Labor Day has come and gone. Summer is over.  Can we all stop listening to Despacito now. (Please?)

But it’s time to look at a decision that came out during the dog days of summer that might have been overlooked.  A recent federal district court case (Noffsinger v. SSN Niantic Operating Co. LLC, download here) has answered the question of whether Connecticut’s medical marijuana laws were preempted by federal law.

The decision held that Connecticut employees who have received approval from the state agency to use medical marijuana outside of work cannot be fired just because they test positive for marijuana during a drug screening.  In doing so, the court held that employees and job applicants can sue based on a termination or a rescinded job offer.

As my colleague wrote for my firm’s alert:

Unlike the laws of other states permitting residents to be prescribed medical marijuana, Connecticut’s statute expressly makes it unlawful to refuse to hire or to discharge an employee solely because of the individual’s status as a qualifying patient, or for testing positive in a drug screening as a result of using medical marijuana within the protections of the statute. However, Connecticut does not protect such individuals if they are found to be using or are under the influence of medical marijuana during working hours.

The court analyzed federal drug laws and determined that they do not address the issue of employment and do not make it unlawful to employ a medical marijuana user. As a result, even though federal law prohibits possession or use of marijuana, those restrictions do not apply to someone properly using medical marijuana under state law.

The decision follows one from Massachusetts that we previously recapped here.

In prior posts, I’ve talked about the difficulties for employers trying to navigate this still-developing area of law.  Employers should proceed carefully under such circumstances and ensure compliance with the state’s medical marijuana laws that prohibits firing employees solely because of the individual’s status as a qualifying medical marijuana patient.

If an employee is under the influence of marijuana during working hours, that may afford employers the opportunity to take decisive employment action but other circumstances may not be so clear.

Consulting with your legal counsel on this changing area of law is advisable for the foreseeable future while more court decisions define the parameters of acceptable action.

As Connecticut employers of a certain size know, Connecticut implemented Paid Sick Leave recently which affords employees up to five days off a year.   Now, federal contractors (including those in Connecticut) have another layer to deal with. As my colleague Ashley Marshall explains below, paid sick leave will now be a requirement later this year.  Thanks too to my partner Gary Starr who helped pull this together today on short notice.

marshall If we travel back in time to September 2015, President Obama signed Executive Order 13706 (EO) which established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.

Today, the Secretary of Labor has issued regulations to implement President Obama’s Executive Order that established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.  The regulation goes into effect on November 29, 2016.

Here are some of the highlights:

  1. The Final Rule covers new contracts and replacements for expiring contracts with the fdoctorederal government that result from solicitations on or after January 1, 2017.
  2. Employees will accrue 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered federal contract.
  3. Paid sick leave is capped at 56 hours (7 days) in a year.
  4. Employees may use paid sick leave for their own illnesses or other health care needs, for the care of a loved one who is ill, for preventive health care for themselves or a loved one, for purposes resulting from being the victim of domestic violence, sexual assault, or stalking, or to assist a loved one who is such a victim.
  5. The Final Rule allows for coordination with existing paid time off policies and labor agreements
  6. Employers may require that employees using paid sick leave provide certification from a health care provider of the employee’s need for leave if they use 3 or more days of leave consecutively.

A few other tidbits:

  • Whether an employee has to work a certain number of hours  for coverage depends on whether they work “on” a covered contract or “in connection” with a covered contract.
  • Employees that work “on” a covered contract are those that are performing the specific services called for by the contract. They are covered, regardless of the number of hours worked in a year and regardless of whether they are full or part time.
  • Employees that work “in connection” with a covered contract are  those that perform work activities that are necessary to the performance of the contract, but are not directly engaged in the specific services called for in the contract.  An employee who spends less than 20% of his or her hours working “in connection” with a covered contract in a particular workweek is not covered.

As with many new benefits, employees may try to take advantage of the new regulation, particularly since no medical excuse needs to be provided until the employee is out of work 3 or more days.  Employers are going to need to be vigilant against abuse.

