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

With all the publicity lately about the new efforts by the state and federal governments to "crack down" on employers that misclassify employees as independent contractors, you might think that being an independent contractor is a dirty word.

Not so, according to Michael Gualtieri, who owns and operates ProCourier, Inc. and serves as president of the Messenger Courier Association of America. 

In a column in this week's Hartford Business Journal, Gualtieri says that any attempt to punish employers that legitimately use independent  contractors would be devastating to his business:

By characterizing all of us that depend on a flexible workforce as abusers of the system who purposely “misclassify” workers, the state has the potential to destroy a lot of businesses. And, it does a tremendous disservice to the tens of thousands of businesses that rely on us to provide the flexibility, service and responsiveness that independent contractors offer us.

The point is this: Not all independent contractors are “misclassified” employees. It is a bad business decision for the state of Connecticut to wage some kind of war on every small business that relies on independent contractors to get the job done.

Gualtieri's point is well taken though it remains to be seen whether Connecticut will be undertaking the kind of "war" he is fearful of.  Sometimes, what makes for a nice press release gets lost along the way.  Nevertheless, with tax dollars at stake, we may yet see a renewed emphasis to this area of law.

For employers that use independent contractors, now is the time to review those relationships. Make sure that you are in compliance and if you're not, work with an attorney to get into compliance.

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With the dog days of summer in full force here in Connecticut ("it's the heat AND the humidity"), it seemed an appropriate time to roll out another installment of the "Quick Hits" feature to touch on a few items you might have missed over the last week or so:

• One of the biggest stories that you'll start hearing about is the lawsuit brought by the EEOC yesterday against AT&T in federal court alleging that the company's no-hire policy for those employees who retired under an early retirement plan violated ADEA because it discriminated against older workers.  (The lawsuit itself is available here.) Ross Runkel's blog does a pretty good job this morning  spelling out the details.  For companies that have similar policies, this is definitely an issue to keep a close eye on.
   
• The Connecticut  Employee Rights Blog reported on a recent Illinois decision that held that a "release signed at termination which includes a waiver of the employee’s right to bring a collective action is enforceable and bars such an action."  reports.  Decisions like this might allow employers to breathe a sigh of relief that when employees sign releases, those releases will bring finality to certain claims.
   
• For employers that offer severance pay, one of the issues that never gets talked about  with any detail is the tax implications of such severance pay. A recent article offers a suggestion to employers and employees to reduce FICA taxes by structuring some or all of these severance payments as supplemental unemployment benefit payments ("SUB-Pay").  Well worth a read if your company is struggling with how to deal with the tax issues associated with layoffs.
   
• Without much fanfare, the EEOC has updated a portion of its Compliance Manual addressing the timeliness of filing pay discrimination claims in light of the Lilly Ledbetter Fair Pay. (You can view portions of the Compliance Manual here.) For employers who are wondering about when such claims can be brought (and when the statute of limitations might run), the Manual provides some useful examples.
   
• And finally, there was a good article recently in Law.com that summarizes a lot of the same issues I discussed at last week's webinar on social media and employment law.  Nothing revolutionary, but if you're looking for a post that helps you spot some issues, it's a pretty good start.

(Photo courtesy of MorgueFile)

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Over the last several days, I've been attending the American Bar Association's Annual Meeting in Chicago as a delegate from Connecticut to its main governing board (you can watch the webcast replay here, featuring a speech by Attorney General Eric Holder). The ABA accomplishes quite a bit and if you've been following my Twitter feed lately, you'll know what I'm talking about.

And while the dog days of summer are clearly upon us, there are a few items to catch up on this week.

• John Phillips asks the question - can a psychogenic illness, like that experienced by 1200 Chinese workers, be covered under the ADA?
• As everyone has been focusing on the Employee Free Choice Act now pending on Congress (still nothing really new to report as of yet), the Department of Labor has issued proposed regulations on other union-related issues. Specifically, earlier this week, the DOL issued a proposal that would require federal contractors to notify employees of their rights under federal labor law. You can find the details at the Washington Employment Law Update. 
• There's been some more movement on the federal legislation regarding the Employment Non-Discrimination Act (ENDA). The latest list of House member who aren't yet committed to the bill is here, as reported by the Workplace Prof blog.   Of course, in Connecticut, we already have laws prohibiting employment discrimination on the basis of sexual orientation.
• Our webinar on social media and its implications for employers is still scheduled for Wednesday, August 12th (and has already exceeded our registration at our last webinar!). It's not too late to sign up. In the meantime, the new Connecticut Business Litigation Blog has an interesting article up about the risks of social networking. I'll try to put some of this into perspective next week.
• Molly DiBianca, of the excellent Delaware Employment Law Blog, has a great list of resources up on flexible work arrangements. It's particularly useful for those concerned about preventing caregiver discrimination. 
• The Prima Facie Law Blog has a great refresher (primer?) on the tax treatment of employment-related judgments and settlements.  It tries to answer the common question of whether certain types of discrimination settlement can be accomplished "tax-free" (the answer is mostly "no"). 

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Goin' to the chapel and we're Gonna get married
                               ----- "The Chapel of Love", by the Dixie Cups

Today (November 12th) is the day that many lesbian and gay couples will indeed be going to the chapel (or town clerk's offices, or other places); it's the day that they can get officially married.  (For those that somehow missed it, the Connecticut Supreme Court approved of same-sex marriages in a ruling last month.)  A Public Defender links to a fairly thorough report on what is likely to occur today here and the New Haven Independent has the details on a variety of weddings that are planned for today after the official court ruling implementing the Supreme Court's decision. 

To be entirely accurate, it's the first day that town clerks will have the forms and be able to process applications for marriage licenses.  (You can find a list of all town clerks here.) After the license is issued, the couples have 60 days to actually get married. But some couples are expected to get married immediately after the licenses are issued.

Why is this important for Connecticut employers? Because as of tomorrow, there are obviously going to be a few employees who will now be newly married.  As such, the employee is entitled to have all the rules applicable to married couples apply to them.

This means that under Connecticut FMLA rules, employees will be entitled to take time off to care for a same-sex spouse's serious health condition or enroll in some types of medical/dental plans.

What should employers do now? Go through your policy and procedure manual and your benefit plans and gain an immediate understanding as to what will apply, what may apply, and what will not apply. If it's easier to visualize, use a green, yellow and red-light list to separate the issues and figure out which ones needs to be followed up on.  

For example, one issue that remains confusing will be the application to federal income tax withholding because federal tax laws differ from Connecticut laws.

After sorting through the issues, figure out which ones need to be followed up on and make a decision on how the company will treat situation.  Without a clear understanding of the issues up front, employers will be open to making decisions on the fly -- and more often than not, mistakes  tend to occur when employers make hasty decisions.

Get things right the first time by ensuring that your policies regarding marriage are sexual-orientation-neutral.  And by all means, if you give your married employees a bouquet of flowers for the happy occasion, do the same for any same-sex couples.

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