Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Employers to Pay More in Federal Unemployment Taxes

Posted in Laws and Regulations, Legislative Developments, Wage & Hour

It appears that for the second year in a row, Connecticut employers will not be able to take advantage of a cost-saving opportunity as a result of inaction by the Connecticut Department of Labor.

In two letters to the Connecticut Department of Labor by the CBIA and the Republican leadership, the details of the state’s failure to submit a waiver application for a Benefit Cost Rate (BCR) add-on have been outlined.  The deadline for doing so is July 1 and, according to various reports, the CTDOL has shown no interest in doing so.  As a result, Connecticut employers will pay higher federal unemployment taxes for every employee.

What will this mean in practical terms?

As stated by the CBIA, “Filing for the waiver from the BCR add-on will reduce the federal unemployment tax burden faced by Connecticut businesses, which was the highest in the nation last year. Businesses in a state with no federal debt (such as New York, Massachusetts and Rhode Island) pay federal taxes in the amount of $42 per employee. ”

The CBIA goes on to state:

If Connecticut does not apply for the waiver this year, businesses here will pay $196 per employee in federal unemployment taxes. However, if we apply for the waiver and are approved, businesses could instead by $147 per employee.”

The issue is that Connecticut’s Unemployment Compensation Trust Fund remains in debt and, according to the CBIA, requires that we “make the same benefit adjustments made by our neighboring states many years ago.”

Unemployment taxes remain a significant issue for employers in Connecticut and employers should continue to be vigilant on the various issues impacting them this year.

Details of New Overtime Regulations Released Monday Night

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

DOLOn Monday night, details of the revised white-collar overtime regulations were released. But we’ll know more once the actual details get posted on the Department of Labor website on Tuesday. (Bloomberg was the first to report it Monday evening.)

(Update 6/30/15: The proposed regulations are now available online from the U.S. Department of Labor here.)

As you may know, in order to be exempt from overtime, typically two tests must be met: a “salary” test and a “duties” test. Employees who are paid below that threshold must be paid overtime even if the “duties” test is met.

But in recent years, the salary test has been very easy to meet. Enter the proposed changes to the regulations.

Among the details released tonight:

  • The regulations will raise the salary threshold from $23,660 per year to $50,440 – nearly $1000 a week ($970 a week if you’re really particular).
  • This threshold will not be linked to inflation but, according to Politico, will be tied to the 40 percentile of income (meaning, in essence, that 40 percent of the working population should be eligible for overtime pay)
  • Importantly, the regulations will NOT include changes to the duties test. Instead, it “solicits questions from the public about how best to alter it. As in the past, the new threshold will not affect teachers, lawyers, doctors and judges, who are all automatically exempt from overtime.”

What this means practically is that employers who have employees making less than $50k, need to review their practices now to see who may be impacted by these new regulations.

But don’t go revising all your policies yet. According to The New York Times, the new rules wouldn’t be implemented until at least 2016 — giving employers many more months to understand the changes.’

Taking advantage of new media, the President released his own op-ed on the subject on the Huffington Post Monday night.

This week, I’ll head to Wisconsin to discuss my plan to extend overtime protections to nearly 5 million workers in 2016, covering all salaried workers making up to about $50,400 next year. That’s good for workers who want fair pay, and it’s good for business owners who are already paying their employees what they deserve — since those who are doing right by their employees are undercut by competitors who aren’t.

That’s how America should do business. In this country, a hard day’s work deserves a fair day’s pay. That’s at the heart of what it means to be middle class in America.

Interestingly, some anticipate that employer will respond to these rules by actually lowering salaries:

Assuming the rule is put in place, economists believe that many employers will most likely reduce workers’ hours so as to save on overtime pay. Even so, the White House believes the rule could affect nearly five million workers in the short term. Meanwhile, any attempt to scale back hours could increase hiring.

Over the longer term, the effect of the rule could diminish substantially as employers offer new hires a lower base wage. This could make their overall pay, including the higher overtime wage, equivalent to what comparable employees make today in the absence of the overtime rule.

Again, we’re anticipating more details when the proposed regulations are now released as early as Tuesday morning.

 

Paid Family & Medical Leave Program and CHRO Changes Get Revived in Budget Implementer

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

GA2The Connecticut General Assembly is finalizing its budget implementation bill today and suffice to say that there are more than a few surprises in there. (CT News Junkie first highlighted it in a tweet, it should be noted.)

