capitoldasIt’s a challenge for employers to keep up with changes to employment laws. What’s the current status? What do I need to change?

So, here are four quick things you can look at right now to ensure that you are up to compliance in Connecticut.

  1. Connecticut increased the minimum wage effective January 1, 2017.  It’s now up to $10.10 per hour. Are all your employees now at that minimum wage?
  2. Connecticut’s new Fair Change Employment Law went into effect January 1, 2017.  That means that most employers are not allowed to ask about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application unless the employer is required to do so by state or federal law, or a bond is required for the position for which the applicant is seeking.  When did you last update your employment application? 
  3. Last summer, Connecticut updated it’s state family & medical leave law to mirror federal FMLA law that allows an employee to take a leave for a “qualifying exigency”.  Recall too that Connecticut allows employees to take leave in order to serve as an organ or bone marrow donor. When did you last update your FMLA policy?
  4. Effective October 1, 2016, employers may now offer the use of payroll cards to deliver wages so long as the employee “voluntary and express authorizes” the payment of wages by that method and the employer provides a “clear and conspicuous notice” to employees about the use of it.  Have you updated your notices and have your received authorizations from your employees on the use of payroll cards?

 

monkeyIn yesterday’s post, I talked about some of the reasons why an employee’s lawsuit against his or her employer was destined for failure.

But employers, I’m afraid you’re not off the hook that easily. This post is for any employer that just got sued or threatened with suit.

Maybe that lawsuit isn’t so frivolous after all.

Wait a second! You said yesterday that ‘Odds are, you probably weren’t discriminated against’!”  

Ah, but isn’t that rub? Odds. Statistics.  Yes, some (many?) lawsuits brought by employees are losing propositions. But some are not.

Here are some things I tell clients or prospective clients when I see a lawsuit filed or threatened as to why they should take the lawsuit seriously.

1. That frivolous lawsuit is still going to cost you thousands (if not tens of thousands) to defend.  But I thought you said this post was about non-frivolous lawsuits?  True. But for my first point, that’s beside the point entirely.  Whether a lawsuit is frivolous or not, the system of justice through our courts and administrative agencies moves slowly and with some cautiousness.  Even the frivolous ones need to be defended.  Court filings need to be, well, filed.  And court conferences need to be attended.  So your first point always is to recognize that all employment law cases have a cost associated with them.

And as such, all cases have what we call a “nuisance” value as well.  That is — you are going to spend X amount of dollars defending the lawsuit.  It may be cheaper to just pay a certain amount to avoid the cost of defense.  Now, there are business reasons why you won’t want to do so in all or even many cases, but the employer who fails to recognize the nuisance value of the case is destined to be disappointed in the long run.

It’s a bit of hyperbole to say that any person can sue anyone at any time for any reason. But not that much.  Lawsuits are a part of doing business.  Frivolous or not, you will still have spend money to defend your decision. Be prepared for this eventuality when making your employment decisions and deciding whether or not to offer severance in exchange for a release.

2. “At Will” Employment Is a Misnomer.   In Connecticut, the default employment relationship between an employer and employee is “at-will”.  As many offer letters suggest, that means either the employer or employee can terminate the employment relationship at any time for any reason or no reason at all.  And so, I sometimes hear employers exclaiming “Connecticut is at-will! We should be able to just fire them for any reason!  How can they still sue?

Continue Reading Maybe That Lawsuit Brought By Your Employee Isn’t So Frivolous

As I keep trying new things for the blog, today I introduce an “explainer” video.  You’ve seen them before; it’s a short movie explaining a subject.

Today’s topic is one I’ve touched on from time to time — separation agreements that comply with the Older Workers Benefit Protection Act.

Let me know what you think of videos like this.

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.

gymLate last week, the EEOC released the proposed rules on wellness programs for employers.  These long-awaited proposed rules will likely be adopted in full by this summer, after the public has 60 days to submit comments.

I talked about this in a post last fall and even in a post back in 2011.  But now, we finally have something more to go on.

It’s still early to give a full recap of the rules, particularly because they might change.  Various blogs have been summarizing some of the key points thus far.

HRMorning.com lists eight such points. It’s top two?

