Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

A Rare Look Into An Employee’s Duty of Loyalty to the Employer

Posted in Highlight, Human Resources (HR) Compliance

worker3After nine-plus years of writing about employment law in Connecticut, it’s getting to be pretty rare to find a topic that I haven’t at least touched upon, but here’s one: The Duty of Loyalty.

Indeed, a new Connecticut Supreme Court case is giving me the opportunity to do so.

The case arises from an employee who, while working for one employer, was secretly working as an independent contractor for a competitor.  The employer sued under a breach of the duty of loyalty claim.

The case, Wall Systems Inc. v. Pompa, officially released last week, can be downloaded here.

Lawyers will look at the case because it sets forth what types of damages are recoverable when a breach of a duty of loyalty claim is established.  In doing so, the court makes it clear that a trial court has some discretion in fashioning the appropriate remedy:

We agree with the plaintiff that the remedies of forfeiture of compensation paid by an employer, and disgorgement of amounts received from third parties, are available when an employer proves that its employee has breached his or her duty of loyalty, regardless of whether the employer has proven damages as a result of that breach. Nevertheless, the remedies are not mandatory upon the finding of a breach of the duty of loyalty, intentional or otherwise, but rather, are discretionary ones whose imposition is dependent upon the equities of the case at hand. Moreover, while certain factors, including harm to the employer, should not preclude a finding that the employee has committed a breach of the duty of loyalty, they nevertheless may be considered in the fashioning of a remedy. Here, because the trial court properly exercised its broad discretion when it awarded damages but declined to order forfeiture or disgorgement, we will not disturb its judgment on this basis.

But I think the more interesting point for companies is to understand the scope of the duty of loyalty.

In discussing the scope of this duty, the Connecticut Supreme Court reaffirmed principles that were last set forth in detail over 50 years ago in Town & Country House & Homes Service, Inc. v. Evans.  In that case, the court found an employee breached the duty of loyalty by soliciting employer’s customers for his own competing business while still working for the employer.

The court noted that an employee’s duty of loyalty includes “the duty not to compete … and the duty not to disclose confidential information”.  The court noted that this duty not to compete is during the employment relationship — not necessarily after — and is not dependent on the use of employer’s property of confidential information.

The court went on to say that the duty of loyalty “also includes the duty to refreain from acquiring material benefits from third parties in connection with transaction undertaken on the employer’s behalf.”  What does this mean? Essentially, it bars the collection of “secret commissions and kickbacks which might cause the employee to act at the expense or detriment of his or her employer”.

An employer may seek the forfeiture of an employee’s compensation for the period of disloyalty, but the court concludes that such a remedy is an equitable one and subject to the facts of the particular case.

But it’s always important to read the footnotes and here, in footnote 9, the Court inserted the notion that the duty of loyalty may not apply all employees.  “The scope of the duty of loyalty that an employee owes to an employer may vary with the nature of their relationship. Employees occupying a position of trust and confidence, for example, owe a higher duty than those performing low-level tasks.”

Still, the case is an excellent one for employers to keep in mind — particularly if the employer does not have restrictive covenants with its employees.  If the employees are engaging in competing work while still employed, the employer can use this case — and the theories behind it — to see the appropriate remedies.

With the appropriate employee, the employer can further strengthen its arguments, but including this in an employment agreement along with restrictive covenants.  In such a case, the court reminds parties that an employer could then terminate that agreement prematurely and seek recovery of damages directly attributable to the employee’s breach.

Employers should consider consulting with their favored outside counsel to see how this decision may apply to them.

 

The Dialogue: What Legislation We’re Keeping Our Eyes On

Posted in Highlight, Legislative Developments, Wage & Hour

If at first you succeed, try it again. 

Well, that may not be how the saying goes, but the first back-and-forth post between me and Nina Pirrotti, an employee-side attorney, was so well received that we’re back for another conversation. 

Today’s topic: What legislation are we both keeping our eyes out for at the Connecticut General Assembly?  