For employers, buried deep in the bill is Section 422 entitled: “PAID FAMILY AND MEDICAL LEAVE IMPLEMENTATION”.  This seems to revive a paid family and medical leave program that was thought to be shot down earlier this session.

What does it do? It starts a framework for paid leave to be implemented similar to other payroll deduction services.

According to the summary of the legislation:

The bill requires the labor commissioner, in consultation with the state treasurer, state comptroller, and commissioner of administrative services, to establish the procedures needed to implement a paid family and medical leave (FML) program.

The labor commissioner must contract with a consultant to create an implementation plan for the program by October 1, 2015. At minimum, the plan must:

1. include a process to evaluate and establish mechanisms, through consultation with the above officials and the Department of Revenue Services, by which employees must contribute a portion of their salary or wages to a paid FML program by possibly using existing technology and payroll deduction systems;

2. identify mechanisms for timely claim acceptance; claims processing; fraud prevention; and any staffing, infrastructure and capital needs associated with administering the program;

3. identify mechanisms for timely distributing employee compensation and any associated staffing, infrastructure, and capital needs; and

4. identify funding opportunities to assist with start-up costs and program administration, including federal funds.
The bill also requires the labor commissioner, by October 1, 2015 and in consultation with the treasurer, to contract with a consultant to perform an actuarial analysis and report on the employee contribution level needed to ensure sustainable funding and administration for a paid FML compensation program.

The labor commissioner must submit a report on the implementation plan and actuarial analysis to the Labor and Appropriations committees by February 1, 2016.

But wait! There’s more. There’s a whole series of changes to the CHRO that are added in as well in Sections 71-87.

As for those changes, indeed, several are technical, but some are not. For example, under this legislation, a commission legal counsel could intervene in a public hearing or appeal without consent of the parties.   It would also limit the avenues for Complainants to reopen complaints that have been pending over two years.

The bill also creates a “Low Wage Employer Advisory Board” in Section 497 which would review the impact on employees of paying “low wages”.

My cursory review of the bills shows other provisions relating to “labor peace agerements” for certain state projects, and a minimum $15/hour wage on certain contracts.  For employers, this is definitely a bill to review today.

Given that this bill was released at the last minute and contains all sorts of compromises, I think its unlikely that it will be amended at this late stage, but stay tuned over the next 36 hours to see what’s next!

The “Number Two” Reason on How to Avoid GINA Liability

Posted in Data Privacy, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Litigation

My colleague, Marc Herman, returns today to talk about a subject that doesn’t get a lot of attention but may as the technology makes genetic information more accessible.  But just because it’s more accessible, doesn’t make it right. Particularly if you suspect something “smelly” in your workplace. 

hermanIt’s not often that it comes up, but at a recent presentation, I discussed the implications of the Genetic Information Nondiscrimination Act, 2008––“GINA”––with the audience.

A slight digression is necessary: GINA, a federal law, prohibits employers from making any employment-based decision (such as hiring, firing, disciplining, and promoting) based upon one’s genetic make-up. What is more, in an effort to preempt such conduct, GINA significantly restricts employers’ ability to obtain genetic information about employees and job applicants.

Back to the presentation: many members of my audience, despite hyperbolic, yet entertaining, fictional hypotheticals, found it incredibly difficult to imagine a real-life situation whereby an employer would actually violate GINA––my audience happened to be sticklers for realism.

Slightly disheartened that my hypotheticals lacked the believability factor of a John Grisham novel, I set out to locate a real-life GINA case that perfectly captured the substance of GINA, and exemplified the potential consequences of a violation. . . today, my quest was complete.

(Editor’s note: Eric Meyer of The Employer Handbook appears to be one of the first to talk about the case but it’s too good to pass up.)

Jack Lowe and Dennis Reynolds sued their Georgia employer––Atlas Logistics Group Retail Services, LLC (“Atlas”)––for alleged violations of GINA. See Lowe v. Atlas Logistics Group Retail Services, LLC .

The plaintiffs alleged that they were coerced, under the threat of discipline, into submitting cheek-swabs to assist Atlas in identifying a particular employee.  Why?

Because the employer suspected an employee was regularly, and shamelessly, defecating in one of Atlas’s shipping warehouses. According to the employer, the saliva sample was necessary to help identify fecal matter and track down the serial offender.

(The best footnote is from the court: “Apparently, this problem is not as rare as one might imagine.”)

After suing their employer for GINA violations, a Georgia Federal District Court concluded that the cheek-swab constituted a “genetic test” in violation of GINA; and a federal jury awarded the plaintiffs over $2,000,000.

