Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

BLIZZARD! Wage and Hour Reminders for Employers on Winter Storm

Posted in Featured, Highlight, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center, Wage & Hour

Well, it’s official.  Connecticut is under a Blizzard Warning as of Sunday afternoon.

This is, of course, nothing new for employers in the state. We’ve had more than our fair share of big “monster” storms. If you’ve been following this blog for some time, you’ll have read more than your share of blog posts about what to do with your employees when a storm hits.

But here are three issues you may not have thought of recently.

Reporting Time or Minimum Daily Earnings Guaranteed: Connecticut has a “reporting time” obligation (as do several of our neighboring states). It is contained in various regulations and applies to certain industries like the “mercantile trade”. You should already be aware of this law, but it has particular application in storm situations where people may not work full shifts.

For example, in Conn. Regs. 31-62-D2(d) for stores, an employer who requests an employee to report to duty shall compensate that employee for a minimum of 4 hours regardless of whether any actual work ends up getting assigned. So if you bring your employees in on Tuesday only to send them home 30 minutes later, you may be on the hook. For restaurant workers, it is typically a minimum of two hours (Conn. Regs. 31-62-E1)

Takeaway? For certain industries, be sure to know whether you will need to pay employees for a minimum amount of time if you send them home early from their shift.

Wage Agreements: Also be aware of any wage agreements (collective bargaining agreements mainly) that require you to provide employees with a guaranteed minimum number of work hours. Typically, these will need to be followed.

Hours Worked: Be aware of Connecticut’s “hours worked” regulation found in Conn. Regs. 31-60-11. That regulation says that “all time during which an employee is required to be on call for emergency service at a location designated by the employer shall be considered to be working time” regardless of whether the employee is called to work.

When an employee is on call, but is simply required to keep employer informed of whereabouts or until contacted by the employer, working time starts when the employee is notified of his assignment and ends when that employee is finished.

As you contemplate whether to close the office this week, make sure you’ve thought about these issues:

  • What are the situations when an office will close?
  • How will employee receive notice that an office is closed? Is there a central number that they can call for information? Will an e-mail be sent out? What about text message?
  • Will employees be paid for the time when the business is closed?
  • Will employees be paid if they don’t report to work due to inclement weather when the business is open?
  • Will the employer discipline or discharge and employee for failing to report to work due to weather conditions when the business is open?

As I said before, none of these issues should really be new for an employer in Connecticut. But with this being the first big storm of the season, it’s time to shovel out those policies.

Stay warm and safe the next few days!

Use of Marijuana On Duty Still Justifies Termination, Says Court

Posted in Highlight

With all the talk about the state’s implementation of medical marijuana laws, it’s easy to wonder what impact those laws will have on terminating employees who use marijuana on the job.

One recent Superior Court decision gave a pretty clear answer for state employees: None.  In other words, for employers: Fire Away.

That, of course, simplifies the decision and the result — employers should still exercise caution when disciplining employees for drug use to understand the facts and circumstances — but the court’s decision is yet another affirmation that the statestillhas a strong public policy against the use of marijuana, at least for its employees.

The case, State of Connecticut v. Connecticut Employees Union Independent, arises from the State’s challenge to an arbitration award reinstating an employee who was terminated for using marijuana while on the job.  The State contended that the award should be vacated on public policy grounds.

The Superior Court agreed with the State because it violates the state’s well established public policy on illegal drug use while on state duty.

The union argued that the award must be confirmed because the State is “currently implementing the legalization of medical marijuana.”  The court rejected that argument pretty simply by stating that even if that’s the case, there is “nothing in the records [to] indicate that grievant was prescribed marijuana.

Regardless, as I said back in 2012:

  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.

It remains to be seen whether other lower courts will follow this path and whether the appellate courts in Connecticut will confirm this logic. But for now, this decision from the Superior Court ought to make employers breathe just a little easier on that point.

 

New Retaliation Standard of Proof Shows Its Teeth

Posted in CHRO & EEOC, Discrimination & Harassment, Litigation

When the U.S. Supreme Court changed the standard for proving retaliation cases back in 2013, there was some speculation as to whether the standard would result in different decisions.

