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Harassment in the Workplace

As long as humans have existed, the fact that people are physically attracted to one another has affected their behavior.  There have always also been people that have used their superior strength to get their way.  These forces are evident in the workplace resulting in everything from consensual affairs, to unwanted harassment, to incidents of physical violence.

For many years, the law has provided tools designed to prevent or at least discourage unwanted sexual or physical harassment at work and in society at large. For example, employees that are fired or demoted for refusing to participate in an unwanted sexual relationship with their supervisor can sue the offending party and possibly the employer.  Civil and criminal remedies are available to victims of physical violence.

While these tools are not new, they are now in the news almost every day as a result of an interesting cultural evolution we are all witnessing.  Until fairly recently, many women that were victims of unwanted sexual advances or physical intimidation would simply keep quiet in the interest of career advancement, or simply to avoid the embarrassment of going public.  The Me Too movement has changed the landscape.  As Katie Couric recently put it “ a long dormant volcano is erupting.”  In increasing numbers, both women and men are reporting without fear on incidents that previously might never have come to light.  People are less afraid to go public and more likely to resort to their legal remedies.

As examples, for years we all saw Harvey Weinstein smiling at Hollywood awards ceremonies.  Underneath the veneer, he was engaging in some pretty horrific conduct, because Hollywood  chose to have its collective head in the sand.  Suddenly times have changed: The New York Attorney General has filed a civil lawsuit against Harvey Weinstein and the Weinstein Company alleging that Mr. Weinstein sexually harassed and abused women and employees for years.  It is alleged that the company’s executives and Board of Directors were aware of what was going on and failed to stop it.   The once super-powerful company has filed for bankruptcy.  Further, rape and related criminal charges against Mr. Weinstein are being considered in both Los Angeles and New York.

More locally, Representative Elizabeth Esty is feeling the brunt of this cultural shift.  Her former Chief of Staff, Tony Baker had been involved in what began as a consensual affair with a female staffer in representative Esty’s office.  The relationship went sour and Mr. Baker was accused of sexually abusing, physically striking and repeatedly threatening the staffer.  It became apparent that Representative Esty failed to take any action against Mr. Baker for three months following the incidents and supported him in various ways after terminating his employment.  Following the political and public outcry that arose when this history became public, Representative Esty announced that she will not seek re-election this fall.  It’s particularly ironic that she has always been identified as a strong supporter of women’s rights.

There are lessons here for both employers and employees.  Employers need to take a no-nonsense approach to maintaining and enforcing their anti-harassment policies.  More than ever,  employers that conduct less than prompt and complete investigations and impose less than appropriate sanctions against wrong-doers will likely pay the price in court.  Employees that are victimized by inappropriate conduct at work need no longer cower in fear:  they should consult with an employment attorney to learn about their rights and the remedies that the law provides.

Things To Think About When You Lose Your Job

You’ve just been fired.  You’re upset and worried.  In many cases, you’ve been given a Separation Agreement and told that you have a limited period of time to review and sign it.   Here are some things to think about:

  • Illegality: If you’ve been fired or retaliated against based on your race, sex, religion, nationality or another of several protected categories, illegal discrimination may be involved and you may have a claim against your employer.  You may also have rights under an employment contract or a collective bargaining agreement.
  • Severance Pay: Some employers offer no severance pay.  Others may offer payment on a case by case basis.  Some employers apply a standard formula to calculate payment to departing employees.  If you have a claim that your firing was illegal, you may be able to negotiate an increase in the amount of severance pay being offered.
  • Severance Agreement Issues: If your employer gives you a Severance Agreement to sign there are several things to watch for:
  • In exchange for a severance payment, the agreement will undoubtedly require you to release any rights or claims you have against the employer.  Read the release terms carefully.
  • You may be bound by non-compete or other restrictive covenants in the Agreement or based on terms you agreed to when you were hired. These clauses may limit what type of new job you can get.
  • Carefully check to make sure you’re being compensated for all days you worked and for earned commissions, accrued vacation days and other potential benefits. The Agreement should specifically address these issues.
  • If you had health insurance through your employer, you may be entitled to coverage after your employment ends, and you may be able to get your employer to pay the premiums for a limited period.