So there you have it––a real-life case that highlights the serious implications stemming from a GINA violation.

. . . and, in case you’re wondering, neither of the plaintiffs was the serial defecator.

(Editor’s note again: Amazingly, this isn’t the first time “poop” has come up on the blog.  Specifically, you may recall the case from April 2008, in which an employee was given “The Book of Poop”.

Can Employee Display a Confederate Flag on Facebook as Free Speech? Or Can Employer Take Action?

Posted in Discrimination & Harassment, Highlight, Litigation
Not the Confederate flag.

Not the Confederate flag.

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

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

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

So yes, displays of the flag at work can cause issues and give rise to discrimination claims. Not a big surprise. (Notably, my search did not highlight any particular displays of the Confederate flag coming up in Connecticut state or federal court cases.)

Then I came across the case of Duke v. Hamil, a federal court case from 2014 out of Georgia, in which a university police officer was demoted after he displayed a Confederate flag on his Facebook page along with the phrase “It’s time for the second revolution.”  He claimed that being demoted violated his First Amendment speech rights.

And on that ground, you might be surprised that the court agreed with him — in part.  The court held the display was actually a matter of public concern and subject to the protections of the First Amendment:

However, the Court finds that Plaintiff’s speech can be fairly considered to relate to matters of political concern to the community because a Confederate flag can communicate an array of messages, among them various political or historical points of view. Combine this symbol with a statement calling for a revolution right after an election, and it is plausible that Plaintiff was expressing his dissatisfaction with Washington politicians. Even if Plaintiff had intended to convey a more radical message by using the Confederate flag and the word revolution, that message would also relate to political and social concerns of the community regardless of how unpopular or controversial that point of view may be. Plaintiff’s speech was thus a matter of public concern because it expressed disapproval of elected officials, certainly a topic “upon which `free and open debate is vital to informed decision-making by the electorate.'”

But before you start ranting about this decision on Reddit, there’s more. The court went on to apply a balancing test in which the plaintiff’s speech is weighed against the interest of the police to take action when speech “may unreasonably disrupt the efficient conduct of government operations.”

And this is where the employee’s claim ultimately falls apart”

Appearing to advocate revolution during a presidential election, and to associate that idea with a Confederate flag, Plaintiff likely sent a partisan, if not prejudicial, message to many in the … Police Department and the community it serves.

After carefully weighing these factors, the Court finds that the … Police Department’s interests outweigh Plaintiff’s interest in speaking. It is obvious that speech invoking revolution and the Confederate flag could convey a host of opinions that many would find offensive, especially when associated with a senior law enforcement official.

Even though the case concerned a police officer, it’s likely that other courts could come to similar conclusions. Any right to display the flag, will be outweighed by the disruption in the workplace.

Of course, Connecticut has its own flag case - Cotto v. United Technologies — in which the court had to look at whether an employee’s refusal to display an American flag was protected speech.  I’ve talked about that case here.

If you want to learn more about “good” and “bad” flag design, I highly recommend this discussion of vexillology here.

Intern Anti-Discrimination Bill Signed By Governor

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Legislative Developments
Malloy Signs Intern Anti-Discrimination Bill

Malloy Signs Intern Anti-Discrimination Bill

Capitol Watch – The Hartford Courant’s political site – tweeted the following yesterday:

And a review of the Governor’s website reflects that approval in the bill notification release. (I read them so you don’t have to!)

So, what does that mean for employers? Well, I’ve covered the bill before so I won’t recap everything here.

But the bill’s provisions now become effective October 1, 2015.  Thus, employers who regularly use interns should update their employee handbook and anti-harassment provisions to explicitly cover interns.

One of the other things to consider that hasn’t been discussed much is the extent to which the bill’s definition of “intern” may get adopted in the context of establishing whether an intern is really an “employee” for wage/hour purposes.

What do I mean? Well, back in 2012, I talked a lot about how employers could properly structure internship programs. In that post, I noted that there were six factors that the U.S. Department of Labor would look at:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Now, let’s compare this with the definition of “Intern” in the new anti-discrimination bill.  An intern is defined as an “individual who performs work for an employer for the purpose of training, provided”:

  1. the employer is not committed to hire the individual performing the work at the conclusion of the training period;
  2. the employer and the individual performing the work agree that the individual performing the work is not entitled to wages for the work performed; and
  3. the work performed:
    1. supplements training given in an educational environment that may enhance the employability of the individual,
    2. provides experience for the benefit of the individual,
    3. does not displace any employee of the employer,
    4. is performed under the supervision of the employer or an employee of the employer, and
    5. provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer.

