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

Given the typically slower summer months, I'm going to highlight some basic Connecticut employment laws that most employers should be familiar with (but that some may not).  Picking up on yesterday's post, it'll be entitled "The Basics" and hopefully will run at least once every week.

Today's topic: Weekly Payment of Wages.

Connecticut law (Conn. Gen. Stat. 31-71b) provides that employers in Connecticut have to pay their employees on a weekly basis. Not every other week. Not twice a month.

For multi-state employers on may have a bi-weekly payroll schedule across the country, this can cause a few headaches (though most payroll companies have long since been able to adapt payroll schedules on a state-by-state basis). 

But of course, there's a big exception to this:  Employers can ask the Department of Labor for a waiver. Conn. Gen. Stat. 31-71i provides that the department  has the discretion to grant or deny such a waiver, so long as the employee is paid at least once a month.  

To request a bi-weekly payment schedule, in fact, the Conn. DOL has set up an online form that the employer can fill out; these requests are typically granted by the CTDOL.  

For employers who request a semi-monthly or even monthly pay schedules, those requests have to be sent directly to the Department of Labor. Those are typically scrutinized in much more detail and there ought to be a pretty good rationale behind that request. 

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Although it's not yet a everyday occurrence in employment matters, structured settlements have taken off in the last decade as parties look for new and different ways to resolve matters, particularly personal injury lawsuits.

Structured settlements are basically legal agreements to pay a specific person or persons, a specific sum of money in periodic payments, instead of in a single lump sum payment.  Because of structured settlements, a whole secondary market for insurance and related products has formed. 

While you may be unfamiliar with the ins and outs, two of my law partners, Katherine Scanlon and Peter Vodola have just started a new blog this morning on the subject.  The Secondary Market Law blog already has several posts up this week about upcoming Congressional hearings and some Ponzi schemes to be on the lookout for.  It promises to be a novel way to learn about a unique and growing area.

Kathy and Peter have spent a good amount of time planning for the launch so take a look at it and check back often as they continue to add new content in the days and weeks to come. (Even better, subscribe to it here.)  

The Secondary Market blog is now the third blog written by Pullman & Comley attorneys, joining this blog and the Green Energy and Development blog by Brad Mondschein. 

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Although I've been sounding the alarm bells for the last two months or so, on the new COBRA subsidy provisions, I've had informal discussions with various colleagues that suggest that some employers are either ignorant of the new rules or do not believe that the rules apply to them. Here are three areas why most employers in Connecticut need to be concerned.

1.     State Mini-COBRA Laws Will Piggyback on the New Federal COBRA Subsidy.  While federal COBRA only applies to employers with 20 or more employees, Connecticut has a parallel COBRA statute that applies to all other employers with group health plans (except those that self-insure).  Why is this important? Because the new federal COBRA subsidy provisions will ALSO apply to those employees who are covered under a state COBRA rule as well.

The rules are slightly different. For example, if the state mini-COBRA rules apply, the insurer is responsible for sending out notices to former employees who may be eligible for assistance.  In addition, the extended election period that, in essence, reopens the period for former employees to elect COBRA, does not apply for employers subject only to the state mini-COBRA.

Thus, for employers with less than 20 employees, you may still need to comply with the new COBRA subsidy provisions.

2.     There Are Significant Penalties for Failure to Provide Notices by April 18, 2009.  With the deadline to send out notices -- particularly to former employees -- coming up as early as Saturday, April 18, 2009 for many situation, employers who are scrambling to get the work done may be considering just postponing it.  However, any such postponement carries with it significant risks. 

Although the new law appears to be silent as to the exact penalties that will apply, it appears the standard penalties under COBRA or other federal laws may apply. Thus, plan sponsors (mostly likely, employers) who fail to provide the notice could be subject penalties of up to $110 per day under ERISA and an excise tax penalty of $100 per notice (with limits) under the Internal Revenue Code. The penalty or excise tax may apply to each Qualified Beneficiary. In addition, individuals may have a cause of action to sue for COBRA coverage and receive the benefits that should have been offered, as well as attorneys’ fees and “other relief.”

3.      Employers That Pay COBRA Premiums Under a Severance Plan or Agreement May Want to Modify Them.  The most recent guidance provided by the federal government clarified that the subsidy applies only to amounts actually charged to the assistance eligible individual for COBRA continuation coverage. Therefore, employers who contribute to an assistance eligible employee’s COBRA premium will not be able to recapture this amount.  As a result, these employers may want to consider restructuring their severance policies so that they can get a tax credit for those amounts.

 

There's much more to the new COBRA subsidy rules than first meet the eye. If you're still confused, it's not too late to sign up to the teleconference that I'll be giving this Friday, through BLR. 

As always, consult with a local attorney to determine how the new law applies to your business.

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There are a lot of sleepy Connecticut basketball fans this morning, with the game against Syracuse last night (and this morning) going into SIX overtimes.  Those of us staying up until nearly 1:30 a.m. to watch the second-longest game in NCAA basketball history will remember that game for a long time. 

With overtime on my mind, it's a good time to address two simple issues that sometimes arise in Connecticut:

• What's the difference between daily overtime and weekly overtime?
• And does Connecticut have a "daily" overtime rule?

"Daily" overtime is a concept that a non-exempt employee who works more than 8 hours in a day (or perhaps on a weekend day or holiday) is due an overtime rate of time-and-a-half of regular hour rate.  Some states have imposed this rule."Weekly" overtime is the more commonly understood concept that an non-exempt employee is only due an overtime rate of pay after working more than 40 hours during a week.

Connecticut's Department of Labor quite succinctly states that Connecticut does not have an "daily" overtime rule, absent some contractual arrangement.  Instead, Connecticut follows a weekly overtime rule, that can be found at Conn. Gen. Stat. Sec. 31-76b. 

Thus, if there were non-exempt employees in Connecticut who had to work late last night because of the basketball game, they are only going to be eligible for overtime if they work more than 40 hours during this week (or there was some other type of contract, like a collective bargaining agreement, that mandated it).

And if you see some people napping around the office today, have some sympathy for them too. Staying up late didn't help UConn's cause; they lost 127-117. 

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Connecticut's prospects of becoming the first state with a broad paid sick leave provision got a little closer on Tuesday as a legislative committee voted 8-3 (along party lines) to approve the measure.  While such a step was not unexpected (it passed committee last year), it is another indication that proponents of the measure are not willing to let this issue go away without a fight.

I've discussed the bill several times before and it appears that the basic structure of paid sick leave bill (H.B. 6187) has remained unchanged. 

The measure would  require every business of 50 employees or more to grant workers one hour of paid sick time for every 40 hours of work with a cap of 6.5 paid days per year.  You can find the text of the bill here. 

Last year, there was strong opposition to the bill, including the Connecticut Business and Industry Association.  You can find the CBIA's rationale for opposing the bill here.  That opposition was noted by the My Left Nutmeg bill, which captured the rationale in support of the bill. 

There is no indication that the CBIA's opposition is softening, but the Republican-American is reporting this morning that both "proponents and opponents" of the bill believe the bill will be passed this year.

 

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Last year, Connecticut football fans were in nirvana. Giants versus Patriots. In a state where loyalties are divided among those two teams, you couldn't ask for a better match-up.

This year? Well, let's just say that many people will need to find some alternative reason to get excited about the matchup.

Which is where office pools come in. 

At many employers, either formally or informally, employees can contribute a small sum (a few bucks up or perhaps $20) to get a box on a 10x10 grid, which corresponds with the last digit of the football score for each team (0-9). Get a box that matches the score at the end of a quarter or game, and you might will a few hundred bucks. 

(And office pool "experts" will tell you that numbers like 0, 3 and 7 are decent draws, while 2, 5 and 9 are remote possibilities). 

But for employers, this raises an interesting question -- are office pools legal?

Well, last year, Connecticut Attorney General Richard Blumenthal chimed in near game time to say, in essence, yes office pools are legal, so long as the "house" (or the employer sponsoring it) doesn't take a portion of the money.  An article in the Norwich Bulletin, quotes Blumenthal as saying: “Office pools are generally legal unless they’re done for a profit by the person organizing it.  In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

The actual law is a bit hazier as I explained in a fairly detailed post last year (available here). But since it is pretty clear that the state's top enforcement official has no interest in prosecuting office pools, there doesn't seem to be much harm in jumping in.