The Dialogue Begins

Dan Schwartz: So Nina, our first post was such a hit that I think we’re due for an encore.  Thanks for being up for this.

It has only bewn a few weeks, but it feels like we’re moving at warp speed on developments.  We could spend another post just on The Donald, sorry, Mr. President. Somehow I think we’re likely to talk about that again soon.

But let’s focus today on some of the legislative items we’re keeping an eye on, particularly in Connecticut. Each year, it seems like our General Assembly likes to roll out fresh employment law ideas.

Is there a particular bill that you’re keeping your eye on now from an employee-side perspective?

nina_t_pirrotti1-150x150Nina Pirrotti: I’m so glad you asked!   Yes, let me tell you about one bill that has been on my mind on the federal level (I am speaking about it at an ABA conference in sunny Puerto Vallarta really soon) and then I will give you a couple of highlights from our backyard.  

The federal bill that looms large for me right now (although concededly perhaps not as large as the prospect of sitting on the beach, tequila based beverage in hand) is the misleadingly named  Lawsuit Abuse Reduction Act (“LARA”) which would force judges to respond to Rule 11 motions in a particular manner. 

Rule 11 allows for the possibility of sanctions to be imposed on attorneys or parties who submit (or later advocate for) pleadings which have been filed for an improper purpose or which contain frivolous arguments or claims. 

While Rule 11 motions rear their ugly heads relatively rarely in litigation, a newly invigorated Republican majority in Congress has proposed LARA which would amend the sanctions provisions in Rule 11 to remove all judicial discretion – – regardless of the circumstances of the individual case- – in two critical respects. 

First it would require the court to sanction any attorney, law firm, or party who violates the rule.  Second it forces judges who find the rule has been violated to order the offending party to pay  the other party’s attorneys’ fees and costs.  Those in my world who oppose LARA say that there is no proof Rule 11 is not working in its current form, that the changes would burden the courts and that  its “once size fits all” mandatory sanctions would unfairly penalize employees in civil lawsuits.

Closer to home, two bills come to mind.  The first is a proposed modification of C.G.S.A. 31-51m, a statute which bars employers from retaliating against employees who report  employers’ unethical or legal wrongdoings to public bodies. 

The modification seeks to  protect employees who complain about such conduct internally or who refuse to participate in an activity they believe to be in violation of the law.   It also seeks to extend the timeline to bring an action under the law (employees now have only 90 days to file) and to provide for a greater array of damages if the employer violates the statute.

The second is a proposal to provide eligible employees with paid Family and Medical Leave Act leave.  The proposed legislation would require employees to contribute 1/2 of 1% of their wages to it (there would be no employer contribution) and employees cannot opt out it.   

We plaintiff employment lawyers would welcome both pieces of legislation as long overdue and reasonably tailored to protect Connecticut’s workforce.

What are your thoughts from the other side of the aisle, Dan?    Or is there other proposed legislation that has captured your attention?

Continue Reading

Breaking: Conn. Supreme Court Clarifies ABC Test for Independent Contractors

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

justiceI’m back with news of a relatively big decision today from the Connecticut Supreme Court.

In the decision, the Court clarified an important question that the Connecticut Department of Labor had been pushing hard.  It will be welcome news for businesses in the state.

The issue was this: If an independent contractor (and his or her business) works ONLY with one company, can that person still be an independent contractor?

The Court said yes, that person CAN be. But it is important to note that it does that mean that the person will ALWAYS be an independent contractor. Instead, the court will continue to apply the ABC test — balancing several factors. (I’ve discussed the test in a prior post here.)

The case, Southwest Appraisal Group v. Administrator, Unemployment Compensation Act can be downloaded here.  Note that it will not be “officially released” until March 21, 2017.

The only issue in the case was whether the putative employee was “customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”

How to make that determination? By looking at the “totality of the circumstances” which also include another series of tests.

