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

One of my new favorite "undiscovered gems" on the Internet, is Connecticut Judicial Branch Law Libraries' Newslog.  It is a site maintained by the librarians with daily entries to help people stay informed about "recent legal developments, legal practice tools, and law library resources". It's another example of how librarians are adapting to new technology and providing a helpful resource. 

And best of all, they have added RSS feeds to allow readers to "subscribe" to it.  (If you don't know what a "feed" is, see my easy-to-read post on the subject here.)

One of the entries that caught my eye recently was a research memo prepared by the Office of Legislative Research that discussed what the Connecticut laws are regarding employers who hire illegal immigrants.  The issue arises out of a law that Arizona passed last year that provides for extreme penalties to employers who hire illegal immigrants. 

So what does Connecticut say on the subject? Well, the memo points to Conn. Gen. Stat. 31-51k, which has been on the books for 35 years, as the applicable law:

Since 1972, Connecticut law has penalized employers who knowingly employ aliens not entitled to lawful residence. A first offense is punishable by a fine of $ 200 to $ 500. Any subsequent offense is a class A misdemeanor, punishable by a fine of $ 2,000, imprisonment for up to one year, or both.

But not so fast. 

As the OLR memo goes on to state, that law is likely preempted by the 1986 Federal Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” 8 U.S.C. 1324a(h)(2).  Thus, even with a Connecticut law on the books, it probably has no real effect anymore because of the federal law "preempting" it. (Why have the state law then still on the books? That's a good question for another day.)

The memo concludes by stating that the Arizona law is different because that state statute deals with a business license, which is exempted from preemption. 

With no action on any immigration-related bills in Connecticut this session, Connecticut employers should continue to educate themselves on the requirements of IRCA in dealing with illegal aliens. The Department of Labor's website is a good place to start and there are additional materials located here. But the enforcement of laws relating to the hiring of illegal aliens has also been picked up by the Department of Homeland Security and even Connecticut has its own Alien Labor Certification Unit. It is an area filled with risk and employers should continue to tread carefully.

Lastly, on a lighter note, what post on alien workers, would be complete without a link to the classic Genesis song "Illegal Alien". So, on this Friday, a link to the deliciously tacky video is below:

 

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This week, the U.S. Department of Labor updated their website and provided some new online tools to help employers figure out which recordkeeping, reporting and notice requirements apply to them. 

According to the DOL:

The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a FirstStep suite of advisors that also includes the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

"These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them," said Secretary of Labor Elaine L. Chao.

However, employers in Connecticut using these tools should be cautious.  There are additional requirements that employers in Connecticut that may apply and some are stricter than the federal rules.

Because of this, employers should use the department's online tools as a resources, but should followup with an attorney or the Connecticut Department of Labor about additional requirements that may apply.

(H/T Delaware Employment Law Blog)

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I realize this blog has been a little top heavy of late with legislative developments, but it always seems that a whole year's worth of developments occur within a 2-3 week period at the end of the short General Assembly session. With this year's session scheduled to close at the end of the day on Wednesday, the developments are fast and furious. The court updates will return in force soon.

In the meantime, here's the brief recap of some of the developments from the last day or two (more to follow if and when necessary):

15-Year-Old Workers

The House late today passed a bill today that reinstates the labor law permitting 15-year-olds to work in grocery stores and similar positions. I expect the Governor to sign it shortly.  I've covered the bill in detail, most recently yesterday.  The bill, S.B. 216, can be downloaded here.  It will become effective immediately upon signature by Gov. Rell.  It amends Conn. Gen. Stat. Sec. 31-23. 

Jury Duty

The provision on jury duty were amended in a few subtle ways through a bill passed by the House on Monday and expected to be signed by the Governor.

First, House Bill 5918 (download text here) allows persons who have served on jury duty in the last three years to request the opportunity to serve again even though they would otherwise be excused.  (It amends Conn. Gen. Stat. 51-217a(a) in doing so.) 

Second, the bill also provides additional protection to workers on jury duty.  Specifically, it makes it clear that "any juror-employee who has served eight hours of jury duty in any one day shall be deemed to have worked a legal day's work as that term is used in section 31-21...and an employer shall not require the juror employee to work in excess of eight hours." 

What does this mean? In practical terms, it means that jurors cannot be required to work while they are also serving full days on jury duty.  Employees can, it appears, voluntarily work -- after hours, for example -- since the language prohibits requiring the employee to do so.  Because Connecticut does not have a daily overtime rule, the employee may not even be entitled to overtime for simply working in addition to jury duty.

This jury duty law will go into effect on October 1, 2008, assuming Gov. Rell signs the bill.

Child Performer Protection

The House has yet to address House Bill 5677, which would institute a whole new range of protections for children who act (or "perform").  You can download the bill here, but the lack of action on the bill so far indicates that time may run out on this provision. 

