From Lawyer to Employer: Season 4, Episode 1: Legal Shifts, Severance Trends, and Our Fall Seminar Preview

It's really been great as we send this out. On today's episode, we've got a bit of a hodgepodge as we start a new season, I think after a long summer. Everyone wants to know what to catch up on. So I'm gonna go through a few items you may have missed over the summer. And then in our second half, I'm going to bring in a special guest for us to talk about an upcoming program.

I will say at the outset that unlike some other podcasts, I don't have access to Taylor Swift as a special guest, but at least around here for us, we've got a terrific alternative - the producer of this podcast, at least unofficially, one of the key people behind the scenes here at Shipman & Goodwin, Jessica Mantzaris, will come on this podcast to share some insights about a exciting program coming up later this month.

So more on that a little bit later at this episode. So with that, let's get into some of the interesting developments in employment law, and I've been thinking about this for a few weeks now, and the truth is there hasn't been sort of one earth shattering development that's screamed, Hey, let's do a podcast episode about this, but as I've been reviewing my notes and I will say sipping on my pumpkin flavored coffee, yes, it's fall. We have to have  some pumpkin flavoring here. I realize that there are enough developments here that are painting - it's sort of an interesting picture of where we're headed into this fall. So, first thing we're starting to notice is, is really at the federal level, perhaps not surprisingly, given some of the cuts that have been made in federal government.

Really something peculiar is happening with EEOC complaints. We handle EEOC complaints from a variety of jurisdictions across the country, and lately we are seeing more cases dismissed with sort of minimal investigation and frankly, sometimes even no inquiry at all. And what's even stranger is some cases are getting dismissed, I would say, faster than a reality TV contestant.

And there are some others that are just sitting there gathering dust. So. What does it mean for employers here? I, you know, I, I will say at the, at the outset, a handful of cases doesn't constitute any scientific study, and we'll really need to see the statistics that'll hopefully still be released from the EOC to determine if this is, is a trend.

But I, I think what we're seeing here is that the current administration and the people. That it has appointed are really firmly controlling the agency and deciding that certain cases don't warrant, uh, investigation within their big strategic plan. Now again, whether this really does constitute a policy shift or it reflects sort of some staffing issues, again, will will need to be seen.

In the future, but I think this is something worth monitoring, particularly for employers that have a nationwide presence. Is the EEOC going to be really involved with some of these cases, or are they really just gonna pick and choose now what they get involved with? Before I move on, one big caveat to this, which is if you're in Connecticut and listening to this, the State Commission on Human Rights and Opportunities continues to operate normally and with full investigative power still in play.

So I don't think we're gonna see so much of a change in Connecticut, but if we're looking for national trends, and I think this is one to keep a, uh, a close eye on. One of the other developments this summer that we have been seeing reflects the sort of economic uncertainty that we have been having over the last couple of months or so, and we're seeing both sides of that coin right now.

So when job opportunities shrink, employees typically file more discrimination complaints, you know, if it's harder to find comparable work elsewhere. The employees, historically, again, we're looking at historical trends going back, uh, as most recently as to the 2008, uh, 2009 recession back then, and I think now you're more likely to see an uptick in complaints.

But on the reverse side of that, you also see employers that sometimes tighten their severance purse strings. As employers are cutting costs, they are deciding to pay employers a bit less. So now we're seeing sort of this interesting dance going on. Employees generally seem to be asking for an enhanced severance package on their way out the door, which is.

Reflective of the fact that they may not be able to get a job or at least perceive that they'll be able to get a job as quickly as they were. So they are. Asking for more, but ultimately we are seeing employees take these severance agreements even at a sort of the employer's original offer, again, too soon to.

Call this a definitive trend, but it certainly does feel familiar to those of us who have lived through the late two thousands economic downturn. So I think for employers, the big takeaway here is consider how much in severance negotiation you want to engage in. Versus holding firm on your initial offer.

