Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Winter Update: What You Might Have Missed in Employment Law

Posted in Human Resources (HR) Compliance

My colleagues at Shipman & Goodwin have, for a lot longer than I have been doing this blog, have been producing the Employment Law Letter recapping some stories you might have missed over each quarter or so.

This week, a new newsletter was released and it touches on several topics of interest.

  • It recaps a Connecticut Supreme Court case that rejected an employee’s claim for lost wages as a result of the Kleen Energy explosion back in 2010.
  • It revisits the NLRB’s cases against a local ambulance company.
  • And it discusses some recent cases regarding FMLA and independent contractors.

If you’re looking for some reading to supplement the blog, I highly recommend the click.

 

Independent Contractors: Can You Still Use Them?

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

worker3A while back, I got this question: Can we still use independent contractors for our business?

This answer is certainly yes. But you wouldn’t know it from all the headlines of late.

And you wouldn’t think so by the attacks on the use of independent contractors by government agencies.  Take this quote from the U.S. Department of Labor page on the subject:

The misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy.

Grave stuff.

Indeed, the DOL and the IRS have a memorandum of understanding between the two agencies to help “reduce the incidence of misclassification of employees as independent contractors.”

In Connecticut, we’ve had a Joint Enforcement Commission on Employee Misclassification in place for several years.

And more than that, a significant Connecticut Supreme Court case (Standard Oil of Connecticut v. Administrator, Unemployment Compensation Act) should be decided this year on the subject.

I talked about that case in a lengthy post back in August 2015.    Oral argument on that case was held back in October 2015.

So what’s an employer to do in the meantime? Here are three things.

  1. Understand the ABC Test.  What is it? Well, it’s not as easy as ABC, but in Connecticut, it’s the controlling test to determine whether someone is an employee or independent contractor according to the CTDOL.

    According to the CTDOL: A. The individual must be free from direction and control (work independently) in connection with the performance of the service, both under his or her contract of hire and in fact; B. The individual’s service must be performed either outside the usual course of business of the employer or outside all the employer’s places of business; and C. The individual must be customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service performed.

    But don’t forget: the USDOL uses an “economic realities” test. Try to determine whether your relationship fits BOTH tests.

  2. Prepare a contract.  A contract isn’t going to solve all the issues of whether someone is an independent contractor or employee, but it may solve some of them. A contract can outline the responsibilities of the contractor and set up the fences that the relationship shouldn’t cross.

    For example, the contract may dictate a project to be completed, but won’t dictate how it should be done or the hours which the contractor has to work.  Or it could say that the contractor must bring their own tools to the project.  And please, get your contract reviewed by a lawyer.

  3. Use independent contractors sparingly.  This is a general rule and there are exceptions to it, but when your workforce is seemingly made up of independent contractors (see: Uber), you’re more susceptible to attack.  If you’re not sure, I like Jon Hyman’s “duck” rule:

Despite these specific criteria, I have reached the conclusion that the best test to determine whether a worker is an employee or an independent contractor is the “duck” test—if it looks like an employee, acts like an employee, and is treated like an employee, then it’s an employee

Independent contractor relationship remain under attack, but don’t be afraid to use them in legitimate purposes.

And finally, as the legislature considers the issues this year, I’m reminded of a quote from a Hartford Business Journal column in 2010 that said this:

By characterizing all of us that depend on a flexible workforce as abusers of the system who purposely “misclassify” workers, the state has the potential to destroy a lot of businesses. And, it does a tremendous disservice to the tens of thousands of businesses that rely on us to provide the flexibility, service and responsiveness that independent contractors offer us.

The point is this: Not all independent contractors are “misclassified” employees. It is a bad business decision for the state of Connecticut to wage some kind of war on every small business that relies on independent contractors to get the job done.

Can You Fire An Employee Who Has Exhausted FMLA Leave?

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations

firedAn employee of yours goes out on medical leave. Suppose that you only have to abide by the federal FMLA law.  After 12 weeks, the employee is still out.

Can you simply fire the employee?

Well, the U.S. Department of Labor says “yes”.  Sort of.

As part of a Q&A on the subject, the DOL states the following: “Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” no longer have FMLA protections of leave or job restoration.”

Case closed, right?

Not quite.  As Jeff Nowak has pointed out in an excellent (and perhaps overlooked) blog post back in 2014 through an interview with EEOC Commissioner Chai Feldblum, there may be a separate analysis under the ADA as to whether extended leave is needed as a reasonable accommodation.

