Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

A Look Ahead: Connecticut’s Minimum Wage Rockets Upward

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

On New Year’s Day, I had the opportunity to launch model rockets with my son on a gorgeous (but very cold) day.

As it turns out, it was also a windy day.  We discovered this through launching two rockets super high — only to see them carried away deep into the woods a mile away.

But it was a good way to start the year. So with that image in your mind, it’s also time to go back over the minimum wage in Connecticut. We’ve seen increases over the last few years, and this year has yet another raise.

So, as of yesterday, the minimum wage has blasted forward another 45 cents to $9.15 per hour. For restaurant workers who are eligible to receive tips, there was also an increase to $5.78 per hour.

The minimum wage will continue to increase. On January 1, 2016, it will increase to $9.60 per hour. And finally on January 1, 2017, it will max out (at least for now) at $10.10 per hour.

A Look Ahead: Three Bold Predictions in Employment Law for 2015

Posted in CHRO & EEOC, Highlight, Human Resources (HR) Compliance, Labor Law & NLRB, Laws and Regulations

Reading the Tea Leaves

Every year, I break out a crystal ball, or a magic 8-ball, or some tea leaves, and make some pronouncement about what will happen in the upcoming year.

It’s sort of a no-lose proposition. If I’m right, well, then I pat myself on the back. If I’m wrong, well, it’s just an educated guess.

So, continuing my series of outlook posts, here are three bold predictions on what we could see in the area of employment law on a national basis. In a post next week, I’ll look at Connecticut and make three more “bold” predictions.

1. A Battle Royale Over the NLRB: A new Republican-controlled Congress + a reinvigorated NLRB spells trouble.  We’ve already seen in the closing weeks of 2014 a renewed sense of vigor at the NLRB. It has taken aggressive stances in several cases and has now finalized “quickie” election rules that will disrupt the settled way that such elections have been held for years.  The Republicans who now control Congress will no doubt attempt to push back at such actions, but with President Obama wielding a veto pen, we’re unlikely to see such actions. Instead, look for lawsuits to be the continued mechanism by business interests to try to halt what they see as NLRB overreach.

2. The Supreme Court’s Makes No One Happy: The highest court has taken some interesting employment law cases over the years.  In Young v. UPS, I predict the court will punt on the issue of the extent of the Pregnancy Discrimination Act, deferring to the United States’ brief recommending the same thing.  In EEOC v. Abercrombie & Fitch, my sense is that the Court will find that actual knowledge of an employee’s religion is needed in order to find discrimination. (Argument set for February 25, 2015.) In Mach Mining v. EEOC, the Court will agree with the lower courts that have looked at the issue and find that the EEOC’s duty to conciliate before filing a charge cannot be the subject of an affirmative defense.  (That case is set for oral argument on January 13, 2015.)

3. Lots of New Regulations: There are a number of items that the EEOC and Department of Labor have on their regulatory agenda. Among the new regulations that are likely to come down the pike in 2015 are revisions to the “white collar” exemption for overtime purposes and guidance on “wellness plans”.

Bonus prediction: If I’m going to make one crazy prediction, here it is: Perhaps we will see consideration of the Employment Nondiscrimination Act as a way for Republicans to show that they can govern with their majorities in Congress.  Yes, I recognize this is a stretch but with both President Obama and Republican leaders talking about taking bold steps over Obama’s last two years, could we see a breakthrough on a compromise for this bill? Stranger things have happened.

Will these come true? Stay tuned.

A Look Ahead: Paid Family & Medical Leave Insurance Program

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Wage & Hour

With 2014 coming to a close, it’s time to look ahead at some of the issues that we’re likely to see discussed in 2015.

One such issue is a Paid Family & Medical Leave Insurance Program in Connecticut.  The origins of this come from a 2013 special act which created a task force to study the feasibility of providing short-term insurance benefits to those unable to work for FMLA-related conditions.

This fall, the Task Force outlined a plan for a new state-administered benefit program.  For those following the issue, it was not altogether surprising that the Task Force recommended that a program be implemented by the legislature.