The Final Rule will be published in the Federal Register September 30, 2016, and will go into effect exactly 60 days after its publication. More information can be found on the U.S. Department of Labor’s website in its Fact Sheet and Overview.

With the new federal overtime rules going into effect later this year, I thought it would be useful to talk about in a free webinar.

And apparently, many of you think it would be useful too because in the 48 hours that we’ve opened up the signups to our webinar, we already have a record-breaking number of signups.

worker3But because it’s online, we have room for more.  So consider this your invite to attend a free webinar on June 7th from noon to 1 p.m. EDT.

Topics will include:

  • Overview of the new federal overtime rule
  • Comparison with Connecticut’s existing (and unchanged) wage and hour rules
  • Tips on how to comply with both state and federal law
  • Discussion of common scenarios arising under the new law

I know there’s a lot of anxiety about these rules, but I hope this webinar can put a smile to your face and ease some of your concerns.

If not, then watch the James Corden version of the “Chewbacca Mom” meme.    If that doesn’t put a smile to your face, I’m not sure the webinar is going to help.

U.S. Department of Labor Headquarters
U.S. Department of Labor Headquarters

Over the last few days, Twitter has been a-twittering with buzz that the Department of Labor has sent the final overtime rules to the OMB.

This is the equivalent of one department sending another one an e-mail with the new rules. Why? Because it’s just the next step in getting the rules approved.  But nothing more than that. Moreover, this step always happens in the issuance of regulations.

And here’s the really important point: We still don’t know what these final rules will be.

So ask yourself, is it really worth getting excited about one department sending the rules to another?

That said, SHRM had some additional information from a speaker at a conference this week about when we can actually expect to see the new rules:

At the SHRM Employment Law & Legislative Conference yesterday, Tammy McCutchen, an attorney with Littler in Washington, D.C., and a former administrator of the DOL’s Wage and Hour Division, advised attendees to keep an eye on reginfo.gov, which tracks government agencies’ regulatory actions as they are submitted for review to OMB. Sure enough, the rule appeared on the site late March 14.

At the conference, McCutchen told attendees she believed the rule would work its way quickly through OMB and most likely be published by July 7, and take effect on Labor Day, Sept. 5. Alternatively, she said, the rule would be published the Friday before Labor Day, Sept. 2, to take effect Nov. 1—just prior to Election Day.

If you recall, I first reported on the timing of this back in November 2015.  In that post, I reported on what I heard at the ABA Labor & Employment Law conference — “late 2016”.

Despite all the Twitter posts this week: Things are still on target.

For employers in Connecticut, this is really wait-and-see territory.  First, we don’t know what the new overtime rules are going to be. And second, Connecticut has it’s own rules and we will need to analyze the interaction between existing state laws and these new federal overtime regulations.

Remember: Keep Calm & Carry On.

As we wrap up summer and start returning from vacations, there are several important Second Circuit FLSA decisions decided over the last few weeks that employers need to be aware of.  I’ll cover them in posts over the next few days.

Earlier this summer, the Second Circuit (which is the appeals court for the federal courts in Connecticut) ruled that a supermarket chain CEO could be held individually liable for wage & hour claims brought by employees.  The Court ruled that the CEO was an “employer” within the meaning of the FLSA.

As the New York Labor & Employment Law Report summarized:

The Second Circuit affirmed the district court’s decision, holding that, in certain circumstances, an individual may be considered an “employer” under the FLSA and, consequently, held personally liable for violations of the statute. Further, the court found those circumstances existed with respect to [the CEO] because, among other things: (a) he “was active in running [the company], including contact with individual stores, employees, vendors, and customers”; (b) he was ultimately responsible for the employees’ wages and signed their paychecks; and (c) he supervised other managerial personnel, such as the CFO and COO of [the company].

Individual liability under Connecticut wage & hour law has long since been a factor, so it remains to be seen whether this case will have a dramatic impact on FLSA in Connecticut (as opposed to New York). Nevertheless, the case should be a wake-up call to CEOs in Connecticut — you may be a target in the next wage-and-hour claim against your company.

The General Assembly over the weekend passed a comprehensive bill that permits individuals to use marijuana for palliative purposes.  The bill is expected to be signed by the Governor this month.

