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

The United States Department of Labor late today issued a new interpretation of what a "son or daughter" is under the federal Family and Medical Leave Act (FMLA) to make it clear that an "employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship."  You can download the administrative interpretation here. 

The practical effect of the regulation is that "non-traditional families", as the Department has termed them, " including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones", will now be covered in a limited fashion under the federal FMLA.

According to the Department's press release:

"No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill," said Secretary of Labor Hilda L. Solis. "No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

How can the DOL do this, you might ask? Well, the statute already provides coverage to children of a person standing "in loco parentis". Because the DOL has the authority to interpret this phrase, the DOL has now said that so long as a person is acting as the child's parent, that person can be covered under the FMLA.  As the DOL notes in the guidance, "There is no specific set of factors that, if present, will be considered to be dispositive in determining in loco parentis status."

A few items of note, particularly to Connecticut employers:

• This only applies for care of a son or daughter; it does not allow an employee to take FMLA leave to care for a gay spouse or civil union partner.  
• Connecticut already had this protection in place (and in fact, it's broader) under the state FMLA law. 
• Many employers also already cover this type of leave and have their own FMLA policies that cover various types of "non-traditional families", including civil unions.  Employers have been free to adopt a FMLA policy that is broader than that required by law.
• This only affects traditional FMLA leave; as the DOL is quick to note, this does not address an employee's entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions. See 29 C.F.R. Sec. 825.122(g),(h).
• There are other implications as well. Because of divorces, the new DOL interpretation could allow a child to have four "parents" under the statute if each parent in the divorce remarries, for example.  All that is required is a "simple statement [from the alleged parent] asserting that the requisite family relationship exists." 

So, while this may cause a stir around the country, I anticipate the impact on employers in Connecticut to be fairly minor.

 

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The United States Department of Labor today released a new "Administrator's Interpretation" concerning the donning and doffing (or, in plain English, typically putting on and taking off) of clothing at the beginning and end of each workday.  You can download the notice here.  Under the FLSA, “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time under the FLSA.

In its new interpretation, the DOL has redefined the definition of "clothes" to exclude protective equipment required by law.  As a practical matter, this means that if employees have to put on or take off certain protective gear to comply with safety laws, for example, the employee must be compensated for the time spent doing that task.  If they are just putting on or taking off a uniform, for example, different rules would apply and it would likely fall within the exemption to the FLSA stated above. 

This changes what the most recent guidance had been from the DOL:

Based on its statutory language and legislative history, it is the Administrator’s interpretation that the § 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job. This interpretation reaffirms the interpretations set out in the 1997, 1998 and 2001 opinion letters and is consistent with the “plain meaning” analysis of the Ninth Circuit in Alvarez. Those portions of the 2002 opinion letter that address the phrase “changing clothes” and the 2007 opinion letter in its entirety, which are inconsistent with this interpretation, should no longer be relied upon.

The DOL has also indicated that changing clothes can be a principal activity which means that any walking or waiting that occurs after that time period before the employee "officially starts work" will actually be treated as part of the continuous workday (and thus deserving of compensation):

Consistent with the weight of authority, it is the Administrator’s interpretation that clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable. The Administrator issues this interpretation to assist employees and employers in all industries to better understand the scope of the § 203(o) exemption.

(Thanks to my colleague, Jon Orleans, for the tip; Photo Courtesy of Library of Congress)

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With the Department of Labor's crackdown on unpaid interns continuing this year (for background, see my prior post), it seems appropriate to delve into the topic in some more detail.  

Fortunately, I've been asked to join The Proactive Employer in a podcast on the topic on Friday morning.  Details and signups are available here. 

So what will we cover in the podcast? In this installment, we’ll be discussing internships, the potential risks of unpaid internships, and how employers can provide internship opportunities while minimizing litigation risk.  The host is Dr. Stephanie Thomas, who the Director of the Equal Employment Advisory and Litigation Support Division(EEA/LS) of MCG International.

In the meantime, if you're interested in getting started on this issue, take a look at this publication from the Department of Labor, which addresses a whole host of topics. 

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UPDATED

In a decision sure to send chills to employers with small branch offices in Connecticut, a Superior Court judge recently ruled that an employer's out-of-state employees must be counted in figuring out if an employer is subject to the state's FMLA rules.

Employers with 75 or more employees nationwide that have just one employee in Connecticut, may now be subject to Connecticut's FMLA rules for that Connecticut employee. 

This has huge implications for employers with small branch offices in Connecticut that, in the past, were not viewed as being covered under the state FMLA. It also has implications for employers based in Connecticut with less than 75 employees here but that have out-of-state workers. 

Here's the context:

Under federal FMLA law, an employer is subject to the FMLA when they employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.  But only certain types of employees are covered: The employee must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

In Connecticut, things are a little messier because Connecticut has its own version of FMLA that overlaps at times with the federal one.  Under CTFMLA (Conn. Gen. Stat. 31-51kk(4), an employer "means a person engaged in any activity, enterprise or business who employs seventy-five or more employees."  The language of the Connecticut law, however, does not have the same limitations on the "75 miles of the worksite" language found in federal law.

Nonetheless, the Connecticut Department of Labor has long taken the position that only Connecticut employees should be used in the calculation of determining whether a company is an "employer" under CTFMLA.   Part of that arises from the fact that it seems natural to conclude the Connecticut only has jurisdiction over the part of the employer that is actually IN Connecticut.

But the Superior Court's decision is Velez v. Mayfield throws that analysis up in the air (download here.) (H/T Law Tribune.)

In Velez, the Court overturned the Labor Department Commissioner's decision approving of a hearing officer's ruling. In doing so, the Court concludes that the DOL has made an "error of law."  It does so by concluding that the legislative history and the language of the statute itself require that all employees of an employer must be included, not simply those that work in Connecticut:

In light of the purpose behind the 75-person exemption, the court cannot interpret the term "employee" as restricted to Connecticut employees so as to prohibit multi-state linking of employees. Such an interpretation would not only ignore the purpose of protecting Connecticut's small employers but also skew  the exemption in favor of entities that employ few Connecticut residents but have large numbers of personnel in other states.

Although this decision is likely to be appealed, its implications are potentially huge because, if allowed to stand, it would now provide leave rights to a group of employees who have never been understood to have those rights before. 

Here's an example of how this decision might work in practice:

Suppose an employer has 2 employees in each of the 50 states.  Although the employer has 100 employees, none of those employees would be eligible for FMLA because of the worksite rules in the FMLA.  However, those two Connecticut employees would now be eligible for Connecticut's FMLA because under Velez, the employer would be deemed to employ over 75 employees. 

For now, the decision is simply one Superior Court decision and it is unclear what the Connecticut Department of Labor's stance will be going forward pending a possible appeal.  Out-of-state companies with smaller Connecticut offices should certainly consult legal counsel however, to determine the possible impact that decision may have on the business and the approach that the employer wants to take in this time of uncertainty. 

UPDATE: I have since learned that the Connecticut Department of Labor does indeed plan to appeal the decision. Stay tuned.