Whistleblower Protection

S.B. 335, which expands the protection of state whistleblowers has yet to be considered by the House. I looked at Senate Bill 335 in an earlier post. 

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Amid all of the buzz regarding the union representation campaigns at Foxwoods, one argument keeps being floated about: tribal sovereignty.

A new article by Thomas Meiklejohn -- one of the attorneys representing the UAW in its battle to represent workers at Foxwoods -- in Spring edition of the Labor & Employment Law Quarterly (not online) of the Connecticut Bar Association, sheds some additional light on the subject.

As Meiklejohn acknowledges, "federal law does recognize the sovereign right of a Native American tribe to govern itself with respect to its internal affairs".  Thus, he argues, the question that must be asked is: When can employment laws be enforced against an employer on a tribal reservation?

Meiklejohn suggests three factors ought to be considered:

1. The Nature of the Employing Entity: Is the employer a branch of tribal government, a commercial enterprise owned by a tribe or a privately owned business operating on a tribal reservation?
2. Who is Bringing the Action: Is it a federal government agency exercising its authority or a suit by a private party?
3. The Source of the Legal Claim: Does this dispute involve federal or state law claims?

Meiklejohn argues that it is a fairly settled issue in Connecticut and the Second Circuit that the NLRB has jurisdiction over tribal casinos.  I've indicated in prior arguments a bit of Foxwoods' response to this as well.

Of course, since Foxwoods has planned to appeal the election results to the Second Circuit and beyond, if necessary, we'll soon see how "settled" this law really is.

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The focus for this term of the Connecticut General Assembly for employers and employees has been on the paid sick leave bill (still no action in the House as of May 3rd).

However, employers who have employees working on public works projects and manual labor on state or municipal building construction or repair contracts need to be aware of a bill that cleared both the Senate and House very early today (H.B. 5537).  The bill is expected to be signed into law shortly, will become effective January 1, 2009.  The vote tally in the Senate is available here.

Under current law, some of these employees must prove that they have completed a 10-hour construction safety and health course that meets federal OSHA Training Institute Standards. The new bill expands this training and expands the people who must receive training. 

The Office of Legislative Research has fairly detailed report available here:

First, it expands the construction safety training requirement to any public works project, which includes sewage and water treatment plants, site work, road and bridge work, parking lots, drainage systems, and other public projects.

Second, instead of applying the training requirement to all projects of $ 100,000 or more, the bill applies the existing prevailing wage project thresholds to the training requirement. This means the requirement kicks in for (1) repair and renovation projects of $ 100,000 or more and (2) new construction projects of $ 400,000 or more.

Furthermore, it removes the requirement that the proof of the training be sent to the labor commissioner. Presumably, the proof will be sent to the contracting agency paying for the prevailing wage project. ...

The bill also creates training requirement exceptions for employees of public service companies and commercial vehicle drivers who either pick up at or deliver cargo to public work projects.

It requires the labor commissioner to adopt implementing regulations by January 1, 2009. By law, regulations cannot take effect before the effective date of the act authorizing them.

A few notable items:

• The employees who must receive the training (which, under current law, is any employee "performing manual labor") is greater under the bill.  The bill states that a mechanic, laborer, or worker must complete the safety training course.
  
• Notably, according to the OLR, the safety training requirements "do not apply to employees of public service companies, which are defined in statute to include electric, electric distribution, gas, telephone, telegraph, pipeline, sewage, and water companies; cable franchise holders; and railroad companies."

With all the training requirements that exist for employers, employers should add this to their list if they are in the business of doing construction or repair work for the State of Connecticut. 

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Late Thursday night, the State Senate passed the Paid Sick Leave bill (S.B. 217) with various amendments including an exemption for some existing collective bargaining agreements.  The vote was a close one -- 20-16 -- and you can find the roll call here.

The bill would make Connecticut the first state to require employers of 50 or more, to allow workers to take 6½ paid sick days per year. It would also apply to municipalities.  One additional amendment that passed would limt the times when employee could use sick time for an illness of an employee or employee's child.

The bill now moves on to the House for further consideration, where nearly 40 legislators have publicly co-sponsored the bill already.  Some of the sponsors of the bill have predicted passage there, but its real future is unknown at this point, with the session winding down.  Debate in the Senate took two days and it is unclear if there is enough time left for the bill to pass. 

The Hartford Courant has a late report and reaction here:

[State Senator Edith] Prague called the bill a major boon to average working people, "especially single parents, like women, who have to go to work. They can't afford the luxury of staying home if they're sick. They need that day's pay to feed the kids ... and heat the house." ...

But opponents said the increasing business competition in a difficult economy is the reason that lawmakers should not approve the bill: It would put Connecticut at a disadvantage and cost the jobs of some of the very workers it is intended to help, they said.