These are not simple issues in any circumstances and if you’ve been fired it may pay to contact an experienced employment law attorney to help you sort through them.

Employment Law – Ban The Box Law Coming Jan. 1

– Ban the Box became law in Connecticut on January 1, 2017. Is your company in compliance?

– The new law makes it unlawful for employers to ask questions about an applicant’s criminal history upon initial contact. This means that employers can’t ask about a candidate’s prior arrests, criminal charges or convictions on the initial interview application.

– There are exceptions, but employers should study them carefully since noncompliance can result in a $300 per violation fine by the Department of Labor.

– As a reminder, employers can ask about a prospective employee’s criminal record after they have made a conditional offer of employment. Also, note that employers can’t require an employee or job applicant to disclose an arrest, criminal charge, or conviction if the records have been erased or where the employee has received a provisional pardon or certificate of rehabilitation.

– I suggest that employers look carefully at their initial employment application to make sure they comply before January 1, 2017.

5 Money Steps to Consider When Ending a Marriage

– The financial impact of a divorce can be as devastating as the emotional one.

In my role as a divorce attorney, here are some of the things I advise my clients to do as soon as possible after they have decided to end their marriages:

1. Make an accounting of your assets. Get an inventory of all of your assets including both those you own yourself and those owned with your spouse. Assets can include: pensions, 401(k) s, insurance policies, real estate holdings, stocks, bonds and savings.

Also, check your credit report. It’s not unusual for people who have lost interest in their marriage to start opening accounts – in their names (individually) or in the name of their spouses. Make sure that no accounts have been opened in your name without your consent. Sign up with a credit protection agency, like Debix or LifeLock that monitors these activities.

2. Contact all financial advisors. Once you make the decision to end the marriage, get in touch with anyone who handles your money. Don’t wait for the divorce to come through to contact banks, brokers and financial advisers. Let them know the situation. Send them something in writing that says no one can remove funds from your accounts without written approval from both parties. That protects you from the other party clearing out the assets before things are finalized. The laws in many states restrict such withdrawals once a divorce is started

3. Get an understanding of the alimony situation you may face. If you’re the primary breadwinner in your household, whether you are a man or a woman, you need to consider the fact that you may have to pay alimony. And if you have children, there will probably be child support. Get familiar with the divorce laws in your state. They vary across the country in how they treat each of these situations.

4. Make a budget. Whether or not you had a budget as a couple, you’ll need one as you contemplate single life. No matter what, a divorce will have an impact on your finances. Start to create your budget by adding in your monthly recurring expenses, like your mortgage or rent, car payments, childcare, cable bills, even gym memberships. Then figure in a monthly allocation that will go towards annual costs like car and home insurance and taxes. Knowing about these expenses will help you negotiate alimony and child support and help you decide on whether you’ll need to change your lifestyle after the marriage ends.

5. Start setting aside cash. No matter whether your divorce is contentious or cooperative, there will be expenses involved with it. And there’s no question that the aftermath will have an impact on your cash flow situation. Setting aside some funds for a financial cushion will help ease the disruptive financial nature of the break-up of a marriage. Check on whether your state’s law restricts your ability to transfer funds.

Recovering from the end of a marriage is tough – emotionally and financially. Taking these steps as soon as you decide the marriage is over will help you manage the financial impact and make your life easier.

Adoption and Divorce: A Family Lawyer’s Perspective on Brad and Angelina’s Split

– Family law reaches into some of the most private matters that a family has to deal with. One of the toughest involves divorce and children. And once the tabloid TV shows move on and gossip columns cool down that’s what is going to make the split between Brad Pitt and Angelina the toughest. Not the fame. Not the rumors. But the fate of the children that will be most impacted by this highly public split.

– The couple has six children – three of them are adopted and three of them are biological. Will the legal implications of divorce be any different for the adopted children? In most cases, the answer is no. However, there are some exceptions.

Legal Rights and Responsibilities of Adoptive Parents

– Once an adoption is finalized, adoptive parents take on many of the rights and obligations that they have with a biological child. They must care for and provide for the child. They have the right to make important decisions about the child’s health, education, religion, and other aspects of their life.

