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

Given the typically slower summer months, I'm going to highlight some basic Connecticut employment laws that most employers should be familiar with (but that some may not).  Picking up on yesterday's post, it'll be entitled "The Basics" and hopefully will run at least once every week.

Today's topic: Weekly Payment of Wages.

Connecticut law (Conn. Gen. Stat. 31-71b) provides that employers in Connecticut have to pay their employees on a weekly basis. Not every other week. Not twice a month.

For multi-state employers on may have a bi-weekly payroll schedule across the country, this can cause a few headaches (though most payroll companies have long since been able to adapt payroll schedules on a state-by-state basis). 

But of course, there's a big exception to this:  Employers can ask the Department of Labor for a waiver. Conn. Gen. Stat. 31-71i provides that the department  has the discretion to grant or deny such a waiver, so long as the employee is paid at least once a month.  

To request a bi-weekly payment schedule, in fact, the Conn. DOL has set up an online form that the employer can fill out; these requests are typically granted by the CTDOL.  

For employers who request a semi-monthly or even monthly pay schedules, those requests have to be sent directly to the Department of Labor. Those are typically scrutinized in much more detail and there ought to be a pretty good rationale behind that request. 

• Email This
• Print
• Comments
• Trackbacks

Although I tipped my hand yesterday through some posts (here and here) and an interview with the Connecticut Law Tribune, here are some takeaways for employers from the Ricci v. DeStefano case.

1. The Decision Applies to Private Employers.   Before Ricci was decided, the case could've gone two ways -- it could have been based on constitutional (equal protection) grounds, or on statutory (Title VII -- the law prohibiting race and gender discrimination) grounds. The Court decided to go with the latter.  Why does that make a difference? Because Title VII applies to both private and public employers; if it had been decided on equal protection grounds, it would likely have applied only to public (governmental) employers.
    
2. Testing Will Never Be The Same.  Whether public or private, employers who use tests to assist them in hiring and promotional decisions get some guidance now in the area. Unfortunately, the guidance that the Supreme Court provides isn't particularly illuminating. Parsing things out, the court suggests that if a test is designed to be race-neutral, the fact that the numbers come out differently than an employer expects is not, in and of itself, enough to throw out the results of the test. There needs to be something more, some "strong evidence in fact". What that is remains to be seen.
   
   But supposing that an employer does accept the results of the test, can it defend itself from a disparate impact claim? The court says yes.  The court suggests that as long as an employer designs a test that is that is “job related for the position in question and consistent with business necessity” that might get the employer some traction in defending a claim of disparate impact.  Even in that case, however, the Court opens to the door to employees too: The employee can still win a disparate impact claim if the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.
   
   As a result, employers who use testing in particular will need to be able to rule out other alternatives that it might have used to make its hiring and promotional decisions. (Note: Title VII does contain specific provisions regarding testing as well so employers should not forget to look to the statutory language as well.) 
    
3. Affirmative Action Plans and Diversity Plans Are OK For Now. Maybe.  Some larger companies have programs now that try to ensure that the makeup of their workforce properly represents the makeup of the population.  For example, the employer may track "high potential" employees (particularly minorities) within their corporation to ensure that they receive proper consideration for promotions and opportunities.  Are these programs ok?
   
   The court suggests that it will allow for some affirmative action plans and notes that employer's "voluntary compliance efforts" are essential to the success of Title VII:
   "[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. ... "
   
   For employers, it suggests that you can review your policies and practices that ensure that minorities have a fair chance to succeed, but reinforces the view that you still cannot make your decisions to hire and promote based on race.  But how much "affirmative efforts" an employer can use, remains an unanswered question from Ricci.
    
4. Tread Cautiously In Conducting a Disparate Impact Analysis for Layoffs and Terminations.  One area that disparate impact claims arise is in the context of layoffs and reductions in force. For example, an employee may claim that the black workers were twice as likely to be laid off as white workers.   As a result, many employers have started to conduct a disparate impact analysis before the termination to see if the raw statistics are of concern.  If they are, employers sometimes reconsider their decisions or re-engineer the layoff criteria to remove such a disparate impact. In other cases, employers simply review the particularly data to ensure that the decisions were fair.  
   
   Ricci leaves open the question of whether that practice is legal under Title VII.  The court does suggest that the city "was not entitled to disregard the tests based solely on the racial disparity in the results".  Does this mean that employer -- once it settles on a process for terminations -- cannot change that system after it runs the numbers? At one point is the employer "stuck" with the results? That will likely be the subject of litigation at some point. 
    
5. Don't Expect This Law to Remain Static.  One thing is certain -- there are likely to be some more changes to this law in the years to come. One way is through Congressional action (as Senator Patrick Leahy has already suggested). Another way is through additional Supreme Court action. Indeed, Justice Scalia has suggested that there are battles yet to come on this issue:
   
                   [The] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.

As a reminder, I'll be participating in a free webinar next week on this subject. I anticipate that it'll focus on the practical implications of the decisions and additional steps that employers can take now to avoid becoming the next test case before the Court. 

• Email This
• Print
• Comments (2)
• Trackbacks (1)

The news late Thursday afternoon came without warning from friends, a co-worker, and of course, Twitter.  There was another death of a popular star.  Suddenly. Tragically. 

Jeff Goldblum was dead.

Except he wasn't.

And yet, in the span of a day -- when the world lost Farrah Fawcett and Michael Jackson -- a rumor was spreading that actor Jeff Goldblum was the third star to pass away.  After all, bad things happen in threes.  But it turns out it was completely false.  

The news brought to mind situations where an employer is faced with the similar "dark side". Rumors. Innuendo. Gossip.  

Word spreads fast in a workplace. Even faster now with e-mail.  And for employees, rumors can be toxic, as an old New York Times article explains.  

So, what's an employer to do? 

Well, the specifics first depend on the facts. Is the rumor that an employee is on drugs? Having an affair? Has mental issues? Or, my favorite, doesn't take showers?  

Or is it more general about the company. Is it a rumor that the company is about to layoff employees? Or that the company is in financial difficulties? Or that the chief executive officer is having a liver transplant?

And what's exactly happening? Is e-mail usage about it going up?Is there lots of talk behind closed doors?

Each of these situations (and the many others that get spread) has different levels of response.  

For example, perceiving that an employee is disabled may bring claims under the ADA so an employer can discuss with a supervisor ways to comply with the law.

On the other hand, a reminder that harassing, humiliating or abusive comments about another employee via e-mail might be enough to stop rumors about the sudden disappearance of gray from an employee's head.  

How else can a company react?  Some practical suggestions include:

• Reinforce that the company computers are to be used for company-related business and that inappropriate e-mails such as sexual innuendo will not be tolerated.
• If it persists, consider whether you want to engage in  "electronic monitoring" of your computer system upon proper notice to your workforce
• Maintain consistent intra-corporate communications.  In the absence of facts, rumors can spread fast.
• Every office seems to have an outlaw or two. Talk with them and make sure they understand that spreading gossip will not be tolerated.
• Address rumors immediately.  The speed of the Jeff Goldblum rumor on Thursday reinforces that fact to me.  

And if you hear the rumor today that Jeff Goldblum is dead, you can put a stop to that too.  

• Email This
• Print
• Comments
• Trackbacks

In a case that should send shivers through background check companies, particularly in Connecticut, a federal district court judge recently ruled that a job applicant could proceed to trial with her claims that two background check companies violated in the Fair Credit Reporting Act when they reported that she had been convicted of a crime (when she allegedly had not). 

The case, Adams v. National Engineering Service Corp. (download here) has a detailed and, at times, compelling recitation of a background check that appears to have gone awry but also of a background check company that appears to have done quite a bit to try to alleviate the situation.

Nevertheless, the Court found that what the background check company did to try to comply with the applicable law may not have been enough. (The court has sent the matter on to a jury for a determination.) Other portions of the opinion address the issue of when the background check company needs to report the negative information to the job applicant directly.

Another portion of the case answers the sticky question of whether a background check company needs to provide notice of such negative information to the applicant directly.  Relying on 15 U.S.C. 1681a(k), the court answers the question "yes", finding that the company's reporting of such information to a potential employer is an "adverse action" that requires such notice. 

I've previously discussed background checks before. For companies that engage in background checks (and the employers that use them), compliance with FCRA isn't easy.  Add a hodgepodge of various state laws and it is a compliance issue waiting to happen.

Nevertheless, reviewing and auditing your current policies and procedures may be the best step that employers can take from this case.  As this case illustrates, no detail about the FCRA will be too small.

• Email This
• Print
• Comments
• Trackbacks

Two articles that I've come across over the last week have sparked my interest in the question of what impact cloud computing has on employment law.

Realizing that there are several of you who may think "cloud computing" is simply using your laptop on your next airline flight, let's start with a discussion of cloud computing. As explained in a very good piece published by Kroll OnTrack:

Cloud computing is best understood as a concept rather than a particular technology. Cloud computing involves entrusting electronic data for storage and/or processing to a third-party provider, and then remotely accessing the data "in the cloud" via the Internet. The data is in fact stored on a server—sometimes on a virtual server—operated by the cloud provider, often alongside data from other clients on the same storage services and processors. By allowing clients to pay based on use, cloud computing provides potentially sky-high cost savings to corporations, which can avoid the serious and recurring capital expenditures associated with setting up and maintaining their own servers, such as IT personnel costs. In other words, the users of cloud computing technology pay for what is used. Cloud computing further enables a corporation to quickly and easily ramp up or ramp down computing and storage capacity based on business needs.

So what's the downside? Kroll has highlighted a few issues that employers have glossed over so far including data location, forensic investigation recovery, and cloud provider integrity.

Doug Cornelius, who runs the Compliance Building blog, is attending a conference where he has highlighted other issues including: records management; data privacy; and compliance logs.  In other words, there's great upside and cost savings to using cloud computing, but has anyone thought about the real-world implications? 

From an employment law perspective, I have not seen much, if anything on the subject.   For example, Connecticut's wage and hour laws require employers to keep track of various records of the employee including hours worked, etc. The catch? Such records need to be kept at the employer's place of business for three years.  Does storing the information in "the cloud" satisfy that? 

And suppose an employee is fired for improper use of the Internet and you want to "image" (or copy) the computer that the employee has worked on to preserve the evidence. How do you do that when the computer you want to image may be in a server thousands of miles away? 

Or consider the lawsuit filed by an employee and the call that needs to go out to your IT department to put a "litigation hold" on your data. How do you do that when it's based in the "cloud"?

These are not insurmountable issues for employers. Every new technology brings with it new questions. But employers who are jumping into cloud computing should look past the sales pitches of the companies and ensure that what they are doing will allow them to comply with the law.

• Email This
• Print
• Comments (1)
• Trackbacks

While I'm tempted to write on my airplane flight adventures on the way home from the ABA Presidential Summit on Diversity (they involved a "ground hold" and a Congressional member who had the plane return to the gate), there was quite a lot of ground covered in Day 2 of the Presidential Summit that should be of interest to employers and their attorneys. (In case you missed it, the Day 1 recap can be found here.) 

The first part of Day 2 focused on recapping the various breakout sessions held the day before. Once again, I used Twitter to describe the morning with various details, which I'll reprint here:

• Have to abolish diversity balkanization; how? by emphasizing cross identity mentoring
• Real desire [of companies and attorneys] to gather practices that work and publicize them; but also figure out why diverse people leave workplace
• Need to move beyond [racial] identity discussion, on to diversity of perspectives; battles still not over but need to develop new approaches
• Coordination seems to be theme [for diversity]: between associations, schools, clients, firms; everyone must help schools give students right skills to succeed
• How to be accountable for diversity? Suggestions ranged from having clients dictate it (financially), or having 'best practices' that employers can follow

Later on in the morning, Michelle Coleman Mayes, General Counsel for Allstate, provided attendees with her secret to ensuring a diverse workforce, which I also tweeted:

• Being a deliberate leader (in any walk of life) is critical to success not only of yourself, but also because of effect on others
• Need to be "diverse" - not in traditional sense, but in being comprehensive in learning about others; be willing to fail too
• Last part of success in this area is 'be vigilant'; ideas are great, but followup (and more) is even more important

All of the materials from the conference are now available for download to everyone.  And the best part, the materials are free.  So, you too, can get the benefit of two-day meeting.

At the ABA Annual Meeting in Chicago, the group's core will meet again to go over the results from the summit and continue to provide concrete solutions that the ABA and others can focus on in the short- and long-term.

 

• Email This
• Print
• Comments
• Trackbacks

Today was Day 1 of the ABA Presidential Summit on Diversity being held just outside Washington, DC. 

Recapping such a conference in a blog post is impossible; I won't even begin to try.  But I thought I would pass along some thoughts from the conference's Twitter feed.

So, in response to the question on "Why Have Diversity In Your Law Firm and Company?", here were some thoughts from the speakers:

• For one, in order to understand and engaged with diverse clients
• For another reason, some clients, like Wal-Mart, are also demanding it
• Because research proves that a broader team with perspective comes up with better answers
• Because minorities will become the majority by 2050; there is a business case and economic imperative to do so
• For litigators, if you have broad perspective you can better convince a jury and understand their perspective

Time and again, speakers weren't hesitant to say that there is a legitimate business rationale for having diversity being a top priority.  

What company was singled out by some for their successes and their advancement of a more inclusive workforce? In other words, what company has recognized the business case for diversity? Wal-Mart.  

The company continues to be held out as a model for their push to their suppliers and law firms to make diversity not only a priority, but a way of doing business. (You can read about their significant efforts at their website here.) And yet there are some who continue to claim that Wal-Mart is unfriendly to workers.  Go figure.  

But beyond the "Why", we also discussed the "how". In an upcoming post, I'll recap some of the suggestions.  

Day 2 starts early on Saturday. You can continue to follow along at search.twitter.com and enter the term "#abadiv".  Or, if you'd like, you can view all the conference materials online at the conference's home page.  

 

• Email This
• Print
• Comments (1)
• Trackbacks

I'll be attending the ABA Presidential Summit on Diversity the next two days in Washington, DC and using Twitter to report on the highlights.  

It's an important topic for employers and lawfirms: What are the next steps we can take to move beyond the current discussion on diversity?  It's a working summit, so we'll be rolling up the sleeves to address these issues.

You can follow along a variety of ways: Go to search.twitter.com and search for "abadiv"; you'll get all the highlights. Or, you can go to my Twitter feed at twitter.com/danielschwartz (or @danielschwartz if you're already on Twitter).  

I'll provide some recaps each day on information relevant to employers so check back later.  

• Email This
• Print
• Comments
• Trackbacks

In case you missed it, a California court recently upheld a $4.1 billion aribration award to a former executive who brought a wrongful termination suit against his former employer. (The National Law Journal has a good analysis today of what happened here, as well.)   

Although this blog covers issues applilcable to Connecticut employers, the lessons learned from this California case -- which seems to be the largest single plaintiff employment law case award ever -- are applicable to employers everywhere. 

Numerous other blogs have done a great job recapping the case so I'm not going to spend time here doing so. For a employee perspective, check out the Employee Rights Post recap.  For an employer perspective, check out the Manpower Employment Blawg.  (And for a humorous perspective, check out World of Work's "First Annual Dr. Evil Award".) 

But the lessons learned from this case are simple: If you're an employer and you make promises, you'll be bound by them. Even if they lead to really really big numbers.  Proper drafting of employment contracts and follow through on the issues that such contracts raise can help an employer avoid similar issues in the future. 

For more links about the case, check out Overlawyered.

• Email This
• Print
• Comments
• Trackbacks

 A few months ago, I noted that Connecticut's Department of Labor has had a long-standing (but, until recently, little-used) work-share program under the title of the Shared Work program.  

The Connecticut DOL describes it as:

a voluntary program providing an alternative to layoffs for employers faced with a temporary decline in business. Rather than laying off a percentage of the work force to cut costs, an employer may reduce the hours and wages of all or a particular group of employees. The employees whose hours and wages are reduced can receive partial unemployment insurance benefits to supplement their lost wages. These partial benefits are made possible through special eligibility regulations governing the Shared Work Unemployment Compensation Program.

On Tuesday, The New York Times profiles the Connecticut program and others saying that "many are turning to a novel but unheralded program that cuts their costs while sparing their workers’ jobs."

Putting aside for the moment the specious claim of "many", the article does say that as many as 5000 Connecticut employees are in the program, up from just 250 a year ago.  

So, does it work?  Well, the answer is not that clear cut yet, at least according to the article. But some executives believe in the benefits:

Several executives that use work-sharing explained companies’ choices. Needing to cut payroll by 10 percent for six months, recession-plagued managers could lay off 10 percent of their workers, perhaps incurring anger and heavy severance payments. Or they could use work-sharing, avoiding severance payments and the expense of rehiring and retraining later.

“Just the ability to hang on to people in tough times and not force them out the door is good for morale,” said David Edgar, vice president for human resources at Reflexite, a manufacturer based in Avon, Conn., that makes reflective material for highway signs, motorcycle helmets and roadwork vests.

The Connecticut DOL does indicate that it believes employers can recognize the following advantages to using the program:

• Retain all workers
• Maintain the continuity in your skilled work force.
• Be prepared for business upswings because your work force remains in place.
• Avoid the time and expense of training new employees when business turns around.
• Foster better morale in your employees because you avoid the insecurity, unrest, and bumping characteristic of most layoffs.

For employers who are continuing to struggle through this recession, having more options is never a bad thing.

 

• Email This
• Print
• Comments
• Trackbacks

A few weeks back, I reported on the progress of a bill that would require retail establishments to open up their private employee restrooms for customers with some medical conditions. 

House Bill 6328 has now become Public Act 09-129 after the legislature approved the measure late last month.  Yesterday it was transmitted to the Secretary of State to become law effective October 1, 2009.

You can download the full text of the new law here.

What Does the New Law Require?

Any retail establishment (any business that is open to the general public to sell goods or services) that has employee-only restrooms must permit a customer to use that restroom during normal business hours if the restroom is maintained in a reasonably safe manner and four conditions are met:

1. Customer must have written evidence, by a licensed health care provider, that he/she suffers from an eligible medical condition (colitis, Crohn’s; IBS; IBD; celiac disease or “any other condition requiring use of ostomy device”)
    
2. A public restroom is not immediately accessible to the customer;
    
3. At the time that the request for access to the employee restroom is made, three or more employees of the retail establishment are working; and
    
4. The employee restroom is located in an area of the retail establishment that does not present an obvious risk to the health or safety of the customer or an obvious security risk to the retail establishment.

As I said before, this bill is well-intentioned. (Indeed for more information on the medical conditions, you can view this website.) But how employers are going to deal with the practical ramifications of it is another story.  

For example, can a bank refuse access to its restroom because of the "obvious security risk" of allowing a customer access to private parts of the bank?  Are employees supposed to make these decisions about who has an eligible medical condition and what documentation they will accept?  And how close does a public restroom need to be in order for it to be accessible? Next door? Down the street?

Nevertheless, retail establishments should review their restroom policies and procedures and notify employees of any changes to the restroom access, particularly after the law's effective date of October 1, 2009.  If restrictions are still necessary, be sure to document the reasons for such a decision.  Any violations of the law will be treated as an infraction -- most likely a small fine.

• Email This
• Print
• Comments (1)
• Trackbacks

Suppose you've drafted a fairly lengthy agreement entitled "Employment, Non-Solicitation, and Confidentiality Agreement" for an employee to sign. And suppose that among the provisions is a paragraph entitled "Agreement Not to Solicit". And now suppose that the language details various items that the employee is prohibited from doing.

