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

As Tropical Storm Fay continues to pound Florida this week, I was recently reminded that it's been 23 years since Connecticut suffered a direct hit from a Hurricane -- the infamous Hurricane Gloria. 

No worries then for Connecticut, right? Wrong. Connecticut has been hit by several tropical storms since then -- just like Fay -- and Hurricane Bob passed close enough over 15 years ago to cause significant damage in the state.  And the Great Hurricane of 1938 may be one for the history books, but it was historic in proportions and shows it could happen here again.

And if you follow the weather blogs, Connecticut is just due for a hurricane strike; maybe not this year, but soon.

So now is the best time to understand the law and help establish a policy to have in place in case a storm develops.

Here are some common questions; some are similar to snow storms (see my earlier post here), but even in snow, Connecticut seems to function ok.  A hurricane might change that equation.

As an employer, suppose some employees don't show up for work to prepare for the hurricane, can you fire them? For the most part, yes. Connecticut is an at-will employment state.   Whether you will want to fire them, though is an entirely different question.

Do I need to pay employees who don't show up for work for the same reason? That will depend on whether the employee is exempt or non-exempt.  Non-exempt (or hourly) workers are typically paid for time worked, so no work, no pay.  But for exempt (salaried) workers, they will need to be paid if they worked during that week, though the employer may insist that the employee be charged vacation time or paid time off. 

Can I force my employees to work during the storm? The legal answer is that for the most part, the answer is yes. But in practice, most employers take a different approach that depends on the type of work that they are doing.  

Some employers who need to maintain operations 24/7 (a hospital, hotel, etc) may want to designate certain employees as "essential".  Others may decide that they can deal with telecommuting employees for a half-day.  But establishing a policy at the outset so employees know what to expect is essential to avoiding problems later on.  Ultimately, setting reasonable expectations (asking employees to call in if late, and having them make up for lost time) may be all that is needed for some.

However, for extremely serious storms (perhaps a Category 3 Hurricane), the Governor has the power to suspend certain laws under Conn. Gen. Stat. Sec. 28-9.  This is rarely invoked. In non-emergency situations when the Governor says that "non-essential" state workers should stay home, private employers should understand that this applies only to state workers and they are free to set different rules. 

We have closed our business during the storm; do we need to pay employees? The legal answer again depends on whether the employee is an exempt or non-exempt worker.  But if you follow the letter of the law, there are serious ramifications for employee morale.  It will obviously be challenging to some small employers, but paying employees in those times of need may pay dividends later for employee morale as well.

What can I do now? Easy. Set up a storm policy. Many employers will have in place for winter storms, but make sure that it is applicable for all types of storms and sets forth what is and is not expected.  Also consider getting cell phone numbers for employees; in case of a storm, you may be able to send them a text message or call with information, particularly if there are power outages.

Lastly, be sure to seek out legal counsel where appropriate for specific legal questions that may arise in this context.  For instance, there may be contractual obligations by an employer or other laws that may apply to your specific situation.

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This week, I've highlighted some new state laws that affect the employment law arena. This next one (Public Act 08-156) creates a new joint commission and new advisory board in Connecticut to deal with the issue of employee misclassification. 

For employers, this new structure means that it is more likely that enforcement of misclassification laws (in other words, whether employees are classified properly as exempt or non-exempt from wage/hour, tax and workers' compensation laws) will occur.  As noted below, there appears to be a particular emphasis on employers in the construction industry, so that particular category of employer ought to be aware of this new law.

What's the new structure?

First, effective July 1, 2008, a joint commission will be established made up of representatives of the Department of Labor, the Commission on Revenue Services, the Workers' Compensation Commission, the Attorney General's Office, and the Chief State's Attorneys office.

What will be their role?

They are to meet at least four times a year (probably in conference rooms not very different from the one pictured). 