Here, the court at least is helpful in setting up what those factors are.   According to the Court, “factors to consider in evaluating the totality of the circumstances under part
C include:

  1. the existence of state licensure or specialized skills;
  2. whether the putative employee holds himself or herself out as an independent business through the existence of business cards, printed invoices, or advertising;
  3. the existence of a place of business separate from that of the putative employer;
  4. the putative employee’s capital investment in the independent business, such as vehicles and equipment;
  5. whether the putative employee manages risk byandling his or her own liability insurance;
  6. whether services are performed under the individual’s own name as opposed to the putative employer;
  7. whether the putative employee employs or subcontracts others;
  8. whether the putative employee has a saleable business or going concern with the existence of an established clientele;
  9. whether the individual performs services for more than one entity;
  10. and whether the performance of services affects the goodwill of the putative employee rather than the employer.

The court does add some additional guidance here noting that, “We emphasize that particular caution is necessary in considering the relative size or success of the putative employee’s otherwise independent business in connection with the totality of the circumstances analysis under part C.”

This is a big decision for employers who also use independent contractors.  Businesses should again review their relationships with these independent contractors to try to satisfy as many of the factors outlined above.

No Love for Guns in Workplace Is Protected, Court Finds

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

loveWhile the calendar may read Valentine’s Day, I’ve tackled more than my fair share of love-themed posts in the past filled with roses and chocolates.

So instead, I’m going to go in a different direction entirely: Guns. (Though query whether the music group Guns ‘n’ Roses would care to disagree with me.)

See, there was this employee who worked at a car dealership wasn’t in love with guns.  But he believed his supervisor was.  So much so that, according to a complaint filed in state court, the supervisor would sit in “his office looking at and ordering guns.”  The employee then observed that packages containing “guns, including AR-15s, clips, handguns, suppressors and [rifles]” were being delivered to work.

The employee raised the concern to the dealership’s owner. Later that date, the supervisor said allegedly told the employee to “stay the [expletive] out” of the supervisor’s business.  Two days later, the employee was fired.

The employee brought suit claiming that he was wrongfully discharged in violation of a public policy in consideration of Conn. Gen. Stat. 31-49 — which requires employers to exercise reasonable care to provide employees with a reasonably safe place to work.

The Superior Court found that such a claim could survive a motion to strike.   In doing so, it court concludes that there is an important public policy of having an employee “raising his concern over firearms in the employer’s workplace”.

The case, Schulz v. Auto World, is an important reminder that not all causes of actions are clearly spelled out in the law. Sometimes courts look to general principles to take the law in different directions.

In this instance, employers should take notice of the public policy articulated by the court that guns in the workplace in Connecticut are still to be considered unusual.

The Dialogue: Hiring Employees the Right Way (From Different Sides)

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

I’ll confess. I’m excited about today’s post.  It’s hard to find something new to do after nearly 10 years of blogging, but I think today’s post is pretty innovative. Unless you read The New York Times “The Conversation” which we’ve tried to copy emulate here.  Except this post (and hopefully others) will be called “The Dialogue”.  Somehow different, right? 

Today’s post tackles some of the legal issues regarding hiring but does so in a back-and-forth format between a management-side attorney (myself) and an employee-side attorney (Nina Pirrotti).  I’d insert a reference to the letters of Alexander Hamilton and Aaron Burr discussing the issues of the day, but then I remembered that ended in a duel, and it’s not exactly what I was foreseeing here.  I think Nina and I can exchange some thoughts without trying to kill one another. 

Anyways, Nina and I have tried something new below.  Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association and a frequent presenter on employment law topics.   My thanks to her for being brave enough to try this with me.  Let me know what you think. 

The Dialogue Begins

Dan Schwartz: Welcome to the blog and thanks for engaging in this discussion on employment law. I promise that we here at the blog don’t bite and we pay all of our workers (me) minimum wage. (Ok, that’s a lie. I get nothing for writing the blog, but moving on….)