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As if to say, "...And We Really Mean It", the United States Department of Labor continued its publicity campaign on the issue of unpaid interns by releasing a Fact Sheet this week on whether and when interns need to be paid minimum wage or be treated as employees.

If you recall, earlier this month, the New York Times ran an article on this very topic, which I discussed in an post here. 

Fact Sheet 71 -- entitled " Internship Programs Under The Fair Labor Standards Act" sets forth a six-part test to determine whether the individuals are more akin to employees, than interns.  As the Fact Sheet is quick to state, a determination will depend on all the facts and circumstances of the situation, but these factors are to be examined closely:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

As this post from the Ohio Employer's Law Blog on the subject points out though, the DOL is going to be skeptical of such arrangements. The DOL Fact Sheet states: 

[I]f the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work…. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA. 

As the summer season approaches, employers are now on notice that their use of interns is going to be under closer scrutiny than ever before. 

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It's a big holiday today. So, let me be the first to say: Happy Evacuation Day -- at least to my fellow blogger at Compliance Building.  To everyone else, a Happy St. Patrick's Day. 

Its been some time since my last look around the employment law universe, so here's some quick hits of what else has been going on this month:

• Last week, Congress held a hearing on pay equity.  The hearing focused on issues that relate to the Paycheck Fairness Act, sponsored by Senator Christopher Dodd of Connecticut. 
   
• The DOL has been beating the drum louder lately on the issue of employee misclassification. Our webinar on what's new in the area has been rescheduled to March 24th due to a court conflict.  In the meantime, you can play "20 Questions" on this issue with the Ohio Employer's Law Blog. 
   
• Law Tribune Columnist Karen Lee Torre has renewed her suggestion to eliminate the CHRO.  In a new twist, she criticizes the agency for allegedly allowing its employees to have a flexible work arrangement, as if that were unique to the agency or other employers: 

Another feature of the CHRO is its generous and unproductive employee work schedules. I remember getting steamed one time during a fact-finding investigation when we were told we’d have to come back on another day to finish up, even though it was mid-afternoon and we were but two hours away from concluding the evidence. The investigator had one of those democratic work schedules that allowed her to skip out in mid-afternoon to attend to one of her kids. I was forced to schlep to Waterbury again. Thousands more in fees on both sides because a normal work day is anathema to liberals.

• The U.S. Supreme Court has asked for the Solicitor General's views on the Connecticut case of Amara v. CIGNA, a significant case I've discussed at length before that discusses what the obligations are to make disclosures of changes to a pension plan. The Supreme Court is presently considering petitions from the company and the group of former employees that brought suit to take the matter.  A decision from the Supreme Court on whether to accept the petitions is expected by June 2010.
   
• Finally, are you looking for some new labor & employment law blogs to add to your reading list? The Workplace Prof blog recently compiled a list of such blogs.  It contains many of my must-reads in the morning. Take a peek. 

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It has been widely reported over the last month that the United States Department of Labor is planning some new initiatives to crack down on usage (or abuse) of independent contractors by companies. 

Several blogs have done a thorough job on reporting about it including the Delaware Employment Law Blog, Point Of Law, Florida Employment & Immigration Law Blog, and Minnesota Labor & Employment Law Blog. 

But beyond this, there is also talk about revising some of the exemptions to federal overtime laws, including the domestic service exemption for home health care aides, as discussed by the Prima Facie Law Blog. 

In short, 2010 is likely to mean further changes and focus on wage and hour laws for employers. 

What does this all mean for employers? For starters, it means its time for companies to do a hard look at their wage/hour practices and how they classify their workforce.  As one post stated: 

Don’t let your business get caught with misclassified employees. Review the business relationship between you and anyone currently classified as an independent contractor to prevent any litigation or penalties for your business.

Because it is such a hot topic, this month's installment of our webinar series will focus on these initiatives from the federal government.  The next webinar is set for March 17, 2010 at 12 p.m. EDT and, as always, is free of charge. You can sign up here.  My colleague, Joshua Hawks-Ladds (who currently chairs the Connecticut Bar Association's Labor & Employment Law Section) will lead the discussion.

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Department of Labor Commissioner Patricia Mayfield -- who had signaled that she was retiring as of February 1st -- died yesterday at her home in Waterbury of an undisclosed illness.  In her place, Linda Agnew, of West Hartford, will serve as acting commissioner.

The Hartford Courant has a full report on her life and accomplishments here.  And the Waterbury Republican-American does an admirable job providing some personal anecdotes about Ms. Mayfield as a person and leader. 

Ms. Mayfield has had to manage the agency in difficult economic times. Yet despite the challenges, in recent years there has been a noticeable uptick in the amount of outreach that the DOL has done to the public and to businesses. 

Indeed, as she noted in her website page, she touted the ability of the DOL to serve as a partner to the business community for "job-related consulting services, apprenticeship programs, recruiting services through the job bank and the One-Stop Centers, OSHA assistance, regulations, wage and workplace standards, rapid response to company downsizing or closure, shared work programs, and labor market information." 

The DOL's ramped-up use of the shared work program --- while not new -- has been ramped up over the last 2 years in response to the desire from employers to minimize job losses and keep continuity in their business operations.  That program has no doubt kept hundreds, if not thousands, of people from losing their jobs entirely.

Governor Rell's statement goes a long way to explaining what made Ms. Mayfield special:

Her distinguished career with the state of Connecticut stood as an outstanding example of dedicated public service and consummate professionalism...Pat Mayfield deeply cared for the people she served, and she made a difference in the lives of countless Connecticut citizens.

Well said.

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So, President Obama signed a bill that extends the COBRA subsidy. No big deal, right?

Well, not exactly.

First, let's go over what's in the final provision:

• The eligibility period to receive the COBRA subsidy has been extended two months -- to February 28, 2010. That means that individuals who have been laid off recently who were going to start on COBRA on 1/1/10 are now eligible for COBRA.
• More importantly, the COBRA subsidy period (i.e. the time that individuals can get the government to subsidize part of the cost of the premium) has now been extended to 15 months (up from 9 months.)
  
  • This means that individuals who are currently receiving the COBRA subsidy are eligible to have it continue.
  • Individuals who had reached the end of the reduced premium period before the legislation extended it to 15 months will have additional time to pay the reduced premiums related to the extension. To continue their coverage they must pay the 35% of premium costs by (60 days after date of enactment) or, if later, 30 days after notice of the extension is provided by their plan administrator. If such an individual did not pay his or her December, 2009 COBRA premium because the subsidy expired, the individual can re-enroll in COBRA and receive the subsidy for December, 2009 (without any gaps in coverage) and another 5 months until May, 2010.
• Note that unlike the previous COBRA subsidy provision, eligibility to participate is based on those who were involuntarily terminated between 1/1/10 and 2/28/10.  (The previous provision was based on the termination date and the date that COBRA was scheduled to begin.)

The Department of Labor has issued a press release but as of the morning of December 22, 2009, it had not yet updated its website with the new notices or information. That information should be available here when posted (hopefully this week.) 

Until those new notices come out, employers are left in a little bit of limbo.  And employers will have a short time frame to send out new notices.