What's the issue, you may ask? Well, suppose as well that  the paragraph is missing "operative language". In other words, it's missing a few key words about the employee's responsibility under the agreement such as "I shall not" or "I will not" do those prohibited tasks. 

Is the agreement (and the specific paragraph prohibiting solicitation) still enforceable?

According to an Appellate Court decision released this morning (and officially released June 16, 2009), the answer is a most definite "yes".

In Hilb Rogal & Hobbs Co. v. Randall (download here),  the court held that

despite the missing language, it is clear from the title of the employment agreement, the title of paragraph six and the language found under paragraph six that the parties intended that the defendant would be prohibited from engaging in solicitation for two years. ...  The fact that the employment agreement imposes remedies for violations of paragraph six further evidences that paragraph six was intended to prohibit certain conduct.

From a legal perspective, the case is important because the Appellate Court reached this conclusion without having the "reform" (or rewrite) the contract:

Contrary to the trial court, we do not believe that the contract at hand needed to be reformed for the court to be empowered to supply an obvious missing term consistent with the clear intent expressed in the balance of the contract language. ... Because the intent of the nonsolicitation agreement is plain from an objective reading of the contract, a request for reformation is not necessary to enforce the provision.

Why is this case important for employers?

There are several takeaways from this decision. First, employers should never overlook the importance of proper drafting.  Just a few missing words here has caused lots of grief for this employer.  Even agreements that seem perfunctory (and perhaps borrowed from other agreements) should be scrutinized to ensure that no language has been lost in the drafting and revisions.

Second, the Court seems to approve of the contract even though the only consideration for the agreement was a promise of continued employment by the employer. In addition, the Court tacitly approves of the non-solicitation clause's two-year prohibition without any consideration of whether the scope of that provision is overly broad.  Employers should keep this in mind as they draft future agreements.

Overall, the decision is a sensible one and elevates substance over form. That doesn't mean that employers should draft their agreements in haste; but it does mean that if there is a clerical errors or inadvertant omissions, employers can still try to enforce that agreement.

• Email This
• Print
• Comments
• Trackbacks

With all the developments the last week or two with the Connecticut legislative session, it's been difficult to keep up with everything ELSE happening in employment law. 

So, time for a "Quick Hits" post, where I recap some of the stories you might have missed relating to the world of labor and employment law that might be of interest to employers in Connecticut and beyond.

• Michael Moore, of the Pennsylvania Labor & Employment Blog, has a long-awaited followup to his guest post in this blog last year on Body Mass Index being the next type of claim out there under the ADA.  This time, he looks at the effect of the new ADA amendments on such claims.
   
• In what should be a surprise to no one, the U.S. Government has delayed implementation of E-Verify yet again for federal contractors. (My most recent post on E-Verify is here.) The newest date is September 8, 2009.  Don't hold your breath on this one.
   
• The World of Work was among numerous blogs that reported this week on a new case out of California overturning a $105M verdict in favor of baristas who claimed that they shouldn't have had to share the "tip jar" with shift supervisors. (H/T Overlawyered)
   
• As you may know, the NLRB - a five member board - has only had two appointees lately. A recent appellate court called into question the legitimacy of the decisions by the board. The inevitable appeals have now started, reports the Workplace Prof blog. I have a hard time believing that this decision is going to be upheld but we'll see. For employers, however, unless you have a case up at the Board level, this isn't something that will impact them, at least in the short term. 
   
• The intersection between Twitter and employment law -- the subject of an earlier post by me -- gets the scholarly treatment with an interesting seminar article. Some of it states the obvious such as "Users must be careful what they tweet. Twitter is subject to vast potential liability, as is any electronic communication tool." But it's refreshing to see someone looking at the subject from a treetop level.  

 

• Email This
• Print
• Comments
• Trackbacks

With the legislative session ending on Wednesday at midnight, there's a lot for employers to keep an eye out. Here's a quick summary of what's still alive and what's not, at the Connecticut General Assembly.

• Senate Bill 365 (S.B. 365) - A bill that would prohibit so-called captive audience meetings by employers (typically regarding a union campaign) passed the Senate on May 20th but is still awaiting a House vote. 
• Senate Bill 710 (S.B. 710) - A bill that instituted changes to the state FMLA laws was signed by the Governor on May 27th. It is effective immediately. 
• House Bill 5521 (H.B. 5521) - A bill that would prohibit employers from using credit reports as a basis for employment decisions is awaiting a possible senate vote after passage in the House on May 1th. 
• House Bill 6187 (H.B. 6187) - The so-called Paid Sick Leave bill passed on the House on May 28th and is still awaiting a vote in the Senate.  Time is running out for this bill.  There are 18 amendments that have been proposed for the Senate version of the bill and the CBIA released a statement this morning that said a vote could come at any time. 
• House Bill 6545 (H.B. 6545) - This bill is a late entry into the bills I've been watching regarding labor & employment law and just passed the House last night.  This bill provides collective bargaining rights to two groups of state employees who cannot collectively bargain under current law: (1) managers and (2) Legislative Branch employees of the State Capitol Police.

In addition to the above bills, I've previously covered House Bill 6185, which made changes to the state's personnel files laws and also changes to the gender discrimination law as well. 

Stay tuned....

• Email This
• Print
• Comments
• Trackbacks

This morning's pick of Second Circuit appellate judge Sonia Sotomayor as the next U.S. Supreme Court justice is a truly momentous occasion. If confirmed, she will be the Court's first Hispanic Supreme Court justice. 

There's plenty of great analysis already out there this morning about the pick, including coverage by the SCOTUSBlog.  And Michael Fox is first out the gate with a recap of all the relevant labor and employment cases by Judge Sotomayor. 

Connecticut readers will no doubt recall that Judge Sotomayor was the author of a notable decision in the Ricci v. DeStefano case that is now pending at the U.S. Supreme Court. In that case, a group of firefighters contends that New Haven has discriminated against them because of their race.

But one case from 1995 stands out in my view, and not merely for my love of baseball; it was Judge Sotomayor who single-handedly ended the baseball strike.  (H/T Amanda Rykoff) 

On March 30, 1995, she issued the preliminary injunction against Major League Baseball, preventing MLB from unilaterally implementing a new Collective Bargaining Agreement and using replacement players, thus ending the 1994 baseball strike.  The New York Times did a interesting profile of her back then.

Her pragmatic approach in that case (and her knowledge of baseball) shouldn't be overlooked as the confirmation hearings take place later this summer. Indeed, this is exactly the type of case that people can relate to and I expect we'll hear a lot more about it in the weeks to come.

• Email This
• Print
• Comments
• Trackbacks

A quick update on the Mortgage Lenders Network matter I've covered a few times before (here and here.) 

Earlier this month, a Delaware bankruptcy court approved of a $2.7 million settlement of a class-action lawsuit filed on behalf of more than 1600 employees, many of whom worked in Connecticut.

The settlement, first reported by the Hartford Courant, essentially covers wages and salaries that should have been paid during the 60-day WARN notice period.  The average payout per employee is $1,636. 

The Courant adds a few more details:

Monday's settlement is separate from the civil lawsuit seeking unpaid wages and commissions being pursued by the attorney general and the state Department of Labor. That lawsuit seeks $2.6 million for about 100 employees.

Charles A. Ercole, a lawyer for the Philadelphia law firm that negotiated Monday's settlement, said Monday that MLN was left with few assets when it filed for bankruptcy. But the company has subsequently been able to recover some money from lenders who provided lines of credit to fund MLN's mortgage business, Ercole said.

"It is a very good settlement under the circumstances," Ercole said.

Final court approval is expected after a hearing Aug. 5. Checks could be sent out in early fall, Ercole said.

• Email This
• Print
• Comments
• Trackbacks

When someone like Oprah Winfrey signs up for a service like Twitter, you know the service is starting to get mainstream. 

Still thinking that Twitter is for techies or your kids? Think again.  Lawyers, HR Professionals, and media outlets are all on there. (There's a great list of 20 Twitterers that lawyers should follow and yet another list here of 736 lawyers.)  It’s basically micro-blogging; writers have only 140 characters or less to get across a message (which as you might be able to tell from this blog is not exceedingly tough for lawyers). It's quick and fun.

You just need to know where to look.  (For example, you can find me @danielschwartz, as I'll explain). So, assuming that you are interested in employment law and HR-related topics by reading the blog, I'll present for you my list of 10 people or companies to follow on Twitter relating to employment law.

("Following" is a concept similar to subscribing to a newspaper; you get access to that person's "tweets" or messages.)

First, a caveat. Lists are notoriously random and I'm sure that I've left a few off -- some unintentionally (as I'm sure I'll find out) and some intentionally (like many HR folks who have compiled their own top ten lists, such as @jessica_lee, @kris_dunn, @sharlyn_lauby, @cincyrecruiter and @hrbartender to name just a few). 

So, feel free to add your Twitter name to the comments section below and do not be offended if your name doesn't appear; it's intended as a starting point for conversations not an end.  Note that names on Twitter begin with the '@' symbol. Don't ask me why; that's just the way it is.  But if you're on the web, you can find any of them at twitter.com/[username, without the @].

So, in no particular order, here are ten feeds to get you started.

1. @TheHRLawyer - Chris McKinney, who also authors the HR Lawyer's Blog;
2. @rossrunkel - Ross was one of the first employment law bloggers and his twitter feeds consistently provide useful and concise information related to employment law;
3. @hirecentrix - Yes, a little more HR-centric, but Karen Mattonen provides information on HR news with several legal-related items;
4. @manpowerblog - Mark Toth is a newbie to Twitter, but his blog is one of the most entertaining and education sites out there;
5. @Eric_B_Meyer - Eric has had his pulse on the Employee Free Choice Act, but also sets his sights at being a premium employment law writer for Twitter;
6.  @davidmellon - Anyone who can be a dad to quadruplets and do ANYTHING else is worth a follow, right?
7. @Labor_Law - JD Supra provides timely information on a number of labor & employment law topics;
8. @djillpugh - Despite (or rather, in spite of?) representing employees, Jill provides useful information on employment law trends; in all seriousness, she has some really good material;
9. @dougcornelius - Doug doesn't write strictly on employment law issues -- his focus is on compliance -- but the issues he discusses directly impact employee/employer relationships and dynamics;
10. @jonhyman - Jon does the Ohio Employer's Law Blog; while his tweets tend to mirror his blog, they provide a great resource, particularly his Friday recap posts.

I've discussed Twitter in some prior posts as well including this one about Twitter in the Workplace.  Again, you can find me at twitter.com/danielschwartz.

Can you suggest any other employment law twitterers to follow? Add them to the list by commenting below and, if things warrant, I'll do a followup post.

• Email This
• Print
• Comments (5)
• Trackbacks

Employers right now have a lot to worry about. New ADA rules. New FMLA regulations. New COBRA rules.

In an article entitled "The unabalanced high-tech lift: are employers liable?", a few academics suggest that technology may be something else that employers need to worry about. 

The article summary states:

• Technology has created new capabilities, as well as new demands, for many of today's employees. For those who work in technology-enhanced environments, the pace and round-the-clock activity creates a source of stimulation that may become addictive.
• While the potential for this type of behavioral addiction is recognized by both researchers and the popular press, few companies are seriously considering the associated risks, one of which could be legal action against the organization.
• By combining research on addiction, technology use, workplace demands, and legal precedent, this article considers issues likely to require decision by the courts, as well as background on the evolution of related legal questions for insight to possible outcomes.

Unfortunately, the article isn't readily available online (at least not without a fee). 

But with all that employers are worrying about, focusing on possible technology addiction or the like isn't one of the concerns that should be anywhere near an employer's Top 10 list. 

(H/T - Workplace Prof Blog)

• Email This
• Print
• Comments
• Trackbacks

In a unanimous decision released publicly today, the Connecticut Supreme Court narrowed the scope of the qualified privilege that employers have been able to invoke in defamation claims involving intracorporate communications.  In doing so, the court held that the defamed party (typically an employee) does not need to prove "actual malice" to defeat a qualified privilege claim.

As a result of this this ruling, employees may have an easier time establishing a defamation claim and employers will need to make sure that any workplace statements they make can be backed up.

The case, Gambardella v. Apple Health Care (download here) won't be "officially released" until May 19, 2009.  But the holding may give employers another reason to worry about what they say in the workplace about others.

It was a worry that the employer here highlighted as the court acknowledged:

The crux of the defendants’ claim is that the purpose underlying the privilege, namely, to
encourage the free flow of information necessary for efficient, intelligent employment decisions, is hindered only if the speaker acts with actual malice because only false information, not mere bad faith, impedes the free flow of information necessary for employment decisions.  Consequently, the defendants contend, actual malice should be the standard to defeat the qualified privilege in the context of intracorporate communications with respect to employment decisions. We are not persuaded.

Instead, the court distinguished prior cases (including the landmark Torosyan v. Boehringer Ingelheim case) and found that a broader standard should apply even though the employer's reading of various decisions. In fact, the court goes out of its way to say that "although we acknowledge that these footnotes [in prior cases] may be interpreted consistently with the defendants’ contentions, we reject this interpretation." 

Therefore, it is clear that the settled law in Connecticut is that a showing of either actual malice or malice in fact will defeat a defense of qualified privilege in the context of employment decisions. The defendants have provided no compelling  reason to depart from our well established jurisprudence and require a showing of actual malice exclusively simply because the qualified privilege arises in the context of intracorporate communications in connection with employment decisions. Accordingly, we reject the defendants’ invitation to do so.

Observant practitioners will remember the title of this case from a prior appellate court decision in 2005 which remanded the case to the trial court on the defamation issue.  Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842 (2005).

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks (1)

Going to a trial with an employment discrimination case is expensive. Which is one reason why many employers will ask the court to dismiss a claim before trial using a process known as "summary judgment". 

But a recent federal court case illustrates the difficulty that employers still have in getting courts to grant summary judgment and how cases that seem small can end up becoming big.  

The case, Rolon v. Pep Boys -- Manny, Moe & Jack, 601 F. Supp. 2d. 464 (D.Conn. 2009) (download here) , arose out of claims by a customer service representative that she was discriminated and retaliated against because of her gender and pregnancy.    She claimed that two months after she returned to work because of her pregnancy in 2006, she was questioned about her use in 2003 of an employee discount for relatives and friends who were not eligible for it.  The company said it's investigation of this employee arose out of a separate investigation in the fall of 2005.

The company ultimately terminated the plaintiff's employment for alleged improper use of the employee discount. The plaintiff alleged that this was a coverup for discrimination and that comments by her supervisor such as "Go home and be with your baby. We don't have work for you", supported her discrimination claims.  She also claimed she had management approval for her use because no employee discount could be used without management approval.

The federal court held that there was sufficient evidence and a sufficient dispute about certain facts that entitled the plaintiff to a trial.  Of course, the court did not address the ultimate merits of the claim and whether the plaintiff was right or wrong. The only issue for the court to look at was whether there was enough evidence that could support a claim of discrimination. Here, the court said there was.

For employers, this case is a classic example of how termination decisions will be scrutinized by the court.  Although the court doesn't address the issue head on, it goes out of its way to point out that the events that the employee was being fired over concerned just $200 and occurred three years prior to the actual termination.  In its decision, the court fails to note of any similarly situated employees who might have been terminated or other examples of how the policy had been consistently applied.

The employment at will doctrine in Connecticut allows employers to fire employees for any reason or no reason. While that technically remains true, that doesn't mean that courts won't review reasons that may seem a little fishy to it.  Here, it seems that the court was troubled by the reason for the termination decision and said that there was enough evidence (if credited by a jury) that suggested that the reason was a pretext for discrimination.

Ultimately, the employer here may very well prevail at trial.  But to do so, it'll have to make an expensive point over a $200 employee discount misuse. 

• Email This
• Print
• Comments (1)
• Trackbacks

Wouldn't it be great if there were a document that outlined issues that both employers and employees could think about when trying to settle employment law disputes?

Turns out there is. You just need to know where to look.

At the risk of giving up one of my "secret resources", one of my favorites is a document prepared a few years ago by Attorney Robert B. Fitzpatrick, an attorney in the Washington, D.C. area.  His checklist on the "Settlement of Employment Law Disputes" is an easy to read summary of the key provisions that parties can consider as they settlement claims.

It covers almost everything that you could think of: from the ordinary (Withdrawal of EEOC Charges or OWBPA compliance) to the more obscure (Partnership Interests). 

The checklist that he has posted online is several years old so it should not be used exclusively.  There have been some recent developments in recent years that it doesn't include (such as the Section 409A rules on executive compensation agreements) but it is an excellent place to start.

While separation and settlement agreements have become common over the last decade, there is still room for flexibility and creativity to meet your company's specific needs. Take a look at the checklist and perhaps there will be something new or interesting that you can incorporate into your form agreements.

 

• Email This
• Print
• Comments
• Trackbacks

In the next month or so, the U.S. Supreme Court is expected to issue its decision (or multiple decisions) in the Ricci v. DeStefano matter (for background, see my prior posts here).

In the meantime, other bloggers and writers have been adding their views to fill out the spectrum. 

On the Talking Points Memo site, one thoughtful post suggests that the lower courts got it right in finding that there was no discrimination.

On the Connecticut Employee Rights blog, Rick Hayber hopes the Supreme Court "gets it right":

I do not believe that New Haven refused to promote Mr. Ricci because he is white. I believe that it simply concluded that the test must have been biased. If true, this is simply not discrimination. Lets hope the Supreme Court gets it right!

The Connecticut Law Tribune also has this recap of the case so far.

Lastly, the SCOTUSblog has this thorough recap of oral argument.

Stay tuned. This one promises to be interesting.

 

• Email This
• Print
• Comments
• Trackbacks

As employment law and HR professionals, our mission always seem to require us exploring strange new worlds (perhaps a study of the Ledbetter Fair Pay Act?).  

We also seek out new life and new civilizations (the new ADA law does seems to be written in foreign language at times now that you mention it). 

And of course we boldly go (or go boldly) where no one has gone before. (A little pandemic flu hype, perhaps?)

Of course, this "mission" may just be a result of having Star Trek on my mind with the movie opening up tonight.

But, in honor of the new movie, let us take a step back from some of the seriousness and pessimism that's been permeating the workplace during the recession and review four lessons that employers can learn from the Star Trek universe:

1. Diversity Works.  Think about the first incarnation of the show. There were people on the crew of various races and cultural backgrounds. (And of course, a Vulcan).  Later version featured African-American and female captains.  All of which proves a point -- the diversity of backgrounds can be an advantage in the workplace.  Most companies agree it's important; but acting upon it is another step. 
    
2. Every Workplace Needs a Little Joy. Never has this been truer than today. The "survivors" at companies whose ranks have been thinned may deal with empty cubicles and quiet phone lines. But even in the toughest of times, workers on Star Trek could have lunch in a "Holodeck" just  to escape.  Think about the little or no-cost things that an office can do to keep the workplace a enjoyable place to work.  These suggestions on how to erase "survivor's guilt" can help.
    
3. Even a Spaceship Has Rules; Follow Them. One of Star Trek's repeated themes was to follow the "Prime Directive" -- a rule that suggested that the spaceship not interfere in the affairs of another world or alien race.  While that rule was certainly broken from time to time, it controlled much of the leadership team's decisions. Similarly, your company likely has policies and procedures. When was the last time anyone actually READ all of them?  Are your FMLA policies up-to-date? Do you have a social media policy? And are you following your own rules?
    