If you track each item carefully, you’ll notice that they are actually fairly similar. That’s a good thing.  While there are subtle differences, it’s unlikely that those differences will be meaningful in their application.

As a practical matter, that means employers that adopt the defintiion of “intern” in the new state statute are likely to be following the federal interpretation as well, reducing the risk of a wage/hour claim as well.

The bottom line, however, is that employers who just use interns without much worry as to the liability that using interns may create should rethink their practices. The new law is yet another area where new rules will make using those interns may expose employers to possible claims.  Is it a small risk? Perhaps. But small risks can turn into big ones if employers aren’t mindful.

Forget Employee Handbooks. How About an Update to Employment Laws?

Posted in Laws and Regulations, Wage & Hour

generalassemblySo, employers are probably tired of hearing me say that there’s always something to update in your employee handbook.

But if employers can do it, why can’t the legislature get its act together and clean up our existing laws to the ones that are relevant — or at least update them.

Instead, we get layers upon layers of laws that employers probably have no idea even exist.

Did you know that if you’re over 66 years old, you can’t work in a bowling alley or “photograph gallery” after 10 p.m.  Unless you “consent”.  (Conn. Gen. Stat. Sec. 31-18.)

Let’s just ponder this one for a second. What is a “photograph gallery”? And what does it mean to “consent” to work? Can a 66 year old simply say that he’s not going to work late?

Then there is the ban on minors operating elevators — something I’ve talked about before.  Do we even have ANY elevator operators left in Connecticut? Is that even a job?

Then there is Sec. 31-43 which declares that “A public laundry shall be regarded as a manufacturing establishment within the provisions of the statutes. No laundry work shall be done in any public laundry in a room used as a sleeping or living room. No employer shall permit any person to work in his public laundry who is affected with pulmonary tuberculosis, a scrofulous or venereal disease or a communicable skin affection.”

Raise your hand if you even know what a “scrofulous” disease is.  And I’m pretty confident that bedrooms aren’t being used as public laundries anymore.  (And besides, various OSHA rules probably more than cover this.)

To their credit, the General Assembly finally eliminated the law regarding telegraph operators in 2014. But there are still plenty more laws on the books that could use a refresh.

Now that the legislature is done with the main business for the year, perhaps it can take this summer to review the other laws we have before adding some more.  It might just be a useful exercise.

 

 

 

CBA Annual Meeting Employment Law Recap: Ways to Avoid Getting Sued

Posted in Highlight, Human Resources (HR) Compliance
outten

Wayne Outten addresses conference

No one will ever mistake the Connecticut Legal Conference, run by the Connecticut Bar Association, for, say a glitzy gaming conference. But if you were fortunate to attend, you had the opportunity to hear some pretty good speakers talk about employment law for several hours.

Among the topics were a discussion on the Ellen Pao case, a discussion of the “Obama Effect” on race relations in the workplace, and a recap of other notable employment law cases from the last year.

For me, one of the most interesting discussions came from Wayne Outten – the incoming chair of the ABA Labor & Employment Law Section, and an accomplished plaintiff’s lawyer.  His talk focused on the lawyer as “problem-solver” which he said was critical in employment law cases.

He said that he often tells his clients (employees at companies) that self-help is their first best option.  It’s something I’ve preached as well. Once you get lawyers involved, you can never de-escalate a situation.

I’ve often preached about how employers need to be “fair” in the decisions. He said that for employees, he advocates the same thing.

But he also pulled back the curtain on the advice he gives to employees too; he plants a seed for employees to use in their negotiations (and again, it’s a well-known device).  He suggests that the employee tell the employer that he’s met with an employment lawyer and that lawyer said he or she has a good case, but that the employee is the “reasonable” one and wants to work things out directly with the employer.  It’s the veiled threat approach.

For those that haven’t heard Wayne speak before, he also provided a top 10 list that he’s given for many years on the ways for employers to avoid getting sued.  Among them:

  • Be fair and reasonable in all your dealings with employees.  Follow the Golden Rule: Treat every employee the way you would want to be treated — that is, fairly. Treat every employee so as to bring out the best that person has to offer.
  • Consider alternative dispute resolution techniques. When the foregoing approaches fail to avert or resolve a particular dispute, consider using such alternative dispute resolution procedures as peer review, early neutral evaluation, mediation and non-binding arbitration. (Use of ADR procedures should always be truly voluntary — not crammed down on employees as a condition of initial or continued employment.)
  • Be nice to plaintiffs’ attorneys. When you get a telephone call or letter from a lawyer representing a current or former employee, consider it an opportunity to engage in mutual problem-solving. Consider meeting with the employee and his or her counsel to exchange views on what happened and how the situation might be remedied. Such discussions may avert litigation.

