Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Watch the Employer Deductions — Except for One Special Case

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour

GavelConnecticut has pretty strict rules that employers must follow if they want to take deductions off of an employee’s salary.  Typically, an employer must seek CTDOL approval for all sorts of deductions, which I covered back in a 2012 post.

But what happens if an employer makes a mistake on a paycheck and overpays an employee. What then?

That situation is not uncommon. Most of the time, employees will note the mistake and return the money to the employer — no questions asked.

But I’ve heard of other instances where the employee cashes the check and then, say, buys a used car with the mistake.  Or the employee just says no. What then?

Well, I’ve received informal indications from the CTDOL that in those cases, the agency allows for the use of deductions to recover clerical errors.  The employer may try to work out an agreement or payment schedule to recover the money in an orderly manner.

I would add that the employer should really be sure that whatever deductions are made from future salary payments leave enough that the employer is really paying minimum wage for the week.  That should avoid any issue with a claim that minimum wage laws aren’t be followed.

In short, employees don’t get to profit from employer paycheck mistakes and employers are free to engage in a bit of self-help to recover the funds … if it’s really necessary.

New Year, New Minimum Wage in Connecticut

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour
You might need a calculator

You might need a calculator

For yet another year, Connecticut’s minimum wage is on the increase.

Effective January 1, 2016, the Connecticut minimum wage will be raised to $9.60 per hour effective January 1, 2016.

Although the federal minimum wage is $7.25, Connecticut employers must pay the higher rate under state law. The updated wage and hour law poster, including the minimum wage rate for this year is available here.

This notice is required to be posted wherever covered workers are employed, and employers should make sure that the posting is up prior to January 1.

In addition, remember that the minimum wage will increase once again on January 1, 2017 to $10.10 per hour.  All of these changes were mandated as part of Public Act No. 14-1, which was passed in 2014.

Of course, the minimum wage isn’t applicable in all circumstances. In some limited areas, a sub-minimum wage can be used. And for waiters and bartenders, a still different minimum wage can be used too.

In any event, review your payroll now so whatever changes that need to be made can go into effect in a few weeks.

CHRO Referee Dismisses Complaint After Defendant Was Added Too Late

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight

hourglassOne of the rules in employment discrimination cases that seems to have blurred of late is the notion that a complaint of discrimination must be filed within 180 days after the alleged discrimination.

A new decision from Presiding Human Rights Referee at the CHRO (CHRO ex rel. Roig v. State of Conn., Department of Correction et al) suggests that the 180 day rule can still be followed — at least in some instances.

In the case, which was just released on Monday, the employee filed an original complaint against the Department of Correction on March 25, 2013.  Approximately 16 months later, the CHRO permitted the complaint to be amended to include the UConn Health Center.

That was simply too late and does not “satisfy the requirements of equitable tolling”.  Moreover, the Referee said that there was no evidence provided to suggest that the Health Center was aware that the Compalint had filed the complaint and therefore had “constructive notice”.

The referee concludes: “To deny this motion to dismiss, on the facts before me, would render the mandatory statutory filing period meaningless and flout the intent of the legislature”.

This is not insignificant. The CHRO has, of late, been very generous to Complainants in allowing them to amend their complaints — even after the 180 day filing period has expired. This decision may put a chill in that practice or, at the very least, gives employers good reason to ask to dismiss the newly-raised matters when the case goes to a hearing or court.

 

Tis the Season for Good Party Planning

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center, Wage & Hour

Lucan_J_WebIt’s mostly a coincidence that my colleague, Jarad Lucan returns today with a post on a favorite topic of ours: Holiday parties.  While most of it isn’t groundbreaking (holiday parties haven’t changed all that much over the last decade), Jarad really focuses in on the key issues.

So, enjoy your holiday parties over the next few weeks at work. Just be sure to follow the rules. 

Holiday parties are a great way for employers to boost morale and bring employees together to celebrate the season and the past year’s accomplishments.

However, if not properly planned, a holiday party may bring an employer a special gift served by a less than jolly state marshal or process server.

When preparing for a holiday party, employers should take steps necessary to guard against potential legal pitfalls, such as sexual harassment claims, alcohol related accidents, workers’ compensation claims, and wage and hour risks.

danceoffSexual Harassment:

Before the holiday party, an employer should review its anti-harassment policy (and if you don’t have one by now — really?) to ensure that it addresses employer sponsored functions.  If a policy does not specifically cover employer sponsored functions or social events, an employer should consider amending the policy.