I know we were planning on talking about some developments in the world of hiring and employment law, but I can’t pass up the opportunity to ask you something about the new Trump Administration.  From the perspective of an attorney who typically represents employees, what are one or two things you’re keeping an eye out for?

nina_t_pirrotti1-150x150Nina Pirrotti: Thank you, Dan, for your warm welcome.  We plaintiffs’ employment lawyers have been feeling mighty chilly since November 8th and have been bracing ourselves ever since for even more frigid temps ahead.  Ironically, I felt the impact of Trump’s election virtually immediately.  On November 9th, I flew to Chicago and spoke at the ABA’s annual Labor & Employment conference.   

The topic of the panel on which I spoke revolved around laws which prohibit employer retaliation against employees for discussing their wages.  The laws are designed to protect female employees who are trying to figure out whether they are being paid less than their male counterparts.  

I was all set to talk about the Paycheck Fairness Act which would have expanded the protection provided by those laws and was expected to be one of the first pieces of legislation signed by Hillary Clinton.  As you can imagine, my plane ride there was consumed with a furious re-write of my outline! The next day I flew to Dallas to participate in the semi-annual Executive Board meeting for the National Employment Lawyers’ Association where we also had to nimbly adjust our focus to reflect the new (surreal) reality.  

I did not thaw out after learning that Trump nominated Andy Puzder, CEO of chain restaurants, including Hardees (which, sadly, is the maker of my all -time favorite breakfast biscuit) to head the Department of Labor.  Puzder’s employee track record, which includes opposing overtime and minimum wage laws and underpaying his own workers is abysmal.   

I can only hope that the rumors that he might back out of consideration prove to be true.  I did feel  a glimmer of hope after I learned this week that Trump has tapped EEOC Commissioner Victoria A. Lipnic as Acting Chair of EEOC.  Lipnic, who was nominated by President Obama, has served as EEOC Commissioner since 2010.

I was also mildly heartened by Trump’s expression of (granted, lukewarm) support in his campaign for pay equity laws and paid FMLA leave, both championed by Hillary Clinton and I can only hope that the person who might most positively influence him in that regard (Ivanka) is able to carry the day.

Unfortunately, the Trump administration does seem poised to reverse or suspend the changes to Fair Labor Standards Act’s overtime rules which went into effect on December 1, 2016.  

Of course, the most important event that we plaintiffs’ employment lawyers are waiting for is the announcement of Trump’s Supreme Court nominee who would replace the very conservative Justice Antonin Scalia.  That person may likely cast the deciding vote on cases that impact the rights of workers in a myriad of ways.  Unfortunately for us, the three oldest justices – Ruth Bader Ginsburg Kennedy  and Breyer  – are liberal or moderate and Trump may have more than one bite at that proverbial apple during his (hopefully only) four-year stint. 

Since your excellent blog has national appeal and one or more of these justices might actually read it, I hereby urge all three of them to eat well, exercise moderately and avoid all high risk activities! Continue Reading

Mary Tyler Moore Taught Us One of the Best Employment Discrimination Lessons

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

MTMMary Richards’ job interview with Lou Grant is, perhaps one of the most famous job interviews ever. So says Time magazine.

Before I go on, though, there are probably more than a few of you who don’t know what I’m talking about.

But with the passing of Mary Tyler Moore earlier today here in Connecticut, I was reminded of an early exchange from her television show that was included in an employee training seminar I did for employers many years ago.  It was used as an example (with humor) of what NOT to do in a job interview as a supervisor and there were many in the audience who remembered that television show.

I haven’t been able to find the actual video online – but YouTube does have a remake of the job interview featuring cartoons.  And you can get a sense of the dialogue elsewhere.

First, you have the supervisor (Lou) asking Mary what her age was. (Sigh.) To compound matters, he then asks what her religion is. (Double sigh.)

But this is where the show was groundbreaking — Mary doesn’t just respond.  She’s a “modern woman” (as The New York Times called her) and tells him: “I don’t know quite how to tell you this, but you’re not allowed to ask that question when someone is applying for a job. It’s against the law.”  He pushes back — “You gonna call the cops?” To which, Mary demurs.

