Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

BREAKING: Connecticut Supreme Court Rules Restaurant Cannot Apply Tip Credit to Pizza Delivery Drivers

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

file0001835967537The Connecticut Supreme Court, in a unanimous decision that will be officially released April 4, 2017, has ruled that employers may not use the “tip credit” for pizza delivery drivers and therefore, the employees must be paid the standard minimum wage.

You can download the decision in Amaral Brothers, Inc. v. Department of Labor here.  The decision is no doubt a disappointment to employers who believe that the Connecticut Department of Labor’s regulations in this area far outstretch the plain language of the applicable wage/hour statute.

The case arises from a request by two Domino’s franchises for a “declaratory ruling” from the Connecticut Department of Labor (DOL) that delivery drivers are “persons, other than bartenders, who are employed in the hotel and restaurant industry, …who customarily and regularly receive gratuities.” The request arises from Conn. Gen. Stat. §31-60(b), which has been amended over the years.

Why would the employer make such a request? In doing so, the employer wanted to take advantage of the “tip credit”, in which employees are paid below the conventional minimum wage, but his or her salary is supplemented by tips from customers.

Originally, as noted by the employer’s brief to the Court: “The DOL denied Plaintiff’s Petition for the following stated reasons: (1) the regulations were valid because they served a remedial purpose, were time-tested and subject to judicial scrutiny…; and (2) the only act of “service” was handing the food to the customer at the customer’s door and so delivery drivers’ duties were not solely serving food as required under Regulations of Connecticut State Agencies § 31-62-E2(c). The DOL’s decision was that only employers of “service employees” as defined by the DOL could utilize the credit, and Plaintiff’s employees were not service employees.

A lower court upheld the DOL’s conclusions “agreeing that the regulations were ‘reasonable’, ‘time tested’, and had ‘received judicial scrutiny and legislative acquiescence’. The court also determined that the ‘minimum wage law should receive a liberal construction.'”  (You can also view the DOL’s brief to the Court here.)

The Connecticut Supreme Court upheld the Department of Labor’s interpretations here finding that the regulations issued by the agency were “not incompatible” with the enabling statute.  In doing so, the Court noted that this is a bit unusual because the employer was contending that the regulations were originally valid when issued, but repealed by implication when there was an amendment to the statute at issue.

The Court’s decision traced the origin of the tip credit in a portion of the decision that only lawyers will love. But then they get to the heart of the matter: “It was reasonable for the department to conclude that the legislature did not intend that employees such as delivery drivers, who have the potential to earn gratuities during only a small portion of their workday, would be subject to a reduction in their minimum wage with respect to time spent traveling to a customer’s home and other duties for which they do not earn gratuities.”

While the court’s decision directly implicates delivery drivers, it only impacts those employed directly by the employer (see also: UberEats, GrubHub etc.).  Nevertheless, in upholding the DOL’s interpretation here, the scope of who falls within the tip credit at restaurants is going to be further challenged in the courts.

Before employers make any further conclusions, Connecticut businesses should also be aware that the scope of the tip credit and of tip pooling is being debated at the federal level as well.  The National Restaurant Association has joined many others in asking the U.S. Supreme Court to hear a case on the subject. We should hear shortly whether the Court will accept such a case.

The Court’s decision is yet another reminder that restaurants in Connecticut should review the situations in which the tip credit is being utilized. Issues regarding tip pooling should be reviewed as well.  This case doesn’t answer all the questions that come up in the restaurant context. But in terms of figuring out the scope of the law, it helps to answer (albeit in a manner not helpful to employers overall) some outstanding questions.

What Does “At Will” Employment Really Mean?

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

hartfordYears ago, I recall having a friendly conversation with another attorney in Connecticut where the topic turned to the notion of “At Will” employment.

When we couldn’t settle on an answer, we moved on to talking about whether the Hartford Whalers would ever come back.

I think we had a better answer for that question: Probably not.

But this is an employment law blog, not a sports one, so let’s get back to the topic.

Employment-at-will is, from a legal perspective, the notion that an employer may discharge an employee without restriction, that is, for any reason or no reason, without incurring any liability to the employee.

Simple enough, right?

Well, not quite. First off, Connecticut recognizes two major exceptions to this doctrine:

  1. The termination cannot violate an important public policy;
  2. The termination cannot breach an implied contract of employment if one as formed.

And, it should be noted, that there is the obvious exception that the termination cannot violate any other state or federal law — such as the laws prohibiting discrimination.