I think time will tell whether these, these threats from employees turn into claims. Certainly think employers need to be mindful of the environment that we are entering it into. But, you know, severance can be a powerful tool to help mitigate some of that risk as well. Some of the other items that we're seeing before we move on, one is again, if you're a public school or independent school.

October 1st is the, uh, deadline for Connecticut, FMLA and paid leave starting to apply for, for these non-certified. Teachers, this has been the subject of a lot of blog posts. We've done a webinar here at shipment. I'm not gonna spend a lot more time on it here, but I think the time is ticking. If you haven't already updated your PTO policies.

Looked at your leave policies and tried to bring some consistency to them. I think now's the time to do so as well. One of the other interesting things that we've seen too, is we've heard from some employers that have gotten calls from the Connecticut Department of Labor and really from their rapid response unit, this rapid response unit.

Probably not something most employers are familiar with. They are the ones who would look at war notices. These are the mass layoff notices that employers have historically filed for layoffs and that type of thing. We also saw an uptick at the start of the pandemic as some employers were looking at the shared work program.

You would hear the rapid response unit really being involved in monitoring that. Now I've heard from the Connecticut Department of Labor directly, this team is reaching out to employers that are laying off five or more employees to sort of inquire whether they could provide some help. And these are typically triggered by unemployment compensation benefit filings.

So it's not something employers are actively seeking the rapid response units involvement, but they are. Reaching out to employers now, what should employers do in this situation? I think it's understanding that this outreach is entirely voluntary. You're really under no obligation to cooperate. You can instruct employees not to participate.

But you're also free to listen and consider any advice offered. I think perhaps the simplest advice is if you do receive a call, consider sort of discussing your strategy with your employment attorney before proceeding. The last thing I wanted to cover briefly was a case I, I covered on my employment law blog, and I just wanted to mention it because it illustrates sort of the what.

Plaintiffs and, and essentially employees need to prove for retaliation claims and how those can sort of fall apart. And the case, if you are looking at this from home, is a case called Begley versus State. And this case involved a sergeant who worked for the Connecticut Intelligence Center where he was supervised.

This state police sergeant allegedly received a report that the supervisor had behaved in a sexually inappropriate manner according to a female officer, and following his chain of command, the sergeant filed a report with the EEO office in March 20. 16, the decision explains that the supervisor was promptly transferred back, and the investigation concluded in, in September, 2016 that the allegations couldn't be substantiated because neither the reporting officers nor the alleged victims would participate or give statements.

So here's where the story takes an interesting turn. The. Sergeant told colleagues that there was a involvement where they stopped sharing intelligence information with the Sergeant Center and allegedly the supervisor told colleagues this was coming from the top. And so flash forward a couple of years, there's a new commissioner who is the sergeant's ultimate boss, and one month after that, the.

Sergeant gets transferred from his intelligence unit to a troop in Hartford working the midnight shift. Then the sergeant sued claiming the transfer was retaliation from bringing that 2016 report. The trial court granted summary judgment for the employer or the supervisor and the appellate court has affirmed.

Why you may ask? Well, because the Sergeant really couldn't connect the dots between his protected activity, namely filing the report and the alleged retaliation, the transfer, and there were several gaps that the court identified in the case. The first is that the new supervisor. Allegedly didn't see the rep, the 2016 report until he was deposed in the lawsuit itself.

So there was no evidence that this other supervisor knew that, uh, the sergeant was the one who filed the report. And frankly, the gap in time, the three years was. Just simply too much here and really this case, the big takeaway is that employees still need to show a causal connection between the protected activity that is filing a report and the adverse action as well.

I think it's important for employers to understand as well that. Documenting the decisions is a great way to help defend yourself here, and the fact that only certain people knew about the report in 2016 actually helped the employer in 2019 because that information was not widely known. So interesting case for employers to keep an eye on.