And the interview continues with personal questions including whether she was married (she was not).  Then Mary stands up and calls him out for asking so many questions that have nothing to do with the job.

Lou responds in a classic line: “You’ve Got Spunk.”  Of course, he then says he hates “spunk” but this was the early 1970s and she was still hired.

It was groundbreaking television.  As NPR reported from an interview Ed Asner (who played Lou), that moment was critical: “It was the most powerful moment in theater I’ve had, because she played it so beautifully,” Asner told NPR in 2001. “The audience was going ‘oh-goo-goo’ at that moment.”

A few years ago, Time Magazine — in calling this show’s pilot one of the 10 best of all time — noted that it really formed the foundation of the workplace-as-family sitcom that so many other shows tried to copy.

As a child of the 70s and 80s, Mary Tyler Moore stood out to me because, well, she kinda seemed like my mom who was already in the workplace. Growing up, I didn’t see it as that unusual.

But now with the hindsight of history, all employment lawyers can point to Mary Tyler Moore as giving workplace issues their rightful place. And for a generation of women, Mary Tyler Moore represented more than just a television show.  She represented them.

Proper hiring procedures are still a topic we’re talking about today and I’ll be presenting on the topic next month.  Maybe it’s time I bring back the Mary Tyler Moore reference.  Watch for details soon.

Rest in Peace, Mary Tyler Moore.

(Due to an editing error (and spell check) an early version of this post referred to her character as Mary Roberts; it is obviously Mary Richards.) 

Could “The Last Jedi” Actually Be Practicing Religion in Your Workplace?

Posted in Discrimination & Harassment, Highlight

last jediYesterday, news came out that Episode 8 (I mean, VIII) of the Star Wars series would be named “The Last Jedi”.

Which reminded me about an article in The New York Times I saw a few weeks ago that I had been meaning to write about.

Turns out there are, according a BBC report cited in the Times (I swear I did not make this number up on my own), 177,000 practitioners of Jediism in Britain.

Wait, I hear you saying. Jediism? What is that? Like a religion? For real?

Well, according an application submitted to the Charity Commission for England and Wales:

Jediism draws on “the mythology of Star Wars,” and centers on a belief in the power of the Force,” according to a Temple document used by the Charity Commission to evaluate the application. It also draws on major world religions like Hinduism and Christianity, and on “the existential phenomenology of Heidegger, Kierkegaard and Buber.”

The application as it turns out, was from a group known as the Temple of the Jedi Order that sought nonprofit or charity status because, it claimed, Jediism was a religion.

The Charity Commission, however, disagreed saying it does not “promote moral or ethical improvement” and thus is not a religion.

That is not the end, however, of the Temple — as noted by a new The New York Times article yesterday as well.  Others, including, those in the United States, are still persisting.

Which led me to thinking — what would happen if an employee here in Connecticut asked for a religious accommodation on the basis of “Jediism”?

Lest you think I’m really stretching, no less than the President of the United States (Obama, that is) made remarks about this phenomenon when commending George Lucas on his Kennedy Center honors.  In that December 6, 2015 speech, he stated:  “He created a mythology so compelling that in a 2001 census, the fourth-largest religion in the United Kingdom was ‘Jedi.'”  

So, it’s out there.  But not in the courts yet. A quick search of court decisions has yet to find a case where Jediism is listed.  So, back to the question: what would the courts do if confronted about it?

Probably laugh.  After all, pledging allegiance to the Flying Spaghetti Monster (FSM) was not enough to survive a motion to dismiss a religious discrimination claim.  The federal court that was confronted with the issue took swift note about the origins of the religion and ruled that it wasn’t enough to satisfy the legal requirements:

This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a “religious exercise” on any other work of fiction. A prisoner could just as easily read the works of Vonnegut or Heinlein and claim it as his holy book, and demand accommodation of Bokononism or the Church of All Worlds. 6 See, Kurt Vonnegut, Cat’s Cradle (Dell Publishing 1988) (1963); Robert A. Heinlein, Stranger in a Strange Land (Putnam Publ’g Grp. 1961). Of course, there are those who contend—and Cavanaugh is probably among them—that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not “religious” simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.