This again sounds simple enough, but in discussions with employers, there is another topic that comes up — fairness.  In other words, employers typically are wise the ask themselves whether a termination under the circumstances is “fair”.

Now that can mean a lot of things in a lot of situations.  For example, suppose an employer hires an employee, but 3 weeks later the employer loses a major contract and needs to layoff ten employees.  It may not be exactly “fair” to terminate this newly hired employee, but if the employer may be being “fair” by laying off newly hired employees first.

Sometimes, the “fairness” question is framed slightly differently.  Suppose you have a newly hired employee who is late to work a few times in the first 30 days and then shows up to work under the influence of alcohol.  Can you simply terminate the employee then?

Under most circumstances, yes, and most people would say this is fair because the employer is simply holding the employee accountable under its rules and a new employee shouldn’t get a lot of free passes.

But now suppose you have a 20 year employee who has an exemplary record of service.  The employee has no record of tardiness or misbehavior, but after a March Madness weekend, shows up at late to work with bloodshot eyes.  It should be noted, though, that a week before, the employee had complained to his boss that the machine he was working on seemed in need of repair.

Under the employment-at-will doctrine, the employers still has the same right to terminate the employee, but I think most people would think this situation ought to be looked at differently.  If the employer proceeds with the termination, it’s possible that it opens itself up to a threat of a claim.

Why? Because while the employment-at-will doctrine still applies, a judge or fact-finding would also then ask the same question — does this termination seem “fair”?

If the answer to that question is “no”, then judges and juries will look for alternative explanations.  Here, one could argue that it was the employee’s complaint that was the motivating factor in the termination and the employee was being retaliated against for complaining.  Otherwise, the termination seems a bit “unfair”.

That type of logic may not be “fair” either, but it goes to show that the employment at will doctrine should not simply be relied on in all circumstances.

I’ve yet to have an employer just say, “I didn’t have a reason for firing the employee. I just felt like it.” That may work under the “at will doctrine” but in the real world, it probably wouldn’t fly.

For employers, always try to look at your decisions through a neutral prism.  Or better yet, ask yourself: What would my neighbor think about this? If the termination seems unfair under those circumstances, it may be a clue to re-think your decision.

 

Second Circuit Rejects Employee’s Trypanophobia Claim

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Litigation

shotYou don’t need to look for a needle in a haystack to figure out this latest case from the Second Circuit.

But you do need to know what “trypanophobia” is.

Ready? Fear of needles.

That becomes important in a Second Circuit court decision yesterday holding that an employee’s fear of needles prevented that employee from performing an essential function of his job and rejecting his disability discrimination claim.

The background of Stevens v. Rite Aid Corp. (download here)  is fairly straightforward as cases go.  As you’ve probably noticed of late, many of the big pharmacy chains have been requiring pharmacists to perform immunizations in order to fill an unmet need for vaccinations in the health care market.

In April 2011, Rite Aid revised its job descriptions for pharmacists to require them to hold a valid immunization certification and noted that immunizations were part of the pharmacists’ essential duties and responsibilities.

The plaintiff in the above case worked as a pharmacist for 34 years.  When the job description was changed, he received a note from his physician explaining that the employee was “needle phobic and cannot administer immunization by injection.”  When he refused to perform that role (and I’m simplifying for purposes of a blog post), Rite Aid terminated his employment.

A trial did not go well for Rite Aid.  A jury determined that the employee had been discriminated against and awarded over $2M in damages.

Hence the appeal.

In reviewing the matter, the the Second Circuit rejected an employee’s disability discrimination claim because the evidence “compels a finding that immunization injections were an essential job requirement.”

While “it is understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia”, “his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence”.

The court also looked at whether there was a reasonable accommodation that could have been provided to him.  But the court said that the employee failed to show a reasonable accommodation existed at the time.  An accommodation does not require elimination of an essential function of the job.

The court case is a very helpful decision in clarifying whether an employer can insist on having its employees perform the essential functions of a job. Too often, employees suggest accommodations that would have them avoid an essential function of the job altogether. This court case should put a damper on such arguments.

For employers, the case is also a helpful reminder on having clear descriptions on what the essential functions of a job are and being able to explain why the duties are created that way.   Nonetheless, employers should still engage in an interactive process with an employee about whether there are any reasonable accommodations that can be provided.

Four Compliance Items Connecticut Employers Can Check Now

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

capitoldasIt’s a challenge for employers to keep up with changes to employment laws. What’s the current status? What do I need to change?

So, here are four quick things you can look at right now to ensure that you are up to compliance in Connecticut.

