Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

This week, the U.S. Department of Labor updated their website and provided some new online tools to help employers figure out which recordkeeping, reporting and notice requirements apply to them. 

According to the DOL:

The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a FirstStep suite of advisors that also includes the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

"These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them," said Secretary of Labor Elaine L. Chao.

However, employers in Connecticut using these tools should be cautious.  There are additional requirements that employers in Connecticut that may apply and some are stricter than the federal rules.

Because of this, employers should use the department's online tools as a resources, but should followup with an attorney or the Connecticut Department of Labor about additional requirements that may apply.

(H/T Delaware Employment Law Blog)

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A bill to provide mandatory paid sick leave to employees and a bill to provide greater protection to state whistleblowers were among the employment law-related bills that were not voted upon in the final day of the legislative session -- effectively killing them. 

The Paid Sick Leave bill, S.B. 217, had passed the Senate last week, but the House did not bring the measure up for a vote. As I indicated yesterday, nearly 25 amendments had been proposed on it -- a sign that the bill was going to be in for a long fight.  My earlier coverage of the bill is available here. CT News Junkie has a report on it as well.

The Whistleblower bill, S.B. 335, had also passed the Senate, but again, the House did not act on that provision either. My earlier coverage of the bill is available here.

Other bills that were not acted upon by the legislature include: a Workplace Bullying bill; a bill protecting child in the entertainment industry from child labor abuses; and a bill to allow workers to be paid by a pay or debit card.

One bill that did pass this week allows for the regulation of various professional service organizations and about employee misclassification (H.B. 5113).  I'll cover that in further detail in an upcoming post.

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Today is the final day of the General Assembly and the Paid Sick Leave proposal (S.B. 217) is expected to come before the House before the close of business.  But, perhaps in a sign that it is doomed to die a procedural death, it has drawn nearly 25 proposed amendments.  

One of the listed amendments is just a head scratcher.  Specifically, House Amendment 6092 (proposed by House Republican Leader Lawrence Cafero and Rep. Aman) would, in essence, allow employees to use paid sick leave for the first day of summer, the first day of fishing or hunting season, or, and I kid you not, the opening day of baseball season. 

Don't believe me? Here's the actual language:  

(e) No employer shall require documentation of an illness, injury or health condition, as described in subsection (b) of this section, if the employee uses a paid sick day on the twenty-first day of the month of June, the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes, or the opening day of the official Major League Baseball season. " 

Thus, under this amendment, an employee could take the day off to attend the Opening Day of baseball season, and the employer would just have to "take the employee's word" that the day was a paid sick leave day.  The Office of Fiscal Analysis even issued a one sentence report indicating that it would have no "fiscal impact" in the state.

Because the proposal comes from two Republican lawmakers (who, as a group, have expressed skepticism about the bill), I think it's fair to say that this proposal will go nowhere. Maybe it is just being used to make a point that the paid sick leave bill will be difficult to enforce. But, given the ramifications of the Paid Sick Leave act bill, as I've covered before, one has to wonder what they were thinking in taking the time to draft an actual amendment on this topic.

The General Assembly starts again this morning. Grab your popcorn. Should be a fun last day.

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Last month, I addressed the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, which expanded state disability laws to match (or in some cases, exceed) the scope of the federal Americans with Disabilities Act (ADA).

The employer has moved, on limited grounds, to have the court reconsider its decision.  You can download a copy of the motion here.  

One of the grounds raised by the employer is something that I touched on before  -- namely that the court is expanding the duty to provide reasonable accommodation to former employees who request reinstatement and an accommodation. 

The employer has also requested reconsideration on the grounds that the court's ruling could also be interpreted to require an employer to convert a temporary light duty position into a permanent one, contrary to the general rule cited by the court. Because the case's procedural status was that of a summary judgment, the employer also expressed its concern that the court's rulings could be seen as determinations of fact in case that still has issues of disputed facts.

The brief's relevant portion is as follows:

In this case this court has ruled, for the first time, that the disability provisions of General Statutes § 45a-60(a)(1) require an employer to make the same kind of reasonable accommodation required under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112(b)(5)(A).  However, in the course of applying this principle to the facts of this case, this court addressed issues other than the application of the reasonable accommodation requirement itself. In this regard, the opinion identifies two actions that “satisfy the plaintiff’s burden of initiating the interactive process.” 286 Conn. at 417.

The first is the plaintiff’s “affirmative request to continue working the warehouse night shift in March, 2001.” Id. The second is plaintiff’s counsel’s letter of April 19, 2001 requesting that the defendant “(1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions.” Id. 

