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

Late Thursday night, the State Senate passed the Paid Sick Leave bill (S.B. 217) with various amendments including an exemption for some existing collective bargaining agreements.  The vote was a close one -- 20-16 -- and you can find the roll call here.

The bill would make Connecticut the first state to require employers of 50 or more, to allow workers to take 6½ paid sick days per year. It would also apply to municipalities.  One additional amendment that passed would limt the times when employee could use sick time for an illness of an employee or employee's child.

The bill now moves on to the House for further consideration, where nearly 40 legislators have publicly co-sponsored the bill already.  Some of the sponsors of the bill have predicted passage there, but its real future is unknown at this point, with the session winding down.  Debate in the Senate took two days and it is unclear if there is enough time left for the bill to pass. 

The Hartford Courant has a late report and reaction here:

[State Senator Edith] Prague called the bill a major boon to average working people, "especially single parents, like women, who have to go to work. They can't afford the luxury of staying home if they're sick. They need that day's pay to feed the kids ... and heat the house." ...

But opponents said the increasing business competition in a difficult economy is the reason that lawmakers should not approve the bill: It would put Connecticut at a disadvantage and cost the jobs of some of the very workers it is intended to help, they said.

The state's leading business lobbying group, the Connecticut Business and Industry Association, has said the bill "would cost employers in dollars and productivity — a tough one-two punch in this weakening economy."

Various political blogs have started to chime in, including My Left Nutmeg here.  My prior coverage of the bill can be found here.

UPDATE: You can also find the CT News Junkie coverage of the bill here.

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Much has been made of a bill (Senate Bill 217) in the Connecticut General Assembly that would create a paid sick leave provision for employees. Lost in the debate is the fact that Connecticut already has a paid sick leave provision that works in tandem with the Connecticut Family & Medical Leave Act, as I reported in January.  Before the General Assembly debates the bill, they would be wise to review this provision and see how it has been working, rather than creating a whole new system from scratch.

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We've had an illness in the family recently and it reminded me of a topic that most employers (and I would dare say attorneys) are probably unfamiliar with in Connecticut.  Specifically, Connecticut's FMLA laws allow an employee to use sick days not simply for themselves, but to care for a family member in certain circumstances.  The law also allows for the use of sick days for the birth or adoption of a child.

This is unique to Connecticut -- no comparable federal law exists -- but this law is so underpublicized or misunderstood that I would guess that many employers simply don't follow it.  After all, sick days are normally viewed as days to take when the employee is sick, not for someone else.  This provision is also fairly recent (having passed just a few years ago) so that may add to the misunderstanding.

So where is this provision found (or buried, depending on your perspective)?  Conn. Gen. Stat. Sec. 31-51pp(c)(1). That section reads as follows:

(c) (1) It shall be a violation of sections 31-51kk to 31-51qq, inclusive, for any employer to deny an employee the right to use up to two weeks of accumulated sick leave ... to attend to a serious health condition of a son or daughter, spouse or parent of the employee, or for the birth or adoption of a son or daughter of the employee. For purposes of this subsection, "sick leave" means an absence from work for which compensation is provided through an employer's bona fide written policy providing compensation for loss of wages occasioned by illness, but does not include absences from work for which compensation is provided through an employer's plan, including, but not limited to, a short or long-term disability plan, whether or not such plan is self-insured.

So, a few key points arise from this section:

• The employee may take up to two weeks paid sick leave -- if they have accumulated it.  If the employees don't have the time to begin with, the employer is under no obligation to give the paid sick leave.
• The sick leave is not applicable to take care of family members with ordinary illnesses such as colds, etc. Rather, it is only for a "serious health condition" as defined by the FMLA. 
  
• The employees still need to abide by the other requirements of FMLA for such leave, including providing documentation that the family member does indeed have a serious health condition.
• If the employer does not have a written policy of sick days but only, for example, gives employees vacation days, then this provision would appear not to apply.  However, if the policy states that vacation days can be used for an employee's illness, then the employer is open to an argument that this provision may apply.
• The sick leave can also be taken for the birth or adoption of a child.
• Although Sec. 31-51pp(c)(2) doesn't implicitly state this, this provision is related to the Connecticut FMLA. Thus, if the employee does not qualify for FMLA in the first place, this provision would not appear to apply.