So, what can an employer do now?

1. Compile a list of individuals who are currently receiving the COBRA subsidy.  Those individuals are going to need to be informed that the period is going to be extended by 15 months and that to receive the subsidy they will need to continue to pay the premium as they have.
2. Compile a list of individuals who were receiving the COBRA subsidy but whose nine months of eligibility had expired. For those individuals, they will need to be informed that they can "re-start" COBRA. Sample notices from the DOL should be available for this purpose in the next few days.
3. Compile a list of individuals are COBRA eligible, but who were not going to receive the COBRA subsidy because the time period was going to expire beforehand. This will typically include those who were terminated within the last month, who were likely continuing on the employer's health plan until December 31, 2009. Those individuals will now need to receive new notices that they will be eligible for the COBRA subsidy; again, the DOL should be preparing sample notices in the next few days.
4. In the interim, employers may want to send out a letter to all such individuals informing them that changes are on the way and that you will be providing them with updates as they become available. This might keep your HR staff a little less busy answering phone calls and give them some more time to comply with this law.
5. Going forward for the next 75 days or so, employers will need to inform those who are laid off that they may be eligible for this COBRA subsidy. Again, those terminated by 2/28/10 will be eligible regardless of when the actual COBRA period is scheduled to begin.

Developments in this area are coming fast and furious and with the end of the year upon us, it couldn't come at a worse time for many. But this is one area that needs focus. And fast.

(H/T Delaware Employment Law Blog)

 

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This year, the U.S. Department of Labor has taken great strides to modernize the office and better serve the public.  The new website is only part of that.

This week, the DOL has begun a series of webchats with the public discuss the 2010 regulatory agenda and other issues facing the Department of Labor. They continue through Wednesday. You can find them all here.

You can also submit questions to the DOL via Twitter using the hashtag #dolregs to designate your post.  (If you have no idea what a hashtag is, check out this article). 

While the chats themselves are fairly ornery (after all, the DOL isn't going to announce new policies in a webchat just yet), they do provide some nuggets of information to employers. For example, in Monday's webchat, DOL Secretary Hilda Solis only briefly touched on the Employee Free Choice Act, saying that it was in Congress's hands.  Some have interpreted this as a less-than-ringing endorsement of the bill. 

In the Wage & Hour chat, the DOL reiterated that it is in the midst of training up to 250 new investigators who will ramp up enforcement of various wage and hour laws. Industries that employ "vulnerable workers" will be targeted and will include include agriculture, restaurants, janitorial, construction and car washes, among others.

During the webchat, I had an opportunity to inquiry about the DOL's efforts to update their FLSA recordkeeping regulations to address the storage of electronic records, particularly those that may be stored in the cloud. In response, the DOL indicated it is still identifying priorities for its agenda:

While we have not yet issued a proposed rule, we intend to propose regulations on FLSA recordkeeping to promote transparency and encourage greater compliance. We would encourage you to submit your comments through the formal comment process, so they can be properly considered, when the rule is proposed. You can find WHD's proposed regulations at www.regulations.gov.

These webchats are hardly perfect.  Because they are recorded, it's obvious the DOL is taking a rigid approach to its responses. Nevertheless, more transparency is better than none and hopefully, it is another step in the DOL's embrace of social media to provide more information to the public in an unfilted fashion.

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Over the weekend, I was asked: How do you keep coming up with ideas for the blog? My response was that I use Google Reader to flag stories that may be of interest.

Unfortunately, over the last few weeks, I've been flagging more stories than I've had time to write about.  So, now seems a good time to summarize some employment-law stories you may have missed that I haven't had time to recap.

• Later this week, the Genetic Information Nondiscrimination Act (GINA) will become effective and the New York Times has a recap story here.  However, as I've pointed out before, Connecticut has already had a law on the books and the new law is expected to have a minimal impact in the state.  Updated posters may be the biggest impact from GINA for employers in Connecticut. 
• The EEOC's website recently got a renovation.  Along with the EEOC, the websites for the DOL and the NLRB also received a facelift as well.  
• The U.S. Supreme Court earlier this month agreed to rule on whether two-member NLRB decisions were valid. The World of Work blog has the details. 
• I've talked about developing a social media policy in several earlier posts. Doug Cornelius, of the Compliance Building blog has an excellent summary of some issues to think about when developing such policies or guidelines. 
• Do you need a contract to keep a former employee from competing against your company? According to the Connecticut Business Litigation blog, the answer is yes.  But as he also points out, there are still some protections that a company has in the absence of a written agreement too. 
• The Law Tribune ran a story earlier this month discussing the potential liability that exists for some employers in the construction industry.  According to the article, the trend to temp workers could increase the litigation risks. 
• And finally, the Delaware Employment Law Blog updated its list of the top 100 employment law blogs.  If you're looking for some new resources in the area to follow, you could do a lot worse than to use this list as a baseline.

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The Connecticut Department of Labor recently announced a new series of seminars for employers on a variety of the "basics" of Connecticut employment law.  They will be held on :

• November 13, 2009 - Introduction to Employment Law
• December 11, 2009 - Complying with Connecticut Drug Testing Laws
• January 8, 2010 - Complying with Connecticut's Family & Medical Leave Act
• February 5, 2010 - The Essentials of Connecticut Wage and Hour Law
• March 12, 2010 - Unemployment Insurance 101

The cost of each seminar is just $25 and the programs run for about 2 hours.  You can find all the details and register at the Department's website here. 

Kudos to the DOL to providing a low-cost service to employers to educate them on some of the basics of employment law. 

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In this week's Connecticut Law Tribune, there's a story about how the U.S. Department of Labor is hiring 250 more investigators and what this potentially means for wage/hour suits in Connecticut. The gist of the story is that employers should not surprised if there's an increased focus on such claims.

I happen to be quoted in this article saying that some of the fuss may be a bit unwarranted.  "[Schwartz] said the number of wage and hour cases he’s seen has remained steady for a couple of years. 'We’ve seen some increased publicity about it,” Schwartz said. “We still see those cases, but it’s not as though we’ve seen a spike in the state.'"

The article then goes on to quote another attorney saying that it's a "hot topic", seemingly contradicting me. So what gives?

Well, I actually think we're both right and talking about two different things. There is no doubt that wage/hour suits are a "hot topic".  As I noted in the article, there's been increased publicity about such claims. But as of yet, that has not translated to more federal lawsuits featuring wage/hour claims. [Statistics for state wage/hour claims are not easily identifiable.]

Before talking with the reporter, I reviewed the federal court caseload in Connecticut.  What did that reveal? That for 2006-2008, the number of "labor" lawsuits filed (of which wage/hour claims are a significant part) remained surprisingly consistent: 127 lawsuits in 2006, 122 in 2007, 125 in 2008.

But those numbers tell only part of the story.  As it turns out, the the number of federal lawsuits filed in Connecticut is down over 20 percent over the last 10 years. So, putting these numbers together, it suggests that wage/hour claims represent a higher percentage of all the lawsuits being brought. However, the overall number of those wage/hour suits has remained fairly consistent.

