Air Force Memorial in Arlington, VA
Air Force Memorial in Arlington, VA

UPDATED

Continuing to recap various employment law bills out of the Connecticut General Assembly, the legislature passed a measure Wednesday night that brings Connecticut’s FMLA law more in line with the federal counterpart.

The federal FMLA was amended back in 2008 (prior post on the subject here) to provide coverage for any “qualifying exigency” arising out of the fact that the spouse, son or daughter, or parent of the employee is on active duty or has been notified of an impending call to order in the armed forces.  Regulations were put in place as well.

The new Connecticut rule — which will go into effect immediately upon the Governor’s signature — covers that same type of qualifying exigency. Indeed, it defines such an exigency by reference to the U.S. Department of Labor’s regulations on that very subject.

What this means is that employees in Connecticut will now have 16 weeks over a 24 month period for such a leave.  You can review Senate Bill 262 here.

The new rule, however, is not a mirror image of the federal counterpart but brings its nearly up to date with it. And as readers will recall, there is a 26 week period for caregiver leave also in place in Connecticut as a result of P.A. 09-70 back in 2009.

Ultimately, employers in Connecticut will have to update their FMLA policies and procedures to account for this leave, if you haven’t been allowing military leaves under CTFMLA.

And while it’s obviously important to support the military and those that serve — the confusing and overlapping laws on the subject don’t make it easy for employers who want to do right by their employees.

USDOL Headquarters in DC
USDOL Headquarters in DC

Over the years in the employment law “blawgosphere” (isn’t there a better term by now?), I’ve had the pleasure of meeting with and conferring with several other attorneys who blog. One of those is Jeff Nowak, whose FMLA Insights blog has become a go-to place on all things FMLA.

So, it was no surprise yesterday that Jeff was one of the first to talk about a new FMLA notice that will be issued by the U.S. Department of Labor that can be used interchangeably with the existing notice. He also added this scoop:

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice. She confirmed that employers would be allowed to post either the current poster or the new version. In other words, employers will not be required to change the current poster. For those that want to use the new poster, I will post a link as soon as DOL releases it.

Jeff also linked to a new employer’s guide to the FMLA, a companion of sorts to a 2012 release by the DOL for employees.   This 71-page guide will be a good starting point for employers on the basics of the law but it leaves more complex issues about the law unanswered.  For more on it, see Jeff’s post and a followup post by Jon Hyman, of the Ohio Employer’s Law Blog this morning as well.

Connecticut employers though should exercise extreme caution about using this guide as a bible.  As most employers in Connecticut are aware, there are significant differences between Connecticut’s FMLA law and the federal counterpart.  And because employers with 75 or more employees in Connecticut are covered by both, there is a significant risk that employers using only the federal FMLA guide will get the law wrong.

Connecticut has historically posted a comparison of the two laws that is helpful, again as a starting point.  But that comparison is now 17 years old and doesn’t address many of the current issues or things such as a military exigency leave that have occurred through changes to the FMLA law over the years.

So what’s an employer in Connecticut to do? Ignore it? Read it?

Probably a little of both.

There are certainly items helpful in both guides but, in my view, they aren’t a substitute for talking with counsel about more complicated issues such as intermittent leave and FMLA’s interaction with the ADA and Connecticut’s Paid Sick Leave law.

If nothing else, be aware that when FMLA leaves do occur, there may be more to the solution than what is posted in the USDOL’s employer guide.

 

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.

Yesterday, the U.S. Supreme Court struck down a key provision of the Defense of Marriage Act.  The SCOTUSBlog has done an admirable job with the recaps and if you want more information about that decision, you should really go there first.

Mother Nature broke out the rainbows last night.

But the immediate impact of the decision is that it changes all the 1000+ places in federal law where “marriage” or “spouse” was used.  In other words, if a state recognizes a same-sex couple as married (like Connecticut), then federal law must do the same.

Employers in Connecticut have already had to address same-sex marriages several years ago when they became legal in the state.  Thus, for employers, items like health benefits or Connecticut FMLA leave have already changed. Yesterday’s ruling won’t change that.

The problem for employers, is how to address these items on a nationwide basis and how to address the federal changes that will now occur.  The ruling provides some clarity but not all answers are clear cut yesterday.

For employers in Connecticut and elsewhere where same-sex marriages are approved, you can probably expect several impacts.

For example, you should anticipate that employees who are legally married to same-sex partners will want to update their W-4 forms to change their tax filing status to “married”.  You should not stop them.

But the tax consequences are a little messier in states that don’t recognize same-sex marriages.

As highlighted in a Workplace Resource Center post: If an employee’s same-sex partner is considered a “spouse” under state law, the partner’s benefits are not to be considered part of the employee’s gross income and the IRS will not tax that partner’s health benefits. Consequently, the employee’s net income will decrease, resulting in a decrease in the amount of payroll taxes the employer and employee will be required to pay.

The federal FMLA is also anticipated to undergo some pretty big changes in states that approve same-sex marriages. Already in 2010, the FMLA regulations suggested that married same-sex couples could take time off to care for a newborn child; now FMLA policies will have to be tweaked to make it plain that employees can take time off to care for a same-sex spouse where it is legal.

But as Jeff Nowak noted on the FMLA Insights blog this morning, all is not clear in states that don’t permit same sex marriages. In other words, the extent of the changes to the FMLA is still being determined.  But at least in Connecticut, federal FMLA would now seem to apply to same-sex spouses.

