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

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.

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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.  

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On Wednesday, May 27th, National Labor Relations Board Chairman Wilma Liebman and General Counsel Ronald Meisburg announced the appointment of Jonathan B. Kreisberg as the Regional Director of the NLRB’s Regional Office in Hartford, CT (Region 34).

Mr. Kreisberg succeeds former Director Peter B. Hoffman, who retired in March 2009.

Employers and attorneys in Connecticut will no doubt be familiar with Mr. Kreisberg. He has been a career NLRB employee, and has served as Regional Attorney in the Hartford Regional Office since 1989. He is also a former chair of the Connecticut Bar Association's Labor & Employment Law Committee.

In a press release announcing the appointment, Chairman Liebman and General Counsel Meisburg stated:

Jonathan Kreisberg brings a wealth of experience and abilities to his new position. During his many years of service with the Agency, Jonathan’s excellent legal and organizational skills have resulted in the amicable resolution of many labor disputes and meaningful remedies for employees, unions and employers under the NLRA. We are confident that his considerable experience with the Agency and his active involvement with the labor-management community in Connecticut will enable him to continue the tradition of excellence in the Hartford Regional Office.

A native of Bayside, Queens, New York, Mr. Kreisberg earned his B.S. degree in 1974 from Cornell University’s School of Industrial and Labor Relations, and his J.D. degree in 1977 from American University’s Washington College of Law.

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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.  

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As background, everyone knows that Connecticut has a minimum wage law for employment (now at $8.00 per hour, going up to $8.25 for 2010). While there are some limited exceptions to that rule (most notably for servers and bartenders who get a tip and some apprentices), it is now viewed as a societal norm that everyone should get a minimum wage for work performed.

But Connecticut and the federal government have another exception that is not as widely known. 

For example, in Conn. Gen. Stat. Sec. 31-67,  the Department of Labor may issue "to any person whose earning capacity is impaired by age or physical or mental deficiency or injury, a special license authorizing employment at such wages less than the minimum fair wage and for such period of time as is fixed by the commissioner and stated in the license."

Federal law has something similar, the background of which can be found at the DOL's website here.  Employers that use such sub-minimum wage rates have special notice obligations as well.

In general terms, this provision basically ALLOWS employers to get government approval to pay employees with some disabilities less than minimum wage.  We can debate whether this law still servers a purpose in today's workplace where those with disabilities are to be treated equally. 

But there is no doubt that this program does impact those in Connecticut and is being used. For example, in the Hartford area, HARC helps people with an intellectual disability with various work programs at local companies.  HARC, which was founded in 1951, has placements at companies as varied as lawfirms to hospitals.

For employers, it is an example of how conventional wisdom about minimum wage may not hold up.  And perhaps it may open up an opportunity to a group of individuals who might not otherwise find employment.

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Earlier today, I was fortunate to give a teleconference on the new COBRA subsidy rules for BLR.  Not surprisingly, there were still lots of questions at the end of it. 

One of the biggest issues that people had concerned who was eligible to receive this assistance. As I've indicated previously, only those employees who have been involuntarily terminated are eligible. But the IRS regulations have also indicated that individuals who have a good reason for resigning might also be deemed to be involuntarily terminated.

And what is a good reason? According to the IRS in guidance released recently, it is a person who has experienced a "material negative change in the employment relationship for the employee".  

And what might a "material negative change"? The IRS doesn't say though it provides one example: A employee who has quit because of a reduction in the employee's hours (though an employee who has his hours reduced and does NOT quit, may be eligible for COBRA, but not the subsidy. Confused enough?).  

But beyond that, the IRS guidance thus far has been severely lacking. Could it be a failure to receive a bonus? Five furlough days?  There's lots of speculation, but for employers, it might be more helpful to focus on OTHER language in the guidance which states that an involuntary termination is, overall, "the independent exercise of the unilateral authority of the employer to terminate the employment".

For anything more definitive, we'll have to await perhaps further guidance and even some litigation. The IRS guidance may be the first on the subject so far, but it's definitely not the last word.  

Stay tuned.

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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.

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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.)

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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.

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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. 

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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. 

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UPDATED

Over the last 24 hours, it seems that every politician is decrying the use of Connecticut wage and hour laws as apparent support for AIG's payout of various retention payments. Connecticut Attorney General Richard Blumenthal's comments are among the most pointed, according to Capitol Watch:

"I have significant doubts about the validity of AIG's claims that they are required by Connecticut law to pay these outrageous bonuses,'' Blumenthal said. "AIG is shamelessly shielding itself behind the Connecticut Wage Act -- a joke of a justification for squandering scarce taxpayer resources.''

One reporter has even called Connecticut's wage laws, an "obscure" law.  But that would likely be news to the Connecticut Department of Labor which features that law prominently in the materials about the subject in its website. 

So, what IS the law that everyone keeps referencing? Well, the main provision is Conn. Gen. Stat. Sec. 31-72. That law states, in part:

When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, ...., such employee ... may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney's fees as may be allowed by the court...  

In plain English, what this means is that if an employer does not pay an employee "wages", that employee can sue the company and MAY recover twice the amount of wages that should have been paid. 

And what's a "wage"? Well, Conn. Gen. Stat. Sec. 31-71a(3) defines it as "compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation."  As I've discussed in prior posts, some (but not all) bonuses are treated as "wages" and therefore, employees may sue under this statute. 

That view was confirmed in a quote from an unnamed Department of Labor official in today's Courant: 

"Our first step is to determine if the bonus is a wage," said a state Department of Labor official.  "If it's a wage, it's based on performance, production and efficiency"" the official said. "It has to tie directly to your performance, that you met certain standards and certain goals in order to turn that into a wage. ... Companywide performance is less likely to be a wage."

What's left unanswered in the whole debate though is why Connecticut's wage and hour laws should NOT apply here.  Is Connecticut now saying that retention payments are never "wages" or just not in this case?  Is it simply the amounts of the payments that make such payments intolerable here?

Of course, that's not to say that of an employee's right to be paid under a contract is absolute. But existing laws don't make it easy to get around that right.  Slate has a good column that suggests several legal theories that may be out there to attempt to break or avoid such contracts.  (And, as I said yesterday, I'll leave it to others to opine on whether the payments here were proper or not.)  The New York Times has a very good series of columns about whether the contracts can be broken as well. 

One thing is certain: The debate over these payouts is far from over. And Connecticut's wage laws are likely to never be the same again.

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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.

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UPDATED 3/2/09 with New Link to Proposed Regulations

The text of the proposed new regulations on GINA have finally trickled out (you can download a copy here). 

Ross Runkel (whose stakes a claim to being "First in Employment Law") finally tracked it down earlier today.

It's a 58-page document though much of what it contains has been discussed in previous posts here and here. Here are a few items that haven't been touched on before

• The definition of "employee" also covers former employees; this allows individuals who have been fired to raise discrimination and retaliation claims.  (Section 1635.2)
• The EEOC seems particularly interested in comment on six terms that have not been used previously in employment law context (at least not with any frequency). These include: "Family member", "Family medical history", "Genetic information", "Genetic Monitoring", "Genetic Services", and "Genetic Test".  (Section 1635.3)
• The regulations emphasize that although employers have 5 exceptions to the general rule that they may not acquire genetic information, these exceptions still do not allow an employer to discriminate by using such genetic information. (Section 1635.8)

Expect there to be more analysis in weeks to come. The comment period will end at the end of April 2009.  After that, expect the EEOC to release final regulations in the summer of 2009.

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UPDATED 3/1/09

Earlier this week, I indicated that the EEOC would be releasing new proposed regulations interpreting the Genetic Information Nondiscrimination Act (GINA).  [Those new proposed regulations can be found here. (H/T LawMemo)) In the meantime, the EEOC released on its website a very useful document providing "background information" on Title II of GINA which applies to employers. (The EEOC also released the testimony from various witnesses at a hearing on the subject as well.)

It is, in essence, a FAQ for employers on the new Act and the proposed regulations.  It provides answers to questions such as:

• Who must comply with Title II of GINA? (Private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.)
• Are entities subject to Title II of GINA required to comply with the law now? (No. Title II of GINA is effective on November 21, 2009.)
• What is “genetic information?” (Genetic information includes, for example, information about an individual’s genetic tests, genetic tests of a family member, and family medical history. Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder. Genetic information also does not include tests for alcohol or drug use.)
• What practices are prohibited by GINA Title II? (Among other things, the use of genetic information in making decisions related to any terms, conditions, or privileges of employment)
• Are there any exceptions to the prohibition on use of genetic information? (No. According to the EEOC, "This prohibition is absolute. Covered entities may not use genetic information in making employment decisions under any circumstances.")

For additional background, I would also recommend the GINA website from the Genetics and Public Policy Center of Johns Hopkins University. In fact, one of its members testified before the EEOC earlier this week.  It has summaries available and adds some fresh perspective to this issue.  

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It's been a little while since I've discussed quirky statutes that are often overlooked or misunderstood when talking about employment laws in Connecticut. Certainly, the drug testing laws in Connecticut may not be overlooked, but portions of it are often misunderstood.

Indeed, I suspect that many employers (and lawyers) are unaware that an "employee" as defined in the drug testing laws might include people who are not current employees of the company. This has important implications about who and under what circumstances an employer can test individuals for drugs.  Let me explain:

One of the lessons I can vividly recall from law school is the admonition of a law professor to always look at the definitions of words in particular laws. The cautionary tale that he told was that just because you think a word has a simple definition doesn't mean the legislature has conferred the same commonly understood definition.

The drug testing statute is a perfect example of this. 

In Conn. Gen. Stat. 31-51t(1), an employee is defined  as "any individual currently employed or formerly employed and currently being rehired by the same employer within twelve months of terminating his employment, and includes any individual in a managerial position".  (Compare this with the definition of "employee" for purposes of paying wages.) This means that persons protected under the statute from certain types of screening may also include some types of former employees as well.

Connecticut rules provide employers with flexibility to drug screen job applicants, but prohibit various forms of testing on current employees (with notable exceptions for certain positions or if the employer has a "reasonable suspicion" of drug use).  The effect of this statute, therefore, is that employers who rehire people who worked for the company in the last year cannot typically test them for drugs -- even though they might use that same procedure on other job applicants. 

Employers who would like to implement and administer a drug testing program in Connecticut need to remain vigilant to these types of quirks and ensure that their policy and procedures are aligned with how the drug testing laws in Connecticut are set up.

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Nearly 15 years ago, the Connecticut Supreme Court came out with a pair of decisions that seemed to put to rest the question of whether the CHRO was authorized to award emotional distress damages to employees who filed suit and prevailed in state law employment discrimination cases. 

But, as discussed below, the CHRO has lately been suggesting otherwise.  This has important implications to employers in defending against such claims.  In order to understand where we are, we need to look back at some of the key cases and issues related to them, so bear with me for a bit.

The Background Cases

• The first case, Bridgeport Hospital v. CHRO, 232 Conn. 91 (1995), held that the CHRO had no authority to award emotional distress damages in state law employment discrimination claims involving race, gender, physical disability, age and the like. It's holding was unequivocal: "The issue before the court is whether General Statutes § 46a-86 authorizes the award of damages for emotional distress and attorney's fees for a violation of General Statutes § 46a-60(a)(1). We conclude that it does not." (Open disclosure: My current firm successfully represented the hospital in that matter.)
• In the companion case, Fenn Mfg. Co. v. CHRO, 232 Conn. 117 (1995), the Court held that no emotional distress damages were available to claims of pregnancy discrimination in the employment context. It's holding was also unequivocal:  "The issue before the court is whether...[the CHRO], is authorized pursuant to General Statutes § 46a-86(a) to award damages for emotional distress based upon a violation of General Statutes § 46a-60(a)(7).  We hold that CHRO is not so authorized."
• In a followup case the next year, the CHRO argued that another statute, Conn. Gen. Stat. §46a-58 authorized the CHRO to award emotional distress damages in employment discrimination cases. The Connecticut Supreme Court, in CHRO v. Truelove & MacLean, Inc. 238 Conn. 337 rejected that claim as well: "The commission's argument is that § 46a-58 (a) encompasses claims of discriminatory employment practices and that violations of § 46a-58 (a) entitle a claimant to damages for emotional distress pursuant to § 46a-86 (c). We disagree."

The Supreme Court Reintroduces Such Claims, At Least According to the CHRO

Case closed right? Not according to the CHRO, which has started using another case as the basis for re-introducing emotional distress awards BACK into employment discrimination claims. Specifically, in arguments to CHRO hearing officers and in mediations, CHRO staff refer to CHRO v. Board of Education of Cheshire, 270 Conn. 665 (2004), in which a student claimed discrimination against a public school principal and board of education.  The CHRO's premise is that while Conn. Gen. Stat. 46a-58 can't be used to bring garden-variety employment discrimination claims, it can be used to piggyback other claims through it.

Because the Court in Cheshire doesn't overturn its prior cases and is dealing with a student's discrimination claim, it's admittedly a bit difficult to parse the logic, but there's plenty of discussion in Cheshire about how some types of other discrimination claims can allow the complainant to recover emotional distress damages. 

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In yesterday's post, I talked about the significant changes to COBRA that are in the new economic stimulus law. Today's post focuses on another, less-publicized provision in the new law regarding whistleblowers. 