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A few years ago, there was lots of debate among attorneys about whether summary judgment was still a disfavored remedy in employment discrimination cases in federal court.  (For those readers unclear what "summary judgment" is, the Wikipedia entry is a pretty good start and George's Employment Blawg has a nice post about how to best prepare a motion for summary judgment.) 

If the latest in a series of recent decisions by Judge Vanessa Bryant is any indication (see prior posts here, here and here), summary judgment is still alive and well. 

In Grunberg v. Quest Diagnostics, Inc., Judge Bryant was faced with a multi-count complaint alleging claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq., and Connecticut common law.  The court granted Quest's request for summary judgment on each and every count. 

The decision itself is fairly routine in its analysis of the issues. Among the notable points:

• Employees cannot rely on generalized statements of progressive discipline in an employee handbook to create a "contract" claim, particularly if the employer has set forth adequate disclaimers.
• An employee cannot prevail on an FMLA claim, where the employer can show that it had already made a decision to remove the employee from his/her position prior to the exercise of FMLA rights.  This is important for employers to understand; the employee need not be notified of the decision in order to invoke this protection, but the decision must have already been made in one fashion or another.

So, does this decision signal a trend of granting summary judgment in Connecticut?  No, at least not generally. Certainly, Judge Bryant has shown that she is not afraid to use this procedural device to dispose of cases.  But each federal district court judge in Connecticut has their own style of handling cases.  Indeed, in a prior post, I noted that two federal court judges even outlined their summary judgment philosophies in their chambers practices.

For example, Judge Thompson believes that "dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case." ...  Judge Droney, however, states that, "in employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court."

Thus, when employees and employers are in federal court, the best way to evaluate a case may not be to merely look at the merits of the case, but to also understand the judge's philosophy and history as well.  An employer who may have a shot at summary judgment (thereby avoiding the cost of a trial) may value a case entirely differently than a party who knows that the case is going to trial regardless of what the parties uncover during discovery. 

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New week; new job. 

But that hasn't stopped news from happening. So we'll be using this week to catch back up.

First up: The Department of Labor has published its proposed new regulations for military leave FMLA.  But these regulations (topping 500 pages) also contain updates to earlier discussed revisions to the FMLA as well.

The blogging community has been busy trying to sort and report on the release.  Here's the wrap-up as of early Monday morning. I may update this post later today as additional blogs post their summaries:

• Michael Fox, at Jottings, has the most detailed summary thus far of the major provisions here. According to Michael: "These proposed rules are not nearly as dramatic as the ones that were originally proposed to the white collar regulations which set off a legislative and political uproar. It will be interesting to see what happens to these. Although there will no doubt be comments from both sides, my initial thoughts are that if anyone should be howling for more, it should be employers."
• Workplace Prof links to the regulations and has provided ample coverage of the underlying statute before.
• Ross' Employment Law Blog hits the highlights as well and notes that "there are substantive changes dealing with the definition of "serious health condition," required notices, joint employers, light duty, overtime, bonuses, substituting paid leave for FMLA leave, voluntary settlement of claims, employer's failure to designate absences as being FMLA leave, and other matters."
• The Word reports that you have until April 11, 2008 to provide comments to the new proposed regulations.
• What's New reports what's new with the new regulations as well.

For employers in Connecticut, the challenge will remain trying to incorporate these national regulations into the state statute and deciphering when or if those provisions will even apply to Connecticut leave. Employers should continue to tread cautiously in FMLA issues until the dust settles from the new FMLA provisions and proposed regulations.

UPDATE: The always reliable Jon Hyman at Ohio Employer's Law Blog also has his first take on the regulations here. 

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With the signing of the National Defense Authorization Act for FY 2008 (NDAA) earlier this week, the new amendments to the FMLA for care of military members are now effective immediately.  For a full text of the FMLA, with the new amendments, the Department of Labor has posted it here.

For a refresher to my prior posts, the Act now permits a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

Its important to note that the caregiver protection provides more than double what is provided when an employee takes "traditional" FMLA leave.  Employees are entitled to only one 26-week leave period to care for a wounded servicemember during the employee’s employment. The leave may be taken on an intermittent or reduced-schedule basis, but all 26 weeks must be used during a single 12-month period. 