Just hope you don't get the dreaded 5-5 combination. 

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The Connecticut Department of Labor late today posted brand-new guidance (available here) comparing the new federal FMLA regulations with the existing Connecticut regulations.   For employers struggling to adopt the new FMLA regulations with Connecticut's FMLA rules, this document is a must-read because there are some very real and significant differences now that will arise --- at least until those differences are handled via statutory and regulatory amendments.   

A little background first: the 30 page document is the work of Attorneys Heidi Lane and Jennifer Devine in the Office of Program Policy who enforce the CFMLA on a daily basis.  The document, as noted in the cover, is an attempt to provide Connecticut employers with as much information as possible to modify their policies.

But as the cover also explains, there is likely to be a formal rule-making change (with appropriate notice period) this year to address some of the differences that are now arising between federal and Connecticut regulations.  The Department will also be holding a seminar on the interplay between federal and Connecticut regulations on February 26, 2009 for a nominal fee of $25.

Overall, the document notes that some changes can be adopted immediately because they conform to the "practice" of the Department of Labor or are a "reasonable interpretation". Other provisions cannot, particularly because Connecticut's FMLA statute and regulations are just different. A rule of thumb is that where the state regulations are more favorable to the employee, those state provisions will be followed. 

Because of that "rule of thumb", employers now need to be very cautious in adopting the new federal regulations. Indeed, all of the regulatory changes that were favorable to employees (or at least neutral) will be followed by the CTDOL, but all of the federal FMLA changes that were favorable to employers will not.  [This is not the Department's fault, per se, but rather the way Connecticut's statute has been written.] So, that change to the "perfect attendance" bonus rule under federal law? Out. That provision allowing employers five business days to give notice to affected employees, instead of two? Gone as well.

So what are some of the highlights?

• The CTDOL will allow for the adoption of the new FMLA notice, designation and certification forms (available here) with certain very notable exceptions. In particular, forms WH-381 (Eligibility Notice) and WH-382 (Designation notice) will need to be provided to employees within TWO business days, not the five allowed under the new federal regulations. Expect a change to the state regulations to make it consistent with federal law, but until that happens, Connecticut employers still need to follow the 2 day limitation.
  
  In addition, "key employee" and "fitness for duty" provisions differ from the new FMLA regulations. Employers should review the specific regulations and consider eliminating some of the language on the forms to conform with Connecticut law.
   
• The new federal regulations also dictate that employees must provide notice of their absences consistent with their employer's policy. However, the CT DOL indicates that Connecticut law is not as strict and merely requires"timely verbal or other notice". Thus, until this regulation is amended, Connecticut employers applying CTFMLA will need to show more flexibility.
   
• As for the certification forms (WH-380E and WH-380F), those can be used with one notable exception. The new forms have a section where the doctor is to indicate a "diagnosis"; the CT DOL states that an employer may not request a diagnosis under CTFMLA. A formal change to Connecticut regulations will be needed to adopt this particular change. These forms must also be given to employees within TWO business days, not five as allowed under FMLA.
   
• Overall, the CTDOL adopts the changes to the definitions of "serious health condition" that dictate that employees visit doctors within certain specified periods of time.
   
• While the new FMLA regulations allow for the denial of a "perfect attendance" bonus/award to employees who take FMLA, Connecticut regulations do not allow this. Thus, until the regulations are amended in Connecticut, employers in CT cannot deny perfect attendance awards to employees who take CTFMLA leave.
   
• The federal FMLA regulations permit an employer to contact the employee's health care provider in limited circumstances, but the Connecticut rules do not. This distinction will remain.
   
• For "fitness for duty" requests, the CTDOL notes that employees need only provide a "simple statement of an employee's ability to return to work". While the federal regulations allow for a more detailed certification, the CTDOL has indicated that it cannot follow this provision.

The document is a vital piece of information for employers' compliance efforts and I applaud the department's efforts in providing employers this information in a fairly short period of time.

But it now highlights the fact that the legislature and CTDOL should act quickly to eliminate some of the awkward differences that will now arise between federal and state FMLA.

For employers, continue to seek appropriate legal counsel on implementing the federal regulations but make sure that any analysis includes application of Connecticut regulations where appropriate.

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UPDATED 1/13/09

It started as an observation a few months ago when I noticed that although the visits to the blog were up, visits from state computers were down.

Then later, it was confirmed through off-the-cuff remarks by various state workers (including those at the CHRO -- the state equivalent to the EEOC) that they could not access my blog anymore because the state blocked access to the site.

How curious, I thought, though I knew I was probably from unique. But I wondered what else the state was blocking.

Through some more digging, here's what I've confirmed: First, any website that describes itself as a blog is apparently blocked through the state's filters for the CHRO and some (but not all) state agencies.  

What does this mean in practical terms? The "news" side of the New York Times is not blocked but any article by a NYT columnist, such as Nobel Prize Winner Paul Krugman, is -- along with any article in the Times that allows for comment (such as the breaking news "blogs", called The Lede) .  

And this site -- which has blogged about CHRO topics, such as the CHRO's own affirmative action plan that was recommended for disapproval, or about the trends found in the CHRO's annual report -- is also blocked. 

Of course, the filter isn't just focused on blogs or the law. It also blocks items about personal health. So suppose a CHRO investigator needs to research whether diabetes could be considered a "chronic condition" in all cases -- that too would be blocked.  (And don't even ask about trying to access paid legal research sites such as Westlaw or LEXIS.)

Of course, rare exceptions can be sought, but CHRO workers and others first need to find a supervisor that has a password, and then worry about whether or not they are being tracked. As a practical matter, it's an option that very few people seek or can use.

What I can't determine is why the state filters out legitimate sites when it already has an acceptable use policy for its employees to follow.  In other words, why have a policy that allows for access to these sites if you are going to spend time and money creating filters that prevent access to it?  (The policy, in case you're wondering, allows for "research...[into] state and federal legislation and regulations as they pertain to the user’s State position; obtaining information useful to users in their official capacity.)

While I am certainly one to preach employer oversight in allowing employees to access the internet , this is prime example of overkill by an employer.  Blogs, for example, today represent a primary source of information for many -- particularly with mainstream newspapers being put up for sale or shrinking.  And lumping the SCOTUSblog in with Gawker, treats all blogs as if they were no more than gossip pages.  (And since when should the New York Times blogs be blocked?)  Moreover, blocking useful websites such as Findlaw should offend taxpayers in the state. Why would the state block access to a site that contains helpful information? 

The CHRO and other state agencies should re-evaluate their internet filters.  Making sure that state resources aren't being used to allow access to pornography is laudable; having those same filters prevent employees from accessing useful information is not.  And if you don't trust your employees to follow an acceptable use policy, why have one to begin with?

For private employers, take heed. In the quest to protect the company from liability for sexual harassment claims and to improve productivity, are you taking away the very tools that the internet can provide to your employees to succeed? If so, you've just made your competitors very happy. 

(For state workers and others who still want to access this site but are blocked at work, you can subscribe via e-mail or use RSS feeds, through a link here.)

[Ed. Note: An earlier version of this post indicated that the state also filtered Findlaw.  Although that fact had been confirmed through multiple sources, it appears that the ban on Findlaw was recently lifted and employees may access that site. This post has been updated to correct that information.]

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The Society for Human Resource Management (SHRM) has an article out today on their website (subscription may be required) about the effect that same-sex marriage laws and rulings are having on employers. The article compares California's Proposition 8 initiative with Connecticut's recent decision legalizing same-sex marriages. 

As you will see, the reporter was kind enough to talk with me about the issue. Although I discussed some of the similar themes I've raised before, the contrast with California is pretty striking. 

“Same-sex marriage in Connecticut is here and very likely is here to stay,” Daniel Schwartz, an attorney with Pullman and Comley in Hartford, Conn., told SHRM Online Nov. 18. ...

However, Schwartz also noted that since Connecticut already had a civil union law, “this isn’t going to change that much if employers have had employees who have entered into civil unions.” From a practical point of view, employers need to give employees who have entered into civil unions the same benefits as they would to married couples, he explained.