– In a divorce, child custody issues can differ depending upon the circumstances of the adoption. If, like the Pitt/Jolie marriage, both parents adopted the children, child custody issues are the same as if the children were born to the couple. On the other hand, if a child is the biological child of one parent and adopted by their partner, custody issues get more complicated. In deciding about custody, the court may take into consideration the biological link and how long the step-parent has been a legal parent to the child.

Legal Rights and Responsibilities after Divorce

Divorce doesn’t change the rights and obligations each parent has to a child – whether they are adopted or biological. In some states, there is a distinction between legal custody and physical custody. Legal custody gives a parent the ability to make decisions regarding the child. Physical custody relates to where the child lives. In many cases, both parents retain full legal custody, with physical custody awarded to the parent with whom the child will live. In some cases, physical custody is split between the parents- the child lives with each of the parents part of the time. These rules apply equally to biological and adoptive parents.

Child Custody

– Child custody determinations can be made in a number of ways and usually have little to do with whether a child is adopted or biological. I’ve seen parents agree to these arrangements amicably as part of the divorce settlement. I’ve also seen them disagree. Then, the matter is settled through mediation or, in the worst case scenario, at a trial. That means a judge will determine who should have primary custody based on the best interests of the child. The court’s standards on such things as custody, child support and parenting will most likely be the same for cases involving children born of the marriage or those adopted into it.

– No matter what the legal situation is, I urge parents of all children to put aside the complex emotions of a divorce in favor of doing what’s best for the child. Those emotions can be even more complicated for parents who have gone through all the trials and tribulation of adopting a child. In addition, parents of adopted children may worry that a divorce will stir up feeling of abandonment or rejection in their child. I like the advice from adoption social workers Ann Clearly, with Holt International, and Judy Goldman, with Vista Del Mar, in their article “7 Things Divorcing Adoptive Parents Must Do”

1. Embrace the role of co-parenting. This will be a new role for both of you and it means working together as what they call “partners in parenting.”
2. Commit to putting the child’s emotional needs above all else for at least one year. What they are advocating here is that you give the child’s emotional needs priority over your own- don’t make big changes to your life for 12 months.
3. Avoid talking to your child about how bad your ex is. “Your child is not your confidant. Your ex-spouse is now your new co-parent, and co-parents don’t put down their partner,” they advise.
4. Make the transitions between parents predictable. Your child may be living in two houses. That’s stressful. They advise: “…routines and information reduce stress. Let the child know in advance who will be in the house, what’s for dinner, and the next day’s schedule.”
5.Go out of your way to make sure your child knows he or she didn’t cause the divorce. This is particularly important for adopted children who may believe that something they did caused their birth mother to not want “to keep them.” The divorce may feed into this worry.
6. Show your child that you can be happy. “Start to enjoy life again. Have fun. Be a role model that happiness can be had even in unhappy times,” these adoption social workers advise.
7. Start making new family memories. I am particularly in favor of this message from the social workers for your children and for yourself: “You are still a family and you will be forever, even if living in two different houses.”

Clearly, the divorced lives of celebrities like Brad and Angelina will never come close to ours. But in this divorce, as in all others involving children, their decisions should be made in favor of the best interests of their children. All of their children. Just like the rest of us.

Employment Law Won’t Necessarily Protect Your Facebook Posts

– Think the law will protect your Facebook posts because of freedom of speech? Don’t be too sure.

– Officials with a Georgia school district recently fired an employee after she referred to First Lady Michelle Obama as a gorilla on Facebook. According to a statement by the Forsyth County Schools this elementary school paraprofessional was fired because “racism and discrimination are not tolerated” in the school district.

– Doesn’t the law say you can post anything you want on Facebook? No. There are a number of laws that limit what employees can post online. It’s all about what you post. For example The National Labor Relations Act does protect your right as an employee to communicate with other employees about the terms and conditions of your employment. So you can’t be disciplined or fired if you post about that. Also there are a number of federal and state laws that protect employees from employer retaliation for reporting certain types of problems (discrimination, harassment, unsafe working conditions, and so on). But that doesn’t protect other kinds of posts.

– My advice as an employment law attorney is that you consider the public nature of Facebook before you post anything.