4. Good Leaders and Talent Really Can Make All the Difference: As this article suggests, each leader brings a different style. Indeed, it has been suggested that the key to success in human resources is as simple as hiring the most talented people around and letting them be superstars.  Star Trek has shown that high achievers are critical to the success of a ship. In these tough economic times, that lesson has never been more true.  Even as cuts are needed, finding ways to measure talent within your organization and figuring out ways to keep that talent, is crucial to the long-term success of your business.  Avoiding the asteroid fields (or lawsuits) along the way isn't a bad idea either.

Optimism reigns supreme in the Star Trek universe. After a winter of layoffs and flu scares, it's a feeling well worth tapping into. 

Or, as an old "proverb" says: Live long and prosper.

(Also a big tip of my hat to this post discussing other life lessons from Star Trek.)

• Email This
• Print
• Comments
• Trackbacks (1)

While the current outbreak of H1N1 Influenza is turning out (for now) to be less lethal than previously thought, the EEOC released guidance this week (available here) to help employers prepare for a possible pandemic and still comply with the ADA.

Some of the guidance is lifted from previous statements of the EEOC but applied to this situation. For example, the EEOC again reminds employers of the limits of making medical-related inquiries to employees:

Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability. This requirement affects when and how employers may request health information from applicants and employees regarding H1N1 flu virus.

The EEOC also goes out of its way to emphasize that there are ways an employer can legally survey its workforce before a pandemic strikes to allow it to be prepared.  In fact, it provides a model survey for the employer to use.  

Lastly, the EEOC addresses infection control measures and states what should be obvious: "Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA."

It's a helpful reminder to employers that even in times of crisis, we remain a nation under the rule of law.  Let's hope that this current outbreak wanes and that it does not reoccur in the fall in a more virulent form.

 

• Email This
• Print
• Comments
• Trackbacks (1)

Late last week, the Connecticut Senate approved a measure that would permit an employee to take up to 26 weeks of unpaid leave from work to care for family members who may have been injured in the line of military duty.  The bill (Senate Bill 710) is now on the House's calendar for a vote within the next few weeks; it is likely to be approved.

The bill mirrors many of the provisions that were implemented last year in revisions to the federal FMLA. 

The Office of Legislative Research has done a good job summarizing the measure's main provisions here. 

Notably, the measure has different provisions for private sector workers and state employees, so as the bill progresses, this distinction ought to be reviewed. 

The core provision of the bill, however, is the same for each -- a one-time leave for each armed forces member per serious injury or illness incurred in the line of duty.  Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave.  If there are any nuances between federal and state law, the more generous of the two benefits will apply.

In the meantime, employers should make sure their FMLA policies reflect the current state of the law and, if they do have any requests for leaves to care for injured servicemembers, employers should check back on the status of this bill -- if they are not already covered under federal law.

• Email This
• Print
• Comments
• Trackbacks (1)

Since my first post on H1N1 Influenza (a.k.a. Swine Flu, 2009 Flu, Mexican Flu -- or whatever else the CDC or WHO is now calling it) on Sunday, nearly every media outlet has eitherhyped or overhyped the crisis. I've waited until week's end to try to see if we could get some proper perspective on things. 

As of this afternoon,there are still no confirmed cases of H1N1 flu in Connecticut., but I'm not sure if we have yet gotten the perspective in focus yet, if the school closings this week are any guide.  

Some fellow bloggers have tried to provide some context in an admirable fashion. The Ohio Employer's Law Blog summarized each of those blogs here, as follows:

[The big] story of the week is the swine flu. I’ve already covered this issue, as have some of my fellow bloggers: Michael Moore at the Pennsylvania Labor & Employment Blog, Catherine Barbieri at the FMLA Blog, Michael Haberman’s HR Observations, HR World, The Word on Employment Law with John Phillips, and Dan Schwartz at the Connecticut Employment Law Blog (who I believe was first in bringing this issue to employers’ attention). CCH also has an excellent resource page covering this issue.

But where does that leave most employers. If the traffic to this blog is any indication -- still scratching their heads. So, let me try to put some of the issues in a slightly different framework for employers to think about. 

1.   Preparation & Communication

While large corporations have likely had time over the last years to develop a crisis-management guideline to deal with natural disasters or pandemics, smaller companies haven't had that luxury. The CDC checklists should be required reading for most employers by now with notices available on their website as well.  Employers should use their bully pulpit to convey accurate information to their workforce along with preventative measures that employees can implement on their own.  For employee questions, this FAQ is a great place to start. 

But beyond that, employers should think about (though not implement as of yet) what it's plans may be if this outbreak becomes more widespread and more serious.  Will you allow for telecommuting? Is your infrastructure set up so that you have the capability TO telecommute? Will you implement special pandemic flu leave policies to prevent employees from infecting others in the workplace?

You don't need answers to all these questions yet but you should start to anticipate what those questions may be. 

2.   Addressing Day-To-Day Issues -- The sick employee or the closed school

If and when the H1N1 Flu becomes more prevalent in the community, specific employers may be impacted directly.  For school systems, for example, the CDC has released guidance this morning on how schools should address an outbreak.  The CDC has already released guidance as to how a community should react to such an outbreak.

Employers may have more practical considerations though that they will need to deal with. For example, if an employee's child becomes ill, can that employee take FMLA leave? (Probably, though review your policies.) If the employee is sick, can you ask that employee to stay home or work from home during the length of the illness (Maybe but again, check your policies.)

But a tougher question comes up when a school is closed. In that situation, parents may need to stay home or make arrangements to care for a healthy child. What then? John Phillips has some excellent suggestions here, which can be summed up in one phrase: Be sensible and flexible:

I’d be reluctant to fire an employee who stays home with a child whose school has closed because of swine flu. If you’re concerned about setting a bad precedent, I wouldn’t be too concerned. After all, a national health emergency has been declared. I’d be more concerned about bad publicity or a creative legal theory under which the employee might sue you.

The Job Accommodation Network has also just released this guidance on considering the needs of employees during a flu outbreak. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

From time to time, I've been fortunate to have several guest bloggers contribute their thoughts on Connecticut employment law. Today, I'm happy to continues that trend with a post from my Pullman & Comley colleague Michael "Mick" Lavelle.  Mick has broad trial experience, both jury and non-jury, before state and federal civil courts and before administrative agencies that regulate employment. He successfully litigated the case of Bridgeport Hospital v. Commission on Human Rights and Opportunities, et al., 232 Conn. 91 (1995), in which the Connecticut Supreme Court curtailed the commission’s ability to award damages against employers. He serves as a special master for the U.S. District Court.

Today, Mick addresses the subject of dress codes and highlights two cases outside Connecticut that highlight the approach of the EEOC in such cases.  It's definitely worth keeping an eye on to see whether the EEOC and private attorneys continue pressing the issue.

Dress code issues have certainly evolved since the days when the controversy was whether women could be required to wear dresses instead of slacks or pant suits. 

Today’s issues involving body piercing and tattoos are for the most part settled in a common-sense way. Employers may impose a professional appearance standard on employees who deal with the public, so that visible body piercings must be removed and visible tattoos must be covered up while at work.

But recently the Equal Employment Opportunity Commission has supported employees who claim that such body decoration has a religious significance. 

In EEOC v. Papin Enterprises, 2009 WL 961108 (M.D. Fla), the employee, a clerk in a sandwich shop, claimed that wearing a nose ring was a practice of her religion. 

Although the concept that an employer has the right to control its public image is usually sufficient to sustain the dress code requirement, the court noted that the shop manager simply told the employee to remove the nose ring when they were visited by a senior official from the franchise headquarters, an approach which contradicted the “public image” argument and resulted in denial of the employer’s motion for summary judgment.

In EEOC v. Red Robin Gourmet Burgers, 2005 WL 2090677 (W.D. Wash.), the employee was a server in a restaurant who had tattoos encircling his wrists. He received the tattoos during a religious ceremony after undergoing a rite of passage in “Kemetecism”, a religion with roots in ancient Egypt. In this belief system, intentionally covering the tattoos is a sin. 

This court also denied summary judgment for the employer, ruling that because of the relatively insignificant appearance of the tattoos, the question of whether it was an undue hardship for the employer to allow the “display” of the tattoos was an issue for a trial.

Employers should note that a ban on facial piercings and visible tattoos remains legally permissible; these are unusual cases which do not require that employers change their dress codes for employees who deal with the public. 

However, these cases reinforce the importance of the basic advice that dress codes, and work rules generally, should be enforced consistently and equally, and that unusual situations call for measured consideration rather than abrupt (and possibly illegal) decision-making. 

• Email This
• Print
• Comments
• Trackbacks

The news over the weekend suddenly took a serious and, for many, scary turn over the weekend with the prospect of a pandemic flu (known right now as Swine Flu) appearing more likely than it has been since the SARS outbreak several years back.  

For employers, flu preparedness has been something that has been talked about for many years. But I'm taking a guess that for many employers, this was always something that they would get around to later.  

So, regardless of whether this swine flu hysteria is for real or not (and note that no Connecticut cases have been confirmed), employers can and should take the time now to educate themselves about the resources out there and develop a contingency plan to adapt their business to the possibility of a flu epidemic for the weeks and months to come.  

The government, fortunately, has been preparing for this possibility and there are already existing websites for employers to review.

The best is from the Centers for Disease Control directly, which has a "Workplace Planning" page for employers addressing pandemic flu.  I highly recommend it.

Among the resources available on that site:

• A Business Pandemic Influenza Planning Checklist (which discusses policies to implement during a pandemic and how to communicate effectively with your employees);
• An FAQ on Frequent Workplace Questions; 
• A Summary of What to Expect During a Flu Pandemic.

For Connecticut employers, the Department of Public Health has also put out guidance for employers on Pandemic Flu Preparedness.  There is also a handout that you can distribute to your employees that is bilingual. Frankly, it can't hurt to distribute it this week to start educating your workforce about this.

The U.S. Chamber of Commerce also has a list of questions and issues that employers should be considering now about the pandemic flu.  Among the suggestions:

 

• Identify your company's essential functions, which might include accounting, payroll, and information technology, and the individuals who perform them.  Cross-train employees to perform essential functions to ensure resiliency.
• Plan for interruptions of essential governmental services like sanitation, water, power,
  and transportation, or disruptions to the food supply. For example, your employees
  might need back-up plans for car pools in case mass transit is interrupted.
• Update sick leave and family and medical leave policies and communicate with employees about the importance of staying away from the workplace if they become ill.  

A lot of what's going to happen over the next few weeks and months is still unknown right now.  Add a deep recession to the mix and you don't need a crystal ball to know that things could get tricky fairly quickly.  

In the upcoming days and weeks, I'll continue to update this blog with more information. For now, education and preparation are crucial to ensuring that your business can function during what may be a tough time ahead.   

(Photo Copyright Daniel A. Schwartz 2009 - at Vermont State Fair)

 

• Email This
• Print
• Comments (1)
• Trackbacks

The EEOC issued new technical guidance for employers this week to provide them with some direction on how to deal with workers with caregiving responsibilities.  

The document, "Employer Best Practices for Workers with Caregiving Responsibilities," is available online here supplements previous guidance entitled "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities".

As stated by the EEOC:

The best practices document provides recommendations for workplace policies aimed at removing barriers to equal employment opportunity for workers with caregiving responsibilities. Examples include personal or sick leave policies that allow employees to use leave to care for ill family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

The examples that the EEOC provides are not earth-shattering. Indeed, most employers are likely following many of these practices. Nevertheless, the document should give employers some additional assurance that they will have the backing of the government in implementing certain programs.  

Among the best practice examples given:

• Be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities.
• Develop, disseminate, and enforce a strong EEO policy.
• Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies.
• Respond to complaints of caregiver discrimination efficiently and effectively.
• Protect against retaliation.

Several other blogs have provided some additional thoughts on the subject this week including the Delaware Employment Law Blog and the Ohio Employer's Law Blog.  

For employers, add this to the seemingly never-ending list of areas for human resources to keep a close eye on.  

 

• Email This
• Print
• Comments
• Trackbacks

Although I've been sounding the alarm bells for the last two months or so, on the new COBRA subsidy provisions, I've had informal discussions with various colleagues that suggest that some employers are either ignorant of the new rules or do not believe that the rules apply to them. Here are three areas why most employers in Connecticut need to be concerned.

1.     State Mini-COBRA Laws Will Piggyback on the New Federal COBRA Subsidy.  While federal COBRA only applies to employers with 20 or more employees, Connecticut has a parallel COBRA statute that applies to all other employers with group health plans (except those that self-insure).  Why is this important? Because the new federal COBRA subsidy provisions will ALSO apply to those employees who are covered under a state COBRA rule as well.

The rules are slightly different. For example, if the state mini-COBRA rules apply, the insurer is responsible for sending out notices to former employees who may be eligible for assistance.  In addition, the extended election period that, in essence, reopens the period for former employees to elect COBRA, does not apply for employers subject only to the state mini-COBRA.

Thus, for employers with less than 20 employees, you may still need to comply with the new COBRA subsidy provisions.

2.     There Are Significant Penalties for Failure to Provide Notices by April 18, 2009.  With the deadline to send out notices -- particularly to former employees -- coming up as early as Saturday, April 18, 2009 for many situation, employers who are scrambling to get the work done may be considering just postponing it.  However, any such postponement carries with it significant risks. 

Although the new law appears to be silent as to the exact penalties that will apply, it appears the standard penalties under COBRA or other federal laws may apply. Thus, plan sponsors (mostly likely, employers) who fail to provide the notice could be subject penalties of up to $110 per day under ERISA and an excise tax penalty of $100 per notice (with limits) under the Internal Revenue Code. The penalty or excise tax may apply to each Qualified Beneficiary. In addition, individuals may have a cause of action to sue for COBRA coverage and receive the benefits that should have been offered, as well as attorneys’ fees and “other relief.”

3.      Employers That Pay COBRA Premiums Under a Severance Plan or Agreement May Want to Modify Them.  The most recent guidance provided by the federal government clarified that the subsidy applies only to amounts actually charged to the assistance eligible individual for COBRA continuation coverage. Therefore, employers who contribute to an assistance eligible employee’s COBRA premium will not be able to recapture this amount.  As a result, these employers may want to consider restructuring their severance policies so that they can get a tax credit for those amounts.

 

There's much more to the new COBRA subsidy rules than first meet the eye. If you're still confused, it's not too late to sign up to the teleconference that I'll be giving this Friday, through BLR. 

As always, consult with a local attorney to determine how the new law applies to your business.

• Email This
• Print
• Comments
• Trackbacks

Among employment law professionals and human resource personnel, the last year has been full of changes.  Among the more technical changes are thenew COBRA Subsidy provisions that were passed with the stimulus bill earlier this year.

April 18th is a big deadline for some of the implementation of the provisions -- providing notices to some former employees about their rights under COBRA and providing some of them with a second opportunity to enroll.  (I've covered those notices before in an earlier post.)  

Still lost? Well, there are several good resources available out there (includingthe Department of Labor website itself).  There's even a FAQ for employers from the DOL. 

If you're looking for something more in-depth, I'll be giving an audio (i.e. telephone) conference this Friday, April 17th for Business and Labor Reports.  You can sign up directly through the BLR website. 

Overall, the Act requires employers to provide notice to “assistance eligible individuals” (AEIs) who have lost or will lose their jobs between September 1, 2008, through December 31, 2009, of their the right to pay reduced COBRA premiums of 35 percent for periods of coverage beginning on or after February 17, 2009, with available coverage lasting up to 9 months following the separation of employment.

Here's a free sneak preview of one suggestion employers need to be considering now: Figure out who has left employment since September 1, 2008 and particularly those who have been involuntarily terminated. That subset may now be eligible for some assistance with COBRA payments and notices will need to be sent to them promptly.

Time is ticking on compliance. Use this week to catch up. 

Any suggestions that have made it easy on you that you can share with other employers? Feel free to comment below.  (Remember, however, that I cannot respond to questions due to ethics rules.)

• Email This
• Print
• Comments
• Trackbacks (1)

There's nothing like a bit of Florida sunshine to recharge your batteries.  After 18 months of continuous blogging, you might have noticed a brief slowdown the last week or so as I took some vacation time.

In my time off, though, there were several notable posts or topics that are worth mentioning.  I'll try to sprinkle those in through the week.

The first and most impressive of these is a list of "Top 100" Employment Law Blogs, prepared by my fellow blogger, Molly DiBianca at the well-done Delaware Employment Law Blog (and I'm not just saying that because this blog appears).

I'm not sure what it takes to be considered to be a "Top 100" employment law blog, but regardless, it is among the most thorough posts to date of the plethora of employment law blogs out there. (H/T to the Employee Screen Blog for the mention as well.)

I'm often asked what blogs I read the most. The truth is that there are lots of employment law blogs that I subscribe to (over 40!).  Each of them has an article or two nearly every week that I find helpful.  And many of them bring different perspectives beyond the Top 100 list. 

For example, if I want to see what's going on from an employee-oriented perspective, I might check out the new Employee Rights Post or the Connecticut Employee Rights Blog. 

And if I want to see what some employer-advocacy groups are doing, I might look at ShopFloor for the latest on EFCA. 

And if I want the latest on employment law legislation out of Congress, I'll sometimes review the Washington Labor & Employment Wire or the Washington DC Employment Law Update.

Whatever you choose, the internet allows you to take in many different viewpoints. Use the list to find a new blog or two. You might be surprised what you find.

• Email This
• Print
• Comments
• Trackbacks

Right now, even non-sports fans here in the state can get pretty excited about having both the men's and the women's basketball teams from the University of Connecticut headed to their respective Final Fours.  

But suppose one of your employees was somehow able to secure tickets to the games in either Detroit or St. Louis. Are you, as an employer, obligated to give that employee time off?

Well, the Department of Labor makes it very clear that items such as vacation pay are fringe benefits that are provided at the discretion of the employer.  

So, where does that leave many employers? It means employers will be bound by the rules they've set up in their policies or procedures manuals for handling days off.   Some employers give employees a good deal of flexibility about taking time off; others, who set schedules far in advance, are less so.  

Of course, there is always that one employee who calls in "sick" -- only to appear on television later on cheering at the game.  Can you discipline the employee then? The straight answer is typically yes. If employees are being deceptive about their absences, the employer has that discretion.

But here's hoping that everyone uses this time to play by the rules and shows a little bit of common sense.  In a time of economic hardship for so many, watching the games is a nice escape for a few hours.    

Go UConn!

• Email This
• Print
• Comments (1)
• Trackbacks

The U.S. Department of Labor recently released notices for employers to use in conjunction with the American Recovery and Reinvestment Act (ARRA).  These notices provide a good start for employers, but each of these notices will also need to be edited to fit a particular employer.    

So, to what employees is this concerned with? Well, overall, some employees who have been involuntarily terminated from September 1, 2008 and continuing to December 31, 2009 will be able to continue health care coverage under COBRA by paying only 35% of the ordinary COBRA premium for up to nine months. The remaining 65% of the premium will be paid by the employer, the insurance company or the health plan; those payments may be recovered through a credit against payroll tax liabilities or through direct reimbursement. 

Here's the Department's summary of the notices:

General Notice (Full version) Plans subject to the Federal COBRA provisions must send the General Notice to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event, AND who either have not yet been provided an election notice or who were provided an election notice on or after February 17, 2009 that did not include the additional information required by ARRA. This full version includes information on the premium reduction as well as information required in a COBRA election notice.

General Notice (Abbreviated version) The abbreviated version of the General Notice includes the same information as the full version regarding the availability of the premium reduction and other rights under ARRA, but does not include the COBRA coverage election information. It may be sent in lieu of the full version to individuals who experienced a qualifying event during on or after September 1, 2008, have already elected COBRA coverage, and still have it.