He went on to say however, that where the differences may come is that “there are a lot of employees who did not enter into civil unions who will now get married.” He advised employers to take three steps in light of the change in the law:

• Review polices and make sure that they are non-gender or sexual orientation specific to account for same sex marriage. How do you do that? Use terms like “spouse,” instead of “husband and wife.”

• Update any anti-discrimination provisions to reflect that fact that employees who are part of a same-sex couple won’t be discriminated against.

• Look at benefits. Get a grasp on what the change will do to benefit plans. Look at how insurance companies are dealing with the new law. Make sure that summary plan descriptions and other documents (governing non-ERISA benefits) take into account same-sex marriage.

 

There's a lot more in the article, so check it out here.

While you're at it, be sure to check out the rest of SHRM's website, which is in the midst of a pretty big overhaul. There are some great resources available and it's always a pretty good source of information regarding legislative developments as well.

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The Connecticut Appellate Court today ruled that an employer did not wrongfully discharge an employee who refused to participate in a return to work medical examination.  The Court held that the Americans with Disabilities Act (ADA) allows for medical examinations in certain situations and that the employer was justified in asking for one in this case. 

In Joyner v. Simkins Industries, Inc., (officially released November 4, 2008) (download here), the discharged employee claimed that the employer violated the public policy underlying the ADA by requiring her to undergo a return to work medical examination.  Under the "wrongful discharge" theory, she contended, she should not only be allowed to proceed with her claim but prevail on it as well.

(Notably, the Appellate Court doesn't explain why the wrongful discharge claim -- which is a narrow exception to the employment-at-will doctrine -- is the proper vehicle for such a claim when the employee might have explored a direct ADA claim.  I'll followup on that issue in a future blog post.)

The Appellate Court found that under the ADA (42 U.S.C. 12112(d)), employers must show that the medical examination is job-related and consistent with business necessity.  The Court said that federal circuit court decisions that have held that "business necessities may include ensuring that the workplace is safe and secure or cutting down on egregious absenteeism."  Here, the Court said that the employer had a legitimate interest in following up due to the vagueness of various notes and the employee's refusal to discuss the matter with her employer.

What was helpful for the employer in this situation was a policy in the employee handbook that provided for medical examinations -- at the employer expense -- in certain situation.

Thus, the takeaway for employers from this case is three-fold:

• Use this case as an opportunity to review your existing policies and procedures on return to work medical examinations;
• When employees refuse to return to work from absences or provide only scant documentation, consider using medical examinations to force the issue;
• Understand what is -- and is not -- allowed under the ADA regarding issues of return to work and medical examinations.

As always, the specific facts of the situation are important so consult with an attorney if you have any questions that arise.

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So what's going to happen after the election with various employment law proposals? Well, you'll have to wait for the election to really see what happen at a federal level.  After all, part of it still depends on who is elected to the White House and how many seats the Democrats control in Congress. 

(If you're really curious, I'll be putting on a breakfast roundtable at my firm with my partners Peg Sheahan and Bob Mitchell on November 11, 2008 at our offices. More information about the program is available here.)

But in Connecticut, there are several issues that made an appearance in the General Assembly that are likely to be revisited.  This will be particularly true if the Democrats can pick up a few seats and push their majorities to "veto-proof" levels, meaning they can override any veto by Governor Rell.

•  First and foremost, the Paid Sick Leave bill raised earlier this year will no doubt be back.  It died on the Senate floor last year and was not voted on.  If the Democrats pick up enough seats to "veto-proof" a possible veto by Governor Rell, this might have a greater shot at passage.
• Another bill that was not brought up for a vote was the Whistleblower Protection bill.  The bill would have made it easier for state workers to claim that a change in their employment status was "retaliatory".  (The state already affords a good deal of protection to state whistleblowers.)  The bill was spearheaded by Attorney General Blumenthal.  If he announces a run for Governor after this election, could this bill be the type of bill he pushes to support his stance? Perhaps, but there also does not seem to be any particular type of group actively supporting this, unlike the paid sick leave bill.
• Two other bills -- one that would have prohibited Workplace Bullying and another that would have permitted employers to pay their employees by debit card -- may also see another review. 
• In light of the Supreme Court's ruling approving of same-sex marriages, it will also be interested to see how far bill to expand the state's anti-discrimination laws to cover gender identity.  My preview of the bill from last year is available here. 

I've also heard that a proposal to move some of the states' hearing officers or human rights referees under a central "administrative hearing officer" umbrella may get a look at.  The CHRO also has an agenda of items that it will seek legislative approval of. Its' recap from 2008 is available here. 

With all of the focus that the media has on the Presidential race, It's easy to forget that the elections next month will be critical to setting legislative agendas in Connecticut that may have a far greater impact on Connecticut businesses than the national races. 

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One of Connecticut's many nicknames is the "Constitution State", so named for the state's adoption of the first state Constitution. (Delaware holds the distiction of the first state to ratify the U.S. Constitution for those history buffs).

But on the ballot in two weeks is a question asking if the state should hold its first Constitutional convention in over 40 years.   For employers and others, serious consideration should be given to the question and I suggest the Ct Votes No website for information on the reasons why voting "no" is a good idea.

Among the possible changes that could come about at a Constitutional convention -- a voter referendum/ballot initiative law or elimination of same-sex marriages.  But perhaps most troubling, constitutional convention delegates can propose anything without citizens or even our legislators having a vote in the final outcome.  And when Constitutional Guru Wes Horton opposes it, you know something is troubling with the referendum.

The Connecticut Law Tribune's Advisory Board (subscription required) has this editorial telling voters to vote no:

 There is no similar circumstance in Connecticut in 2008. Without some overwhelming need for a constitutional convention, such a convention could easily be dominated by single-issue special interest groups. If zealous groups do not get what they want from the legislature or the governor or the courts, they could put the issue to the convention. ....

 

Stability and tradition and established rules must occasionally yield when a major upheaval in society creates a need for a new or radically reordered system. ... The constitution currently in effect was created by the Constitutional Convention of 1965, called because the traditional legislative election system in Connecticut was clearly out of compliance with the federal one-person, one-vote requirement.

 

Representative democracy is messy, it can be slow, and it can be vulnerable to special interests, but it is not accidental that this country is a beacon in the world today in part because of the strength and stability of its political and judicial institutions. But a constitutional convention can trump all that. This is why such a convention should be called only when a crisis requires it. No crisis requires it, so voters should vote “No.”•

There have been several Connecticut and legal-related blogs discussing this including A Public Defender (here) and (here), the New Haven Independent with a great report (here).

For employers, this issue -- on its face -- may seem wholly unrelated to them. It's not.  One of the most likely outcomes of a Constitutional convention is a ballot initiative/voter referendum that again -- on its face -- seems innocuous as well. But a look at the issues on the ballots in other states shows that voters are being asked.  For example, Colorado had various constitutional amendments on its ballot (later withdrawn) that would have, for example, protected all employees from termination except for "just cause".

For full information on how this upcoming election can affect state businesses, the CBIA's website -- www.ctbizvotes.com -- is a great place to start.  (For prior posts on election day issues for employers, see here and here.) 

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The Connecticut Supreme Court in a 4-3 decision today overturned the state's ban on same-sex marriages.  The ruling in Kerrigan v. Commissioner of Public Health (download majority opinion here) is ground-breaking, breathtaking and warrants all employers' full attention. 

All the major media outlets such as the New York Times and the Hartford Courant already have good coverage of the case, which has been years in the making.  Blog coverage is picking up with a post from A Connecticut Law Blog and Workplace Prof Blog, among those analyzing the case.

Because I'm traveling today, I'll post a further update early next week after I've had a chance to digest the full decision (85 pages) and all of the dissents but I've been trying to determine the immediate impact for employers in the state.

The short answer is that I'm not yet convinced that the decision is going to have a big impact for employers in the state. (Its impact in other areas is a different question.)

