Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

Data Privacy Continues to be a Hot Topic in HR

Posted in Data Privacy, Highlight, Human Resources (HR) Compliance

lock1Last week, I had the opportunity to speak to the Corporate Compliance Forum for the Connecticut Community Providers Association. My thanks to Gayle Wintjen, General Counsel of Oak Hill, for the invitation to speak.

The topic was a familiar one to this blog — Data Privacy.  In the session, we tackled the new Connecticut law that should be keeping at least some employers up all night figuring things out.

As I said in my talk, employers that have had to adopt HIPAA compliance rules should be in a good shape to get into compliance with Connecticut law. Things like two-factor authentication aren’t nearly as intimidating when you’ve already adopted it for other areas.

Now, the rules don’t need to be adopted by everyone. But those employers who do business with the state of Connecticut are typically covered.

The Privacy and Data Protection Group of my firm put together a FAQ to inform current and potential state contractors of Connecticut’s data privacy and security requirements and to answer the most commonly asked questions about applicable Connecticut law and compliance with it. This article also includes our recommendations for analyzing compliance under applicable Connecticut law and, if necessary, developing a plan to satisfy the pertinent legal requirements.

You can download it free here.

For human resources, I think this is one of the more complicated times to be in HR. Between privacy, discrimination laws, wage & hour laws alone, there are many issues to keep on top of. Make sure data privacy is on your list of things to pay attention to for this year.

And stay tuned for more information on an upcoming program in November.

Trusting Human Resources: A Fantasy or a Necessity?

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

papersA few weeks back, one to the best bloggers you may not be reading — Robin Shea — posted about the scathing press that Amazon had been receiving about its workplace and posed this question: Can Employees Trust Human Resources?

It’s not a trick question.

As Robin deftly points out:

Part of the problem, I think, comes from the fact that HR really cannot be an “advocate” for the employee — not like the employee’s lawyer, or his mother, or his best friend. The HR rep works for the company and has to do what’s right for the company. I think this is where the “HR doesn’t care” perception comes from.

But Robin goes on to say that “just because HR isn’t an employee advocate doesn’t mean HR doesn’t care about employees.”  Indeed, the HR person typically have to worry about compliance and recruitment — two areas that, if handled correctly, can be the “best way to stay out of legal trouble.”

Of course, other bloggers like Suzanne Lucas, tackle this issue on seemingly a daily basis. After all, Suzanne’s moniker is the “Evil HR Lady”.  Why?

All HR people are evil, it’s in our job description. Or at least, that seems to be the prevailing theory. In reality, there’s just more going on behind the scenes than most people know.

Now, before all the HR people reading this pat themselves on the back for a job well done — let’s not get too ahead of ourselves.  Human Resources doesn’t have to be evil, but that’s not to say that incompetence — or, more accurately, missteps — should be fostered either.

HR is under scrutiny all the time and missteps can often lead to misunderstandings and mistrust too.  Suppose, for example, an employee comes to HR with a “confidential” harassment complaint.  The HR person fails to tell the employee that they have an obligation to report it and followup; thus, when the HR person begins an investigation, the complaining employee may be surprised to find out that confidentiality is not something that can be promised.

Now let’s suppose that the HR person actually provides the caveat that confidentiality will be preserves where possible. But in the course of the investigation, the HR person divulges personal information to witnesses and is cavalier with the information.  No matter how good the investigation is, it will still be perceived as being improper.

One issue that may come up is training. Some companies hire HR people with little experience figuring that “anyone” can do that job.  But the problem is that these people (to generalize) may not even know the questions to ask.  They have little familiarity with the law and therefore make decisions that may seem good in theory, but are just not allowed.  The intersection of the ADA, FMLA, Paid Sick Leave, and Workers Compensation is a huge issue that is difficult to get right.

In my experience, most of the HR people I’ve dealt with are bright, well-intentioned people who just want to “get it right”.  It can be a thankless job, made only tougher when the HR people are asked to take the lead on a layoff or termination.  I can tell you that no one takes pleasure in having to fire an employee. The conversations I’ve had with HR people in those instances start off clinical — just the facts — but many times, it’s the “personal” side of the decision that gets tough. The families that may be impacted or the other difficulties that the person has.