The Act also provides up to 12 weeks of leave for employees who have a family member called up to or engaged in active military duty.  In detail, the Act provides up to 12 weeks of FMLA leave for an employee with a spouse, son, daughter or parent who: (1) is on active duty in the Armed Forces in support of a contingency operation; or (2) has been notified of an impending call or order to active duty in the Armed Forces in support of a contingency operation. A "contingency operation" is an action or operation against an opposing military force.

An employee may take active duty leave for "any qualifying exigency" related to the family member’s call-up, and the leave may commence as soon as an individual receives notification of being called to active duty. The term "any qualifying exigency" was not defined, and will likely be clarified in future regulations published by the Department of Labor ("DOL").

Recall too that the normal definitions of the FMLA still apply. Thus, the employer must employ at least 50 part-time or full-time employees for each working day during 20 or more workweeks of the current or previous calendar year to be subject to the statute. In order to be eligible for FMLA leave for example, employees must still have at least 12 months of service with the employer  and must have worked at least 1,250 hours during the 12 months preceding the start date of the leave

Because these changes expand the ways that an employee may be entitled to protected leave, employers should familiarize themselves with the law and also review their obligations under USERRA as well.  Employers can consider updating their policies and procedures and also ensuring that their postings (such as a USERRA DOL poster) are current as well. Notifying human resources of this new law will also be critical to ensuring proper compliance with this law. 

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The New York Times reported late last week that the Department of Labor is considering new regulations to the Family and Medical Leave Act that would address concerns that employers have had about some employees are abusing the leave.  (H/T The Word on Employment Law)

Under the new rules being discussed, employees would have to call in to request FMLA leave before taking it, as opposed to the present situation where employees can take off two days before requesting leave.  The regulations will also address the new military leave provisions that I've mentioned previously.

As these regulations are likely to undergo some further discussion and revisions, I'll await serious analysis until we see what is actually being proposed -- rather than just discussed at this stage.  FMLA Blog has some thoughts worth reviewing.

Senator Chris Dodd (D-Conn.), who authored the original FMLA bill, is already concerned about the path being carved out and issued a statement today expressing those concerns.

“I am concerned by the reports that the Department of Labor may impose new regulations that will make it more difficult for workers to take advantage of the leave FMLA provides. Over the past 15 years, FMLA has helped more than 50 million families during critical moments in their lives, and any effort to scale back these protections is simply unacceptable.

“As I have said time and time again, if there is any problem with FMLA, it is that it doesn’t go far enough. That is why I support new ways to expand this legislation so more Americans can benefit from its provisions. Most recently, I authored a provision to expand FMLA benefits for up to six months for family members of wounded military personnel. As this disastrous war drags on with no end in sight, it is critically important that we ensure that the brave men and women of our armed forces receive the care and support they need when they return home. Allowing their family to be there during the often lengthy rehabilitation process without the constant fear of losing their job is one of the best things we can do for our troops. I hope the Department of Labor keeps these concerns at the forefront as they draft their new regulations.”

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A couple of weeks after President Bush's pocket veto of a defense bill that included expansion of FMLA for military leave, Congress has again passed a defense bill with the same FMLA provision.  President Bush is now expected to sign the measure because it does not contain certain language that he found objectionable (unrelated to FMLA) in the bill.

For a recap of the provisions, see my prior posts on the subject here, here and here. 

(H/T Alaska Employment Law)

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We've had an illness in the family recently and it reminded me of a topic that most employers (and I would dare say attorneys) are probably unfamiliar with in Connecticut.  Specifically, Connecticut's FMLA laws allow an employee to use sick days not simply for themselves, but to care for a family member in certain circumstances.  The law also allows for the use of sick days for the birth or adoption of a child.

This is unique to Connecticut -- no comparable federal law exists -- but this law is so underpublicized or misunderstood that I would guess that many employers simply don't follow it.  After all, sick days are normally viewed as days to take when the employee is sick, not for someone else.  This provision is also fairly recent (having passed just a few years ago) so that may add to the misunderstanding.

So where is this provision found (or buried, depending on your perspective)?  Conn. Gen. Stat. Sec. 31-51pp(c)(1). That section reads as follows:

(c) (1) It shall be a violation of sections 31-51kk to 31-51qq, inclusive, for any employer to deny an employee the right to use up to two weeks of accumulated sick leave ... to attend to a serious health condition of a son or daughter, spouse or parent of the employee, or for the birth or adoption of a son or daughter of the employee. For purposes of this subsection, "sick leave" means an absence from work for which compensation is provided through an employer's bona fide written policy providing compensation for loss of wages occasioned by illness, but does not include absences from work for which compensation is provided through an employer's plan, including, but not limited to, a short or long-term disability plan, whether or not such plan is self-insured.