Many employers are already prohibited from discriminating on the basis of sexual orientation and have had to provide benefits to those who are involved in civil unions (to the same extent as married couples), so I don't think the decision is going to have as big an effect in the workplace as it will in other facets.  In fact, in the court's decision, it cites to the anti-discrimination state law provisions as support for its believe that being gay or lesbian is a protected class deserving of equal protection.

Given the "so what" nature that civil unions have had in the state for employers, it'll be interesting to see the real effect for employers. Obviously, same-sex spouses will now be eligible for certain employment benefits but there hasn't been a huge uproar from employers from the civil union law passage. So I suspect for many employers, the true impact is likely to less than in other areas of the law.

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Sunday is officially Columbus Day. But across the country and in Connecticut, the second Monday in October is the day we celebrate the holiday.

Last year, I wrote a post on the day and why most people are working on that date. Given the relevance of the post again this year, I reprint it below (with some slight updates).

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 a federal law, 5 U.S.C. Sec. 6103. Besides being a federal holiday, its a state holiday too.  So, if you work for a federal or state employer in human resources, or otherwise, you have Monday off.  (As a result, lots of Columbus Day sales are going on too.)

If you are a private employer, you probably don't give your employees the today off.  In fact, a recent survey in California pegged the number of employers giving off for Columbus Day at just 7.8 percent (it ranked above Lincoln's Birthday and below Good Friday). 

Although companies have established holidays, why don't employers have to close on a state or federal holiday? Its pretty straightforward.  The U.S. (unlike some other countries) does not have any "national" holidays.  Indeed, just because the government recognizes a legal holiday doesn't mean that private employers have to follow it. (Other examples include Veteran's Day and, here in Connecticut, Good Friday).  The State Department has an interesting summary of each of the days on their website. 

Legal holidays merely dictate what the government is going to do; how the rest of the country chooses to follow the holiday is up to them.  And yes, that means that you could conceivably make your employees work on Memorial Day or 4th of July (of course, if the company is a service industry, they probably require employees to work today).  But it probably isn't good business practice as employees will flock to those employers who do give off those holidays.

What is a good business practice for Columbus Day now? I would argue that if the employer is going to designate 8-10 days a year for holiday, employees would rather one or two of those days be designated as a floating holiday rather than Columbus Day.   Giving your employees a choice of days is a terrific way to give an added benefit that has the advantage of allowing the employees an choice in their favor.  Thus,most employers just take a pass on designating Columbus Day a holiday. 

The Knights of Columbus, which is based in New Haven, Connecticut, would probably disagree.  But you can visit their museum to learn more about Christopher Columbus. Of course, don't go on Columbus Day: the museum is closed.

Clip art licensed from the Clip Art Gallery on DiscoverySchool.com.

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For employers in Connecticut, this isn't exactly the best of times. But it isn't the worst of times either. That seemed to be the message of a variety of economists at a conference I attended yesterday sponsored by the Connecticut Business & Industry Association.

In fact, a CBIA survey released yesterday (and sponsored by Blum Shapiro) found that a slight majority of Connecticut businesses responding expect growth over the next year but that executives were neither "overly positive nor negative about business conditions for their companies".  Several economists pointed out at the conference that Connecticut has fared better than the rest of the nation over the last year and that the state is much better off than the recession of the early 90s when nearly 160,000 jobs were lost in the state.

The mixed messages were discussed both at the conference and can be found in the survey too.  For every number that was raised as a positive, another number could be found as a negative.  For example, 67% of employers added new jobs last year, but 61% of employers are also coping with workforce shortages.  

As a result, the survey concludes that "to stay productive and competitive, employers may need to try new approaches to recruiting employees and developing and retaining incumbents."

A representative from AT&T at the meeting suggested that one option may be telecommuting and he relayed the fact that AT&T is going to have nearly 2000 employees off the roads soon with telecommuting.  But for other employers, other solutions are going to need to be explored.  Working with legal counsel can ensure that these options don't create more problems than they solve (such as overtime issues, etc) but these types of issues are also going to require more than just legal advice.   As always, the businesses that can adapt quickly to these changes are the ones that are most likely to succeed in the long run.

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You may hear about an increase in the federal minimum wage today from $5.85 to $6.55 per hour.   If you do, you can ignore the news in Connecticut because it will not have any effect on workers here.

If a state law puts the minimum wage rate higher than the federal minimum wage, state law applies.  (To see if your state may be covered, check out a variety of websites, including this recent post by the HR Daily Advisor Blog.)   

In Connecticut, our minimum wage is currently at $7.65 per hour, so Connecticut law applies.

And Connecticut's minimum wage rates will continue to exceed the federal minimum wage for the foreseeable future.  As a result of a new law passed last month, Connecticut's minimum wage will increase to $8.00 per hour on January 1, 2009 and to $8.25 on January 1, 2010.   

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Word came down late yesterday about an important case for employers that have California-based employees. 

The case, Brinker Restaurant Corp. v. Hohnbaum, is the first California appellate case to rule on the parameters of employers' duties under California laws requiring rest and meal periods.  The California Workforce Resource Blog has the details, as does the What's New in Employment Law Blog.  For an employee-based perspective, the Wage Law blog also has a good summary as well.

Why do I bring this up in a Connecticut blog? For a few reasons. First, there are several Connecticut employers that have California employees, whether through sales or otherwise. Second, California tends to be on the cutting edge of some legal issues. With nearly 36 million people (or roughly 10 times the population of Connecticut), those issues just tend to pop up more than in a small state like Connecticut.

Third, the case provides a good opportunity to highlight the Connecticut meal period law -- an underappreciated law that lays out what is necessary and is much different than California.

Connecticut's law is found at Conn. Gen. Stat. 31-51i and states:

(a) No person shall be required to work for seven and one-half or more consecutive hours without a period of at least thirty consecutive minutes for a meal. Such period shall be given at some time after the first two hours of work and before the last two hours.

In plain English, what this means is that if an employee works a 7 1/2 hour shift, they are required to be given a 30-minute break for a meal.  For an employee working 9-5, the meal period must be between 11 a.m. and 3 p.m.

There are exemptions to requiring this meal period but, for the most part, it's going to be good business practice to allow for the meal period anyways.  However, there may be instances where a break is not feasible. The Labor Department recognizes an exemption if one of the following conditions is met:

1. complying with this requirement would endanger public safety;
2. the duties of the position can only be performed by one employee;
3. the employer employs less than 5 employees on that shift at that one business location (this only applies to that particular shift); or,
4. the employer's operation requires that employees be available to respond to urgent conditions, and that the employees are compensated for the meal period.

Note that this meal period applies to both exempt and non-exempt workers.  Employers who do not comply can be subject to some civil penalties.  While the law talks about a meal period, there is no requirement for a "rest" period in addition to this meal period. 

As others will surely note, each state has their own rules on meal period and breaks. Employers should not assume that what will work for one state, will work for another.  In Connecticut, the rules are not particularly onerous for employers and certainly all efforts should be made to comply with these particular rules.  

Photo courtesy Library of Congress , circa 1943 Clinton, Iowa

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Last week, I talked about a push by some state politicians to encourage more telecommuting and perhaps four-day work weeks among state workers.  The Connecticut House Republicans have even discussed it on their blog, House Rules.  The union representing state workers has also discussed the proposals in detail on its blog as well.

The Hartford Courant chimed in over the weekend with an editorial that encouraged state legislators to "conserve hot air by working together".  But ultimately, I suspect both sides will sit down and work on some proposal to address the underlying issues present. 

What continues to be fascinating about this debate is that path that some other states have chosen to go.  Delaware Employment Law Blog has interesting piece about Utah that is, understandably, somewhat critical of the proposal.  Utah is going to a mandatory four-day work week.  DELB also notes that Ohio didn't exactly have a great experience with four day workweeks before in a state experiment.  Will Utah's experience be different?

Aaron Newton sees things differently. In his post entitled "The Four-Day Workweek", he outlines the environmental case for a four-day workweek. (H/T Pennsylvania Labor & Employment Blog.) He then provides 16 reasons why this is an idea whose time has come.  It's a good primer on some of the issues related to a four-day work week. 

So what does the future hold? Using a trusty Magic 8-ball, the right answer to this issue is hazy.  For some employers, going to a four-day work week may make sense, but clearly for others, it won't. 