What does this mean if you're an employer? Well, for starters, it means that wage/hour issues remain important for employers to resolve.  Misclassifying workers can lead to big headaches and big penalties for companies. Taking steps to correct any issues you have before then turn into major class-actions can save time and lots of effort down. And the DOL's renewed focus on these issues ensure that wage/hour claims remain a "hot topic".  

However, before you devote all your resources to this issue, keep the risk in perspective. Yes, wage/hour claims are important but human resources departments have many other "hot topics" as well (including equal pay , FMLA and ADA issues).  Each of these issues is no less important just because there hasn't been an article written about it.  

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CORRECTED LINK

Keeping up with all the changes in the FMLA at both the state and federal level is a constant struggle.  The next webinar I'll be hosting is designed to cut through this clutter to give employers with some useful takeaways and answer some of FMLA's thorniest questions. 

The free webinar, now set for September 9, 2009 at noon EST, is also our first with a special guest presenter -- Heidi Lane, Principal Attorney with the Connecticut Department of Labor.  You can register for this presentation here. Ms. Lane, who helps oversee the DOL's enforcement of Connecticut's FMLA rules, will provide her insights into the common mistakes employers make and how to avoid them.  My sincere thanks to Ms. Lane for agreeing to participate in this webinar.

In the hour-long presentation, you will learn about:

-- The changes that have been made to the federal FMLA laws and regulations recently
-- The key differences between federal FMLA and its counterpart in Connecticut
-- What actions employers should take as a result of these changes and key differences
-- What the latest guidance has been from the Connecticut DOL on the issue and what changes may be on the horizon

This program is suitable for: in-house counsel; human resources, financial and operations personnel; and anyone else who needs to be up-to-date on this ever-changing area of law.

As a reminder, our webinar series runs the second Wednesday of every month at noon  and is free of charge.  Our prior programs have discussed new Connecticut laws, the Supreme Court's decision in Ricci v. DeStefano, and social networking in the workplace.

If you have any questions, please feel free to drop me a note or send me a message through Twitter (@danielschwartz). 

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Last month, I discussed the topic of furloughs, which have become an attractive option to employers in lieu of layoffs.

Recently, the United States Department of Labor issued a "fact sheet" that provided additional guidance for employers to some frequently asked questions on the topic. 

As the Employer Law Report said,  "While the fact sheet contains no new law or interpretation, in these economic times, it is extremely helpful for employers to have the DOL’s prior guidance on these issues consolidated in one sheet."

Among the questions that the guidance seeks to address:

• If an employer is having trouble meeting payroll, do they need to pay non-exempt employees on the regular payday? (Yes)
   
• Is it legal for an employer to reduce the wages or number of hours of an hourly employee? (Yes, if minimum wage and overtime laws are followed)
   
• Does an employer need to pay an hourly employee for a full day of work if he or she was scheduled for a full day but only worked a partial day due to lack of work? (No)
   
• In general, can an employer reduce an otherwise exempt employee’s salary due to a slowdown in business? (Not for back work, though an employer and prospectively reduce future compensation so long as other tests are met.) 
   
• Can an employer reduce the leave of a salaried exempt employee? (Yes, though in Connecticut, consider whether such leave is akin to accrued vacation.) 
   
• Can a salaried exempt employee volunteer to take time off due to lack of work? (Yes, which allows an employer to deduct for a full day absence, but the voluntary nature of this will be challenged greatly.)  

Employers in Connecticut should continue to be aware that state labor laws may apply as well. (There are other options for companies facing difficult economic times, as well, such as the shared work program.) But the newest guidance provided by the U.S. Department of Labor will be a good start for employers having to deal with this thorny issue.

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 A few months ago, I noted that Connecticut's Department of Labor has had a long-standing (but, until recently, little-used) work-share program under the title of the Shared Work program.  

The Connecticut DOL describes it as:

a voluntary program providing an alternative to layoffs for employers faced with a temporary decline in business. Rather than laying off a percentage of the work force to cut costs, an employer may reduce the hours and wages of all or a particular group of employees. The employees whose hours and wages are reduced can receive partial unemployment insurance benefits to supplement their lost wages. These partial benefits are made possible through special eligibility regulations governing the Shared Work Unemployment Compensation Program.

On Tuesday, The New York Times profiles the Connecticut program and others saying that "many are turning to a novel but unheralded program that cuts their costs while sparing their workers’ jobs."

Putting aside for the moment the specious claim of "many", the article does say that as many as 5000 Connecticut employees are in the program, up from just 250 a year ago.  

So, does it work?  Well, the answer is not that clear cut yet, at least according to the article. But some executives believe in the benefits:

Several executives that use work-sharing explained companies’ choices. Needing to cut payroll by 10 percent for six months, recession-plagued managers could lay off 10 percent of their workers, perhaps incurring anger and heavy severance payments. Or they could use work-sharing, avoiding severance payments and the expense of rehiring and retraining later.

“Just the ability to hang on to people in tough times and not force them out the door is good for morale,” said David Edgar, vice president for human resources at Reflexite, a manufacturer based in Avon, Conn., that makes reflective material for highway signs, motorcycle helmets and roadwork vests.

The Connecticut DOL does indicate that it believes employers can recognize the following advantages to using the program:

• Retain all workers
• Maintain the continuity in your skilled work force.
• Be prepared for business upswings because your work force remains in place.
• Avoid the time and expense of training new employees when business turns around.
• Foster better morale in your employees because you avoid the insecurity, unrest, and bumping characteristic of most layoffs.

For employers who are continuing to struggle through this recession, having more options is never a bad thing.

 

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Late last week, the Connecticut House approved Senate Bill 710 (S.B. 710) which makes some important changes to the state FMLA law to bring it more in line with the federal family and medical leave act rules as they relate to military caregiver leaves of absences.  

I've covered the bill in a post earlier this month and nothing has changed since the Senate passed it.  The bill now moves on to Governor Rell for her approval. 

Importantly, the provisions of this bill will be effective immediately upon the governor's signature.  

The core provision of the bill (you can download the text here) is the creation of a one-time leave related to injured armed forces members.

Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave. If there are any nuances between federal and state law, the more generous of the two benefits will apply. 

This measure will only apply to those employers who are already covered under state FMLA rules. (You can read my prior posts about state FMLA rules here.)

Employers should immediately start revising their FMLA policies to ensure compliance with this new state law.  This may require revising some forms as well to document the leave.  Note that this will not be that different from what has been implemented at the federal FMLA level, but because many employers in Connecticut are still unaware of those provisions, this new state law should serve as a wakeup call to get the policies updated now.

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Sometime last summer, Connecticut attorney Karen Lee Torre sparked a few fires with her suggestion to eliminate the Connecticut Commission on Human Rights and Opportunities -- the organization charged with, among other duties, investigating and remedying discrimination in the workplace.  (You can find my prior posts on the exchange here, here and here.) 

The crux of Attorney Torre's arguments at the time was as follows:

CHRO was and remains crippled by internal race politics with staffers suing each other and maintaining demographic battle lines. It is Afro-centric, politically correct to a grievous fault and brazenly hostile to the civil rights of white males. It is time to dissolve it or at least gut it with a budget that reflects its worth.