In those cases, HR plays a crucial role in ensuring decisions are handled with care and, if the situation warrants, compassion.  HR can advocate for a severance package, or outplacement counseling, or other pieces to a separation.  HR should — and often times, does — try to get decisions “right”.

And ultimately, HR should be trusted. But that trust is difficult to be earned. To the HR people who read it, just keep plugging away.

Remember: HR will typically get blamed for any workplace employee issues and not get credit for the successes.  That just comes with the territory.

Eight Years Later: Three Big Changes in Employment Law

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

HallofFame200pxV32007 seems like yesterday.

And yet, eight years after I started this blog and over 1800 posts later (and a Hall of Fame entry), I’m pretty sure 2007 WASN’T yesterday.

So for this year’s anniversary post, I thought I would capture what I think are some of the biggest storylines from the last eight years.  This isn’t definitive, but there are a few things that stand out.

1.  Social Media – Well this first one was easy, right? What’s amazing is that I didn’t even talk about Facebook and its impact on employers until fall 2008.  In that post, I talked about whether employers should use those sites in their hiring practices.  Since then, there seems to be no corner of the workplace that hasn’t been touched by social media. And yet, I’m also struck by the fact that there is a perceptible sign that we’re seeing this area mature. Less discussions about whether to have a social media policy. And less handwringing about whether social networking site posts are discoverable.  Yes, there are still unsettled areas on this  — the NLRB’s guidance continues to shift — but social media isn’t nearly as foreign as it was back in 2007.

2. The Return of the NLRB – Any discussion of the last eight years certainly must discuss the NLRB under the Obama Presidency.  There are those who complain about the political nature of the agency, but it’s always been a creature of various Presidential administrations.  But what we’ve seen over the last few years in particular is use of cases and regulations to chart new ground (or reverse older ground) in elections, workplace communications, and, last month, joint employer status. As such, we’ve seen union membership increase in several states, like Connecticut.  Make no mistake: On this day after Labor Day, unions and labor law have received a big old proverbial shot in the arm the last several years.  The election in 2016 will be a pivotal year in determining whether this changes continue.

3. The Battle Over Disabilities – True, there are plenty of other noticeable changes since 2007, but one that barely gets mentioned is the Americans with Disabilities Act Amendments Act.  It was one of the last employment law bills signed by President Bush and became effective January 1, 2009.  The Act changed the debate on litigation involving employees with disabilities. Instead, the Act said that courts should interpret the act to provide the coverage to individuals “to the maximum extent permitted.”  For example, 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.   As a result, ADA cases have moved from “threshold” issues (whether the person has a disability) to “liability” issues (whether the person was actually discriminated against).

While EEOC disability charges increased markedly from 2008 to 2010 – that probably had more to do with the economy than anything else. Claims have levelled off since then and have even dropped from their peak in 2012.

A lot has changed since I started this blog in 2007.  I thank you all for your continued readership.  We’ll see what the next year brings.

The Art of the Apology: Saying “Sorry” in the Workplace

Posted in Highlight, Human Resources (HR) Compliance, Manager & HR Pro’s Resource Center
Have you hit the target with your apologies?

Have you hit the target with your apologies?

The Jewish holiday of Yom Kippur is quickly approaching.  While most people know that Jews are supposed to fast on that holiday (and ask G-d for forgiveness for their sins), one of the other traditions of the holiday is that Jews are supposed to apologize to all those we have wronged in the previous year.

I must confess I hadn’t thought about that much until I listened to a great podcast recently from Unorthodox, which brought in the publisher of “SorryWatch”, a blog about the art of the apology, to talk about saying you’re sorry.

(And another confession: Sure, I have this blog on employment law in Connecticut — talk about niche! — but the brillance of a blog devoted to apologies is divine! Seriously, it is just an awesome read.  They have lots of posts on why an apology is meaningful.)

The podcast was a terrific listen for those who are, and are not, Jewish.