Employers that expect to receive funds from the stimulus package need to be aware of the provisions so that you can be in compliance with the law and minimize the risk of whistleblower claims.

Which Employers May Fall Within Scope of the Provision?

While it's not exactly clear who is a "non-Federal employer" who received "covered funds", it's likely that given the intent of the act, that this law will apply to any employer who gets a grant, contract or another payment associated with the stimulus bill.  

What Conduct Is Protected?

The new rules protect disclosures to both outside  and inside individuals by aggrieved employees.  These might include disclosures to a person with supervisory authority over the employee, or to a state or federal regulatory or law enforcement agency.          

What Types of Disclosed Information Are Covered?

In order for the employee to be covered, that person must reasonably believe that the information he or she discloses is evidence of:

• Gross mismanagement of an agency contract or grant relating to stimulus funds;
• A gross waste of stimulus funds;
• A substantial and specific danger to public health or safety related to the implementation or
  use of stimulus funds;
• An abuse of authority related to the implementation or use of stimulus funds; or
• A violation of a law, rule, or regulation that governs an agency contract or grant related to
  stimulus funds.
   

Notably, if the employee first submits a claim to the inspector general of the agency administering the funds, the employee may have the opportunity to bring a civil suit for a jury trial under some circumstances.  

Action Steps for Employers

While the provisions of the law are new, the concepts behind them are not. Employers should remain steadfast in ensuring that employees are not retaliated against for filing non-frivolous claims and that any actions taken against an employee are well-documented and supported by legitimate non-discriminatory reasons. 

(H/T to Point of Law, among others, for passing on word of the provisions.   Check out JD Supra for additional information as well.)

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For those of us with school-age children, the school calendar (vacations and all) seems to be the rhythm that most of us adopt.  So, now that February break is over, it's time for a little heavy lifting. In this case, the heavy lifting involves the text of the new economic stimulus bill - which checks in at over 1100 pages and was signed into law last week. 

In terms of relevant employment law-related provisions, the final bill (formally titled the "American Recovery and Reinvestment Act of 2009 "(H.R. 1)) has some important sections for employers.  I had previous summarized one version of the bill here, but the final version is noticeably different so readers should be aware to rely only on recaps of the final bill.

Notably, the final bill does not have the E-Verify provisions that would have prohibited certain federal contractors from receiving any stimulus funding unless they used the E-Verify system.  E-Verify is an internet-based system -- administered by the government -- that allows employers to verify employees’ work eligibility.

The biggest headline grabber in the new bill is the changes to COBRA (the Consolidated Omnibus Budget Reconciliation Act), which are complex and will require employers to take additional steps. Numerous sites have done a good job summarizing the changes, including World of Work, the Ohio Employer's Law Blog, and the Pennsylvania Labor & Employment Blog.   The changes are effective next month, in March 2009.

The DC Employment Law Update recaps the bill as follows:

The key concept of the new COBRA provision involves the creation of a new “qualifying event” that makes involuntarily-terminated employees (and their covered dependents) eligible for a 65% COBRA premium subsidy for up to 9 months.

An eligible employee is one who has been involuntarily terminated between September 1, 2008 and December 31, 2009 and who earns less than $125,000 if single or $250,000 if filing jointly (for those earning above these limits, the subsidy becomes taxable through an income-based phase in).

Eligible individuals who initially declined coverage must be given an additional 60 days to elect to receive the subsidy. ... COBRA notices must provide information about the new extended coverage....

What do employers need to consider now regarding this new COBRA law?

At a minimum, employers can put together a list of all employees who have been involuntarily terminated (other than for gross misconduct, which is excluded under COBRA) since September 1, 2008.  Employers can then determine who is currently enrolled and who is not and who may need to receive some additional documentation.  Then employers can also consider steps to ensuring full compliance with the notice and administration provisions.

Because of the complexity of the rules (and the lack of additional guidance from the government on these new rules as of now), employers should also consider reviewing its practices with legal counsel. 

What else is in the stimulus bill?

There are also provisions restricting executive compensation, provisions relating to the use of H1-B visas for TARP recipients and Work Opportunity Tax Credits.  

I will be giving an audio conference for BLR on the subject of the new economic stimulus bill on April 29, 2009.  Full details will be available on their website shortly. 

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Leave it to librarians to come up with a great new resource page for learning about Connecticut's unemployment laws.

I can hear the chuckles now. Librarians? 

Yes, librarians.

As long-time readers of the blog know, one of the best kept secret resources for attorneys and businesses are the judicial branch law libraries.  They continue to serve as a clearinghouse for lots of information that is scattered among the Internet.

The librarians latest creation is a pathfinder page on the state's unemployment compensation laws.   Among the items of information: various resource guides from the Connecticut Department of Labor and Office of Legislative Research; links to the relevant Connecticut statutes and regulations; library materials; and useful websites.  It's a great place to start research on the subject.

The pathfinder isn't perfect. For example, although it links to documents helping to explain what an employee's rights are, it doesn't link to the DOL's "The Employer's Guide to Unemployment Compensation" -- a must read for employers who are addressing the issue of unemployment compensation. 

The Connecticut Department of Labor also has additional information helpful to employers on its website (that isn't listed on the pathfinder), including information on: Eligibility Requirements, Quality Control Brochure for Employers, Rapid Response Information Packet, Shared Work Program (as alternate to layoffs).

So, while the judicial branch law libraries have provided a great resource to start looking at the unemployment compensation issue, employers should also be aware of other resources out there. But it is a better place to start research than a Google search.  

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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.

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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. 

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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. 

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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. 

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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.

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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.

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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. 

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Dear Mr. President:

Congratulations on your inauguration today!  I hope you enjoy the day because when you wake up tomorrow, I suspect that you'll realize there are a lot of items on your "to-do" list (though taking out the garbage probably isn't on there anymore.)

With two wars and a recession to deal with,  I wanted to bring to your attention an area of law that you might dismiss or overlook as trivial - employment laws.  The truth is that federal employment laws should be a cornerstone of your administration because it is these laws that regulate the employers that you need to hire people and get this country out of the economic funk it seems to be in. 

You might have missed it with your transition plans, but already employment laws in the United States have changed fairly significantly in 2009. Employers are having to now address amendments to the Americans with Disabilities Act, which broaden the scope of who is disabled.  You can read about those changes here.

And just last week, new regulations went into effect changing the way some issues are handled under FMLA. (Don't get me started on the differences in FMLA and CTFMLA).  New rules regarding E-Verify are also effective on February 20, 2009. 

Now there is speculation about a whole host of other employment law bills that Congress is considering.  Your campaign website certainly listed a wide assortment of changes you'd like to see.

Some bills are now a foregone conclusion, such as the Lilly Ledbetter Fair Pay Act, which survived a cloture vote in the Senate last week and is primed for passage.  But others remain under consideration, such as the Employee Free Choice Act.  Your recent comments suggest that you are looking for a compromise on EFCA, perhaps.

This blog has remained a decidedly a-political one, so you won't hear grandstanding from me about how these laws will "hurt" employers or don't go far enough to protect unions or employees.   Rather, let me suggest that you review these proposed bills through a prism that you seem to favor: Is there a problem with our current laws and what is it? Does this particular bill fix the problem? If it does, does it create new problems that didn't exist before?

Whatever you decide, you should understand the impact that even a bill as innocent as the Ledbetter Fair Pay Act has on employers. Passage of the Fair Pay Act will, in essence, require employers to better document their compensation decisions and then retain documentation of such decisions for years, if not decades.  So, while the bill allows workers who may have been discriminated against to sue, it creates more work for human resources professionals.  Is this a good use of resources? Perhaps. But it is a classic example of how a bill that is designed to "fix" one area of the law, will create other issues that may be unintended consequences.  

My only advice (and as lawyers, we get paid to give advice, so when it is free, take it with a grain of salt) is to seek the counsel of those moderates who understand the impact that every new law has on how businesses are able to function.  And be wary of those on both sides who suggest that without passage of certain laws, businesses or unions will not survive. The truth is always somewhere in between.

One of Hartford's most famous residents, Mark Twain, once said "Independence .... is loyalty to one's best self and principles, and this is often disloyalty to the general idols and fetishes."    The crowds in DC today are a testament to the belief in your character and principles.   I look forward to seeing how this all plays out in the months and years ahead.

I wish you and your family well over the next four years.  And should you ever need some counsel on employment laws, of course, I'll be more than willing to assist.

Warmest regards,  Daniel A. Schwartz

P.S. My kids say hi to Malia and Sasha. 

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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.

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 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.

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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.

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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. 

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January 1st brings lots of things - resolutions, fresh starts, and, inevitably, the occasional letter with a 2008 year written in, instead of 2009.

But traditionally, it also marks the effective date for a few more Connecticut laws.  (October 1st is also a big date for many new laws).

So what does January 1st bring for employers? 

• Minimum Wage - The state minimum wage has gone up again -- this time to $8.00 per hour, up 35 cents.  It is the first part of a two-year increase. In 2010, it will increase to $8.25 per hour.  
   
• Professional Employer Organizations and Employee Misclassification - I covered part of this back a few months ago where a new commission was established as part of this new Act. Another part of the act concerns "professional employment organizations" and regulating companies that provide leased employees and similar activities.  New rules require such companies to register with the Department of Labor.  The Department now has the forms necessary up on its website and has also added a FAQ section.
  
  
• New rules regarding construction safety also go into effect.  For employers in Connecticut in the industry, it means more training.  I summarized the new law back in May 2008 here.  

  A full list of all the new Connecticut laws can be found here.

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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.

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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.

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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.)

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Continuing my series of looking at the new FMLA regulations (part one can be found here), this post will address some of the issues regarding "serious health conditions", light duty work, medical certifications, paid leave, perfect attendance and waivers of claims.

Serious Health Conditions, Continuing Treatments and Chronic Conditions

• One question that often arises is what is a "serious health condition".  The regulations clarify the definition of a “serious health condition.” While the period of incapacity remains at more than three consecutive days, the incapacity must be for full days.  In addition, the first visit to a doctor must occur within 7 days of the start of incapacity and notably, needs to be "in person". 
• Another question arises is what satisfying a "continuing treatment"?  For a health care provider to establish a continuing treatment, there must be a minimum of two visits within 30 days of the the first day of incapacity.  The health care provider, not the employee, must determine when the second or followup visit should occur. 
• For chronic conditions, the new regulations set forth some minimum standards that must be met. The most critical is that the condition must involve treatment at least twice a year.

Light Duty

• The new regulations now state that time spent performing light duty does not count toward FMLA entitlement. This is a change from the current regulations which arguably provided that job restoration rights were available until 12 weeks had passed within the 12-month period (this included all FMLA leave taken and any periods of light duty). The final FMLA regulations provide that the employee's right to FMLA leave and job restorations rights are on hold during light duty work. 
   
• What happens at the end of voluntary light duty work? The employee has the right to be restored to the position the employee held at the time the employee’s FMLA leave commenced or the employee may use the remainder of his or her FMLA leave entitlement.

Medical Certification Process

• For many employers, the changes the medical certification process may be among the most noticeablee because of changes in the timeframes and process.  While the regulations make "sense", it still represents a change in the way employers are used to proceeding.
   
• First, the regulations will now create different medical certifications for employee and family members.  Because employers need more information into the reasons why employees could not perform their jobs, the new regulations set up a new medical certification form when looking at the medical need for leave set up by an employee’s own serious health condition. A separate medical certification form (also set up by the DOL) can be used when employees request leave to care for a family member with a serious health condition. This form seeks information on the type of care being provided by employees.
   
• Next, it changes the time periods for requesting a certification and responding to such a request. Instead of the two days now provided, the new regulations give an employer five days to request a certification. The employee then has 15 days to provide the requested certification. Additional time may be granted if the employee is using “diligent, good faith efforts” to get the certification and lets the employers know of such efforts.  The employer may now get certifications annually for conditions lasting longer than a year.
    
• What happens if the employer finds that the certification is deficient? Employers must then notify employees of certification deficiencies. The final rule adopts new rules for incomplete and insufficient certifications and procedure for curing these deficiencies. Employers will now need to notify employees in writing of the additional information that is necessary to complete the medical certification and allow employees seven calendar days to provide the additional information. If employees fail to submit a complete and sufficient certification afterwards, the employer can deny FMLA leave.
   
• For conditions of relatively short duration, employer may get a recertification every 30 days. If the initial certification says that an absence will last longer than 30 days, recertification can be requested when the initial certification says the absence will end or six months, whichever is shorter. Recertification can take place any time the employee requests.
   
• If the employer requests it, the employee must provide FMLA medical certification even when substituting paid leave.  Previously, employees could comply with a lower standard for medical certification standard under the employer’s sick leave plan when the employee substitutes any form of paid leave for FMLA leave. The new rule eliminates this provision because the statute explicitly provides for an employer's right to a medical certification to confirm a serious health condition. 

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As I reported on Friday, the U.S. Department of Labor has released final regulations implementing the Family and Medical Leave Act (FMLA).  The regulations (which you can dowload here) become effective on January 16, 2009.  At 750 pages, you need a book just to summarize the changes (and I'm sure one of the legal book publishers out there is already fast at work.)

60 days may seem like a long time away, but with the holidays coming up, these new regulations leave employers will little time to make the changes. Add to the fact that the ADA Amendments go into effect on January 1, 2009 and this represents a huge potential minefield.