Among its recommendations:

  • Establish a family and medical leave benefit plan to provide paid leave for applicable purposes as defined under federal or state law. The plan shall be mandatory for all private and state employees, without regard to the size of the employer.
  • The financial benefit shall be 66% of the average weekly earnings of the employee, up to a maximum of $1,000/week, for a maximum of six weeks in any 12-month period.
  • For the period an employee is receiving benefits under this plan (1) employees who work for employers that are currently required to provide job protection and continuation of benefits (e.g. maintenance of health insurance) per federal and state laws will continue to enjoy the same rights, (2) employees who work for employers that are not currently required to provide job protection and continuation of employer benefits per federal and state laws will not be entitled to such rights. However, said employees are protected against discriminatory employment practices resulting from the utilization of the plan.
  • The plan shall be 100% employee funded. It will be funded by withholding and placing a percentage of an employee’s pay into a plan fund.
  • The administration of the plan shall be handled by the Department of Labor.

After the findings, the CBIA issued its own report with an alternative suggestion.  Its conclusion? “Connecticut should not enact a new mandate for paid family and medical leave, particularly the one designed by the [Task Force].”

It cited the “likely prohibitive expense” and the likelihood it would cause “unintended consequences for employees in Connecticut and their employers.”  And it stated that “no evidence conclusively points to the need for such a program or its efficacy at reducing economic hardships on women in the state.”

What’s the Prediction for 2015?With a Democrat-controlled legislature and Governor Malloy’s re-election, one would initially think that this would be a slam-dunk.  But my sense is that the predicted budget deficit will allow the state leaders to pass on this issue for now.  Additionally, there is little doubt that business interests would mobilize against such a proposal.  While the issue may get some publicity and will likely get out of committee, I would be surprised if it made it to a floor vote.

Three Times When You Should Call an Employment Lawyer

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

Suzanne Lucas, who writes under the moniker of the “Evil HR Lady” (and who is anything BUT evil), recently released a post about when an individual should hire an employment attorney.

She cites to another good lawyer/blogger — Chris McKinney — who also posted on the subject from an employee’s perspective.

But suppose you own or work at a small to mid-size business. Odds are you don’t have a lawyer in-house that you can discuss this with.  You may have an attorney you call from time to time.

What then?

Well, suppose you injured your leg going skiing. Would you have your primary care physician handle things or would you go to a orthopedic specialist?

That, in some ways, is the inquiry that you should be asking yourself.

Is the problem that you have something that any attorney can handle or is there something more to the issue?

There are a few situations that I’ve seen over time when clients seem to be happy about calling an employment attorney.

1. Getting sued is the most obvious one. But many times, the claims from an employee are filed at the agency level first.  Those proceedings are the best time to get an attorney involved in drafting and defending your company because what you say there will dictate your defenses at court later on.

2. Getting a letter from an attorney representing an employee is another situation when hiring an employment lawyer may be useful.  The desire to “lawyer up” isn’t necessarily a bad one. But an employment lawyer in Connecticut may be familiar with the employee’s attorney and can help defuse an otherwise-heated situation.

3. Getting a phone call from a state or federal agency doing an investigation of your workplace practices is still another situation. This can be a challenge because often times there is little advance notice. But having an employment attorney available for a call, can again save headaches for the employer and level the playing field.

This is, of course, not a complete list.  But thinking about these issues before you actually need an attorney can make it much easier when an “emergency” arises.

Connecticut Court: Perceived Disability Claims May Proceed Under State Law

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

My colleague, Jarad Lucan, returns today with a post discussing a new Connecticut Supreme Court case that has expanded the state’s anti-discrimination laws when it comes to disability claims. 

When Congress enacted the Americans With Disabilities Act (ADA), it recognized that fears, misperceptions, and stereotypes about disabled individuals are so pervasive that employment discrimination reaches beyond those who are burdened by the requisite substantially limiting impairments.

As a result, the definition of a disability under the ADA expressly includes being regarded as having a physical or mental impairment that substantially limits one of more major life activity.

In other words, the ADA clearly prohibits disability discrimination based on an employer’s mistaken belief.

Unlike the ADA, the Connecticut Fair Employment Practices Act (CFEPA) does not expressly protect an employee whose employer mistakenly regards him or her as being physically disabled (the CFEPA does expressly make it illegal for an employer to discriminate against an employee because the employer regards the employee as being mentally disabled).