Before the court’s decision, employees who claimed they were retaliated against, needed to show only that the retaliatory motive was a “substantial or motivating fact” affecting their termination.  The Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar heightened that standard, requiring employees to show that an employer would not have taken an adverse employment action “but for” a retaliatory motive.

When that decision was released I said, “It will be tougher to establish a retaliation claim when you have to show that the termination wouldn’t have happened “but for” the retaliatory motive. ”

Now we have proof.  And it actually follows from a case I first reported on about 18 months ago.

In Cassotto v. Donahoe, the Second Circuit last week affirmed a jury verdict on favor of the employer.  In the same case using the older standard, a jury had first found in favor of the employee in a termination case.  But while the case was pending a motion for new trial, the Supreme Court issued its decision.  The District Court then granted the employer’s request for a new trial; the employer won that second trial.

In its decision, the Second Circuit said that the District Court did not abuse its discretion in granting a new trial.

Considering [the employee's] purely circumstantial evidence of retaliation and the defendant’s evidence suggesting a legitimate alternate explanation for his termination, we cannot say that the district court abused its discretion by concluding that the incorrect instruction on causation might have affected the verdict, that a correct instruction conveying a heightened standard might have led to a different verdict, and that a new trial was therefore warranted.

With a bit of humor, the Court adds a kicker in a footnote: “Indeed, at the second trial, the properly instructed jury returned a verdict for defendant, resulting in the judgment now under review.”  In other words, the District Court didn’t err because its self-evident that the new standard made a difference in the outcome.

For employers, the decision is an important reminder when discussing settlement or considering a motion, that the new standard for retaliation cases does have some teeth to it.  It should impact the value of cases and this case is a good example of that.

And while we haven’t yet seen a big dropoff yet in retaliation cases filed at the EEOC (much of the data has yet to be released), the long-term impact of the Supreme Court’s decision is only beginning to be realized.

Cassotto v. Donahoe

 

Updated Paid Sick Leave Guidance and Poster Issued by Connecticut Department of Labor

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour

Somewhat quietly (at least to me), the Connecticut Department of Labor has issued updated guidance regarding compliance with the state’s Paid Sick Leave law.

But employers who have been following the developments in this area — namely the changes to the law by the legislature — won’t be surprised much by the minor changes that have been made.

The changes to the guidance are essentially in conformity with the revisions to the law.

For example, to determine if an employer is subject to the law, the number of employees that an employer has on the payroll as of October 1st will be used.  It also notes that “radiologic technicians” have been added to the coverage of the law, consistent with the changes.

Nevertheless, if any employers have been using the previous guidance, it’s time to use this useful new resource and discard the prior guidance.

Notably, the CTDOL has also updated their posters for Paid Sick Leave for employers to use.  These new posters should be displayed immediately by employers in place of the old ones.

 

Proposed Bills Are First Up on Labor Committee’s Agenda

Posted in Legislative Developments

The first few days of the new Connecticut legislative session are, dare I say it, kind of fun from an outsider perspective. That is, if you know what you are looking at.

Why? Because it’s the time when legislators start submitting “proposed” bills. But these proposals are far from polished products. Sometimes, these proposals are done to satisfy constituents. Other times, they are submitted to get the issue discussed before a committee.

Either way, they can raise a few eyebrows.

Take Proposed Bill No. 5267. This proposal would require “the Labor Department to develop and promulgate an employers’ bill of rights”.  Why? It would “serve to protect employers from frivolous complaints and claims brought by employees.”

My friend, Jon Hyman — who actually wrote a book entitled “The Employer Bill of Rights” — ought to love this one. Unfortunately, the substance of the proposal is basically confined to the line I just mentioned. No specifics.  But here are some that Jon has suggested:

The Right to Hire on Qualifications;

The Right to Fire on Performance;

The Right to Control Operations:

Alas, I think the Connecticut proposal is the beginning and end of such an idea.