Case closed, right? Well, perhaps, but even the EEOC has recognized that legal protections aren’t just for well established religions like Christianity.  In one Q and A, it notes the broad language of Title VII:

For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

So perhaps someday we’ll see this tried in courts. But for now, please don’t tell my kids its not real.  And someone save seats for me at The Last Jedi when it opens.

New York (State and City) Imposes New Rules for Freelancers, State Contracts

Posted in Highlight, Laws and Regulations, Legislative Developments, Wage & Hour

IMG_7083My colleagues, Clarisse Thomas, Keegan Drenosky and I have been busy keeping track of the developments in New York which may impact Connecticut employers with cross-border business.  Here are two of the most recent developments.

Freelance Isn’t Free

The New York City Council has enacted and the Mayor has signed a new law applicable to employers who hire contractors for work in New York City.

The “Freelance Isn’t Free Act”, which goes into effect on May 15, 2017, will formalize the relationship between the freelance worker and the hiring party, and require the parties to sign a written agreement.  Freelancers are considered to be those individuals or one person corporations who offer their services to the public.

Under the new law, if the arrangement with the freelancer involves payment that is $800 or more in a 120 day period, there must be a written contract.

A sample contract is being posted on the City’s Office of Labor Standards’ website.

The contract must have 1) the name and mailing address of both parties; 2) an itemization of the services being provided; 3) the value of the services; 4) the rate and method of compensation; and 5) the date payment is to be made.  If no date of payment is specified then payment must be made no later than 30 days from the completion of the services.  After the price is agreed upon, the hiring party is prohibited from requiring as a condition of timely payment that the freelancer accept anything less than the contracted amount.  Each party must retain a copy of the contract.

The City has also established a complaint procedure to resolve disputes, while giving the freelancer the right to bring a lawsuit for damages, costs and attorneys’ fees.  There are statutory damages of $250 if the freelancer only prevails on a claim that no written contract was executed.  However, the freelancer can recover additional damages in certain circumstances equal to the value of the contract, plus the value of the services, attorneys’ fees and costs.

In addition, civil penalties of up to $25,000 can be imposed on any hiring party who is found to have engaged in a “pattern or practice” of violating the law.

Because this law applies equally to both indivual employers and companies, care must be taken by anyone hiring a freelancer to ensure that a contract is in place if the fees at issue are $800 or more.

Ensuring Pay Equity

On January 9, 2017, Gov. Cuomo signed Executive Order No. 162, which is an Order for “Ensuring Pay Equity by State Contractors.”  This is an effort to ensure that there is no pay discrimination based on gender, race and ethnicity.

The Order requires state contractors (and their subcontractors) to specifically set forth the job title and salary of all the employees who are working directly on a State contract or, if they cannot be separately identified, then all the contractor’s employees.  This information is in addition to existing equal opportunity information already required to be submitted.

All State contracts, agreements and procurements executed on or after June 1, 2017 will contain this requirement.

 

Connecticut Legislative Session Preview: Is a New State Overtime Rule In Play?

Posted in Highlight, Legislative Developments, Wage & Hour

capitoldasThe Connecticut General Assembly is back in session and with significant budget deficits looming, it’s not going to be an easy year for legislators.

From a labor and employment law session, once again it will be interesting to see what will be seriously considered.

A Bloomberg Law article late last week suggested that Democrats in several states, including Connecticut, are planning bills to try to replicate the federal overtime-pay overhaul that has been held up in federal court.   Without citing names, the article states:

Democrats in Rhode Island, Connecticut, Maryland, Wisconsin and Michigan said they plan to introduce bills modeled on Obama’s reform, which would have made millions more white-collar workers eligible for overtime.