In fact, under the CFEPA, physically disabled is defined to include only any individual who has any chronic physical handicap, infirmity or impairment.

Nevertheless, the Connecticut Supreme Court determined last week that the CFEPA does protect individuals from being discriminated against because of an employer’s mistaken belief about his or her physical disability.

In Desrosiers v. Diageo North America, Inc., the Supreme Court recognized that the language of the CFEPA is plain and unambiguous (which normally ends a court’s inquiry into the meaning of a statute) in that nowhere does it establish protection for an individual who is regarded as having a physical disability.

However, the Supreme Court determined that applying the CFEPA in such a manner would bring about bizarre results.

“Namely, under the plain language of [the CFEPA], if an employee has a chronic disease, the employer may not discharge the employee on that basis. If, however, the employer is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of the [the CFEPA] do not protect the employee from discharge on that basis, despite the fact that the employer’s actions, in both cases, were premised on the same discriminatory purpose.”

In arriving at its decision, the Supreme Court relied, in large part, on the Commission on Human Rights and Opportunities’ long standing interpretation of the CFEPA to include protection for employees who are regarded as having a physical disability.

In addition, the Supreme Court looked to the legislative history of the CFEPA, which made clear that the definition of physically disabled was to “cover as many people as possible under the definition and leave it open and broad.”

In the Court’s opinion, it would be inconsistent with the legislative efforts to protect as many individuals as possible and “thwart” the purpose of the CFEPA to exclude protection for employees who are merely regarded as being physically disabled.

Not surprisingly, Justice Zarella issued a forceful dissent saying that the interpretation would not lead to a “bizarre” result:

Although the majority’s interpretation of the relevant statutory language may be the better public policy, and although the legislature might adopt that policy if the matter is brought to its attention, that is not sufficient reason for abandoning the plain and unambiguous directive in the statute itself. The fact that a better public policy exists does not mean that the expressed public policy ‘‘yields absurd or unworkable results . . . .’’

Nevertheless, the outcome is probably not terribly surprising. The Supreme Court has long looked to federal antidiscrimination laws, including the ADA, when interpreting the CFEPA and taken a fairly expansive view.

Way back in 2008, for example, the Supreme Court determined in Curry v. Allan S. Goodman, Inc. that the CFEPA requires an employer to engage in the interactive process with employees and provide reasonable accommodations if necessary even though no such requirements are expressly included in the CFEPA.

For employers in Connecticut, the case shouldn’t result in dramatic changes to policy because most employers simply follow the ADA procedure — whether or not it applies to them. After this decision, it’s pretty clear that those procedures will apply in a similar fashion under state law tool.

(Disclosure: Dan Schwartz represented an individual defendant in this matter at the lower courts and will refrain from direct comment on this matter.

NLRB and the “Purple” Crayon: NLRB Rewrites Its Decision on Employer E-mail

Posted in Highlight, Human Resources (HR) Compliance, Labor Law & NLRB, Litigation

The NLRB, right now, is union-friendly. We know it. Employers know it. Politicians know it. The unions know it.

It’s stacked 3-2 with Democrat appointees so the NLRB taking its training wheels off and is doing what it has always done. It has shifted its decisions based on the politics.

Yesterday represented just the latest in a long line of decisions where the NLRB has suddenly “seen the light” from a prior decision and overrules itself without much real logic.

It’s not right or wrong. This is just how the NLRB works. When Republicans controlled the Board, it did the same thing.

The NLRB rewrites its decisions. And creates fantastical changes with the use of a crayon (or pen, or keyboard) — just like that childhood story about Harold.

So, yesterday’s decision in Purple Communications, Inc. regarding the usage of an employer’s e-mail system should come as no surprise (and won’t be if you attended my firm’s Labor & Employment seminar in October where we talked about this case coming down just like this.)

I asked one of our labor gurus and a frequent blog contributor Jarad Lucan, to first recap what is going on.  He talked about this case at our October seminar:

Oh, 2007. Those were the days for employers.

The Sopranos made their exit. The last Harry Potter was released.

And the NLRB issues the Register Guard decision (see Dan’s post from way back then).  