The opposite of the above proposal is Proposed Bill No. 5080. This proposal would amend state statutes to require retail stores to close on certain holidays unless it allows its employees to decline to work such holidays without penalty.  Call it the Kmart effect; Kmart opened before breakfast on Thanksgiving.

It’s still early though. These bills will be discussed at today’s legislative committee meeting.  There are lots more proposals coming down the road. Among the other items on the committee’s agency “an act concerning the use of credit histories in employment decisions” and  ”an act concerning healthy workplaces”.

Pull up a chair. The next few months ought to be interesting.

 

Name that Party When Represented by Counsel, Says the Court

Posted in CHRO & EEOC, Highlight, Litigation

What’s in a name?

Not a Wendy’s Burger.

To a recent Superior Court decision, everything. But only if you have been represented by counsel. Confused? Let’s backup for a second.

A prerequisite to filing a discrimination claim in state court is that the employee file the same claim before the Commission on Human Rights and Opportunities.  This includes, in most cases, naming all of the parties (or Respondents, in this case) to the claim at the agency level.

But courts have fashioned an exception to this filing rule where a named Respondent and the heretofore unnamed party have an “identity of interests.” Courts have outlined a series of factors to be considered under this “identity of interests” exception.

Here’s where things get interesting, as this recent case demonstrates.

Suppose the employee was represented by counsel at the agency level.  Does that change the rule?

The Superior Court in Harrelle v. Wendy’s Old Fashioned Hamburgers of New York, Inc.,  said yes, the rule is inapplicable in that situation.  It cited another unpublished case, Marks v. Cogswell, from 2011 which stated “Courts have consistently held that this identity of interests exception to the requirement that defendants be named in the preceding CHRO complaint only applies when the plaintiff was not represented by counsel before the CHRO.” Of course, because the case is unpublished, you’ll only find it on specialty legal sites.

In any event, it’s an important, if overlooked, exception to the “identity of interests” exception and employers who are dealing with new parties in a lawsuit ought to invoke it whenever possible.

Since You Asked: A Modest Wage & Hour Law Proposal

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Wage & Hour

Yesterday on Twitter, a Connecticut legislator posted this:

State Representative Matt Lesser, be careful what you ask for. But since you asked, here’s a modest proposal that I saw recently that ought to be discussed.  It’s not perfect, but it brings up an important topic that Connecticut should talk about.

(We won’t, of course. The General Assembly hasn’t shown any interest in this.  But humor me just for a minute.)

A former colleague of mine, Michael Kun, of Epstein Becker & Green, recently advanced a proposal to amend federal wage & hour laws to bring them more in line with the way we treat other employment laws.  Namely through compromise and settlement.  Regardless of your political leanings, it’s an insightful and thoughtful post and definitely worth a read.

Michael’s advances an argument based a theory that I’ve talked about before in so-called “wage-theft” cases: That employers are typically trying to comply with a whole host of laws.

The desire of employers and their counsel to comply with the law plays out thousands of times every day, to the great benefit not just of employers, but of employees. All management-side employment lawyers worth their salt have stories about how they worked with their clients to prevent a manager from terminating an employee’s employment, or cutting an employee’s pay, by explaining the law and the potential repercussions.

But there’s a problem, according to Michael.  Federal wage & hour laws “dissuade employers from correcting wage issues.” Why?

Because, unlike other employment laws, the FLSA generally doesn’t permit employers and employees to resolve wage disputes, short of the very litigation or agency complaint that neither employers nor employees really want.

The FLSA forbids the very amicable resolutions that would benefit both employers and employees.

And it’s time to change that.

He proposes a system to resolve complaints with safeguards that are similar to those used in age discrimination cases.  I will readily acknowledge that the proposal is far from perfect, but it tackles a subject that for too long has created litigation without creating a fair escape hatch to avoid expensive litigation for employees and employers alike.

Here’s the thing, Representative Lesser, that same system exists under state law too.  Employers who discover that they may not have been following wage & hour laws have an incentivenot to disclose it because if they do, even voluntarily, the Connecticut Department of Labor can (and, in some instances, will) require penalties and interest to be paid along with it — even if reasonable people could disagree about whether such violations did, in fact occur or were intentional.