It got me to thinking about the art of the apology in the workplace.  Now, I’m not the first one to write about this on an employment law blog. My friend, Molly DiBianca from the Delaware Employment Law Blog, touched it with her three rules for work apologies: Own It. Don’t Overdo It. And Offer a Solution.

The Harvard Business Review has its own advice on the work apology.

[L]eaders should not apologize often or lightly. For a leader to express contrition, there needs to be a good, strong reason.

But in the right way, an apology can help resolve workplace disputes as this post from the JAMS ADR Blog details. Indeed, in mediation, there are ways to use a mediator to get to an apology as well:

Formal face-to-face expressions of regret and responsibility,
while potentially powerful, are rare. By the time the parties
explore settlement, the animosity generated by their litigation
makes it difficult to express anything directly other than

Communication through a neutral is easier. Messages
can be passed to the other side, such as an employer’s
regret that an employee’s skills were not better utilized, a
manager’s admission of ineffective coaching or a supervisor’s
acknowledged failure to appreciate the workplace hostility
experienced by an employee. Acknowledgement of shared
responsibility for the failure of the employment relationship,
coupled with empathy for the hardship caused by the
termination, can convey the employer’s respect for the
terminated employee. Once the employee feels respected
and validated, his or her focus can shift from challenging the
employer’s decision to moving on.

Reference letters can substitute for apologies. Positive,
factual statements about the employee (excerpted from past
performance reviews or deposition testimony) communicate
respect and confirm the value of the employee’s contributions.

But I liked the advice given in the podcast. The five-step approach to the apology.

  1. Say you’re sorry.
  2. Say the thing you are sorry for. (As an aside, this is notoriously hard for my kids.)
  3. Say you understand the import of what you did.
  4. Make amends.
  5. Figure out what steps to take so it doesn’t happen again.

It’s not a perfect list, but it’s a pretty good step to start.  Workplaces aren’t always about being right; sometimes, it’s saying you’re sorry for the little things, to avoid bigger things down the road.

Impact of NLRB’s Joint Employer Decision in Connecticut Still To Be Determined

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

My colleague, Jarad Lucan, who has been busy with his own labor cases, today returns with post about the latest from the NLRB.  There are many posts out there on the subject (here, here, and here, for example), so Jarad is going to touch on its impact for Connecticut employers.  

Lucan_J_WebAs you’ve no doubt read, the National Labor Relations Board, refined its test for determining whether two ostensibly separate entities can be viewed as joint-employers.  In its Browning-Ferris Industries of California, Inc. case, the Board concluded that Browning-Ferrris was a joint employer of workers supplied to it by a staffing agency that it contracted with.

According to the Board:

Today, we restate the Board’s joint-employer standard to reaffirm the standard articulated by the Third Circuit in Browning-Ferris decision [A different case involving the same employer here]. Under this standard, the Board may find that two or more statutory employers are joint employers of the same statutory employees if they “share or codetermine those matters governing the essential terms and conditions of employment.” In determining whether a putative joint employer meets this standard, the initial inquiry is whether there is a common-law employment relationship with the employees in question. If this common-law employment relationship exists, the inquiry then turns to whether the putative joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.

Central to both of these inquiries is the existence, extent, and object of the putative joint employer’s control. Consistent with earlier Board decisions, as well as the common law, we will examine how control is manifested in a particular employment relationship. We reject those limiting requirements that the Board has imposed–without foundation in the statute or common law–after Browning-Ferris. We will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry.  As the Supreme Court has observed, the question is whether one statutory employer “possesse[s] sufficient control over the work of the employees to qualify as a joint employer with” another employer. Nor will we require that, to be relevant to the joint-employer inquiry, a statutory employer’s control must be exercised directly and immediately. If otherwise sufficient, control exercised indirectly–such as through an intermediary–may establish joint-employer status.

But the outstanding question is: How big is this decision?

From our perspective, it’s still “to be determined.”