For the remainder of the week, I’ll be summarizing what employers need to know now about the FMLA:

The Rules on What Employers are Covered by FMLA Are the Same, But Connecticut's Rules Still Apply

Employers may first ask if they are covered by the FMLA.  The rules on who is a covered employer (as determined by the number of employees) haven't changed.  Importantly, Connecticut's FMLA rules (which differ in some important ways from the federal FMLA) haven't yet been affected by this change. I'll try to note, in an upcoming post, some of the differences between the two, but for now, employers in Connecticut should tread carefully when adopting any blanket changes as a result of the federal FMLA, without reviewing state law (and consulting an attorney where needed.)

The Important Takeaway From the New Regulations is Improved Communications and Collaboration

Overall, the new regulations require employees and employers to communicate better.  Whether its requiring more notices from the employer, or more information from employees, the regulations suggest that "hiding information" is frowned upon.  As a result, employers will need to update their policies and forms regarding FMLA.  Employees will also need to provide more updates about their leave, including providing sufficient notice where possible. 

Lots More Notice Requirements and New Forms to Use for Designating Leave

• For employees, they must now follow their employer’s call-in policies regarding absences. Thus, if the employer has a policy of requiring employees who are going to be absent to call-in before work, FMLA-eligible employees must do at least the same. 
• For employers, there are two new notice requirements. Employers will now need to use two forms (instead of the prior one): the first will tell employees of their FMLA eligibility and rights; the second will formally designate the leave as FMLA leave. Employers will now be required to use a new form (which had been optional) that tells employees of their eligibility to take leave within 5 business days. 
• If employees are eligible for FMLA leave, then they must be given a notice of “Rights and Responsibilities” which tells employees of several obligations, including that they must provide medical certifications. 
• Clarifying a prior issue, employers can now provide retroactive notice so long as the delay doesn’t cause any harm to the employee. In addition, employees and employers can agree that leave be retroactively designated as FMLA leave. 
• Overall, if employers have been using any of the optional forms, there are several new forms available for use as well including new certifications and designation of leave forms. 

In upcoming posts, we’ll cover some of the other changes. Here are some previews:

• New regulations defining what is a “chronic condition” and other parameters for chronic conditions and intermittent leave;
• New rules that prohibit direct supervisors from getting employee’s medical information;
• New guidance on how to substitute paid leave for FMLA leave;
• New medical certifications that distinguish between employee and family member “serious health conditions”
• Information on the “Bermuda Triangle” – the interplay between the ADA, FMLA and workers’ compensation. 
• More guidance on when employers can request medical certifications and recertifications as well as fitness for duty certifications. 

Lastly, there are new rules that will govern military leave as well. The new regulations clarify how to implement the expanded 26 weeks of unpaid FMLA caregiver leave for relatives of seriously injured or ill service members.

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Following up on my earlier post about Monday's official release of the new FMLA regulations, the regulations are now available electronically a few days before.

You can download a copy here (though you are forewarned that it is over 700 pages long -- about 2 MB). 

A cursory review of the document shows that the first 550 pages or so contain extensive discussion of the changes in the new rules with the specific feedback received from employer and employee groups.  (My prior post in February summarized the draft regulations.) The actual regulations start on page 556.

For employers, the regulations will provide some helpful guidance in the area of military leaves.  Since the new military FMLA went into effect early in 2008, employers have been left to struggle with how to reconcile the new law with the differences that exist in the military law. The new regulations attempt to resolve those issues.

I'll be posting updates on further specifics as we digest this massive document but as I said before, the new regulations will not take effect until January 16, 2009.

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The Associated Press (through this The Hartford Business Journal article) is reporting that the final revisions to the Family and Medical Leave Act regulations are to be released on Monday (November 17th), and will include new rules defining how families of wounded service members will be able to take unpaid leave to care for them.

Among the other changes, the new regulations will:

• Allow employers to require "fitness-for-duty" evaluations for workers who took FMLA time and are returning to jobs that could endanger themselves or others.
   
• Allow businesses to exclude from perfect attendance awards employees who took FMLA time.
   
• Prohibit an employee's direct supervisor from getting an employee's medical information when a medical certification is needed under FMLA.

The new regulations will be effective January 16th. I'll post an update when more details become available.  The regulations are over 762 pages long so it may take some time to go through.

Expect to hear a lot about this for the next few weeks.

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Here's a quick update on some items and topics that have been covered by the blog over the past year:

• Earlier this week, I raised the issue of whether the rising unemployment rate would also lead to more employment lawsuits. Reuters yesterday released a very good and balanced article on the subject. I shared my thoughts with the reporter who was kind enough to add those comments to the article. You can check it out here. 
   
• The lawsuit brought by three wrestlers against the WWE is continuing..but at a snail's pace.  As you may recall, WWE filed a motion to dismiss in early October on the merits of the case. The wrestlers' response was due on November 10th. However, the wrestlers have now sought an extension of time and their response will now be due in a few weeks. In the meantime, the wrestlers did mention in their most recent filing the possibility of adding or incorporating claims that other wrestlers have. No word on any details, but we can expect some new developments by month's end.
   
• A few weeks ago, I commented on the provocative article that suggested getting rid of performance reviews.  SHRM has a good article posted today that argued that performance reviews should not be eliminated. Instead, managers must "own" the reviews (subscription required).

Whether individuals believe in performance reviews or not, organizations are increasingly looking to hold managers accountable for accurate, timely and unbiased appraisals which help manage performance and head off legal issues.

“A lot of people are asking questions, given the financial crisis, about what HR or human capital programs companies should be focused on and performance management would definitely make my short list,” said Laura Sejen, Watson Wyatt’s global practice director for strategic rewards in New York. “It’s more important than ever to make sure that employees and managers are clear about organizational goals and priorities.”

• Last year, I wrote about a case that held that the National Bank Act may preempt certain state law discrimination claims.  The Employer Law Report reports that two new cases have also followed suit, making it that much more important for national banks to learn about their available defenses in employment discrimination claims.
   
• Last, in response to my article on Veteran's Day, I received a very nice phone call from an officer of the Naval Enlisted Reserve Association (NERA). Reservists are an often-overlooked part of our military and I commend them for the work they are doing on behalf of our men and women fighting in the wars in Afghanistan and Iraq.

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Goin' to the chapel and we're Gonna get married
                               ----- "The Chapel of Love", by the Dixie Cups

Today (November 12th) is the day that many lesbian and gay couples will indeed be going to the chapel (or town clerk's offices, or other places); it's the day that they can get officially married.  (For those that somehow missed it, the Connecticut Supreme Court approved of same-sex marriages in a ruling last month.)  A Public Defender links to a fairly thorough report on what is likely to occur today here and the New Haven Independent has the details on a variety of weddings that are planned for today after the official court ruling implementing the Supreme Court's decision. 

To be entirely accurate, it's the first day that town clerks will have the forms and be able to process applications for marriage licenses.  (You can find a list of all town clerks here.) After the license is issued, the couples have 60 days to actually get married. But some couples are expected to get married immediately after the licenses are issued.

Why is this important for Connecticut employers? Because as of tomorrow, there are obviously going to be a few employees who will now be newly married.  As such, the employee is entitled to have all the rules applicable to married couples apply to them.

This means that under Connecticut FMLA rules, employees will be entitled to take time off to care for a same-sex spouse's serious health condition or enroll in some types of medical/dental plans.

What should employers do now? Go through your policy and procedure manual and your benefit plans and gain an immediate understanding as to what will apply, what may apply, and what will not apply. If it's easier to visualize, use a green, yellow and red-light list to separate the issues and figure out which ones needs to be followed up on.  

For example, one issue that remains confusing will be the application to federal income tax withholding because federal tax laws differ from Connecticut laws.

After sorting through the issues, figure out which ones need to be followed up on and make a decision on how the company will treat situation.  Without a clear understanding of the issues up front, employers will be open to making decisions on the fly -- and more often than not, mistakes  tend to occur when employers make hasty decisions.

Get things right the first time by ensuring that your policies regarding marriage are sexual-orientation-neutral.  And by all means, if you give your married employees a bouquet of flowers for the happy occasion, do the same for any same-sex couples.

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UPDATED

My earlier post on the Obama Transition Team's pledge not to discriminate on the basis of gender identity has been picking up some press.  As I indicate, it is likely that this pledge will form the basis of an executive order when the new administration starts.

NPR interviewed me earlier this afternoon. You should be able to check it out at the top of every hour or, better still, go online and listen to the news. It should be up after 3 p.m. here.

I'll update this thread with additional press references as I learn about them.

4 p.m. Update: In addition to the radio interview, it is also listed in NPR's "News in Brief" section. 

11/8/08 Update: The ACLU has issued a statement praising the policy.  The Daily Kos picked up on the press release as well. 

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AS UPDATED 11/7 below:

In my earlier post, I highlighted the policy issues that are likely to be on the new administration's radar.

But suppose you want to work in the new administration, there's an "expression of interest" form that you can fill out too on the "Jobs" page.

Buried at the bottom of the page is this pledge:The Obama-Biden Transition Project does not discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.

This signals a dramatic shift in the hiring practices of the executive branch because current law does not prohibit employment discrimination on the basis of gender identity.  (For a comparison, look at the current Bush administration's appointments page.) 

UPDATED: To clarify my earlier post, I didn't mean to suggest that the Executive Branch had permitted discrimination on the basis of sexual orientation. Indeed, Executive Order 13087 from 1998 added "sexual orientation" as a protected category for civilian employment in the Executive Branch. Federal law does not prohibit private employers from discrimination based on this category.  But this new statement extends the protection to gender identity and also signifies that the appointed positions (rather than the civil service positions) will be under this new standard for both sexual orientation and gender identity.

It's one thing to raise the issue in a platform.  It's quite another to start implementing a change like this almost overnight. And this has significant ramifications for the entire Executive Branch once the new administration starts.

It'll be interesting to see if any of the national lesbian, gay and transgendered groups pick up on this development. 

No need to wait until Inauguration Day. Things are changing right before our very eyes.

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There's been a lot happening over the last few days, both election and non-elected related -- too much to keep up with. In fact, with the election dominating the news, some other interesting items have felt overlooked.  So it seemed an appropriate time for a post recapping some of the most interesting and noteworthy items that I've come across the last few days:

Obama and The New Administration:

• John Phillips, over at The Word on Employment Law, has a terrific piece up this morning about what the election has meant to him, as an employment lawyer. 
• PointofLaw.com picks up on a WSJ article that suggests that the Employee Free Choice Act may end up being put on the backburner for the time being.
• VentureBeat.com has a post about how technology may play a major role in the Obama administration and the implications for businesses (along with a hint that Change.gov is coming soon)
• A good recap of the changes to the Connecticut legislature (now, overwhelmingly Democratic) can be found at CT News Junkie. 
• WSJ Law Blog has an interview with an employment lawyer who predicts of softening of the stance against unions.
• Workplace Prof has a wide-ranging post that foresees perhaps great changes to the workplace that will allow the United States to be "the envy of the world insofar as how it treats its working men and women."  Nothing like setting the expectations low...
• Lastly, my friend and former law school professor, Kimberly Norwood, has an inspiring piece up on Blackprof.com this morning about how the election can reshape a generation of kids. 

Other Employment Law Items:

• The Laconic Law Blog recaps the Mental Health Parity bill that got lost in the discussion of the financial rescue plan.
• The Second Circuit, which has been strangely quiet the last few months, rules that being "smacked around" (in the words of the Wait A Second! blog) is not an adverse employment action.  The case, Mathirampuzha v. Potter (download here), also strictly enforces the administrative exhaustion requirements found in Title VII. 
• Studs Terkel, a prolific author who wrote some memorable books on workers, died last week. This post recaps the impact he had on the workplace. One of my high school teachers loved him and made us read "Working"; the images of the workers he described in that book still remain with me today.
• Law.com had a notable piece of what to do when a witness is a former employee.  For employers, it has some good tips including one that should be obvious: Talk with that person because the other side certainly will when they find out about him or her.
• Michael Moore (and probably not the one you're thinking of) asks the provocative question of whether the ADA Amendments will open the door to nicotine-addiction claims.
• For employers who conduct drug testing under Department of Transportation guidelines, the changes effective this month are recapped by the Employer Law Report.
• World of Work reports on the issuance of a final supplemental "No-Match" Rule by the Department of Homeland Security.  (A "no match" letter indicates that the social security number provided by an employee at the time of hire may be invalid.)
• Ohio Employer's Law Blog reminds us that cost-cutting does not necessarily equate to age discrimination.  It's another example of the importance of understanding the role statistics can play in reviewing reductions in force.
• Although this post suggests that garden leave policies are an "increasing trend" among employers, these types of clauses have been around awhile. Caution should be used though in Connecticut to make sure that the clauses comply with theories on restrictive covenants in the workplace.

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Last night I started crafting a post weaving in the rejection of the Constitutional Convention question in Connecticut, with state election results and the election of Barack Obama.  And yet, in the clinical analysis of what it meant, something else seemed lost -- a sense of history and perspective.  Last night seemed bigger than just looking at what laws are likely to be enacted next term.

So, let me leave it to another post to break down what the election results mean to employers. That will come with some time.  (And for those who are really interested, I'll have more details on a presentation I'm giving on November 11th discussing that very issue.)