However, as the opinion notes, the defendant did not contest the claim that the statute required it, prior to the defendant’s termination, to make some accommodation and to engage in an interactive process with the employee to determine if a reasonable accommodation existed. Rather, the focus of the parties below was on the adequacy of the employer’s efforts at reasonable accommodation, not on whether the two actions cited by the court constituted new requests for accommodation requiring a new interactive process.  There are, at the very least, serious questions whether either of the actions cited by the court is sufficient to trigger this obligation.

It's too easy for some to state that all employers are the "evil empire" and that all arguments that they raise are frivolous.

But as I've noted before, the grounds the employer raises here are sensible ones.   The Court went beyond what it needed to to make its decision and, in doing so, created some rules that could have significant implications in all disability cases in Connecticut.

Here's hoping that the Connecticut Supreme Court takes the time to review  them; otherwise, there may be a lot of busy employment law lawyers later this year.

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I realize this blog has been a little top heavy of late with legislative developments, but it always seems that a whole year's worth of developments occur within a 2-3 week period at the end of the short General Assembly session. With this year's session scheduled to close at the end of the day on Wednesday, the developments are fast and furious. The court updates will return in force soon.

In the meantime, here's the brief recap of some of the developments from the last day or two (more to follow if and when necessary):

15-Year-Old Workers

The House late today passed a bill today that reinstates the labor law permitting 15-year-olds to work in grocery stores and similar positions. I expect the Governor to sign it shortly.  I've covered the bill in detail, most recently yesterday.  The bill, S.B. 216, can be downloaded here.  It will become effective immediately upon signature by Gov. Rell.  It amends Conn. Gen. Stat. Sec. 31-23. 

Jury Duty

The provision on jury duty were amended in a few subtle ways through a bill passed by the House on Monday and expected to be signed by the Governor.

First, House Bill 5918 (download text here) allows persons who have served on jury duty in the last three years to request the opportunity to serve again even though they would otherwise be excused.  (It amends Conn. Gen. Stat. 51-217a(a) in doing so.) 

Second, the bill also provides additional protection to workers on jury duty.  Specifically, it makes it clear that "any juror-employee who has served eight hours of jury duty in any one day shall be deemed to have worked a legal day's work as that term is used in section 31-21...and an employer shall not require the juror employee to work in excess of eight hours." 

What does this mean? In practical terms, it means that jurors cannot be required to work while they are also serving full days on jury duty.  Employees can, it appears, voluntarily work -- after hours, for example -- since the language prohibits requiring the employee to do so.  Because Connecticut does not have a daily overtime rule, the employee may not even be entitled to overtime for simply working in addition to jury duty.

This jury duty law will go into effect on October 1, 2008, assuming Gov. Rell signs the bill.

Child Performer Protection

The House has yet to address House Bill 5677, which would institute a whole new range of protections for children who act (or "perform").  You can download the bill here, but the lack of action on the bill so far indicates that time may run out on this provision. 

Whistleblower Protection

S.B. 335, which expands the protection of state whistleblowers has yet to be considered by the House. I looked at Senate Bill 335 in an earlier post. 

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The State Senate late yesterday approved a bill that would increase the minimum wage in 2009 and 2010.  The bill (H.B. 5105), had previously passed the House and now moves to Governor Rell for her signature.

CT News Junkie reports that Gov. Rell has some reservations about the bill:

Gov. M. Jodi Rell is still uncertain about whether she would sign it. Rell’s spokesman Adam Liegeot said in an emailed statement, “While the governor understands the needs of minimum wage workers, she does not want to take any action that will negatively impact businesses and jobs in Connecticut, especially during this troubled economy. Governor Rell will take her time and review this bill closely before deciding what action to take.”

The bill, if signed, will increase in the minimum wage from $7.65 an hour to $8 an hour starting in January 2009 and $8.25 an hour in January 2010.  Assuming a 40-hour-work week, the average wage increase for those making minimum wage will be a little over $700 annually.

For most employers in the state, the bill will not have any impact because many workers receive more than the minimum wage.  For others who rely on workers at minimum wage, the bill could have a real impact; $700 or so per worker per year could affect those with thin profit margins.  However, others will certainly be able to afford the modest increase.

Although the bill did not have full bipartisan support, it did pass the General Assembly overwhelmingly. I would expect the Governor to sign the bill because a veto would likely be overturned by the General Assembly.

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With just a few days to go, the list of pending bills in both the state Senate and House continues to grow. 