The state's leading business lobbying group, the Connecticut Business and Industry Association, has said the bill "would cost employers in dollars and productivity — a tough one-two punch in this weakening economy."

Various political blogs have started to chime in, including My Left Nutmeg here.  My prior coverage of the bill can be found here.

UPDATE: You can also find the CT News Junkie coverage of the bill here.

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With the legislative session coming to a close next week, developments are heating up at a fast and furious pace.  I'll do some quick updating and then provide a more through review when time permits.

First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements.  The Senate has been working off of some amendments as well, which can be located here.

The Hartford Courant has coverage here.   The CT News Junkie blog has a report earlier this week about it as well.

Second, the State Senate also passed amendments to the state's whistleblower law.  You can find my previous coverage here and you can view the Courant's coverage today of it here.

The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases.  The bill now moves on to the House for a vote. 

As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling.  The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.  As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?

Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward.  Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.

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While the headlines have been focusing on criminal justice reform and now the state's projected deficit, a new "hate crime" bill  (S.B. 604) got passed and became a public act (P.A. 08-49) yesterday.  You can download it here.

The Act, which is effective October 1, 2008 is not found in Connecticut's penal code per se, but is found with Connecticut's discrimination statutes.  It amends Conn. Gen. Stat. 46a-58 to add new subparagraph (d). This paragraph makes it a "discriminatory practice", punishable as either a misdemeanor or class D felony, to display nooses or simulation of nooses. 

In relevant part, the revisions to the statutes are underlined:

(a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability.

(d) Any person who places a noose or a simulation thereof on any public property, or on any private property without the written consent of the owner, and with intent to intimidate or harass any other person on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability, shall be in violation of subsection (a) of this section.

Why nooses? The Judiciary Committee's report indicates that it would strengthen Connecticut's hate crime laws. And indeed, in light of the Jena 6 incident last year, there seemed to be a greater recognition that nooses are particularly offensive to those in the African-American community, which is also noted in the report.  Indeed, the new law would, in essence, equate noose displays with cross-burning.

But the new act raises questions remains unanswered: Why include other categories that have nothing to do with race, including sexual orientation or blindness or physical disability (and why exclude mental disabilities?)   Isn't the point of nooses is that it has some relation to the historic symbol of racial lynching?

And are there really any incidents were people are using nooses to intimidate people based on their gender? I believe the answer is essentially no. Indeed, even back in 2000, the EEOC noted that workplace noose incidents were related to racial harassment cases, not gender cases. What is also striking about the new law is that it contrasts with the cross-burning section which has no reference to protected categories.

Regardless, I'm sure it also won't be too long before the statute is also used in employment discrimination cases to show Connecticut's strong "public policy" against nooses -- whether in the workplace or otherwise.  

And one point should continue to be emphasized for employers -- these types of incidents should not be tolerated in the workplace.  If an employer in Connecticut does have an incident where a noose is displayed, the employer should seek prompt legal advice as to how to address the situation.

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Last week, while I was out on vacation, Congress acted on a bill that may have some interest in Connecticut. However, because Connecticut already has a similar bill already on the books, it will probably have a minor impact on employers.

The U.S. Senate approved of legislation that would prohibit genetic discrimination in the workplace.   As reported by the Manpower Employment Law Blog, The Genetic Information Nondiscrimination Act (GINA) sailed through the Senate on a 95-0 vote.  A House vote is expected shortly; you can check on the bill status of H.R. 493 here. 
Among other things, GINA would:

• prohibit discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
• prohibit 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);
• prohibit health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
• impose strict workplace confidentiality/disclosure rules on all genetic information.

Senator Christopher Dodd expressed his strong support for the bill and posted his comments to his website, which you can find here. 

However, for employers in Connecticut, this should be old news. Connecticut already has a law that prohibits discrimination based on genetic information so I don't anticipate that GINA, if passed, will a significant impact in Connecticut.  Conn. Gen. Stat. 46a-60(a)(11) states that it is illegal:

     (11) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to discharge, expel or otherwise discriminate against any person on the basis of genetic information. For the purpose of this subdivision, "genetic information" means the information about genes, gene products or inherited characteristics that may derive from an individual or a family member.

To be sure, GINA has some additional provisions that will need to be looked at by employers in Connecticut.  But none of it is all that dramatic; Connecticut employers may want to await final passage of GINA before updating their policies on this issue. 

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The blog and press coverage of the Connecticut Supreme Court's case of Curry v. Allan S. Goodman, Inc. continues this week with two additional shout-outs to this blog.  In addition, another resource cited to the decision that is worth mentioning.