This month, the Connecticut Lawyer published an opinion piece written by my colleague, Joshua Hawks-Ladds, in which he suggests another radical change in the CHRO but for different reasons. You can download the article here. 

First, he highlights what he believes needs fixing at the CHRO:

Unfortunately, the Commission has become an underfunded, understaffed and perpetually backlogged bureaucracy. Along with many valid discrimination complaints, the Commission’s offices are clogged with specious claims that the Commission is required to investigate. This means that the bona fide discrimination claims against landlords and employers get lost in the morass. Some of the valid claims are removed from the CHRO and litigated in the state and federal courts. However, the many of the claims (over 2,000 are filed each year) languish for years in the agency’s offices. The system is unfair to claimants with bona fide claims, as well as employers and landlords with bona fide defenses.

As a result, he proposes a fix:

a complete overhaul of the Commission’s procedures to mirror the state Department of Labor’s Unemployment Compensation system, with one exception: if either party does not agree with an appeal referee’s decision relating to a charge of discrimination, then that party may appeal that decision, de novo, to the superior court.

It's a new approach to an old problem.  He acknowledges up front that his proposal is likely to be met with opposition from some. But with many people (on both sides of cases) unhappy with the status quo, the time may be right to at least consider something new. 

An advisory committee charged with making recommendations about changes to the CHRO has been in the works for many many months now.  It'll be interesting to see what changes they propose to an agency that continues to draw criticism. 

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Among employment law professionals and human resource personnel, the last year has been full of changes.  Among the more technical changes are thenew COBRA Subsidy provisions that were passed with the stimulus bill earlier this year.

April 18th is a big deadline for some of the implementation of the provisions -- providing notices to some former employees about their rights under COBRA and providing some of them with a second opportunity to enroll.  (I've covered those notices before in an earlier post.)  

Still lost? Well, there are several good resources available out there (includingthe Department of Labor website itself).  There's even a FAQ for employers from the DOL. 

If you're looking for something more in-depth, I'll be giving an audio (i.e. telephone) conference this Friday, April 17th for Business and Labor Reports.  You can sign up directly through the BLR website. 

Overall, the Act requires employers to provide notice to “assistance eligible individuals” (AEIs) who have lost or will lose their jobs between September 1, 2008, through December 31, 2009, of their the right to pay reduced COBRA premiums of 35 percent for periods of coverage beginning on or after February 17, 2009, with available coverage lasting up to 9 months following the separation of employment.

Here's a free sneak preview of one suggestion employers need to be considering now: Figure out who has left employment since September 1, 2008 and particularly those who have been involuntarily terminated. That subset may now be eligible for some assistance with COBRA payments and notices will need to be sent to them promptly.

Time is ticking on compliance. Use this week to catch up. 

Any suggestions that have made it easy on you that you can share with other employers? Feel free to comment below.  (Remember, however, that I cannot respond to questions due to ethics rules.)

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The U.S. Department of Labor recently released notices for employers to use in conjunction with the American Recovery and Reinvestment Act (ARRA).  These notices provide a good start for employers, but each of these notices will also need to be edited to fit a particular employer.    

So, to what employees is this concerned with? Well, overall, some employees who have been involuntarily terminated from September 1, 2008 and continuing to December 31, 2009 will be able to continue health care coverage under COBRA by paying only 35% of the ordinary COBRA premium for up to nine months. The remaining 65% of the premium will be paid by the employer, the insurance company or the health plan; those payments may be recovered through a credit against payroll tax liabilities or through direct reimbursement. 

Here's the Department's summary of the notices:

General Notice (Full version) Plans subject to the Federal COBRA provisions must send the General Notice to all qualified beneficiaries, not just covered employees, who experienced a qualifying event at any time from September 1, 2008 through December 31, 2009, regardless of the type of qualifying event, AND who either have not yet been provided an election notice or who were provided an election notice on or after February 17, 2009 that did not include the additional information required by ARRA. This full version includes information on the premium reduction as well as information required in a COBRA election notice.

General Notice (Abbreviated version) The abbreviated version of the General Notice includes the same information as the full version regarding the availability of the premium reduction and other rights under ARRA, but does not include the COBRA coverage election information. It may be sent in lieu of the full version to individuals who experienced a qualifying event during on or after September 1, 2008, have already elected COBRA coverage, and still have it.

Alternative Notice Insurance issuers that provide group health insurance coverage must send the Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States, and issuers should modify this model notice as necessary to conform it to the applicable State law. Issuers may also find the model Alternative Notice or the abbreviated model General Notice appropriate for use in certain situations.

Notice in Connection with Extended Election Periods Plans subject to the Federal COBRA provisions must send the Notice in Connection with Extended Election Periods to any assistance eligible individual (or any individual who would be an assistance eligible individual if a COBRA continuation election were in effect) who:

1. Had a qualifying event at any time from September 1, 2008 through February 16, 2009; and
2. Either did not elect COBRA continuation coverage, or who elected it but subsequently discontinued COBRA.

This notice includes information on ARRA’s additional election opportunity, as well as premium reduction information. This notice must be provided by April 18, 2009.

 

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It's been much too long since my last installment of "Four for...", an occasional post on some useful web resources that you might overlook in your day-to-day work. 

This post focuses on four things you can find on the Department of Labor website that are particularly helpful for employers.  

1. A comparison of Connecticut's FMLA (CTFMLA) and the federal FMLA laws -- With the changes to the federal FMLA regulations, Connecticut employers are continuing to struggle with the implementation of those rules consistent with the more stringent rules in Connecticut. The Department of Labor (in addition to putting on sold-out seminars on the subject) has a good comparison of the two rules (and which one should apply) on their website. 
    
2. A new updated FAQ for employers -- The Department of Labor has just updated their Frequently Asked Questions (and Answers) page for employers.  It helps answer some basic questions like: "Is an employer required to give employees a break?" or "When must an employer pay wages upon terminating an employee?"  Before you spend time with an attorney or searching the Internet, check out this site too which really DOES help answer some great wage/hour questions. 
    
3. Free posters and guide books (and forms too) - Keeping up with all the posters required by the Department of Labor can be a taxing task. But fortunately, the DOL has summarized the regulations all on their website, which you can download. You can also e-mail the DOL directly and get the regulations and guide books.  And the best part of it all? It's free.  (Of course, there are OTHER workplace posters required by law, but, at least for the DOL requirements,  why spend $50 on a poster that you can get for free?)  The DOL also has various employer authorization forms and other forms for employers to use. 
    
4. An employer's guide to unemployment compensation - If you are an employer, at one time or another, you're going to terminate the employment of various people. When that happens, the DOL again has a great resource -- an employer's guide to the whole unemployment compensation system.  It answers technical questions and the mundane ones. 

And your bonus site: The New Hire Reporting System -- Because all Connecticut employers are required to report all newly-hired employees within 20 days of hiring them, this site allows employers with a fast, reliable, and secure option for reporting their new hires as required by Federal and State regulations.