Wage & hour case also are challenging to settle in Connecticut because some lawyers representing employees can use any such voluntarily acknowledgments to prove liability and then litigate these cases for high fee awards all the while assuring their clients they should hold out for nothing less than full capitulation by the employer.

A few years back, I floated the idea of an amnesty program for employers to disclose voluntarily wage & hour violations with a Connecticut Department of Labor official.  The official appreciated the sentiment but said it would never fly because the existing legislation would need to be amended.  Maybe such a proposal could be done in conjunction with making the penalties for intentional violations stricter.

Regardless, I agree with Michael’s post that ultimately the only ones who benefit from keeping the status quo are the lawyers.  We’ll do just fine.

Yes, it’s a bit unconventional.  But Representative Lesser — you didn’t want easy proposals right?

What is the Mileage Reimbursement Rate for 2015?

Posted in Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour

For several years, one of the most popular posts on my blog was the one where I listed the mileage reimbursement rate for businesses.  It’s been relatively stable, but this year brings about another small change.

In any event, the new rate became effective January 1, 2015. Remember, this is the optional standard mileage rates. These rates are typically used by businesses to help calculate mileage expenses for employees but it is not mandatory.

Beginning on Jan. 1, 2015, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be 57.5 cents per mile for business miles driven (up from 56 cents in 2014.)

As a reminder, companies with personnel policies about their mileage reimbursement should consider updating their policies immediately to reflect this change. In the future, employers can draft a policy that states that their standard mileage rate will be consistent with the IRS’s rate without reference to a particular number.

Workplace Investigator Institute Heading to Connecticut in May 2015

Posted in Human Resources (HR) Compliance

A few years back, I had the opportunity to meet Allison West at a conference out in California.  She runs Employment Practices Specialists and does workplace investigations. (She’s also a terrific speaker and I’d highly recommend you go to a session where she is speaking.)

She recently let me know about an Association of Workplace Investigators institute that is coming to Connecticut for the first time in May of this year.  I asked her a few questions about it via e-mail and have edited that conversation here for those that have an interest in the subject.

So Allison, what exactly is the Association of Workplace Investigators? 

Allison: AWI is the premier organization in the nation dedicated to promoting and enhancing the quality of impartial workplace investigations. Its members include professionals from around the country who conduct workplace investigations.

Before I ask about the institute, can you share your thoughts about why companies should hire an outside investigator and in what circumstances?

Allison: Sure.  The law of workplace investigations is evolving and courts and agencies around the country have made it absolutely clear that employers have a legal obligation to conduct prompt, thorough and effective investigations when certain allegations of wrongdoing in the workplace arise.

One of the essential elements of an effective investigation is an impartial investigator.

Sometimes, investigations should be handled internally.

But there are times when it is critically important to bring in an outside investigator.

For example, say an employee makes allegations of harassment by the employer’s top executive. It will be difficult for an HR manager, who ultimately reports up to that top executive, to be (and, just as importantly, to appear to be) impartial and unbiased.

Can you provide some common mistakes you see from companies and its investigators when conducting an investigation?

Allison: We see a lot of mistakes, and they can be quite costly for employers.

One of the most common mistakes is the perceived or actual impartiality or bias of the investigator. Engaging someone who has skin in the game, so to speak, can render even a well-conducted investigation suspect.

Another mistake is a lack of thoroughness. Investigators will sometimes look at some of the evidence, or speak to some of the witnesses, but miss critical pieces. For an investigation to pass legal muster, it needs to account for all of the allegations and the evidence related to them.

Finally, another serious mistake we often see is the investigator doesn’t assess credibility. This is a crucial element in order to effectively reaching findings. Investigators must assess the credibility regarding motive, plausibility of the testimony, corroboration and other factors. Without assessing credibility, the investigator puts his or her own credibility at risk.

Happy to see that Connecticut will host the next institute. Can you tell us a little more about it? Is it open and how do people join?