In that circumstance, an employer can argue that it would be an “undue hardship” to extend leave beyond FMLA leave:

[I]t is critical that employers identify how the requested leave actually impacts their business and operations. Cmmr. Feldblum confirmed that the several factors I identify below can help employers determine whether the requested leave of absence poses an undue burden.  [T]hese factors often are quite helpful in guiding an employer’s decision to grant or deny leave:

  • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive customer service and increased customer dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers

Jeff has an additional post this week about a new case discussing this issue further — particularly where the employee cannot give an estimate on when he/she may return to work.

The key takeaway? When you’re analyzing FMLA cases, don’t keep your blinders on. There are other laws that may be impacted. While terminating an employee who has exhausted FMLA leave may be allowed in some (and perhaps many) cases, employees may argue that employers have additional obligations.

And remember: Connecticut FMLA has additional requirements as well.

Beyond the law, there may be other areas of concern — perhaps a union contract or an employee handbook that has additional requirements.

In short, make sure you have all your bases covered before firing an employee who has exhausted FMLA leave.

Changes at the CHRO and Connecticut DOL

Posted in CHRO & EEOC, Legislative Developments, Wage & Hour

24242102739_3a7ae99d52_mThe state agencies that employers have to deal with the most on employment law issues made two announcements this week regarding their leadership ranks.

The Commission on Human Rights & Opportunities has announced that Michele Mount has been named the Chief Human Rights Referee. Ms. Mount has been a Human Rights referee for the CHRO for the last four years or so.

For employers that go through hearings at the CHRO, the elevation of Ms. Mount won’t change things all that much, but administratively, it’ll be interesting to see if she brings about any changes to that area of the CHRO.

At the Connecticut Department of Labor, interim commissioner Dennis Murphy is moving over to the Department of Motor Vehicles.  By most accounts, Mr. Murphy brought some much needed stability to the DOL and often worked behind the scenes to get things done.  He leaves on February 12th.

Governor Malloy then appointed former Hamden mayor Scott Jackson to head up the CTDOL. Kurt Westby, former political director for 32BJ and a long-time AFL-CIO board member, has been appointed deputy Labor Commissioner.

“I’ve known both Scott and Kurt for a number of years. I am confident that with their extraordinary qualities and skill-sets – they will work with the diverse group of stakeholders to move the Department of Labor forward,” Governor Malloy said. “Scott is a friend and an exceptional public servant. Kurt has spent his career trying to improve the lives of Connecticut residents. I believe they both will work together successfully to ensure that the state’s workforce is successful while enabling and our business community to thrive.”

Of course, much of the CTDOL’s work is done by staff who have been there far longer than any political appointee.    Again, for employers, the selections will likely not impact employers much.

Jackson will start February 3, 2016.

Good luck to all the new appointees.  There’s lots of work left to be done.

 

 

 

 

An Explainer Video on OWBPA-Compliant Separation Agreements

Posted in Discrimination & Harassment, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center

As I keep trying new things for the blog, today I introduce an “explainer” video.  You’ve seen them before; it’s a short movie explaining a subject.

Today’s topic is one I’ve touched on from time to time — separation agreements that comply with the Older Workers Benefit Protection Act.

Let me know what you think of videos like this.

EEOC Pushes to Expand Title VII’s Reach to Sexual Orientation Claims

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Laws and Regulations
EEOC efforts a proverbial square peg.

EEOC efforts are a proverbial square peg.

When you’ve been blogging as long as Jon Hyman (of Ohio Employer’s Law Blog) and I have, your minds seem to work in a similar fashion.

For a few days, I’ve been working on a draft of a blog post about the EEOC’s goal of expanding Title VII’s reach to include sexual orientation discrimination claims.  Of course, before I could click “publish”, yesterday Jon published one that says almost the same thing.

In a thorough 27-page amicus brief filed last week, the Agency details why it believes that Title VII already prohibits sexual-orientation discrimination as unlawful sex discrimination.

The brief is not a surprise. Indeed, this was discussed at the ABA Labor & Employment Law Annual Conference last fall in Philadelphia. Nevertheless, the EEOC’s brief is clear about where it is trying to take the law.

Sexual orientation discrimination claims necessarily involve illegal sex stereotyping, illegal gender-based associational discrimination, and impermissible consideration of a plaintiff’s sex, placing them squarely within Title VII’s prohibition against discrimination on the basis of sex.

What IS different though about Ohio and Connecticut is that Connecticut has long since prohibited discrimination on the basis of sexual orientation.  Indeed, in the last fiscal year, 51 employment discrimination complaints on the basis of such a protected class were filed at the CHRO.

The law in Connecticut works well and is an important and vital part of the protections in the state.