But for now, embrace this thought.  Only 44 years ago, Congress passed one of the most sweeping bills still in effect today -- the Civil Rights Act of 1964.  And every day, courts in the United States are still using that law to make decisions on dozens of court cases.  Its' purpose?

To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

And now, despite the short history between its passage and today, the nation just elected the first African-American President. 

Whatever your politics, it is a remarkable achievement and, as a history major in college, I feel pretty confident in saying that our nation's history books start a new chapter today. 

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Have you ever wondered about the fluctuating workweek method for calculating the regular hourly rate or the overtime premium rate for employees who are paid a weekly salary? Most have probably not. But if you are one of the few employers who do use it, have we got a Connecticut Supreme Court case for you. 

In a decision officially released next week, the Connecticut Supreme Court in Stokes v. Norwich Taxi, LLC (download the advanced release opinion here), looks to the federal laws and regulations to determine the parameters of the fluctuating workweek method as applied in Connecticut.

For background, on the fluctuating workweek, The Wage & Hour blog had this good summary:

Employees who are compensated on a salaried basis and whose hours of work fluctuate from week to week may be paid a salary such that the fixed amount covers all straight time pay for whatever hours are worked in a given week. The following conditions must be met: 1) Hours must fluctuate from week to week; and, 2) There must be a clear and mutual understanding between the employee and employer that the fixed salary is compensation for the hours worked each work week, whatever the number; 3) The amount of salary must be sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked; and, 4) The agreed-upon salary must be paid even though the workweek is one in which a full schedule of hours is not worked.

This four-part test has formed the basis of several circuit court decisions.  The federal regulations on the subject are also helpful.  29 C.F.R. 778.114 can be found here.

So what did the court decide in Stokes? Well, first that the employer bears the burden of proving that the fluctuating workweek method applies under the facts of the case, not the employee.  The court then concluded that the employer failed to establish the second element of the four-part test (similar to the one above). 

The court also ruled on a number of other procedural issues, but those have minimal relevance for employers.

What's the takeaway from this case for employers? Understand the fluctuating workweek method.  It is not used all that frequently and if it is used, it is not the easiest to follow. Getting legal counsel involved at the outset to structure the position appropriately may be the easiest way to avoid problems in the future.

Final word of warning: earlier this year, new regulations were proposed that would modify the regulations on the fluctuating workweek. So this may be the first and last time the Connecticut Supreme Court looks at this issue in this fashion. Stay tuned.

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The Connecticut Appellate Court today ruled that an employer did not wrongfully discharge an employee who refused to participate in a return to work medical examination.  The Court held that the Americans with Disabilities Act (ADA) allows for medical examinations in certain situations and that the employer was justified in asking for one in this case. 

In Joyner v. Simkins Industries, Inc., (officially released November 4, 2008) (download here), the discharged employee claimed that the employer violated the public policy underlying the ADA by requiring her to undergo a return to work medical examination.  Under the "wrongful discharge" theory, she contended, she should not only be allowed to proceed with her claim but prevail on it as well.

(Notably, the Appellate Court doesn't explain why the wrongful discharge claim -- which is a narrow exception to the employment-at-will doctrine -- is the proper vehicle for such a claim when the employee might have explored a direct ADA claim.  I'll followup on that issue in a future blog post.)

The Appellate Court found that under the ADA (42 U.S.C. 12112(d)), employers must show that the medical examination is job-related and consistent with business necessity.  The Court said that federal circuit court decisions that have held that "business necessities may include ensuring that the workplace is safe and secure or cutting down on egregious absenteeism."  Here, the Court said that the employer had a legitimate interest in following up due to the vagueness of various notes and the employee's refusal to discuss the matter with her employer.

What was helpful for the employer in this situation was a policy in the employee handbook that provided for medical examinations -- at the employer expense -- in certain situation.

Thus, the takeaway for employers from this case is three-fold:

• Use this case as an opportunity to review your existing policies and procedures on return to work medical examinations;
• When employees refuse to return to work from absences or provide only scant documentation, consider using medical examinations to force the issue;
• Understand what is -- and is not -- allowed under the ADA regarding issues of return to work and medical examinations.

As always, the specific facts of the situation are important so consult with an attorney if you have any questions that arise.

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News about the WARN Act keeps surfacing in everything from law firm closings to bakery layoffs. 

While I've touched on the subject before, the Connecticut Law Tribune this week published a longer piece that I've written on the basics of the act for employers, particularly those in Connecticut.  You can download the article here.  

In my view, this Act is one of the easiest for companies to comply with, and yet, time and again, we see examples of employers who do not follow its mandates.

Perhaps the most important takeaway from the piece is the fact that WARN is not a mandatory severance law but rather a mandatory notice law.  Once the notice is providing within the required timeframe to both employees and various public officials, then the company is -- for the most part -- off the hook here. 

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One of Connecticut's many nicknames is the "Constitution State", so named for the state's adoption of the first state Constitution. (Delaware holds the distiction of the first state to ratify the U.S. Constitution for those history buffs).

But on the ballot in two weeks is a question asking if the state should hold its first Constitutional convention in over 40 years.   For employers and others, serious consideration should be given to the question and I suggest the Ct Votes No website for information on the reasons why voting "no" is a good idea.

Among the possible changes that could come about at a Constitutional convention -- a voter referendum/ballot initiative law or elimination of same-sex marriages.  But perhaps most troubling, constitutional convention delegates can propose anything without citizens or even our legislators having a vote in the final outcome.  And when Constitutional Guru Wes Horton opposes it, you know something is troubling with the referendum.

The Connecticut Law Tribune's Advisory Board (subscription required) has this editorial telling voters to vote no:

 There is no similar circumstance in Connecticut in 2008. Without some overwhelming need for a constitutional convention, such a convention could easily be dominated by single-issue special interest groups. If zealous groups do not get what they want from the legislature or the governor or the courts, they could put the issue to the convention. ....

Stability and tradition and established rules must occasionally yield when a major upheaval in society creates a need for a new or radically reordered system. ... The constitution currently in effect was created by the Constitutional Convention of 1965, called because the traditional legislative election system in Connecticut was clearly out of compliance with the federal one-person, one-vote requirement.

Representative democracy is messy, it can be slow, and it can be vulnerable to special interests, but it is not accidental that this country is a beacon in the world today in part because of the strength and stability of its political and judicial institutions. But a constitutional convention can trump all that. This is why such a convention should be called only when a crisis requires it. No crisis requires it, so voters should vote “No.”•

There have been several Connecticut and legal-related blogs discussing this including A Public Defender (here) and (here), the New Haven Independent with a great report (here).

For employers, this issue -- on its face -- may seem wholly unrelated to them. It's not.  One of the most likely outcomes of a Constitutional convention is a ballot initiative/voter referendum that again -- on its face -- seems innocuous as well. But a look at the issues on the ballots in other states shows that voters are being asked.  For example, Colorado had various constitutional amendments on its ballot (later withdrawn) that would have, for example, protected all employees from termination except for "just cause".

For full information on how this upcoming election can affect state businesses, the CBIA's website -- www.ctbizvotes.com -- is a great place to start.  (For prior posts on election day issues for employers, see here and here.) 

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In the midst of the financial crisis, another bill signed by President Bush has been, for the most part, overlooked, but warrants understanding by in-house counsel for employers and HR professionals that may assist with case management.

Specifically, S. 2450 and new Federal Rule of Evidence 502 give protections to employers (and others) against waiver of the attorney client privilege and work product immunity.  An interesting interview with one of the judges responsible for formulating the bill appeared in the federal court newsletter earlier this year.

Bill Ruskin, a former colleague of mine who publishes the brand-new Toxic Tort Litigation Blog, has a good post summarizing the developments. 

The biggest development is new Rule 502 that was added to the Federal Rules of Evidence.  The new rule provides for protections against waiver of the attorney-client privilege and work product immunity.

As Ruskin states:

The practical effect of the new legislation should be to reduce the often staggering legal costs corporations often incur in complex litigation, particularly in producing electronic discovery.  In drafting the legislation, the Advisory Committee of Evidence Rules recognized that lawyers spend significant time and effort preserving the attorney-client privilege and work product.  Under the prior rule, if a protected document was produced, even accidentally, there was a risk that a court would find a subject matter waiver that would apply, not only to the instant case and document, but to other cases and documents as well.  Thus, lawyers placed an enormous amount of effort (and expense) into pre-disclosure document review to protect against inadvertent disclosure.  Although waiver issues always have been a concern in document-intensive litigation (and will no doubt continue to be in the future), the increased discovery burden created by e-discovery brought this issue to the boiling point over the past two years.  Under the new rule, the jeopardy to corporations (and their law firms for permitting a waiver) is substantially mitigated.

So What Does the Rule Really Say?

• Subsection (a) provides that in the event the court determines a party has disclosed information or communication that waives the attorney-client privilege, the waiver will only apply to the information disclosed unless the holder of the privilege intentionally produced the privileged information or communication in a misleading manner;
• Subsection (b) provides that the inadvertent disclosure of privileged information or communication in a federal proceeding will not result in a broader subject matter waiver if the holder of the privilege inadvertently disclosed the information or communication and took reasonable steps to prevent disclosure and rectify the error;
• Subsection (c) provides that disclosure of privileged information or communication in a state court proceeding will not operate as a broader subject matter waiver of the attorney-client privilege in a subsequent federal proceeding if the disclosure does not constitute a waiver under Rule 502 or is not a waiver under the law of the state where the disclosure occurred;
• Subsection (d) provides that if a federal court enters an order that the disclosure of documents containing privileged information or communication does not constitute a broader subject matter waiver, that order is enforceable against any party in subsequent federal or state court litigation;
• Subsection (e) allows parties to enter into confidentiality agreements protecting against subject matter waiver in the event of the inadvertent disclosure of privileged information or communication in a federal court proceeding.

The Bottom Line For Employers

Despite the new rule's forgiving nature, employers should still take great pains to protect the attorney-client privilege and take care when producing documents.  The new rule is designed really to prevent draconian consequences from applying from an inadvertent disclosure -- but an inadvertent disclosure can still hurt an employer a great deal.  For example, privileged discussions regarding the pros and cons of a layoff may be quite damaging at trial if inadvertently released.

So for employers, coming up with a workable system on how documents are to be produced is critical to keeping leaks to a minimum and ensuring that the attorney client privilege is preserved to maximum effect.  In addition, make sure that any documents disclosed in administrative proceeding follow the same precautions.

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Sunday is officially Columbus Day. But across the country and in Connecticut, the second Monday in October is the day we celebrate the holiday.

Last year, I wrote a post on the day and why most people are working on that date. Given the relevance of the post again this year, I reprint it below (with some slight updates).

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of a federal law, 5 U.S.C. Sec. 6103. Besides being a federal holiday, its a state holiday too.  So, if you work for a federal or state employer in human resources, or otherwise, you have Monday off.  (As a result, lots of Columbus Day sales are going on too.)

If you are a private employer, you probably don't give your employees the today off.  In fact, a recent survey in California pegged the number of employers giving off for Columbus Day at just 7.8 percent (it ranked above Lincoln's Birthday and below Good Friday). 

Although companies have established holidays, why don't employers have to close on a state or federal holiday? Its pretty straightforward.  The U.S. (unlike some other countries) does not have any "national" holidays.  Indeed, just because the government recognizes a legal holiday doesn't mean that private employers have to follow it. (Other examples include Veteran's Day and, here in Connecticut, Good Friday).  The State Department has an interesting summary of each of the days on their website. 

Legal holidays merely dictate what the government is going to do; how the rest of the country chooses to follow the holiday is up to them.  And yes, that means that you could conceivably make your employees work on Memorial Day or 4th of July (of course, if the company is a service industry, they probably require employees to work today).  But it probably isn't good business practice as employees will flock to those employers who do give off those holidays.

What is a good business practice for Columbus Day now? I would argue that if the employer is going to designate 8-10 days a year for holiday, employees would rather one or two of those days be designated as a floating holiday rather than Columbus Day.   Giving your employees a choice of days is a terrific way to give an added benefit that has the advantage of allowing the employees an choice in their favor.  Thus,most employers just take a pass on designating Columbus Day a holiday. 

The Knights of Columbus, which is based in New Haven, Connecticut, would probably disagree.  But you can visit their museum to learn more about Christopher Columbus. Of course, don't go on Columbus Day: the museum is closed.

Clip art licensed from the Clip Art Gallery on DiscoverySchool.com.

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The headlines this week, particularly to those in Connecticut, sound an ominous tone.  Foxwoods announces layoffs of 700. And this morning, a new government report came out showing that employers shed nearly 160,000 jobs. 

Where will this all lead? That's the $1 trillion dollar question that is on everyone's mind. But in the meantime, there are several laws and issues that employers can familiarize themselves with now to deal with whatever the economy throws at it.

1. WARN Act - Number one is the Worker Adjustment and Retraining Notification Act. I've covered this before, but the key aspect of this law is that employers need to provide laid off employees with prior notice of an upcoming reduction in force. BUT, there are exceptions including for economic distress. So employers who are facing a deep credit crunch may want to look to that statute to understand their rights and obligations.
    
2. Unemployment Rules - Employers in Connecticut who have to layoff employees need to comply with rules about providing layoff notices to employees to allow them to receive unemployment compensation from the state.  The Connecticut Department of Labor has a detailed website on the subject including a guide for employers. 
    