  1. The proposed rule clarifies that the ADA allows employers to offer incentives up to 30% of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes.
  2. The rule also allows employers to impose penalties on employees who do not participate or achieve certain health outcomes. The maximum allowable penalty an employer can impose on employees is 30% of the total cost of employee-only coverage.

Jon Hyman describes the proposed rules as “balanced” and advocates reviewing a helpful Q&A provided by the EEOC itself.

Several months ago, the EEOC announced its intend to issue regulations interpreting whether employer wellness plans are legal or illegal medical exams under the ADA. Thankfully, last Thursday the EEOC published its proposed regulations, and its good news for employers who use these programs to keep down the cost of their group health insurance.

Eric Meyer notes several other takeaways including that no discrimination is allowed by employers:

  1. No discrimination allowed. That means, employers may not interfere with an employee’s ADA rights, or threaten, intimidate, or coerce an employee for refusing to participate in a wellness program or for failing to achieve certain health outcomes.
  2. Volunteers only. Employers cannot require employees to participate, or discipline or deny health coverage to employees who do not participate.

A Law360 article this morning notes, however, that there are still some open questions and issues from the proposed guidance:

  • Will ‘Employee-Only Coverage’ Language Stay?
  • Will the Courts and EEOC See Eye-to-Eye On Whether Employers to Use the ADA’s “Safe Harbor” Provisions?
  • What Will Happen with Wellness Programs When Considered Under Upcoming Regulations Under GINA?

For employers, the proposed rules are not the end of the discussion on wellness programs, just another step down the road. But if your company utilizes them, this is one area worth watching for developments this year.

Real hackers are more fearsome than this one.

Okay, okay.  I realize the headline is a bit misleading.  But it isn’t every day that you hear about a data breach at Home Depot in which 56 MILLION credit cards may have been hacked. To put that into perspective, that’s 16 million MORE than the infamous Target breach!

But this is an employment law blog, not a shopping one. So, why does this matter to human resources professionals and companies? Because if hackers can access credit card information, they are going to try to hack into your work files.

It isn’t a matter of “if”. It’s a matter of when they will attempt to do so.

Don’t take my word for it. This comes from the head of the military’s cybersecurity division.  Admiral Mike Rogers has been preaching for months of the need for companies to take data privacy and cybersecurity seriously.  A recent news post reported on the importance Rogers has placed on this area for private businesses.

Corporations must successfully deal with cybersecurity threats, because such threats can have direct impacts on business and reputation, Rogers told the business audience.“You have to consider [cybersecurity threats] every bit as foundational as we do in our ability to maneuver forces as a military construct,” he said.

I have little doubt you’ll hear a lot more about this at an upcoming Data Privacy and Cybersecurity Summit that I’ve been helping to put together here at Shipman & Goodwin, in conduction with CT SHRM.

It’s scheduled to be held on October 16, 2014 from 8a to 2p at the Crowne Plaza in Cromwell, CT.

The cost is just $75, which includes continental breakfast, coffee, buffet lunch, and the materials.  Full details as well as registration can be found here.

Speakers include myself, Shipman & Goodwin attorneys Scott Cowperthwait, Cathy Intravia and William Roberts as well as industry experts from Adnet Technologies, the Connecticut Attorney General’s office, ESPN, the FBI, FINEX North America, General Electric Company, JPD Forensic Accounting, Quinnipiac University, United Therapeutics Corporation, and United Technologies Corporation (UTC).

Hope to see you there. Register soon as spots have been filling up over the last week.

While the temperature hasn’t felt like summer in Connecticut the last few days, judging by the traffic this morning, there are lots of you on vacation this week.

If you’re one of the (un)lucky ones working this week, perhaps you have a few extra minutes to tackle some projects that have been on the back burner.

In the human resources and employment law arena, here are a few easy steps you can take this week to get yourself into compliance with some easy-to-miss employment laws.

1.  Apply for a Waiver of Weekly Pay Requirement

Connecticut requires that all employees be paid on a weekly basis.  Employers can pay employees on a bi-weekly (or sometimes, semi-monthly) basis only upon receiving approval from the Connecticut Department of Labor.  How so? According to the CTDOL:

A letter or completed request form found on our website should be sent to the Director of Wage and Workplace Standards Division describing the reason for the change and desired frequency. Most employers request a biweekly payroll for hourly employees covered by overtime requirements. A 30‐day notice is required to all affected employees.