So, a few key points arise from this section:

• The employee may take up to two weeks paid sick leave -- if they have accumulated it.  If the employees don't have the time to begin with, the employer is under no obligation to give the paid sick leave.
• The sick leave is not applicable to take care of family members with ordinary illnesses such as colds, etc. Rather, it is only for a "serious health condition" as defined by the FMLA. 
  
• The employees still need to abide by the other requirements of FMLA for such leave, including providing documentation that the family member does indeed have a serious health condition.
• If the employer does not have a written policy of sick days but only, for example, gives employees vacation days, then this provision would appear not to apply.  However, if the policy states that vacation days can be used for an employee's illness, then the employer is open to an argument that this provision may apply.
• The sick leave can also be taken for the birth or adoption of a child.
• Although Sec. 31-51pp(c)(2) doesn't implicitly state this, this provision is related to the Connecticut FMLA. Thus, if the employee does not qualify for FMLA in the first place, this provision would not appear to apply.

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As I predicted last month, Congress will quickly take up the bill regarding defense spending (which also includes a provision for protected leave for military families) this week, when it opens its 2008 session. 

The New York Times is reporting this morning that a resolution of the issues which resulted in the President's pocket veto of the bill are being resolved, and passage is expected shortly.

Officials said the most likely approach would be to vote to send the Pentagon measure back to the Armed Services Committee, where the disputed provision could be quickly corrected, allowing the bill to be brought back for a final vote by the end of the week.

“We hope to fix it,” an aide said.

For background on the expanded FMLA leave for military families portion of the bill, see my earlier post on the subject. 

(Hat Tip: Ohio Employer's Law Blog)

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The U.S. Supreme Court this morning asked the government for its views on whether workers may settle Family and Medical Leave Act (FMLA) claims with their employers.  The SCOTUS Blog has the details:

The Supreme Court on Monday asked the U.S. Solicitor General for the government’s view on whether workers may settle with their employers their claims under the Family and Medical Leave Act. The issue arises in Progress Energy v. Taylor (07-539). The Fourth Circuit Court (download decision here), ruling in conflict with the Fifth Circuit Court, decided that a Labor Department regulation barred both past and future waiver of all FMLA rights. The Labor Department has taken the position that its regulation permits backward-looking release of claims under that law.

The Fourth Circuit's decision arises mainly from a regulation promulgated by the Department of Labor.  Specifically, 29 C.F.R. § 825.220(d) states that "[e]mployees cannot waive, nor may employers induce employees to waive, their rights under [the] FMLA."  That decision created a split in the circuits that have decided the issue. 

Lots of outside parties have already submitted papers at the U.S. Supreme Court asking for consideration of this issue including the Association of Corporate Counsel, Society for Human Resource Management, and the U.S. Chamber of Commerce. 

For those in Connecticut, remember that the state regulations mirror the federal regulations on this particular subject. So it is likely that a U.S. Supreme Court decision may also have an impact on how this issue is ultimately decided in Connecticut.  Conn. Regs. 31-51qq-25(d) states:

Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees (or their collective bargaining representatives) cannot “trade off” the right to take FMLA leave against some other  benefit offered by the employer.

 It remains to be seen if the U.S. Supreme Court will take up this issue or wait for the split in circuits to become clearer. But given that the Roberts court has taken up several employment law claims for consideration, don't be surprised if this issue gets put on the docket later this winter.

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Since I'm only by a computer for a few minutes this morning -- still vacationing -- I wanted to just highlight a few points from my brief post yesterday afternoon on the expected veto of the bill that contained the expanded leave for military families. 

First, if you haven't done so, you should check out two blogs that commented on this blog and my post:  Michael Fox's Jottings by an Employer's Lawyer (long my go-to-resource before I got into blogging myself) and Workplace Horizons (which is a critical resource on all the legislative bills addressing labor & employment laws).  I'm grateful for their kind words this morning.   Both have had detailed summaries of the Military Leave FMLA provisions and other significant bills and I urge you to check them out.

Second, in my haste, I failed to highlight that, with Congress out of session, President Bush is exercising his pocket veto -- meaning Congress will have to take this issue up anew when they restart in January.

