Several years ago, I saw Bruce Springsteen in concert. (Remember those?)

It was over three hours long and by the time we were done, I remember turning to my friend and saying, “Now THAT was a concert.”

Then, a few years back, we were in New York for the weekend (remember weekends away?) and Bette Midler was in her last weekend in the Broadway production of “Hello Dolly” along with David Hyde Pierce from Frasier.  We got cheap tickets WAY in the balcony.

But we all agreed that it was easily one of the best shows we had seen in some time and my skepticism that Bette Midler was overrated was, well, way offbase.

I’ve realized over the years that spending money to see the best artists at what they do brings me much joy and happiness (calling Marie Kondo).  These performers aren’t merely good.  They are fantastic at what they do.

Now, by the same token, I also remember having tickets to Andrew Lloyd Weber’s sequel to Phantom of the Opera called Love Never Dies.

Never heard of it? That’s because it wasn’t just mediocre — it was awful.  So bad that we walked out at intermission. After all, why waste more time on something that is just painful to watch? Sometimes you need just cut your losses.

Think about now of your business, or your department.  And the people that you have.  The fact is that some are better at what they do than others.

For your top performers, business books will say that you should reward them.  That’s easy.

But what to do with the ones at the bottom?

That’s when the lawyers come in.  Often times, a client will call and you can immediately hear the stress in their voice.  They have had it.   An employee needs to be fired; can the lawyer help?

The answer is always “Yes”, but there are distinct caveats and questions that have to be asked. Among them:

  • What documentation do you have?
  • Is there a contract involved or is the employee “at will”?
  • Is the person in a protected class?
  • How do you treat other similarly situated people?
  • And will the employee be blindsided or understand the decision?

And so on. Most times, the decision to terminate the employment of an employee is a business decision, not a legal one.  And there are business questions to be asked too such as:

  • What impact is this employee having on the business?
  • Can the investment in the employee be rescued with counseling and support?
  • Are there alternatives (perhaps even another position) to termination of employment that are available?

Once both legal and business questions have been asked and answered, a lawyer can help a business evaluate the decision further and make suggestions on how to reduce risk (such as suggesting a separation agreement) that might still otherwise exist.

But one thing I do know: Ending the employment of an employee may be painful for all involved in the short term (with the obvious note that the employee will suffer the most), but often times, it can result in something new.

As the author Maria Konnikova has written, “When we should be cutting our losses, we instead recommit…”

Ultimately, spending too much time with the poor performers detracts from the attention you could be giving your top performers — the ones who bring in money to the business.  Talk with your lawyer to make sure the decisions you make with benefit the company in the long run.

You won’t regret those decisions.

Well, it’s over.

Joe Biden will be the next President of the United States effective January 20, 2021.

For employers, the last several years have been filled with several retreats from existing policies.   And over the last year in particular, the Trump administration was busy rolling out new regulations for employers to follow.  It’s not quite as predicted four years ago at this same time but not that far off either.

What’s interesting, however, is that those regulations may not be rolled back so quickly under a Biden administration.  Obviously, the proposed ones can be stopped in their tracks, but others may face a fight in Congress to get them repealed. And if the GOP holds on to the Senate, that will be a challenge.

Other firms are providing a national overview so I’m not even going to try to add that perspective. But I thought in this post, I’d touch on a few thoughts I had been thinking for employers in Connecticut and what we might see in the months ahead.

  1. FFCRA renewal.  Even before Biden takes office, it’s hard to imagine that the paid sick leave provisions of the FFCRA won’t be renewed for 2021. It’s currently set to expire at the end of the year and in the midst of ever increasing cases, this one seems like a priority during the lame duck session.  Jeff Nowak of the FMLA Insights blog did a longer summary here a few days.  For employers in Connecticut, this may end up proving tricky.  After all, Connecticut employers will start to need to comply with the PFML withholding providings in January 2021 and the paid leave itself kicks in the following January.  If you don’t have someone managing this regularly, now’s the time.
  2. Renewed input from Connecticut senators and governor — and feedback.  This may seem less obvious than first but anyone who saw President Trump’s often wildly exaggerated tweets about Senator Blumenthal knows that Connecticut has been out of favor for quite some time.  That will obviously change in a Biden administration.  That may mean more resources, and related to the pandemic, more consistency.
  3. Renewed enforcement at the DOL and EEOC.  Remember the white collar overtime regulations that were released in the closing months of the Obama administration? Maybe not since they were overturned by Congress after President Trump came into office.  While we’re unlikely to see these regulations come back soon, there is no doubt that President-Elect Biden will place a great deal of power and oversight into these federal agencies.  That in turn could trickle down to the state level as well. For example,  will there be a battle regarding so-called “gig” economy workers? Or will a compromise (like Prop 22 in California) be coming at a federal level?