But one thing is clear: The issue is not going away and it would be beneficial for the state to at least look at the issue further.

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Six months ago, I predicted a renewed emphasis on reduction in force laws and regulations with the possibility of an economic slowdown looming.  With six months left to go in the year, I'm still feeling good (if you can feel "good" about such things) about that prediction. 

Is the economy still on the yellow brick road or are we walking deeper into the forest filled with lions, tigers and bears?

The statistics from the Equal Employment Opportunity Commission do not paint a rosy picture.  

The numbers of discrimination claims filed with the EEOC are up.  

And up by a lot.

In fact, the EEOC reported a 21 percent increase in charges for the first quarter of 2008, over the same period last year. 

So what can employers do? I talked a few weeks ago about one aspect of reductions in force -- namely compliance with the OWBPA (Older Worker Benefit Protection Act) and how compliance with that law can avoid one pitfall associated with a reduction in force. 

But another law that is commonly misunderstood is the WARN (Worker Adjustment and Retraining Notification) Act.  WARN is not a mandatory severance law; in other words, it doesn't mean that employers need to give employees severance when they are affected by a mass layoff or plant closing.

What WARN does require is that the employer give notice to employees who may be affected by a plant closing or mass layoff.  The Department of Labor has prepared this fact sheet for employers to answer some of the basic questions.   It is a law that is, frankly, fairly easy to comply with, and yet there are still some employers who are facing class actions for their alleged failure to comply. 

In addition to notice to employees, the employer must also notify the Connecticut Department of Labor of its proposed actions.  The state then posts them in monthly reports available here.  You can view July's report here.

What is fascinating about the reports thus far is that Connecticut has, as of now, avoided some of the mass layoffs that have plagued some of the other states.  The June reports for Connecticut show only 400 or so employees statewide who received WARN notices.  Moreover, numbers released over the weekend show that Connecticut employers have added jobs, not eliminated them.  Whether this trend continues will be an item to watch for in the second half of 2008.

In an upcoming post, I'll highlight some of the particulars of WARN in more detail.  Until then, try to avoid the fields of sleeping flowers.

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Let me preface this post by acknowledging the obvious: This upcoming story is a bit like watching a car wreck. You know you shouldn't look and it really doesn't have anything to do with you, and yet you can't help but stare.  The story of a new lawsuit probably doesn't merit a post, but some lawsuits are just too outrageous to leave alone.  And while I normally attach pictures to the posts, for reasons that will be obvious in a moment, I'm going to hold back on the pictures for this one.  (If you're really curious, The Smoking Gun has posted pictures though I caution that they may not be appropriate for your workplace.)

So what's the car wreck? A new lawsuit filed in federal court last week by a teacher who claims she was forced to resign after an appearance on the Howard Stern show. But it wasn't just "any" appearance, it was an appearance for a contest on the "Hottest Wife/Ugliest Husband".  CT News Junkie had the story on it a few days ago as did the Meriden Record-Journal.  Because it is picking up interest in some employment law circles (H/T Delaware Employment Blog), I'll add a bit of perspective on it. 

The lawsuit, filed by Marie Jarry can be downloaded here.  She alleges that on April 30, 2008, she called in sick to work. She worked as an elementary school teacher in Southington, Connecticut.  The next day, however, she appeared with her husband on the Howard Stern show.  She then alleges that the school day after she returned to work, she was told not to report to class.   She was told, allegedly, that she violated the "morality" clause of her contract and that she had also used a sick day (when she was not sick).  She alleges that she was then pressured to resign. 

She has brought claims against her employer under Section 1983 (claiming her procedural due process rights were violated), Section 1983 (for gender discrimination and violation of her equal protection rights), negligent infliction of emotional distress, and negligence (under Conn. Gen. Stat. 52-557n).    She has also sued her union under a claim of "duty of fair representation".  (The lawsuit claims it has seven counts, but there are only five listed).  All told, she has sued the Southington school board, her former union, and the school superintendent.  No appearance has been made for the defendants yet. 

In thinking about this case, I can't help but think of the irony of this case compared with a case down south last month which held that a female employee was subjected to a "hostile work environment" because of the "vulgar radio programming" in her workplace. And what was that vulgar programming? The Howard Stern show of course (you can read the court's fairly graphic discussion here). 

While the particulars of this case will play out in court, what is striking about the complaint is the unwillingness to acknowledge that the teacher bears any responsibility for what occurred. After all, the teacher called in "sick" (when she wasn't) and appeared in a bikini on a radio show that courts have noted for its "vulgarity".  Did the teacher really think that no consequences would flow from her actions? And what did she expect the school board to do? Ignore what happened?

It's hard to see from the facts alleged that the school system is in the wrong here.  (As I've cautioned readers in the past, however, allegations in a complaint are only that -- allegations -- and that nothing should be taken as a proven fact).  The school system heard about allegations of one of their teachers and after discussions with her about the appropriateness of her conduct (and the seriousness of the allegations), she resigned -- rather than face additional publicity and possibly a firing. 

For employers, the lawsuit is an example that even when the employer believes it is right in its employment decisions, it may still face a lawsuit for its actions.  Proper documentation and following procedures are steps that employers can always take to increase the likelihood that their actions will be upheld by courts later on, if lawsuits are brought. 

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It has been a while since I've run my "Four websites for..." feature, but because the blogosphere is certainly big enough for an assortment of views in the employment law area,  I'm pleased to pass on the names of a few new employment law blogs that I've heard about over the last few weeks.

• The first one is the Connecticut Employee Rights Blog, created by Hartford Attorney Richard Hayber.  Because Richard exclusively represents individuals, he'll bring a more narrow  focus to an employment law blog.  Richard and I have already been exchanging views and comments on some cases so I welcome Richard to the arena and encourage readers to take a peek at his blog.
  
• Another blog, HR Legal Source, started up by a group of Ohio lawyers, is designed to tackle current HR issues. They use some powerpoint presentations to make their point, but they seem poised to bring some of their insights into the area.  They report, for example, on an interesting case out of the federal Third Circuit Court of Appeals, that said that death threats and racial slurs may not be "direct" evidence of discrimination.  The author's e-mailed me last week about their developments and it too is worth a gander.
  
• The Delaware Employment Law Blog, which is run by a team of lawyers at Young Conaway Stargatt & Taylor, LLP, started recently and already they are churning out several posts on a near daily basis.  One of their most recent posts is entitled "Mommy Bias -- Truth or Fiction" and concludes that it is more fiction than real.  They are also kind enough to link to this blog which should count for something. 
  
• The last new blog for the day isn't really new; they just celebrated their 100th post.  But they haven't been in my radar screen and the blog's author was kind enough to drop me a line this week about it.  The blog, aptly titled Labor & Employment Law Blog, has two goals, according to its founders:

Our goals since day one have been (1) to provide relevant information and content about the many federal labor and employment laws that affect businesses and organizations, and (2) to offer suggestions that employers and HR professionals might wish to consider when creating or evaluating employee-related programs and policies or when faced with an employee issue.

With a broad range of material to cover and report on, HR managers and others will surely find something they can relate to in their materials.

UPDATE: No sooner did I publish this blog post, did I receive word that Michael Moore, now of McNees Wallace and Nurick has launched a new employment law blog as well. Moore's new blog is the Pennsylvania Labor and Employment Blog. It launched yesterday. Michael has guest blogged on this blog before and he has some interesting insights on human resource issues and employment law issues. It's worth checking out. 

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The State Senate late yesterday approved a bill that would increase the minimum wage in 2009 and 2010.  The bill (H.B. 5105), had previously passed the House and now moves to Governor Rell for her signature.

CT News Junkie reports that Gov. Rell has some reservations about the bill:

Gov. M. Jodi Rell is still uncertain about whether she would sign it. Rell’s spokesman Adam Liegeot said in an emailed statement, “While the governor understands the needs of minimum wage workers, she does not want to take any action that will negatively impact businesses and jobs in Connecticut, especially during this troubled economy. Governor Rell will take her time and review this bill closely before deciding what action to take.”

The bill, if signed, will increase in the minimum wage from $7.65 an hour to $8 an hour starting in January 2009 and $8.25 an hour in January 2010.  Assuming a 40-hour-work week, the average wage increase for those making minimum wage will be a little over $700 annually.