First up, the well-run and informative Point of Law blog, edited by Walter Olsen, discusses the case today with a references to this blog.  There are lots of other employment law issues discussed at the site so I would recommend it for a different perspective on the legal system.    

In addition, the Connecticut Law Tribune (subscription required) has a detailed article in this morning's paper on the Curry decision.  The reporter contacted me last week and I provided him with some additional insights in the case. The reporter was also kind enough to quote this blog as well.

"This is a very significant decision," said Daniel A. Schwartz, an employment lawyer at the Hartford office of Pullman & Comley, who writes ctemploymentlawblog.com. He is not personally involved in this case, but said the ruling is "mandatory reading" for all employment law practitioners.

"There have been attempts in recent years to create this reasonable accommodation language with legislative changes, but those bills did not pass," Schwartz said.

The decision — officially released April 15 — puts employers on notice to be responsive to needs of disabled employees and to actively engage in communication once a problem is identified. "They can't just take a hear-no-evil, see-no-evil, speak-no-evil attitude," Schwartz said in an interview.

Lastly, as part of the press coverage, I also stumbled on to a very good site today that I'm sure others have known about for years: the Connecticut Judicial Branch Law Libraries Newslog.  The site keeps readers updated on  "Connecticut legislative developments, new court decisions, online legal research tools, new law library resources, and other topics of interest to the Connecticut legal community."  I would definitely check the site out.

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Like the television show, Lost, reading the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, Inc. will leave readers with more questions than answers at the end of the day.  (For more background on the case, see this prior post.)

Those unanswered and indeed, troubling questions arise from the suggestion by the Connecticut Supreme Court that an employer's duty to accommodate an employee (and engage in the interactive process) may arise even after the employer has already terminated the employee. 

For example, if the employee makes a request for reasonable accommodation after the employee has already been terminated, does the employer have to listen to this request? And more importantly, does the employer then have to reinstate the employee with the new accommodations in place?  And what if the request for accommodation comes a month after the employee has already been terminated, must the employer still consider the request? The decision appears to say "yes" to these questions.

In order to understand this, some background facts on the case are needed as described by the Court:

The plaintiff  began working as a driver for the defendant, a distributor of wines and liquors, in September, 1986. In that position, the plaintiff had to lift cases of liquor  weighing between forty and seventy pounds on and off his truck. On or about August 26, 1998, the plaintiff  injured his back during work when lifting a case of liquor. ... [He] returned to work in September, 2000, but was restricted by his physician, Charles B. Kime, to working four hours a day, lifting a maximum of fifteen pounds at a time, and avoiding prolonged periods (more than thirty minutes) of sitting or standing. ...

When the plaintiff returned to work, the defendant negotiated with the plaintiff’s union and placed him in a night shift position, working the ‘‘split line’’ in the  warehouse. Although employees normally bid on these positions every six months on the basis of their seniority, because he was injured, the plaintiff temporarily was given the split line warehouse job pursuant to the agreement between the plaintiff’s union and the defendant. ..
When the defendant first placed the plaintiff on the split line, he was required to do only light duty tasks and was not required to replace empty cases with full cases [part of the job of a night-shift position]. ...

[By] March 7, 2001, however, [Plaintiff's physician] indicated that the plaintiff had not improved as expected and that his light duty restriction— ten hours a day with no repetitive bending or lifting of objects more than twenty-five pounds—likely would be ‘‘permanent.’’ ...

Subsequently, the plaintiff placed his name on the bid list for a night shift warehouse position. Although the plaintiff attests that he was high enough on the seniority list to qualify for this position, he did not receive the position. The defendant terminated the plaintiff’s employment, informing him by letter dated April 17, 2001, that it had determined that there was no suitable position for him. Approximately two days later, the plaintiff’s attorney sent a letter to one of the defendant’s managers, Richard Conroy, advising him of the defendant’s obligation to provide reasonable accommodation under the law, asking to be provided with a cost-benefit analysis of the decision to terminate the plaintiff, and requesting that the defendant reconsider its termination decision. The record does not reveal that the defendant took further action or reconsidered its decision.

As the Supreme Court recognized, it is up to the employee to initiate the request for a reasonable accommodation, not the employer.  Here, the Court found that the employee's placing his name on a "bid list" for a warehouse position and the letter from the employee's attorney after the employee was terminated was sufficient to start the request for reasonable accommodation. 

In the present case, the plaintiff made an affirmative request to continue working the warehouse night shift in March, 2001. In addition, the plaintiff’s counsel, in his April 19, 2001 letter to the defendant, requested that the defendant: (1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions. These actions satisfy the plaintiff’s burden of initiating the interactive process.