Are Policies "Up In Smoke"?

Besides just permitting individuals to use marijuana, it has several important provisions that will impact employers in Connecticut.  Unfortunately, as the history of medical marijuana bills in other states has shown, there are still many unanswered questions left.  Employers will be wise to seek legal counsel to understand the full implications of this bill in their specific industry and workplace.

(I previously discussed the impact of last year’s bill to decriminalize marijuana here.)

Under the new law (which you can download here), employers are prohibited from refusing to hire, firing, penalizing or threatening an employee “solely on the basis…as a qualifying patient or primary caregiver.”  The law does have an important caveat; the employer can act if “required by federal law or required to obtain federal funding.”  Thus, if there are, for example, commercial driving laws in your industry that restrict the use of marijuana, it appears that law will trump state law.

The law does not, however, clarify what it means to be “solely” on the basis of.  Does that mean an employer can consider it but just combine it with other reasons?  Does that mean if an employee brings in marijuana to work (but doesn’t use it) that would be sufficient grounds for termination?

Notably, the law also states that marijuana use is not allowed “(A) in a motor bus or a school bus or in any other moving vehicle, (B) in the workplace, (C) on any school grounds or any public or private school, dormitory, college or university property, (D) in any public place, or (E) in the presence of a person under the age of eighteen.”

Sounds good, right? Except what does “in the workplace” mean? Any place where the employee works? In the home office? What happens if the employee is an outside salesman? Can an employer still implement a “zero-tolerance” workplace policy?

Before an employer frets too much, the bill does add that the bill does not “restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”

So, if an employer still has a policy (much like it does for alcohol) that restricts the use of these substances during work hours, that appears to be safe.

But still, questions remain.  What if the employee requests a reasonable accommodation under state law to smoke marijuana during work hours, arguing that it will allow her to do her job?  There is no doubt that, despite some of the language in the statute, that some will seek to have this issue litigated.

For more background on how other states have dealt with this issue, see these posts from Michigan, Washington, Pennsylvania and Delaware

Employers that have had multi-state offices have had to address this for some time, but for all other employers, the new law is bound to cause a late night or two thinking about this.  You may want to break out some munchies: We’re in for a ride.

The bench lost another notable judge this past week. Judge Peter Dorsey — who was the former chief judge of the District of Connecticut and who continued to serve despite taking “senior” status — died Friday at the age of 80.

I last appeared before Judge Dorsey very late last year. He had a wonderful sense of humor during that last session and he could still disarm both attorneys and clients with his wit.

It wasn’t always easy.  His trial preparation order was, for many years, the most unique of them all.  But you knew what to expect and he had the quality that most judges seeks — the perception of being fair-minded.

He handled numerous employment-related claims and you can review many of them on Google Scholar here.  His shoes will be hard to fill.

Back in February, I noted that a motion to dismiss in federal court — while still difficult to achieve — still had a pulse.  That’s important for employers because it provides a mechanism for getting rid of frivolous claims early on with lower costs than federal lawsuits typically cost.

A new district court case gives another example of how employers can use a motion to dismiss and illustrates what type of case is ripe for such a motion.

In Davis v. Norwalk Economic Opportunity Now, Inc. (NEON), the plaintiff alleged retaliation. But the extent of her allegations of retaliation consisted of the following:

On or about May 04, 2010, and continuing until August 20, 2010, the Defendant began discriminating against the Plaintiff by harassing her, issuing discipline to her, and eventually discharging her from employment, at least in part, because she opposed a discriminatory practice of the Defendant in harassing a fellow employee on account of the employee’s race (African American) and ancestry (African) in violation of 42 U.S.C. Sec. 2000e(3)(2010).

On its face, it might seem like enough — after all, she cites to a specific statute. But the court said that something more than a conclusory assertion is required; some facts are required too.