3. Establishing and Developing a Legitimate Non-Discriminatory Rationale for Layoff - As I've indicated before, employers who layoff employees and who are subject to a lawsuit later on will need to establish a legitimate non-discriminator reason for the layoff. Is the economic downturn enough? Maybe. But employers should show how the economic downturn is affecting the business.  Are factory orders down? Are accounts receivables at unacceptable levels? Figure out the link between the downturn and business to provide the support for the decision.
    
4. Establishing Layoff Criteria - As the Pennsylvania Labor & Employment Law Blog recently highlighted, developing layoff criteria will also be important:

...It is advisable to develop selection criteria that support the business reasons for selecting one employee over another. Unless dictated by union contract, employers have discretion in developing the selection criteria which can include factors like, seniority, relative skills, performance, and/or disciplinary record.  More than one factor may be used.

Forced Ranking Systems are sometimes utilized to rank employees against one another from the top down based on performance criteria. The subjectivity in forced ranking can be challenged as discriminatory unless uniformly and rationally applied.

5. Severance Agreements - But the best way to reduce liability for employers is to offer severance benefits in exchange for a release of claims from employees. I've discussed this at length before, but if you're not familiar with the Older Worker Benefit Protection Act, now's the time to catch up on this important federal law.

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The sword fight (rather, word fight) between a Connecticut Law Tribune columnist and the CHRO shows no signs of abating (for the previous rounds see my earlier post here). 

Round Three comes in today's paper with a further response from Karen Lee Torre to the letter posted by CHRO Acting Executive Director Robert Brothers.  Let's just say that she shows no sign of backing down from her earlier criticisms:

...I irked an agency over-populated by people invested in imaginary discrimination and stirred an agency stakeholder to employ an overused smear tactic against critics of his taxpayer-funded widget factory -- the canard of bigotry. Brothers asserts that I made “generalizations about persons of a different race or ethnicity.” Rubbish. I did no such thing. I cited the numerous frivolous complaints filed with CHRO, an agency that wastefully duplicates the federal Equal Employment Opportunity Commission. Brothers further interpolates into my column an attack on the “intellectual” gifts of his staff. More garbage. I said many were unproductive, not stupid.

Brothers insists my comments had “ugly overtones” that show his agency is still needed. Having already dispensed with Brothers’ bigot-baiting and redirected it to the trash heap where it belongs, let us consider what is truly ugly -- judicial records and CHRO’s annual report.

Then, Attorney Torre cites to this blog for support referring to a prior post where I note that the CHRO's human rights referees issued just six decisions over the last year.  While I'm flattered for the reference, the point I was making was not to show that the hearing officers were unproductive or incompetent -- only that it did not seem like an effective use of taxpower dollars to have so many.  

How can the back and forth stop?

Here's an novel idea: Attorney Torre and like-minded individuals should be appointed immediately to a task force or working group helping to improve the CHRO.

Will this ever happen? Probably not.  The CHRO and Ms. Torre will probably scoff and laugh at the idea for one reason or another.

But, if both could move beyond the rhetoric, they would realize that Connecticut's too small to have experienced practitioners like Ms. Torre stand on the sidelines, when a state agency can use help and advice on how to improve.  

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As expected, President Bush a little earlier today signed the ADA Amendments Act of 2008 into law.  The Act becomes effective January 1, 2009. The Associated Press has the early details and noted that the bill was signed without public comment or fanfare:

With his father looking on, President Bush on Thursday signed legislation expanding the protections afforded by the landmark Americans with Disabilities Act to those who can use medication or other devices to treat impairments.

I've previously summarized the law in a post last week which can be found here.

Various groups have issued press releases touting the bill again. (As you might imagine, each time something happens on the bill, there's a flurry of press releases that all pretty much say the same thing.) You can read the American Diabetes Association's release here.  NAM's blog post on the subject last week is more than sufficient to get the management reaction to the bill.

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Don't say you weren't warned.

Back in June, I had a detailed post about a new state law that will require many companies to enact measures to protect Social Security numbers and other typers of "personal information". 

The new law, Public Act 08-167 (called "An Act Concerning the Confidentiality of Social Security Numbers"), is just a week away from in effective date of  October 1, 2008. You can download the text of this very broad new law here.

This new state law requires all businesses that "collect Social Security numbers in the course of business" to safeguard social security numbers, dispose of them properly and create a policy regarding such information. It also requires all "persons" who get "personal information" on one person, to safeguard such information as well.

So, what do companies and employers need to be thinking about now?

• Create a "Privacy Protection Policy"

This policy must 1) ensure confidentiality of Social Security numbers, 2) prohibit their unlawful disclosure, and, 3)  limit access to them.

• Publish or Post the Privacy Policy
  
• Protect "Personal Information"

What is considered "Personal Information"?  The Act defines it has "information capable of being associated with a particular individual through one or more identifiers". 
What are some examples? Social Security number, driver's license number, state identification card number, account numbers, credit or debit card number, passport number, alien registration number, or health insurance identification number.  Presumably, this could also include an employers own internal system for identifying employees.   Nothing in the new law prohibits employers from gathering and using this information, however.
What is not "Personal Information"? Any publicly available information lawfully made available from federal, state, or local government records or widely distributed media.

There's still time to get ready.  Adoping such policies and procedures and consulting with counsel about this is the still the easiest way to avoid the penalties later on.

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Nearly six months ago, a landmark ruling by the Connecticut Supreme Court held that Connecticut's anti-discrimination laws required employers to provide a reasonable accommodation to disabled workers, much like the federal counterpart, the ADA.

As I noted in an earlier post about the case, Curry v. Allen S. Goodman, Inc., the Court suggested that the employer had a duty to accommodate an employee even after firing.  In the Curry case, a fired warehouse worker's attorney raised issues about the employee's disability; the Connecticut Supreme Court suggested that the post-termination letter formed the basis of an employee's request for a reasonable accommodation.  In doing so, the Court relied on the ADA to provide some further guidance on what the state anti-discrimination law meant.

Now, six months later, the EEOC has released new guidance on the ADA  and performance-related issues that suggests that the Connecticut Supreme Court's interpretation of the ADA may be inconsistent with the EEOC's own interpretation. 

How so?  Well, take a look at question 10 of the EEOC's guidance.  Question 10 poses the hypothetical question: 

What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?

In response, the EEOC says:

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.

The EEOC guidance adds that "the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including termination) warranted by misconduct."  The EEOC also cites to several federal appellate cases in further support of its interpretation.

This guidance seems to contradict the Curry decision because in Curry the duty to accommodate arose after the employee was terminated.

Where does this leave employers in Connecticut? Perhaps with a split in authorities -- at least until this issue is litigated more fully in Connecticut courts.

Until the courts analyze this issue further, employers need to be aware that Connecticut's anti-discrimination rules may be more stringent than what is required at the federal level.

Ultimately, the legislature should consider some straightforward fixes to these issues. With the ADA about to be amended significantly, having two sets of rules for employers to follow (and for employees to figure out as well) doesn't serve the public good. It only serves to create confusion and more litigation.  Making state anti-discrimination laws more consistent with federal law will help provide for stability and predictability.

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President Bush's signature is expected any day now on the ADA Amendments Act of 2008 (click for my prior posts here), which represent some of the most important changes to federal employment laws in over a decade.  For employers in Connecticut, there is going to need to be some synthesis with Connecticut's anti-discrimination laws so employers should not simply assume the ADA will apply over state law.

But regardless, these amendments are going to have a wide-ranging impact for most employers nationwide.  Here are some of the highlights:

When Do the Amendments Go Into Effect?

January 1, 2009.

Who is Affected by the Changes?

Employers who have been covered by the ADA before (those who have 15 or more employees) are going to be covered by the amendments.

What Changes Have Been Made On How a "Disability" is Defined?

Employers must now adopt a broad standard to determine if someone is "disabled" -- something found in the language of the amendments itself. Courts are to provide coverage to individuals  "to the maximum extent permitted". 

In the short term, this means that more ADA cases are going to pass initial threshold tests. Prior to these amendments, courts dismissed many cases on the grounds that the individuals are not "disabled".  Employers should now assume that more employees are going to be covered by the ADA and make employment decisions with that assumption in mind. 

What is Now a "Major Life Activity"?

Until the amendments, the ADA was silent on what was a major life activity, leaving the issue to the courts to decide. But the new law has a laundry list of activities from thinking to concentrating, from eating to working that is now specified.  In addition,  the operation of any major bodily function is considered a major life activity. For employers, this is again another indication that a "disability" is going to be considered broadly. 

What Should be Done About Mitigating Measures?

Previously, courts and employers had to determine a person's disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids.  Now, employers and courts must ignore those measures. Employers will now need to make sure that then engaging in the interactive process, these measures are properly separated.  

What About Ordinary Eyeglasses or Contact Lenses?

Despite the provision above, Congress created an exception for ordinary eyeglasses and contact lenses.  Those items CAN be considered when determining if someone is disabled.

Is The Revised "Regarded As" Provision In the ADA as Broad as it Seems?

Probably.  Under the amendments, an individual now must show only that that the employer perceived the individual has having a mental or physical impairment (not that that impairment substantially limits a major life activity necessary).  This is very broad and could potentially be setting the ADA up for a massive expansion in its scope.

But when the impairment lasts for only six months or less and is minor, it won't qualify.  Whether this provision will have a real impact in narrowing the "regarded as" section remains to be seen. 

What's the Takeaway For Employers?

Quite simply, ADA cases are likely to move from "threshold" issues (whether the person has a disability) to "liability" issues (whether the person was actually discriminated against).  Employers defending such claims should understand that ADA claims are going to be defended like many other types of discrimination claims: by showing that the employer has a legitimate, non-discriminatory reason for its decision. 

Employers should also start informing human resource staff  of the changes. These amendments are likely to affect the interactive process and employers may need to provide more accommodations to more of their workforce.  Caution should definitely be exercised in the short-term as employers adopt to these new definitions and rules. 

As always, consult with an employment attorney about how these changes will affect your company specifically.  And obviously, if you'd like any particular help for your company, feel free to drop me a line. 

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Two new sets of statistics released this month by the Connecticut Department of Labor shed some light into the workplaces in Connecticut.

First and foremost, the number of deaths in the workplace last year remained the same as in 2006 -- 38.  While any death is tragic, the rate is far below the national average.  The Hartford Business Journal reports that work injuries claimed nearly 5,500 lives nationwide in 2007, resulting in a rate of 3.7 deaths per 100,000 workers. Connecticut's rate for last year was 2.1 deaths per 100,000.

So, are Connecticut employers and workers more careful than the rest of the nation? That's unlikely, according to the DOL, which attributes the lower death rate to the fact that most jobs in the state are in "low-risk industries".  In other words, there aren't a lot of deaths doing insurance and financial services work in Connecticut. 

Second, the DOL reported to the Governor M. Jodi Rell that it recovered nearly $7 million in unpaid wages for workers in Connecticut during the fiscal year that ended June 30.  The press release from Governor Rell (available here) touts the department's "success":

The Department’s Division of Wage and Workplace Standards recovered $3.2 million after 3,234 workers complained they were not paid wages owed to them. The division also recovered $1 million by enforcing Connecticut’s prevailing wage laws and returned $2 million more to workers unpaid for overtime or the minimum wage. Additionally, the department recovered $58,000 in back pay owed to service workers hired by private contractors for work on state property.

According to Division Director Gary Pechie, the unit handled more than 25,000 telephone and written inquiries during the past fiscal year and provided outreach services to businesses and schools to ensure that laws were fully understood.

Perhaps some of these companies thought they could make a cheap buck at workers' expense. But more likely, many of these companies were simply unaware of their obligations. 

IS following the law easy? At times, no.  Overtime rules can be confusing and employers are often unaware of obligations to, for example, pay wages on a weekly basis unless an exception has been granted.  Some of the laws can be found here, but ultimately, remaining vigilant about such laws will reduce the likelihood that your company's run-in with the DOL will end up as part of one of this "statistic".

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The Presidential debates and Vice-Presidential debate are coming up later this month.  A lot has been written about what the candidates' respective positions are (and a lot has been written on everything BUT the issues).  For some recent discussions of various issues, check out posts this week from the Delaware Employment Law Blog, Ohio Employer's Law Blog, and The Word on Employment Law.

While these analysis are helpful, we also have an opportunity to bring labor & employment law issues into the presidential forum through discussion and analysis. Indeed, each campaign has focused on some aspects of labor and employment law (like those found here (Obama) and here (McCain). 

So with that in mind, what one question would you like the debate moderators to ask each of the major party candidates?  If you'd like, just focus on one candidate or one issue you'd like each candidate to address. 

Here are my thoughts and I welcome you to post them in the comments below or on your own blog/website and let me know. 

Question for Obama:

You're supported the Employee Free Choice Act.  One provision of the act would allow unions to organize based on a "card check" instead of a secret-ballot election, which some have claimed is undemocratic.  Why do you support such a provision and why should Americans support this bill?

Question for McCain:

On your website, you've indicated that you understand "that today’s changing economy is making it harder for parents to balance the demands of family life and their jobs."  A bill introduced by Senator Kennedy this year  (S. 1085) would give employees paid sick leave to care for their families.   Why haven't you supported or co-sponsored this bill and why should Americans be against paid sick leave?