Alternative Notice Insurance issuers that provide group health insurance coverage must send the Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States, and issuers should modify this model notice as necessary to conform it to the applicable State law. Issuers may also find the model Alternative Notice or the abbreviated model General Notice appropriate for use in certain situations.

Notice in Connection with Extended Election Periods Plans subject to the Federal COBRA provisions must send the Notice in Connection with Extended Election Periods to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who:

1. Had a qualifying event at any time from September 1, 2008 through February 16, 2009; and
2. Either did not elect COBRA continuation coverage, or who elected it but subsequently discontinued COBRA.

This notice includes information on ARRA’s additional election opportunity, as well as premium reduction information. This notice must be provided by April 18, 2009.

 

• Email This
• Print
• Comments
• Trackbacks (1)

It's been much too long since my last installment of "Four for...", an occasional post on some useful web resources that you might overlook in your day-to-day work. 

This post focuses on four things you can find on the Department of Labor website that are particularly helpful for employers.  

1. A comparison of Connecticut's FMLA (CTFMLA) and the federal FMLA laws -- With the changes to the federal FMLA regulations, Connecticut employers are continuing to struggle with the implementation of those rules consistent with the more stringent rules in Connecticut. The Department of Labor (in addition to putting on sold-out seminars on the subject) has a good comparison of the two rules (and which one should apply) on their website. 
    
2. A new updated FAQ for employers -- The Department of Labor has just updated their Frequently Asked Questions (and Answers) page for employers.  It helps answer some basic questions like: "Is an employer required to give employees a break?" or "When must an employer pay wages upon terminating an employee?"  Before you spend time with an attorney or searching the Internet, check out this site too which really DOES help answer some great wage/hour questions. 
    
3. Free posters and guide books (and forms too) - Keeping up with all the posters required by the Department of Labor can be a taxing task. But fortunately, the DOL has summarized the regulations all on their website, which you can download. You can also e-mail the DOL directly and get the regulations and guide books.  And the best part of it all? It's free.  (Of course, there are OTHER workplace posters required by law, but, at least for the DOL requirements,  why spend $50 on a poster that you can get for free?)  The DOL also has various employer authorization forms and other forms for employers to use. 
    
4. An employer's guide to unemployment compensation - If you are an employer, at one time or another, you're going to terminate the employment of various people. When that happens, the DOL again has a great resource -- an employer's guide to the whole unemployment compensation system.  It answers technical questions and the mundane ones. 

And your bonus site: The New Hire Reporting System -- Because all Connecticut employers are required to report all newly-hired employees within 20 days of hiring them, this site allows employers with a fast, reliable, and secure option for reporting their new hires as required by Federal and State regulations.

A full list of employer services provided by the Department of Labor is available here. 

• Email This
• Print
• Comments
• Trackbacks

Learning about our nation's employment laws and labor history, and creating more educational opportunities are certainly worthwhile endeavors.  Indeed, in this time of economic turmoil, investing in vocational and education programs may be viewed as a down payment on getting more people into a taxpaying role. 

To that end the Omnibus Appropriations Bill passed by Congress in the last few weeks had a number of earmarks for programs in Connecticut that will have a direct impact on those issues. 

You can view the whole list off of the Waterbury Republican-American's website.  For example, ARC of New London County received $238,000 for adult vocational training.  And the Connecticut Council on Family Services Agencies received $381,000 for a welfare-to-work initiative.

For those interested in labor law, there was one unusual entry from an association that I must confess that I was not aware of: the Greater New Haven Labor History Association. 

What is the GNHLHA and what is its mission? According to its website, it is "to collect, preserve, and share the history of working people in the Greater New Haven Area. Its membership consists of unions and individuals, with an Executive Board composed of retired trade unionists, active trade unionists, and students and teachers interested in labor history."

According to the Rep-Am website, Congresswoman Rosa DeLauro put in an earmark for the GNHLHA of $143,000 for "exhibits and education programs". 

What might some of those programs be? According to the GNHLHA website, current and future exhibits and programs include: 

• An exhibit at the New Haven Colony Historical Society about the clothing and garment workers’ Locals in the New Haven area;
• A labor history walking tour of the River Street area in Fair Haven;
• Transcriptions of about 35 oral history interviews conducted by volunteers in the early 1990s, and making the text available on our web site;
• A research guide based on the union records surveys, to be made available in print form and on the web

For nearly $150,000 in federal funds, it'll be interesting seeing what events occur over the upcoming year from this niche organization.

• Email This
• Print
• Comments
• Trackbacks

It's FINALLY a nice spring day outside in Connecticut (see the picture of the Connecticut River taken this morning) so no need to spend a minute more than necessary to catch up on some other employment law-related items you might have missed during the week:

• A topic near and dear to my heart, background checks, had several good posts written about them. The first, from the BeenVerified.com blog, recaps online identity issues and emphasizes the importance, yet again, of doing background checks before hiring.  And the EmployeeScreenIQ Blog reports on various schools and employers who fail to follow the law and don't accept electronic signatures for conducting such checks.
   
• Several blogs, including the Ohio Employer's Law Blog and the Workplace Prof blog, report on the Department of Labor's new commitment to wage & hour enforcement cases. Because of this, Jon Hyman suggests that employers need to be extra vigilant in uncovering wage and hour violations in their own workforce.
   
• Although I previously discussed the new whistleblower provisions in the stimulus package, the Laconic Law Blog does a good job discussing this further.  As the post suggests, "Any organization receiving stimulus funds should be aware of these provisions because, among other things, they contain posting requirements."
   
• For employers receiving funds from the government under TARP (Troubled Asset Relief Program), the United States Citizenship and Immigration Services explained new requirements that employers must meet before hiring foreign nationals to work with H-1B visa.  The Washington Employment Law Update has the details. 
   
• The Florida Employment Law Blog has a timely post about the pitfalls of reducing salary and pay of exempt workers as a way to cut costs in these tough economic times.  The post suggests ways for employers to avoid running afoul of such rules. 

 

• Email This
• Print
• Comments
• Trackbacks

There are a lot of sleepy Connecticut basketball fans this morning, with the game against Syracuse last night (and this morning) going into SIX overtimes.  Those of us staying up until nearly 1:30 a.m. to watch the second-longest game in NCAA basketball history will remember that game for a long time. 

With overtime on my mind, it's a good time to address two simple issues that sometimes arise in Connecticut:

• What's the difference between daily overtime and weekly overtime?
• And does Connecticut have a "daily" overtime rule?

"Daily" overtime is a concept that a non-exempt employee who works more than 8 hours in a day (or perhaps on a weekend day or holiday) is due an overtime rate of time-and-a-half of regular hour rate.  Some states have imposed this rule."Weekly" overtime is the more commonly understood concept that an non-exempt employee is only due an overtime rate of pay after working more than 40 hours during a week.

Connecticut's Department of Labor quite succinctly states that Connecticut does not have an "daily" overtime rule, absent some contractual arrangement.  Instead, Connecticut follows a weekly overtime rule, that can be found at Conn. Gen. Stat. Sec. 31-76b. 

Thus, if there were non-exempt employees in Connecticut who had to work late last night because of the basketball game, they are only going to be eligible for overtime if they work more than 40 hours during this week (or there was some other type of contract, like a collective bargaining agreement, that mandated it).

And if you see some people napping around the office today, have some sympathy for them too. Staying up late didn't help UConn's cause; they lost 127-117. 

• Email This
• Print
• Comments
• Trackbacks

With companies laying off people in droves, protecting what's LEFT of the company -- namely, it's company data and trade secrets -- becomes that much more important.

For that reason, I'll be speaking at our firm's Breakfast Roundtable on March 19th at 8:30 a.m. in our Hartford office (sorry, no webinar just yet; it's coming soon...)  You can find the details here and RSVP to event@pullcom.com. 

And because just talking about employment law is only one part about protecting company data, Michael Feld of Layer Eight, a technology consulting firm, will also be speaking to provide attendees with practical solutions as well.

As a sneak preview to our roundtable discussion, I'll bring up one issue that companies sometimes leave out when conducting a reduction in force -- and that is locking up data.

An experienced IT department (or just a good office manager) should be able to immediately lock out a departing employee from various electronic files and computers. Getting laptops and BlackBerrys returned immediately as well should also be an important part of any strategy.

I'll talk more about this issue next week and post some of the highlights from our discussion.

• Email This
• Print
• Comments
• Trackbacks

An employee who contended that he was fired after complaining about a physically threatening co-worker cannot bring a wrongful discharge claim, in a decision released by the Connecticut District Court.  The case, Ferrer v. T.L. Cannon Management Corp. (download here), does suggest, however, a way for employees to bring such claims in the future -- with some artful language in the complaint. 

Readers of this blog will be aware  that Connecticut is an at-will employment state, absent some contractual promises or some other exception that may apply. In general terms, that means is that an employee can quit any time for any reason and that an employer can fire the employee at any time for any reason (so long as it's not an illegal one such as race, gender, etc.) 

Two Connecticut Supreme Court cases are required reading for this concept: Sheets v. Teddy's Frosted Food, Inc. 179 Conn. 471, 427 A.2d 385 (1980), and Parsons v. United Technologies Corp. 243. Conn. 66, 89, 700 A.2d 655 (1997).  [Disclosure: I worked on the Parsons matter.] 

Those cases created a notable exception to the at will standard:

• In Sheets, the Court held that an at-will employee may sue for wrongful discharge if he is fired for complaining about, or refusing to participate in, his employer’s violation of public policy.
• In Parsons, the Court ruled that the public policy embodied in the state statute requiring employers “to exercise reasonable care to provide for [their] servants a reasonably safe place in which to work,” Conn. Gen. Stat. § 31- 49, provides grounds for a wrongful discharge claim when an atwill employee is fired for refusing to work in conditions posing
  an “objectively substantial risk of death, disease or serious bodily injury.”

So, in the Ferrer case, the District Court was asked to extend the Parsons exception to a situation where the employee was allegedly discharged after informing his manager that a co-worker threw a punch at him and missed. The complaint also alleged that the co-worker assaulted another employee about a year earlier.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Employment law is quite the hot topic among various blogs. So much so that it's time for the next installment of Quick Takes -- a quick summary of what's new and noteworthy.

• Don't miss the Ohio Employer's Law Blog's post on how NOT to fire an employee. In the post, Jon Hyman describes how an employer took an already difficult situation and made it worse.  Lesson from Jon: Do not do layoffs or firings via e-mail. Period.
   
• World of Work continues the focus on the new COBRA subsidies with a link to FAQ by the Department of Labor.  A new blog, Compliance Building, has information from the IRS also about the new COBRA subsidies. 
   
• The Employee Free Choice Act is expected to be introduced into Congress soon. For what its worth, one union leader is predicting passage by August, according to a post by the Pennsylvania Labor & Employment Blog.   And although the EFCA has been recapped extensively by this blog and others, the Labor & Employment Law Blog has one more here. 
   
• If there was really a remaining question about whether a plaintiff's Facebook postings were discoverable, a recent court finding out of Canada suggests the answer: Yes.  (Delaware Employment Law Blog)
   
• Richard Hayber, over at the Connecticut Employee Rights Blog points out a recent case by a federal appeals court that holds that releases of future claims in last chance agreements are invalid.   While the case isn't binding in Connecticut, Richard clearly believes that the same concepts could be applied by a Connecticut court.
   
• My former colleague, Richard Tuschman from the Florida Employment Law Blog, highlights a case in which a common question is raised: Does hiring an employee who has a non-compete agreement from a competitor constitute "tortious interference" (and subject that new employer to a claim)? The answer? Maybe not, but there are still other claims to worry about.

And on the lighter side, don't miss this fun post by the Delaware Employment Law Blog recapping the top 10 excuses for being late to work.

• Email This
• Print
• Comments (1)
• Trackbacks

Have you heard? Twitter is the next BIG thing that employers somehow need to worry about -- right after blogs and online social networking, of course.  Indeed, a headline not too long ago from the National Law Journal screamed: "Beware:  Your 'Tweet' on Twitter could be trouble".

But here's the thing.  I've actually been using Twitter since late last year.  (You can find me on Twitter here or, if you're already using Twitter, under the name  "@danielschwartz") And so far, I think the alarms that are being raised by some employment lawyers (particularly those who have never used the service) are overblown.  Twitter can, for example, be a great marketing device and a novel communications tool.

First, there's a group of you out there that is probably wondering, "What the heck is Twitter"? Two sets of required reading are NYT Columnist David Pogue's recent post explaining the service, and TwiTips' 10 Tips for Beginners.  And for the other group who believes that Twitter is just for kids, even The Hartford Courant just started Twittering. And if you're still wondering what the fuss is about, this terrific little video by Twitter's co-founder explains how Twitter's growth is being coming from unexpected uses of the service.

Next, I should clarify that I don't disagree with the underlying premise that is advanced by some that posts on Twitter can get an employer into trouble. Of course that's true.  But so can a letter to an editor in your local newspaper, or a notable call to a radio talk show or causing a scene at a presentation.

You don't see advice that we ought to cut off mail service, or remove phones from employees' offices, or stop allowing employees to attend seminars and presentations.  Rather, we outline a set of expectations as to what is proper business behavior and what is expected by the employer.

And yet, cutting off access to Twitter is exactly what some have suggested.  Such a blanket suggestion ignores the usefulness of this internet tool and is not consistent with the approach that companies use for other, more established forms of communication.  (Can you imagine a company now that required letters to be faxed instead of e-mailed?)

Underlying the suggestion of cutting of access issue is that somehow employees using Twitter will misbehave and expose the company if left to their own devices. The belief is that employees -- if given access to Twitter -- will disclose confidential information, bad-mouth competitors and be a lighting rod for lawsuits. 

Thus, some employers cut off access to Twitter as the easiest solution to address this concern.  But other employers can look to companies like Zappos that are using Twitter and taking a more dynamic and flexible approach that actually addresses an employee's online conduct.

How so? By creating and implementing guidelines on model Internet behavior.  What types of standards should an employer consider?  Not surprisingly, the same standards that we use for other online conduct.

Indeed, in 2007, I wrote about "The blog post I didn't publish".  In that post, I outlined some suggestions for an employee blog use policy, many of which remain equally applicable to the use of Twitter. Some are:

• Employees can be instructed that they should not comment or use any confidential information about the company or discuss internal matters. (Whether the employee should be allowed to identify the employer is a business decision for the company.)
• Employees can be told that Twitter should be done during non-working hours and not using Company resources.  Of course, many employers may want to authorize the use during working hoursto advance a legitimate business purpose (such as marketing).
• Employees can be instructed that their "Tweets" should not be libelous or defamatory, and should avoid being written in a way in which it could be construed as harassing or discriminatory on the basis of a protected category.

I am not suggesting a one-size fits all approach for employers. Some employers may simply choose to cut off access, while others may choose to give their employees unfettered access to Twitter.  But for employers looking for a compromise, consider focusing on the root issue (ensuring proper online behavior and communication) rather than on one service or another.

Because before you know it, there'll be another trend or service to take Twitter's place and we'll be having this discussion again in another 12-18 months.

• Email This
• Print
• Comments (1)
• Trackbacks (1)

UPDATED 3/1/09

The EEOC released proposed regulations regarding the Genetic Information Nondiscrimination Act on February 25, 2009.  The Washington Labor & Employment Wire (H/T) received and advance copy; the regulations are expected to be published later on Thursday or Friday and the 60-day comment period will begin then. (UPDATED: The text of the proposed regulations can be found here.)

With all the new employment laws, GINA might have been overlooked; it was passed last year and it:

* prohibits discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
* prohibits employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions (e.g., monitoring the effects of hazardous workplace exposures);
* prohibits health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
* imposes strict workplace confidentiality/disclosure rules on all genetic information.

The Wire's early take on the regulations is that they clarify some terms and provide some guidance on GINA's six exceptions to the general provisions that employers are prohibited from acquiring genetic information from employees:

The proposed regulations provide additional guidance regarding some of the terms used in the Act. For example, the regulations define “employee” to cover not just current employees, but also applicants and former employees. The proposed rule also clarifies that drug and alcohol tests are not “genetic tests,” and invites comments on the scope of the term “genetic test,” specifically, “how the term should be applied, whether the proposed regulation should be more or less expansive, and whether it or the preamble should provide examples of what should be included or excluded.”

Employers in Connecticut should be wary about just following GINA however. Connecticut has long had a separate state law on the subject in Conn. Gen. Stat. 46a-60(a)(11).

In any event, the proposed regulations should be available from the government website shortly. Expect to hear more in the upcoming days about these proposed regulations.

• Email This
• Print
• Comments
• Trackbacks

Yesterday, I had seen some headlines at first about Attorney General Eric Holder's comments discussing race, but had simply glossed over them. After all, it was a busy workday and well, was there going to be anything new?

But by late in the day, I received an e-mail from a former law professor of mine.  Listen to it, she implored, because it is a "fantastic" speech. 

Having listened to it, I have to agree; it's great and the headlines about his "nation of cowards" remark do a disservice to the entire substance of his speech.  He may not have the same oratorical style as our new President, but the content of speech and the issues he discusses (and the manner in which he does so) are compelling.  If you don't have 10-15 minutes, you can read the transcript but if you have a little time, you can watch the video below. 

The speech is directly relevant to today's workplaces.  Indeed, Holder (whose background you can find here) is quick to point out that workplaces are doing better than most on addressing the issues of race.  Even still, there are limitations to that progress:

As a nation we have done a pretty good job in melding the races in the workplace. We work with one another, lunch together and, when the event is at the workplace during work hours or shortly thereafter, we socialize with one another fairly well, irrespective of race. And yet even this interaction operates within certain limitations. We know, by "American instinct" and by learned behavior, that certain subjects are off limits and that to explore them risks, at best embarrassment, and, at worst, the questioning of one’s character. And outside the workplace the situation is even more bleak in that there is almost no significant interaction between us. On Saturdays and Sundays America in the year 2009 does not, in some ways, differ significantly from the country that existed some fifty years ago. This is truly sad. Given all that we as a nation went through during the civil rights struggle it is hard for me to accept that the result of those efforts was to create an America that is more prosperous, more positively race conscious and yet is voluntarily socially segregated.

But Holder is not doom and gloom in his speech; rather, he suggests that discussing and learning about "Black History" and treating it simply the history of America, can help bridge the divide:

There is clearly a need at present for a device that focuses the attention of the country on the study of the history of its black citizens. But we must endeavor to integrate black history into our culture and into our curriculums in ways in which it has never occurred before so that the study of black history, and a recognition of the contributions of black Americans, become commonplace. Until that time, Black History Month must remain an important, vital concept. But we have to recognize that until black history is included in the standard curriculum in our schools and becomes a regular part of all our lives, it will be viewed as a novelty, relatively unimportant and not as weighty as so called "real" American history.

Several workplaces around the state take time to recognize Black History Month.  Holder's comments would suggest that is a worthwhile endeavor, but ultimately, employers can play an important role in educating the workforce on the importance of diversity as well.  (Of course, treating employees fairly and with respect will continue to help build the bonds in the workplace.) If those actions are not taken, mistrust and bad feelings are left to fester and, in this economy, those feelings can gain traction fairly quickly. 

As Holder warns, " An unstudied, not discussed and ultimately misunderstood diversity can become a divisive force."

Employers would do well to consider Holder's comments and determine if they should do more to emphasize the importance of broad diversity in the workplace and the role that everyone can play in doing so.  Holder's comments do not serve to blame anyone for how we got to this point in history, but they do serve to provide a guide to where we from here.