A full list of employer services provided by the Department of Labor is available here. 

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Writing a blog can be a lonely endeavor at times with the question of "Will anyone read this?" popping up from time to time. 

And while the blog had its 400,000th (!) visitor earlier this month, it's always nice to get some additional encouragement.  

So, a tip of my hat to Above the Law and Point of Law forum for their references to my blog over the last 36 hours.

And a short while ago, I discovered that the blog was discussed in the Wall St. Journal's "Best of the Web" column, and it should be in Saturday's print editions.  (You can get the online version here). A special thanks to the WSJ for the reference.

And to those readers visiting for the first time, feel free to stay awhile. While this may be a "specialized" blog (in the words of the WSJ), there's plenty of things of interest, particularly for employers in Connecticut. 

Thanks for visiting and thanks for reading.   Feel free to e-mail me with questions, topics or comments you might have about the blog.

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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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She warned the public on Monday that the cuts would be deep.  Today, we're finding out how deep.

Governor M. Jodi Rell today released her proposed budget for the two year period from 2009-2011.   (You can find the summary here and her budget address here.) Although there will be plenty to analyze over the next few weeks and months, the changes she proposes would eliminate several state agencies and commissions while cutting back on several others.

The proposal numbers in the hundreds of pages so this post is not intended to be an exhaustive summary, but here are a few of the highlights of the budget that are relevant to the labor and employment law arena.

• The Governor did not propose eliminating the Connecticut Commission on Human Rights and Opportunities (as a recent column in the Connecticut Law Tribune recommended). However, she has proposed closing the Norwich and Waterbury offices of the CHRO and transferring those cases to Hartford and Bridgeport.  The proposed budget would also eliminate 28 full time positions (out of 103) though several of those positions are vacant right now.  The closing of two offices is expected to save the government over $1.6M each year.
   
• The proposed budget also affects the Department of Labor which has seen an influx in unemployment claims over the last year.  Among the proposed cuts:
  • Elimination of the Youth Employment Program
  • Elimination of Occupational Health Clinics

The budget would also create a new Middle College program (designed to transition students from the technical high schools and community colleges to additional educational opportunities) and move some of the DOL's functions to this new program.

• The Office of Healthcare Advocate, which assists consumers to understanding their rights and responsibilities under various healthcare plans, would be eliminated and its functions transferred to the Insurance Department.  For employers, the OHA has been responsible for a poster that was the subject of some discussion last year.
   
• The Judicial Branch would also receive a share of the cuts, including the proposed closing of the Bristol and Meriden courthouses.  But notably, the Office of Attorney General is almost untouched by the budget with no losses of positions. 
   
• The proposed budget would also eliminate the Permanent Commission on the Status of Women resulting in the elimination of 10 positions.  Various other legislative commissions, such as the ones for Aging, Children, Latino and Puerto Rican Affairs, and African-American Affairs, have also been proposed for elimination. 

Various legislative members have already expressed skepticism and opposition to the Governor's plan (which is expected). Where the compromise ultimately ends up is a question that we probably won't know the answer to for some time. 

For employers that rely on various grants from the government or that deal with certain agencies on a frequent basis, the budget certainly indicates that it will not be business as usual in the future.  What that means exactly is simply too early to tell.

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While much of the press reports about the U.S. House of Representative's passage of the Economic Stimulus bill center on the size of it, there's a lot of details that haven't yet been explored.  Because the bill's prospects are looking (somewhat) favorable, it's time to look at some of the specifics that relate to employment law.

At the outset, it is interesting to note that there is a "buy American" provision in the bill that would mostly bar foreign steel and iron from infrastructure projects -- a clause that some are criticizing.  That provision could have a direct impact on work in the United States -- but could also increase the costs as well. 

 

You can find all the details of H.R. 1 here (and it should be noted that the Senate version has some differences). But there are a couple of other provisions in H.R. 1 that also relate to labor and employment law, including:

• Prevailing Wage Rates - While not much of a surprise, Sec. 1111 provides that all laborers and mechanics will be paid prevailing wage rates on any contracts funded directly or indirectly by government funds.
• E-Verify - Even with the delay in the E-Verify implementation until at least May 2009, the House version of the bill (Sec. 114) requires all entities that get a contract under this stimulus plan must participate in the government's E-Verify program.  This is not terribly surprising since other federal contractors need to comply with the new E-Verify rule, but it is made explicit in this bill. 
• DOL Funding -- The Bill (Title IX) calls for spending $4B to the Department of Labor, which can then provide grants for adult employment and training, youth summer jobs, training in high growth and emerging industry sectors. The Bill would also provide funds for community service employment for older Americans and to assist state unemployment insurance departments.  In addition, $300M will be allocated for construction and rehabilitation of various Job Corps Centers.
• Incentives to Hire Unemployed Veterans and "Disconnected Youth" - Section 1421 provides companies with tax incentives to hire recent veterans and "youth" between ages 16-25 who are not in school and not "readily employable" because of a lack of "basic skills". 
• COBRA Assistance - Sec. 3002 would provide for some assistance paying premiums under COBRA continuation coverage. COBRA typically applies to employees who have been laid off and are allowed to continue their insurance so long as they pay the premiums.  For employers, this bill provision should be followed because they may want to change their severance structure in light of the government's provision of additional benefits. 

With a bill this large, it is important for employers in all industries to stay on top of the specific provisions.  And President Obama has already signaled that the provisions in this bill will need be modified before final passage in the Senate (and committee).   The Senate is expected to start debate on its version of the bill early next week. 

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As I reported on Friday, the U.S. Department of Labor has released final regulations implementing the Family and Medical Leave Act (FMLA).  The regulations (which you can dowload here) become effective on January 16, 2009.  At 750 pages, you need a book just to summarize the changes (and I'm sure one of the legal book publishers out there is already fast at work.)

60 days may seem like a long time away, but with the holidays coming up, these new regulations leave employers will little time to make the changes. Add to the fact that the ADA Amendments go into effect on January 1, 2009 and this represents a huge potential minefield.

 

For the remainder of the week, I’ll be summarizing what employers need to know now about the FMLA:

 

The Rules on What Employers are Covered by FMLA Are the Same, But Connecticut's Rules Still Apply

Employers may first ask if they are covered by the FMLA.  The rules on who is a covered employer (as determined by the number of employees) haven't changed.  Importantly, Connecticut's FMLA rules (which differ in some important ways from the federal FMLA) haven't yet been affected by this change. I'll try to note, in an upcoming post, some of the differences between the two, but for now, employers in Connecticut should tread carefully when adopting any blanket changes as a result of the federal FMLA, without reviewing state law (and consulting an attorney where needed.)

 

The Important Takeaway From the New Regulations is Improved Communications and Collaboration

Overall, the new regulations require employees and employers to communicate better.  Whether its requiring more notices from the employer, or more information from employees, the regulations suggest that "hiding information" is frowned upon.  As a result, employers will need to update their policies and forms regarding FMLA.  Employees will also need to provide more updates about their leave, including providing sufficient notice where possible. 

