My post yesterday on a new Superior Court decision in Velez v. Mayfield has generated a lot of discussion from the counsel for the individual who brought the suit. (You can also view the original DOL decision here.)
As I mentioned in the update, the case is being appealed so it’s very likely we’ll get Appellate Court or Supreme Court guidance on this issue. But assuming Velez is allowed to stand, let’s talk about a few more examples of how this decision might impact employers.
Suppose an employer has 100 employees in Texas and 1 sales employee based in Connecticut, who must care for a sick family member. The employee in Connecticut would not be eligible for federal FMLA leave because the worksite that he or she works at has less than 50 employees. However, the employee would be eligible to receive Connecticut FMLA (16 weeks over 2 years), under Velez.
What might the employer be required to do? In some instances, provide the FMLA leave and then hire a temporary replacement or move another employee to temporarily fill the position on an interim basis. When the FMLA-eligible employee is ready to return to work, Conn. Regs. 31-51qq-21 seems to specify a likely path :
[The] employee is entitled to be returned to the original position the employee held when leave commenced, or if the original position is not available, to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.
There are, of course, some exceptions. If the employer decided to simply close the Connecticut facility, that might dictate a different course, but in the example above, the employer is in the difficult position of living with a great deal of uncertainty for a small office where temporary replacements might be difficult to find.
Although the court in Velez suggests that its decision may help smaller employers in Connecticut, it might also hurt them too because it could impact Connecticut-based employers that have — until now — been seen as being exempt because they were too small to be covered. Suppose an employer has a Connecticut office of 40 employees, with approximately 40 other employees working on a part-time basis at various locations outside the state. Federal FMLA would not kick in, again because the worksite has less than 50 employees. But under Velez Connecticut FMLA would now seem to apply to all of the Connecticut employees because the company employs more than 75 employees.
One question left unaddressed by the decision is what impact might this have if its analysis were applied to other labor and employment laws. For example, the discrimination laws (Conn. Gen. Stat. Sec. 46a-51) specify that an employer is a company that employs three or more persons. Would out-of-state workers be included in that calculation as well?
Other statutes raise similar questions: Do the rules prohibiting smoking in the workplace have to count out-of-state workers too? (Conn. Gen. Stat. Sec. 31-40q). Why are the workers compensation statute definitions (Conn. Gen. Stat. Sec. 31-275(10)), which are undoubtedly intended to cover employees of small branch offices, structured so differently if — as the court states — the intent was the same? And the same could be asked about the unemployment insurance statutes too (Conn. Gen. Stat. Sec. 31-223).
In the meantime, companies with employees in the state should take a hard look at their exposure on this issue.