Certainly, it’s significant that the Board’s indication that it will no longer require that joint employers actually exercise the authority to control terms and conditions of employment, necessarily means that employers in business relationships such as the one at issue in the Browning-Ferris case may have joint-bargaining obligations that they do not even know exits and may be liable for unfair labor practices without engaging in any wrongdoing.

But this case will likely be appealed and it remains to be seen how much of this decision will be adopted by the courts.

Whatever the impact, the decision is significant enough that Congress is already discussing legislation to specifically address the decision.

Although the decision only applies to private sector employers, Connecticut’s State Board of Labor Relations looks to federal law for guidance in interpreting our State’s labor laws.

Thus, all employers in Connecticut, both private and public sector, should review this decision and any business contracts that may be impacted closely.  Independent contractor and franchise agreements, in particular, should be reviewed to be brought up to the latest in employment law. If you haven’t had your contracts renewed in the last decade, it’s probably time to do so now.

CHRO Right to Sue Letter Enough to Bring Federal Discrimination Claims to Court

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Litigation

TimeIn catching up over some interesting employment law cases from 2015, I came across Lennon v. Dolce Vida Medical Spa (download here).  You would be forgiven if you missed it because it’s an unreported Superior Court decision on a seemingly-technical issue.

But, if followed by other courts, it has a notable twist.

First, the simple background: In Connecticut, employees must typically file discrimination claims first with the state agency, the Commission on Human Rights & Opportunities before going to court.  These claims are, pursuant to a work-sharing agreement with the EEOC, typically cross-filed with the federal agency too.

(For the lawyers out there — yes, you can file first at the EEOC, but the vast majority of claims get filed first at the CHRO.)

In any event, in order to bring suit in court, the employee must obtain a “right-to-sue” letter from the CHRO and, I think many people believed, from the EEOC as well.  The employee must then bring suit in court in the following 90 days from receipt.

In the Lennon case, the employee received only the right to sue letter from the CHRO and yet brought both state and federal discrimination claims.

The employer moved to dismiss the federal claims.  The Superior Court, however, rejected that motion to dismiss, saying the existence of a work-sharing agreement between the CHRO and the EEOC as well as the fact that the filing requirement is not a jurisdictional bar, does not merit dismissal of the claims here.

[Dismissal is not warranted because of] the plaintiff’s timely compliance with [the state] filing requirement, the nature of the work-sharing agreement in place between the CHRO and the EEOC, the fact that every federal circuit court presented with this issue has decided that obtaining a right-to-sue letter is a precondition rather than a jurisdictional requirement for bringing suit based on EEOC violations, and recent decisions of the district courts of Connecticut holding that a plaintiff who has a release from the CHRO is not required to obtain a duplicate right-to-sue notice from the EEOC….

Fair enough.  The court cites some similar federal court cases from Connecticut to support this position as well.  (I should note, however, that Superior Court decisions have questionable precedential value according to some so be sure to check with counsel about any use of this case.)

But if that’s going to be the law — that an employee need not wait or get a separate right-to-sue letter from the EEOC before filing suit on both state and federal grounds — what is left unanswered from the case is a different by similar set of facts.

Suppose an employee receives the right-to-sue letter from the CHRO but, for whatever reason, does not file suit in state or federal court in the next 90 days.  Months go by and the EEOC then issues its  notice of a right-to-sue nearly one year later (which is what happened in the Lennon case).  The employee then files suit in federal court on the claims within 90 days.

Are his or her federal claims now time-barred because courts have ruled that the employee could have brought suit with simply a state (CHRO) right-to-sue letter?  Are the state law claims revived based on this EEOC letter?

Employers would certainly ope the answers are “no” and “no” but we’ll just have to wait-and-see what the courts do on this. Something tells me that employers shouldn’t get their hopes up too much — at least on the first question.

After Hours iPhone and Android Use By Employees Raises Wage/Hour Concerns (Again!)

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

bbolSo, you remember February 2009, right?

We were all aflutter over Liam Neeson in Taken (ok, I still haven’t seen it).  And we were listening to “My Life Would Suck Without You” by Kelly Clarkson (still a good song.)

