It’s Sunday evening here in Connecticut.  If the forecast goes according to plan, I may not have power tomorrow to write about the storm.

Oh, Sandy!

Governor Malloy announced this evening that all non-essential state workers are not to report to work on Monday. But those who listened to his news conference know he went beyond that.

He stated that “This is the highest threat to human life our state has experienced in anyone’s lifetime.”

What does that mean, though, for private employers? Well, despite the ominous warnings, he has not ordered all private employers to close.  Under Conn. Gen. Stat. Sec. 28-9, he may have broad powers if he declares a state of civil preparedness emergency to do so.

Indeed, under subsection (a), he is “authorized and empowered to modify or suspend in whole or in part, by order as hereinafter provided, any statute, regulation or requirement or part thereof whenever in his opinion it is in conflict with the efficient and expeditious execution of civil preparedness functions.”

But that’s not happening here.  At least not yet.  (If you’re curious on more about the state’s Disaster Plan, you can download it here.)

Thus, its up to each employer to decide what to do. Some, like our office in Bridgeport, will have no choice but to close because of the storm surge and flooding. Others will also need to close because of the expected power outages.

Whatever you decide, understand that opening or closing has its own set of consequences. Employees who are required to work tomorrow may feel like they are being put in harm’s way. While others may not get paid if the office is closed.

This storm is unprecedented (at least that’s what various articles like this one suggest.) Employers should be conscious about following guidance from officials and following the letter of the law. This disaster will pass, but employers who don’t follow the rules, are likely to have issues resurfacing down the road.

Stay safe everyone.

 

Ok, bear with me for a second.

If your employees want to bring a class action against your company claiming that they should’ve been paid overtime, there are typically two ways to do so: Bring a claim under state law, or bring a claim under federal law (Fair Labor Standards Act).

There’s a big difference: Federal law collective actions are an “opt-in” group — meaning that individual employees need to affirmatively state that they want “in” on the lawsuit. (Many people don’t bother so those classes tend to be smaller.)  State law class actions typically use an “opt-out” procedure (meaning that everyone is IN the class unless they affirmatively state they want “out”).

Recently, lawyers representing employees in these wage-and-hour actions have been bringing “hybrid actions” — asserting BOTH state and federal law claims in one lawsuit.  The Second Circuit (which is the federal appeals court for Connecticut, New York & Vermont) had never blessed those actions.

Until now.

Earlier this week, the Second Circuit in Shariar v. Smith & Wollensky Restaurant Group approved these actions were proper where the facts underlying both claims “form part of the same case or controversy.”

As keenly noted by the  Wage & Hour Litigation Blog, if Defendants now want to object to prosecuting both federal and state claims in the same lawsuit, “the court’s decision clarifies the legal grounds for doing so.  Going forward, defendants will need to demonstrate significant tension between the pursuit of federal and state wage claims in the same lawsuit in order to limit plaintiffs to FLSA claims in federal court.”

For employers, the court’s decision won’t have a significant impact on business. What it will have an impact on, though, is any wage-and-hour litigation that the company may face. This decision makes it easier for employees to bring their claims in federal court (where things might move a little more quickly) while still maintaining the perceived benefits of an opt-out class under state law.

 

The Connecticut Supreme Court, in a decision to be officially released next week, has ruled that a municipal employee’s hybrid duty of fair representation claim against his or her union and the employer , must be brought to the State Board of Labor Relations first, and not directly to Superior Court.

The case, Piteau v. Board of Education (download here), won’t win any awards for being the easiest decision to understand. 

But the crux of the matter addresses what forum (a court or a state labor board) an employee can claim that his union was not adequately representing him when he is also claiming that the employer breached the collective bargaining agreement.  These types of claims typically arise in the termination context; here, the plaintiff was terminated for allegedly gathered and then sold scrap metal from a school construction site in violation of employer rules. 

In this case, the court said that any attempt to circumvent the State Board of Labor Relations must fail because the Courts do not have jurisdiction over such claims and that its decision is backed up by both a statute and legislative history. 

The case will have little to no impact on private employers, but for municipalities, the case is an important one in ensuring that proper legal procedures are followed.