Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Continuing the summer series on the basics of some employment laws in Connecticut, we turn this week to laws regarding working conditions.

Indeed, while the anti-discrimination laws and FMLA laws get all the press, there are a whole host of other laws that regulate the workplace conditions.  These are no less important and ignoring this rules can often lead to a larger investigation on workplace issues.

Here are a few to remember:

• Meal or Rest Periods: Every employee who works at least 7 1/2 hours, is entitled to a consecutive 30 minute period for a meal.  This meal period cannot occur in the first 2 hours or last 2 hours of work, unless there is a written agreement in place.  The DOL has set up various exceptions however for public safety or because of the nature of the position.   (Conn. Gen. Stat. 31-51ii.)
   
• Breastfeeding in the Workplace: Every employee who wishes to express breast milk or breastfeed at work can do so during a meal or rest period.  Employers are obligated to find a suitable room or other location (other than a toilet stall) where the employee can express her milk in private.  (Conn. Gen. Stat. 31-40w.)
   
• Electronic Monitoring: I've previously covered this more extensively in various posts like this one, but suffice to say that Connecticut allows employers to monitor their employees so long as the employees have prior written notice of such monitoring (with limited exceptions).
  
  To provide the notice, the employer must indicate the types of monitoring that may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.)(Conn. Gen. Stat. 31-48d.).
  
  If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer's employees, or (iii) creates a hostile workplace environment."
   
• No Polygraph Tests: Connecticut also has a blanket prohibition on the use of polygraph (lie-detector) tests by employers for employment purposes (with the exception of such police or correctional facilities) . (Conn. Gen. Stat. 31-51g.)
  
  Interestingly, the ban on polygraphs appears limited to situations where the employer "requests or requires" any employee or prospective employee to submit to or take a lie detector test as a condition of obtaining or continuing employment (and cannot discipline an employee for failing to do so.) Of course, that leaves open a question of whether an employer - as part of an investigation - can ask an employee to do so.  But even in that case, it may run afoul of federal laws on the subject. Suffice to say that any employer wishing to use lie detector tests should consult with counsel about it. 

(Photo: Library of Congress, Women workers employed as wipers in the roundhouse having lunch in their rest room, C. & N.W. R.R., Clinton, Iowa, 1943)

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In the workplace, there good ideas, bad ideas, and ideas that make you scratch your head. 

Reading a recent article in Time about bringing babies into work, I was hard-pressed to place it other than in the third category.  The article cites a new "institute" called the Parenting in the Workplace Institute as saying that over 70 companies allow babies in the workplace.  Obviously, given the numbers of companies out there, it is just a tiny fraction.

The obvious question that arises for a employment law blog is: Is there any legal guidance in Connecticut about this issue?  The answer is, not really. 

For employers, it is important to understand the great amount of flexibility an employer has to set policies and procedures.  Banning children from the workplace is one of those rules.   While there may be a safety reason associated with some rules (you don't want little Max running around a manufacturing floor), an employer may have a simpler reason -- keeping the workplace a "work" place. 

That being said, suppose an employer wanted to go ahead with such a policy, are there any considerations for such a company?  The answer is yes. 

Too often, employers allow these types of actions to occur on a ad-hoc or individual basis.  From a legal perspective, that only creates more confusion and fails to set forth reasonable expectations that should be set. Questions to consider:

• Is there an age limit or a time limit?
  
• What about meetings?
  
• If the employee has a business engagement, does the parent expect others to "fill in"?
  
• Are there expectations about what behavior is expected from the children?
  
• Can the parent bring in a crib?
  
• If the employee does not have a closed office, are they going to be allowed in cubicles?
  
• Are certain jobs just "off limits" for having kids around?

While some may argue that a parent would "use their common sense" in bringing a child into work, the sad fact is that each person is different with a different set of expectations.  Setting up a set of ground rules to follow (that can be adapted and updated as needed) seems a way to try to make it work.

That said, employers should exercise caution in going down this path.  Besides the legal issues in play, co-worker morale and office productivity will no doubt be affected to.  Sticking to "Take Our Daughters and Sons to Work Day" may just be the safest bet. Or the employer can offer day-care or emergency day-care services close by to make it easier for some parents.  The employer can also offer telecommuting as well.   And of course, following the rules regarding breast-feeding in the workplace is a must too. 

However, your workplace could look something like the following video, in which case, you've got bigger issues to worry about than establishing a policy.

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Over the last few days, the mainstream press and blogosphere have been abuzz over the  Harvard Medical School student and new mother who asked for extra time during her licensing exam to express her breast milk.  Ultimately, a Massachusetts court denied Sophie Currier's request of the National Board of Medical Examiners for the time. 

The case raises some interesting questions including, what happens if/when she becomes a doctor and makes a request to breast feed in the workplace? If she decides to practice in Connecticut, she will have a few more options.

Over five years ago, Connecticut passed a law protecting mothers who decide to breast-feed in the workplace. Specifically, Conn. Gen. Stat. Section 31-40w, provides that:

an employee may express breast milk or breastfeed at her work place during a meal or break period.

What are an employer's obligations in Connecticut? The employer has an obligation (not discretion) to make "reasonable efforts" to provide a room, or other location near the work area where the employee can express her milk in private.  The statute also indicates that this location is to be someplace other than a toilet stall.

What are reasonable efforts? Similar to the analysis under the ADA, reasonable efforts mean any effort that would not impose an undue hardship on the operation of the employer. For large companies, a lactation room might be reasonable; for smaller employers, use of  smaller supply room or conference room, with a chair, might have to suffice.

Duke University's Human Resources has this suggestion on how to set up an appropriate lactation room:

An unused large closet or private area off of a women's restroom would work. The area should be at least 7 feet by 7 feet, be ventilated, have a door that locks, electrical power and be completely private. It should also be accessible to employees with disabilities.

Notably too, an employer cannot discriminate against, discipline or take any adverse employment action against an employee because she has decided to breast feed or express her milk during a rest or meal period.

New mothers are sometimes reluctant to make a request, typically because they are unaware that they have such rights.  After all, being a new parent is exhausting enough.

But for employers who want both productive employees and happy ones, taking the lead on this issue might prevent lawsuits like the one filed in Massachusetts. Have a plan on how to deal with new mothers and make them feel comfortable when they return by providing them information on the options they might have.  Better yet, designate a room ahead of time that can be used by new mothers and educate your workforce about it. 

La Leche League also has additional information on the subject for employers and employees alike. 

SEPTEMBER 26th UPDATE: An appeals judge has reversed the lower court decision, thereby allowing Sophie Currier break time.  She will now be taking her boards on October 4th. 

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