Employers should also anticipate significant changes to the way health benefits should be covered as well as retirement benefits.   Moreover, if a same-sex married couple gets a divorce, there may be ERISA implications (such as a Qualified Domestic Relations Order – QDRO) that need to be addressed.

Employers will also have to deal with another strange result of the court’s decision: Employees may be deemed “married” in one state, and ostensibly, “not married” if they get transferred to another state.  What then?  That question remains open but is one in a series of open questions that courts will continue to struggle with over the next several years.

Over the upcoming weeks, we will no doubt be exploring all the ways that employers may be impacted.  So stay updated on these developments and correct any existing policies or practices to reflect this new reality.

George Clooney famously made business travel look (somewhat) cool in the movie, Up in the Air.

Clooney’s character was single (really, would you expect otherwise?) and business travel was a bit glamorous (though a bit tedious as well).

Perhaps not surprisingly, absent from the movie was a discussion of whether business travel could be the subject of a federal lawsuit.

What Would Clooney Think?

A federal court case on Friday, however, had to tackle the issue in Burgos v. City of New Britain (download here).  In Burgos, a police sergeant was ordered to attend training in Alabama.  The sergeant indicated that he had concerns about child care and having to travel out of state for training.

(He was also asked to sign liability releases which he also claimed were discrminatory — but the court easily dismissed those claims).

Nevertheless, the sergeant went and the day after arriving, he informed his employer that he had a family medical emergency (no word on what that emergency was).

Arrangements were made to fly him back to New Britain later that day. He was paid 5 hours of overtime for the 24 hour period he spent in Alabama.

The sergeant filed a federal lawsuit though still.  Among the claims: He alleged (under Section 1983) that because the Supreme Court had recognized a right of association to engage in an intimate relationship with others, he had a claim that the mandatory business travel violated his rights.

The District Court disagreed. It noted that while there is some right recognized by the Supreme Court it wasn’t clear whether this right to familial association existed under the First Amendment or the Fourteenth Amendment.  But regardless of which test might apply or the parameters of the right itself, the sergeant’s rights weren’t violated here.

The Court said that the sergeant failed to show that his family relationship ended because of the travel (or was impacted in any significant way, for that matter).  The court also said that he failed to show that there was an undue intrusion into his marriage simple because he was forced to arrange for child care for a period of up to a week because of his wife’s work schedule.

The court added:

Imposing on an employee a requirement that forces the employee to make arrangements for child care for a period of one week or less to accommodate his spouse’s work schedule does not constitute an undue intrusion into the employee’s familial relationship.

The takeaway from this case? The issue of whether business travel violates the federal rights of a public employee is probably not “Up in the Air” anymore.

Yesterday, I had the opportunity to speak to the Fairfield County Bar Association on the burgeoning field of Family Responsibilities Discrimination (FRD, for short).  It is also known at times as Caregiver Discrimination. 

In essence, it is a cross-disciplinary practice that looks as various statutes like Title VII, the Pregnancy Discrimination Act, FMLA, ADA and applies those laws in the context of various workplace situations.

Groups like, A Better Balance, have websites devoted to this (and spoke at the meeting yesterday). 

Lest you think that this is just made up out of whole cloth, the EEOC released guidance in 2007 on this very topic.  Specifically, the EEOC has released:

Connecticut has long had various laws that expand the protections traditionally held under federal law.  But Connecticut also has a little-known provision that actual speaks directly to family responsibilities. 

Specifically, Conn. Gen. Stat. 46a-60(a)(9) states that it is discrimination for an employer to "request or require information" relating to the individual’s child-bearing age or plans, pregnancy, function of the individual’s reproductive system, use of birth control methods, or the individual’s familial responsibilities", unless there a limited exception applies (such as exposure to toxic substances). 

The statute doesn’t seem to go as far as prohibiting employment decisions based on familial responsibilities, but employers should be cautious in their approach to this sensitive issue. As the EEOC has pointed out in its guidance, making decisions based on sex-based stereotypes may be gender discrimination.

For employers, FRD represents a still-developing field that warrants close attention over the next years. 

Each year, the Connecticut General Assembly passes a number of laws. Rather than have them enacted immediately upon the governor’s signature, many of the bills become effective on October 1st of that respective year.

I followed several workplace bills earlier this year but most never made it very far. One bill did and it gives new workplace protections to family violence victims.  I previously did a full recap here, but here are the highlights:

  • The new law prohibits an employer from terminating, penalizing, threatening, or otherwise coercing an employee with respect to his or her employment because the employee (1) is a family violence victim or (2) attends or participates in a civil court proceeding related to a case in which he or she is a family violence victim. The bill doubles, from 90 to 180 days, the time an employee has to bring a civil action against an employer who takes any of these actions.
  • The new law requires employers to allow family violence victims to take paid or unpaid leave (including compensatory time, vacation time, personal days, or other time off) during any calendar year in which the leave is reasonably necessary for a variety of listed reasons. Employers may limit unpaid leave taken under the bill’s provisions to 12 days per calendar year but note that it has no effect on any other leave provided under state or federal law.  

    Employer can ask for notices and a written statement certifying the leave and ask that the leave be scheduled ahead of time as well.  But if the employer receives such notices, it must keep written statements confidential.  

By now, Connecticut employers should have reviewed their existing policies and procedures to understand the impact of this new law. Moreover, employers may want to consider amending their leave policies to cover this new type of leave.

Of course, it remains to be seen whether employees will avail themselves of this leave or whether this law will have only very limited impacts on employers.  But regardless, employers should be aware of this new leave should any requests by employees be made.