Question for Biden:

During this session of Congress, you have introduced over 100 bills. Yet none of them relate directly to labor and employment law issues.  Why is that and do you think that this area of the law really needs to change?

Question for Palin:

Your husband is a union member, a fact touted by your running mate earlier this month.  Do you support the Employee Free Choice Act? And if not, do you think that unions have enough support in existing laws?

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The EEOC today released a "comprehensive question-and-answer guide" (but not regulations)  addressing how the Americans with Disabilities Act (ADA) should be applied to a wide variety of performance and conduct issues. You can download the FAQs at their website here. 

In a press release accompanying the document, the EEOC noted that it released the guide in response to questions from employers and employees.  According to the EEOC:

The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards. At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.

The guide reviews relevant ADA requirements and explains how they govern performance and conduct standards as applied to employees with disabilities. Through examples based on actual cases and specific scenarios that the EEOC has learned about from employers and individuals with disabilities, this guide explains when and how performance and conduct standards should be applied and the appropriate role of reasonable accommodation. The guide explains how and when employees should request accommodations to help them meet performance requirements and comply with conduct rules, and how an employer should handle such requests.

What's notable about this particular Q&A is that the EEOC also offers a "practical guidance" section regarding each topic. Most of it is common sense (or should be) but it is helpful for employers to actually here it from a government agency as well.  For example, among the suggestions:

•  It is advisable for employers to give clear guidance to an employee with a disability (as well as all other employees) regarding the quantity and quality of work that must be produced and the timetables for producing it.
   
• If an employee states that her disability is the cause of the performance problem, the employer could follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation (the obligation generally rests with the employee to ask), the employer may ask whether there is an accommodation that may help raise the employee’s performance level.
   
• Ideally, employees will request reasonable accommodation before performance problems arise, or at least before they become too serious.24 Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.25

As I've stated before, any guidance that the EEOC can offer on these topics will give employers (and employees) one more piece of the ADA puzzle. 

But employers should be cautious about applying the guidance too matter-of-factly. Each situation will still require its own fact-intensive inquiry and Connecticut, in particular, will have its own rules on what is appropriate that may differ from federal rules. Because the EEOC's guidance is not binding, courts are still free to analyze the ADA as they see fit and do not need to "defer" to the agencies suggestions. . And as the EEOC also notes, the guidance may also be tweaked if the ADA Amendments Act of 2008 is passed by the Senate this fall.

However, even with these concerns, the EEOC's guidance today is well worth reading.  As I continue to digest it, I'll followup in the upcoming days with any additional nuggets worth noting.

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I'm not sure where I heard it first, but I was once told that there federal employment laws to worry about, and then there are California's employment laws to worry about.  Indeed, California acts like a country of its own when it comes to several laws.

For employers in Connecticut with California-based employees (whether in sales, manufacturing or otherwise) an important decision released earlier this month reinforces that notion.  In striking down a non-compete law, the California courts have re-emphasized that restrictive covenants in California are unlikely to be upheld.

Several blogs have the details including Wage Law, Employer Law Report and Labor & Employment Law Blog.   L&ELB has the concise summary:

In Edwards v. Arthur Andersen LLP, the California Supreme Court reaffirmed California's strong public policy against covenants not to compete.  The primary issue in the case was whether the Ninth Circuit's "narrow restraint" exception was a proper interpretation of California law.  Under the narrow restraint exception, employers could enforce non-competition agreements that did not "entirely preclude" an employee from practicing his or her trade.  The Supreme Court summarily rejected this exception.  The lesson for employers is that unless a covenant not to compete falls squarely within one of the statutory exceptions, it is not likely to be upheld by a California court.

Connecticut employers with California employees would be wise to review their restrictive covenants again in light of this decision.

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Buried deep, deep, deep within revisions to the federal Consumer Product Safety Commission Act ("CPSCA") is a new cause of action designed to protect whistleblowers of product safety (available here).

This new law, entitled The Consumer Product Safety Improvement Act of 2008,  will afford protection to both public and private employees in retail and manufacturing sectors to those employees who disclose perceived violations of CPSCA (or related acts) to a State Attorney General, a regulatory agency or their employer. 

The Laconic Law Blog has the details of the bill which was signed by President Bush on August 14, 2008.

For employers in the manufacturing and retail area, many states, including Connecticut already afforded employees who complained about some of these issues state law protection.  But this new bill will allow employees to bring claims under federal law through a new administrative procedure; it does not allow the employees to bring their claims directly in court. 

It's yet another reminder to treat complaints by employees of wrongdoing with appropriate seriousness and notify supervisors that adverse employment decisions should not be based on the complaints.

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As I indicated on Friday, I'm currently attending the American Bar Association Annual Meeting in New York City.  Lots of interesting and noteworthy programs for lawyers and in-house counsel of all types. 

During today and Tuesday, the policy-making body of the ABA -- known as the House of Delegates -- has been debating issues of importance to lawyers.  For in-house counsel and those dealing with employment law issues, the HOD considered an important model rule regarding the registration of in-house counsel.  The Model Rule passed overwhelmingly by a voice-vote today, a measure that I had an opportunity to speak to the House of Delegates about.

The ABA Journal reported on the passage of the measure here, and you can find the language that was revised and passed regarding the measure here.

A Model Rule is a proposal advanced by the bar association that is designed to allow other states to copy in adopting their own rules.  In essence, it's like a "best practices" for states.  However, in practice, "model" rules are often modified in one way or another and they may or may not be passed at all by certain states.

Connecticut, as readers may recall, already has an in-house counsel registration rule that went into effect just last month.  So, in the short term, this new ABA Model Rule isn't likely to have any significant effect in Connecticut -- though other states may see more of an impact.

However, longer term, it's likely that some of ideas in the model rules -- such as pro bono work by in-house counsel - will be debated and discussed.  Thus, for in-house counsel in Connecticut, the future is just beginning on the in-house counsel registration rules.

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Although employment laws and regulations are typically seen as telling employers what NOT to do, there are some laws and initiatives by government agencies that give employers of ideas of what TO do, whether in terms of hiring practices or other programs.

One new directive by the The Office of Federal Contract Compliance Programs late last month is focused on promoting the hiring of veterans and encouraging employers to develop programs for veterans.

The Good Faith Initiative for Veterans Employment, or “G-FIVE,” is designed to create incentives for contractors to make significant efforts to hire and promote veterans. G-FIVE reaffirms the OFCCP’s commitment to the Vietnam Era Veterans’ Readjustment Assistance Act and will provide recognition to companies with “best practices.”

What are the criteria that an employer will be judged?  Some of the listed factors are:

• Evidence of covered veterans in the contractor's labor force.
• Evidence of an increase in the number of covered veterans in the contractor's labor force.
• The number of partnerships with local veterans' service organizations to employ or advance covered veterans.
• Established liaison with the state workforce agency job bank or the local employment service delivery system representative to facilitate the posting of their job listings. Whether appropriate job openings were sent to the state and/or local employment service delivery system and the number of veterans hired by the contractor during the AAP year.
• Recruitment efforts at educational institutions to reach students who are covered veterans.
• The number of job advertisements in the local community targeting veterans; and targeted recruitment of qualified covered veterans during company career days and/or related activities in contractor communities.
• Affirmative action steps taken to attract qualified special disabled or disabled veterans through the nearest Veterans Administration job placement program. 
• The number of on-the-job training opportunities provided to covered veterans.

Although this program is only for federal contractors, the guidelines that it sets provide a good starting point for employers to consider. 

With veterans returning from the war each day, there are certainly many qualified soldiers looking for opportunities.  For federal contractors, the OFCCP's directive provides a two-for-one opportunity: getting recognized as an employer with "best practices" in hiring veterans, while also employing veterans who have served this country.

One other added benefit: Contractors that receive a G-FIVE rating will be excluded from an OFCCP compliance evaluation for three (3) years following the date the recipient receives the rating, unless there are some complaints or credible reports of a violation of federal law. 

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• Workplace Horizons reports on a Second Circuit decision from last week  that narrowly construes a non-employee's right to to access an employer's property. 
   
• Delaware Employment Law Blog clarifies the issues relating to what I-9 forms should be used.
  
• World of Work blog has a post about new guidance from the NLRB on employee political activity. 
  
• Golden Practices blog has a very interesting post about the proper way employers can engage employees and repeats a provocative question: Are Employees Really an Audience?

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Earlier today, I noted how the Department of Labor released some proposed regulations by burying them deep in the Federal Register. Now word comes today of a press conference AND press release on a subject that I have to confess, I'm having a hard time wondering what the fuss is about.

Apparently, so does Footnoted author Michelle Leder:

Yesterday, the SEC sent out a media advisory alerting reporters of a press conference set for 2 p.m. today with both Chairman Chris Cox and Labor Secretary Elaine Chao to talk about ways the two agencies would work together “to protect approximately $5.5 trillion in retirement assets of investors nationwide.” It sounded pretty important. But today, after reading the release as well as the memorandum of understanding, I’m awfully glad I didn’t hop on the Acela.

Leder goes on to note that "Clearly, given everything else that’s going on with the state of the economy, two top government officials — one of them a Cabinet member — can come up with more important things to do than agree to continue cooperating."

So what's this "memorandum of understanding" about? The press release noted that the SEC and DOL "agreed  to make permanent their agencies' longstanding relationship of sharing information on retirement and investments".  In doing so, they have agreed upon a formal "Memorandum of Understanding", nicknamed a "MOU". 

What does the MOU require?

• The establishment of regular meeting and points of contact between the two agencies;
• Cross-training of staff;
• DOL Access to Non-Public SEC Examination Information; and,
• SEC and DOL Access to Non Public SEC and DOL Enforcement Information.

Suffice to say, I can't see this making the headlines of any major papers, particularly with an earthquake (even a relatively minor one) dominating the news.

And for everyone outside of the SEC and DOL, I can't see this MOU having any significant impact; it doesn't change any of the rules that employers face. 

If you're interested, the DOL's new proposed regulations still haven't warranted a press release from the DOL either.

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Buried deep, deep, deep in Monday's Federal Register was a quiet announcement that the U.S. Department of Labor was proposing some new wage/hour regulations interpreting the Fair Labor Standards Act of 1938 (download here).  In the "summary" section, the DOL states that the new regulations are needed because the regulations, in some cases, are out of date based on court decisions or subsequent legislation.  The DOL website doesn't even have a press release on it as of Monday evening --- only a link buried deep on a webpage here.

Comments are requested by September 11, 2008, so presumably the DOL is trying to implement these new regulations by the end of the current administration. 

So what topics are covered in these proposed regulations? A few are noteworthy, while several others others are snoozeworthy.

For example, among the more noteworthy items are regulations addressing "compensatory time" and a "fluctuating workweek".  More snoozeworthy items including regulations regarding salesmen who sell boats and regulations regarding workers who work on ditches, canals and reservoirs, where 90% of the water used is for agricultural purposes.

Among the other topics covered

• Updating regulations regarding "tipped" employees and the way the phrase "minimum wage" is used in various statutes;
• Updating regulations defining who an "employee" is and excluding certain volunteers at private non-profit food banks;
• Updating regulations regarding those employees engaged in "fire protection activities";
• Updating regulations to clarify that stock options are excluded from the computation of the regular rate of pay;
• Addressing regulations of "service advisers" working for auto dealers;

Upon first glance, most of the changes suggested by the Department of Labor just incorporate language from laws that have been passed in the last 20-30 years.  But for employers that have a particular interest in one of the above topics, special care should be used to review the language to see if it will have a particular impact on the business.

Lastly, these regulations are mere proposals; while it is somewhat likely that regulations like this will be implemented, they may undergo some significant changes in the final rule. Thus, employers should be cautious about relying on these rules until the final regulations are issued.

I'll continue to review them and post any further comments or thoughts later in the week.

(H/T Fl. Employment Law Blog)

Photo courtesy of Library of Congress.

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Suppose you, as an employer, have union-backed employees. The union files a grievance on behalf of three employees alleging that they did not receive "premium" pay on three holidays.  Because the dipsute cannot be resolved, the matter is sent to arbitration. 

For some employers, defining the issue to be sent to arbitration may not seem that important; after all, the arbitrator will just hear evidence relating to the supposed issue and issue a decision consistent with that issue.

The Court Decision

But a case released by the Connecticut Supreme Court today (to be officially released August 5, 2008) demonstrates the importance of crafting language that specifies what the exact issue is and what remedies the arbitrator will have available to it.

In Office of Labor Relations v. New England Health Care Employees Union, District 1199 (download here), the parties submitted the above factual scenario to an arbitrator with the following issues listed:

Did the [s]tate violate [a]rticle [twenty-one] of the [agreement] in the [s]tate’s application of holiday designation and payment of holiday pay to the [g]rievants? If so, what shall be the appropriate remedy, consistent with the [agreement]?

The arbtirator rendered an award in favor of the union finding that the state did indeed violate the portion of the collective bargaining agreement.  In doing so, the arbtrator issued an decision that ordered that the employer had to change its holiday policy to give premium pay to all employees under the collective bargaining agreement on a going forward basis. 

The state appealed, first to the trial court, and then ultimately to the Connecticut Supreme Court, on the grounds that the arbtirator exceeded his authority when issuing the "remedy" because the arbitrator's decision applied to all employees, not the three employees on whose behalf the issue was grieved.