• Email This
• Print
• Comments (1)
• Trackbacks

Addressing the legal risks associated with a reduction in force (or "RIF") has long been a topic on this blog. In fact, looking in my crystal ball way back in January 2008, I suggested that it would the hot topic before years' end. 

Flash forward to the present, and the headlines continue to be dominated by news of layoffs, plant closings, furloughs and bankruptcies. 

One of my friends and professional colleagues in the area, Lori Rittman Clark, has posted her thoughts on RIFs in the For the Defense blog. 

While there's nothing particularly ground-breaking (quite simply because there aren't a lot of new developments in the area), it is a concise and well-rounded summary for employers and HR professional looking to reduce legal risks associated with reductions in force.

What are the issues she suggests reviewing?

• Potential Applicability of the WARN Act;
• Disparate Impact Analysis.;
• Disparate Treatment Analysis; and,
• Releases.

All are sound subjects for review. The best suggestion should be the most obvious one: Seek legal guidance at the START of a process, rather than the end, to avoid the legal pitfalls that surround RIFs.

In the end, however, there is no magic bullet to eliminating legal risks associated with reductions in force. Each of the items Clark raises may help reduce the legal risks, but even implementing all of the above may not eliminate the risk entirely.

• Email This
• Print
• Comments
• Trackbacks

To bring state law employment discrimination claims to court, it is well-known that an employee has to first file the claim with the state agency responsible for investigating the claim (the CHRO) (Conn. Gen. Stat. Sec. 46a-101(a)).  And most people believe that all the employee has to do is then wait for the CHRO to issue a "release of jurisdiction" to the employee, and then file a claim in Superior Court within 90 days of receipt of the release (Conn. Gen. Stat. Sec. 46a-101(e)).

But a recent Superior Court case reminds us of another limitation on the ability of individuals to bring claims in Superior Court that is found in another section, Conn. Gen. Stat. Sec. 46a-102.  That statute states that: 

Any action brought in accordance with section 46a-100 shall be brought within two years of the date of filing of the complaint with the commission.

Thus, even if the individual gets a release of jurisdiction, the employee must STILL file a claim of discrimination in Superior court within two years of the original filing of the claim with the CHRO.

In Wright v. Teamsters Local 559 (2009 WL 242401) (available via Westlaw only), the labor union challenged the subject matter jurisdiction of a member to bring a discrimination claim against it on these grounds. 

The procedural history of that case is straightforward: The plaintiff filed an administrative complaint with the CHRO on October 12, 2004, alleging he was the victim of race and color discrimination. Over seventeen months later, on or about April 4, 2006, the plaintiff amended his administrative complaint to add a new claim of age discrimination. On August 28, 2006, the plaintiff received a release of jurisdiction from the CCHRO and, thereafter, on November 28, 2006, he filed a claim in Superior Court

The employee did not dispute the timeliness of the underlying discrimination claim, but claimed that the filing of an amended complaint should restart the statute of limitations period. The Superior Court held that the age discrimination claim related back to the other discrimination claims:

The court finds that the plaintiff's age discrimination claim in the amended complaint relates back to the original complaint: it involves the very same set of alleged facts and actors as the race and color claims; it involves the same claims of harm and injury; and it is based on the very same statutory subsection. It is in effect, the same cause of action.

The case is a strong reminder to employers that the procedural requirements for filing claims must be strictly followed by individuals bringing discrimination claims against it.  And with the delays at the CHRO investigative stage as long as they are, this statute is one that should not be overlooked in defending claims of discrimination.

• Email This
• Print
• Comments
• Trackbacks

Google released a new program last week called Latitude. You can get full details here, but the gist of it is that can show your location (and the location of your friends) real-time on a map.  So, suppose you and your teenager have cell-phones -- voila, you can see on a map where they are and vice-versa, all in real-time. 

I've been using the program for a few days on my Blackberry Bold and find it both amazing and scary at the same time. Amazing, in that I can see where my family members are at any time. And scary for that same reason. 

As with any new technology, there's the risk of misuse.  GPS tracking has been available for sometime, but never in such a consumer-friendly format.  In the past, companies might spend tens of thousands of dollars fitting their fleet of trucks and cars with such devices to ensure that their employees are where they should be; this new technology could lower the cost to virtually nothing.  Latitude isn't perfect, but it is now another tool that employers have at their disposal.

A few other employment-related blogs today have also started discussing the implications in the workplace (which you can find here and here.) 

Employers in Connecticut, however, have particular rules to follow, mainly in the form of the Electronic Monitoring Act. 

I first discussed the act in a post way back in October 2007:

[C]an an employer in Connecticut conduct electronic monitoring of its employees? The answer is a definite yes. But, of course, the answer is a bit more complicated. Connecticut has an electronic monitoring statute, Conn. Gen. Stat. Sec. 31-48d, that allows for such monitoring if (with very limited exceptions) the employees have prior written notice of such monitoring.

To provide the notice, the employer must indicate the types of monitoring which may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.) .

If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment."

So for employers, posting the notice (which you can download for free from the DOL website here) is key but educating employees about the tracking may be just as important. And understand that simply the process of providing notice to your employees may serve as an effective deterrent. 

Of course, there will be some who will find such tracking an invasion of their privacy and many employers will find such tracking completely unnecessary.  Where the proper balance lies between privacy and oversight of an employee's performance is a question that only you -- as an employer -- can answer.

• Email This
• Print
• Comments
• Trackbacks (1)

If you were at the Holiday Inn in Waterbury yesterday, you had the opportunity to see a microcosm of what's going on in today's workplaces and economy.

Lining the halls outside the conference rooms to the hotel were hundreds (850, to be exact) of people apply for 40-50 jobs at an indoor water park.  (The Hartford Courant treats the story as if it were the only employer in the state doing hiring.) Fox61 News had a report last night detailing the scene as well, which you can see here:

But if you look carefully at the video (particularly about the 1:20-1:40 mark of the report, you can see a banner in the background from a seminar and conference that was also occurring at the hotel yesterday. It reads: CBIA Supervisors' Conference.

What was the conference? Well, the all-day conference was designed to give supervisors' practical skills to help them become more effective managers.  (And, in full disclosure, the conference was sponsored by my firm, Pullman & Comley, LLC). But an underlying theme of the day was how to manage in difficult economic times.

The lunch-time speaker spoke eloquently about how managers and supervisors -- even at healthy companies -- must understand the stresses that are being placed on all workers, even the ones with relatively secure jobs.   Employees are worried about layoffs or their families' financial well-being, in levels not seen in a generation.  (Just think about all of the job fair applicants who have families and friends that are concerned about them.) As a result, fear, anxiety, lack of loyalty and uncertainty are all feelings that are circulating in the workplace.

What are some practical solutions suggested by the speaker? Most of the suggestions are good business practices anyways, but they are certainly worth repeating now: Build trust; communicate often; pay attention to high potential employees; recognize success; and including employees in decision-making (i.e. cost saving ideas). And inexpensive rewards -- even a letter of thanks by the company's President -- may make a difference in today's workplaces.

I had the opportunity to speak in the afternoon on the ADA, the new ADA amendments and how to deal with employees with disabilities.  I'll share my thoughts on the ADA in a future post (though you can get a head start on the subject from my previous blog entries). 

With the jobless rate now climbing to 7.6 percent nationally, it's a tough time for both the people looking for a job, and those fortunate enough to have one.

• Email This
• Print
• Comments
• Trackbacks

I love my Blackberry Bold. And I know many others that praise the virtues of an iPhone or other PDA device.

But recently, questions have been raised about the use of these devices by non-exempt employees -- in other words, those employees who are eligible to receive overtime.  If these employees are reviewing their messages outside of work, do they need to be compensated for that time?

Recently, my colleagues, Joshua A. Hawks-Ladds and Megan M. Youngling prepared an article for the Connecticut Law Tribune supplement on this subject that you can download here. It is worth reading because it discusses an answer to this question.

While the law is still developing here, they conclude that:

[A]fter-hours PDA use increases an employer’s exposure for overtime and record-keeping liabilities, as well as the possibility that nonexempt employees will not be properly compensated for all time actually worked in violation of the FLSA and state wage laws. The practices and policies that many employers currently have in place for after hours work may no longer “fit” today’s PDA environment.

Employers must reexamine their current policies and procedures and revise them to reflect PDA usage. They must also reexamine their employees’ exempt versus nonexempt status. Once appropriate policies governing PDA usage are in place, they must be adequately communicated to employees and then enforced. Policy violators should be subjected to appropriate discipline. Following these steps should limit the risks PDAs pose to employers under the sate and federal wage laws.

As I've said before, there are a lot of issues right now for a human resources department. But ensuring compliance with wage and hour laws should continue to remain a top priority for employers. 

• Email This
• Print
• Comments
• Trackbacks (2)

With the Super Bowl over, there are many in Connecticut who would love to start paying attention to baseball (after all, pitchers and catchers report to spring training in about two weeks).

Fortunately, there's been plenty of drama for New York Yankees fans this week with the release of former manager Joe Torre's new book, The Yankees Years.  It has been marketed as being somewhat controversial, though the reviews of the book have indicated that it is fairly tame as memoirs go.

Nevertheless, the kerfuffle regarding the book has led to the Yankees mulling some type of confidentiality or non-disparagement clause in future contracts of managers and coaches (see reports here, here and here.) Such restrictions would probably not be applied to players because the union would likely object to such clauses. 

This, of course, raises several questions, including: What does such a clause look like? The clauses are not uncommon in severance or separation agreements (though not necessarily routine), but less so with employment agreements.  The Footnoted blog reprints contracts that have been filed with the SEC as does a website called OneCLE. You can use these site to get ideas of clauses or language that can be used for various employment or separation agreements. 

As for the non-disparagement clauses, there are a few examples you can find on these sites.  One such agreement states:

Employee agrees (whether during or after Employee’s employment with the Company) not to issue, circulate, publish or utter any false or disparaging statements, remarks or rumors about the Released Parties.

Another agreement, is a bit more thorough and states: 

Non-Disparagement. (a) You agree not to disparage or denigrate the Company or, subject to paragraph 10(b) below, its directors or executive officers orally or in writing. The Company agrees not to disparage or denigrate you or your agents, assignees, attorneys, family members, heirs, executors or administrators orally or in writing, and agrees to use its reasonable best efforts to cause its directors and executive officers not to disparage or denigrate you or your agents, assignees, attorneys, heirs, executors or administrators.

(b) Notwithstanding the foregoing provisions of this paragraph, it shall not be a violation of this paragraph 10: (i) for any person to make truthful statements when required by order of a court or other body having jurisdiction, or as otherwise may be required by law or under an agreement entered into in connection with pending or threatened litigation pursuant to which the party receiving such information agrees to keep such information confidential or (ii) for you to respond to any disparaging or denigrating comment made by any director or executive officer.

Are these types of provisions something that companies can consider? Sure, but as with all types of provisions, employers should understand more about the clauses, about the enforceability of such clauses and about why they might need or not need such clauses.  And certainly the language should be tailored to the particular company's situation.  (As always, seeking some type of legal guidance is recommended before implementing changes to any agreements that a company may use.)

• Email This
• Print
• Comments
• Trackbacks

Since it is another snowy day here in Connecticut, it seems like another opportune time to post about some of the items worth reading and catching up on over the last few days.

• On Friday, President Obama announed three new executive orders that give broad power now to the Secretary of Labor.   These orders involve federal contractors and not the general workforce.  The World of Work blog has the details: 

• Economy in Government Contracting.  Denies federal contractors reimbursement for funds spent on activities designed to persuade employees to join or to not join a union, such as printed materials, consultants or meetings (activities sometimes known as "union busting"). 

• Notification of Employee Rights Under Federal Labor Laws.  Requires all federal contracts to require contractors to post a notice informing employees that they have a right either to join or  to not join a union. A prior order from President Bush, required contractors to post a notice informing employees that they had a right not to join a union.

• Nondisplacement of Qualified Workers Under Service Contracts.  Requires all federal contracts to include a provision requiring any contractor who assumes the contract from a previous contractor to retain that previous contractor's qualified employees.

• The Point of Law forum picks up on the recent story of Connecticut's Attorney General suggesting that AT&T be prohibited from laying off workers.  The real question is whether this is a unique situation or whether other employers could face similar action if they engaged in layoffs.  
   
• Despite the rhetoric surrounding the Employee Free Choice Act, union rolls in Connecticut actually grew from 15.6 to 16.9 percent of the workforce.  However, what is unclear from these statistics is the reasons WHY the rolls grew.  It is also too early to call this a trend but it is obvious that unions have at least stopped the constant drain. 
   
• The Florida Employment Law Blog discusses the new Ledbetter Fair Pay Act and suggests that one effect of the claim is to allow those receiving retirement benefits to sue.  It's an interesting theory and we'll have to see if courts interpret the law to allow for such claims. 

The Act also provides an avenue for retired employees to sue their former employers years after separation for their lost pensions. In theory, each time a former employee receives a pension check, the amount of which may have been determined as the result of past discriminatory pay practices, a new statute of limitations period begins to run. These potential plaintiffs would have the right to have their pension benefits recalculated if they were determined in a discriminatory fashion. Accordingly, companies may face the threat of litigation from former employees whose employment relationship ended years ago.

• Finally, the Ohio Employer's Law Blog has summarized various ways to avoid a lawsuit. As Jon is quick to note, "there is no sure-fire method to prevent a lawsuit from being filed", but these tips can provide a mental checklist for employers to consider to try to avoid litigation. 

• Email This
• Print
• Comments
• Trackbacks

In a last minute notice and delay, United States Citizenship and Immigration Services announced that it is postponing, until April 3, 2009, the implementation of a new I-9 form and a revised list of acceptable documents to determine employment eligibility.  (For background, you can find my most recent post on the form here.)

The new forms were to go into effect today, February 2, 2009. Instead, it has instructed employers to continue to abide by the old rule and use the old form.

USCIS released a press release late last week in which it indicated that it was reopening the public comment period for 30 days. You can find the release here. 

• Email This
• Print
• Comments
• Trackbacks

There's a relatively new children's book out now entitled, "The Wolf Who Cried Boy". It's a humorous take on the old fable and I read it outloud one evening this week at home.  

I can't help but be reminded of both the classic and new story, reading all of the hyperbole and hype of the last 24 hours regarding the new Ledbetter Fair Pay Act and those who are quick to predict that the floodgates of employment litigation are now open. 

Let's clarify a few issues up front: 

• Is the Ledbetter Fair Pay Act important for employers to understand? Sure, just as all changes to employment laws are important. 
  .
• Does it dramatically change the law? Not really.  Before this law, employers still weren't allowed to engage in pay discrimination; it's just that the time frames for bringing suit under some pay discrimination claims had been defined narrowly by the U.S. Supreme Court in 2007.   This Act extends the time frame for bringing suit by treating each new paycheck as a basis for a discrimination lawsuit, rather than just the original decision to discriminate. 
   
• Will this lead to a dramatic upturn in pay discrimination lawsuits? The jury is definitely still out on this one.  

Here's the greater perspective.  Before the U.S. Supreme Court decision in 2007, women could bring pay discrimination lawsuits under both Title VII's overall scheme, or the Equal Pay Act.  For reasons that are still not fully known (though discussed by National Journal's Stuart Taylor here (H/T Point of Law)) , Ms. Ledbetter did not pursue her Equal Pay Act claim on appeal after it was dismissed on the merits (effectively forfeiting it).  The U.S. Supreme Court ruled only that for pay discrimination claims brought under Title VII, a 180-day statute of limitations applied to pay discrimination decisions.. 

Thus, after Ledbetter, if the employer's discriminatory pay decision occurred in 2007, the employee was out of luck now to sue under Title VII.  Each new paycheck was not an "act" of discrimination. 

The new law treats each paycheck as a new "act" of discrimination, effectively re-starting the statute of limitations each time a paycheck is issued.

But here's why the fuss about the new act is overblown. The employee still could sue under the Equal Pay Act. Indeed, employers should be much more concerned about the Equal Pay Act -- which was unaffected by the Fair Pay Act --  when it comes to pay discrimination claims.  

Unlike Title VII pay discrimination claims, employees do not need to file their Equal Pay Act claims with the EEOC, and claimants have two years in which to file their claim under the Act (three years if the violation is willful).

But here's the kicker for Equal Pay Act claims: The employee does not need to prove discriminatory intent, unlike Title VII.  In fact, the Equal Pay Act focuses on disparity in pay for substantially similar work; contrast that with Title VII which focuses on a discriminatory action that causes a disparity in pay.  So, when the employee is paid less than similarly situated employees of the opposite sex, an Equal Pay Act claim can arise without showing that the employer intended to discriminate. 

Does this mean that employers have no reason to be concerned about the Ledbetter Fair Pay Act? Of course not. The act has the potential of opening of employers to older claims of discrimination against managers and supervisors who have long since gone. But remember, employees will still need to show that the employer intended to discriminate -- a burden that is not insignificant.  And former employees are not going to be able to revive a claim of pay discrimination without a recent "paycheck" to go along with it. 

It's difficult to get exact numbers of pay discrimination claims and look at the numbers of claims filed both before and after the Ledbetter decision came out, but a cursory review of the statistics published by federal agencies under the No Fear Act doesn't seem to reflect a big downturn in the numbers of pay discrimination claims after Ledbetter.  In fact, the United States Postal Service reports more pay discrimination claims being made in 2008 (after Ledbetter), than 2007.  Thus, with Ledbetter effectively being overturned, it's hard to believe that the Act will impact the numbers of claims significantly. 

There is another bill that would change the underlying law that employers should follow closely -- the Paycheck Fairness Act (H.R. 12). The Paycheck Fairness Act would limit an employer’s ability to justify paying different salaries to workers based in different locations with different costs of living. The bill would lift the caps on compensatory or punitive damages for which employers would be liable, in addition to current liability for back pay. These damage penalties would apply to even unintentional pay disparities.

The House passed that bill as part of the Ledbetter Fair Pay Act bill, but the U.S. Senate did not take that up.  Backers of that bill, including Rep. Rosa DeLauro of Connecticut, will continue to press on. 

For employers, the Ledbetter Fair Pay Act should just be another reminder to be vigilant in the monitoring of your compensation practices.  The EEOC's Compliance Manual (H/T Moore) gives some suggestions on the issues that employers can review to determine their compliance with the applicable laws.  

There's little reason for employers to cry "wolf" or "boy" over this latest Act. Stay focused and use this current annual review season to ensure that your pay practices are supported by accurate data and are fair. 

• Email This
• Print
• Comments
• Trackbacks (1)

UPDATE 2/2/09 - On late Friday, January 30th -- after this post had been published -- USCIS announced that it was delaying implementation of the rule by at least 60 days (or April 3, 2009). See new post here. 

As if human resources professionals didn't have enough on their plate this month (with changes to the ADA and FMLA), Groundhog Day will bring about another change. Although I've covered it before, it is important for employers to understand because it will affect employers of all sizes, regardless of whether they are in Connecticut or beyond.  

The U.S. Citizenship and Immigration Service has revised the I-9 Forms and modified the list of documents that are acceptable to prove identification.  The form should be used starting February 2, 2009 for all new hires and can be downloaded here.  Employers will have to use the revised Form I-9 for all new hires and to re-verify any employee with expiring employment authorization.

CIS's website summarizes the changes to the acceptable documents list here:

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process. The changes included in the interim final rule will significantly improve the security of the employment eligibility verification process.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only.

The rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.  

Various other blogs have summarized these changes as well, including the Pennsylvania Labor & Employment Blog, World of Work, and The Word on Employment Law. 