A cursory look at the Bill Record book for the Labor & Public Employees committee fails to show such a bill yet, but it’s still early. At this point in the legislative cycle, only early “proposed” bills are officially on record. That, of course, doesn’t mean that other draft bills aren’t being floated out there.

So among the proposed bills, what else is out there being considered for 2017?

  • As expected, a paid family & medical leave bill is definitely on the table now, after being looked at for the last 18 months or so.  Indeed, it is titled “Proposed Senate Bill No. 1″ and is co-sponsored by several senators.  Having a bill marked as “One” indicates that this will be a priority in the current session.  The details, however, are still being worked on.
  • Another bill that already has garnered widespread support including from the House leadership is Proposed House Bill 5591.   While again, the details are still forthcoming, the bill would “require employers, including the state and political subdivisions, to provide equal pay to employees in the same workplace who perform comparable duties.”  What’s still unknown is why this is being sought, just 2 years after another pay equity bill titled “An Act on Pay Equity and Fairness” was passed. Time will tell, but expect to see more on this bill soon.
  • Another bill concerning “Various Pay Equity and Fairness Matters” (not to be confused with prior bills) has also been proposed by new Representative Derek Slap from West Hartford.  That bill would mirror some other states that have recently passed bills further limiting what prospective employers can ask applicants. Specifically, this Proposed House Bill 5210 would:

(1) Prohibit employers from asking a prospective employee’s wage and salary history before an employment offer with compensation has been negotiated, provided prospective employees may volunteer information on their wage and salary history,

(2) Prohibit employers from using an employee’s previous wage or salary history as a defense in an equal pay lawsuit,

(3) Permit an employer to have an affirmative defense in an equal pay lawsuit if it can demonstrate that, within three years prior to commencement of the lawsuit, the employer completed a good faith self-evaluation of its pay practices and can demonstrate that reasonable progress has been made towards eliminating gender-based wage differentials, and

(4) Protect seniority pay differentials from adverse adjustments for time spent on leave due to pregnancy-related conditions or protected parental, family and medical leave.

Other proposed bills can be found here including an increase in the minimum wage to $15 per hour.

One important note: The state Senate has now split 18-18 among Democrats and Republicans.  Thus, I think it’s fair to expect that there will be less laws that impact employers than in year’s past.  The CBIA has an update from a business perspective here.

Phishing Scam Targets HR Professionals By Seeking W-2s

Posted in Data Privacy, Human Resources (HR) Compliance

robertsWith the new year upon us, cyberthieves are once again attempting to prey on unwitting HR professionals, as my colleague William Roberts explained in an article last week for SHRM on phishing.

The scam goes like this. As an HR professional, you get an e-mail from your boss (or your boss’s boss) that seems legitimate…and urgent. Something like this:

I’m in the middle of a negotiation so won’t be available by cell or e-mail but I need you to send W-2s for the management team to our new accountants. You can e-mail them to [____________]. Needs to be done today. Sorry for the rush on this and please take this as an exception to normal protocol. Thanks. – Alan

It’s happened before.  Indeed, as Bill explained in the article:

“Alan was the chief financial officer,” said William J. Roberts, a Hartford, Conn.-based data privacy attorney with the law firm Shipman & Goodwin LLP. But in this case, it wasn’t Alan who was sending the e-mail. Despite the company’s policy prohibiting employees from sending sensitive documents through e-mail, a newly hired junior HR professional fell for the phishing scam and sent the W-2s to the cyberthief’s e-mail address.

That’s more than just an “Oops” moment.

Although the IRS is taking steps to help reduce this, the best defense is for HR professionals to be aware of this scam.  I previously discussed this back in March 2016 with a quick post but it’s worth looking at some of the tips presented in the SHRM article including:

  • Train employees on cybersecurity awareness. Many companies do not.
  • Use common sense and avoid making electronic requests for sensitive data. It’s not just an e-mail threat; phishing by text is also on the rise….
  • If you receive an e-mail from upper management, verify the request….