For most employers in the state, the bill will not have any impact because many workers receive more than the minimum wage.  For others who rely on workers at minimum wage, the bill could have a real impact; $700 or so per worker per year could affect those with thin profit margins.  However, others will certainly be able to afford the modest increase.

Although the bill did not have full bipartisan support, it did pass the General Assembly overwhelmingly. I would expect the Governor to sign the bill because a veto would likely be overturned by the General Assembly.

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With the legislative session coming to a close next week, developments are heating up at a fast and furious pace.  I'll do some quick updating and then provide a more through review when time permits.

First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements.  The Senate has been working off of some amendments as well, which can be located here.

The Hartford Courant has coverage here.   The CT News Junkie blog has a report earlier this week about it as well.

Second, the State Senate also passed amendments to the state's whistleblower law.  You can find my previous coverage here and you can view the Courant's coverage today of it here.

The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases.  The bill now moves on to the House for a vote. 

As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling.  The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.  As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?

Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward.  Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.

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In small states like Connecticut, at times it feels like everyone is separated by something less than Six Degrees. 

Ten years ago today, a troubled worker walked into the headquarters for the Connecticut Lottery and shot and killed four top lottery officials, before turning the gun on himself.  Although I didn't know anyone personally, others that I worked with did.

The New York Times article the day after the shooting tells a story that is as haunting and chilling today as it was ten years ago:

Angered about a salary dispute and his failure to win a promotion, a Connecticut Lottery accountant reported promptly to his job this morning, hung up his coat and then methodically stabbed and gunned down four of his bosses, one of whom he chased through a parking lot, before turning the gun on himself.

As the shots rang out through the hallways of the lottery headquarters here in this quiet Hartford suburb, witnesses and the police said, dozens of employees, some yelling, ''Run to the woods,'' headed into the brushy hillside surrounding the office while others dived into nearby ditches.

The gunman, Matthew Beck, 35, had walked into the executive offices, stabbed and shot one top official and shot two others -- saying ''bye-bye'' to one of them -- and then chased the State Lottery president, Otho R. Brown, several hundred yards into a parking lot. Mr. Brown, 54, stumbled as he ran, the police said, and just as officers arrived on the scene, they saw Mr. Beck fire a semiautomatic handgun at the executive, killing him immediately.

Within seconds, as two Newington police detectives approached Mr. Beck, he put the gun, a 9-millimeter Glock, to his right temple and shot himself, said John Connelly, the head of the state police.

In addition to Mr. Brown, the other victims were three of the most senior managers at the Connecticut Lottery Corporation, a quasi-public authority: Linda Mlynarczyk, 37, chief financial officer, of New Britain; Frederick Rubelmann 3d, 40, vice president of operations, of Southington, and Michael Logan, 33, information systems manager, of Colchester.

The Hartford Courant, in fact, won a Pulitzer Prize for its coverage of that event.  In light of headlines each month about various shootings at workplaces around the country, it seems foolish to suggest that this particular shooting led to massive changes here. But I think for many, it did change the way we think about workplace violence issues.

In hindsight, the employee exhibited signs of stress before the incident, even writing an angry letter to officials in the weeks prior.  After this incident, I'm certain there were some employers who took any threat by an employee much more seriously.  I'm not suggesting that more should've been done beforehand (I don't know enough about it to judge), but I do think that employers in the state were re-awakened to the need to have and enforce workplace violence policies.  Employee Assistance Programs seemed more prominent and discussions about guns in the workplace followed. 

Others have written about workplace violence policies and suggestions to follow. But on today's anniversary (on which the Governor has suggested a moment a silence at 8:45 a.m.), perhaps the best thing we all can do is simply to recall the events of that horrible day and resolve that the lessons learned from that day won't be forgotten.

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Recently, a colleague received an e-mail that suggested that all employers must post information that "lists employee's rights to health insurance under Connecticut Law."  When I heard about it, something didn't seem right.  After all, since when do employees have a right to health insurance in Connecticut (and, isn't that a heated topic of the Presidential campaigns?). 

So I started digging.  A peek at the Department of Labor website came back with nothing.

A search on Google for a "Connecticut Healthcare Advocate Poster" provided a link to the website of a company, Progressive Business Compliance, that does, in fact, sell a poster for $12.99 that appears to be on point.  The website page states specifically. "New Poster February 2008! Employers are required to display this poster.  Lists employee's rights to health insurance under Connecticut."  The website allows a viewer to buy this "Healthcare Advocate" poster directly from the site and it has a nice thumbnail picture of what the poster looks like.

Hmm. This seemed strange; still hadn't heard of the law..  But I wondered, why have I seen this poster before? So, I called the Office of the Healthcare Advocate, which is dedicated to serving Connecticut's health insurance consumer. 

And lo and behold, they were extraordinarily helpful.  A poster on rights to health insurance? Never heard of it, they said. But they do have a poster from the Managed Care Ombudsman that lists the services of the Managed Care Ombudsman.  It's required by Conn. Gen. Stat. Sec. 38a-1046.  Oh, and it's not new. It's been around since 1999.  It lists certain items that a health insurance policy must have -- if health insurance is offered.

Ding, ding! We have an answer!  There is no poster listing an employee's rights to  health insurance, only a poster regarding the services of the Managed Care Ombudsman.  And it's been around for a while (which is why it looked so familiar). 

So, I ask the OHA, can I download this poster from the website? Their answer was no but she graciously agreed to e-mail it to me.  (Don't ask me why it isn't on the website in this age of technology.)

And, she did. So, are you curious what it looks like? This is the poster that she e-mailed me. You can compare it to the thumbnail image available for sale on the PBC website and make your own judgment about it. (IMPORTANT DISCLAIMER: As with this entire blog,  I make no representation that this poster does, in fact, comply with the applicable law and readers are strongly cautioned to seek legal advice about whether their postings comply with applicable law.)  If you want your own poster, you can certainly contact the OHA at 1-866-HMO-4446.  Perhaps if enough people call them, they will even post it to the website.

This situation presents a good reminder tor HR professionals and company staff that it is always best to consult with an attorney about their legal obligations, particularly on posters.  And it reminds me of the (seemingly) old adage that just because it is on the Internet, that does not mean it's true.  It is always best to go to the underlying source to resolve any questions you might. And you might save a few bucks by doing so.

(4:30p UPDATE) See comments by Kevin Lembo, from the Office of Healthcare Advocate below regarding the poster.  There will be some further developments in this topic likely tomorrow.  Stay tuned. 

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A few weeks ago, I posted on a decision by the Connecticut Supreme Court that ruled that an order denying class certification is not an appealable final judgment. I said back then that the case, Palmer v. Friendly Ice Cream Corporation, gives employers and other defendants in class actions, "an important arrow in their quiver of defending against class action cases."

This week,the Hartford Business Journal discussed the case in some detail with some good information about the underlying claims raised by the wait staff. 

The dispute between the food servers and restaurants hinges on the differences in the hourly wages paid to waiters and other non-wait staff. Restaurants are allowed to pay waiters below minimum wage levels, reducing wait staff pay by a 29.4 percent “tip credit,” which is based on the assumption that waiters are expected to earn much of their income from tips.

Food servers claim that their wallets take a hit when employers assign them tasks that don’t include waiting tables, such as brewing coffee, rolling napkins or cleaning restrooms.
For that reason, servers employed by T. G. I. Friday’s and Friendly’s want to be paid for the extra tasks they perform while on the job, so they have been working together to form class-action groups to fight restaurants.

The reporter from the story happened to call me for my views on the case, which I was happy to share with her. You can check out my quotes from the story here.  

Without sounding like I'm trying to fawn over them, the HBJ really is an under-appreciated publication that fills a good niche on business news in the state.  If you aren't looking at their site, you are really missing out on some great little nuggets about Connecticut business.

The case also highlights the importance of following wage rules carefully. The application of a "tip credit" isn't exactly the easiest formula for employers to apply in practice. Employers who may pay under minimum wage for one reason or another should consider themselves targets for potential claims and should ensure that they are in full compliance with the wage and hour laws.

