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Daniel Schwartz

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Dan represents employers in various employment law matters such as employment discrimination, restrictive covenants, human resources, retaliation and whistle blowing, and wage and hour issues. He has extensive trial and litigation experience in both federal and state courts in a variety of areas, including commercial litigation and trade secret enforcement. Dan is the author of the independent Connecticut Employment Law Blog. The blog discusses new and noteworthy events in labor and employment law on a daily basis.

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Young woman and recruitment procedure in corporationThis post originally appeared on the Connecticut Employment Law Blog.

In an decision of first impression in Connecticut, a federal court on Friday ruled that a transgender discrimination claim based on a failure to hire can proceed under both Title VII and Connecticut’s counterpart, CFEPA.

While the groundbreaking decision in Fabian v. Hospital of Central Connecticut (download here)  is sure to be the subject of discussion, as the court notes, Connecticut has — in the interim — passed a state law explicitly prohibiting discrimination on the basis of gender identity. Thus, for a few years now, Connecticut has already explicitly prohibited transgender discrimination under state law. (The case was based on facts that occurred before passage of the state’s anti-discrimination law.)

But the decision obviously goes further than that and takes up the logic advanced by the EEOC and others of late — namely that Title VII’s prohibition of discrimination “because of…sex” should be read to include transgender discrimination.  The court’s opinion should be mandatory reading not only in the state, but for practitioners nationwide faced with similar claims.Continue Reading Connecticut District Court Allows Transgender Discrimination Claim to Proceed Under Title VII & CFEPA

Judge gavel

This post originally appeared on the Connecticut Employment Law Blog.

In an unanimous decision that was released late morning October 5, 2015, the Connecticut Supreme Court ruled the limits to free speech limits established by the U.S. Supreme Court in its Garcetti decision — namely that speech pursuant to an employee’s official job duties was not protected — did not apply to claims brought under the Connecticut Constitution.

In other words, there are broad protections for employees who raise issues of public concern in both the private and public workplaces after this decision.

Back in 2012, the Connecticut Supreme Court ruled in Schumann v. Dianon that First Amendment’s protections in the workplace didn’t extend to speech related to an employee’s job duties.

But the court left open the question of whether the Connecticut Constitution provide an independent and greater right of free speech for public (and even private) employees than the First Amendment of the U.S. Constitution.  In doing, the court stated: “We decline to reach the state constitutional issue raised in the plaintiff’s alternative ground for affirmance….”
Continue Reading BREAKING: Connecticut Supreme Court Expands Employee Free Speech Claims

LaptopArialImageThis post originally appeared on the Connecticut Employment Law Blog.

There’s been lots of talk lately about the Confederate flag and its symbolism in the aftermath of the Charleston shootings.

But I wondered: How has this flag come up in the context of employment discrimination cases?

It’s actually referenced a bunch according to a quick search by Google.  A case out ofAlabama alleged a racially hostile environment with displays of the flag in 2011.  Indeed, in another case, an employee complained that various co-workers wore lots of clothes adorned with the Confederate flag.

So yes, displays of the flag at work can cause issues and give rise to discrimination claims. Not a big surprise. (Notably, my search did not highlight any particular displays of the Confederate flag coming up in Connecticut state or federal court cases.)Continue Reading Can Employee Display a Confederate Flag on Facebook as Free Speech? Or Can Employer Take Action?

WCO_040This post originally appeared on the Connecticut Employment Law Blog.

What does it really mean to provide a reasonable accommodation to an employee who has a disability?

That’s a question I talk about a bunch with clients.  The employee may request one thing but the employer may think that another accommodation can accomplish close to the same thing, perhaps at a lower cost.  Who wins?

It’s not a new question; I’ve talked about it before here on the blog too.

But a recent case by the Second Circuit adds some layering to that discussion.  The case, Noll v. IBM, isn’t one that you’ll see on the front page of The New York Times.  I found out about it from the always reliable (and underrated) Wait a Second Blog.

That blog’s recap is appropriate here:

Noll worked in Poughkeepsie, N.Y., but IBM is a huge corporation for which internal communication were broadcast over a company-wide intranet. Noll asked for captioning of certain intranet videos or transcripts of audio files. Instead, as noted above, IBM gave him transcripts and access to ASL interpreters. Noll said these alternatives were not good enough it was “confusing and tiring” to look back and forth between the video and the ASL interpreter. Also, it sometimes took five days or longer for transcripts to be made available to Noll, and links to the transcripts were sometimes broken.

Continue Reading Revisiting Reasonable Accommodation Under the ADA — Being “Effective”

This post originally appeared on the Connecticut Employment Law Blog.

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Well, no one who has been reading this blog should be surprised by the news tonight out of the General Assembly

Indeed, I’ve written about proposed bills that limit employer access to employee’s personal online account for years now with a lot back in 2013.   (See prior posts here, here, here, andhere.)

And now, finally, we have it. The General Assembly has passed Senate Bill 426 entitled “An Act Concerning Employee Online Privacy”.  And barring a veto from the Governor, this new law will become effective October 1, 2015.

There are several components to the measure but the important thing to note at the outset is that it applies to nearly all employers (with some limited exceptions in the law enforcement area).

The Office of Legislative Research does a good job recapping it so for this post, I’m simply going to provide the salient points from the report and provide a link to the recap.Continue Reading BREAKING: Legislature Passes Measure Limiting Employer Access to “Personal Online Accounts”

This post originally appeared on the Connecticut Employment Law Blog. 

When I made predictions/wishes for 2015 at the end of last year, I offered up one on what the Connecticut General Assembly might do:

CTCapitolImageMy Prediction: We’ll see a new rule or two, but with all the mandates that have been passed in the last four years, I expect there to be more bluster from politicians, but that we’ll actually see a bit less interference when all is said and done — at least for now.

There still some time left in the legislative session, but I’m getting increasingly pessimistic on this one.

Indeed, if anything, it seems from the bills being proposed that even more legislation is on the horizon that could take Connecticut into places no state has gone before. (Cue the Star Trek theme.)

For employers, this should be a major cause for concern. Because if you think that the amount of regulations and wage pressures that the state has been placing has been overbearing, the bills being proposed suggest that you haven’t seen anything yet.

Let’s go through some of them:

Legislation backed by labor advocates this year seeks to fine big corporations like Wal-Mart $1 per hour for each employee paid $15 per hour or less. The fiscal note estimates that about 146,710 of the 743,328 employees who work for companies with at least 500 employees would be covered under the bill. The bill would result in a revenue gain to the state of up to $152.6 million in 2016 and $305.1 million in future years.

Continue Reading So Much for a Quiet Legislative Session on Employment Law Issues