  1. Connecticut increased the minimum wage effective January 1, 2017.  It’s now up to $10.10 per hour. Are all your employees now at that minimum wage?
  2. Connecticut’s new Fair Change Employment Law went into effect January 1, 2017.  That means that most employers are not allowed to ask about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application unless the employer is required to do so by state or federal law, or a bond is required for the position for which the applicant is seeking.  When did you last update your employment application? 
  3. Last summer, Connecticut updated it’s state family & medical leave law to mirror federal FMLA law that allows an employee to take a leave for a “qualifying exigency”.  Recall too that Connecticut allows employees to take leave in order to serve as an organ or bone marrow donor. When did you last update your FMLA policy?
  4. Effective October 1, 2016, employers may now offer the use of payroll cards to deliver wages so long as the employee “voluntary and express authorizes” the payment of wages by that method and the employer provides a “clear and conspicuous notice” to employees about the use of it.  Have you updated your notices and have your received authorizations from your employees on the use of payroll cards?

 

Where Are Your Employees? (Hint: It May Not Be Facebook Anymore)

Posted in Highlight, Human Resources (HR) Compliance, Social Media

snapchat1I recently gave a presentation on social media to a local non-profit and had the opportunity to review some of the latest statistics when it comes to the use of social media.

Frankly, I knew that there has been a shift away from Facebook for some younger people but even I was surprised by the trendlines.   It’s happening much quicker and in bigger numbers than you might think.

And even more surprising, the big winner is: Snapchat.

Yep, the little app that I talked about in 2013.  (Think about how quickly and rapidly the technology has changed in less than four years.) Put another way, the disappearing social media sites that were just getting started are now big.

How huge? According to a new study of what social media sites college students use first, fifty-eight percent of college students said they open Snapchat first, compared with 27 percent who chose Instagram, 13 percent who said Facebook and the 2 percent who opt for LinkedIn.

Another recent survey by Pew Internet found that 56 percent of smartphone users between 18-29 years old use auto-delete apps like Snapchat. That is more than four times the share of users between 30-49 years told.

(Teen usage is even higher with Facebook as the fourth most popular app, behind Snapchat, Instagram & Twitter, according to a Piper Jaffray Fall 2016 study.)

Let’s not, however, write off Facebook just yet.  A whopping 79 percent of online users are still on Facebook.  But these overall statistics show that Facebook has lost it’s exclusive hold on younger online users.

From an employment law context, this continues to cause all sorts of headaches.

With disappearing snaps, for example, it can be difficult for employers to track down and monitor harassment in the workplace. (The fact that some Silicon Valley companies are under scrutiny is perhaps not that surprising, if still disappointing.)

And when it comes to document retention, in the case of a lawsuit, apps like Snapchat are a challenge as an employer tries to preserve relevant information.

For employers, I think it’s important to recognize that we’re in the next generation of social media apps.  If you’ve just caught up to Facebook, you’re already behind the curve.

What may be next? That’s hard to predict.  Some teens I know are using apps like Musical.ly to share content.    (Never heard of it? Well, over 100M users are on it.)

Other types of live broadcasting apps, building off of Facebook Live, continue to grow as well.

Employers would be wise to expand their horizons. A broad social media use policy defining proper use when it comes to the workplace is still a key component.  While you may be on Facebook, the generation entering your workplace just isn’t on Facebook as much anymore.

A Rare Look Into An Employee’s Duty of Loyalty to the Employer

Posted in Highlight, Human Resources (HR) Compliance

worker3After nine-plus years of writing about employment law in Connecticut, it’s getting to be pretty rare to find a topic that I haven’t at least touched upon, but here’s one: The Duty of Loyalty.

Indeed, a new Connecticut Supreme Court case is giving me the opportunity to do so.

The case arises from an employee who, while working for one employer, was secretly working as an independent contractor for a competitor.  The employer sued under a breach of the duty of loyalty claim.

The case, Wall Systems Inc. v. Pompa, officially released last week, can be downloaded here.

Lawyers will look at the case because it sets forth what types of damages are recoverable when a breach of a duty of loyalty claim is established.  In doing so, the court makes it clear that a trial court has some discretion in fashioning the appropriate remedy:

We agree with the plaintiff that the remedies of forfeiture of compensation paid by an employer, and disgorgement of amounts received from third parties, are available when an employer proves that its employee has breached his or her duty of loyalty, regardless of whether the employer has proven damages as a result of that breach. Nevertheless, the remedies are not mandatory upon the finding of a breach of the duty of loyalty, intentional or otherwise, but rather, are discretionary ones whose imposition is dependent upon the equities of the case at hand. Moreover, while certain factors, including harm to the employer, should not preclude a finding that the employee has committed a breach of the duty of loyalty, they nevertheless may be considered in the fashioning of a remedy. Here, because the trial court properly exercised its broad discretion when it awarded damages but declined to order forfeiture or disgorgement, we will not disturb its judgment on this basis.