For employers, there’s wisdom in this advice.

Revisiting Reasonable Accommodation Under the ADA — Being “Effective”

Posted in CHRO & EEOC, Class Actions, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Litigation

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

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

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

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

That blog’s recap is appropriate here:

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

The IBM Media Library stores over 46,000 video files (!), only 100 of which were captioned.  As for live meetings, IBM provided him with ASL interpreters and Noll found those to be “effective.”  But he didn’t like the interpreters for the videos because he found it “confusing and tiring.”

The Second Circuit noted that determinations of the reasonableness of accommodations are typically fact-specific, but summary judgment can be granted to an employer if the accommodations are “plainly reasonable.”  (Pro tip: If the court is setting forth this standard, you can figure out where it is headed.)

This is an important point to emphasize and the court seems to be setting forth a standard that hasn’t been utilized much before in discussions. “In other words, the plain reasonableness of the existing accommodation ends the analysis. There is no need to engage in further burden‐shifting to consider whether the employee’s requested accommodation would have been reasonable.”

Reasonable accommodation can take many forms, but must be “effective”, the court said.  And, at the same time, employers are not required to provide the “perfect” accommodation or even the “very accommodation most strongly preferred” by the employee.  “All that is required is effectiveness.” 

Here, the court found that the accommodations from IBM were indeed “effective”.  While Noll said the interpreters were not as effective as captioning and that it was “tiring” to watch it, that objection is not enough to get him to a jury trial, let alone victory.

This disadvantage does not render interpretive services ineffective. A person who is deaf necessarily receives auditory information from other senses (principally sight); so it can be expected that many accommodations of deafness — ASL interpretive services as well as captioning — will tax visual attention to some degree. An accommodation for deafness therefore cannot be rendered ineffective by the need to divide visual attention, without more.

For employers, this is an important case to consider. IBM here had access to many more resources than most employers. And even with all the services it provided, it was sued for still not doing enough. The Second Circuit put an end to that — no doubt after IBM spent significant sums to defend itself.  Smaller employers may not be so fortunate.

Still, for employers, showing that you have entered into the interactive process with employees and provided what it believes to be an “effective” reasonable accommodation can still provide a path to success if sued.

Can You Still Have Dress Codes After Abercrombie Decision?

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Litigation
dress1

Probably not appropriate in workplace

I’m not a fan of click-bait, so if you clicked the headline just to know whether your company can still have a dress code policy after the Supreme Court’s decision in EEOC v. Abercrombie & Fitch, the answer is “yes”.

But there’s an important caveat and for that, you’ll need to read on.

The Court’s decision has caused a bit of a ruckus with some commentators portending massive changes to discrimination law. As I said last week, I just don’t see that.

The evidence in the case, according to the lower court’s decision, was that the supervisor had believed that the job applicant was “Muslim” and “figured that was the religious reason why she wore her head scarf.”

Moreover, despite being scored highly in her job interview, the area manager said that the job applicant “should not be hired because she wore a headscarf—a clothing item that was inconsistent with the [company’s] Look Policy.”

In other words, there was more than ample evidence that the applicant’s religious practices played a factor in the Company’s decision not to hire her.

How could a company get tripped up by its own dress code or “look” policy? Well, for one, the policy did not explicitly state that its policy could be tweaked in some instances to accommodate religious practices.  Even the company has now dropped that policy.

All is not lost though for the rest of us. Dress codes are still acceptable.  But companies should not treat them as hardened laws, never to be broken.

One simple fix is to add a clause regarding reasonable accommodations such as this:

Employees who believe a reasonable accommodation to this policy should be granted based on religion, disability or other grounds protected by applicable law should feel free to discuss the matter with their supervisor. Reasonable accommodation will be granted unless it would cause an undue hardship on the employer or other business circumstances warrant.

Obviously, each policy should be tailored to your business and to your state, so — as with your employee handbook — you should have this language reviewed by your employment law counsel.

Now, whether dress codes are a good thing? That’s an entirely separate question for another day…..