And this is where I start to differ with Jon.  For years, I have been asking for the passage of ENDA – a bill that would explicitly ban discrimination the basis of sexual orientation at the federal level.  This would solve the issue clearly and easily.

But because Congress can’t seem to get anything done, that bill hasn’t gone very far.

So instead, the EEOC has been trying to expand the reach of Title VII.  Count me among the people that is a bit skeptical with the efforts.  The oft-used phrase “trying to fit a square peg into a round hole” comes to mind.

Why? Because for many years it was understood that the protections offered by Title VII on the basis of sexual orientation were limited.  Same-sex harassment, as the Oncale case was known, was the best example of where the protections of Title VII cover those who are gay from harassment.  But this means that the EEOC’s efforts are going to be at the whim of the courts.

This is not necessarily new. In fact, back in 2012, the EEOC took the position that Title VII covered sexual orientation discrimination.

Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.

Until then, the battles over the scope of Title VII will continue.

 

Ch-Ch-Changes? Mandatory Fees for Public Employees At Issue Before the Supreme Court

Posted in Class Actions, Highlight, Labor Law & NLRB, Litigation

robertsFirst things first. My favorite David Bowie song is “Heroes” (though I remember really being struck by its use in the 2001 movie, Moulin Rouge).

But the Bowie song that comes to mind today for various reasons is “Changes” and how it ties into another big story of the day — an oral argument before the U.S. Supreme Court in a case involving public employers.

At issue is whether public employees who do not want to be part of a union can still be required to pay an “agency fee”, which is typically the equivalent of the dues that union members pay as well.

The case is revisiting a 1977 case (the Abood case if you’re interested) which that requiring non-union members to pay fees for collective bargaining was constitutional.

The SCOTUSBlog sets up the argument on behalf of the non-union members like this:

Here is their logic: because unions cannot charge non-members for political activity and since non-members argue that everything a public-sector union does — even bargaining — is political in nature, it follows that any fees violate their First Amendment right not to pay for activity to which they object. Their target, in union parlance, is the “agency fee.”

The State of Connecticut has come out firmly on the side of upholding the current law.  In November 2015, it joined an amicus brief from New York urging the court to not change the current law and leave it to the state to determine the full scope.

It noted that 23 states permit these “agency fees” (also known as “fair share” fees) to “provide a mechanism for ensuring that represented employees contribute to  union costs germane to collective bargaining. The majority of these statutes make agency-fee requirements a permissible subject of bargaining and  authorize (but do not require) agency-fee provisions as part of public-sector collective-bargaining agreements.”
In the amicus brief, New York (and Connecticut) argue that the court should uphold the current scheme “recognizing that the government must have flexibility to manage its own internal operations, especially with respect to
matters affecting the delivery of government services.”

Why is this important, according to the states? A few things:

A lack of adequate funding can reduce a union’s ability to maintain the staff expertise necessary to perform collective-bargaining functions. Eliminating agency fees as a secure funding mechanism may require unions to focus disproportionate effort on recruiting members and collecting fees, thereby diverting attention from bargaining and contract-administration responsibilities. Moreover, the absence of secure funding may create skewed incentives for unions to make excessive bargaining demands or disparage management as antagonistic to labor, in order to encourage employees to give financial support.

Notably, a separate amicus brief filed by 18 other states argue the opposite.

It is time to abandon the meaningless distinction between collective bargaining and other political activity.  In the public sector, core collective bargaining topics such as wages, pensions, and benefits inherently implicate public policy, and in ways that matter.

Like lobbyists, public sector unions obtain binding agreements from the government that have enormous public impact — all without the natural counterweight of a financial market that exists in the private sector. In the public sector, it is taxpayers, not business owners and consumers, who foot the bill — and the bill is often steep.

Some pundits predict that the court will strike down agency fees.  Consistent with my post lack week, I won’t make any such predictions, but this case has significant implications obviously for public employers and it’ll be interesting to watch whether there will be any impact on private employers as well.

In any event, stay tuned and be sure to listen to some David Bowie in the meantime.

What’s Ahead in 2016 For Employment Law? Probably Not As Much As You Think

Posted in Highlight, Human Resources (HR) Compliance

monkeyAh, predictions.

Way back at the start of 2015, I made a series of predictions regarding employment law in the then-upcoming year.

Not a lot of them occurred in exactly the same way I predicted. Sure, I talked about changes to the CHRO’s procedures, but my prediction regarding a Connecticut Supreme Court free speech case didn’t pan out.

So, for 2016, I resolve NOT to make any predictions.