In the alternative, an employer can remind employees prior to the party, that its anti-harassment policy applies and provide employees with examples of conduct that is considered unacceptable, even at a party.  An employer can also remind employees that any gift exchanges or holiday customs should be proper for the workplace and not include offensive items or behaviors, even if meant as a joke.

While it’s ok to allow an employee to listen to “I Saw Mommy kissing Santa Claus” (at a reasonable volume level),  it’s just not ok to allow an employee to hang mistletoe over his or her office door and try to act out that song.

In addition, to minimize the risk of any harassment claims, an employer should consider allowing employees to invite guests (depending on budget constraints).  An employee is unlikely to engage in harassing behavior if accompanied by a spouse or significant other.  Setting the tone of the party in advance can help root out unwanted sexual advances and inappropriate activities.

Alcohol-related Accidents:

Obviously, the simplest way to reduce the risk of alcohol-related accidents is to not serve alcohol at a holiday party.   But that might be considered by some to be going overboard. (You can just hear it now — “The lawyers ruining our holiday party — again!”) If, however, the goal is to avoid dampening the “holiday spirits,” an employer may want to hold its party at an establishment with professional bartenders who know how to handle and limit the amount of alcohol consumed by any party guest.

For those employers that hold their parties at their place of business, consider hiring a professional bartender rather than allowing guest to self-serve.  An employer can also instruct any caterer or bartender to limit the amount of alcohol served and to refuse service to anyone who appears to be intoxicated.  An employer can also limit that amount of drinks consumed by employees by, for example, utilizing a drink ticket system and limit the alcohol to beer and wine.

If all else fails, an employer should consider providing transportation for employees.  Lastly, an employer should review its insurance policies with regard to covering any liquor law liabilities.

Workers’ Compensation Issues:

If an employee is injured at a holiday party, an employer may be able to limit is workers’ compensation liability by making very clear to employees that the event is completely voluntary.  In addition, it should be made clear that the holiday party is not for business purposes and no work is expected to be done while at the holiday party.  While not necessary, this may be one reason to consider hosting any holiday party outside of the normal place of business.  If that is done, however, ensure that the venue provider has proper insurance to protect against any injuries that may occur.  In any event, an employer is best served by not encouraging activities like dance-offs, which can lead to all kinds of physical (and perhaps emotional – not covered by workers’ compensation laws) injuries. We all remember the dancing on Seinfeld, right?

Wage and Hour Risks:

It should come as no surprise that our wage and hour laws require an employer to pay employees for their time spent working.  Thus, if a holiday party is held after work hours and is made mandatory for all employees,  an employer has to pay employees to be there.  If this results in an employer’s non-exempt employees working more than 40 hours that week, those employees must be paid overtime for attending the party.

Accordingly, an employer should: (1) inform employees that attendance at the party is voluntary; (2) refrain from engaging in any business during the event, including speeches about the how well the employer is doing; (3) refrain from distributing bonus payments; and (4) avoid requiring certain employees from performing functions meant to benefit the employer, such as serving in the distinguished role as the mistletoe or dance-off police.

Happy Holidays everyone!

Win Some, Lose Some: Drug Testing Statutes Tricky to Navigate

Posted in Highlight, Human Resources (HR) Compliance, Litigation, Manager & HR Pro’s Resource Center

urinals2Connecticut’s drug testing statutes applicable to employers have always been a bit tricky to follow.  I covered the basics of these laws back in 2010 (you’ve been reading that long, right?).

For job applicants, employers must follow certain rules. Once an applicant becomes an employee, a new set of more stringent rules apply.

But to what?

In a case earlier this year, a Connecticut Superior Court had to address that issue and more. In the case (Schofield v. Loureiro Engineering Associates), the plaintiff was forced to undergo drug testing of his hair by his employer, two weeks after starting. He was fired as a result of the test.

The employee claimed that the restrictive drug testing rules of Connecticut law should apply. However, the Superior Court said otherwise.  It found that the rules regulate urine-based drug testing only, not any OTHER form of drug testing.

[The drug testing statutes in question apply only to urinalysis testing and do not cover an employee who is subjected to other forms of drug testing. . . . While the logic of plaintiff’s position is readily understood and the seemingly irrational inconsistency which flows from the disparate protections made evident in this opinion are undeniable, “the task of changing the law lies with the legislature and not with the judiciary.”

So, does this mean that employers are free to engage in all sorts of drug testing? Well, perhaps not. While disallowing any claim under the state’s drug testing laws, the Court did allow a “wrongful discharge” claim to proceed.

Thus, what the court giveth, it also taketh away.

