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

A while back, I wrote about a Connecticut law that requires employers to post about the services of the Office of Healthcare Advocate and about one company that sells such a poster, Progressive Business Compliance. 

But the question is often asked, are these workplace posters that available for sale by companies like PBC, useful and worthwhile to purchase in general?  My response is "Yes" with a small "but" attached to it.     

What do I mean? Well, as I've said before, the companies that prepare the workplace posters do provide a valuable service by combining the posting requirements under various state and federal laws into one poster. These "5-in-1"s or whatever number that is chosen, are then printed in an easy to read format and are often laminated to preserve their appearance. For this reason, spending money on the posters is an easy call for many employers.  

Certainly, companies like Progressive Business Publications (which also goes by the name Progressive Business Compliance) or G.Neil can fill that role well.   Indeed, a number of attorneys that I know have used posters from both of these companies for years without incident and I haven't seen or heard about any specific posters that they sold that did not comply with the law.  I certainly wouldn't discourage employers from using these services, even with the cost involved, because for many employers it is "worth it" to have easy-to-use posters prepared by someone else. 

And before people get too up-in-arms about companies making money off their product, it's not like these companies are alone in charging for items that the goverment otherwise makes available free to the public. For example, LEXIS and Westlaw charge people for using their services to find and locate court decisions published by the courts, or legislation passed by the goverment. 

Moreover, simply because you can get the materials for free elsewhere does not, in my view, provide a sufficient reason for ignoring these companies either.  They're not government agencies (nor do their websites pretend to be) but they make it their business to do their best to understand each state and federal law.

But here is my small reservation about using these companies (or companies like these): Employers should not rely on their services as the exclusive source of their information, nor for advice. 

If an employer is investigated by the Department of Labor about its postings, it won't really do the employer much good to say that they merely relied on what another company told them to do. Rather, each employer has an independent obligation to ensure that they are complying with the applicable laws.

So, how can an employer do that AND still take advantage of the services offered by the workplace poster companies? Work with a qualified and experienced human resources professional or an attorney to ensure that all of its posters and polices are up-to-date.  Also figure out what state and federal laws actually apply to them.   Once the employer performs such an assessment, then reach out to the poster companies. 

Maybe they will even cut a volume discount.

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Last month, I broke the story about a company that was selling various employment law posters online, and the Connecticut government's response to the posters.  A post recapping all events with links to all prior posts is located here.  

One poster, in particular, dealt with a "Healthcare Advocate" poster. At that time, the company's website stated specifically  "New Poster February 2008! Employers are required to display this poster. Lists employee's rights to health insurance under Connecticut."

As of my last prior post, last month, the company, Progressive Business Compliance had not made any changes to their website nor did they provide any public comment. While I've been tied up the past few weeks, their website for this poster has now changed. 

Their website for this poster  now reads: "New Poster February 2008! Employers are REQUIRED to display this poster.  Lists the services of the Office of the Healthcare Advocate under Connecticut Law, and gives contact information for employees."  However, the company still charges $12.99 for the poster. 

Employer and human resources professionals may still wish to exercise caution about using this particular poster. First, this poster -- while apparently "new" to the company -- is not new at all. It has been a requirement for a while. Second, in response to our prior post, Connecticut's Office of Healthcare Advocate now has the exact poster available on their website.  You can download it directly from here.  Third, and most importantly, it's available free of charge. 

I'll leave it to the Attorney General to determine whether its a fair trade practice to sell a free government poster for $12.99.  Perhaps it contains a protective plastic cover.   And as I noted previously, these companies can provide a service to employers by combining various posters onto one laminated poster.  For some employers, it is a service worth paying for. 

But for employers who just want to comply with this particular law without any bells and whistles, the OHA's poster that can be downloaded free of charge will suffice just fine. 

Of course, there are other posters that must be posted as well, so employers should check with an attorney to determine if they are meeting all the legal posting requirements. 

Lastly, I have been meaning to post about another website that summarized our prior posts on workplace posters quite well.   Lawroom.com posted about it here.  Each week, Lawroom sends out an email broadcast to several thousand HR and business subscribers (primarily in California, but also nationwide and in other states). They cover case, legislative, and regulatory developments, as well as interesting news stories. They also discuss “recurring” issues in employment law – including the need for mandatory posters.  My sincere thanks to them for the reference.  Please do check them out. 

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Credit the Office of Healthcare Advocate for acting quickly.  I received word late Thursday that the Office of Healthcare Advocate -- responding, in part, to my post on Wednesday -- has now posted its required poster for employers on their website.  You can actually download the poster directly from this link. 

As detailed in earlier posts (here, here and here), employers that offer health insurance are required to post in their workplace about the services of the Managed Care Ombudsman.  It is mandated by Conn. Gen. Stat. 38a-1046.

Lastly, one final point from the Attorney General's press release yesterday (see prior posts) bears some further comment. 