Left unstated are crucial facts supporting Ms. Davis’s claim — facts to which someone in Ms. Davis’s position surely must have access.  Whose treatment did Ms. Davis complain about, and when, and to whom? How did NEON respond? In what ways was Ms. Davis herself harassed and disciplined? Was there a connection between Ms. Davis’ complaints and her subsequent treatment? Were the two events close in time? Did they involve the same people?

In so doing, the court provides a roadmap as to what a plaintiff alleging retaliation should claim.  The court went on to add that it was not ruling that “any one of these questions must necessarily be addressed” to survive a motion but the absence of “any such detail” leaves it open to such a motion.

The court also indicated that the “deficiency” is “even more notable given the fact that Ms. Davis is represented by counsel”.  While pro se plaintiffs may be held to less stringent standards, “it necessarily follows that a complaint — such as Ms. Davis’s — drafted by a lawyer must be held to more stringent standards….”  Even so, the court provided the plaintiff with another opportunity to draft a complaint that complied with the rules.

What’s the Takeaway for Employers? In federal court, motions to dismiss should still only be considered a long shot.  But cases like this show that in limited circumstances, it is a shot worth taking.

 Today, my colleague Jonathan Orleans makes a return engagement to the blog, updating us on a decision released by the District Court of Connecticut yesterday that has relevance to various ADA cases in the state.  The Defendant was successfully represented by another colleague of mine here at the firm, Marcy Stovall.  

A decision issued yesterday by a federal district court in Connecticut provides some useful guidance on the distinction, for purposes of the Americans With Disabilities Act, between impairments that merely affect major life activities and those that substantially limit such activities. 

The decision by Judge Janet Arterton also clarifies that in determining whether the plaintiff is substantially limited in important life activities, the plaintiff is compared to “most people,” not to any subgroup of the general population.

In Rumbin v. Association of American Medical Colleges (download here), the plaintiff sought various accommodations, including extra time, to take the Medical College Admission Test (the “MCAT”), claiming to be disabled because he was severely limited in the major life activity of seeing. 

He submitted to the Association, which administers the MCAT, reports from his treating ophthalmologist and a behavioral optometrist who said that he had various vision-related impairments, including glaucoma, ocular misalignment, convergence insufficiency, binocular dysfunction, and oculomotor dysfunction. 

The Association nonetheless denied his request for accommodation after having his application reviewed by its own expert, the Executive Director of the National Board of Examiners in Optometry, who found the reports of plaintiff’s doctors unconvincing on a variety of grounds. 

(Interestingly, the Association presented evidence at trial that the MCAT is intentionally designed to be arduous and time-pressured, and that it is reluctant to grant requests for extra time because studies show that scores on tests where extra time is given are not equivalent to scores on tests using the standard timing.) 

The Defendant was also represented by Robert Burgoyne of Fulbright & Jaworski in Washington, DC.

Continue Reading Impairments That Merely Affect Major Life Activities Not Covered by ADA, Says Federal Court

Over the last few years, I’ve been running a popular post about Columbus Day and the origins of the work holiday in Connecticut.  Indeed, it has its foundation as a federal holiday and is listed in the United States Code (5 U.S.C. Sec. 6103).

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of the federal law.   So, if you work for a federal or state employer in human resources, or otherwise, you are likely going to have next Monday off. 

But it is also one of those holidays that private employers increasingly have decided do not merit a vacation day.  A survey from a few years ago showed that just  seven percent of employers in California, for example, give the day off to their employees. 

A common question that arises, however, is why? Why do employees for private companies not have to close on a day that has been designated by the federal government as a national holiday?

The answer is actually quite simple: Because Congress didn’t cover private employers in the law.  And state law doesn’t mandate any requirements on private employers either.  And so, while employees may complaint (perhaps rightly) about the difficulty of some child-care arrangements for some closed schools or otherwise, employer continue to have discretion about the days that it designates as holidays. 

Some employers have created their own work-arounds, allowing employees to take 1-3 "floating holidays" for days like this (or other types of holidays, like Yom Kippur or Three Kings Day).  That’s a sensible practice. But regardless, these types of policies should be discussed with employees so everyone knows what day is a holiday and what day isn’t.

Continue Reading Columbus Day is Coming. And Most Employers are Open.