For employers, drug testing of current employees in particular is fraught with challenges. Be sure your program meets all legal requirements (both state and federal) and use this case as a warning sign. Things aren’t always what they seem.

Gender Identity Claims: Is It All About Restroom Access? Not Quite

Posted in CHRO & EEOC, Discrimination & Harassment, Human Resources (HR) Compliance

Last week, I had the pleasure of speaking before the Connecticut Bar Association’s LGBT Section regarding the status of transgender claims along with CHRO Staff Attorney Alix Simonetti.  My thanks to the section for the invitation.  It didn’t hurt that it was held at the Hartford Flavor Company, either.

The talk was mainly informal but it was a lively discussion of some of the critical components of the law over the last few years.

Back in 2011 (seems so long ago, right?), the Connecticut General Assembly passed a wide-ranging bill protecting gender identity and expression.  The impact of the law was debated back then. Would it be significant? Would it lead to an increase in claims?

Well, the answer to the first question is yes, it’s been significant because the issue of transgender discrimination has moved ever more into the mainstream with Caitlyn Jenner making headlines and shows like “Transparent” receiving critical acclaim.  Connecticut looks downright ahead of its time.

But the claims haven’t really appeared.

There have been just 15 or so gender-identity in employment discrimination claims filed with the state agency (CHRO) since the law’s inception.

Why? The reasons can be debated — perhaps fear, lack of awareness, an improving economy? — but the claims represent just a tiny fraction of the 7500+ claims filed over that time.

The issue, however, that seems to get the most press is restroom access.

Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.

OSHA’s guidance over the summer suggests keeping it simple: Employees should have access to the restroom that corresponds to his or her gender identity. Period. If other employees complain, well, that’s not a good enough reason to deny access to the transgendered employee.

But there are other best practices, such as making single-occupant bathrooms gender-neutral (think family restrooms in stadiums and airports) that are suggested as well.

Some employers may not have had to address the issue yet. But being aware of the issues ahead of time — and figuring out how you will tackle them — is something that should be on the radar for 2016.

Anonymous Threats in Workplace Don’t Give Employers Free Pass to Ignore

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Litigation, Manager & HR Pro’s Resource Center

As I return from an extended absence for the Thanksgiving holiday, my colleagues Gary Starr and Gabe Jiran share this alert about anonymous threats in the workplace based on a recent Circuit Court decision

starrEmployee complaints based on anonymous harassment pose special problems for employers.  How do you uncover the source of the problem when no one is able to identify who acted inappropriately?  One employer learned the hard way what not to do and what should be done.

A black female employee complained to her supervisor about receiving an anonymous note in her mailbox.  The note appeared to be a federal hunting license authorizing the holder to hunt and kill black people day or night, with or without dogs.  There was also a hand-drawn stick figure with a noose around its neck.

The supervisor first reported the incident to his manager, but neither reported the incident to Human Resources.  They also did not document the incident or interview anyone.  Following this cursory investigation, nothing further was done as no one was able to identify a suspect.  No one even notified the complaining employee that the matter was closed.

Not hearing anything about her complaint, the employee called an employee hotline and also reported the incident to the police.  Her calls triggered a new investigation by the Human Resource department, but no useful information turned up.  Human Resources then ended its investigation concluding that the incident was isolated.

It later turned out that the on-site managers and supervisors were aware of earlier incidents of targeting of black employees, but did not disclose them.

Eight months later, the employee received a similar threatening note and immediately reported it.  She asked why cameras had not been put in the area.  The same threat was received by several other black employees, who also reported it.  This time cameras were installed. Nothing turned up and the investigation again was closed.  The police fingerprinted employees so that in the future any notes could be dusted for prints.

The targeted employee then sued alleging a hostile environment.  While the district court granted the company’s request for summary judgment, the appeals court reversed.  The appeals court was critical of the company’s actions and set out guidance on what should have been done.

First, the company failed to recognize that the racially tinged death threats created a hostile work environment.  The threats should have been immediately reported to the police.

Second, while the company had a discrimination policy, its supervisors and managers did not follow it.  Employers must train supervisors and managers on what they are to do if they receive a complaint and they must be held accountable for enforcement of the policies.

Third, the response to the threats was not prompt, was not calculated to end the harassment, information about past incidents was not timely disclosed, and employees were not interviewed on a timely basis.

Fourth, no additional protection for the employee was provided, cameras were not installed, and security personnel did not offer to walk the employee to and from the parking lot.

Finally, the targeted employee was not told what was happening with the investigation.  The court faulted the company for not doing enough to ensure the safety of its employees and to eliminate the hostile work environment.