The defendant’s response to this request was merely to reject it. Conroy, the defendant’s manager, stated during his deposition that, upon receiving the letter from the plaintiff’s counsel, he did not reconsider his decision, confer with anyone else, review any records, or conduct any investigation or cost-benefit analysis of the hardship that the proposed accommodation would cause the defendant. The record reflects no effort by Conroy or any other representative of the defendant to contact the plaintiff or his counsel to engage in any additional, meaningful discussion. We conclude that this response is clearly not the dialogue envisioned by the interactive reasonable accommodation process and the defendant’s duty of good faith compliance.

From an employer's perspective, this is a disturbing because it seems to suggest that an employer's obligations to provide a reasonable accommodation continues after an employee has already been terminated.  Moreover, it suggests that "demand letters" (in which an attorney demands that the employer take certain action, like paying severance or reinstating the employee) can also be a requests for reasonable accommodation.

In addition, this decision suggests that even though the employee may not make a reasonable accommodation while employed (and only applies to be considered for a position with the company without explanation), the employer must still consider any request by the employee made after the employee was terminated.

It is unclear whether the employer will be filing a motion for rehearing in the case to rule on this issue. But if left unchallenged, this part of the Court's decision could be the real legacy of the case and set the stage for lots of demand letters for disabled workers even after they've already been fired.

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Last month, I broke the story about a company that was selling various employment law posters online, and the Connecticut government's response to the posters.  A post recapping all events with links to all prior posts is located here.  

One poster, in particular, dealt with a "Healthcare Advocate" poster. At that time, the company's website stated specifically  "New Poster February 2008! Employers are required to display this poster. Lists employee's rights to health insurance under Connecticut."

As of my last prior post, last month, the company, Progressive Business Compliance had not made any changes to their website nor did they provide any public comment. While I've been tied up the past few weeks, their website for this poster has now changed. 

Their website for this poster  now reads: "New Poster February 2008! Employers are REQUIRED to display this poster.  Lists the services of the Office of the Healthcare Advocate under Connecticut Law, and gives contact information for employees."  However, the company still charges $12.99 for the poster. 

Employer and human resources professionals may still wish to exercise caution about using this particular poster. First, this poster -- while apparently "new" to the company -- is not new at all. It has been a requirement for a while. Second, in response to our prior post, Connecticut's Office of Healthcare Advocate now has the exact poster available on their website.  You can download it directly from here.  Third, and most importantly, it's available free of charge. 

I'll leave it to the Attorney General to determine whether its a fair trade practice to sell a free government poster for $12.99.  Perhaps it contains a protective plastic cover.   And as I noted previously, these companies can provide a service to employers by combining various posters onto one laminated poster.  For some employers, it is a service worth paying for. 

But for employers who just want to comply with this particular law without any bells and whistles, the OHA's poster that can be downloaded free of charge will suffice just fine. 

Of course, there are other posters that must be posted as well, so employers should check with an attorney to determine if they are meeting all the legal posting requirements. 

Lastly, I have been meaning to post about another website that summarized our prior posts on workplace posters quite well.   Lawroom.com posted about it here.  Each week, Lawroom sends out an email broadcast to several thousand HR and business subscribers (primarily in California, but also nationwide and in other states). They cover case, legislative, and regulatory developments, as well as interesting news stories. They also discuss “recurring” issues in employment law – including the need for mandatory posters.  My sincere thanks to them for the reference.  Please do check them out. 

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Secretary of State Susan Bysiewicz and Connecticut Healthcare Advocate Kevin Lembo released their own press release (download here) this afternoon regarding the investigation into Progressive Business Compliance. 

According to the press release, Bysiewicz and Lembo are  "warning Connecticut's business community about a deceptive marketing campaign that falsely claims there is a 'new' requirement that employers purchase compliance posters or face fines of $7500."  Bysiewicz is also investigating whether the company is operating legally in Connecticut. 

The Connecticut Employment Law Blog first broke the story of this marketing effort and discussed what the employer's real obligations were under the law yesterday (see previous posts here and here.)  Earlier today, I noted Attorney General Richard Blumenthal's statement. It is now available online here. 

The press release states:

“Today we are warning Connecticut business owners – do not be duped by the scare tactics of this unauthorized campaign and these phony “new” requirements,” said Bysiewicz. “My office has launched an investigation to determine if Progressive Business Publications is operating legally in Connecticut and I applaud Attorney General Blumenthal for his investigation of PBP for potential fraud. We urge anyone who has fallen prey to this scam to contact our offices.”

The marketing campaign, consisting of blast-faxes and emails from PBC, is entitled: "CONNECTICUT HEALTHCARE ADVOCATE, OFFICIAL NOTICE". This campaign is NOT authorized by the Office of the Healthcare Advocate, State of Connecticut. The promotion falsely states that this is a "NEW" requirement, and encourages the reader to purchase the poster under threat of "fines of up to $7,500." The solicitation gives potential buyers an option of purchasing a single compliance poster for $12.99 or a “Complete Connecticut State Kit” consisting of 11 posters for $89.99.