But it is worth updating readers on one uncontroversial employment law bill that passed the Senate over a month ago that remains pending. 

Specifically, Senate Bill 216 would renew a labor law that permitted 15-year-olds to work in grocery stores as baggers, shelf stockers and cashiers.  As readers will recall, this law expired last fall "apparently because lawmakers forgot to renew it."

The law has been on the books for 20 years, but had an automatic sunset provision in it that lawmakers overlooked when the session ended last year.

The new bill, which would also grant amnesty to those employers who have continued to employ 15-year-olds during the last six months or so, passed the Senate last month on the consent calendar and looked to have swift passage in the House. 

And perhaps it will pass in the closing days. But given the full agenda of the House, it would be a shame if the General Assembly overlooked this important law again.  House members would be wise to make sure this bill is put on the consent calendar again in the closing days.  It's passage will ensure valuable jobs for teenagers are open for years to come.

UPDATE 12 p.m.: The bill appears on the "Go List" for today, which is available here.  There are two amendments that may potentially be raised today regarding home-schooled teens and apprenticeships. While both topics are interesting, the bill ought to be passed in its original form; otherwise, it will need to be returned to the Senate for further consideration.

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Amid all of the buzz regarding the union representation campaigns at Foxwoods, one argument keeps being floated about: tribal sovereignty.

A new article by Thomas Meiklejohn -- one of the attorneys representing the UAW in its battle to represent workers at Foxwoods -- in Spring edition of the Labor & Employment Law Quarterly (not online) of the Connecticut Bar Association, sheds some additional light on the subject.

As Meiklejohn acknowledges, "federal law does recognize the sovereign right of a Native American tribe to govern itself with respect to its internal affairs".  Thus, he argues, the question that must be asked is: When can employment laws be enforced against an employer on a tribal reservation?

Meiklejohn suggests three factors ought to be considered:

1. The Nature of the Employing Entity: Is the employer a branch of tribal government, a commercial enterprise owned by a tribe or a privately owned business operating on a tribal reservation?
2. Who is Bringing the Action: Is it a federal government agency exercising its authority or a suit by a private party?
3. The Source of the Legal Claim: Does this dispute involve federal or state law claims?

Meiklejohn argues that it is a fairly settled issue in Connecticut and the Second Circuit that the NLRB has jurisdiction over tribal casinos.  I've indicated in prior arguments a bit of Foxwoods' response to this as well.

Of course, since Foxwoods has planned to appeal the election results to the Second Circuit and beyond, if necessary, we'll soon see how "settled" this law really is.

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The focus for this term of the Connecticut General Assembly for employers and employees has been on the paid sick leave bill (still no action in the House as of May 3rd).

However, employers who have employees working on public works projects and manual labor on state or municipal building construction or repair contracts need to be aware of a bill that cleared both the Senate and House very early today (H.B. 5537).  The bill is expected to be signed into law shortly, will become effective January 1, 2009.  The vote tally in the Senate is available here.

Under current law, some of these employees must prove that they have completed a 10-hour construction safety and health course that meets federal OSHA Training Institute Standards. The new bill expands this training and expands the people who must receive training. 

The Office of Legislative Research has fairly detailed report available here:

First, it expands the construction safety training requirement to any public works project, which includes sewage and water treatment plants, site work, road and bridge work, parking lots, drainage systems, and other public projects.

Second, instead of applying the training requirement to all projects of $ 100,000 or more, the bill applies the existing prevailing wage project thresholds to the training requirement. This means the requirement kicks in for (1) repair and renovation projects of $ 100,000 or more and (2) new construction projects of $ 400,000 or more.

Furthermore, it removes the requirement that the proof of the training be sent to the labor commissioner. Presumably, the proof will be sent to the contracting agency paying for the prevailing wage project. ...

The bill also creates training requirement exceptions for employees of public service companies and commercial vehicle drivers who either pick up at or deliver cargo to public work projects.

It requires the labor commissioner to adopt implementing regulations by January 1, 2009. By law, regulations cannot take effect before the effective date of the act authorizing them.

A few notable items:

• The employees who must receive the training (which, under current law, is any employee "performing manual labor") is greater under the bill.  The bill states that a mechanic, laborer, or worker must complete the safety training course.
  
• Notably, according to the OLR, the safety training requirements "do not apply to employees of public service companies, which are defined in statute to include electric, electric distribution, gas, telephone, telegraph, pipeline, sewage, and water companies; cable franchise holders; and railroad companies."

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