Divorce and Older Couples: A Divorce Attorney’s Perspective

– Divorce over 50? It’s not only possible; it’s more probable than ever. In fact, the divorce rate for people 50 and older doubled between 1990 and 2010, according to a study by Bowling Green State University sociologists. Two decades ago, those over 50 accounted for about 10 percent of divorces. Recently, the divorce rate for this age group rose to approximately 25 percent. And, even more surprisingly, approximately half of those divorces occurred in first marriages.

What are some of the things that those involved in “gray divorces” will experience? Here’s a list from my experience as a divorce attorney:

1. Alimony

Alimony is almost always granted after long-term marriages. Unlike the situation for younger couples, where they’ll get temporary alimony until they get back on their feet, it’s different for those in long-term marriages. In fact, the courts often give alimony for life for long-term marriages. This is especially true if one or both of you is still working.

2. Retirement Funds

When couples are over age 50, retirement accounts can be significant and dealing with them can be tricky. For many couples, their retirement money will be cut in half or close to it. In addition, one or both may have to put off retirement or work part-time. There are also tax implications, so this stage in the divorce negotiations can be particularly tough.

Certain qualified retirement accounts, such as 401(k) or defined pension plans, may be divided on a tax-free basis. For other retirement assets, such as IRAs, the divorce agreement will need to spell out the terms for the division of funds. One thing to remember: if one spouse receives funds from an IRA, they must be rolled into another IRA after the divorce. If not, the recipient may face a tax liability.

3. Keeping the House

Older adults often want to keep their long-time home for when their adult children and grandchildren come to visit. A couple can be locked in a particularly contentious battle if one spouse wants to keep the home while the other wants to sell it.

If you are so attached to your longtime home that you don’t want to sell it, expect to give your soon-to-be ex a substantial payment to cover their portion of its value. That might result in them keeping a greater share of their pension or having a smaller alimony obligation.

4. Social Security

If you were married for 10 or more years, you are entitled to Social Security benefits based upon your ex’s employment record if your benefit is lower than their’s. To qualify, you must be at least 62 years old, unmarried and have an ex who’s entitled to Social Security benefits. Your benefit would be equal to half of your former spouse’s full social security benefits.

5. Health and Long-Term Care Insurance

– During the marriage, one of you may have relied on the other for health insurance benefits. A divorce agreement can specify that you receive health coverage after the divorce. You may also be eligible to receive COBRA benefits for three years after a divorce. The question of who will pay for that can also be part of the divorce agreement. After that period, you may be covered by Medicare or, if you aren’t old enough to receive Medicare, the divorce agreement will need to work out who will pay for coverage until that time.

– If you expected your spouse to be your caregiver as you two got older, that, too is going to change. If you have long-term care insurance, it’s especially critical so make sure the divorce agreement specifies who will be responsible for those premiums. If you don’t have long-term care insurance it may actually be mandated as part of the divorce and the payment assigned as part of the settlement agreement.

– Divorce at any age is always difficult. But a “gray divorce” comes with some additional challenges. There’s less time to recover financially and emotionally. Adult children may feel a sense of divided loyalty and be worried about supporting each of their parents who now have diminished resources. In my experience, being bitter during the process complicates everything. Clearly, a divorce after a long-term marriage is not a spur of the moment decision. Emotions and long-simmering gripes can easily dominate the negotiations. As a divorce attorney, I advise keeping the conversation polite, civil and business-like. Then, when the divorce is granted, both of you, and all members of your family, can get on with your lives.

Fox Settlement with Carlson Could Have Impact on Employee Law

– Yesterday, the landscape of employee law got a bit of a shakeup with Fox’s announcement of a settlement with its former anchor Gretchen Carlson. While the $20 million settlement wasn’t a record, it was substantial enough. But that’s not what makes the settlement noteworthy.

– What makes it remarkable was company’s statement. Fox made a public announcement of the settlement, which included an apology and words from Carlson herself. In its statement, the company apologized for the behavior, saying, “We sincerely regret and apologize for the fact that Gretchen was not treated with the respect and dignity that she and all of our colleagues deserve.” For my money this is a clear acknowledgment that Carlson’s charge had merit and that they acknowledge she was treated inappropriately.