 

Lots More Notice Requirements and New Forms to Use for Designating Leave

• For employees, they must now follow their employer’s call-in policies regarding absences. Thus, if the employer has a policy of requiring employees who are going to be absent to call-in before work, FMLA-eligible employees must do at least the same. 
• For employers, there are two new notice requirements. Employers will now need to use two forms (instead of the prior one): the first will tell employees of their FMLA eligibility and rights; the second will formally designate the leave as FMLA leave. Employers will now be required to use a new form (which had been optional) that tells employees of their eligibility to take leave within 5 business days. 
• If employees are eligible for FMLA leave, then they must be given a notice of “Rights and Responsibilities” which tells employees of several obligations, including that they must provide medical certifications. 
• Clarifying a prior issue, employers can now provide retroactive notice so long as the delay doesn’t cause any harm to the employee. In addition, employees and employers can agree that leave be retroactively designated as FMLA leave. 
• Overall, if employers have been using any of the optional forms, there are several new forms available for use as well including new certifications and designation of leave forms. 

In upcoming posts, we’ll cover some of the other changes. Here are some previews:

• New regulations defining what is a “chronic condition” and other parameters for chronic conditions and intermittent leave;
• New rules that prohibit direct supervisors from getting employee’s medical information;
• New guidance on how to substitute paid leave for FMLA leave;
• New medical certifications that distinguish between employee and family member “serious health conditions”
• Information on the “Bermuda Triangle” – the interplay between the ADA, FMLA and workers’ compensation. 
• More guidance on when employers can request medical certifications and recertifications as well as fitness for duty certifications. 

Lastly, there are new rules that will govern military leave as well. The new regulations clarify how to implement the expanded 26 weeks of unpaid FMLA caregiver leave for relatives of seriously injured or ill service members.

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Following up on my earlier post about Monday's official release of the new FMLA regulations, the regulations are now available electronically a few days before.

You can download a copy here (though you are forewarned that it is over 700 pages long -- about 2 MB). 

A cursory review of the document shows that the first 550 pages or so contain extensive discussion of the changes in the new rules with the specific feedback received from employer and employee groups.  (My prior post in February summarized the draft regulations.) The actual regulations start on page 556.

For employers, the regulations will provide some helpful guidance in the area of military leaves.  Since the new military FMLA went into effect early in 2008, employers have been left to struggle with how to reconcile the new law with the differences that exist in the military law. The new regulations attempt to resolve those issues.

I'll be posting updates on further specifics as we digest this massive document but as I said before, the new regulations will not take effect until January 16, 2009.

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Earlier today, I noted how the Department of Labor released some proposed regulations by burying them deep in the Federal Register. Now word comes today of a press conference AND press release on a subject that I have to confess, I'm having a hard time wondering what the fuss is about.

Apparently, so does Footnoted author Michelle Leder:

Yesterday, the SEC sent out a media advisory alerting reporters of a press conference set for 2 p.m. today with both Chairman Chris Cox and Labor Secretary Elaine Chao to talk about ways the two agencies would work together “to protect approximately $5.5 trillion in retirement assets of investors nationwide.” It sounded pretty important. But today, after reading the release as well as the memorandum of understanding, I’m awfully glad I didn’t hop on the Acela.

Leder goes on to note that "Clearly, given everything else that’s going on with the state of the economy, two top government officials — one of them a Cabinet member — can come up with more important things to do than agree to continue cooperating."

So what's this "memorandum of understanding" about? The press release noted that the SEC and DOL "agreed  to make permanent their agencies' longstanding relationship of sharing information on retirement and investments".  In doing so, they have agreed upon a formal "Memorandum of Understanding", nicknamed a "MOU". 

What does the MOU require?

• The establishment of regular meeting and points of contact between the two agencies;
• Cross-training of staff;
• DOL Access to Non-Public SEC Examination Information; and,
• SEC and DOL Access to Non Public SEC and DOL Enforcement Information.

Suffice to say, I can't see this making the headlines of any major papers, particularly with an earthquake (even a relatively minor one) dominating the news.

And for everyone outside of the SEC and DOL, I can't see this MOU having any significant impact; it doesn't change any of the rules that employers face. 

If you're interested, the DOL's new proposed regulations still haven't warranted a press release from the DOL either.

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Buried deep, deep, deep in Monday's Federal Register was a quiet announcement that the U.S. Department of Labor was proposing some new wage/hour regulations interpreting the Fair Labor Standards Act of 1938 (download here).  In the "summary" section, the DOL states that the new regulations are needed because the regulations, in some cases, are out of date based on court decisions or subsequent legislation.  The DOL website doesn't even have a press release on it as of Monday evening --- only a link buried deep on a webpage here.

Comments are requested by September 11, 2008, so presumably the DOL is trying to implement these new regulations by the end of the current administration. 

So what topics are covered in these proposed regulations? A few are noteworthy, while several others others are snoozeworthy.

For example, among the more noteworthy items are regulations addressing "compensatory time" and a "fluctuating workweek".  More snoozeworthy items including regulations regarding salesmen who sell boats and regulations regarding workers who work on ditches, canals and reservoirs, where 90% of the water used is for agricultural purposes.

Among the other topics covered

• Updating regulations regarding "tipped" employees and the way the phrase "minimum wage" is used in various statutes;
• Updating regulations defining who an "employee" is and excluding certain volunteers at private non-profit food banks;
• Updating regulations regarding those employees engaged in "fire protection activities";
• Updating regulations to clarify that stock options are excluded from the computation of the regular rate of pay;
• Addressing regulations of "service advisers" working for auto dealers;

Upon first glance, most of the changes suggested by the Department of Labor just incorporate language from laws that have been passed in the last 20-30 years.  But for employers that have a particular interest in one of the above topics, special care should be used to review the language to see if it will have a particular impact on the business.

Lastly, these regulations are mere proposals; while it is somewhat likely that regulations like this will be implemented, they may undergo some significant changes in the final rule. Thus, employers should be cautious about relying on these rules until the final regulations are issued.

I'll continue to review them and post any further comments or thoughts later in the week.

(H/T Fl. Employment Law Blog)

Photo courtesy of Library of Congress.

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One of my new favorite "undiscovered gems" on the Internet, is Connecticut Judicial Branch Law Libraries' Newslog.  It is a site maintained by the librarians with daily entries to help people stay informed about "recent legal developments, legal practice tools, and law library resources". It's another example of how librarians are adapting to new technology and providing a helpful resource. 

And best of all, they have added RSS feeds to allow readers to "subscribe" to it.  (If you don't know what a "feed" is, see my easy-to-read post on the subject here.)

One of the entries that caught my eye recently was a research memo prepared by the Office of Legislative Research that discussed what the Connecticut laws are regarding employers who hire illegal immigrants.  The issue arises out of a law that Arizona passed last year that provides for extreme penalties to employers who hire illegal immigrants. 

So what does Connecticut say on the subject? Well, the memo points to Conn. Gen. Stat. 31-51k, which has been on the books for 35 years, as the applicable law:

Since 1972, Connecticut law has penalized employers who knowingly employ aliens not entitled to lawful residence. A first offense is punishable by a fine of $ 200 to $ 500. Any subsequent offense is a class A misdemeanor, punishable by a fine of $ 2,000, imprisonment for up to one year, or both.