The Connecticut Supreme Court agreed with the state, finding that the question presented should be interpreted like any contract:

As we have stated previously herein, it is well settled that we read contracts of this nature in a way that will give effect to every provision and apply a common sense construction of the words used. Thus, the language of the submission and its internal structure indicate that the question of relief was intended to address the harm to the three individual grievants named in the first question.

In essence, the Supreme Court stated that it was common sense that the remedy could only address the three employees at issue; otherwise, the parties would have structured the request differently.

The Takeaway

So what's the takeaway from this case from an employer perspective (and indeed from a union perspective)? Take time to craft the issues for arbitration in as specific a fashion as possible.  While the Connecticut Supreme Court upheld the langauge that was used in this situation, the question presented to the arbitrator could have been more specific and the issue could have been avoided entirely.

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Late last week (when, of course, I was out of the office), word came down about another large verdict in an employment law case in Connecticut.  The verdict, composed of $1M in compensatory damages and $3M in punitive damages in Tucker v. Journal Register Co. was first reported by the Connecticut Post last Friday here.  (H/T Jottings blog)

Long time readers of the blog may recall my discussion of the employer's summary judgment motion and the court's decision back in November 2007. In my posts back then (which can be found here and here).  I talked about how the former employee alleged that her employer terminated her employment because she was opposed to testifying as a favorable witness in the company’s defense of another employee against whom a sexual harassment complaint had been filed.  the employer denied the claims and said that she had been fired for misusing an office telephone in which collect calls were accepted.

The case went to trial on two legal claims: 1) retaliation under Title VII as a person who participated or opposed a discriminatory practice, and 2) Conn. Gen. Stat. Sec. 31-51q, which applies the First Amendment to private employers.  You can download the trial memorandum here.  

The Court's docket sheet hasn't yet been updated with some of the nitty gritty and I hope to followup with some more information about what happened during the trial.  For instance, the employer moved for judgment as a matter of law during the trial and the court has taken that motion under advisement. I would certainly expect post-verdict motions to occur -- even before an expected appeal (though it is unclear what the grounds would be).  According to Tucker's attorney, the jury found against the employer on both claims. 

Tucker's attorney, Jeff Bagnell, was understandably pleased with the multi-million dollar verdict:

We were very pleased with the jury's verdict. It sent a clear message that you can't retaliate against an employee who is going to tell the truth in a legal case. This excellent jury showed that people still care about the oath and what it means. Thank God for the Seventh Amendment.

This case demonstrates once again that retaliation claims and 31-51q claims are among the more dangerous type of employment law claims out there.   And although there aren't hard numbers out there on this, the damages that juries in Connecticut are awarding on such claims seem be on the increase. 

What does this mean for employers? It's yet another reminder to treat all claims of retaliation seriously.   And consider settlement of such claims when the opportunity arises. No matter how strongly an employer feels about the claims, once the claims go to a jury, there is always a risk of loss -- no matter how strong the facts may appear to be to the employer.

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You may hear about an increase in the federal minimum wage today from $5.85 to $6.55 per hour.   If you do, you can ignore the news in Connecticut because it will not have any effect on workers here.

If a state law puts the minimum wage rate higher than the federal minimum wage, state law applies.  (To see if your state may be covered, check out a variety of websites, including this recent post by the HR Daily Advisor Blog.)   

In Connecticut, our minimum wage is currently at $7.65 per hour, so Connecticut law applies.

And Connecticut's minimum wage rates will continue to exceed the federal minimum wage for the foreseeable future.  As a result of a new law passed last month, Connecticut's minimum wage will increase to $8.00 per hour on January 1, 2009 and to $8.25 on January 1, 2010.   

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Earlier this week, I discussed the benefits of providing notice to employees who may be affected by mass layoffs and plant closings, by complying with the Worker Adjustment and Retraining Notification (WARN) Act.

But what exactly does the WARN Act require and who is covered? Here are some basic answers to some basic questions. As always, those who need more information should seek legal counsel and review the applicable laws.   In addition, some states have additional requirements that must be complied with; this post just discusses the WARN Act.

Who's Covered?

Not all employers are covered. Employers who have 100 or more full-time employees are covered. But employers who have 100 or more full-time AND part-time employees who, in total, work more than 4000 hours per week are also covered.  Most governments are not covered, but some quasi-public and public entities may be covered.

When Does WARN Apply?

As I discussed in my prior post, there are two types of events that are covered  by WARN -- plant closings and mass layoffs. "Employment Losses" within each of them triggers some notice requirements.  All of these terms have a definition though. 

"Plant closings" are a permanent or temporary shutdown of a "single site of employment" (though it can also be one or more facilities or operating units within a single site of employment), so long as the shutdown results in an employment loss at that site for 50 or more full-time employees during any 30-day period.

"Mass layoffs" are a reduction in force (that is also not the result of a plant closing) that results in an employment loss at a single site of employment during any 30- day period for at least 50 employees.  These 50 or more employees must also make-up at least 33 percent total employees (excluding any part-time employees). This will also be satisfied if there are at least 500 employees (excluding any part-time employees) affected by the mass layoff as well.

What Is An "Employment Loss"?

Despite its term, the term "employment loss" is fairly broad.  It means either:

1. a termination of employment for reasons other than a discharge for cause, voluntary departure, or retirement,
2. a layoff longer than six months (which indicates that the employee may return after the "layoff", or 
3. a reduction in hours of more than 50 percent during each month of any six-month period.

What Notice Is Required? 

A WARN notice must be given to each employee at least 60 days before a plant closing or mass layoff.  However, if there is a union, the notice must be given to the union representative of the affected employees. 

In Connecticut, notice must also be provided to the Connecticut dislocated worker unit (see below) and the chief elected official of the local government where the closing or layoff is occurring. 

The Website for the Connecticut Department of Labor has some more specifics on the notice required:

Written notification should be printed on company letterhead, signed by the authorized employer representative, and addressed to:

Rapid Response Unit
Connecticut Department of Labor
200 Folly Brook Boulevard
Wethersfield, CT 06109-1114

This notification should include: the name and address of the employment site where the plant closing or mass lay off will occur; the date(s) of proposed closing or mass layoff; the number of affected workers, and address of their collective bargaining representative and chief elected officer if applicable; and, the name, address, and telephone number of the employer representative to contact regarding the closing or mass layoff.

Interestingly enough, the DOL site also encourages employers to seek legal counsel regarding the notices. 

As with lots of federal laws, there are some exceptions and some tricky questions that arise such as what happens when you have multiple layoffs within a short time that don't trigger WARN individually but would collectively, and what happens in situations that are not foreseeable (plant burns down and must therefore close immediately). 

The U.S. Department of Labor has some additional guidance on this issue for those types of situations in this employer's guide.

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Word came down late yesterday about an important case for employers that have California-based employees. 

The case, Brinker Restaurant Corp. v. Hohnbaum, is the first California appellate case to rule on the parameters of employers' duties under California laws requiring rest and meal periods.  The California Workforce Resource Blog has the details, as does the What's New in Employment Law Blog.  For an employee-based perspective, the Wage Law blog also has a good summary as well.

Why do I bring this up in a Connecticut blog? For a few reasons. First, there are several Connecticut employers that have California employees, whether through sales or otherwise. Second, California tends to be on the cutting edge of some legal issues. With nearly 36 million people (or roughly 10 times the population of Connecticut), those issues just tend to pop up more than in a small state like Connecticut.

Third, the case provides a good opportunity to highlight the Connecticut meal period law -- an underappreciated law that lays out what is necessary and is much different than California.

Connecticut's law is found at Conn. Gen. Stat. 31-51i and states:

(a) No person shall be required to work for seven and one-half or more consecutive hours without a period of at least thirty consecutive minutes for a meal. Such period shall be given at some time after the first two hours of work and before the last two hours.

In plain English, what this means is that if an employee works a 7 1/2 hour shift, they are required to be given a 30-minute break for a meal.  For an employee working 9-5, the meal period must be between 11 a.m. and 3 p.m.

There are exemptions to requiring this meal period but, for the most part, it's going to be good business practice to allow for the meal period anyways.  However, there may be instances where a break is not feasible. The Labor Department recognizes an exemption if one of the following conditions is met:

1. complying with this requirement would endanger public safety;
2. the duties of the position can only be performed by one employee;
3. the employer employs less than 5 employees on that shift at that one business location (this only applies to that particular shift); or,
4. the employer's operation requires that employees be available to respond to urgent conditions, and that the employees are compensated for the meal period.

Note that this meal period applies to both exempt and non-exempt workers.  Employers who do not comply can be subject to some civil penalties.  While the law talks about a meal period, there is no requirement for a "rest" period in addition to this meal period. 

As others will surely note, each state has their own rules on meal period and breaks. Employers should not assume that what will work for one state, will work for another.  In Connecticut, the rules are not particularly onerous for employers and certainly all efforts should be made to comply with these particular rules.  

Photo courtesy Library of Congress , circa 1943 Clinton, Iowa

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The EEOC today released a new compliance manual section on religious discrimination in the workplace.  A press release from the EEOC is available here while you can download the actual section directly here.   

What is useful about the compliance manual section, according to the EEOC, is that it "includes a comprehensive review of the relevant provisions of Title VII of the Civil Rights Act of 1964 and the EEOC’s policies regarding religious discrimination, harassment and accommodation. The EEOC also issued a companion question-and-answer fact sheet and best practices booklet."

So, what sorts of issues does the compliance manual section cover?

The Section addresses what constitutes “religion” within the meaning of Title VII; disparate treatment based on religion; the requirement to reasonably accommodate religious beliefs and practices; religion-based harassment; and retaliation. The Section also provides guidance on the sometimes complex workplace issues involved in balancing employees’ rights regarding religious expression with employers’ need to maintain efficient, productive workplaces.

For employers, the most helpful section is probably the "best practices" booklet, available here. There are a number of common-sense suggestions that are posted. Nothing is ground-breaking, but it's a good resource, particularly coming from an agency responsible for enforcing anti-discrimination laws.

Among the suggestions:

• Employers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
  
• Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
  
• Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.

Overall, it's a welcome addition for employers, and for employees who want to understand their rights better.

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Six months ago, I predicted a renewed emphasis on reduction in force laws and regulations with the possibility of an economic slowdown looming.  With six months left to go in the year, I'm still feeling good (if you can feel "good" about such things) about that prediction. 

Is the economy still on the yellow brick road or are we walking deeper into the forest filled with lions, tigers and bears?

The statistics from the Equal Employment Opportunity Commission do not paint a rosy picture.  

The numbers of discrimination claims filed with the EEOC are up.  

And up by a lot.

In fact, the EEOC reported a 21 percent increase in charges for the first quarter of 2008, over the same period last year. 

So what can employers do? I talked a few weeks ago about one aspect of reductions in force -- namely compliance with the OWBPA (Older Worker Benefit Protection Act) and how compliance with that law can avoid one pitfall associated with a reduction in force. 

But another law that is commonly misunderstood is the WARN (Worker Adjustment and Retraining Notification) Act.  WARN is not a mandatory severance law; in other words, it doesn't mean that employers need to give employees severance when they are affected by a mass layoff or plant closing.

What WARN does require is that the employer give notice to employees who may be affected by a plant closing or mass layoff.  The Department of Labor has prepared this fact sheet for employers to answer some of the basic questions.   It is a law that is, frankly, fairly easy to comply with, and yet there are still some employers who are facing class actions for their alleged failure to comply. 

In addition to notice to employees, the employer must also notify the Connecticut Department of Labor of its proposed actions.  The state then posts them in monthly reports available here.  You can view July's report here.

What is fascinating about the reports thus far is that Connecticut has, as of now, avoided some of the mass layoffs that have plagued some of the other states.  The June reports for Connecticut show only 400 or so employees statewide who received WARN notices.  Moreover, numbers released over the weekend show that Connecticut employers have added jobs, not eliminated them.  Whether this trend continues will be an item to watch for in the second half of 2008.

In an upcoming post, I'll highlight some of the particulars of WARN in more detail.  Until then, try to avoid the fields of sleeping flowers.

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There's been a lot of talk of late of a "trend" beginning where employers are taking stock of employees health habits, particularly smoking.  Some employers are even considering a "smoke screen", per this story and this followup as well.   Some other background on employers and smoking policies can be found here, and here.

While employers have the statutory right to control and limit smoking in the workplace, Connecticut employers should be mindful of a state law that restricts an employer's ability to regulate smoking outside the workplace.

In fact, in Connecticut,  Conn. Gen. Stat. 31-40s is fairly clear about smokers' "rights" and that employers or agents of the employer cannot make no smoking a condition of employment.  Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect  to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part. 

Note that the restrictions also apply to compensation or other "privileges" of employment.  Thus,  employers in Connecticut that want to get on the "wellness" bandwagon and start restricting employees from smoking outside the workplace or provide rewards to employees that do not smoke, ought to think twice and conform any programs with the legal requirements on the state.

As always, getting legal advice to specific issues like regulating smoking outside the workplace is the best policy to avoid liability in the future.

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You know it's summer when the most exciting headline in employment law over the last day seems to be the markup of an arbitration fairness bill by a House Judiciary Subcommittee.  Not terribly exciting.  If you'd like more details on that bill, Workplace Horizons has a nice little summary and does it's typical terrific job on keeping up to date on some federal legislative items.  But it is still a long way off. 