But I think the more interesting point for companies is to understand the scope of the duty of loyalty.

In discussing the scope of this duty, the Connecticut Supreme Court reaffirmed principles that were last set forth in detail over 50 years ago in Town & Country House & Homes Service, Inc. v. Evans.  In that case, the court found an employee breached the duty of loyalty by soliciting employer’s customers for his own competing business while still working for the employer.

The court noted that an employee’s duty of loyalty includes “the duty not to compete … and the duty not to disclose confidential information”.  The court noted that this duty not to compete is during the employment relationship — not necessarily after — and is not dependent on the use of employer’s property of confidential information.

The court went on to say that the duty of loyalty “also includes the duty to refreain from acquiring material benefits from third parties in connection with transaction undertaken on the employer’s behalf.”  What does this mean? Essentially, it bars the collection of “secret commissions and kickbacks which might cause the employee to act at the expense or detriment of his or her employer”.

An employer may seek the forfeiture of an employee’s compensation for the period of disloyalty, but the court concludes that such a remedy is an equitable one and subject to the facts of the particular case.

But it’s always important to read the footnotes and here, in footnote 9, the Court inserted the notion that the duty of loyalty may not apply all employees.  “The scope of the duty of loyalty that an employee owes to an employer may vary with the nature of their relationship. Employees occupying a position of trust and confidence, for example, owe a higher duty than those performing low-level tasks.”

Still, the case is an excellent one for employers to keep in mind — particularly if the employer does not have restrictive covenants with its employees.  If the employees are engaging in competing work while still employed, the employer can use this case — and the theories behind it — to see the appropriate remedies.

With the appropriate employee, the employer can further strengthen its arguments, but including this in an employment agreement along with restrictive covenants.  In such a case, the court reminds parties that an employer could then terminate that agreement prematurely and seek recovery of damages directly attributable to the employee’s breach.

Employers should consider consulting with their favored outside counsel to see how this decision may apply to them.

 

The Dialogue: What Legislation We’re Keeping Our Eyes On

Posted in Highlight, Legislative Developments, Wage & Hour

If at first you succeed, try it again. 

Well, that may not be how the saying goes, but the first back-and-forth post between me and Nina Pirrotti, an employee-side attorney, was so well received that we’re back for another conversation. 

Today’s topic: What legislation are we both keeping our eyes out for at the Connecticut General Assembly?  

The Dialogue Begins

Dan Schwartz: So Nina, our first post was such a hit that I think we’re due for an encore.  Thanks for being up for this.

It has only bewn a few weeks, but it feels like we’re moving at warp speed on developments.  We could spend another post just on The Donald, sorry, Mr. President. Somehow I think we’re likely to talk about that again soon.

But let’s focus today on some of the legislative items we’re keeping an eye on, particularly in Connecticut. Each year, it seems like our General Assembly likes to roll out fresh employment law ideas.

Is there a particular bill that you’re keeping your eye on now from an employee-side perspective?

nina_t_pirrotti1-150x150Nina Pirrotti: I’m so glad you asked!   Yes, let me tell you about one bill that has been on my mind on the federal level (I am speaking about it at an ABA conference in sunny Puerto Vallarta really soon) and then I will give you a couple of highlights from our backyard.  

The federal bill that looms large for me right now (although concededly perhaps not as large as the prospect of sitting on the beach, tequila based beverage in hand) is the misleadingly named  Lawsuit Abuse Reduction Act (“LARA”) which would force judges to respond to Rule 11 motions in a particular manner. 

Rule 11 allows for the possibility of sanctions to be imposed on attorneys or parties who submit (or later advocate for) pleadings which have been filed for an improper purpose or which contain frivolous arguments or claims. 

While Rule 11 motions rear their ugly heads relatively rarely in litigation, a newly invigorated Republican majority in Congress has proposed LARA which would amend the sanctions provisions in Rule 11 to remove all judicial discretion – – regardless of the circumstances of the individual case- – in two critical respects. 

