GA2Yesterday, the Connecticut House of Representatives voted to pass legislation that would promote pay equity among men and women. However, the bill lacks a key provision that would have barred prospective employers from inquiring into an applicant’s salary history.

The CT Mirror and Hartford Business Journal do a good job reporting on the developments. The bill would:

  • “Ban employers from using a worker’s previously earned wages as a defense against a charge of pay inequity;
  • Protect employees from losing seniority based on time spent on maternity or other family or medical leave;
  • Strengthen the requirement that employers provide “comparable” pay for workers performing similar duties;
  • Clarify the state Commission on Human Rights and Opportunities’ ability to investigate complaints of discrimination when wages are involved.”

The Senate remains split along party lines, but the changes made to the bill make passage much more likely now.

The bill, House Bill 5591, can be downloaded here.

It’s unclear how much of an impact the bill will have. For example, the bill changes Conn. Gen. Stat. 31-75 that bars discrimination for work performed under “comparable” working conditions. Previously, the standard was “similar”.

But even the Office of Legislative Research was skeptical about this change noting “It is unclear whether this change has any legal effect.” After all, one definition of comparable is “(of a person or thing) able to be likened to another; similar”.

Moreover, many employers do not base pay on a “seniority system” but instead focus on merit instead. Thus, any changes to the statute on the “seniority system” will have minimal impact.

In any event, before employers act, it’s wise to wait to see what happens in the Senate. Any changes to the law would be effective October 1, 2017.  

 

 

Well, it was bound to happen.  After nine years of writing the blog on a near daily schedule, some work and personal commitments interfered with my blog writing schedule. But never fear, more new posts from me are now right around the corner.

In the meantime, one of our summer associates, James Joyce, joins the blog today to give an update on a a law passed last year regarding pay secrecy. My thanks to James for his work on this.  James is finishing up his law degree at University of Connecticut.  

joyceLoyal readers may recall that about a year ago, Connecticut’s “Act Concerning Pay Equity and Fairness” Public Act 15-196, became law.   Dan has already blogged about the nuts and bolts of the “Pay Secrecy Bill” and its potential impact on employers.

And, as Dan highlighted, employers need to be mindful of this legislation because it created a private cause of action in court for any violation.  That is where today’s post comes into the picture.

One of the first lawsuits alleging violations of the “Pay Secrecy Bill” was recently filed in Superior Court in Stamford (the case has since been removed to Federal District Court).   The lawsuit raises other issues as well, but for today’s post, we’ll focus on the “Pay Secrecy” claim.

So what’s in this lawsuit? Well, the plaintiff alleges that her former employer maintained a “Pay Secrecy Policy” forbidding employees from discussing their salaries despite the enactment of the “Pay Secrecy Bill” in July 2015.

Specifically, the allegations include a run-in with the human resources (HR) department due to comments the Plaintiff made about salaries and her former employer’s view that this was inappropriate and none of the plaintiff’s business.  The plaintiff received an “Employee Warning Notice” from HR and HR went on to tell the plaintiff she could not discuss her wages or her co-workers’ wages.

Additionally, in February 2016, it is alleged that a former co-worker of the plaintiff was reprimanded for a conversation she had with another employee about the company’s paid time off/holiday policy.  The former co-worker was allegedly told directly by the CEO and by HR that this conversation or any similar conversations violated the company’s policy prohibiting employees from discussing compensation with other employees

Obviously, whether or not these facts are true — or rise to a level of violating the law — will play out in court.  But these types of incidents are just the sort of things that employers need to be aware of to avoid “Pay Secrecy” violations.  The law prohibits employers from implementing policies that prevent employees from, or disciplining employees for, engaging in conversations about salary-related information.

Because this case was recently filed there is no way to predict how the court will rule.  Nevertheless, that does not mean this case should be ignored until it is decided.  Employers should remind their human resources staff and managers of this new Connecticut law.

The downside will be cases like this where the employer may have to spend time and money investigating and defending themselves against the alleged “Pay Secrecy” violations.  Employers also risk being found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper related to the alleged violations.

GA2It’s been a long-time coming but the General Assembly finally approved of a measure that would allow employers to pay employees on a bi-weekly basis without receiving prior CTDOL approval.

The provision, part of a set of “technical” revisions to various Department of Labor matters, is long overdue.

Several employers had moved to a bi-weekly payroll scheme without realizing that they needed approval from the CTDOL beforehand.  That approval won’t be required anymore (assuming this bill is approved by the governor).

I’ve previously discussed the requirement so now employers who have been wary about seeking such approval, can just move ahead on their own.

Senate Bill 220 also makes lots of technical changes to the unemployment compensation scheme and even to drug testing (getting rid of the suggesting that the DOL develop some regulations in this area).  These probably won’t be of interest to most employers, but it’s worth a look through the bill summary to see if something else touches on your industry.