There will obviously be far more analysis in the weeks and months to come.  For now, frankly, they are all dwarfed by the pandemic.  While it’s in “red alert” territory in several parts of the state, it’s raging uncontrollably in other parts of the country.  That is bound to impact state employers.  Even if progress is somehow made over the next eight weeks, I have no doubt that the pandemic will be issues number one, two and three for many months in 2021 too.

 

At his press conference on Monday afternoon, Governor Lamont previewed a new set of changes to the Sector Rules that businesses have been operating under. These changes rollback some of the openings under Phase 3, and Lamont has called this new version “Phase 2.1”.

We’re still awaiting all the details this week; the changes are expected to take effect on Friday. But here’s what’s been released thus far:

  • Restaurants will revert back to 50 percent capacity indoors with 8 people at a table maximum
  • Restaurants and entertainment places will have a curfew; they must be closed to 9:30p though takeout and delivery can continue past that time
  • Personal services (hair and nail salons, for example) can remain at 75 percent capacity
  • Event venues will have deep restrictions; 25 people indoors and 50 people outdoors
  • Performing arts and movies theaters can remain open with capacity capped at 100 people
  • Religious gatherings will also be restricted with 50 percent capacity (and 100 person maximum) with virtual services strongly encouraged.

The governor also announed additional recommendations for businesses:

  • Employers should maximize work from home
  • Employers (and employees) should cancel or postpone non-essential travel. This means those business trips should be cancelled for the forseeable future.
  • And “stay safe, stay home” remains the recommendation.
  • He encouraged those 60 or older, or those in high risk should take extra precautions.
  • He encouraged everyone to stay at home from 10p to 5a.
  • Events and gatherings should end by 9:30p.

The goal overall is to make sure to avoid a larger shutdown later and in particular, to keep schools and childcare places open as long as possible.

Be sure to bookmark the state’s latest guidance and watch for the update sometime this week.  

Oh Halloween.

You have a tendency to make employment lawyers busy.

For instance, there was that time when an employee made comments about a co-worker “taking a girlfriend dressed as a 747 to a Halloween party and bringing her in for a landing” when the co-worker was gay and had no girlfriend. Harassment? (Hansen v. Skywest Airlines)

Or the time when a female employee was dressed as a Barbie doll for Halloween that a male co-worker asked her if she was going to be a trick or a treat. Harassment? (Williams v. Innovate Loan Servicing Corp.)

Then there’s the story of a complaint regarding a gay employee and a co-worker who were seen “jumping naked together” in a trampoline in that employee’s yard after the co-worker brought his children over to trick-or-treat on Halloween night.  Hostile work environment? (Mowery v. Escambia County Utilities Authority)

I could go on. (And I have in a post in past years here.)

This year may prove to be a bit different. With many offices still having work-from-home rules, the opportunities for employee interaction are certainly less than in past years. (Though don’t get me started on Zoom, see Toobin, Jeffrey.)

But is a hard reality that sexual harassment remains pervasive in the workplace — even when it’s virtual. Texting is being used more (I see you Eggplant and Peach Emojis) and increasing amounts of video conferences are being done from bedrooms that double as offices.  (I see you casual wear)

Employers should keep their radar up this year with Halloween and the rest of the holidays approaching. As I noted yesterday, COVID fatigue is real and I sense that employees are just tired of being physically cooped up. Poor judgment is bound to creep in.

Remind employees of the expectations — even when working from home — and ensure that your workplace (wherever it is now) is safe and welcoming to all.

And still, Happy Halloween to all.

It’s supposed to snow Friday here in Connecticut.

In October.

For those of us with memories, we all remember the last time we got substantial snowfall in October in 2011. It ended with lots of power outages and many downed trees. So let’s first hope the snow is just more nuisance than anything else.

Far more nefariously, this week has also brought something else — the return and quick rise of the COVID-19 pandemic.

The numbers released by the state are sobering. High positivity rates that we haven’t seen in many months. Hospitalizations now numbering in the hundreds. And over 500 new cases a day. Red alerts popping up in nearly 20 towns and cities.

And did I mention that this latest wave isn’t even expected to peak until January?

And the new extended travel quarantine that now includes our neighboring state of Massachusetts?

So for employers, there are going to be new challenges in the days ahead. It’s hard to grasp them in their totality but unlike March, we now know a lot more legally than we did and we have sector rules still in place that will apply.