The decision said that employees had no rights under labor law to use an employer’s email system, let alone to use it for statutorily protected communications, such as union organization efforts, as long as the restrictions placed on the email system by the employer were nondiscriminatory. 

According to the Board:

Nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis.   That is, an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use.  In each of these examples, the fact that the union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.  For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitation for Avon and the union. 

Yesterday, a divided Board overruled Register Guard declaring that it was incorrectly decided.  

In its Purple Communications Inc. case, the Board held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email system.” 

Put differently, if an employer has allowed its employees to use its email system for non-work related  reasons (i.e., incidental personal use), then an employer must also allow those employees to use its email system for communications protected under the Act, such as communications about union organization efforts or the scheduling of solidarity marches to protest the employer’s conduct. 

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The “Association” Game: How a Spouse’s Cancer May be Covered by the ADA

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Manager & HR Pro’s Resource Center

Last week, we talked about an employer’s obligations when it comes to an employee who has cancer. But what about an employee’s spouse? Does the employer have any legal obligations there?

Let’s start first with a story:

Jake and his supervisor, Alex, have had a great working relationship but lately, things seems to have changed. At least that’s how Jake sees is after he told Alex that his wife is suffering from a long-term disability — cancer.

Although Jake has been a good performer for years, Alex has recently expressed his concern that Jake will not be able to satisfy the demands of the job due to the need to care for his wife. Alex begins to set unrealistic deadlines for projects for Jake and even yells at Jake in front of co-workers about the need to meet the deadlines.

Alex also began requiring Jake to meet company policies that have never been strictly followed, such as giving 2 weeks advance notice of leave.  Now, Alex has removed Jake from team projects because Jake’s co-workers don’t think Jake can be counted on to complete his share of work “considering all of his wife’s medical problems.

Jake is frustrated. He’s complained to management but to no avail.  Now what?

At first glance, you might think this is a FMLA issue; taking time off for a family member’s serious health condition is one of the key points of the FMLA. But a deeper look shows that’s not really what’s going on.  This doesn’t have to do with leave.

Instead, it seems that the supervisor is treating an employee differently because of his relationship with someone who has a disability.   The question is — is there a legal claim?

According the EEOC, there is.

Indeed, given this above scenario, the EEOC concluded in Q&A release that “the employer is liable for harassment on the basis of [Jake's] association with an individual with a disability.” In other words, the employee may have a claim under the ADA.

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Who Needs Santa? All I Want for Christmas is a Visit From OSHA

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

My colleague, Marc Herman, returns today with a holiday-themed post filled with — workplace safety issues? Read on.

Holiday season shopping . . . the home to nostalgic tunes, perpetual lines, frenzied bargain hunters, overflowing parking lots, and OSHA.

For those who can’t remember your government acronyms, it’s the United States Department of Labor’s Occupational Safety and Health Administration

Were you thinking, perhaps, of Santa instead?

As retailers get in full swing shopping extravaganza mode, OSHA ––a federal agency charged with regulating the health and safety of employees in the workplace–– has been issuing press releases noting that they are keeping a close eye on the wellbeing of retail employees this holiday season.

In a recent one, OSHA forewarned large retailers of the acute dangers faced by retail employees this holiday shopping season “if the proper safety procedures are ignored.”

(For those who enjoy the Internet’s dark side, you can also check out the “Black Friday Death Count.”)

The warning comes six years after a Walmart employee was tragically trampled to death amidst a mob-like rush by frantic, bargain-hungry, shoppers on Black Friday; receiving a citation for “inadequate crowd management,” Walmart Stores, Inc. received a $7,000 fine from OSHA.

Emphasizing the risks posed by ruthless shoppers, OSHA has provided major retailers with “Crowd Management Safety Guidelines.”

Those guidelines implore retailers to adopt measures such as: providing trained security personnel, having emergency procedures in place, and ensuring that emergency exits remain unlocked and accessible––undoubtedly pragmatic advice.

Ultimately, though, perhaps this will be a relic of a by gone era.  The crowds at Black Friday this year seemed the thinnest in years. 

It seems that perhaps Santa is doing more of his shopping on the internet from the warm confines of the North Pole.