The measure will become effective when the Governor signs the overall bill.  (Other provisions in the bill go into effect October 1, 2016.)

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

We interrupt our normally scheduled post on a recent Second Circuit case….

Monday is an anniversary that many of us in Connecticut will long remember — the anniversary of the big October snowstorm (or “Alfred” as Channel 3 called it).   Combine that storm with Irene earlier in 2011, and we’ve seen more than our share of storms recently. 

Lots of Tricks

Just like the Ice Storm of 1973, these storms had devasting consequences and made work quite difficult for employers. 

The forecasts on Thursday just got a lot more serious with Sandy heading up the coast taking dead aim at the Northeast.

Are we in for a repeat?

First off, employers should, by now, understand the rules regarding “reporting pay” and whether you need to pay employees when your office is closed, even due to power outage out of your control.  For more information, there are several posts out there on the subject like this one

But more importantly, the time is now for employers to break out all the lessons learned from those storms and start implementing them. What are some of things to still consider?

  • Emergency contact information for getting in touch with employees. This includes having backup numbers in case of widespread power outages. With mobile phones being used so readily, that’s a great place to start but even those aren’t entirely useful either when the power to the cell towers goes down too. 
  • Clear communications to employees about what should happen in the event of a storm. Who should they call? Where can they find the information? Will your e-mail work to them?
  • Rules for human resources to follow regarding absences.
  • Amending your policies so employees understand when time out of the office (even for power outages) may or may not count towards PTO. 

This may be a long duration storm.  It goes without saying that we should plan for the worst and hope for the best.  Let’s just hope we don’t have a repeat of last year. 

For more on storms, snow days, hurricanes, and other natural disasters (!), you can find some prior posts here, here, here, and here.

A few years ago, I addressed the issue of what happens when there’s a “leap year” for pay periods.  Every five years or so (and 2009 was one of them), a year will have 27 bi-weekly paydays instead of 26. That issue arises because bi-weekly pay programs pay employees in 14-day increments resulting in a 364 day annual pay cycle.

A "Leap" on Faith?

But 2012 presents a different question: Does an employer have to pay an employee “extra” for the leap day on February 29th?

The answer may seem confusing at first, but it’s really quite simple.

For hourly, non-exempt workers, they only get paid for hours worked. So, if they work on February 29th, they get paid for the work on that date.

For salaried, exempt workers, they are typically paid on an weekly, bi-weekly, or semi-monthly basis.  But an employee’s salary is typically a pro-rata basis of his or her annual salary and they get paid regardless of the amount of time they work each week.

So, for the extra day, the employer really isn’t paying anything more for an exempt worker.  The annual salary is just that, and the paychecks just reflect the portion of the year.  Many employers thus get a “free” day of work from exempt workers because they are not paying anything more than in non-leap years.

Of course, this is really more of an academic issue because in practice, employees are paid on a bi-weekly basis so it’ll be made up at some point.  (It has more of an impact on employees paid on a monthly or semi-monthly basis.)

Interestingly, my cursory review of case law reveals nary a challenge to this practice.  The only reference to leap days and federal wage claims deal with statute of limitations.

Case in point: When you’re claiming you filed a claim on a certain date, be sure you have your leap years right — unlike this party that claimed to have filed on February 29, 2005.  

The court even felt compelled to add the following footnote: “February has twenty-nine days only in leap years, and leap years occur only in years divisible by four, which 2005 is not.”

Glad the court cleared that up.

Updated: August 28, 2011 – As of mid-morning, more than 40 percent of the state is without power, making this storm the highest power outage in state history.  Widespread office closures are expected for Monday and early this week.

It’s the (relatively) calm before the storm on Saturday night.  Hurricane Irene is definitely coming.

But one question that I’ve seen raised on Twitter today is the following: As an employer, do I need to pay employees if we’re closed on Monday?

It’s a question that is looking more and more likely in need of answer.  Widespread power outages and major flooding are forecast.

There are some exceptions (and, as I’ve highlighted before, you ought to consult with your legal counsel about the particulars of your business) but in general, the answer to the question depends on whether the employee is exempt or non-exempt.

As a general rule, exempt employees get paid on a salary basis the same amount each week — regardless of the amount of work that they do. Thus, for these employees, they are going to get “paid” for the day, in the form of their typical weekly salary.

For non-exempt employees, the general rule is that they only get paid for time that they work.  If they don’t work Monday — even if the office is closed — then they don’t get paid for the work.

Of course, as a morale issue, some employers will pay non-exempt employees for the time or may ask employees to merely take the day as “paid time off”  — figuring that these things happen. But there may be some employers who don’t.