Allison: You’re right, Dan. AWI is holding its first Institute outside of California for workplace investigators on May 4-8, 2015 in Mystic, Connecticut.

Personally, I think this week-long program is one of the most comprehensive trainings available for workplace investigators. We’ve got a nationally-recognized expert faculty and gold standard curriculum, so this program will provide attendees with a solid foundation and confidence they need to effectively conduct workplace investigations.

As to who should attend, I’d say: New and seasoned investigators; Attorneys, HR professionals, private investigators, security; Professionals from private and public sectors; Internal employee investigators of organizations; Outside, third-party investigators.

The program limit is 60 students, and we’re nearly half-full already.  Each previous Institute sold out close to the early registration deadline. That deadline is actually next week — on January 15th! You can get more information and register for the Institute on the AWI website.

People can contact AWI with any questions they might have at admin@aowi.org.

Thanks Allison for sharing the information. Sounds like an interesting program close to home. 

 

A Look Ahead: Three (More) Bold Predictions in Connecticut Employment Law in 2015

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Laws and Regulations, Legislative Developments, Litigation, Wage & Hour

Having tackled the predictions in employment law on a federal level, what does the future hold for employers in Connecticut?

Besides a debate on Family & Medical Leave Insurance, there are a few things we’re likely to see.

1. New bills at the General Assembly: The first one comes courtesy of Mara Lee over at the Hartford Courant; with “predictable scheduling” now become a cause celebre for unions (see this article in The New York Times back in August), the co-chair of the General Assembly’s Labor Committee promises a hearing on the subject.  A bill seems still far off, but issues like this have a tendency to percolate for a bit. Expect to hear a lot more about this.

What else? I still think a bill on workplace bullying will again come up for debate.  And the Commission on Human Rights and Opportunities will again push for changes to their procedures as well, according to minutes from recent CHRO meetings.  Non-compete legislation always seems to be popular too.  With a new two-year cycle starting up soon in the “long” session, it’s likely to be busier than last year.

My 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.

2. Clarification on Free Speech Rights for Private Employees: The Connecticut Supreme Court is set to hear arguments later this winter on whether the Connecticut Constitution offers private employees more free speech rights than the First Amendment to the U.S. Constitution.  At issue in Trusz v. UBS is whether speech that relates to an employee’s official job duties is protected under the Connecticut Constitution; under the Schumann case from a few years ago that I was involved with, the Court found that such speech isn’t protected under federal law but left open the issue under state law.

My prediction? The court will find that such speech isn’t protected under the Connecticut Constitution.  But I should disclose that I’m not exactly an impartial observer; I am leading a team of attorneys here that filed an amicus brief on behalf of the Connecticut Business & Industry Association this fall advocating the same thing.   My more confident prediction is that the decision from the court will not be unanimous.

3. Agencies and Task Forces Take Leading Roles: There are several issues that have been “floating” out there for a while. Expect to see movement on some of them.  For example, the Domestic Workers Task Force is set to issue a report on October 1, 2015 that could set the tone for future legislation on the subject.  And on July 1, 2015, new electronic prevailing wage notices go into effect.

At the CHRO, expect to see some additional visibility from this group. With Gary Collins’ leadership at the CHRO, a long-standing backlog on cases continues to get winnowed down.  And with new leadership from Tanya Hughes, we’re seeing more public outreach through programs, newsletters and even a new blog developed by interns (and which has a nicer splash page than this one….).  And a new computer system for the agency — set to start last week – will finally bring it up speed, years after a prior system outlived its useful life.

On the flip side at the CHRO, there is little stopping the trend of the overwhelming number of cases being retained for mediation and investigation.  For employers, this means that cases filed at the agency will, on average, continue to be more expensive to defend than five years ago.

My prediction? Beyond these, I also predict that we’ll see some impact from the introduction of revised white-collar overtime rules at the federal level.  Connecticut may use those changes to revisit the rules at the state level.

2014 was a relatively quiet year in employment law overall in Connecticut. I expect a busier and buzzier year in 2015.