Don't know whether we'll see an appeal to the Supreme Court, but at least for now, uh, it goes to show that not all retaliation claims are gonna survive. So with that, why don't we switch gears now and for the second half of this podcast. Uh, as I said, we've been doing this podcast for a while now, but one of the things you.

Don't see are the people behind the scenes to make this and some of the other programs we do happen. So one of those people is Jess Manza. She's been with us for a couple of years now. I meet with Jess on a regular basis. She's the unofficial producer of this podcast. Makes all of us look good, and I've asked her to join me here to give us a little bit of the behind the scenes preview of an upcoming in-person seminar We have later this, this month.

So with that. Hi Jess. Welcome to the podcast.

Jess Mantzaris: Hi Dan. Thanks for having me.

Daniel Schwartz: Yeah, it's, it's so funny to invite you to the podcast 'cause you've been, been with us since the start and it's really fun to introduce you to the, uh, podcast listeners here. So let's talk about this program. I'm gonna start with the obvious, which is it's in person this year, right?

It's been so long since we did the last one. I don't even. Think you were here, uh, ad Shipman since the last time we did it in person, right?

Jess Mantzaris: Yeah, that's right, Dan. I am very excited about this year's event. We're hosting it at the Hotel Marcel in New Haven. It will be on Tuesday, September 30th from 1:30pm till about 6:00pm. And like you said, it will be live and in person and we've been planning it for a while and are really excited to bring people together.

Daniel Schwartz: Now Hotel Marcel is really, uh, a unique building, right? That's the one that's right off of I 95. You can't miss it. It's that old, I think it was the Pirelli building. That's right. Right next to the Ikea. Right?

Jess Mantzaris: Right next to the Ikea.

Daniel Schwartz: I may be getting a couple of Swedish meatballs either before or after our presentation for this, so, so you mentioned it's gonna be in person.

Now, and I suppose this really does give an opportunity for people to meet other employers. We're gonna have a little bit of networking as well, but we've got a keynote presentation, right?

Jess Mantzaris: Yes, we start the event with a keynote session that everyone who's attending will get to sit in on. It's gonna focus on hot topics generally, so looking at things like immigration, recent Supreme Court and state court employment law decisions, updates on the NLRB, things like that.

Following the keynote, we have two breakout sessions. Folks attending will choose one of the two. The first one is going to look at navigating the maze of employee leave laws, the alphabet soup of FMLA, CT FMLA, PFMLA PSL, ADA - they'll talk about documentation and record-keeping strategies for managing leave.

And then the second session is a deep dive into federal wage and hour laws.

Daniel Schwartz: That's great. I, I won't test you on what all of the, uh, acronyms are on this podcast. Thank you. I, uh, yeah, no, I think, I think you'll leave it to us. And actually, I'm excited because along with my colleagues Sarah Niemiroski and Claire Pariano, I will be presenting at that breakout session on leave laws.

We've entitled it, Leave it to the Lawyers. Navigating the Maze of Employee Leave Laws, so I'm gonna put in a plug for that one. But my colleagues, Keegan Drenosky, Emily McDonough Souza and Justin Cedeño  are really gonna get into the wage and hour essentials here. And it's gonna look at some of the trends on proper classification of employees, some common overtime, missteps and release. Best practices for ensuring that the payroll meets legal requirements. So we'll talk about how employers can reduce risk or prepare for audits from  the Connecticut and Federal Department of Labor. So I think that'll be great. And I'm guessing we might have a little bit of food there for people too.

Jess Mantzaris: Yes, of course. This is a return to in-person, fantastic networking event. So we will have a full bar and we have a delicious lineup of past canapes. We have some Thai chicken salad, tuna tartar, veggies, and hummus. There will be something for everyone.

Daniel Schwartz: Yeah, the tuna tartar has my name written all over it.

And, uh, come for the CLE or the, uh, if you're an HR person for some of the HR credit or if you're just a business owner, come for the information. But I would say stay for the food. It's got a great, great location too. What about parking? That's pretty easy, right?

