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

Buried deep, deep, deep within revisions to the federal Consumer Product Safety Commission Act ("CPSCA") is a new cause of action designed to protect whistleblowers of product safety (available here).

This new law, entitled The Consumer Product Safety Improvement Act of 2008,  will afford protection to both public and private employees in retail and manufacturing sectors to those employees who disclose perceived violations of CPSCA (or related acts) to a State Attorney General, a regulatory agency or their employer. 

The Laconic Law Blog has the details of the bill which was signed by President Bush on August 14, 2008.

For employers in the manufacturing and retail area, many states, including Connecticut already afforded employees who complained about some of these issues state law protection.  But this new bill will allow employees to bring claims under federal law through a new administrative procedure; it does not allow the employees to bring their claims directly in court. 

It's yet another reminder to treat complaints by employees of wrongdoing with appropriate seriousness and notify supervisors that adverse employment decisions should not be based on the complaints.

• Email This
• Print
• Comments
• Trackbacks

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the "summary" section, the DOL states that the new regulations are needed because the regulations, in some cases, are out of date based on court decisions or subsequent legislation.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.

• Email This
• Print
• Comments
• Trackbacks (1)

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks

The U.S. Supreme Court today, in Gomez-Perez v. Potter, ruled 6-3, that the Age Discrimination in Employment Act (ADEA) protects federal workers from retaliation based on age-related complaints. 

The majority decision, written by Justice Alito, essentially grants protection to those federal workers on the same terms that private workers have long had. In doing so, the Court has now made it clear that retaliation against workers, whether they work for the federal government or for private employers, for complaints of age discrimination is prohibited. 

Regardless, for private employers, this case has no real immediate impact because retaliation against their employees on the basis of age has been prohibited under federal law and, in Connecticut, under state law.

For background on the case, see the ScotusWiki or my previous post from February here.

What remains unclear -- and to which I suspect the commentary about this case will focus on -- is whether the court's logic -- by finding retaliation claims can be "read into" claims of discrimination -- will apply to other statute or claims.  

Justice Thomas and Scalia (who dissented on the other retaliation case decided today, CBOCS West v. Humpries) are joined by Chief Justice Roberts, who writes a lengthy dissent. Justice Roberts takes the majority to task for creating a cause of action not found explicitly in the statute:

The Court today holds that the federal-sector provisions of the Age Discrimination in Employment Act encompasses not only claims of age discrimination—which its language expressly provides—but also claims of retaliation for complaining about age discrimination—which its language does not. Protection against discrimination may include protection against retaliation for complaining about discrimination, but that is not always the case. The separate treatment of each in the private-sector provision of the ADEA makes that clear. In my view, the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil service process, confirm that Congress did not intend those employees to have a separate judicial remedy for retaliation under the ADEA. I respectfully dissent.

• Email This
• Print
• Comments
• Trackbacks

As with other U.S. Supreme Court cases this term, there's been more virtual ink spilled this week over two oral arguments scheduled for the U.S. Supreme Court this week that will examine some of the parameters of  when it is illegal for an employer to retaliate against an employee for complaining about discrimination.  For most employers, however, these cases may not have nearly the practical impact that some commentators seem to suggest.

I'll leave it to others, such as Ross's Employment Law Blog to explain the cases. 

• In Gómez-Pérez v. Potter, to be argued today, the question for the court is whether for federal employees, the ADEA prohibits retaliation for filing an EEO complaint.  ADEA already prohibits retaliation by private employers.  Even if the U.S. Supreme Court decides that the statute does not explicitly cover retaliation claims by federal employees, it is hard to imagine that Congress would not take up this issue immediately with bi-partisan support.
• In CBOCS West, Inc. v. Humphries , to be argued tomorrow, February 20th, the question for the court is whether 42 U.S.C. Sec. 1981 (which prohibits race discrimination in the "making, performance, modification, and termination of contracts...") provides a cause of action for retaliation as well.   However, as readers are no doubt aware, Title VII already prohibits retaliation on the basis of race, so there is and has always been some overlap between the two claims. 

Emily Bazelon, over at Slate, suggests that this is a "Big Discrimination Case."  Unless the decision's rationale is broad, that seems to be an overstatement at this point.  Most discrimination and retaliation claims, as a practical matter, are brought under Title VII, not Section 1981.  Indeed, the only reason the Humphries case is not a Title VII claim is that the Plaintiff missed the statute of limitations.  Section 1981 mostly gets used when an employee bringing a retaliation or discrimination claim misses that deadline.  Thus, even if the court were to rule against the employee in this case, it will have no impact on the vast majority of race retaliation cases out there that are being filed under Title VII.

Jon Hyman, at Ohio Employer's Law Blog, has some additional thoughts on the Humphries case as does Workplace Prof.  A decision on these cases is expected by June 2008.

For employers in Connecticut, I would ignore the hype about these cases.  Retaliation against employees for filing race and age discrimination claims would still violate state law, under Conn. Gen. Stat. 46a-60(a)(4).  Regardless of how the Supreme Court decides, state law will continue to apply.  If and when an employee claims discrimination at the workplace, take steps to avoid a retaliation lawsuit, and don't worry about whether federal or state law will ultimately apply. 

• Email This
• Print
• Comments
• Trackbacks (2)