In the meantime, this little lull provides an opportunity to catch up on a series of posts I've done on little known employment laws. For some of the previous installments, check out here and here.  

Today's post addresses offer letters.  For many employers, they are standard practice, but others seem to ignore them.

Connecticut actually requires something resembling an offer letter to each employee. Specifically, Conn. Gen. Stat. 31-71f requires that every employer, at the time of hiring, advise an employee of three things:

1. The rate of remuneration (in other words, the salary or rate of pay);
2. The hours the employee is expected to work;
3. And the schedule for wage payments (weekly or otherwise).

Notably, that statute also requires that employers "make available" to employees (either in writing or through a posted notice in a lunch room or other accessible location) any policies or practices relating to:

• wages;
• vacation pay;
• sick leave;
• health and welfare benefits;
• and comparable matters.

If the employer makes any changes to these policies and practices, the statute requires that the employer provide notice to employees as well.

Thus, offer letters (or something resembling them) are a good business practice, but also the law. Use them as an opportunity to also include language that confirms that the employee is "at-will" meaning that the employer can fire the employee at any time for any reason (and the employee can leave anytime for any reason too). 

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Over the next six months, prepare to get bombarded with e-mail alerts and posts and such about Section 409A of the Internal Revenue Code (couldn't everyone have come up with a better name?). Trust me, the hype is going to be comparable with one of those old monster movies.

Why? Because December 31, 2008 is now the deadline for companies to get their non-qualified deferred compensation plans and arrangements -- which includes employment in separation agreements -- into full compliance with Section 409A of the code.

Despite the importance of this provision, and its application to both private and public companies, it's not going to affect everyone.  It's really going to have the most impact on companies that routinely make deferred compensation decisions.

What is deferred compensation? According to one definition:

         An arrangement in which a portion of an employee's income is paid out at a date after which that income is actually earned. Examples of deferred compensation include pensions, retirement plans, and stock options. The primary benefit of most deferred compensation is the deferral of tax.

What are the key concepts of 409A? Since there is a lot to it, here are just a few bullet points; we'll cover more in upcoming posts.

• Elections to defer compensation must be made in a timely manner;
• Compliance with 409A rules is critical for distributions of deferred compensation;
• Severe (20%) penalty for non-compliance with rules.

For separation agreements, there are additional requirements to comply with, but many may be exempted under a broad exception. For executives, however, 409A is going to have a serious bark. 

What should employers be thinking about now?

• Figure out what arrangements you have now to determine if Section 409A even applies;
• If you have an arrangements or agreement in which 409A may apply, determine whether changes need to be made to confirm with Section 409A;
• Review all practices relating to payments on separation from service.

There are lots of other details here and for employers that have any doubt about whether Section 409A applies, they should learn more about it.  But rather than panic, all employers should use the next 6 months to seek appropriate legal advice, get more information, and ensure that all their arrangements comply with these new rules.  There's plenty of time left to comply.

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Over the last week or two, I kept flagging various employment law posts that I wanted to followup or comment on, only to have two or three more pop up. Each of them probably merited a discussion, but, to use an overused cliche -- there simply isn't enough time in the day. 

So, I'm perhaps taking the easy way out in creating a whole post about posts.  But I will try to categorize them for a little easier reading.  I suggest taking a gander at these when you have an opportunity. 

Blogs Referencing This One

First up, there have been several blogs that have commented on some posts that I have done recently that you might find interesting. They are:

• Thoughts from a Management Lawyer discussed my post on Monday about "fairness";
• Blawg Review (a weekly review of the best law-related posts) lists this little blog as a "Star of the Blawgosphere" representing the great state of Connecticut in a holiday-related post;
• Jottings by an Employer's Lawyer was kind enough to mention this blog in his July 4th posting about the holiday and about efforts to bring unions together from around the world;
• Delaware Employment Law Blog recently discussed how construction-industry employers are being targeted and referred to a recent posting on the subject from this blog;
• The Laconic Law Blog had a post recently following up on the topic of caregiver and family discrimination and discusses my post last month about the nuances in Connecticut law (HR Daily Advisor had a similar post yesterday);
• New Jersey Employment Lawyer Blog had an interesting followup to my post about a new law requiring protection of social security numbers and notes that Michigan passed some similar legislation;
• Adjunct Law Prof blog commented over the weekend on the recent decision that awarded an employee's attorney $600 per hour in an employment discrimination case;
• Florida Employment Law Blog has a very notable post about what the effect on Florida employers would be if Barack Obama becomes President (hint: employment lawyers could get a lot busier) and cites a recent post of mine on the ADA Amendments Act of 2008 (though it should be noted that others, including the Ohio Employer's Law Blog and The Word on Employment Law, have done similar posts);
• Rogers & Tartaro Business Litigation blog picked up on the discussion on the various types of sexual harassment matters and the importance of understanding hostile work environment claims.   

Posts About HR-Related Issues

• Workplace Prof blog follows up on a New York Times story to discuss the employer backlash to certain immigration rules;
• Pennsylvania Labor & Employment Law Blog had a post about Corporate Social Responsibility and how it is a "way of life" for certain companies;
• Although not a blog, per se, Ford & Harrison had an interesting post that held that an employer who merely posts their summary plan descriptions on the company's intranet may not be sufficient to meet ERISA requirements -- at least in the Ninth Circuit (which includes many Western states, but not Connecticut);
• HR Capitalist reports on a recent decision by Google to raise the cost of employer-sponsored daycare -- a move that has left many employees unhappy.  It's an interesting case-study on managing employee expectations;

Employment Laws & Litigation

• It is sometimes too easy to brush off a runaway jury verdict, like the $46M one in Ohio last week, reported on by Ohio Employer's Law Blog and the Manpower Employment blawg.  But as the Ohio blog reminds: "Litigation is dangerous. Juries are unpredictable. Some cases cannot be resolved and need to be tried, but sometimes it's better to live to fight another day."
• Employee Screen IQ blog reports on some new FACT Act regulations that may affect some employers who conduct background checks;
• The Workplace Horizons blog reports on a recent NLRB case that finds that a provision prohibiting a temporary worker from discussing his compensation violates federal labor laws.  The decision should reinforce the fact that restrictive covenants for employees should be appropriately tailored.

As you can see, quite a list to add to your summer reading materials. 

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Up until recently, in-house counsel at Connecticut companies could provide advice to their company without necessarily being admitted to practice law in Connecticut.  Well, I shouldn't say that they "could" but until new in-house counsel rules were passed last year, there was a next-to-nothing likelihood that in-house counsel were going to be prosecuted for unauthorized practice of law. After all, the rules were anything but clear.  However, after these new rules were passed in-house counsel had no excuse. And, as is often said, ignorance of the law is no excuse. 

Now, an important deadline occurs today, June 30th: the expiration of the safe-harbor provisions.

Who qualifies for a safe harbor?  The rules state that a counsel must:

1. be a member of the bar in good standing in another jurisdiction (state, DC, or US territory; foreign countries do NOT qualify);
2. be employed by an “organization” as defined in Section 2-15A or will be relocating to Connecticut within three months in furtherance of employment by such an “organization;”
3. agree to abide by the rules regulating members of the Connecticut bar;
4. agree to submit to the jurisdiction of the statewide grievance committee and the superior court;
5. have a law degree (JD or LLB) from a law school approved by the bar examining committee (all ABA-approved law schools and Southern New England Law School and Massachusetts School of Law are approved by the committee);
6. file an application for registration as an authorized house counsel with the bar examining committee together with the required forms, documents and the fee of $1,000.00.

If an in-house counsel meets all of the above criteria, then he or she won't be prosecuted for an unauthorized practice of law claim that occurred before January 1, 2008.  In other words, the state gave in-house counsel who practiced law before January 1, 2008 (without being licensed) a "get out of jail" card.  Those aren't given out all that frequently, so it's been a little surprising that more in-house counsel haven't taken full advantage of it. 

So, what's needed by the end of today? Well, the registration forms, documents AND the fee are due (not mailed) to the Bar Examining Committee (available here). 

It is a pretty big task. So, the obvious followup question is: What happens if you don't? Well, according to the Connecticut Law Tribune article today -- probably nothing, as least as of yet.  The state's budget woes leave the Statewide Grievance Committee and other related entities with insufficient resources to prosecute in-house counsel who aren't authorized to practice law. 

Of course, as with other types of violations of these types of rules, the biggest offenders are the ones that resources will likely be devoted to. So, in-house counsel can still consider submitting late forms and fees.  They may not get a "get out of jail" card, but they may place lower on a "wanted" listed than other offenders.

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This week, I've highlighted some new state laws that affect the employment law arena. This next one (Public Act 08-156) creates a new joint commission and new advisory board in Connecticut to deal with the issue of employee misclassification. 

For employers, this new structure means that it is more likely that enforcement of misclassification laws (in other words, whether employees are classified properly as exempt or non-exempt from wage/hour, tax and workers' compensation laws) will occur.  As noted below, there appears to be a particular emphasis on employers in the construction industry, so that particular category of employer ought to be aware of this new law.

What's the new structure?

First, effective July 1, 2008, a joint commission will be established made up of representatives of the Department of Labor, the Commission on Revenue Services, the Workers' Compensation Commission, the Attorney General's Office, and the Chief State's Attorneys office.

What will be their role?

They are to meet at least four times a year (probably in conference rooms not very different from the one pictured). 

Their main goals will be to:

• review the problem of employee misclassification by employers for the purposes of avoiding their obligations under state and federal labor, employment, workers' compensation and tax laws;
• coordinate the civil prosecution of violations of state and federal laws relating to employee misclassification, and 
• report any suspected violation of state criminal statutes to the Chief State's Attorney.

What else is required of the Commission?

By February 1, 2010 (and each year after that) the Commission will report on the commission's actions for the preceding calendar year and include any recommendations for administrative or legislative action.

The new law also creates a companion "Employee Misclassification Advisory Board" to advise the commission on misclassification specifically in the construction industry.  The Board will be made up of six members, each representing differing interests in the construction industry. 

A summary of the new law by the legislature is also available here. And interestingly, the General Assembly passed identical portions of this law in another public act (P.A. 08-105) as well.  Apparently, you can never have enough joint commissions (though obviously, they will be combined here). 

What steps can an employer consider in response to this law?

This new law emphasizes the fact that issues regarding employee misclassification are not going to disappear anytime soon. Because of this, employers can take this opportunity to audit themselves and determine if they continue to have an exposure under wage and hour laws.  If necessary, correcting issues regarding classification of workers ought to be considered; taking such steps before a problem occurs may allow the employer to escape the broad enforcement capabilities now presented in this new law.

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UPDATED 12/8/08 to correct cap on penalty amount to $500,000

With all the focus this year on minimum wage, 15-year-olds in the workplace, and the like, other less-publicized bills in Connecticut still haven't received much attention. In an earlier post, I noted that I would update readers on them when the dust settles. 

One of them, is Public Act 08-167 (called "An Act Concerning the Confidentiality of Social Security Numbers"), which goes into effect October 1, 2008.  You can download the text of this very broad new law here.  This new state law requires all businesses that "collect Social Security numbers in the course of business" to safeguard social security numbers, dispose of them properly and create a policy regarding such information.  It also requires all "persons" who get "personal information" on one person, to safeguard such information as well.  The legislature has summarized the new law here.

As an initial comment, the new law, as drafted, is extremely broad since the "persons" who must safeguard personal information appears to include both companies and individuals.  Thus, on its face, it could potentially cover situations in which your neighbor buys items at a tag sale from you and hands you a check with an account number on it. In such a case, the person receiving the check  may be responsible for safeguarding the account information.  Businesses that collect social security numbers will have additional obligations as well.  Because of the broad reach of this statute, employers should also consider the implications of this statute not only on their workforce, but on their customer base as well.  

How does this impact employers, in particular?
 

Because basically all private employers in Connecticut collect social security numbers "in the course of their business", either for insurance purposes or employee verification, this new law appears to apply to them.  While the legislative history and Governor Rell's press release signing the new law doesn't discuss employers specifically,  the broad language of the law covers employers.   Until and unless the scope is clarified (to limit the application, for example, to social security numbers collected from customers, rather than employees), employers should pay heed to this law.  

So what does the new law require and dictate?

 

• Create a "Privacy Protection Policy"

This policy must 1) ensure confidentiality of Social Security numbers, 2) prohibit their unlawful disclosure, and, 3)  limit access to them.

• Publish or Post the Privacy Policy

While the new law indicates that it should be published or "publicly displayed" including posting on an Internet web page, it seems that in the workplace, this will be satisfied by following the same standards that employers typically follow. Thus, the information can be included in a bulletin board posting, an company intranet, and/or an employee handbook.  Distribution to each employee via e-mail or in person may also be appropriate. 

• Protect "Personal Information"

The act requires businesses (and thus, employers) who have "personal information" about a person (including their employees) to safeguard the data and computer files and documents so that it isn't misused by third parties.  Employers must also destroy, erase, or make unreadable any document, computer file, or data before disposing of it.

What is considered "Personal Information"?  The Act defines it has "information capable of being associated with a particular individual through one or more identifiers". 
What are some examples? Social Security number, driver's license number, state identification card number, account numbers, credit or debit c