Until February 2nd, employers can continue to use the current I-9 forms.

• Email This
• Print
• Comments
• Trackbacks

Earlier today, President Obama welcomed Lilly Ledbetter to the White House and signed the Lilly Ledbetter Fair Pay Act.  You can find the text of the act here and even leave your comments on it. You can read the President's remarks here. And you can find the White House blog entry on the subject here.

In signing the bill, the President said:

So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time.

I've covered the bill extensively in prior posts, which you can find here, but some final remarks on this new law for now are worth mentioning:

• The final version of this bill does NOT contain provisions relating to the Paycheck Fairness Act. That bill -- which was originally part of the House version -- did not make it into the Senate version. Thus, the Senate will take that measure up separately, perhaps later this year. 
• The bill is retroactive to May 28, 2007, but as the SCOTUS Blog is quick to remind us, it does not "revive" claims that have already been dismissed with a final judgment: 

The new law, because it would apply to cases still pending that were filed the day before the Court’s ruling, or thereafter, it has the specific effect of overturning the Ledbetter decision. It cannot alter any case that has been finally decided, however. Congress had the authority to overturn the Ledbetter ruling because that was based only on the Court’s reading of a statute, and not a constitutional provision.

• The bill's main purpose is to extend statute of limitations on compensation decisions. But the effect of the bill will be to allow for a potential look back on compensation decisions for several years -- and perhaps much, longer.

• Email This
• Print
• Comments
• Trackbacks

Another snow day.

The winter continues its white deliverance. But in the meantime, the employment law world never stops.  Here are some items to keep you up to speed on what's been happenning locally and nationally.

• The latest projections are that the Employee Free Choice Act will be brought up for debate in Congress sometime this summer. In the meantime, there's lots of analysis that is coming out in support of or against the bill  -- much of it filled with empty rhetoric. One of the more cogent ones, is a post by respected economist and federal appellate judge Richard Posner who has his doubts as to whether the bill will actually promote unionization.  (H/T California Labor & Employment Defense Blog).
• The Lilly Ledbetter Fair Pay Act is now due for signature by President Obama on January 29th.  
• It's Girl Scout Cookie season and, as the HR Capitalist now reminds us, this brings into focus non-solicitation policies that many companies have.  "I hate saying no to the sale of girl scout cookies, school sales, etc. I'm usually a "no-harm, no-foul" type of person, but every time I see one of these cases, it always perks up my sensitivity to solicitation in the workplace."  
• Word in this morning is that the E-Verify rules will now be delayed further to May 20th and will allow the Obama administration time to review the proposed rules.  
• Above the Law reports that the Government's job website was actually hacked over the weekend.  As if workers didn't have enough to worry about...
• Rush Nigut, who runs a terrific blog in Iowa, has a post about using Twitter in the workplace. If you don't know what Twitter is, now's the time to start.  
• John Phillips has a good article about why employees don't go to human resources. For HR professionals, it's worth reviewing because if you can get to the root of the problem, you have a better chance of solving it before it blows up into something larger.

And if the snow here gets you in the mood for a little Robert Frost, here's a link to his classic poem: Stopping by Woods on a Snowy Evening. 

• Email This
• Print
• Comments
• Trackbacks

A company called Avvo -- which is positioning itself as sort of the Web 2.0 version of Martindale-Hubbell -- has posted a list of the top 300 legal blogs.  The list is "objective" in that it ranks blogs in order of their web traffic (as summarized by another company, Alexa).

While the list will change over time, I believe it is yet another tool that readers can use to find relevant materials for their companies or law firms. 

Of course, a caveat is certainly due: blogs that receive the most traffic aren't necessarily the "best" or most relevant to what a specific reader needs.  But rankings like this can give a measure of the blog's overall relevance.

So, where does the Connecticut Employment Law Blog fall on the rankings? Pretty high up, actually  -- Number 31. But even more gratifying is the fact that this blog is the highest ranked labor/employment law blog out there. Not bad for a venture started a little over a year ago.

This is one ranking though, that I owe to you, the reader. Your continued input via comments and e-mails is very helpful in ensuring this remains topical and relevant.  So thank you for your continued readership and support. 

• Email This
• Print
• Comments (2)
• Trackbacks

With a new administration now firmly in place, the President has wasted no time in appointing new chairs of the National Labor Relations Board and the Equal Employment Opportunity Commission. 

The EEOC has the details on the first appointment of Stuart Ishimaru as Acting Chair:

The U.S. Equal Employment Opportunity Commission (EEOC) today announced that President Barack Obama has appointed Stuart J. Ishimaru as Acting Chairman of the EEOC and Christine M. Griffin as Acting Vice Chair.

Ishimaru, whose term expires on July 1, 2012, has been a Commissioner since November 2003. He was confirmed by the U.S. Senate for a second term at the EEOC in December 2007. During his tenure, Ishimaru has primarily focused on large, systemic cases and in reinvigorating the agency’s work on race discrimination issues. He also played an instrumental role in the EEOC’s adoption of groundbreaking guidance on gender discrimination against workers with caregiving responsibilities.

The President has also tapped Wilma Liebman as the new Chairman of the NLRB. Details can be found in the NLRB's press release here.   Several blogs are suggesting that Ms. Liebman's appointment will signal a shift towards union-friendly decisions.  As one blog recently said:

President Obama has designated Wilma B. Liebman as the Chairman of the National Labor Relations Board (NLRB). As an ardent supporter of unions and a vocal critic of right to work laws and recent NLRB decisions promoting an employee’s ability to reject unionization, Liebman will surely take the NLRB in a new direction – and one that is not necessarily favorable to employers.

First appointed by former President Clinton, Liebman has served on the Board since November 14, 1997. Prior to joining the NLRB, Liebman worked at the Federal Mediation and Conciliation Service as Special Assistant to the Director and then as Deputy Director. In addition, Liebman has worked as a lawyer for the NLRB, the International Brotherhood of Teamsters, and the International Union of Bricklayers and Allied Craftsman. She is also an elected member of the Executive Board of the Industrial Relations Research Association and of the College of Labor and Employment Lawyers, Inc. ....

It is evident by this passage that Liebman views with disdain the “political influence” of the business community. As Chairman of the NLRB, it can be reasonably expected that she will direct the Board’s energies to enforcing labor laws, promoting collective bargaining, and issuing rulings that effectively overturn a number of Bush-era NLRB rulings that organized labor and some Democratic Senators are determined to reverse. Moreover, if the Employee Free Choice Act (EFCA) is ever enacted, the NLRB will have the regulatory opportunity to shape how the new law will operate in practice in a way that is favorable to organized labor. As a proponent of unions, Liebman will surely do just that if given the opportunity.

• Email This
• Print
• Comments
• Trackbacks

Last year, Connecticut football fans were in nirvana. Giants versus Patriots. In a state where loyalties are divided among those two teams, you couldn't ask for a better match-up.

This year? Well, let's just say that many people will need to find some alternative reason to get excited about the matchup.

Which is where office pools come in. 

At many employers, either formally or informally, employees can contribute a small sum (a few bucks up or perhaps $20) to get a box on a 10x10 grid, which corresponds with the last digit of the football score for each team (0-9). Get a box that matches the score at the end of a quarter or game, and you might will a few hundred bucks. 

(And office pool "experts" will tell you that numbers like 0, 3 and 7 are decent draws, while 2, 5 and 9 are remote possibilities). 

But for employers, this raises an interesting question -- are office pools legal?

Well, last year, Connecticut Attorney General Richard Blumenthal chimed in near game time to say, in essence, yes office pools are legal, so long as the "house" (or the employer sponsoring it) doesn't take a portion of the money.  An article in the Norwich Bulletin, quotes Blumenthal as saying: “Office pools are generally legal unless they’re done for a profit by the person organizing it.  In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

The actual law is a bit hazier as I explained in a fairly detailed post last year (available here). But since it is pretty clear that the state's top enforcement official has no interest in prosecuting office pools, there doesn't seem to be much harm in jumping in.

Just hope you don't get the dreaded 5-5 combination. 

• Email This
• Print
• Comments
• Trackbacks

On the day before the inauguration of the first African-American President, it seems particularly appropriate this year to recognize the accomplishments of Dr. Martin Luther King, Jr.

Last year, I discussed whether employers in the state gave employees the day off and the celebrations that surround the day.  You can read about it here. 

John Phillips has some particularly appropriate words on what would have been Dr. King's 80th Birthday.   And the Wage Law blog recaps the tragic end to Dr. King's life in Memphis. 

• Email This
• Print
• Comments
• Trackbacks

The Connecticut Department of Labor late today posted brand-new guidance (available here) comparing the new federal FMLA regulations with the existing Connecticut regulations.   For employers struggling to adopt the new FMLA regulations with Connecticut's FMLA rules, this document is a must-read because there are some very real and significant differences now that will arise --- at least until those differences are handled via statutory and regulatory amendments.   

A little background first: the 30 page document is the work of Attorneys Heidi Lane and Jennifer Devine in the Office of Program Policy who enforce the CFMLA on a daily basis.  The document, as noted in the cover, is an attempt to provide Connecticut employers with as much information as possible to modify their policies.

But as the cover also explains, there is likely to be a formal rule-making change (with appropriate notice period) this year to address some of the differences that are now arising between federal and Connecticut regulations.  The Department will also be holding a seminar on the interplay between federal and Connecticut regulations on February 26, 2009 for a nominal fee of $25.

Overall, the document notes that some changes can be adopted immediately because they conform to the "practice" of the Department of Labor or are a "reasonable interpretation". Other provisions cannot, particularly because Connecticut's FMLA statute and regulations are just different. A rule of thumb is that where the state regulations are more favorable to the employee, those state provisions will be followed. 

Because of that "rule of thumb", employers now need to be very cautious in adopting the new federal regulations. Indeed, all of the regulatory changes that were favorable to employees (or at least neutral) will be followed by the CTDOL, but all of the federal FMLA changes that were favorable to employers will not.  [This is not the Department's fault, per se, but rather the way Connecticut's statute has been written.] So, that change to the "perfect attendance" bonus rule under federal law? Out. That provision allowing employers five business days to give notice to affected employees, instead of two? Gone as well.

So what are some of the highlights?

• The CTDOL will allow for the adoption of the new FMLA notice, designation and certification forms (available here) with certain very notable exceptions. In particular, forms WH-381 (Eligibility Notice) and WH-382 (Designation notice) will need to be provided to employees within TWO business days, not the five allowed under the new federal regulations. Expect a change to the state regulations to make it consistent with federal law, but until that happens, Connecticut employers still need to follow the 2 day limitation.
  
  In addition, "key employee" and "fitness for duty" provisions differ from the new FMLA regulations. Employers should review the specific regulations and consider eliminating some of the language on the forms to conform with Connecticut law.
   
• The new federal regulations also dictate that employees must provide notice of their absences consistent with their employer's policy. However, the CT DOL indicates that Connecticut law is not as strict and merely requires"timely verbal or other notice". Thus, until this regulation is amended, Connecticut employers applying CTFMLA will need to show more flexibility.
   
• As for the certification forms (WH-380E and WH-380F), those can be used with one notable exception. The new forms have a section where the doctor is to indicate a "diagnosis"; the CT DOL states that an employer may not request a diagnosis under CTFMLA. A formal change to Connecticut regulations will be needed to adopt this particular change. These forms must also be given to employees within TWO business days, not five as allowed under FMLA.
   
• Overall, the CTDOL adopts the changes to the definitions of "serious health condition" that dictate that employees visit doctors within certain specified periods of time.
   
• While the new FMLA regulations allow for the denial of a "perfect attendance" bonus/award to employees who take FMLA, Connecticut regulations do not allow this. Thus, until the regulations are amended in Connecticut, employers in CT cannot deny perfect attendance awards to employees who take CTFMLA leave.
   
• The federal FMLA regulations permit an employer to contact the employee's health care provider in limited circumstances, but the Connecticut rules do not. This distinction will remain.
   
• For "fitness for duty" requests, the CTDOL notes that employees need only provide a "simple statement of an employee's ability to return to work". While the federal regulations allow for a more detailed certification, the CTDOL has indicated that it cannot follow this provision.

The document is a vital piece of information for employers' compliance efforts and I applaud the department's efforts in providing employers this information in a fairly short period of time.

But it now highlights the fact that the legislature and CTDOL should act quickly to eliminate some of the awkward differences that will now arise between federal and state FMLA.

For employers, continue to seek appropriate legal counsel on implementing the federal regulations but make sure that any analysis includes application of Connecticut regulations where appropriate.

• Email This
• Print
• Comments
• Trackbacks

 With another holiday weekend approaching, there's time enough this morning for a few quick stories about a wide range of employment issues with relevance to employers in Connecticut.  As I look out from my office (and wondering where the snow is in Hartford), here are a few stories to ponder:

• The Connecticut General Assembly is just beginning its 2009.  Inside the Capitol, a blog run by the Connecticut Business and Industry Association, has started posting updates relating to new labor bills being introduced.  The first is entitled Workers’ Compensation and Rehabilitative Therapy For Individuals Who Have Witnessed a Colleague’s Death.  Suffice to say, the CBIA doesn't think much of the bill.  
   
• Back in Washington, DC, new employment law bills continue to be introduced. The Washington DC Employment Law Update has word of a new bill which would increase penalties to up to $50,000 per offense for employers who hire undocumented workers.  This bill seems unlikely to be on the administration's agenda in the near term, but it's worth tracking. 
   
• A blog I've followed for a while, the Evil HR Lady, had an interesting post this week about "super secret HR stuff" that she shared.  You'll be happy to learn, however, that there really isn't much super secret stuff out there.  But she also provides some helpful information about when an HR manager should act to save the company money in both the short and long term.  
   
• The Wait a Second blog (which reports on matters relevant to the Second Circuit Court of Appeals -- in which Connecticut is located) reports on a thorny case trying to determine what is protected free speech for employees and whether the filing of a retaliation claim can give rise to a free speech claim.  Although the specific case is out of federal court in New York, it touches on issues and cases directly relevant to Connecticut issues.  
   
• Never one to hide her true feelings, Connecticut Law Tribune columnist (and attorney) Karen Lee Torre suggests in a column this week that Lilly Ledbetter -- of recent U.S. Supreme Court fame -- is no victim.  Considering that Torre has represented plaintiffs in employment law cases for a living, her dismissal of Ledbetter is striking. It's well worth reading to understand that the Ledbetter case was more about statute of limitations, and less about sex discrimination.  Meanwhile, the bill is expected to be debated in the U.S. Senate today.
   
• Particularly for employment lawyers out there, the Workplace Prof reports on a recent NLRB decision that held that an attorney's question to an employees about their union activities, including whether they voted for the union, constituted an unfair labor practice. 
   
• Finally, with all of the focus on the new FMLA regulations, employers shouldn't forget about the new ADA amendments as well.The Delaware Employment Law Blog recently highlighted a resources that I've suggested for years, from the Job Accommodation Network (JAN) JAN has now updated its site with additional resources in compliance with the new law. 

For those who don't know about JAN, Molly DiBianca fills you in: 

All wise employers know about the power of JAN.  JAN is a treasure trove of accommodation-related information. If you have questions about what options there are for accommodating just about any disability, JAN is the place to look. And JAN provides not only the answer but actually gives you direct resources for purchasing the necessary goods and services.

 

• Email This
• Print
• Comments
• Trackbacks

UPDATED 1/16/09

We had a great turnout today for our breakfast roundtable on the new FMLA regulations. I want to particularly thank several blog readers for coming. 

But in case you missed it, you're not out of luck.  Here's some of what we discussed and what you need to know for Friday - the date the new FMLA regulations become effective. 

• Connecticut rules still apply - Connecticut has its own FMLA law and that hasn't changed with the new federal FMLA regulations. Thus, at least in the short term, it's going to be a bit of a mess to determine which regulations should apply. A rule of thumb is that where the state law or regulation provides more protection to the employee than federal law, state laws are going to apply.  You can find the CTFMLA regulations here, and a comparison of the CTFMLA regulations with the old federal regulations here for a bit of guidance. I'll try to tackle the intersection between the Connecticut regulations and federal regulations further in an upcoming post. [UPDATE: The CTDOL released guidance on January 15, 2009 comparing the two; I have summarized it in a post here.]
   
• The new regulations haven't changed the underlying statute - Despite all the fuss over the new regulations, the underlying FMLA statute hasn't changed (save for some new servicemember and exigency leave provisions). Thus, if you are an employer that wasn't covered under the FMLA before, you're not going to be covered now.  The DOL has a website devoted to answering these types of questions available here.
   
• Don't forget the DOL's website as a resource - I'll let you in on a little secret that we talked about at the presentation; when lawyers have questions, they often go to look at the same resources that are the public has access to as well. Sometimes, we just know where to look. Well, now you can too. 
  
  The DOL has a website devoted just to the new FMLA regulations. What's on there? Lots, including:
  • The full text of the Final Regulations 
  • A Fact Sheet on the Final Regulations 
  • A Fact Sheet that just discusses the non-military (or regular FMLA) regulations
  • A Fact Sheet that just discusses the military regulations
  • A Revised FMLA Poster that employers should use in handbooks, intranets or bulletin boards
  • Even more importantly, the DOL site as the new and revised forms that need to now be used including:
    • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
    • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
    • WH-381 Notice of Eligibility and Rights & Responsibilities
    • WH-382 Designation Notice
    • WH-384 Certification of Qualifying Exigency For Military Family Leave
    • WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave
  • The most helpful feature may seem the least obvious, a list of FAQs (or Frequently Asked Questions) for both the Military regulations and the Non-Military regulations

• Start using the new forms, certifications and postings on Friday - To simplify (and perhaps oversimplify so look at the new regulations for more details), there are new rules on when notices should be given and what they should contain. Here are some highlights:
  • Form WH-381 must be given to employees within 5 business days of the leave request.
  • If the employer will require the employee to certify the leave, the appropriate certification form (either WH-380-E, 380-F, 384, 385), should be given to the employee (along with the notice form) also within 5 business days of the leave request.
  • Once a designation has been made, there is a new designation notice (WH-382) that also must be provided; this must be done within 5 days of the designation determination. A new form should be provided if the designation changes over time. 
  • Lastly, to the extent that you are not providing each employee with a copy of their rights individually, the employer should also use the new FMLA poster available here. 

• Update your FMLA policies - To the extent that you have a policy on FMLA, the policy should be revised to at least include the information in the notice above. 
   
• Don't overlook the new military leave regulations - Although the statute regarding new military leave has been in place for a while, the regulations implementing and interpreting the statute are new.  If you have employees who have family members who are injured servicemembers, or if you have employees who have been called to active duty, you need to familiarize yourself with these rules.  The rules allow for broader leave that employers may be accustomed to.

Finally, if you need more information about the FMLA, you can check out my previous posts on the subject here.

• Email This
• Print
• Comments
• Trackbacks (1)

Suppose you, as a hiring manager, have a discussion with one of your current employees about a job opening within the company at another location. In the course of that discussion, you indicate that you would expect that employee to work in that position for two years before moving on to other possible opportunities. 

After that conversation, you put down the terms of the offer in writing that says nothing about a two-year position, but rather discuss an annual salary etc. In addition, you have an employee handbook states that all employees are employees-at-will, except if there is an an agreement for a specified period of time by the CEO or hiring manager to the employee.

The question that then arises is: Does that conversation create a contract for employment for a two year period?

A recent unpublished Connecticut Superior Court decision suggests no and dismissed the claim at the summary judgment stage.