And I had a Blackberry Bold and loved it. (I know; even lawyers can plead temporary insanity).

How do I remember this? Because I wrote about my mobile device back then.  (We called these devices “PDA”s.) 

Now you might be asking the next question: Why? Because I suggested that employers needed to get on top of the issue of employees using these devices outside the office.

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

But enough people still hadn’t gotten the message, so I repeated that cautionary tale in 2012.  I even talked about best practices.

Now, over six years later, Blackberrys have almost disappeared (and the new iPhones are getting announced next month, right Siri?) but the issue of mobile device usage by non-exempt employees has not.

In fact, earlier this month, the U.S. Department of Labor indicated that it will seek public comment as to the after-hours usage of mobile devices by employees and its impact on wage & hour enforcement laws.

The Pennsylvania Labor & Employment Law Blog has a good recap here, but the essence of what the post says is similar to what I also said six years ago:

Determine whether and to what extent the operational benefits offered by giving off-hours access to work e-mail and telephone systems by non-exempt employees exceed the potential costs of class-based claims for unpaid overtime….[And h]ave in place a policy for non-exempt employees that addresses working remotely and outside of normal work hours.

I expect you will continue to hear a lot more about this as this becomes a priority for the USDOL.

Just don’t say I didn’t warn you.  It’s been an issue many years in the making.

Trivia Time for HR Professionals – Six Questions of the Day

Posted in CHRO & EEOC, Featured, Highlight, Manager & HR Pro’s Resource Center, Wage & Hour

trviaI recently was invited the join the “Learned League”, which has been described by the Washington Post as the “coolest, weirdest Internet community you’ll never be able to join.”

Needless to say, now that I’m participating in it, I’m wondering if I’m either cool or weird or both.

The league is a hodge-podge of various people who answer six trivia questions a day for a five week period during various contests.  No money is involved (think: pride not prize) but the competition includes people like Ken Jennings, who is the all-time champion on Jeopardy.

The biggest rule is “no cheating” — in other words, don’t Google the questions. It’s a bit addicting, so in the spirit of the contest, I thought I would provide you with six questions to answer.  Note that this is not multiple choice — rather it’s fill in the blank, which is oh so challenging.

1.  According to the EEOC Charge Statistics for Fiscal Year 2014, retaliation claims were the number one filed claim with the agency.  What protected class was number two?

2. One resource that is (or should be) often referred to by employers when addressing disability issues is nicknamed “JAN”.  What do the letters JAN stand for?

3. The federal Family & Medical Leave Act provides that eligible employees may take up to 12 work weeks of leave in a 12-month period for one or more of four separate reasons.  Two of the reasons are for: 1) the employee’s own serious health condition; and 2) tocare for a spouse, son, daughter, or parent who has a serious health condition.  Name one of the other two reasons?

4. In Connecticut, family violence victims who work at employers that have three or more employees, are entitled to time off for various reasons including seeking medical care or attending court.  How many days per calendar year is the employee entitled to?

5. In 1994, Michael Douglas and Demi Moore starred in a film that, among other claims to fame, brought issues of sexual harassment and “reverse” harassment to the public’s attention. Notably (?), Demi Moore was nominated as “Best Villain” for the MTV Movie Awards.    What was the name of the movie?

6.  The current minimum wage in Connecticut in $9.15 cents per hour.  What will the minimum wage in Connecticut be effective January 1, 2016? (And for a bonus point, what about January 1, 2017?)

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The Real Battle over Independent Contractors and the ABC Test In Connecticut

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

Governor Malloy with current CTDOL Commissioner Sharon Palmer

You’ve no doubt heard lots about how the U.S. Department of Labor is cracking down on independent contractors.  I’ve recapped it before and my former colleague, Jonathan Orleans, has a new post regarding Uber & electricians.

But in my view, there is a larger, more important battle now being fought in Connecticut and you may not be aware of it.  I touched on it briefly in a post in July but it’s worth digging a little deeper.  Disappointingly, I have not seen anything written about this in the press (legal or mainstream).