“As soon as we were notified of this scheme we took action,” said Lembo. This marketing campaign and solicitation are in no way authorized by the Office of the Healthcare Advocate. This scheme targets business owners trying to play by the rules. Business owners who are required to post health insurance information may contact my office and receive this poster free of charge.”

The Connecticut General Statutes (CGA 38a-1046) require that employers who offer a fully-insured health insurance product to their employees, "shall obtain from the Healthcare Advocate and post, in a conspicuous location, a notice concerning the services that the Healthcare Advocate provides." The notice/poster that fulfills this requirement is available, free of charge, by contacting the Office of the Healthcare Advocate at 1-866-466-4446 or healthcare.advocate@ct.gov.

As before, I'll update with any noteworthy developments.

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Recently, a colleague received an e-mail that suggested that all employers must post information that "lists employee's rights to health insurance under Connecticut Law."  When I heard about it, something didn't seem right.  After all, since when do employees have a right to health insurance in Connecticut (and, isn't that a heated topic of the Presidential campaigns?). 

So I started digging.  A peek at the Department of Labor website came back with nothing.

A search on Google for a "Connecticut Healthcare Advocate Poster" provided a link to the website of a company, Progressive Business Compliance, that does, in fact, sell a poster for $12.99 that appears to be on point.  The website page states specifically. "New Poster February 2008! Employers are required to display this poster.  Lists employee's rights to health insurance under Connecticut."  The website allows a viewer to buy this "Healthcare Advocate" poster directly from the site and it has a nice thumbnail picture of what the poster looks like.

Hmm. This seemed strange; still hadn't heard of the law..  But I wondered, why have I seen this poster before? So, I called the Office of the Healthcare Advocate, which is dedicated to serving Connecticut's health insurance consumer. 

And lo and behold, they were extraordinarily helpful.  A poster on rights to health insurance? Never heard of it, they said. But they do have a poster from the Managed Care Ombudsman that lists the services of the Managed Care Ombudsman.  It's required by Conn. Gen. Stat. Sec. 38a-1046.  Oh, and it's not new. It's been around since 1999.  It lists certain items that a health insurance policy must have -- if health insurance is offered.

Ding, ding! We have an answer!  There is no poster listing an employee's rights to  health insurance, only a poster regarding the services of the Managed Care Ombudsman.  And it's been around for a while (which is why it looked so familiar). 

So, I ask the OHA, can I download this poster from the website? Their answer was no but she graciously agreed to e-mail it to me.  (Don't ask me why it isn't on the website in this age of technology.)

And, she did. So, are you curious what it looks like? This is the poster that she e-mailed me. You can compare it to the thumbnail image available for sale on the PBC website and make your own judgment about it. (IMPORTANT DISCLAIMER: As with this entire blog,  I make no representation that this poster does, in fact, comply with the applicable law and readers are strongly cautioned to seek legal advice about whether their postings comply with applicable law.)  If you want your own poster, you can certainly contact the OHA at 1-866-HMO-4446.  Perhaps if enough people call them, they will even post it to the website.

This situation presents a good reminder tor HR professionals and company staff that it is always best to consult with an attorney about their legal obligations, particularly on posters.  And it reminds me of the (seemingly) old adage that just because it is on the Internet, that does not mean it's true.  It is always best to go to the underlying source to resolve any questions you might. And you might save a few bucks by doing so.

(4:30p UPDATE) See comments by Kevin Lembo, from the Office of Healthcare Advocate below regarding the poster.  There will be some further developments in this topic likely tomorrow.  Stay tuned. 

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The Equal Employment Opportunity Commission (EEOC) issued guidance today for employers and veterans on workplace issues affecting veterans with service-connected disabilities.   You can download the guide for the employer here, and the guide for veterans here.

According to the EEOC press release:

The new guide for employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The document further describes how the ADA in particular applies to recruiting, hiring, and accommodating veterans with service-connected disabilities. The EEOC enforces Title I of the ADA, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments. The U.S. Department of Labor enforces USERRA, which applies to the reemployment of veterans with and without service-connected disabilities.

The guides contain a list of resources on USERRA and the ADA as well as information on organizations that can assist employers who want to recruit and hire veterans. 

I previously posted about USERRA and the protections it offers to veterans last Veteran's Day. 

 

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Lawyers representing the class of retirees from CIGNA will argue that their clients are entitled to "hundreds of millions" of dollars in retirement benefits as a result of misrepresentations made by CIGNA, according to a report in yesterday's Hartford Courant. 

The Courant -- which finally reported on the decision 5 days after it came out and well after we posted on it  -- barely mentions the argument of whether the new cash balance plan is age discriminatory (which the court found it wasn't). Instead, it focuses on the fact that CIGNA failed to mention that the benefits could be subject to "wear-away". 