In Urgo v. Bassett Furniture Direct-NE, LLC, 2008 WL 5255663 (Nov. 25, 2008) (also available at Conn. Bar Association site here), the Court (Judge Edward Domnarski, presiding) held that, in the circumstances, the conversation did not create an actual contract.

The conversation between the parties regarding the length of time that the plaintiff would be expected to manage the store did not create an actual contract commitment for a period of employment. The plaintiff had been employed by the defendant for several years and she had employed at various locations within the defendant's organization. Considering the conversation in the context of the surrounding circumstances, the plaintiff was attempting to establish how long she would be expected to stay in [the new location] before moving on to other opportunities. The defendant agreed to pay a housing allowance to the plaintiff on a monthly basis. The plaintiff had to sign a one-year lease which she claims is evidence of a one-year contract of employment. The court cannot conclude that his third-party agreement translates into a contractual commitment from the defendant. It is significant that the plaintiff's testimony indicates that she knew that there were no guarantees regarding the length of her employment. ....

...Although the plaintiff and...the CEO of the defendant, did communicate regarding the plaintiff's employment those communications do not establish an intention by the defendant to alter her "at will" status. The plaintiff has not satisfied her burden of presenting evidence that the defendant had agreed to some form of contract commitment and that there was a meeting of the minds between the parties.

For employers, this case emphasizes two important points:

• Employee handbooks (and disclaimers present in them) provide valuable and supportive evidence to courts about the scope of an employment relationship. Even better, having each individual employee sign off on receipt of the handbook or policies provides yet further evidence.
• Put offers in writing; the clearest way to avoid oral contracts from being created is to make sure that an offer in writing supersedes any prior contracts.  For more on offer letters, you can find more earlier detailed post here.

 

• Email This
• Print
• Comments
• Trackbacks (1)

This is shaping up to be an interesting year for the Connecticut General Assembly.  The budget forecasts are projecting massive deficits.  As a result, I would not be surprised to see the budget debates dominating the agenda of the Connecticut legislature.

Nevertheless, other bills will still be proposed, debated, and certainly  passed during the several months that the Connecticut legislature is in session.  Advocates for a transgender anti-discrimination bill believe this is finally the year for passage of such a bill. 

According to this morning's Courant:

Transgender activists believe this is the year they will gain equal protection under the state's anti-discrimination laws.

"We feel good," said Jerimarie Liesegang, who leads the Connecticut TransAdvocacy Coalition. "We've done the groundwork, we've done the education and we know we have the votes."

A proposal, to be introduced in the legislative session that begins Wednesday, would prevent people who in any way blur gender lines from being discriminated against in the workplace or while seeking housing or obtaining credit. More than a dozen states, including California, Illinois, Maine, Massachusetts, Oregon and Rhode Island, have enacted similar laws.

Bills that bar discrimination based on gender identity or expression have come up several times over the past few years, but failed to win passage. In 2007, both the judiciary committee and the Senate approved such a bill, but it died in the House of Representatives.
 

I've previously discussed this proposal in various posts here.  Although same-sex marriages were legalized last year by the Connecticut Supreme Court, the legislature didn't pass the concept earlier.  Thus, I think the transgender/gender identity bill still faces some more hurdles because the concept remains foreign to many people.  (You can educate yourself with some useful materials from the Connecticut TransAdvocacy Coalition) Some raise issues of who gets to use the restroom in the workplace (and when), but these probably can be worked out if people spent some time addressing it.

Because the bill died in the House of Representative last year and with the legislative facing huge issues of how to fix the budget, I have a tough time believing that legislative leaders will want to use political capital pushing this bill, no matter how noble they believe the cause is.  The votes may be there, but the energy may not.

For employers in Connecticut that have an gender identity-related issue arise in their employment, seek some legal counsel. Just because it may not be illegal to discriminate, doesn't mean the employer can't work out a sensible solution to some issues (or that other legal issues may not be implicated).  Indeed, some employers in Connecticut have their own anti-discrimination pledges that cover gender identity as a protected class. 

• Email This
• Print
• Comments
• Trackbacks

Yesterday, I started recapping some stories from 2008 that never quite made it into full-fledged blog posts, but were worth a look at.

Before we move on to new subjects for the new year, I'll recap a few more stories that are worth taking a look at that you might have missed. 

• Perhaps it's a bit of a sad commentary on today's workplace when an employer gets favorable press for doing something that should be natural, but Walgreen's is getting kudos for building a distribution center in Windsor Connecticut that will allocate one-third of its jobs to people with cognitive and physical disabilities.  Here's some press it received for a similar plant in South Carolina.
   
• With all the press that the new ADA Amendments Act has received, you might have missed the new regulations on religious discrimination issued by the EEOC in late summer.  The Delaware Employment Law Post has a link  and notes that the guidance contains some best practices for employers. It'll be interesting to see whether the new administration will reverse or modify some of these regulations in the upcoming year.
   
• Protecting confidential health information is yet another requirement for human resources professionals to follow. The Effortless HR blog had this post reminding everyone of the importance of doing so with some suggestions on how to get into compliance.  
   
• Considering adopting a blogging policy? This post, by the Golden Practices blog, captures some of the issues that a company can consider when drafting one. 
   
• Do you understand FLSA's Tip Credit and Tip Pooling Rules? They are admittedly complicated. My former colleague, Richard Tuschman, does a good job explaining them in his Florida Employment Law Blog. 
   
• With the new session of the Connecticut General Assembly scheduled to start later this month, you can catch up on the legislative developments from 2008 with summaries from various agencies.  A listing of each summary is available here.
   
• When conducting reductions in force, employers may decide to include severance agreements.  Jon Hyman reminds us of the importance of defining the proper "decisional unit" to comply with OWBPA.  And strict compliance with the OWBPA is required by many courts nowadays.
   
• For HR professionals, should you adopt a "no jerks" rule? Or is it a fatal mistake? This article from earlier this year suggests keeping an open mind to hiring.  (Of course, from an employment lawyer's perspective, it is these "jerks" that sometimes lead to lawsuits...)
   
• Workplace investigations continue to receive lots of play among blogs and newspapers. Who should be conducting these investigations is the subject of this interesting article by Shaw Valenza.   
   
• Earlier this year, the ABA put out its annual list of 60 websites that lawyers and those interested in law-related items should look at. It's definitely worth a look at to make sure you are up-to-date on all the useful tools out there. 

And there you have it.  Now, on to 2009. 

• Email This
• Print
• Comments
• Trackbacks

Over the holiday break, I took a look at various stories that I had "starred" in Google Reader for later reading and followup in the blog. (You ARE using a RSS Feed Reader to subscribe to this blog, right?)

The list is long. But part of starting a new year for me is doing a bit of clean up and that means starting the new year off fresh.

But before I do so, I'm going to spend a post or two recapping some of the employment law stories that never quite made it into the blog for one reason or another.

• With the recession firmly in place, it should not be a surprise that the Connecticut Department of Labor has been swamped with calls recently.   In fact, the jobless rate soared to 6.6 percent in November.  A number of people evidently looked for information from the DOL's website, which would be great, except that the website crashed a few times in December due to high traffic.  
• BusinessWeek recently had an interesting article about how some small employers are finding creative solutions to keeping workers to prepare for the next upturn.  A classic story about making lemonade from lemons.  
• World of Work blogged in December about the the deadlock that occurred at the EEOC about implementing new regulations interpreting the ADA Amendments Act. The result: No new regulations interpreting the act, until that stalemate can be broken.  
• I continue to be fascinated by the employment contracts and other agreements that are highlighted by the Footnoted blog.  Michelle Leder and her team dig up interesting filings with the SEC.  For HR professionals, though, these contracts can be a great source of ideas and a good template for other agreements.  Here's one such post by Footnoted.  
• It may be a little late for most (though some firms insist on having holiday parties after the winter break), but this little article lists the top 10 ways to turn your holiday party into a lawsuit.  
• Remember the big sexual harassment verdict against the lawfirm of Baker & McKenzie in 1994? Ok, me neither, but do you ever wonder what happens to some of the attorneys afterwards? In this case, the attorney for the employee has had bar charges filed against him with one judge stating, "I have never, ever seen an attorney more rude and disrespectful on so many levels." (H/T Overlawyered)  
• The Delaware Employment Law Blog recently compiled a list of the top 100 blogs on leadership and management. Great resources for companies from some of the best bloggers around.  
• As I often mention, when lawsuits by former employees get filed, they often get lots of press. But what happens to the lawsuit?  In some cases, the employees lose, such as this case against Timex (subscription may be required).   
• Looking for yet another summary of the new FMLA regulations? I enjoyed this post from the Employer Law Report. 
• Remember the big fuss about the new deferred compensation rules under Section 409A? This post has a good reminder about what employers should be doing about it. 
• I had meant to do a post on workplace investigations, based on this post from HR Daily Advisor, but never got around to it. It has some interesting Q and A including can an employee "plead the fifth" during a workplace investigation.  

Hope you can find a nugget of interest in one of the above links.  

 

• Email This
• Print
• Comments
• Trackbacks (1)

I don't think it's going out on a limb to suggest that 2009 brings about some of the broadest changes to employment laws in the United States this decade.  Some changes are already known, while others are forecasted to occur.  

Michael Moore, over at the Pennsylvania Labor & Employment Blog, has an excellent post from earlier this week, that details five items that should be added to an HR professional's "To Do" list for the first quarter of 2009.  

• ADA Amendments Act Compliance (effective 1/1/2009);
   
• E-Verify Registration and Immigration Compliance (effective 1/15/2009);
   
• FMLA Regulations Implementation (effective 1/16/2009) which require action by employers in the following areas:
  • Reviewing the regulatory changes and integrate them into your compliance program.
  • Using the new forms and poster.
  • Revising Employee Handbook provisions;
     
• EFCA and RESPECT Act Planning; and 
   
• Wage & Hour Self-Audit: As evidenced by Wal-Marts recent record settlement, wage and hour lawsuits will play prominently in 2009. A self-audit of compliance practices can mitigate these claims.

This list strikes me as a good place to start for many employers.  There's going to be plenty of changes on the way but making sure that your FMLA and ADA policies and procedures are in compliance with the new laws and regulations should be a priority for most companies.

I've covered these topics in more detail in various posts, so use the "search" function to the left to find the topic that best suits your needs. 

• Email This
• Print
• Comments
• Trackbacks (1)

Over the last month or so, I've noticed extraordinary interest among readers about the new FMLA regulations.  So much so, that I've decided to put on a breakfast roundtable in Bridgeport and Hartford, CT on the subject.

Assuming we don't get yet another snowstorm, like we're having today, we've scheduled it for January 14, 2009 at our offices in those locations and will have a video hookup between both.  It'll run from 8:30-10 a.m. and a light breakfast will be served.

If you're interested in attending (free of charge), just send an e-mail to event@pullcom.com using the link and you'll be good to go.  You can view full details here.  Space is limited so be sure to sign up soon.

• Email This
• Print
• Comments (1)
• Trackbacks (1)

As the year runs short (and the time for writing blog entries even shorter), now seems an appropriate time to wish all of you readers happy holidays and a healthy and prosperous new year. 

It's certainly been a memorable year for the blog (now over 300,000 visits!) and with all the personal and professional changes here, it's been a memorable year for me as well.

I want to thank you all for your continued readership, feedback and support. 

The blog is going to be a bit sporadic until January 5th as I take some time off.  There may be a post from time to time, but count on the blog returning to near-daily posts again in two weeks.

Until then, enjoy the holidays.

• Email This
• Print
• Comments
• Trackbacks

File this under "mundane" but necessary. Two sets of new forms (and a poster) have been released by the U.S. Government for use by HR professionals and companies in two very different circumstances.

First, the Citizenship and Immigration Services (CIS) has issued a new rule with that revises Form I-9 and the list of documents that are acceptable to prove identity and employment authorization. (This form is needed when employers hire new employees.) Employers will be given a 45-day grace period to begin using the new form. Failing to do so may result in fines.(H/T Washington Employment Law Update)

The most noticeable change to the rules is that employers will no longer be able to accept expired documents as proof of citizenship. Some of the other changes are more technical, than substantive.  You can view all of the information regarding the form (as well as the form when it becomes available) at the CIS website here.

New rules regarding FMLA leave are going into effect next month. (H/T Ohio Employer's Law Blog.) In advance of those regulations, the DOL has issued new forms that can be used by employers. (Use of the forms is not mandatory, but strongly recommended as a way to comply with the rule is a ready fashion.) As noted by the Ohio blog: 

The Department provides optional forms for use by employers and employees during the FMLA process.  The Department has revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).  The Department has also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381).  In addition, the Department has added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

The new FMLA rule is effective January 16, 2009 so now's the time to start revising your policies and forms.  (I'll be giving a presentation next month on the subject as well; details to follow soon). 

• Email This
• Print
• Comments
• Trackbacks

Remember last year's mess on the roads? If you recall, lots of Hartford-area employers sent their employees home early during a snow storm -- creating gridlock and lots and lots of headaches. As a result, Gov. Rell set up a task force to coordinate with the largest area employees on their dismissal patterns. 

Tomorrow will be the first big test of that, with the forecast calling for heavy snow during the afternoon and evening commute.  

But suppose you're not one of those employers affected by the task force, what are some issues to think about (which follows up a post I did last year on the subject as well).  If you don't already have an inclement weather policy (or even if you do), you can ask yourself:

• Will employees be paid for the time when the business is closed?
• Will employees be paid if they don’t report to work due to inclement weather when the business is open?
• Can an employer discipline or discharge and employee for failing to report to work due to weather conditions when the business is open?

Quite simply, absent a declaration of a state of emergency, private employers are free to determine their own policies for handling snow storms (or another natural events.) 

Some employers may ask -- what should I do for our company? The answer is, of course, it depends. Some employers who need to maintain operations 24/7 (a hospital, hotel, etc) may want to designate certain employees as "essential". Others may decide that they can deal with telecommuting employees for a half-day.

But establishing a policy at the outset so employees know what to expect is essential to avoiding problems later on. Ultimately, setting reasonable expectations (asking employees to call in if late, and having them make up for lost time) may be all that is needed for some.

 

• Email This
• Print
• Comments
• Trackbacks

At a CBIA seminar yesterday where I spoke, several speakers discussed the challenges that exist for companies in these economic times. One CBIA economist projected that the current recession will not bottom out in Connecticut until late summer or fall 2009.

But the times also present opportunities, as well, the speakers said. Indeed, now may be the time for companies to find and recruit terrific talent that may be available in the labor market through no fault of their own.

Indeed, an article in today's BusinessWeek suggests that for small companies, now may be a great time to make such an investment.

Still, despite the overall gloomy forecasts, the downturn also presents hiring opportunities for small businesses. For starters, there is a huge wealth of talented applicants in search of work at the moment. "If you want to hire someone today, it is like buying a car or house," says [one economist]. "Employees are cheap, good, and readily available. Nobody is complaining about the quality of applicants. The choices you have now are much improved." ... "If you are a buyer of labor, this is a buyer's market."

The major job cuts at large corporations also translates into a boon for small business owners who have the resources to hire workers who were perhaps unattainable previously. In November, the Computing Technology Industry Assn., an information technology trade group based in Oakbrook Terrace, Ill., published a survey that showed that 85% of the 772 small- and medium-size businesses in the U.S., Canada, and Britain that it questioned planned to hire new employees within the next 12 months. And in a slight shift away from the deluge of dreary numbers, SurePayroll, the Glenview (Ill.) payroll administrator that tracks small-business hiring trends, reported in November that 214 small businesses that participated in its survey increased their hiring by 0.26% to 3.3%, year-to-date.

Of course, there is a word of caution as well.  If employers are laying off staff for "financial reasons" and then hiring new staff to fill those positions, it will have some explaining to do. On the other hand, if the company wants to shed some of its poorest performers (and tells them that their employment is terminated for performance-related reasons) and cherry-pick from the talent available, now may be a good time to do so.

• Email This
• Print
• Comments
• Trackbacks

One occasional feature of this blog is a short post on a law or regulation that is commonly overlooked.

Today's installment revolves around wage and hour claims in Connecticut.  Suppose that an employee claims that he is entitled to unpaid overtime wages for years because he has been misclassified as an exempt worker. 

How far back is the employee entitled to go for his claim for damages? Or, in other words, what is the statute of limitations on wage & hour claims in Connecticut?

A look at the wage statutes reveals nothing. How can that be? Because you have to go digging somewhere else entirely.   Conn. Gen. Stat. 52-596, entitled "Actions for payment of remuneration of employment" has the rule:

No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the Labor Commissioner of a complaint of failure to pay wages pursuant to the provisions of chapter 558.

In plain English, what does this mean?

Two things. First, claims must be brought within two years after the paydate in which the missing wages are allegedly due. Or, put another way, an employee who claims unpaid wages can only look back over a two-year period for recovery.  Second, the time period can be extended if the employee has filed a claim with the Department of Labor for failure to pay wages.

For employers, this statute should not be overlooked. It can help limit damages in cases of unpaid wages.  And when an employer discovers an issue of unpaid wages, it can determine its potential exposure to this issue by applying this statute of limitations.

 

• Email This
• Print
• Comments (1)
• Trackbacks

For anyone who watched 60 Minutes last night, you know that there is a great deal of pessimism out there about how quickly this recession will end.

Employers are struggling to control costs and keep layoffs to a minimum. A new, thoughful article by the Wharton school suggests that employers be innovative in their approaches to dealing with this economic crisis.

[Wharton Professor Peter] Cappelli suggests that it's worth thinking about what kind of problem a company is trying to solve. If there is a concern about what happens when business activity picks back up, for example, companies that hold on to their workers would be in much better shape than companies that have undergone large-scale layoffs.

The costs of layoffs go beyond the morale problems they cause -- both for those laid off and those who keep their jobs. Unemployment insurance premiums spike. Depending on the company, there are severance packages to consider and outplacement services (costly in these days of bigger demand for them). Litigation is a not insignificant risk. Cappelli suggests that if a company can cut back without instituting layoffs, it should do so. "Then you don't have those start-up costs" once things are back on track.

On the other hand, there's nothing like a good economic downturn to get rid of dead wood. A sagging economy can be an opportune time for management to deal with performance problems by using the bluntest instrument possible, Cappelli says. Firing people is often difficult to execute, but an over-arching justification tends to lessen complications.

The subject of alternatives to layoffs is almost always seen from the point of view of the employer, he adds. It would be a rare employee who suggests his or her hours be cut. But executives can share the decision by asking for voluntary pay cuts in exchange for some sort of deferred compensation, such as shares of stock or extra vacation.

In giving my presentation tomorrow on the subject of RIFs, the article's points are timely.  Layoffs are never easy and coming up with solutions to lessen the impact may make the company stronger in the long-term. 

Ultimately, if company does decide to conduct a round of layoffs, making sure that it has considered alternatives will only strengthen the company's rationale for the layoff (thereby preserving a valuable legal defense).

• Email This
• Print
• Comments
• Trackbacks

As is typical for December, everyone is starting to wrap up for year end and the amount of substantive items to report on slows to a trickle. Thus, it's time for some short items on a variety of employment law and HR-related topics.

• I've started microblogging at Twitter.  Don't know what Twitter is? There's a great post on Ten Tips for Beginners to get you started.  Better yet, use the Twitip.com blog, which has some very useful information in general.  Once you're there, you can follow me at www.twitter.com/ctemplawyer. 
  
  I use Twitter to forward links to additional articles related to employment law and that employers in Connecticut may find of interest.  There are some terrific feeds on HR-related topics as well. Just use the search function to find them.
   