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Attorney John Williams is well-known in this state for his avid representation of various state workers -- particularly state police officials -- in discrimination matters.  Yesterday, he held a press conference to announce that he will be filing a class action lawsuit in a few weeks challenging the hiring procedures of the Connecticut State Police.

The Hartford Courant has the details in an article this morning:

Racism is so entrenched in the Connecticut State Police that basic hiring practices ensure only a few minority troopers will even enter a training class, never mind be promoted in the ranks, an attorney representing a black troopers' coalition said Thursday.  ...

Only candidates who score at least 85 out of 100 on a written test are chosen to continue training, even though the passing score is 65. That practice discriminates against members of minority groups, Williams said.

Public Safety Commissioner John A. Danaher III vehemently denied Williams' accusations and defended the department's hiring practices, saying they are fair and blind to race. He also said he has taken steps since becoming commissioner to recruit more members of minority groups, including reaching out to more colleges and forming a selections unit that is largely minority.

WTNH has this report on the subject, as does the AP.  Because the complaint hasn't be filed yet, it is too early to tell the exact legal theories and arguments that will be used in the case, but it appears to be following a well-worn path of what are known as "disparate impact" cases.

So what is "disparate impact"? Well, when most of us hear of discrimination cases, they are known as "disparate treatment" cases, not "disparate impact" cases. These cases allege that someone intentionally discriminated against them because of a protected class (race, gender, etc.)

"Disparate Impact" cases are something different.  LawMemo has a nice little summary in its blog:

Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another.

A good example, taken from the first US Supreme Court Title VII case on the topic: When hiring laborers, the employer required applicants to have a high school diploma. The diploma requirement screened out vastly more blacks than it did whites. Therefore, there was a disparate impact based on race, even though there was no intentional discrimination.

The Supreme Court said that once the employees proved a significant disparate impact, the burden shifted to the employer to prove that the diploma requirement had "a manifest relationship to the employment in question."

Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice "is job related for the position in question and consistent with business necessity."

The allegations being raised by Attorney Williams are similar. He appears to be saying that the decision to screen applicants based on their score of a written test has a disparate impact on black applicants.  The EEOC has issued some guidance on employment tests that shed further light on the subject:

Moreover, as the EEOC notes, in 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII.  UGESP provided uniform guidance for employers about how to determine if their tests and selection procedures were lawful for purposes of Title VII disparate impact theory:

UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity. These methods of demonstrating job-relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation.  

In general, disparate impact cases are typically long drawn out cases that rely, in good measure on statistical analyses by experts.  They are costly and time-consuming affairs.  Thus, don't expect a quick resolution to the claims raised in this new lawsuit.  Indeed, the State Police will likely spend lots of time arguing that the standards it uses are "job related" and "consistent with business necessity".   Who will prevail? Stay tuned....

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There aren't a lot of Connecticut legal blogs, so when a new one comes on the scene, the least I can do is a quick shout out. 

The Blog -- A Connecticut Law Blog -- describes itself as providing "Thoughts on Connecticut Law with a Side of Baseball".  Its author, Ryan McKeen, is an attorney in East Hartford, Connecticut.  He e-mailed me on Wednesday and it is nice to hear from a loyal reader.

Ryan is, however, a Red Sox fan.  Given that the Connecticut Employment Law Blog is Yankees territory, we'll let it slide since we've just begun Spring Training. Feel free to check out Ryan's blog.

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In yesterday morning's post, I indicated that people should be wary of drawing generalities from some recent decisions granting summary judgment for employers.  Indeed, I went out of my way to note that each judge has their particular way of handling employment discrimination cases.

I also highlighted District Court Judge Christopher Droney for his statement in his chambers practices that:

in employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court.

Of course, I could've also noted that just because Judge Droney believes that the motions need to be considered, that does not mean he will necessarily grant them. 

So what does Judge Droney do yesterday afternoon? He issues a ruling denying, for the most part, an employer's motion for summary judgment. Go figure.

The case, Spiotti v. Town of Wolcott, isn't particularly novel for the issues it brings (police officer claims that she was discriminated against because she was a woman and that her supervisor allegedly told her that she was ineligible for certain positions because she was a "mother").  The court did grant summary judgment to the individual supervisors, on the grounds that the statute only allows for claims against employers -- not individuals.  But that issue is pretty well settled now.

So, my message from yesterday remains even clearer today: summary judgment is certainly not dead as a procedural tool in this district -- but there is no hard and fast rule that it will be granted either.  And employers who believe that filing for summary judgment is the best decision in each case are kidding themselves over whether its truly the best course of action.

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For football fans in Connecticut, it doesn't get any better than this -- Patriots and Giants in the Super Bowl. With loyalties evenly divided in this state between the Giants and Patriots, interest in the Super Bowl will be at an all-time high. (My allegiance has always been with the Giants, particularly since Robert Kraft's tease of moving the Patriots to Connecticut in the late 1990s). 

And with such interest and enthusiasm, friendly wagering among friends will no doubt follow.  But what happens when those people want to bring such wagering into the workplace in Connecticut? The short answer is "Player Beware". 

In Connecticut, gambling and wagering is prohibited by various state laws, including Conn. Gen. Stat. Sec. 52-553 and 52-554.  There is no clear exception for "workplace" bets, or small bets. According to the statutes, a bet is a bet, regardless of where it is placed. (The obvious exceptions to this general rule are the Indian casinos in the state -- Foxwoods and Mohegan Sun.)

However, there is one well-worn exception to the "no gambling" rule.  Specifically, Conn. Gen. Stat. Sec. 53-278b states that people (not companies) are:

exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling. 

Thus, the language appears to create an exception to the idea of professional gambling -- if there is a "bona fide social relationship."  Would workplace relationships qualify for this exemption? That's obviously an open question.  Some might quality; others clearly won't.  As the Office of Legal Research for Connecticut's General Assembly stated in August 2007:

The law does not define “incidental to a bona fide social relationship”; the legislative history of the law does not indicate the legislature's intent in enacting the exemption (see House and Senate debate attached); and we found no controlling Connecticut court ruling on the meaning of the term as it pertains to gambling.

For employers, this exception does not apply however.  Clearly, by referencing only "natural persons" (meaning people, not "corporations"), the law is intended to only protect individuals, not employers, from prosecution.  Thus, company-sponsored Super Bowl office pools would appear to be out. (That goes for Oscar Award wagering too.)

But what about the smaller, employee initiated ones? Again, the statute's language focuses on "social relationships".  A few people wagering may appear to be better than a 100-person office pool.  However, there is no "sure bet" that a small office pool among peers will pass muster under review.  And thus, "Player Beware" is the surest answer to this.

Is there any real likelihood of prosecution? Probably not. It does not appear to be a priority for enforcement. But for employers in the state, that doesn't mean it should promote such pools either.  Having a clear and established policy on gambling (that would include, for example, a prohibition of company computers to help run such a pool) may be a good start to avoiding further issues down the road.

For background on office pools in general, some posts have already gotten a jump start on the topic.  John Husband, of the Colorado Employment Law Letter, has a fun article on the subject here.  Despite lawyers' tendency to be cautious on the subject, Husband reminds us that office pools can be more than simply money:

As with many aspects of employment law, there is no clear-cut rule regarding workplace gambling that will fit every company and every situation. Office pools, Oscar pools, and group lottery tickets often constitute significant ways that managers build camaraderie and teamwork and relieve employee stress.

Perhaps, over the next two weeks leading up to the Super Bowl, instead of worrying about office pools, employers in Connecticut can have fun with the topic.  Nothing in the law prohibits Super Bowl parties, and displays of team spirit in the workplace.  Imagine a workplace "rally" where employees can cheer on their favorite sport with the employer giving away football-related gifts. That certainly would build workplace morale.  Enjoying the time leading up to the Super Bowl is something that I think all football fans in the state can agree on. 