First it would require the court to sanction any attorney, law firm, or party who violates the rule.  Second it forces judges who find the rule has been violated to order the offending party to pay  the other party’s attorneys’ fees and costs.  Those in my world who oppose LARA say that there is no proof Rule 11 is not working in its current form, that the changes would burden the courts and that  its “once size fits all” mandatory sanctions would unfairly penalize employees in civil lawsuits.

Closer to home, two bills come to mind.  The first is a proposed modification of C.G.S.A. 31-51m, a statute which bars employers from retaliating against employees who report  employers’ unethical or legal wrongdoings to public bodies. 

The modification seeks to  protect employees who complain about such conduct internally or who refuse to participate in an activity they believe to be in violation of the law.   It also seeks to extend the timeline to bring an action under the law (employees now have only 90 days to file) and to provide for a greater array of damages if the employer violates the statute.

The second is a proposal to provide eligible employees with paid Family and Medical Leave Act leave.  The proposed legislation would require employees to contribute 1/2 of 1% of their wages to it (there would be no employer contribution) and employees cannot opt out it.   

We plaintiff employment lawyers would welcome both pieces of legislation as long overdue and reasonably tailored to protect Connecticut’s workforce.

What are your thoughts from the other side of the aisle, Dan?    Or is there other proposed legislation that has captured your attention?

Continue Reading

Breaking: Conn. Supreme Court Clarifies ABC Test for Independent Contractors

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

justiceI’m back with news of a relatively big decision today from the Connecticut Supreme Court.

In the decision, the Court clarified an important question that the Connecticut Department of Labor had been pushing hard.  It will be welcome news for businesses in the state.

The issue was this: If an independent contractor (and his or her business) works ONLY with one company, can that person still be an independent contractor?

The Court said yes, that person CAN be. But it is important to note that it does that mean that the person will ALWAYS be an independent contractor. Instead, the court will continue to apply the ABC test — balancing several factors. (I’ve discussed the test in a prior post here.)

The case, Southwest Appraisal Group v. Administrator, Unemployment Compensation Act can be downloaded here.  Note that it will not be “officially released” until March 21, 2017.

The only issue in the case was whether the putative employee was “customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”

How to make that determination? By looking at the “totality of the circumstances” which also include another series of tests.

Here, the court at least is helpful in setting up what those factors are.   According to the Court, “factors to consider in evaluating the totality of the circumstances under part
C include:

  1. the existence of state licensure or specialized skills;
  2. whether the putative employee holds himself or herself out as an independent business through the existence of business cards, printed invoices, or advertising;
  3. the existence of a place of business separate from that of the putative employer;
  4. the putative employee’s capital investment in the independent business, such as vehicles and equipment;
  5. whether the putative employee manages risk byandling his or her own liability insurance;
  6. whether services are performed under the individual’s own name as opposed to the putative employer;
  7. whether the putative employee employs or subcontracts others;
  8. whether the putative employee has a saleable business or going concern with the existence of an established clientele;
  9. whether the individual performs services for more than one entity;
  10. and whether the performance of services affects the goodwill of the putative employee rather than the employer.

The court does add some additional guidance here noting that, “We emphasize that particular caution is necessary in considering the relative size or success of the putative employee’s otherwise independent business in connection with the totality of the circumstances analysis under part C.”

This is a big decision for employers who also use independent contractors.  Businesses should again review their relationships with these independent contractors to try to satisfy as many of the factors outlined above.

No Love for Guns in Workplace Is Protected, Court Finds

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

loveWhile the calendar may read Valentine’s Day, I’ve tackled more than my fair share of love-themed posts in the past filled with roses and chocolates.

So instead, I’m going to go in a different direction entirely: Guns. (Though query whether the music group Guns ‘n’ Roses would care to disagree with me.)

See, there was this employee who worked at a car dealership wasn’t in love with guns.  But he believed his supervisor was.  So much so that, according to a complaint filed in state court, the supervisor would sit in “his office looking at and ordering guns.”  The employee then observed that packages containing “guns, including AR-15s, clips, handguns, suppressors and [rifles]” were being delivered to work.

The employee raised the concern to the dealership’s owner. Later that date, the supervisor said allegedly told the employee to “stay the [expletive] out” of the supervisor’s business.  Two days later, the employee was fired.

The employee brought suit claiming that he was wrongfully discharged in violation of a public policy in consideration of Conn. Gen. Stat. 31-49 — which requires employers to exercise reasonable care to provide employees with a reasonably safe place to work.

The Superior Court found that such a claim could survive a motion to strike.   In doing so, it court concludes that there is an important public policy of having an employee “raising his concern over firearms in the employer’s workplace”.