– What makes it remarkable was company’s statement. Fox made a public announcement of the settlement, which included an apology and words from Carlson herself. In its statement, the company apologized for the behavior, saying, “We sincerely regret and apologize for the fact that Gretchen was not treated with the respect and dignity that she and all of our colleagues deserve.” For my money this is a clear acknowledgment that Carlson’s charge had merit and that they acknowledge she was treated inappropriately.

– In most cases, companies that arrive at these kinds of settlement don’t issue any sort of a statement. And, if they do, it’s usually a non-statement about respecting the privacy of those involved.

– They avoid making these kinds of statement fearing they could open the door to risk. And, although the statement isn’t about legal liability, it’s productive in that it includes an admission that Carlson was not treated with dignity.

– The move by Fox is a good one. The apology is appropriate and timely since Carlson’s not the only female employee who’s accused them of fostering an environment where sexual harassment was tacitly permitted.

– The statement acknowledges Carlson was treated badly and may be signaling that Fox intends to make a change in their culture. An apology like this is something many of my clients who’ve experiences employment harassment want. Often, though, they don’t get it. This case may just signal a change in that arena.

Wait on the Contractor’s Contract Until You’ve Found the Right Person

– There are a lot of important legal issues to consider when hiring a contractor, and a good contract is key. But the best contract in the world will not fully protect you if you start out with someone incompetent or, worse, dishonest. So it’s important to do your homework on the contractor before thinking about a contract.

– Start with friends and family. Yes, I know that’s low-tech, but the truth is that a face-to-face conversation from someone you trust beats the heck out of any on-line resource. Ask whether they were happy with the work. Would they work with this contractor again? What do they wish they knew about the contractor and the final product before they got started? And, ultimately, would they recommend the contractor?

– Next, check established industry organization like the National Association of the Remodeling Industry, your local Better Business Bureau and Connecticut’s Department of Consumer Protection. This last resource keeps a list of licensed registered contractors and offers a place to file a complaint.

Once you’ve got a list, it’s time to do your own research. Here are some questions to ask your contractor for construction:

  • What experience do they working on similar projects?
  • How many other jobs will they be working on during your project?
  • Can I get a list of previous clients and their contact information? I suggest you get five references from people who’ve had the same kind of work done on their homes. Call all of them and ask about the contractor’s ability to stick to budget and deadlines. Ask if they kept their promises about when they’d be there and when they’d finish. Lastly, ask about how they handled changes and how willing they were to respond to any concerns.
  • Will they be using subcontractors, and, if so, how long have they worked with them?
  • Are they licensed and insured? Do NOT work with anyone who’s not a registered contractor or licensed contractor. Make sure you see that paperwork and keep a copy for yourself.

– Don’t let your home remodeling project be something you regret starting. And don’t jump in until you’re sure the contractor is right for you. A little homework before you write that first check and sign that contract for construction will go a long way towards making your project something you’ll love to live with for years.

Wrongful Termination Discrimination Law Supports Pregnant Chipotle Employee’s Suit

– A discrimination claim by a pregnant Chipotle employee strikes a blow for pregnant employees everywhere. In a recent decision, the court awarded Doris Garcia Hernandez $550,000 in compensatory and punitive damages after she was treated unfairly and, ultimately fired based on pregnancy-related issues.

– Ms. Hernandez became pregnant while working for Chipotle in Washington, DC in 2011. When she told her manager (referred to in the suit only as “David”) that she was pregnant, he restricted her access to water and bathroom breaks. According to the suit, David told her that whenever she was going to take a bathroom break she had to announce to every employee in the store where she was going. He also said he had to approve her bathroom breaks. Hernandez alleged that other employees were not required to go through this process.

– In addition, David ignored her repeated requests to leave work early for pre-natal appointments. She left early to attend one appointment and was fired the next day, in front of the other employees and in the middle of the restaurant.

– With its verdict earlier this month, a U.S. District Court jury in Washington, DC, made the case loud and clear that such behavior is not allowed in the workplace.

– The lesson here for employers and employees is clear: discrimination based on an employee’s pregnancy is illegal. The Federal Pregnancy Discrimination Act “forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition or employment,” according to the U.S. Equal Employment Opportunity Commission. Connecticut state law includes similar protections. Employers may not harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

– Know your rights in the workplace.