Action: Fill out that form (or write the letter) today using this link.

2. Set up Sexual Harassment Prevention Training

Connecticut requires all employers of 50 or more employees, to provide ” two hours of training and education to all new supervisory employees of employees in the State of Connecticut within six months of their assumption of a supervisory position.”

What that really means is that most employers should be running sexual harassment prevention training for supervisors twice a year.  In reality, some employers just forget or try to wait until there’s a critical mass.

Action: Contact a provider of sexual harassment prevention training.  The CBIA offers such training on a regular basis and so does my firm, Shipman & Goodwin.  I’ll be doing one on October 2, 2014. I’d love to see you there. 

3. Make Sure Your Payroll Records are Kept Onsite … Or Seek a Waiver

Another overlooked law is the one requiring that employers keep the payroll records at the place of employment. For employers with multi-state locations, this can be a challenge.  As Connecticut states:

Under section 31‐66 of the Connecticut General Statutes, the employer shall maintain for 3 years at the place of employment a record of hours worked and wages paid to each employee. The employer can submit a request through our website or by letter to the Division and permission may be granted to keep records at another location. Out of state businesses may receive permission if the records call [Editor’s Note: “Can?”] be made available within 72 hours.

Fortunately, the Connecticut Department of Labor has a waiver form that can be easily filled out online here.

Action: Check to see where your payroll records are kept. If necessary, seek a waiver from Connecticut Department of Labor.

Just because it’s the Dog Days of Summer doesn’t mean you can’t get anything done. Get to it.

Over the last few weeks, I’ve been seeing more tweets from human resources types and mainstream reporters using the phrase “wage theft”.  Two recent examples? William Tincup (who runs the popular online DriveThruHR show that I appeared on a while ago) recently tweeted:

And The New York Times labor reporter, Steven Greenhouse yesterday tweeted:

Yes, even The New York Times Editorial Board is beginning to use the term with surprising carelessness suggesting “law enforcement officials” (a term typically reserved for police officers, not Department of Labor officials) routinely use it.

It’s time for employers to beware this phrase and fight its usage because, in my view, it’s really an attempt to turn something often unintentional, into something nefarious and intentional.

Or as Mandy Patinkin’s character in The Princess Bride said: You keep using that word. I do not think it means what you think it means.

What DO I mean? Well, think of the word, “theft” and most of us think of the intentional taking of something that belongs to someone else. Like your jewelry, or your iPhone. Even your company’s trade secrets.

Continue Reading “Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means

I’ve long since preached about the need for ongoing sexual harassment prevention training.

My new firm, Shipman & Goodwin LLP has a series of trainings scheduled that should hopefully fit your schedule if you or your employees have a need for such training.

The next one is scheduled for August 27th in Hartford from 7:45-10a.  Full details are available here. 

The cost is just $50 per person and each person who attends will receive a certificate upon completion.

If you’re interested in signing up, you can register here.  And if you’re going, please don’t hesitate to introduce yourself to me personally.  Its being led by one of my capable colleagues.  See you then.

Update: On April 17, 2012, the NLRB announced an indefinite postponement of the rule. See updated post here. 

Just when you thought things were settled, a federal court in South Carolina late Friday ruled that the NLRB overstepped its authority when it set forth rules requiring employers to post notices about federal labor laws.  

Which is great if you’re in South Carolina because it provides some clarity. But it doesn’t clarify things for the rest of us because its in a different jurisdiction for now. 

I’ve previously noted that this rule has gone through so many twists and turns that employers will have to wait until the end to see what will happen.  It’s possible the NLRB will defer implementation of the rule again in light of the court’s latest ruling. 

In Connecticut, employers may want to err on the side of caution and put up the posters by April 30, 2012 in the absence of any other court rulings.

 As The Employer Handbook blog said this morning, “if you don’t give employees a reason to unionize, a 11″ x 17″ NLRB poster won’t mean squat.”

For full coverage, you can check out posts here, here, here and here.