Eager to claim victory, the class representative attorneys now say that the disclosure argument is vitally important to the case:

Friday's ruling will serve as "an excellent blueprint for other courts to scrutinize these disclosures" that companies make concerning conversion to cash balance plans, said Tom Moukawsher in Hartford, co-counsel representing the CIGNA employees. "This court decision is a precedent for looking at the underbelly of the disclosures for basic honesty."

Certainly the court was disturbed by communications by CIGNA. For example, in a Newsletter discussing the changes, the Court found that: "nothing in the Newsletter indicated to plan participants that their rate of benefit accrual might decrease, much less by a significant margin. And yet that is exactly what happened." (Decision at 80.) Indeed, as the Court said later:

Taking all of this information into consideration, the Court concludes that CIGNA was aware of the significant reduction in the rate of future benefit accrual that would affect at least a substantial proportion of its employees as a result of the transition to Part B, that CIGNA wished to avoid the employee backlash likely to result from a thorough discussion of these aspects of Part B, and that CIGNA sought to negate the risk of backlash by producing affirmatively and materially misleading notices regarding Part B. As a result, its § 204(h) notice failed to meet ERISA's stringent standards.

As I indicated previously, both parties have until March 17th to brief the issue of what the appropriate remedy would be in this situation. 

Although the lawyers for the class have reason to be pleased with the decision, certainly CIGNA and other companies nationwide must be relieved that the underlying conversion from a defined benefit plan to a cash balance plan itself has been upheld.  If the court had found that the conversion was discriminatory, it could have had an impact nationwide; the decision here may have a more modest impact given the evidentiary findings of the court that are particular to this case.

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My post from last Friday's ERISA decision in Amara v. CIGNA Corp. has drawn quite a bit of interest. Since my post over the holiday weekend (from vacation) was intended merely as a brief summary until this week, it has drawn sufficient attention that a few points bear further elaboration, including disclosure of my knowledge of one of the class representatives.

• First, I know one of the named class representative as a longtime family friend. Other than being aware generally of her involvement, we haven't discussed the case in any specifics and I didn't discuss the decision with her either.  I don't believe this impacts my reporting of the case but readers should be aware of that fact.
  
  
• Second, in my discussion of the age discrimination claim, one reader has suggested that I may have oversimplified the judge's rationale. I can't dispute that since, after all, I'm attempting to reduce a 122 page decision to a few paragraphs.  I did not, for example, discuss whether this case suggests "that more and more courts are buying into the Easterbrook line of argument that cash balance plan conversions are generally not age discrimination" as Workplace Prof did.  As I have suggested, however, readers should review the entire decision for its analysis.  But this additional quote from Judge Kravitz bears review too:
  
             Finally and importantly, the Court agrees with CIGNA that what Plaintiffs see as age
  discrimination is merely the transition from one plan that was heavily age-favored to another plan that is still age-favored but less so. In the Court's view, that transition is not age discrimination.
  
  
• Third, in my discussion of the remedies that may be appropriate, I pointed out that the court suggests at one point that only injunctive relief may be appropriate against CIGNA (versus the plan administrator) in one of the claims.   It is hardly conclusive, however, and it may be that the court fashions a remedy that is more far-reaching on the notice and disclosure provisions.  The court left a discussion of remedies (i.e. damages) for further briefing.  There are also individual claims that need to be resolved as well.
  

The Pension Protection Act blog has another discussion of the case with some additional points that bear review.  And to review other original source documents, readers can go to  Attorney Stephen Bruce's webpage on the actual lawsuit as well.   And for readers that may question whether the attorneys, like Stephen Bruce, did their job well, I'll quote directly from the judge's opinion:

Counsel for each side distinguished themselves throughout this case by their skillful advocacy, professionalism, and civility. The Court is grateful to each of them.

The decision has lots of little items like this to review.  The best thing about a blog like this is that readers can and should decide for themselves what it ultimately means.

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New week; new job. 

But that hasn't stopped news from happening. So we'll be using this week to catch back up.

First up: The Department of Labor has published its proposed new regulations for military leave FMLA.  But these regulations (topping 500 pages) also contain updates to earlier discussed revisions to the FMLA as well.