Their main goals will be to:

• review the problem of employee misclassification by employers for the purposes of avoiding their obligations under state and federal labor, employment, workers' compensation and tax laws;
• coordinate the civil prosecution of violations of state and federal laws relating to employee misclassification, and 
• report any suspected violation of state criminal statutes to the Chief State's Attorney.

What else is required of the Commission?

By February 1, 2010 (and each year after that) the Commission will report on the commission's actions for the preceding calendar year and include any recommendations for administrative or legislative action.

The new law also creates a companion "Employee Misclassification Advisory Board" to advise the commission on misclassification specifically in the construction industry.  The Board will be made up of six members, each representing differing interests in the construction industry. 

A summary of the new law by the legislature is also available here. And interestingly, the General Assembly passed identical portions of this law in another public act (P.A. 08-105) as well.  Apparently, you can never have enough joint commissions (though obviously, they will be combined here). 

What steps can an employer consider in response to this law?

This new law emphasizes the fact that issues regarding employee misclassification are not going to disappear anytime soon. Because of this, employers can take this opportunity to audit themselves and determine if they continue to have an exposure under wage and hour laws.  If necessary, correcting issues regarding classification of workers ought to be considered; taking such steps before a problem occurs may allow the employer to escape the broad enforcement capabilities now presented in this new law.

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As I posted yesterday, the Connecticut General Assembly is back in session. The Labor & Public Employees Committee is busy holding hearings this week on various bills now pending before the General Assembly.

One batch of bills is up for consideration this afternoon. A second batch is up for a hearing this Thursday at 2:30 p.m.  The February 28th Hearing agenda can be found here.  The hearing is at 2:30 in Room 2D of the Legislative Office Building.  The main topics of the February 28th hearing  purport to be public employees and unemployment compensation.

Among the notable bills being considered:

• Senate Bill 217 (Employers with 25+ employees would be required to provide up to 52 hours of paid sick leave to employees);
• Senate Bill 38 (which would provide paid vacation time, sick leave and personal leave for Connecticut State's attorneys);
• Senate Bill 56 (which would create a task force to address misclassification of workers such as the distinctions between exempt/non-exempt or employee/independent contractor).

For employers, Senate Bill 217 is the one to watch.  Proposals for paid sick leave have been making the rounds in various states with only modest success thus far.  It'll be interesting to see how far this bill actually gets this year.

We'll look at some of these bills more in-depth over the upcoming weeks and months as debate on the bills begins.  But given the General Assembly is in a short session, it's still an open question as to what will actually get passed this year.

I should also note that other committees also consider bills that look at the employer/employee relationship. For example, the Judiciary Committee has a bill (Senate Bill 328) that would increase jury duty pay and require employers to be more involved in the system.  As significant developments arise, I will try to keep tabs on them throughout the legislative session.

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Many times, clients and acquaintances call looking for the "basics" of various materials. Although I'm happy to oblige, some of the "basics" materials are already out there on the Internet. In fact, the government typically has a good summaries of various laws prepared for everyday use. While these documents should not be relied upon entirely, they provide a good foundation for being able to conduct "issue-spotting" -- an important trait to have for both attorneys and HR professionals.

Here are four documents or websites that are among the more helpful I've seen to understand the basics of various state and federal employment laws.

• Basic Guide to the National Labor Relations Act (NLRA) -  The Office of General Counsel for the NLRB has put together a fairly comprehensive 38 page summary of the "basics" of NLRA. What does this mean? Essentially, for the non-lawyers out there, it is a good nuts and bolts document about various U.S. labor laws.  You can download it clicking here, or go to the NLRB website directly. 
  
• The Basics of Background Checks - The Federal Trade Commission has put together a short description of what employers should know about the Fair Credit Reporting Act (FCRA).  The FTC also has a variety of other links about FCRA on a webpage devoted to the act. 
  