A case recently transferred to the Connecticut Supreme Court docket threatens to cause lots of havoc to company usage of independent contractors in Connecticut. The Connecticut Department of Labor has taken an aggressive stance in the case which is leading to this big battle.

The case is Standard Oil of Connecticut v. Administrator, Unemployment Compensation Act and is awaiting oral argument.  You can download the state’s brief here and the employer’s brief here.  The employer’s reply brief is also here.

The employer (Standard Oil) argues in the case that it uses contractors (called “installers/technicians”) to install heating oil and alarm systems and repair and service heating systems at times of peak demand.  The state reclassified the installers/technicians as employees and assessed taxes and interest.  At issue is the application of the ABC Test which is used in Connecticut to determine if these people are employees or independent contractors.

As explained by the CTDOL:

The ABC Test applies three factors (A, B, and C) for determining a worker’s employment status. To be considered an “independent contractor,” an individual must meet all three of the following factors:
A. The individual must be free from direction and control (work independently) in connection with the performance of the service, both under his or her contract of hire and in fact;
B. The individual’s service must be performed either outside the usual course of business of the employer or outside all the employer’s places of business; and
C. The individual must be customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service performed

In the Standard Oil case, the employer is challenging the findings on various elements of this test. One of them – Part B , the “places of business” — is potentially far-reaching, according to the briefs filed in the case.  The issue is whether the customers’ homes are “places of business”; if they are, then the consultant cannot be said to be performing services “outside” the employer’s places of business.  The employer argued that viewing customers’ homes as places of business “does nothing to further the Act’s purpose and its practical implications are damning to Connecticut industry….”

Indeed, the employer argues that “it will be impossible for [the employer]-or any Connecticut business–to ever utilize the services of an independent contractor.”

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Grieving and Bereavement Leaves in Connecticut

Posted in Highlight, Human Resources (HR) Compliance

bobYesterday, I learned of the passing of a friend, Robert Gulomb, the beloved husband of Livia Barndollar – the former President of the Connecticut Bar Association, and a friend and mentor as well.   Robert passed away peacefully after a long illness.

I last saw Robert in the hospital earlier this month, but that’s not how I’ll remember him. 
My fondest memory of Robert was at a marvelous brunch we had last year in the Boston area.  He wasn’t in the best of health, but his wit, charm and smarts were never more evident.  The terrific food only added to the sense that this was something special.  My wife had been dealing with her own illness at the time and the four of us enjoyed a meal oblivious to the tolls that disease had taken on our families.  It was just good food and good company.
I remember talking about the blog and how writing was special to me.  He was inquisitive about it. So I can think of no better way for me to honor Robert from me than to dedicate this post about grieving and bereavement to him.
His passing is still yet another reminder that death is a way of life. It’s a cliché for sure but employers have to deal with this issue on an ongoing basis.
But what does the law tell us? For the most part, there aren’t any laws about it.  You won’t find the topic on Connecticut DOL’s wage and workplace standards pages. While FMLA leave is designed to provide leave to care for a family member (particularly in the end stages of life), an immediate death may not qualify and it does not seem to cover attending funerals. Indeed, do a search for “death” or “funeral” in the Connecticut FMLA regulations and your searches will come up empty.
Thus, employers have crafted their own set of rules. I covered this in one of my very first posts back in September 2007.  In that piece, I discussed several issues that employers may want to consider.
  1. Are your bereavement policies established? If so, are they non-discriminatory?
  2. What practices do you have to help the grieving worker communicate with colleagues? And do you have an employee assistance program that you can refer employees to?
  3. How can you help co-workers express their sympathy, particularly if the loss is actually in the workplace?
  4. How do you help the bereaved employee and his or her supervisor deal with any lingering productivity issues?

None of this is easy.

Usually, for immediate family members, many employers will provide employees two-three days off with pay, and no pay for any additional time, unless employees arrange to use personal days or vacation time. How you define “immediate family member” is up to the particular employer, but make sure that it takes into account the changes that have been made in Connecticut for same-sex marriages.

Sail on, Robert.  May his memory be for a blessing.