Selling state compliance posters is perfectly legal - until the companies use false and deceptive claims to push their product, as many have done.

It's a valid point.  The companies that sell these posters in many ways offer a product that employers may find useful. They may laminate the poster or put a variety of information all in one. But when they overstep the line to scare employers or mislead them (and again, we'll leave that issue for the AG's office and readers to decide), they open themselves up to criticism.

A search of Google News this morning hasn't turned up any additional coverage, including any response from PBC.  Thus, until there are significant further developments that I become aware of, I'll consider this issue -- from an employment law perspective -- resolved for now.

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Secretary of State Susan Bysiewicz and Connecticut Healthcare Advocate Kevin Lembo released their own press release (download here) this afternoon regarding the investigation into Progressive Business Compliance. 

According to the press release, Bysiewicz and Lembo are  "warning Connecticut's business community about a deceptive marketing campaign that falsely claims there is a 'new' requirement that employers purchase compliance posters or face fines of $7500."  Bysiewicz is also investigating whether the company is operating legally in Connecticut. 

The Connecticut Employment Law Blog first broke the story of this marketing effort and discussed what the employer's real obligations were under the law yesterday (see previous posts here and here.)  Earlier today, I noted Attorney General Richard Blumenthal's statement. It is now available online here. 

The press release states:

“Today we are warning Connecticut business owners – do not be duped by the scare tactics of this unauthorized campaign and these phony “new” requirements,” said Bysiewicz. “My office has launched an investigation to determine if Progressive Business Publications is operating legally in Connecticut and I applaud Attorney General Blumenthal for his investigation of PBP for potential fraud. We urge anyone who has fallen prey to this scam to contact our offices.”

The marketing campaign, consisting of blast-faxes and emails from PBC, is entitled: "CONNECTICUT HEALTHCARE ADVOCATE, OFFICIAL NOTICE". This campaign is NOT authorized by the Office of the Healthcare Advocate, State of Connecticut. The promotion falsely states that this is a "NEW" requirement, and encourages the reader to purchase the poster under threat of "fines of up to $7,500." The solicitation gives potential buyers an option of purchasing a single compliance poster for $12.99 or a “Complete Connecticut State Kit” consisting of 11 posters for $89.99.

“As soon as we were notified of this scheme we took action,” said Lembo. This marketing campaign and solicitation are in no way authorized by the Office of the Healthcare Advocate. This scheme targets business owners trying to play by the rules. Business owners who are required to post health insurance information may contact my office and receive this poster free of charge.”

The Connecticut General Statutes (CGA 38a-1046) require that employers who offer a fully-insured health insurance product to their employees, "shall obtain from the Healthcare Advocate and post, in a conspicuous location, a notice concerning the services that the Healthcare Advocate provides." The notice/poster that fulfills this requirement is available, free of charge, by contacting the Office of the Healthcare Advocate at 1-866-466-4446 or healthcare.advocate@ct.gov.

As before, I'll update with any noteworthy developments.

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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 headlines of the week nationally have certainly surrounded sexual harassment allegations both old and new.  (Note: Due to my firm's involvement in one of those cases, I will not be blogging on it). 

But with the issue back in the forefront, I've been surprised lately in my discussions by how some small to mid-size employers are overlooking the basics in Connecticut.   Do they believe that such conduct just doesn't exist anymore or do they believe that their employees "know it all" about the subject? While claims of sex discrimination filed with the EEOC are down nearly 10 percentt from their peak in 2002, the numbers hardly show such a pronounced drop off that would indicate we've "solved' the problem of sexual harassment in the workplace.  Indeed over 20,000 complaints were still filed with the EEOC as of 2006.

What do I mean by the basics? In Connecticut, its training and posting.  These requirements are found in the administrative regulations , Conn. Regs 46a-54-200 et seq. set up by the CHRO regarding sexual harassment prevention. 

• For posting: All employers who have 3 or more employees must notices that say sexual harassment is illegal and address what the remedies are for such harassment.  The regulations all spell out in specifics that the notices must contain certain elements. Fortunately, the CHRO has also prepared a model poster that complies with the statute and is available for free download. 

Of course, there are other laws as well that require postings to be set up.  Rather than address each law separately, consider using a company that specializes in such posters, like G.Neil. 

• For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.  (This does not mean that employers who have less than 50 should NOT provide the training; instead, it means that they are not required to conduct such training.) 

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.  The format of the training is fairly rigid; according to the regulations:

Such training and education shall be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

Since that time, the CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.   What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should follow this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training. Again, the regulations suggest a course of action that employers would be wise to follow.

Certainly, the workplace has changed in the 16 years since the issues surrounding Supreme Court Justice Clarence Thomas and Professor Anita Hill became so widely publicized. But for employers in Connecticut, sustained vigilance is needed to make sure these changes and the progress that has been made, stick.

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