Following up on her post last week recapping part of the Connecticut Bar Association’s Annual Meeting on labor laws, Guest Poster Rita Trivedi is back with highlights from administrative law and employment law portions of the presentation.
Again, my sincere thanks to her for this insightful post. I hope you all find it as interesting as I do.
In my last guest post, I highlighted some of the labor law developments discussed at the Connecticut Bar Association’s Annual Meeting on June 11. But administrative and employment law was certainly not neglected: attendees heard from representatives at the state Department of Labor and the Commission on Human Rights and Opportunities, giving practitioners a peek into issues to watch in the coming months. Highlights below….
The state FMLA should be an active topic in the coming year:
- Watch for a ruling soon from the Connecticut Supreme Court in Velez v. Mayfield, Commissioner of Labor. Velez should answer the question of how to count employees under the Connecticut state FMLA: must the 75+ employees needed to determine if an employer is covered be solely in Connecticut, or in Connecticut and out of state? The state DOL has long held that the 75 must be only within Connecticut; the complaint alleges that both in- and out-of-state employees should be counted so as to prevent large employers from escaping coverage. Will this change? The results will affect case assessments for employee and employer-side attorneys alike.
- The Connecticut DOL will likely update state FMLA regulations in the next year or two. Since the regulations were not updated along with the federal updates, the guidance should prove extremely valuable in navigating the interactions – and intersections – of the two statutes.
- A large volume of recent FMLA complaints involve allegations of failure to reinstate/rehire, resulting in an increased backlog. In cases in which a violation is believed to have occurred, the DOL will likely require mandatory mediation using attorneys from the unemployment division and Board of Review trained in the state FMLA.If a case goes to hearing, attorneys from the Office of Program Policy serve as prosecutors; the Hearing Officer will be chosen by the Chairperson of the Board of Review for unemployment cases from the various referees and attorneys who work in the Appeals Division and Board of Review. If the DOL believes no violation has occurred, the employee will likely have the option to go to the hearing on his/her own or with a private attorney.
The Connecticut Commission on Human Rights and Opportunities (CHRO) has been experiencing substantive and procedural changes over the past years that effect practitioners. Notable among them:
- A shift away from the Merit Assessment Review process towards a renewed focus on mediation using investigators, regional managers, the legal division, trained mediators, private attorneys, and – perhaps somewhat controversially – law school students in mediation clinics/internships. Mediations can take place in person or via telephone, and investigators may schedule mediation with or without a fact-finding. The agency’s focus on mediation may also mean that cases are mediated more than once.In an attempt to separate mediation from the investigation, representatives from the CHRO have emphasized that information shared at mediation is confidential and cannot be used during the investigation. Importantly, practitioners should also expect default/dismissal provisions for failure to attend the mediation or fact-finding sessions without good cause to be used more aggressively. Dismissals may also occur for failure to offer make-whole relief.
- The option of Early Legal Intervention, a new option for the parties if the complaint is not settled at mediation is being used. At the request of the complainant, the respondent, or regional managers/investigators, the legal division will review the case and make a decision to go directly to public hearing, issue a release of jurisdiction, perform either a full or targeted investigation, or order a second round of mediation.
- A “legal review” process will serve as a quick evaluation to determine whether there were errors in dismissing a complaint at the Merit Assessment Review stage. Complaints may be reinstated for a host of reasons, including credibility questions; a failure to provide the information requested in Schedule A; the need for additional documentation; or the failure to provide relevant comparator data. If the complaint is reinstated, a letter will be sent to that effect with a follow-up notice to schedule mediation. If the reinstatement is denied, a release of jurisdiction will be issued.
- Investigations may now proceed via a fact-finding conference or a traditional full investigation involving document requests, witness interviews, interrogatories, etc. Fact-finding conferences now impose a burden on the parties to bring all relevant documents and witnesses to the conference; the investigator need not determine which witnesses should attend. After a fact-finding, the investigator may issue decision or request additional information as needed with a Schedule B.The CHRO is aiming to bring in attorneys to visit the regions more frequently, drawing on the Massachusetts MCAD structure. Volunteer attorneys are expected to play a large part in this initiative.
And what’s the latest on Connecticut Paid Sick Leave?
- With only a few cases filed under the new paid sick leave statute, the DOL procedures have not been fully developed. At the moment, the Wage & Workplace Standards division will likely conduct a preliminary investigation, with a DOL representative serving as a hearing officer.
And what else is new at the Connecticut Department of Labor?
- Broad retaliation claims will likely continue to come before the Connecticut DOL, including allegations under wage/hour law, unemployment insurance, and Conn-OSHA. Protected activities include filing a claim under a statute’s protections, testifying in an agency proceeding protected by statute, or exercising any right under the statute on behalf of him/herself or another employee. Notably, relief including reinstatement, backpay, and benefits may be awarded – along with reasonable attorneys fees and costs.
It’ll be an interesting year ahead, and surely filled with much fodder to discuss before next year’s Annual Meeting. Thanks again to Dan for his generous invitation to post on his blog.