But not so fast. 

As the OLR memo goes on to state, that law is likely preempted by the 1986 Federal Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” 8 U.S.C. 1324a(h)(2).  Thus, even with a Connecticut law on the books, it probably has no real effect anymore because of the federal law "preempting" it. (Why have the state law then still on the books? That's a good question for another day.)

The memo concludes by stating that the Arizona law is different because that state statute deals with a business license, which is exempted from preemption. 

With no action on any immigration-related bills in Connecticut this session, Connecticut employers should continue to educate themselves on the requirements of IRCA in dealing with illegal aliens. The Department of Labor's website is a good place to start and there are additional materials located here. But the enforcement of laws relating to the hiring of illegal aliens has also been picked up by the Department of Homeland Security and even Connecticut has its own Alien Labor Certification Unit. It is an area filled with risk and employers should continue to tread carefully.

Lastly, on a lighter note, what post on alien workers, would be complete without a link to the classic Genesis song "Illegal Alien". So, on this Friday, a link to the deliciously tacky video is below:

 

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This week, while stuck on traffic on I-95 (which is to say, any day you commute on I-95), I heard a commercial touting the state government's Telecommuting program.  As a recipient of occasional telecommuting, I was pleased to hear the government providing information about it.

Now, you might think that because the program is really a human resources issues, it would be perfect for the Connecticut Department of Labor to oversee.  They have expertise in workplace issues, after all.

You would be wrong.  

The DOL's website, in fact,  has no mention of such a program.   (A search on the DOL's website finds one archaic reference to telecommuting being an option...in 2002.)

So any guesses as to who runs this program?

Connecticut's program, entitled "Telecommute Connecticut!" is actually run by the Connecticut Department of Transportation. (Of course, you'd never know it from the DOT's home page; there's no link to the page anywhere in sight.)

Now, you might ask, what HR experience does the DOT have? Probably not much, according to their website.   Which is why they point to three "consultants" they suggest companies can consult about telecommuting and who have assisted with the DOT's telecommuting website.

The website, at www.telecommutect.com,  contains pretty generic information about telecommuting for employers. Its still helpful in many respects.  But many times it lacks specific items (such as a telecommuting policy) that would make the site most beneficial.  For example, under the link entitled  "Program Measurement", the website lists the following advice:

Once your telecommuting program is underway, you'll need a means of measuring program performance. We'll develop a methodology you can use on an ongoing basis to track your program, based on your needs and objectives. Click for your FREE Video.

Indeed, on many pages like this, there is a button you can press to request either a free "video" to learn more, or to get a "free" consultation, or to order (for free) a "Best Practices" guide. You would expect to find this approach of "teasing" some information on a sales site -- not the state government. 

 Don't misunderstand me -- I applaud the state for recognizing this important issue and for working with employers about this; but by hiding some of the information in videos (that could be posted to YouTube) and documents to be "ordered", it prevents employers from getting the best benefit from the information.  Moreover, putting this information on the DOT website where no one can find it makes it "hidden" from many employers. At the very least, there's no reason why the DOL cannot cross-link to this program to provide employers with more information from their website. And the DOT should have such information on its home page as well.

I plan to review the website more extensively in an upcoming post to provide some additional details on the advice it provides, but in the meantime, it's still worth a look at if your company has or is considering a telecommuting policy and practice..

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The Hartford Courant has a lengthy piece today about the rise and fall of the Mortgage Lenders Network.  From an employment perspective, the piece recounts how the Connecticut Department of Labor came across one of the largest cases in the state of a company failing to pay wages, at least $1.5 million. 

Gary Pechie, the director of the state Department of Labor's wages and workplace standards division, was used to dealing with minor cases of businesses - the pizza shops, the independent grocers - who didn't pay their employees.

He rarely saw a case as a big as MLN. High-flying loan officers had been stiffed out of thousands of dollars, some hundreds of thousands, in commissions. And the complaints kept coming in.

Pechie sent two wage enforcement agents down to MLN on Jan. 23.

One of those agents, Frank Royce, had 17 years on the job. He and agent Mike Witkowski pulled up at MLN in Middletown at about 10:30. Human resources director Gary Porter told the agents that the company was "experiencing some problems" and that it wasn't clear "if or when some of the employees would be paid."

Porter produced a partial list. Royce did a little mental math to figure out what employees were owed. He came up with about $1.5 million. Later in the day, Porter came up with more.

When he and Witkowski got back in the car, Royce was quiet for a moment. Then he spoke.

"Wow," he said. "This is going to be big."

The article goes on to report that:

On March 9, the labor department asked the chief state's attorney to issue a warrant for [MLN head Mitchell] Heffernan's arrest for failing to pay nearly $3 million in wages, mostly commissions. Failing to pay wages in Connecticut is a Class D felony and can lead to jail time, fines or both....

[The DOL] and Attorney General Richard Blumenthal pursued the criminal charge in Connecticut. Heffernan fought the state's right to seek such a warrant while MLN was in bankruptcy. After a federal bankruptcy judge ruled that the matter didn't belong in that court, Heffernan appealed. A trial is pending on the legal question.

A look at the actual court documents reveals some more details and, from a legal perspective, Heffernan's tactics have staved off action by the DOL.  So far, it appears to have bought him several more months of legal limbo.

Upon learning of potential criminal charges against him, Heffernan filed a motion to enjoin the state from criminal prosecution.   The State of Connecticut, led by AAG Robert Clark, filed its objection on April 5, 2007.  Heffernan filed a supplemental brief a few days later with many more details and claiming that the criminal prosecution was a result of intense media scrutiny.  On April 10, 2007, the bankruptcy court denied Heffernan's request.

However, Heffernan's appeal of that decision has bought more time for him.  He appealed to the District Court of Delaware.  A briefing schedule reveals that it is unlikely the state will get any resolution of this matter until next year because final briefs are not due until late December 2007.  (It is unclear where the Courant's notion of a trial comes into play; the scheduling order of the court only referred to motion practice.) Because of the elevation of the assigned District Court judge to the matter (Judge Kent A. Jordan), the case does not yet have a district court judge formally assigned to it, which may further delay resolution of this matter. 

For MLN workers, the case is surely a frustrating one.  But the state's continued pursuit of this employer demonstrates that failing to pay wages is one type of action that the state won't tolerate. For employers in the state, its a good lesson and one that more employers would be wise to follow. 

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For many years, the Connecticut Department of Labor website just looked, well, a bit on the outdated side.  But lo and behold, the agency freshened things up a bit lately.  

They've introduced a new logo and new typeface.

After digging around for a few minutes, the content on the site has, unfortunately, not been updated in any major way.  But for those who have a difficult time still navigating the site, there is a useful "search" box on the upper right hand side of the page.  Not as good as Google, but it gets the job done.  

Notably, the DOL isn't the only agency that invested in a new logo. The CHRO released its new logo recently as well.

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