For additional information, there are several posts out there discussing this in the context of a snow day.  Ah, snow. Seems very far off now.

Given the fluid power outage situation, I’m not quite sure when the next blog post from me will be.  Hopefully, on Monday.

In the meantime, stay safe until we can safely say, Goodnight Irene.

In my continuing series of posts this summer on recurring issues in employment law, this week I’ll address the payment of wages and the question: Can I pay my employees on a bi-weekly basis?

The answer to that question is “no” — at least not without a waiver from the Connecticut Department of Labor.

Connecticut law requires that all employees be paid on a weekly basis.  But the law also allows the CTDOL to grant waivers upon requests by employers.

Bi-weekly payment of wages waivers are fairly routine and routinely granted. They are so routine that the DOL has created an online form. Typically (though not always), the DOL does not look to see whether the employer was actually engaged in this practice beforehand and is satisfied with the employer’s newfound compliance.

For semi-monthly and monthly payment of wages, the DOL has granted waivers on a much more limited basis.  The employer in those cases must typically show some extraordinary need.  Otherwise, the request will be denied, more often than not.

If you haven’t been complying with this law, seek legal counsel to discuss the legal issues in play and understand the consequences of non-compliance.

When new laws get passed, the complications that arise from the passage aren’t immediately clear.  But a look at Connecticut’s new family violence leave provisions (effective October 1, 2010) demonstrates how some of those complications are now making themselves apparent. 

As you may recall, the new Family Violence Victim leave law permits employees to take up to 12 unpaid days leave for medical care or counseling arising from a domestic violence situation or to attend court proceedings related to the same (or a variety of other listed reasons.)  If an employee has compensatory time or vacation time or the like, the leave can be paid. 

The law specifies that employers do not need to provide paid leave if (1) the employee is not entitled to paid leave pursuant to the terms and conditions of the employee’s employment or (2) the paid leave exceeds the maximum amount of leave due the employee during any calendar year. However, the bill requires the employer to provide unpaid leave if paid leave is exhausted or not provided.

Easy enough, right?

But when the statute is put in the context of other wage & hour issues, there’s bound to be some confusion.  And indeed, its interaction with exempt employees should have employers scratching their heads a bit.  Let me explain. 

To simplify, for exempt employees in Connecticut (using the standard white-collar exemptions), employers can deduct from an employee’s pay for one or more full days "if the employee is absent for personal reasons other than sickness or accident" or for "sickness or disability" if pursuant to a policy where deductions are made when sick days are exhausted.  Deductions can also be made for FMLA-covered leave in less than a full day increment.

So, suppose an exempt employee is injured during a domestic violence assault and sees a physician. Can the employer not pay the exempt employee for the days not worked without losing the exemption? Part of the answer depends on whether you consider the absence for a "personal reason" or whether its a "accident".    

Now, suppose that an employee is taking only a half day off, can the employer dock the employee for a half-day without losing the exemption? One could argue "no" because less than a day increments are only allowed for FMLA-related leave, not other types of leave.  Which then raises the question, can the employer requires that the family violence leave be taken in increments of not less than a full day?

Now, suppose the employee needs to attend a court proceeding relating to a family violence issue, is that absence also to be considered a "personal reason"? 

Still more questions to ponder: Does the Department of Labor have any jurisdiction to issue regulations or guidance on the impact of this new law? If not, who does and how can we get more guidance on these types of issues as they arise?

Obviously, these types of situations are not going to be the everyday-type of issues that employers have, but I highlight them because even well-intended laws like the new family violence leave bill, can have unintended consequences and raise unexpected issues.   Unfortunately, as history has shown, it is often only through litigation through the courts that we may ultimately get some answers to the interpretation of this law.

As those who have been following my tweets know, I have been at the American Bar Association’s House of Delegates and midyear meetings. There’s lots of substance to these meetings and you can certainly follow along with the ABA Journal.

Among the topics discussed today, was the Paycheck Fairness Act now pending in Congress. If you are not familiar with it, you should be because by all accounts, it’s moving front and center this year as an important piece of legislation for the Obama Administration and others.  Rep. Rosa DeLauro of Connecticut is the primary sponsor of the bill in the House of Representatives.

John Phillips reported on this recently. As a result, employers should take stock of their compliance programs and certainly begin a review (if it is not done regularly) of your current compensation procedures.

What does the bill do? John has a good summary but some of the key changes would be to revise the remedies for sex discrimination in the payment of wages by permitting uncapped punitive and compensatory damages and limit employers’ ability to defend against EPA claims. The bill would also prohibit an employer from retaliating against an employee who inquires about, discusses, or discloses his/her own wage or that of another employee unless the disclosing employee has access to that wage information as part of his/her essential job function.