That said, it feels like we’re in a period where employment law issues are being tweaked rather than rewritten.  There hasn’t been a new federal law on employment law in many years, for example.  And at the state legislature, you wonder how much more laws can be put in place on employment law before employers say “enough”.  (See, e.g., General Electric.)

Instead, what we are seeing and will likely continue to see are new rules being promulgated at the agency level — such the decision from the NLRB last week regarding recordings in the workplace.  Even the new white-collar overtime regulations may have less of an impact in Connecticut than some fear.

Thus, for 2016, I don’t think we’ll see as much as some predict.

Then again, let’s just check back in again in a year. There will be a new President and perhaps a change of political parties.

If there’s one thing I’ve learned about predictions, it’s that the future is never exactly what we think it will be.

 

Social Media in the 2010s: A Force Awakens

Posted in Data Privacy, Featured, Highlight, Social Media

Today, cross-posted on the LXBN site, I reflected on the biggest legal developments of the first half of the decade.  I am reposting it here, but my sincere thanks to Lexblog for the support it has given me over the past 8 1/2 years and for the opportunity to provide some insight on its site.

yearsWhen I was asked by LexBlog to provide insight into my most significant story I’ve written about in the first half of this decade (and wondering if it started on January 1, 2010 or 2011?), I first thought about looking at some statistics of pages visited on my blog.

Turns out that my most read story was….a blurb on what the IRS reimbursement rate for business travel was in 2010. (Followed by stories on the rates for 2015, 2011 and 2012.).

So, let’s just say that blogging statistics can be a bit deceiving. Though, one other statistic really stands out: There’s been a huge rise in viewing the blog on both social media and on mobile phones.

And that, I think leads me what I think is the big overall story of the 2010s: The rise of social media in employment law.

This is, of course, not new. Back in 2012, I indicated that the biggest story then was the rise of social media.

That has only been amplified in the following years.

For the first few years of the 2010s, it seemed that every other presentation I did was on social media. First, it was to educate employers on what social media was. But then beyond that, was the second layer — how was social media impacting the workforce.  In 2012, I helped plan WESFACCA’s “Day of Social Media” to help educate in-house lawyers on the perils of social media.

My discussions ranged from the now seemingly quaint “Facebook firing” case of November 2010 to the September 2013 case where a Facebook “like” was deemed a protected activity to the new 2015 Connecticut law restricting employer access to personal social media accounts.

But I do think the tide is turning a bit.  Social media has become so mainstream that it is now just part of the myriad of things human resources has to keep track of.  People are less shocked by a Facebook post and employees have become smarter about their use of privacy settings too.

Sure, people still say stupid things on social media and they are still getting fired for it (appropriately, in some instances) but employers are now able to keep some perspective about the whole thing too.

So, in five years (and heaven help all of us if I’m still writing this blog in five years), I think it’s unlikely to still be dominating posts like it did for the first half.

What will take it’s place? My wager is on data privacy.  Yes, it’s a bit self-serving of me to predict this in light of the presentation we did this month on this very topic.  But judging by the interest we’ve been getting in the subject, I think we’re on to something.

Employee data is just one aspect of this.  Rather, employers who store information on a computer are subject to attempts at hacking and theft on a daily basis.  Plus, employees who transmit information may do so without encrypting the information — leaving the data open to prying eyes.

I don’t know where it all will lead, but I will say that if you aren’t doing everything you can to ensure the safety of the data on your networks, you probably aren’t doing enough.

Merry Christmas & Happy New Year

Posted in Featured, Highlight
At Harry Potter Studios outside London, UK this year

At Harry Potter Studios outside London, UK this year

Well, we’ve come a long way in a year, right?

Last year at the holidays, I shared my family’s personal story of my wife’s cancer diagnosis.  The outpouring from readers, friends, and colleagues was tremendous.

So, I thought you were due for an update.  My wife is doing much better and continues to have a good prognosis.  It’s been a challenging 2015 but we know we are fortunate right now to be talking about the future.

As you might imagine, what we’ve been through has certainly put a lot of things in focus. It’s a cliche for sure, but there’s truth there as well.  And going back to the same routine just hasn’t seemed right. So, we’ve made subtle changes thus far but for me, writing this blog has taken a clear back seat.

I could debate the reasons why. For example, I have less patience for discussing cases in which someone makes a lawsuit out of something trivial.  But it also boils down to writer’s motivation too. Right now, life is too precious to write 5 days a week.

What will 2016 bring?  I’m not sure, but I’m looking forward to it.

Merry Christmas from our family to yours and I hope you have good health and happiness in the new year.