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

The Connecticut Attorney General's Office quietly filed suit this week in Connecticut State Court(download here) against American Future Systems, which does business under the name of Progressive Business Publications (and also Progressive Business Compliance).   You won't find a press release about it on Attorney General Richard Blumenthal's website.  Back in March, I had reported that the AG's office started investigating the company due to its practices advertising its products. 

Those who have been reading this blog for a while know that I wrote a series of posts about an e-mail and website page that PBC had regarding a somewhat obscure workplace poster.  Ultimately, the company revised their website regarding this poster and I applauded the company for fixing the issue on their website. 

But the suit filed by the AG's office focuses not on the website, but on a facsimile that was allegedly sent out by the company in the winter with the heading "Connecticut Healthcare Advocate - Official Notice".  The notice also says that the poster "lists employee's rights to health insurance under Connecticut law" -- which is nearly identical to the language that was used on their website.

A copy of the notice can be found attached to the lawsuit.  The AG's office alleges that this facsimile solicitation was misleading to consumers and violated Connecticut's Unfair Trade Practices Act (called CUTPA). 

It should be noted, however, that the name of Progressive Business Compliance is also found on this facsimile as well and readers can make their own determination about whether the facsimile is, in fact, misleading when viewed as a whole.  (It should also go without saying that the lawsuit contains allegations, not proven facts.)

Interestingly, the lawsuit also alleges that PBC did not file the proper papers to transact business in Connecticut with the Secretary of the State's office (Conn. Gen. Stat. 33-920a).  In addition, the AG's office has claimed that the facsimile was an improper unsolicited advertisement under Conn. Gen. Stat. 52-570c(a). 

The Company has not filed an answer or appearance yet to the lawsuit.

In May, I did speak with an official from PBP and offered to post a statement from them. They declined the offer then and I suspect that they will keep their responses to court papers now that a lawsuit has been filed.

In the meantime, you can track the progress of the case via the court's docket available here.

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A while back, I wrote about a Connecticut law that requires employers to post about the services of the Office of Healthcare Advocate and about one company that sells such a poster, Progressive Business Compliance. 

But the question is often asked, are these workplace posters that available for sale by companies like PBC, useful and worthwhile to purchase in general?  My response is "Yes" with a small "but" attached to it.     

What do I mean? Well, as I've said before, the companies that prepare the workplace posters do provide a valuable service by combining the posting requirements under various state and federal laws into one poster. These "5-in-1"s or whatever number that is chosen, are then printed in an easy to read format and are often laminated to preserve their appearance. For this reason, spending money on the posters is an easy call for many employers.  

Certainly, companies like Progressive Business Publications (which also goes by the name Progressive Business Compliance) or G.Neil can fill that role well.   Indeed, a number of attorneys that I know have used posters from both of these companies for years without incident and I haven't seen or heard about any specific posters that they sold that did not comply with the law.  I certainly wouldn't discourage employers from using these services, even with the cost involved, because for many employers it is "worth it" to have easy-to-use posters prepared by someone else. 

And before people get too up-in-arms about companies making money off their product, it's not like these companies are alone in charging for items that the goverment otherwise makes available free to the public. For example, LEXIS and Westlaw charge people for using their services to find and locate court decisions published by the courts, or legislation passed by the goverment. 

Moreover, simply because you can get the materials for free elsewhere does not, in my view, provide a sufficient reason for ignoring these companies either.  They're not government agencies (nor do their websites pretend to be) but they make it their business to do their best to understand each state and federal law.

But here is my small reservation about using these companies (or companies like these): Employers should not rely on their services as the exclusive source of their information, nor for advice. 

If an employer is investigated by the Department of Labor about its postings, it won't really do the employer much good to say that they merely relied on what another company told them to do. Rather, each employer has an independent obligation to ensure that they are complying with the applicable laws.

So, how can an employer do that AND still take advantage of the services offered by the workplace poster companies? Work with a qualified and experienced human resources professional or an attorney to ensure that all of its posters and polices are up-to-date.  Also figure out what state and federal laws actually apply to them.   Once the employer performs such an assessment, then reach out to the poster companies. 

Maybe they will even cut a volume discount.

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Yesterday, I noted that Norwalk Community College had been sanctioned over the summer  in a federal district court case for its apparent failure to preserve electronic data.  I've always believed that these types of compliance issues -- if they exist -- do not exist in a vacuum. Indeed, companies that have trouble keeping track of their data and their compliance obligations often run into problems in more areas than just this one. 

Reading the minutes of the most recent Board meeting of the CHRO confirmed this theory for me.  It turns out that Norwalk Community College has had issues with compliance with its affirmative action plans and keeping track of them. According to the minutes, the College allegedly never received notice of a disapproval of its affirmative action plan from a prior year (and thus did not appear to address the deficiencies noted in it).  Indeed, when the College submitted its affirmative action plan this year, the CHRO originally recommended disapproving it.  Notably, the College achieved (according to the minutes) only 3 out of 16 goals that were set in the plan.  The CHRO chair stated that this seemed "low".  Ultimately, the CHRO approved the plan noting the College's "good faith efforts". 

The relevant portion of minutes is as follows:

The following individuals were present representing Norwalk Community College: President David Levinson, Human Resources Director Ginny Dellamura and Affirmative Action Officer Natasha Maynard. The plan is being recommended for approval based on compliance with the good faith effort standard. Short-term goal achievement was 3 out of 16 or 19% and total goal achievement was 3 out of 16 or 19%. Promotion goals were not set in the prior plan. The plan was approved in 2002, 2003 and 2004, disapproved in 2005 and approved in 2006.

Commissioner Lobon asked if the plan’s status would not have changed if they were notified of their deficiencies from last year. Staff confirmed that is correct. The original recommendation of disapproval was based on the fact that the College did not address prior deficiencies and CHRO staff subsequently found out that they never were informed of them in the first instance. The Chair commented that the attainment of contract goals is low. Mr. Bingham stated his intent to meet with representatives of the College after the meeting to discuss this issue.

Ultimately, it appears that the College is addressing these issues and it would unfair to single the College out for its oversight here.  Documents get lost and people sometimes overlook issues, with no evil intent.  But when multiple issues arise regarding compliance (either with state laws or federal discovery requirements), it can be a sign that a company needs to take a step back and make sure that these occurrences aren't symptomatic of something larger.

For Connecticut employers, always take issues of compliance seriously and take this example to heart.  If you find an issue in one area, make sure that the same issues do not arise in other areas.

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