• The Basics of Whether an Employee is Exempt or Non-Exempt - The Connecticut Department of Labor has a noteworthy worksheet for employers to use to determine whether certain employees should be classified as exempt or non-exempt (in other words, determining the employee's eligibility for overtime).  The worksheet notes that an employee must satisfy the duties and salary tests and cautions that the form should not be used as a substitute for legal advice, which is sound advice indeed.  The CTDOL website also has a summary of wage and hour laws for employers as well. 
  
• The Basics of the State and Federal Family and Medical Leave Act - Employers in Connecticut should be familiar with the fact that state FMLA laws differ in some notable ways from the federal laws. Figuring out which law applies when is a challenging issue.  The Connecticut Department of Labor, however, has put out a comparison of the two laws with answers to some frequently asked questions about it.   For many employers, understanding Connecticut's rule of providing 16 weeks of leave over a 2 year period and its interaction with the federal rule of 12 weeks in a one year period is crucial to avoiding issues down the road.

 Feel free to comment or add your own favorites on various "basics" documents.

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U.S. District Court Judge Vanessa Bryant is having a busy week.  Today, she released a decision certifying a FLSA class action against Smith & Hawken based on an alleged failure to pay overtime.

In Holbrook v. Smith & Hawken, Ltd., the Plaintiff, a former assistant store manager (ASM) in the Glastonbury, Connecticut store, claimed that she was improperly classified as an exempt employee.  She moved for certification of a class under the FLSA and comparable state law.

Notably, Smith & Hawken conceded that all ASMs were subject to the same job description.  Smith & Hawken claimed that each store functions autonomously and the sheer number of ASMs and store locations should preclude that finding. The court disagreed.  In doing so, the court indicated that the Plaintiff's claims should proceed as a collective action since she was similarly situated to the other ASMs. 

The court need not find uniformity in each and every aspect of employment to determine a class of employees are similarly situated.... The consistent manner in which Smith & Hawken classified its own ASMs is sufficient to carry Holbrook’s burden, even in the presence of minute factual variances in treatment between store locations.

Ultimately, the court defined the class as "individuals employed as ASMs by Smith & Hawken within the three years preceding the date of this order who worked more than forty hours in
any week."  According to the Company's website, there are currently 58 stores in 23 states.   The parties have the next two weeks to come up with a plan on how to proceed in this case.

The "Assistant Manager" argument raised by the plaintiff is certainly not new in the context of wage & hour litigation.  But the case serves as a additional cautionary tale about classifying "assistant store managers" as exempt employees. 

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For employment lawyers and HR professionals, it's "old" news that overtime lawsuits are a major concern.  Business Week picks up on that trend in next week's Cover Story entitled: "Wage Wars: Does your Boss Owe You Overtime". 

According to the article:

No one tracks precise figures, but lawyers on both sides estimate that over the last few years companies have collectively paid out more than $1 billion annually to resolve these claims, which are usually brought on behalf of large groups of employees.

Yes, you read that right. A BILLION dollars. 

Is this estimate true? Who knows.  But considering that the Labor Department estimates that 86 percent of the workforce is subject to overtime rules, that number suggests that there may still be lots of other potential lawsuits out there.  Connecticut has had no shortage of these lawsuits either. 

What's an employer to do? Clearly, some pro-active steps are always in order. 

• Audit your exempt employees.  Go over job descriptions and compare that with actual duties.  Sometimes "managers" are just glorified sales workers.
• Take seriously any complaints by employees about their overtime.  If there is a problem, odds are the complaining employee isn't the only one with the problem.  And that means the potential for a class action case. 
  
• Educate your Human Resource personnel and, even better, your payroll people about the overtime rules.  In particular, even if people are receiving overtime, make sure its calculated correctly.
• When in doubt, get advice.  These issues never get "better" overtime. If anything, when overtime issues are allowed to fester, the risk for companies increases substantially.  Working with an attorney and payroll personnel to comply with the law with ensure that the little issues don't turn into big ones. 
  

We'll discuss more about wage and hour claims in upcoming posts, but for background on the issue, the Business Week article is a good background piece.

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