Supreme Court: Employees Need Not Be Paid For Post-Shift Security Checks

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

When the U.S. Supreme Court rules on an issue in a 9-0 fashion — with a decision penned by Justice Thomas, no less — you can fairly conclude that the issue is not all that difficult.

Indeed, the SCOTUSBlog summed up the employment law decision today pretty succinctly:

Workers who are required to stay after their normal hours on the job to undergo a security screening are not entitled to overtime pay while they wait for that process and then go through it, the Supreme Court ruled unanimously on Tuesday.

The case of Integrity Staffing Solutions v. Busk involved screenings of employees at Amazon.com warehouses after their shifts concluded.

The screenings, which could take up to 25 minutes, were deemed by the court to not be “integral” to the employee’s job.  Those screenings could have been eliminated and it would have had no impact on the employee’s ability to do the job itself.

Contrast that with the “Donning and Doffing” case of earlier this year, where the putting on of personal protective equipment could be seen as necessary for employees to do their jobs (but that some clothes might not be.)

In Connecticut, the decision should have minimal impact.

The Second Circuit has been pretty consistent in its reading (essentially in concurrence with the Supreme Court’s conclusion) and even the U.S. Department of Labor had said that the employee’s arguments were contrary to the established reading of the law.

It’s not very different that the employees who are required take shuttle buses to parking lots after their shift. That is not compensable either.

Nevertheless, if you are an employer that requires your employees to come into work early or stay after and go through some type of screening or process, this is definitely a decision to review to make sure your practice falls within the applicable state and federal laws.

Court: Breach of Anti-Harassment Policy in Company Handbook — Titled “Employee Agreement” — Can Be a Viable Claim Without Disclaimer

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

I’ve talked many times before about the importance of a well-drafted disclaimer in your employee handbook (here and here, for example).

This is not a new thing and in Connecticut dates back to an important case back in 1995 .

Without such disclaimers, employers can be subject to a breach of contract claim by your employees.

Yesterday, a federal judge in Connecticut was the latest to reinforce this message by allowing a breach of contract claim to proceed based on the employer allegedly failing to comply with its own anti-harassment policy, even though the federal legal claim of harassment was time-barred.

You can download the decision denying the employer’s motion for summary judgment on this issue in Mariani v. Costco Wholesale Corp. here.

One important note at the outset. This decision does not mean Costco is liable for a breach of contract; all the court decided is that the employee’s claim can proceed to a trial.  (In doing so, the court threw out many other claims of the employee.)

The facts on this issue seem straightforward. Costco seemingly has an employee handbook that it titles “Employee Agreement”.  It requires the employees to acknowledge receipt.  Costco conceded to the court that this “Agreement” could create a contractual obligation to its employees.

But, according to the court, Costco’s anti-harassment policy created an additional contractual responsibility that it did not disclaim. In other words,  the court said that while the employer was under no obligation to have tougher anti-harassment policies than state or federal law — having said it would abide by stronger language, it must follow that or face a breach of contract claim.

The court’s “money” quote is this:

The Employment Agreement does not contain any disclaimer language to the effect that its “super” anti-harassment provisions do not create legally enforceable protections beyond the protections of background law. Today’s corporate employers compete not only on grounds of their raw ability to make, deliver, and sell goods and services at a low or reasonable cost but also on grounds of their corporate self-image as “good” corporate citizens. They likewise compete on grounds of their ability to attract employees by means of promises of innovative management practices that foster dynamic workplaces that are comfortable and safe. This is not to fault the fact that Costco has adopted progressive anti-harassment policies but only to make clear that these policies, as framed without disclaimer, may give rise to legally independent and enforceable obligations for the benefit of employees that rely on them

How can Connecticut employers avoid this same result?

This case should be yet another reminder of the importance of a disclaimer in any company handbook that these policies.  Remind employees that no provision of the handbook creates an employment contract or any other obligation in regard to employment.  And consider using this language in the acknowledgment of receipt.

And, without stating the obvious, consider calling your employee handbook, well, a handbook instead of an “agreement”.  If you call it an agreement, a court isn’t going to disagree with you.

With the year coming to a close, this is the perfect time to have your handbook reviewed by an attorney.  Otherwise, you could be facing an employment law claim that you created yourself.

 

Costco Contract Claim