As the Washington Post reports:

Because Congress is not in session, Bush is barred by the Constitution from issuing a traditional veto and returning it to lawmakers, according to White House officials. Instead, according to a senior official, Bush plans to execute a "pocket veto," meaning he will not sign the measure -- requiring lawmakers to write and pass an entirely new version of the bill when they return.

To block efforts by Congress to challenge the pocket veto, however, Bush is also going the traditional route, sending over to Congress his veto message and the unsigned bill.

Third, the White House's statements and reasoning for the pocket veto -- which has nothing to do with the FMLA provision itself -- can be found at the website here.  The veto took place this morning

(And for those who are interested, the photo is of a replica of Congress made out of natural materials now on display at the U.S. Botanic Gardens in Washington, DC where I've been visiting on vacation.)

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On Friday, Congress passed the first significant amendments to the Family and Medical Leave Act (FMLA) in over a decade.  The Bill still needs to be signed by President Bush in order for it to become effective. 

The new bill, which has yet to be signed by President Bush, creates an additional category for the traditional 12 week leave. Specifically, an employee may take 12 weeks leave, where the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a "qualifying exigency" which is to be defined by the Secretary of Labor by regulation.

In addition, and in an unique approach to leave issues, Congress has also created a "Servicemember Family Leave" where an eligible employee who is the spouse, son, daughter, parent, or next of kin of an injured servicemember needs to take care of them. The employee in this situation is entitled to 26 weeks leave.  This appears to be a one-time only leave. 

For Connecticut employers, this new bill will only add to the confusion over which leave (state or federal) applies. For the time being (and when signed by President Bush), this new leave will only apply to those employers covered under the Federal FMLA laws, not the state. 

Note that this expanded leave section is part of an overall military spending package.  There remains the possibility of a veto on it so employers should keep checking back for final approval and an effective date.

The legislation had been introduced by Senator Chris Dodd (D-Conn.) and he expressed his pleasure with its passage in a statement on Friday. 

"By passing this important legislation we will protect family members' rights to keep their jobs when they are providing important care and we will ensure that our injured troops receive the comfort and attention that they need," he said. 

According to the roll call, Dodd was absent from the final vote on the conference report on Friday. 

(Hat Tip: Jottings by an Employer's Lawyer)

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Suppose an employee takes maternity leave from a position. Due to health complications, that leave is extended multiple times (past the 12 or 16 weeks required under FMLA or CT FMLA).  The employee remains an employee pursuant to a short-term disability plan. When the employee is ultimately medically cleared to work, does the employer need to reinstate the employee?

An summary order (i.e. an opinion that is NOT binding in future cases) from the Second Circuit this morning suggests that the employer does not need to reinstate the employee and that the employer's actions do not violate Title VII. 

The Second Circuit in Infante v. Ambac Financial Group, suggests that this is a fairly easy call:

[The employer] avers that it could not rely on the possibility of [the employee]’s return from her leave because she had repeatedly extended her anticipated dates of return-- sometimes on one or two business days’ notice. [The employer] thus faced uncertainty about when, if ever, [the employee] would return, as well as the increasing work demands of [employee]’s former accounting unit. After [the employee] had extended her return date by more than six weeks, [the employer] decided to interview replacements. As of that time, [the employee]’s leave of absence was outside the scope of the twelve-week job protection provided by the Family and Medical Leave Act, 29 U.S.C. § 27 2612 (“FMLA”). [The employer]’s short-term disability leave policy contains no similar job protection provision.

So [the employer] was under no legal or contractual obligation to hold [the employee]’s job open for her, and was entitled to interview (and hire) replacement candidates whom it deemed more qualified for the role.

The opinion suggests that courts will not be afraid to read the statutory limits on protected leave strictly; 12 weeks under FMLA is 12 weeks -- not 20.  And for employers, the case is a good reminder that upon expiration of FMLA leave, the employer can and should explore filling open positions as business needs dictate.

That said, there are -- of course -- cautionary notes. For example, this case does not address the trickier issue of whether a disabled worker out on leave is allowed to have extended leave as a "reasonable accommodation" under the ADA.  Thus, whenever employees are out on extended leave, an employer should review all the laws that may apply (not simply FMLA) to ensure their compliance with various legal obligations.  Also, employers should also review their internal policies to ensure that they are following what their policies say about leaves of absences.

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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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