Jess Mantzaris: Yeah, parking is really simple for this, especially given New Haven, like you said, the building's right off of the highway. There's a big lot. It's free. Some of the spots are under solar panels, and it's a simple walk right to the hotel lobby.

Daniel Schwartz: Awesome. How can people register for this? I've heard, someone told me we are starting to run out of space quickly on this program. Right.

Jess Mantzaris: Yes, the event is very full. So, if this is something that is intriguing and you'd like to attend, I would highly encourage you to register right away.

In order to register, you could just visit the Shipman & Goodwin website. If you click on the events button on the top of the page, the Labor and Employment Fall seminar is one of the first events that will come up, and the registration button is right on the right hand side.

Daniel Schwartz: Awesome. And boy, something like this, we must be charging, uh, hundreds or thousands of dollars, right?

Jess Mantzaris: You would think, but believe it or not, this is a complimentary event.

Daniel Schwartz: Yes, it is complimentary, particularly for our clients and friends of the firm. We really do want you to attend. The last time we did a big in-person program was. Was frankly before the pandemic. And I think as much as the webinars have been great, uh, we have missed seeing some people in person.

And there was a real clamoring, particularly after our last program, we heard from enough clients that they would be willing, and obviously the numbers that we've been getting from registration, sort of demonstrate that people are, are looking to, to reconnect in person and work. Happy to oblige about it as well.

Anything else that people should know about the program?

Jess Mantzaris: I think, I think that's it. It's really just a great opportunity to get some valuable insights from our amazing lineup of speakers and also to connect over food and drink.

Daniel Schwartz: Awesome. Really appreciate it. Jess. As I mentioned before, Jess works really behind the scenes on putting this together and uh, I know we've got a special program coming up for this.

Jess, should I give before we, we close the program, should I give everyone a preview for some of our upcoming season four programs?

Jess Mantzaris: Yes, absolutely. Tell the people what we've got lined up.

Daniel Schwartz: So we've got another full season ahead as we have done last year. We are gonna try to put out programs about every few weeks.

Typically on a Tuesday is when we're gonna release them. Some of the programs that we have coming up, uh, will be a discussion about hot topics, unemployment law. Some of this will, uh, recap. The program that we are doing. And, uh, if you can't make the in-person program, we'll certainly try to recap some of that in that episode.

And then in some upcoming ones, we'll talk about employee leave laws. Some of the wage and hour laws and as we get further into the year, we're gonna do a very special program on holiday parties. Sort of the do's and don'ts from that. Uh, some may be obvious, but others may not be. And then as we wrap up the year, we will look at updating handbooks and policies.

That's always something that is of interest to employers as they move to the next year and try to start the year fresh. And then next year we've got some other programs that we'll keep in the background right now, but look forward to sharing that with you all. So with that, we have reached the end of another episode.

This was an interesting one for me 'cause most of it was. Just from me, but we're gonna have a lot of the same guests we've had on in prior years. I know Abby from our firm, SE and Keegan have all agreed to come on and, and others. So you'll get to hear from a variety of people and we look forward to having you listen in if you haven't already subscribed to the podcast.

Really, what are you doing? Click subscribe on wherever you listen to your podcasts, uh, whether it's on Apple Podcast, Spotify, or another program that you have. If you want to give us feedback. Uh, happy to have you leave comments and a review on any podcast, help others, uh, discover us, or you can send me a note at dSchwartz@goodwin.com. Always love hearing from you and if you have a topic you'd like to hear us talk about, happy to have that. So with that, we really do hope to see you at the program later this month, and we'll be back here in a few weeks for the next episode of From Lawyer to Employer. See you later.

Host: Thank you for joining us on this episode of From Lawyer to Employer a Shipman podcast. This podcast is produced and copyrighted by Shipman & Goodwin LLP. All rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice.

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