UPDATE 1/30: Attorney General Richard Blumenthal recently chimed in that he viewed office pools as okay, so long as the house did not profit from it.  “Office pools are generally legal unless they’re done for a profit by the person organizing it,” Blumenthal said. “In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

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In a few days, it will be Martin Luther King Jr.'s birthday, January 15th.  And next Monday, January 21, 2008, is officially recognized as the federal holiday as the third Monday in January.  It is also a state recognized holiday in Connecticut as well the other 49 states, in some fashion or another.   So, if you work for a federal or state employer in human resources, or otherwise, you are going to have a day off (obviously, our state police and others never get a  "day off").

Connecticut's Martin Luther King, Jr. Holiday Commission has historically had a ceremony that commemorates the day.  That continues this year and information regarding the ceremony can be found here and also here.  The Commission receives counsel and support by the CHRO and the statutory basis for the Commission is found here. 

The birthday has lots of symbolism in the labor and employment world.  Much of today's civil rights laws have their foundation in the Civil Rights Act of 1964.  I won't turn this into a history discussion or debate, but suffice to say that King's famous "I Have a Dream" speech and his actions both before and afterwards played a major role in the passage of this bill. 

If you are a private employer, odds have become greater over the years that you give your employees the day off.  A survey in 2007 reported that nearly one-third of large employers give the day off.  I would expect a similar number this year. 

So, the obvious question that I'm often asked is -- if it is a state and federal holiday, why do I have to work? The answer is fairly simple, however.  The United States (unlike some other countries) does not have any "national" holidays. Just because Connecticut or the United States recognizes the day as a legal holiday, employers are free to choose whether to remain open or closed. In case you are curious, the State Department, of all places, as an interesting summary of each of these ten federal days on their website. (In 2009, federal employees in the Washington D.C. area, will also get off January 20, 2009 as a result of "Inauguration Day.")

So, in essence, what the federal and state government does is merely a guide to private employers. . But if employers did not give off certain days, it is a sure bet that employees would flock to employers that did.  It would be hard to imagine an employer surviving with a motto of "No Paid Holidays! in their recruiting materials.

Ultimately, I believe that designating MLK Day as a holiday for private employers -- as with other federal holidays -- is a decision best left up to employers.  In essence, let the marketplace decide.   Certainly, giving the day off allows an employer to tout its commitment to diversity and civil rights with a little more force (though I'm hardly suggesting that giving the day off is a prerequisite for doing so.)  Some employers will instead fashion a compromise by giving employees some "floating holidays" for days such as this. 

Whatever your company decides, it's a good idea to explain to your employees the reasons for your decision. Feel free to post your company's decision below to give our readers some perspectives on the day.

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During the holiday period, the Second Circuit issued a long (and I do mean LONG -- 77 pages!) decision regarding whether Connecticut corrections officers could belong to the Outlaws Motorcycle Club. 

The Second Court upheld the dismissal of First Amendment and other constitutional claims brought by several fired corrections officers who had challenged their firings. They contended, in Piscottano v. Murphy (download here) that their participation in the Club, which the government regards as a criminal enterprise, violated their rights to Freedom of Association.  The Court rejected that claim.  (The Hartford Courant's report can also be read here.)

Wait a Second Blog, has the initial details:

As the Court of Appeals likes to do, it uses this case to flesh out the state of the law on the right of association under the First Amendment, outlining how the Supreme Court has made it easier over the years to allow the government to restrict certain First Amendment freedoms among public employees.

The Court of Appeals first reviewed the Supreme Court's latest pronouncements on the regulation of a public employee's outside activities. Citing San Diego v. Roe, 543 U.S. 77 (2004), the Court stated that the government has leeway to discipline an employee whose outside speech or associations are detrimental to that operation. It is true, the Second Circuit held, that the plaintiffs in this case engaged in a "protected" association with the Outlaws in that their involvement with the organization raised a matter of "public concern" under the First Amendment. This is because, while the Outlaws Motorcycle Club does not as an organization engage in "public concern" speech, that organization's questionable existence itself would raise concern among the public.

But while "public concern" speech is protected by the First Amendment, the analysis does not end there. The government can still win the case by showing that this associational relationship can hurt governmental operations. Since the plaintiffs are corrections officers associating with an organization with a mission at odds with law enforcement, they can be fired for that association, overriding the First Amendment claim. Moreover, since membership in a large and non-selective social club like the Outlaws does not represent the kind of intimate (family) relationship for which you cannot be punished at work, the right of "intimate association" under the First Amendment does not help the corrections officers, either.

There are a few other notable aspects to the case to point out briefly.

• The case was argued in February 2006 -- thus, the case took nearly two years to decide. The next time you have an appeal before the Second Circuit, don't presume the wheels of justice will move quickly.
  
• It appears to judges focused to some extent on the corrections officers' denials of their knowledge of the criminal activities of the Outlaws group and their seeming denials of actually participating in the group:

In sum, on this record, we think it plain that Piscottano,Kight, and Vincenzo, by, inter alia, repeatedly consorting with the Outlaws and wearing Outlaws colors and apparel in public--even at such times as they were not members of the Outlaws--engaged in expressive activity approving of the nature of the Connecticut chapter of the Outlaws, of the national Outlaws organization, and of other Outlaws chapters.

The fact that law enforcement agencies believe the Outlaws and many of its chapters engage in criminal activity is sufficient in itself to make the nature of those entities a matter of public concern.

• An interesting question is whether courts would come to the same result for a private employer. After all, Conn. Gen. Stat. Sec. 31-51q purports to apply the reach of some constitutional claims to private employers.   It is plain from reading the decision that the particular position held by the corrections officers (semi- law enforcement) was a factor in the Court's decision.  Would the Court reach the same result for a newspaper delivery person?  That's simply an open question at the point.  But at least under Sec. 31-51q, the employer would have an additional defense that such actions may "substantially interfere" with the employee's performance or the working relationship.

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With the Iowa caucuses tonight, and the Connecticut primaries just one month away, it's a good time to start paying attention to what the elections of particular candidates would mean to various labor & employment laws.

John Phillips, at The Word on Employment Law, has just saved all of us a lot of trouble by summarizing it in a long, but worthwhile post here.  John even makes a few predictions:

–If a Democrat is elected, an early effort will be made to ensure passage of the amendment making discrimination on the basis of sexual orientation illegal. In second place is an increase in the minimum wage.

–If a Republican is elected, there will be no early action on a labor and employment issue. In second place is nothing.

–If a Democrat is elected, a more long term goal will be the passage of the Employee Free Choice Act. Unless the Democrats significantly increase their majority in both houses of Congress, this will be rough sledding. In second place is an expansion of the FMLA.

–If a Republican is elected, a more long term goal will be changing the Fair Labor Standards Act to permit comp time to be substituted for overtime. Unless the Republicans regain control of Congress, this change is unlikely to happen. In second place is a bill to encourage the government and business to work together to give American employees new skills to compete with foreign competitors.

When it comes down to it, the big differences in the candidates remain along party lines; Democrats would typically favor legislation supporting unions while the Republican candidates would not. No real surprise there. 

But some candidates are more enthusiastic about some issues than others.  It is these types of differences that voters should start to think about if they are interested in labor and employment law issues.

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We all love surveys and rankings.  From Family Feud to U.S. News School Rankings to American Idol - we love to know who is up, who is down, who is the best and who is the worst.

But some surveys and rankings just don't add up.  Last week, a group calling itself the Alliance for Worker Freedom, ranked each state on an Index of "worker freedom".  (The group, according to its website, "was founded in 2004 to combat anti-worker, pro-union legislation and educate the public about the plight to protect workers rights.")  It contends that the "2007 Index of Worker Freedom (IWF) is the first state-by-state comparative study that measures the level of worker freedom by analyzing actual policy as well as quantitative state data."

And how does Connecticut rank, according to the survey? Survey says: Dead last, with a letter grade of "F". 

What does this mean? Beats me. I can't make any sense out of it.  For example, the state receives zero points because its minimum wage is above the federal minimum wage. Huh? Certainly, in Connecticut, where the cost of living is much higher -- it hardly seems "anti-worker" to have the minimum wage be $7.65.  And Ohio, which has a higher percentage of union workers than Connecticut, receives a "C+", so go figure.

And therein lies the tragedy with surveys like this. They do little to educate the public about the labor and employment facts of a particular state, relying only on an easy to remember "grade system".  

(Hat Tip: Workplace Horizons)

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