The blogging community has been busy trying to sort and report on the release.  Here's the wrap-up as of early Monday morning. I may update this post later today as additional blogs post their summaries:

• Michael Fox, at Jottings, has the most detailed summary thus far of the major provisions here. According to Michael: "These proposed rules are not nearly as dramatic as the ones that were originally proposed to the white collar regulations which set off a legislative and political uproar. It will be interesting to see what happens to these. Although there will no doubt be comments from both sides, my initial thoughts are that if anyone should be howling for more, it should be employers."
• Workplace Prof links to the regulations and has provided ample coverage of the underlying statute before.
• Ross' Employment Law Blog hits the highlights as well and notes that "there are substantive changes dealing with the definition of "serious health condition," required notices, joint employers, light duty, overtime, bonuses, substituting paid leave for FMLA leave, voluntary settlement of claims, employer's failure to designate absences as being FMLA leave, and other matters."
• The Word reports that you have until April 11, 2008 to provide comments to the new proposed regulations.
• What's New reports what's new with the new regulations as well.

For employers in Connecticut, the challenge will remain trying to incorporate these national regulations into the state statute and deciphering when or if those provisions will even apply to Connecticut leave. Employers should continue to tread cautiously in FMLA issues until the dust settles from the new FMLA provisions and proposed regulations.

UPDATE: The always reliable Jon Hyman at Ohio Employer's Law Blog also has his first take on the regulations here. 

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With the signing of the National Defense Authorization Act for FY 2008 (NDAA) earlier this week, the new amendments to the FMLA for care of military members are now effective immediately.  For a full text of the FMLA, with the new amendments, the Department of Labor has posted it here.

For a refresher to my prior posts, the Act now permits a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

Its important to note that the caregiver protection provides more than double what is provided when an employee takes "traditional" FMLA leave.  Employees are entitled to only one 26-week leave period to care for a wounded servicemember during the employee’s employment. The leave may be taken on an intermittent or reduced-schedule basis, but all 26 weeks must be used during a single 12-month period. 

The Act also provides up to 12 weeks of leave for employees who have a family member called up to or engaged in active military duty.  In detail, the Act provides up to 12 weeks of FMLA leave for an employee with a spouse, son, daughter or parent who: (1) is on active duty in the Armed Forces in support of a contingency operation; or (2) has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. A "contingency operation" is an action or operation against an opposing military force.

An employee may take active duty leave for "any qualifying exigency" related to the family member’s call-up, and the leave may commence as soon as an individual receives notification of being called to active duty. The term "any qualifying exigency" was not defined, and will likely be clarified in future regulations published by the Department of Labor ("DOL").

Recall too that the normal definitions of the FMLA still apply. Thus, the employer must employ at least 50 part-time or full-time employees for each working day during 20 or more workweeks of the current or previous calendar year to be subject to the statute. In order to be eligible for FMLA leave for example, employees must still have at least 12 months of service with the employer  and must have worked at least 1,250 hours during the 12 months preceding the start date of the leave

Because these changes expand the ways that an employee may be entitled to protected leave, employers should familiarize themselves with the law and also review their obligations under USERRA as well.  Employers can consider updating their policies and procedures and also ensuring that their postings (such as a USERRA DOL poster) are current as well. Notifying human resources of this new law will also be critical to ensuring proper compliance with this law. 

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The New York Times reported late last week that the Department of Labor is considering new regulations to the Family and Medical Leave Act that would address concerns that employers have had about some employees are abusing the leave.  (H/T The Word on Employment Law)

Under the new rules being discussed, employees would have to call in to request FMLA leave before taking it, as opposed to the present situation where employees can take off two days before requesting leave.  The regulations will also address the new military leave provisions that I've mentioned previously.

As these regulations are likely to undergo some further discussion and revisions, I'll await serious analysis until we see what is actually being proposed -- rather than just discussed at this stage.  FMLA Blog has some thoughts worth reviewing.

Senator Chris Dodd (D-Conn.), who authored the original FMLA bill, is already concerned about the path being carved out and issued a statement today expressing those concerns.

“I am concerned by the reports that the Department of Labor may impose new regulations that will make it more difficult for workers to take advantage of the leave FMLA provides. Over the past 15 years, FMLA has helped more than 50 million families during critical moments in their lives, and any effort to scale back these protections is simply unacceptable.

“As I have said time and time again, if there is any problem with FMLA, it is that it doesn’t go far enough. That is why I support new ways to expand this legislation so more Americans can benefit from its provisions. Most recently, I authored a provision to expand FMLA benefits for up to six months for family members of wounded military personnel. As this disastrous war drags on with no end in sight, it is critically important that we ensure that the brave men and women of our armed forces receive the care and support they need when they return home. Allowing their family to be there during the often lengthy rehabilitation process without the constant fear of losing their job is one of the best things we can do for our troops. I hope the Department of Labor keeps these concerns at the forefront as they draft their new regulations.”

 

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A couple of weeks after President Bush's pocket veto of a defense bill that included expansion of FMLA for military leave, Congress has again passed a defense bill with the same FMLA provision.  President Bush is now expected to sign the measure because it does not contain certain language that he found objectionable (unrelated to FMLA) in the bill.

For a recap of the provisions, see my prior posts on the subject here,