There are many confusing aspects of employment law — not the least of which is that certain laws only apply to employers of a certain size.

For example, the federal age discrimination law, ADEA, only applies to a business if it has 20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last).

Now in some instances, that might not matter in Connecticut because Connecticut’s general anti-discrimination laws generally (with exception) apply to employers of three or more employees.

Why does this matter? Because there are some aspects of this federal law (and others) that don’t apply to small employers.

One prime example of this is the requirement that employers comply with the Older Worker Benefit Protection Act, which is part of ADEA.  This law requires separation agreements to have certain conditions, including 21 days for the employee to consider the release.  But employers who are under 20 employees are not covered by ADEA and thus don’t need to follow this particular legal requirement (even if it may still be a good idea).

Another area that this comes up is in FMLA coverage.  Most people are aware that FMLA only applies to employers who have 50 or more employees.

But there is a secondary requirement that is often overlooked — that the employee asking for such leave be located in an office that itself has 50 or more employees within a 75 mile radius.

By way of example: Suppose an employer has 1000 employees, but only 25 located in Connecticut and there are no offices within 75 miles.  An employee has a serious health condition; is the employee eligible for FMLA leave?

The answer is no.  At least 50 employees must work for the employer within a 75 mile radius.

Practical Law had a good summary of this:  

Employers should analyze whether the employee meets the 50 employee and 75 miles requirement when the employee gives notice that leave is needed. An employee who is deemed eligible for FMLA leave continues to be eligible for the next 12 months even if the number of employees drops below 50. To determine whether an employee is eligible, the distance is based on:the employee’s physical work site using surface miles over public streets, roads, highways and waterways by the shortest route; or if an employee has no fixed work site, the employee’s work site is his home base, the site to which he reports or the site from which his work is assigned.

Now, nothing prevents an employer from giving all of its employees FMLA-leave, but they’re not required to.

Thus, employers who are in various locations should be sure to look at all the employer-size rules to figure how where they are covered and how. Because size really does matter.

senate2003While I normally make my year-end reflections at, well, year end, I can’t help but take this moment to see the big picture: We’re hearing an awful lot about restrictive covenants.

These covenants — often in the shape of non-compete clauses or non-solicitation (of employees or customers) clauses — have become popular because companies are looking to protect their financial interests.

Connecticut — despite its reputation for being anti-business — still has relatively strong protections for employers who want to use these clauses for their employee.

But these clauses are coming under attack more and more as their use becomes more widespread.

Jay Wolman, on The Legal Satyricon, noted that non-disparagement clauses in separation agreements may be one area where courts are reluctant to enforce. As a result, employers may want to use severability clauses to have the agreements upheld even if one provision is overbroad:

These clauses are very common, but likely are not long for this world.  In the interim, employer counsel may want to rethink the standard severability clause.  Although employers are certainly keen on obtaining as much a release as possible, it may be time to reconsider whether the agreement should survive if the former employee can simply ignore these clauses.

The ABA Journal of Labor & Employment Law also recently published an article on “Developing Trends in Non-Compete Agreements and Other Restrictive Covenants.” As the authors note, courts still tend to enforce the covenant “if it protects a legitimate business interest, the employee received consideration for the covenant, it is narrowly tailored, and the time and territorial limitations are no greater than necessary to protect the employer’s business interests.”

Despite this, the authors are quick to highlight the fact that each state interprets such things differently.

The New York Times even last year noted the trend of employers using these clauses more.  And not in a good way.

With this publicity in mind, Connecticut is again taking the lead — at least from a federal perspective.

Slate reported last week that Senator Chris Murphy introduced legislation that would ban non-compete agreements altogether for workers who make less than $15 per hour.

It would also require companies to let potential hires know ahead of time that they will be required to sign a non-compete agreement.

The bill, called the Mobility and Opportunity for Vulnerable Employees Act (MOVE) is also co-sponsored by Connecticut’s other senator, Richard Blumenthal.

At a press conference, Senator Murphy said that the bill was necessary in a free labor market.  “If workers can’t go to a competitor for a promised higher wage, then the market fluidity — the labor fluidity that creates upward pressure on wages — disappears,” Murphy said. “If workers are locked into jobs because of non-compete clauses, then there is no reason for companies to raise their wages.”

Without bi-partisan support, the odds of this bill passing are somewhere between never and no.  But don’t be surprised if we see this pop up again at a state level in the next legislative session.

The Connecticut Supreme Court this week issued its decision in Velez v. Commissioner of Labor. The decision, which has been long-awaited, holds that the Connecticut Family and Medical Leave Act applies only to employers that have 75 or more Connecticut employees.

In practical terms, this means that large employers with small Connecticut locations will not have to comply with CTFMLA.

I’ll have more on this decision early next week.

For a few years now, I’ve been describing how social media policies are moving into the mainstream. 

No longer can employers simply cover their eyes and ears to what is going on with Facebook and Twitter.

Example No. 592: West Hartford, Connecticut is considering a policy that would place certain restrictions on what school employees say, according to a report in today’s Hartford Courant.

While the exact language of the policy is being re-worded, presumably to satisfy First Amendment concerns, the overall concern being addresses is whether the social media usage is having a detrimental effect in the school:

[B]oard Vice Chairman Terry Schmitt, a member of the committee that proposed the policy, said Tuesday that even if the language is tweaked to satisfy district lawyers, the focus would be the same. Whether it’s an unhinged manifesto or a scandalous, public Facebook photo, the question for employees is: "Does it have a negative, or compromising, impact on your ability to teach in the classroom?"

If a middle or high school teacher is shown in a "wildly inebriated state," and students see it, that answer might be yes, Schmitt said.

And what should such a policy say? Well, there are hundreds of examples now available to view on the internet.  I like the list compiled by Doug Cornelius over at Compliance Building. 

But the challenge for the school district remains the one identified: How do you balance the need for a school district (or any public employer) to maintain decorum and minimize the impact to the town or school, with the First Amendment right to free speech? That is a balancing act that I suspect we’ll continue to hear more about.