• The CBIA has a program planned for December 16, 2008 on"Economy in Crisis: Managing Layoffs and Other Survival Strategies".  The four-hour program, will cover topics such as reductions in force, communicating decisions, and outplacement. I'll be speaking in the morning. There are still some spots available so be sure to sign up through the CBIA website. 
   
• The Pennsylvania Labor & Employment Blog has a noteworthy post about holiday parties that serves as a good compliment to my post of yesterday.  Some of the issues he suggests considering:
  • Circulate to employees a kindly worded reminder about drinking and driving and the consumption of alcohol by employees under the age of 21.
  • Consider engaging professional bartenders if they are not already part of your event.
  • Give bartenders rules on serving minors and intoxicated employees.
  • Avoid self-serve alcohol or long periods of "open bar."
     
• Jon Hyman, at the Ohio Employer's Law Blog, has the latest advertisement opposing the Employee Free Choice Act.  I'm not a fan of commercials on bills before Congress in general, but I have to admit this is fairly clever. 
   
• Kris Dunn, at HR Capitalist, has a very timely followup to a WSJ opinion piece that I previously blogged about. In that piece, the writer suggested eliminating performance reviews.  Dunn notes:

I feel the same now as I did then - while I agree the performance review is an imperfect tool, you're only credible in calling for its elimination if you're prepared to put your money and time where your mouth is and be involved in providing the training and CONTINUOUS feedback to managers on their coaching skills.

You don't have time? Guess what sparky? You're part of the problem, not the solution. Please fade to the background.

The alternative to the annual performance review is coaching daily, which is another word for feedback. The bad news is that we have a lot of managers nationally who aren't willing or capable of coaching.

Dunn's post is worth reading for his suggestions on how HR can help with the performance review process.

• Email This
• Print
• Comments
• Trackbacks

Although many holiday office parties have been toned down this year (or canceled) in light of the recession, there are certainly plenty of others moving forward. 

Last year, I did a series of posts on the subject from an employment law perspective.  In general, and besides the obvious sexual harassment issues that always seem to be a concern for employers, I highlighted some issues for employers to think about that I'll recap again here. (For more details, click here and here.)

• Be aware of potential claims arising from employees drinking at such parties and driving afterwards.   Although Connecticut has been skeptical of claims in the past, employers ought to be concerned about being liable to third persons based on the actions of an employee who gets drunk at the office holiday party. Putting reasonable limits on the amount of alcohol, or offering free taxi rides homes, is a way to reduce exposure.
• If alcohol is served, what type of alcohol will be served? Just beer and wine? Providing a cash bar can also reduce the incentive for employees to "load up" on free drinks and keep drinking to a moderate level.  Of course, you can also make it an alcohol-free event as well.
• Inviting spouses or guests can also encourage employees to be on their best behavior.
• Make sure employees understand that attendance at the event is voluntary and that attendance will not help a person's standing within the company.
• And always be sure followup on any complaints that may arise at or after the party. 

For human resource professionals, this time of year can be particularly challenging. But perhaps you can be glad that you don't have to deal with the same issues as those in Great Britain, as you may recall from a story from Great Britain from last year. 

• Email This
• Print
• Comments
• Trackbacks

Count me in the group that is both astonished and stunned by the corruption allegations made earlier today by the federal government against Illinois Governor Rod Blagojevich.  The blatant nature of the "pay to play" allegations is something rarely seen in politics. (Connecticut has obviously has its share of corruption cases.)  While the allegations involving the open Senate seat are juicy, there are allegations that the Illinois Governor was trying to put pressure on the Tribune Company to stop running editorials against him, in exchange for some help selling Wrigley Field. 

But when a high-profile politician or surrogate calls one of your employees, does your company have a plan or policy in place to address this? 

Here are some issues for employers to consider:

1) Develop a Code of Ethics: Once confined to the largest companies, more and more companies have developed a Code of Ethics for their employees to follow. For an excellent example how a local Connecticut company handles the matter, you can check out United Technologies' Code here.  It's written in plain English and spells out what it will and won't do (such as "offer or pay any bribe"). Even more importantly, it has designated individuals who can be contacted when such issues arise.

2) Designate and Train Individuals on How to Address Issues - It's great to have a policy but if it is poorly implemented, it won't be useful or effective. Find that core group of individuals with experience or expertise in this area and train them further on how to address issues such as bribery.

3) Communicate the Company's Policies and Repeat Them - Policies work best when they are communicated to the employee population through various sources. Policies that merely "sit on the shelf" will not be incorporated into the company culture. Emphasize the company's commitment to ethical behavior through e-mail, in-person meetings and newsletters. 

4) Enforce the Policies - Again, having a code of ethics that is routinely ignored will certainly not foster a culture of compliance. While each allegation of code violations should be treated differently, how the company reacts to the first few incidents will lay the groundwork for years to come.  It'll be interesting to see how the Tribune company addresses the allegations that they were contacted.

5) Get Legal Advice - This oft-repeated phrase is important because each company may have different issues that it is likely to face. And when the company is confronted with an issue (such as a bribe suggestion), getting legal advice on how best to contact authorities and how to handle the matter internally may help keep the company out of harm's way once an indictment comes down. 

And finally, I'll leave you with this thought: December 9, 2008 is International Anti-Corruption Day as designated by the United Nations.  Obviously, there's still a lot more work to be done in this area.  Considering steps like the above won't prevent corruption from happening, but it can help minimize damage to the company if and when it does. 

• Email This
• Print
• Comments
• Trackbacks

With all the talk about layoffs, separation agreements have moved front-and-center to the discussion on how companies can reduce their liability exposure.

But how much severance should a company offer to its employees when laying them off?

There is, of course, no set rule in Connecticut -- or the United States -- on how much severance is warranted under the circumstances. But one study released last week suggests some benchmarks.  (H/T to Pennsylvania Labor & Employment Blog and Compensation Force).

The survey, by Right Management, found that U.S. employees typically earn the following amounts of severance (which represents mean weeks of severance for each year of service)

Voluntarily Separated:

• Top Executives - 2.76
• Senior Executives - 2.23
• Department Heads/Managers - 1.55
• Professional/Technical - 1.39
• All other employees - 1.23

Involuntarily Separated:

• Top Executives - 3.04
• Senior Executives - 2.49
• Department Heads/Managers - 1.78
• Professional/Technical - 1.60
• All other employees - 1.44

In advising employers, several seem to have adopted the one week or two weeks per year of service formula.  But in doing so, the employers provide the severance only in exchange for a full release of claims by the departing employee. 

Just be sure that when setting up the release, that you comply with the various rules associated with such agreements, including the OWBPA.  

• Email This
• Print
• Comments (1)
• Trackbacks (2)

There's been some speculation this week that with the Republicans picking up an important 41st seat in the Senate in 2009 (thus having enough votes to filibuster theorhetically), the prospects for passage of the Employee Free Choice Act have gone down, at least in the short term.  I'd add to that notion that proponents will have a tough time passing a bill in this economic climate that its opponents will say will hurt U.S. jobs. 

Two other considerations: Today's unemployment numbers -- while not that unexpected if you've been reading the headlines -- still sound and look bad.  In additiion, there has been negative publicity for unions arising out of the U.S. car makers rescue plan (though an interesting counter to this is suggested by this article.) 

But employers are fooling themselves if they think that this bill (or some form of it) will disappear. It may end up being delayed, but it is certainly not dead. Indeed, it may be modified significantly, to make it more palatable to the Senate.

What this means for employers is that they may have some more time to prepare for EFCA's passage.  And employers who have not traditionally been targets of union organizing campaigns may find themselves unprepared.  Here are a few ideas to think about:

1.  Get HR Involved

• Bad economic times and uncertainty in the workplaces create situations that unions may seek to take advantage of.  Laying off staff -- particularly your front-line human resources employees -- may only make matters worse.  Thus, educating your HR staff now about the bill should be among the top priorities.  
• In doing so, review your current policies and practices to figure out where your vulnerabilities lay -- and your strengths as well.  Perhaps you have a weak anti-solicitiation provision or a policy that allow for unfettered e-mail distributions.  And perhaps, your company would welcome a union.  Either way, take a broad look at your situation to determine whether your company is positioned to handle a union organizing campaign. 

2. Emphasize Compliance and Fairness

• Make sure your HR staff AND your supervisors understand the importance of complying fully with applicable laws by treating employees fairly and in a non-discriminatory fashion.  Having prompt and effective communication is crucial in this process. In the absence of clear communications, employees will naturally insert rumor and speculation into it.   And don't forget to educate your supervisors about the do's and don'ts regarding unions.    Most importantly, make sure you aren't creating legal issues where they shouldn't exist; get outside counsel now to advise you on these types of issues and avoid potential pitfalls.

3. Develop a Strategy

• Once you've taken stock of your policies and procedures and worked with your HR staff to emphasize compliance, consider developing a business plan as to how you will respond to potential organizing campaign by the union.  Educating your employees about EFCA and the potential card check provision should obviously be part of that strategy.  And develop and use an open-door policy that gives employees a place to go to answer questions they might have (or even an internal webpage that might address FAQs). 
• Identify the people within the company who will be responsible for developing a quick-action response, if needed. Often times, employers learn about union organizing campaigns very late in the process.  Thus, develop a plan of action beforehand and work with outside counsel to be ready to go on a moment's notice one you learn of a campaign.

There are plenty of other sources on the topic this week, including the Labor and Employment Law Blog and EFCA Updates, (And for more on the provisions of EFCA itself, Walter Olson has added his thoughts).  Obviously, there is much more to this topic than can be summarized briefly in a post. But for employes who don't have unions, the time is now to start thinking about the effect that the bill's passage may have on their businesses. 

(H/T for some links, Ohio Employer's Law Blog)

• Email This
• Print
• Comments
• Trackbacks

UPDATED 12/3/08

During this decade, electronic discovery has moved from the fringes into the mainstream when litigating employment law claims. 

What does this mean? In many cases, employers must now run keyword searches and other types of searches on their computer systems to find information that might be relevant to the lawsuit at issue.

But what search terms do lawyers and other e-discovery practioners really look for?  An article in CIO.com, suggests a top 10 list according to an e-discovery provider.

Among the key search terms?

• "Delete this email immediately."
• "I really shouldn't put this in writing."
• "I don't want to discuss this in e-mail. Please give me a call."
• "Don't ask. You don't want to know."

In employment cases, there are obviously other terms or items that will likely be looked for depending on the type of case.  If it's a sexual harassment case that involves pornography, for example, you can be sure that various searches will be run on porn-related search terms.  (And a Newsweek article this week suggests that the search for porn will be pretty successful given the numbers of people viewing it at work...)

For employers, there are easy and no-so-easy solutions to these issues. Among the easier solutions, put up some basic internet filters so that porn sites cannot be accessed.  Among the harder solutions, come up with document retention policies that clean up e-mail on a regular basis and that following company policies is obviously key.

And remind people of a simple e-mail rule -- don't put something in an e-mail that you wouldn't want your mother to see on the front page of the New York Times six months later.

UPDATE: A keen reader highlighted for me the original source of some of the content I had attributed to a different blog in my original post.  I have updated the post to cite to this article as the proper source of the information rather than the blog, to give full credit to the original author.  

(H/T Overlawyered)

• Email This
• Print
• Comments
• Trackbacks (1)

Calculating mileage expenses is one of those small tasks within a company that sometimes takes up a disproportionate amount of time.  And just when you've started to remember the optional rate issued by the IRS, it changes it.

And so it has for 2009. Effective January 1, 2009, the standard mileage rate for use of a car for business miles driven will be adjusted to 55 cents per mile. The rate is slightly lower than the rate that was announced in mid-2008 in response to skyrocketing gas prices.

According to the IRS: 

The mileage rates for 2009 reflect generally higher transportation costs compared to a year ago, but the rates also factor in the recent reversal of rising gasoline prices. While gasoline is a significant factor in the mileage rate, other fixed and variable costs, such as depreciation, enter the calculation. The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile.

As a reminder, companies with personnel policies about their mileage reimbursement should consider updating their policies immediately  to reflect this change. In the future, employers can draft a policy that states that their standard mileage rate will be consistent with the IRS's rate without reference to a particular number.

(H/T: What's New)

• Email This
• Print
• Comments
• Trackbacks

One of the great pleasures of writing a blog is the opportunity to interact with other labor and employment lawyers from not only Connecticut, but across the country as well.  Over the Thanksgiving weekend, I had two articles written by and forwarded to me by Robert B. Fitzpatrick, a well-recognized employment lawyer from the Washington, D.C. area. 

I've been reading Robert's work for many years -- long before starting this blog -- including his papers on settlements (which I'll leave for another post on another day).

Robert doesn't need a big firm to back him up, either. He's got the real-world  experience, some of which is summarized here:  

Robert is the principal in the law firm of Robert B. Fitzpatrick, PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over thirty-five years and has been described by the National Law Journal as being among the top employment lawyers in the country and by Washingtonian Magazine as "tops in employment law" in the Washington, D.C. area. He was also included in the 2006 edition of The Best Lawyers in America.

Robert will be speaking at the ALI-ABA Course of Study this weekend in Washington, DC.  I enjoyed them so much that I asked for his permission to reprint them here because I believe that you will find it helpful too.

• The first article summarizes new federal labor and employment legislation, including the ADA Amendments Act of 2008; the Consumer Product Safety Improvement Act of 2008; the Emergency Economic Stabilization Act of 2008; the E-Verify Extension; the Fair Minimum Wage Act of 2007; and the Genetic Information Nondiscrimination Act (GINA). He also provides links to key sources on this (including this blog). 
• The second article discusses proposed federal employment and labor legislation, including the Arbitration Fairness Act of 2007, the Civil Rights Act of 2008, and the Employee Free Choice Act.

Both are excellent sources of information for the upcoming term and I thank Robert for sharing them.  Be sure to check out Robert's website as well which has a number of other helpful publications as well.

• Email This
• Print
• Comments
• Trackbacks

Continuing my series of posts on the new FMLA regulations (parts one and two can be found here), today I'll address a big chunk of what the new regulations cover - Military Family Leave.   

You may recall from a post earlier this year that Congress passed a new law that extended FMLA leave to military families in certain situations.  The new regulations (effective January 16, 2009) essentially implement the law in this area and give employers (and employees) some greater clarity about what is and is not allowed.

The Ohio Employer's Blog has done a good job already of summarizing the provisions here. Many of the provisions just expand upon the law in some more detail, but a few areas are worth noting:

• One provision of the new rule expands the normal 12 weeks of FMLA leave to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” that arises because the military member is on active duty or is called to active duty to support an military operation. 

So what is a "Qualifying Exigency"? The DOL defined this term to include the following 8 situations: (1) short-notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation, (7) post-deployment activities, and (8) additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status, provided the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

• Another provision of the statue allows for a Military Caregiver Leave where eligible employees who are family members of certain servicemembers will be able to take 26 weeks of protected leave in a "single 12-month period" to care for a servicemember with a serious illness or injury.

So what is a "single 12-month period"?  The new regulations state that a "single 12-month period" is a period that commences on the date an employee first takes leave to care for a covered servicemember with a serious injury or illness.

• Additionally, the scope of individuals who are eligible for this caregiver leave is expanded beyond the traditional FMLA leave rules.  The new regulations use a "next of kin" definition to permit covered servicemembers specifically to designate in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. If there isn't any designation made, a class of individuals may qualify for such leave. Employers and employees should read the regulations carefully on this issue to address a particular situation. 
   
• The new regulations follow a philosophy that the medical certifications necessary for this type of leave are different than those who are caring for family member with serious health conditions.  Thus, the new rule sets forth separate certification requirements for military caregiver leave. The DOL also created a new optional WH385 Form for use in obtaining medical certifications of Military Caregiver Leave.

Employers with employees who have family members serving in active duty should pay particular attention to these rules because they set up a different structure than is typically found with traditional FMLA leave.

Lastly, for employers in Connecticut, you should be aware that Connecticut's FMLA rules have not yet changed.  Thus, each rule acts as a "floor" to provide employees with the maximum leave available under either law.  Hopefully, the Connecticut DOL will come out with some guidance soon to help clarify the continuing differences between state and federal law.  (A prior analysis by the CT DOL comparing and contrasting the FMLA with CTFMLA is available here.)

• Email This
• Print
• Comments
• Trackbacks

UPDATED 12/8/08

I must confess that every once in a while there's an employment law issue that pops up that makes me scratch my head at first.  Today's issue is one of them and introduces the concept of a "pay period leap year".

Michael Moore, of the Pennsylvania Labor and Employment Blog, first posted about this today.  Moore notes that 2009 is one of those strange years with 27 bi-weekly paydays instead of 26.  The issue arises because bi-weekly pay programs pay employees in 14-day increments resulting in a 364 day annual pay cycle. And so, every five years or so, there is a calendar year with 27 pay periods instead of the typical 26.

Moore adds that this is mainly an issue for salaried employees and suggests two approaches:

The 27 pay periods for 2009 create a compensation issue for salaried employees. Bi-weekly pay is typically calculated by dividing annual salary by 26 and employees are accustomed to a payroll amount based on this division. Continuing this practice in 2009 will result in an "extra" paycheck in 2009, but the normal 26 pay periods will resume in 2010. Some commentators have characterized this as a "timing issue". It is not. There are never years with only 25 pay periods to offset the years with 27.

Employers approach this situation in two ways. Some employers adjust salaried employee bi-weekly compensation for the 27 pay period years by dividing the stated annual salary by 27 rather than 26 resulting in a lower pay for each pay period in the year. Salaried employees are paid the same gross salary in smaller increments. However, this approach can cause problems with automatic deductions. Other employers allow the extra pay check and inflated compensation, not wanting to mess with the largely automated payroll system. Both approaches will require employee communication and may be influenced by an employer's past practice. Legal issues can arise from reducing the bi-weekly salary amount.

Some employer may think about moving to a semi-monthly pay period.  This causes issues for hourly workers because it may change the calculations of weekly overtime. 

Before Connecticut employers start changing payroll periods, however, employers must be aware that Connecticut requires that employees be paid on a weekly basis (though employers can get a waiver and pay on a bi-weekly basis through submission of a form available here.) For employers seeking to pay employees on a semi-monthly basis, additional papers are required to be filed with the Connecticut Department of Labor; it is far from certain that such a request will be granted either absent strong circumstances.

So, give thanks to the notion that you have a few weeks to think about this issue and make sure you have a plan of action for 2009 if you pay your employees on a bi-weekly basis. 

UPDATE: One commenter noted that the issue will arise primarily for those employers with pay dates on a Thursday (with employers with a Friday paydate facing the issue in 2010). That is true, though there are some employers that will pay their employees the day before a holiday if it falls on a Friday.  In any event, each HR person should evaluate their calendar to determine what will be the specific impact will be on his or her employer.

• Email This
• Print
• Comments (3)
• Trackbacks

The Society for Human Resource Management (SHRM) has an article out today on their website (subscription may be required) about the effect that same-sex marriage laws and rulings are having on employers. The article compares California's Proposition 8 initiative with Connecticut's recent decision legalizing same-sex marriages. 

As you will see, the reporter was kind enough to talk with me about the issue. Although I discussed some of the similar themes I've raised before, the contrast with California is pretty striking. 

“Same-sex marriage in Connecticut is here and very likely is here to stay,” Daniel Schwartz, an attorney with Pullman and Comley in Hartford, Conn., told SHRM Online Nov. 18. ...

However, Schwartz also noted that since Connecticut already had a civil union law, “this isn’t going to change that much if employers have had employees who have entered into civil unions.” From a practical point of view, employers need to give employees wh