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

For a few years now, I've been describing how social media policies are moving into the mainstream. 

No longer can employers simply cover their eyes and ears to what is going on with Facebook and Twitter.

Example No. 592: West Hartford, Connecticut is considering a policy that would place certain restrictions on what school employees say, according to a report in today's Hartford Courant.

While the exact language of the policy is being re-worded, presumably to satisfy First Amendment concerns, the overall concern being addresses is whether the social media usage is having a detrimental effect in the school:

[B]oard Vice Chairman Terry Schmitt, a member of the committee that proposed the policy, said Tuesday that even if the language is tweaked to satisfy district lawyers, the focus would be the same. Whether it's an unhinged manifesto or a scandalous, public Facebook photo, the question for employees is: "Does it have a negative, or compromising, impact on your ability to teach in the classroom?"

If a middle or high school teacher is shown in a "wildly inebriated state," and students see it, that answer might be yes, Schmitt said.

And what should such a policy say? Well, there are hundreds of examples now available to view on the internet.  I like the list compiled by Doug Cornelius over at Compliance Building. 

But the challenge for the school district remains the one identified: How do you balance the need for a school district (or any public employer) to maintain decorum and minimize the impact to the town or school, with the First Amendment right to free speech? That is a balancing act that I suspect we'll continue to hear more about.  

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My post yesterday on a new Superior Court decision in Velez v. Mayfield has generated a lot of discussion from the counsel for the individual who brought the suit. (You can also view the original DOL decision here.) 

As I mentioned in the update, the case is being appealed so it's very likely we'll get Appellate Court or Supreme Court guidance on this issue. But assuming Velez is allowed to stand, let's talk about a few more examples of how this decision might impact employers.

Example 1:

Suppose an employer has 100 employees in Texas and 1 sales employee based in Connecticut, who must care for a sick family member.  The employee in Connecticut would not be eligible for federal FMLA leave because the worksite that he or she works at has less than 50 employees.  However, the employee would be eligible to receive Connecticut FMLA (16 weeks over 2 years), under Velez.  

What might the employer be required to do? In some instances, provide the FMLA leave and then hire a temporary replacement or move another employee to temporarily fill the position on an interim basis.  When the FMLA-eligible employee is ready to return to work, Conn. Regs. 31-51qq-21 seems to specify a likely path : 

[The] employee is entitled to be returned to the original position the employee held when leave commenced, or if the original position is not available, to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.

There are, of course, some exceptions. If the employer decided to simply close the Connecticut facility, that might dictate a different course, but in the example above, the employer is in the difficult position of living with a great deal of uncertainty for a small office where temporary replacements might be difficult to find.

Example 2:

Although the court in Velez suggests that its decision may help smaller employers in Connecticut, it might also hurt them too because it could impact Connecticut-based employers that have -- until now -- been seen as being exempt because they were too small to be covered.  Suppose an employer has a Connecticut office of 40 employees, with approximately 40 other employees working on a part-time basis at various locations outside the state. Federal FMLA would not kick in, again because the worksite has less than 50 employees. But under Velez Connecticut FMLA would now seem to apply to all of the Connecticut employees because the company employs more than 75 employees.

One question left unaddressed by the decision is what impact might this have if its analysis were applied to other labor and employment laws. For example, the discrimination laws (Conn. Gen. Stat. Sec. 46a-51) specify that an employer is a company that employs three or more persons. Would out-of-state workers be included in that calculation as well?

Other statutes raise similar questions: Do the rules prohibiting smoking in the workplace have to count out-of-state workers too? (Conn. Gen. Stat. Sec. 31-40q). Why are the workers compensation statute definitions (Conn. Gen. Stat. Sec. 31-275(10)), which are undoubtedly intended to cover employees of small branch offices, structured so differently if -- as the court states -- the intent was the same? And the same could be asked about the unemployment insurance statutes too (Conn. Gen. Stat. Sec. 31-223).

In the meantime, companies with employees in the state should take a hard look at their exposure on this issue.

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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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