) the employer heaps the work of two people on that one person so that he/she drops the ball on one more items and are performance managed out or (2) the employer creates a new (dead-end) “position” for the older employee and then gradually, over some months, that new position is “eliminated.” 

It’s like a really bad movie – I  can see it coming a mile a way!

It would be funny if it weren’t so damn serious.  The statistics are grim.  Employees in their 50s and above have a one in ten chance of replicating their income over the remainder of their career.   According to the US Department of Labor, the average time someone over 55 years old is on unemployment is 7-9 months.   ADP also says older employees should expect to change their job on average every three years. 

There is also, of course, having to face age discrimination yet again while looking for work.  When AARP recently surveyed 3,900 people age 45 and older, 61 percent said they’ve personally seen or experienced age discrimination. Among those who’ve applied for a job in the past two years, 44 percent were asked for potentially job-losing age-related information such as birth dates and graduation years.

Onward and upward, though.  Do you see any hopeful developments on the horizon for 2010?!

Dan: Ha! I realize it’s a typo — 2010 seems like just yesterday — but it’s on to 2020, right? Where did the decade go?

I started 2019 by predicting that we would hear a lot more about layoffs and reductions in force.  That hasn’t happened….yet. But there’s still enough uncertainty out there that perhaps 2020 will be that year.

I do think that 2020 will be a year where we talk about non-compete agreements a bit more — if only in Connecticut.  It’s one of the few areas that hasn’t been touched that much by the legislature outside of some specialized areas like home care aides and security guards.  You could see prohibitions for low-wage workers being the next group that the legislature sees fit to cover.  I talked recently about a federal bill by Senator Murphy, but I don’t see that going anywhere in 2020.

As for age discrimination claims, maybe we’re thinking about those more because we’re getting older (gasp!).  Because if you look at the statistics from the CHRO, the number of claims filed last year was the lowest in at least a decade.  The numbers seemed to have peaked in 2012-13 with 525 claims; last year, just 443 were filed. Go figure.

Before we wrap this up, what about you? What are you thinking we’ll see in 2020?

Nina: Hmmm – perhaps with my alleged advancing age I am losing my grip on my typewriter keyboard, hence the typo!  I do think non-competes are long overdue to be front and center. As you know, Connecticut passed legislation a few years ago restricting the use of physician non-compete agreements in terms of their geography, duration and, most importantly, application only to those who voluntarily resign or are terminated without cause.    My hope is that such legislation will reach across the workforce in 2020 and, as with physicians, employers will not be able to impose non-competes on any employee they choose to terminate, as long as that termination is without cause.

We should probably wrap this up now but I feel compelled to come full circle and revisit sexual harassment before we do.  It is my hope that in 2020 we will build upon the CHRO’s emphasis on sexual harassment training and follow in the footsteps of New York State which recently passed legislation amending its New York State Human Rights laws to not only mandate sexual harassment training in the workplace but eliminate the requirement that the harassment be severe or pervasive to be actionable and extend the statute of limitations for filing a sexual harassment complaint from one year to three years.

Dare to dream . . .

Dan: One person’s dream is an employer’s sleepless night. Anyways, best wishes for the holidays and thanks as always Nina for the perspectives.

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