It is imperative when there are complaints of harassment, especially those involving physical threats, that they be taken seriously, even to the extent of notifying police.  A thorough investigation must be conducted, appropriate remedial steps must be taken, and the complaining employee must be advised of the outcome of the investigation.

An anonymous threat does not excuse the employer from treating the matter seriously.  While the culprit may not be identified, steps can be taken to ensure the safety of employees, to reinforce company policies, and to provide a safe work environment.  The lack of an adequate response can not only result in liability, but it can also leave employees believing that the company does not care about them, resulting in poor morale and possible lawsuits.

Data Privacy & Human Resources: A Match Made for a Seminar

Posted in Data Privacy, Highlight, Manager & HR Pro’s Resource Center

shrmprogramI’m pleased to announce an upcoming program that my firm, Shipman & Goodwin and the Connecticut State Council of SHRM are producing next month and that I’ve been planning for several months.

The program, entitled “Data Privacy & Human Resources” will be a unique endeavor for us.  First, we are planning on doing it in both our Hartford & Stamford offices at the same time.  Speakers will be in both locations (though obviously not the SAME speakers, for those grammar buffs).

On top of that, we will be broadcasting it live via a webinar.

What could go wrong?

Hopefully, nothing, because really, it should be very informative.  It’s scheduled for the morning of December 11, 2015.

The first hour will focus on the key things employers need to know about the revisions to the state’s new data privacy law. The second hour will talk about the very latest in human resources including the current status of the proposed overtime regulations and the state’s new social media privacy law.

It’s going to be fast-paced and informative. But space is definitely limited and within the first 48 hours of our e-mail alert, we’re already halfway to our in-person room capacity.

If you’re interested in attending, check out this link and register online. The cost is just $35, but this includes breakfast and the materials. (If you’re watching via webinar, breakfast is on your own — naturally.)

And if you’d like to see the flyer, you can download it here.

Employees Participating in Court Proceedings May Have Protection

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour

My colleague, Jarad Lucan (who just won a New Leader of the Law award from the Connecticut Law Tribune!) returns today with a post about the protections employees who testify in court may have. 

Lucan_J_WebMost employers (at least those employers that read this blog on a regular basis) know that it is illegal to subject an employee to an adverse employment action, such as termination, because that employee raised a claim of discrimination or was absent from work due to a serious health condition.

But what if your employee is summoned to court to fulfill his or her civic responsibility as a juror or is subpoenaed to provide witness testimony during a criminal proceeding?  Is an employer similar restricted in the actions it takes against an employee for participating in such activities?

The answer is “Yes.”  There are numerous statutes applicable to Connecticut employers providing protections to employees who attend jury duty or appear in court.

  1. Connecticut General Statute §51-247a prohibits an employer from discharging, threatening to discharge, or otherwise coercing an employee for responding to a summons or serving on a jury.  In addition, any employee who serves eight hours of jury duty in any one day must be deemed to have worked a full day’s work and an employer cannot require an employee to work in excess of those eight hours.  Any employee who is discharged in violation of this statute may bring a civil action against his or her employer for up to ten weeks’ wages plus attorneys’ fees.
  2. Connecticut General Statute § 54-85b prohibits, among other things, an employer from discharging, threatening, penalizing, or coercing an employee who obeys a legal subpoena to appear before any court in the state as a witness in any criminal proceeding.

    Further, this statute was amended in 2010 to provide protection to victims of family violence who attend court proceedings and who participate in police investigations related to that crime.   These employees also may not be discriminated against for having a protective order issued on their behalf.

    An employee who is discharged, threatened, penalized or coerced in violation of this statute may bring a civil action for damages and for an order requiring the employee’s reinstatement or otherwise rescinding such action. If the employee prevails, the employee shall be allowed a reasonable attorney’s fee to be fixed by the court.

    Aside from any possible civil liability, employers that violate either statute may be guilty of criminal contempt, and upon conviction, may be required to pay a $500 fine and serve up to thirty days in prison, or both.

  3. Under federal law, 28 U.S.C. § 1875 prohibits employers from discharging or taking any other adverse employment action (threatening to discharge, intimidating, etc.) against a permanent employee because that employee provides jury services in federal court. Employers that violate this statute may be sued for back pay, reinstatement, and attorneys’ fees and may be fined up to $5,000.
  4. Lastly, employees who testify on behalf of another employee in a discrimination claim may also be protected under both federal and state anti-discrimination laws.  Dan reported on the U.S. Supreme Court’s case back in 2011 that discussed what this “zone of interest” may look like.