The case, Schulz v. Auto World, is an important reminder that not all causes of actions are clearly spelled out in the law. Sometimes courts look to general principles to take the law in different directions.

In this instance, employers should take notice of the public policy articulated by the court that guns in the workplace in Connecticut are still to be considered unusual.

The Dialogue: Hiring Employees the Right Way (From Different Sides)

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance

I’ll confess. I’m excited about today’s post.  It’s hard to find something new to do after nearly 10 years of blogging, but I think today’s post is pretty innovative. Unless you read The New York Times “The Conversation” which we’ve tried to copy emulate here.  Except this post (and hopefully others) will be called “The Dialogue”.  Somehow different, right? 

Today’s post tackles some of the legal issues regarding hiring but does so in a back-and-forth format between a management-side attorney (myself) and an employee-side attorney (Nina Pirrotti).  I’d insert a reference to the letters of Alexander Hamilton and Aaron Burr discussing the issues of the day, but then I remembered that ended in a duel, and it’s not exactly what I was foreseeing here.  I think Nina and I can exchange some thoughts without trying to kill one another. 

Anyways, Nina and I have tried something new below.  Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association and a frequent presenter on employment law topics.   My thanks to her for being brave enough to try this with me.  Let me know what you think. 

The Dialogue Begins

Dan Schwartz: Welcome to the blog and thanks for engaging in this discussion on employment law. I promise that we here at the blog don’t bite and we pay all of our workers (me) minimum wage. (Ok, that’s a lie. I get nothing for writing the blog, but moving on….)

I know we were planning on talking about some developments in the world of hiring and employment law, but I can’t pass up the opportunity to ask you something about the new Trump Administration.  From the perspective of an attorney who typically represents employees, what are one or two things you’re keeping an eye out for?

nina_t_pirrotti1-150x150Nina Pirrotti: Thank you, Dan, for your warm welcome.  We plaintiffs’ employment lawyers have been feeling mighty chilly since November 8th and have been bracing ourselves ever since for even more frigid temps ahead.  Ironically, I felt the impact of Trump’s election virtually immediately.  On November 9th, I flew to Chicago and spoke at the ABA’s annual Labor & Employment conference.   

The topic of the panel on which I spoke revolved around laws which prohibit employer retaliation against employees for discussing their wages.  The laws are designed to protect female employees who are trying to figure out whether they are being paid less than their male counterparts.  

I was all set to talk about the Paycheck Fairness Act which would have expanded the protection provided by those laws and was expected to be one of the first pieces of legislation signed by Hillary Clinton.  As you can imagine, my plane ride there was consumed with a furious re-write of my outline! The next day I flew to Dallas to participate in the semi-annual Executive Board meeting for the National Employment Lawyers’ Association where we also had to nimbly adjust our focus to reflect the new (surreal) reality.  

I did not thaw out after learning that Trump nominated Andy Puzder, CEO of chain restaurants, including Hardees (which, sadly, is the maker of my all -time favorite breakfast biscuit) to head the Department of Labor.  Puzder’s employee track record, which includes opposing overtime and minimum wage laws and underpaying his own workers is abysmal.   

I can only hope that the rumors that he might back out of consideration prove to be true.  I did feel  a glimmer of hope after I learned this week that Trump has tapped EEOC Commissioner Victoria A. Lipnic as Acting Chair of EEOC.  Lipnic, who was nominated by President Obama, has served as EEOC Commissioner since 2010.

I was also mildly heartened by Trump’s expression of (granted, lukewarm) support in his campaign for pay equity laws and paid FMLA leave, both championed by Hillary Clinton and I can only hope that the person who might most positively influence him in that regard (Ivanka) is able to carry the day.

Unfortunately, the Trump administration does seem poised to reverse or suspend the changes to Fair Labor Standards Act’s overtime rules which went into effect on December 1, 2016.  

Of course, the most important event that we plaintiffs’ employment lawyers are waiting for is the announcement of Trump’s Supreme Court nominee who would replace the very conservative Justice Antonin Scalia.  That person may likely cast the deciding vote on cases that impact the rights of workers in a myriad of ways.  Unfortunately for us, the three oldest justices – Ruth Bader Ginsburg Kennedy  and Breyer  – are liberal or moderate and Trump may have more than one bite at that proverbial apple during his (hopefully only) four-year stint. 

Since your excellent blog has national appeal and one or more of these justices might actually read it, I hereby urge all three of them to eat well, exercise moderately and avoid all high risk activities! Continue Reading