Here are some things to keep in mind:

  • The state still has a Shared Work program to take advantage of. Instead of furloughing employees entirely, those workforces that need to have some employees cut back on their hours can use this program to still pay employees some salary while they also get benefits from the state.  I did a big deep dive on this back in April. Take a look because it takes some time to get up to speed.
  • Emergency Paid Sick Leave and FMLA+ are still applicable to employers with less than 500 employees through at least the end of the year. (Do not be surprised to see this extended in the lame-duck session after the election.) With more employees (and their family members) getting sick, expect to see more and more of these requests.
  • Sector Rules are current in Phase 3, though towns in a “red alert” can roll them back to Phase Two.  While the Governor has indicated that he will be reluctant to roll back the restrictions further, the pandemic may have other ideas.  In the interim, employers ought to revisit who is truly “essential” to the workplace to make sure that workplace safety is a top priority.  Community spread is one thing; workplace spread will have far greater ramifications.  And remember the rules in place for offices still state the following: Those who can work from home should continue to do so.
  • The travel quarantine rules are getting even harder to address.  Adding Massachusetts to the list for the first time is bound to add yet another layer to things. Those CT employees who travel to Massachusetts for work are fine for a day – but spend overnight and things get complicated. Make sure you and your workforce understand the rules.

The next few months may prove to be the most challenging of the last year.  COVID fatigue is real and the thought of being stuck inside for most of the winter is just downright depressing. Employers must remind employees to stay vigilant and safe.

And just for good measure, be sure you are also following the rules for CT Paid Leave. The deadline for businesses to register has been extended to November 23rd from November 1. 

 

Election Day is nearly upon us.

But unlike prior years, many Connecticut residents have already voted, thanks to the pandemic-related absentee ballot system uage.

Still, next Tuesday, our fellow citizens will still take to the polls from 6 a.m. to 8 p.m. to vote for their favorite candidate.  You can find out where you should vote at this easy to use link.

Any Time Off Required?

In the last decade, we’ve seen more and more employers offer the day off to vote.

But here in Connecticut, the question that arises is: Do employers need to provide employees with time off to vote?

Many states offer this type of protection. However, Connecticut isn’t one of them.

Practically speaking, that means employers can insist that employees vote during non-working hours and have no legal obligation to provide time off to employees to vote.

However, a reminder to employees about the polls being open and that they should vote either before or after their particular shift or work hours is certainly appropriate.  Even better, allow employees to take personal time to vote if they wish, or be like other companies and offer employees at least a few hours to vote without penalty.

Your democracy will thank you for it.

No “Threats” To Employees

Connecticut does have one peculiar law, however, that makes it a crime for employers to interfere with an employee’s vote. Specifically Conn. Gen. Stat. 9-365 states:

Any person who (1) during the period that is sixty days or less prior to any election, municipal meeting, school district election or school district meeting, attempts to influence the vote of any operative in his or her employ by threats of withholding employment from him or her or by promises of employment, or (2) dismisses any operative from his or her employment on account of any vote he or she has given at any such election or meeting shall be guilty of a class D felony.

The law was strengthened in 2012, yet don’t expect to find much on the books about this.  Still,  employers should still avoid the appearance of suggesting how to vote to employees. (Employers cannot provide misleading information about the vote either.)

Remind Employees of “Bill of Rights”

Employers can feel free to remind employees of their “Bill of Rights” for voting. Connecticut set up these rules and summarized them in a document here. Among the more noteworthy rules that employees should know of is their right to vote when they are “in line” at the time the polls close.

Other Tidbits

Reviewing the state’s laws on elections also reveals some other interesting quirks and trivial details. For example, voting areas must have have a United States flag (minimum of 3×5 feet) on the wall (Connecticut’s flag is optional), and a telephone. (And no United Nations Flags are allowed.)

No matter your political affiliation, remember to exercise your right to vote next Tuesday and encourage your employees to do the same.

We are still several months away from a vaccine for COVID-19, and probably still even further away from one that will be readily available to the general population.

But I’ve already heard grumblings from employers wondering — can I compel employees to get a vaccine when one is available for the coronavirus?

It’s a question that has more layers than you might think.

In Connecticut, for example, the Commissioner of Public Health is empowered to actually order vaccinations in certain instances.

Conn. Gen. Stat. Section 19a-131e states that a Commissioner “may issue an order for the vaccination of such individuals or individuals present within a geographic area as the commissioner deems reasonable and necessary in order to prevent the introduction or arrest the progress of the communicable disease or contamination that caused the declaration of such public health emergency.”

But despite the availability of such a law, I think it’s probably unlikely that the Governor would make such an order at first.

So, it’s more likely that employers will have the flexibility (like the flu vaccine) to determine whether employees will be required to get a faccine.  It’s not unlimited though and, like flu vaccines, the EEOC has recognized that there may be limited exceptions available.

In its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance, the EEOC has stated as follows:

May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

But, notably, the EEOC added that “As of the date this document is being issued, there is no vaccine available for COVID-19.”  Might the EEOC come out differently here because COVID-19 is more deadly to some and seemingly more contagious?

That is unknown at this point.  But it’s actually not hard to imagine that the EEOC might allow for the same type of exception.  Employees could be provided with PPE that could reduce the risk of transmission to others; obviously, there’s a cost factor involved, but that’s the type of individualized assessment employers will likely want to consider.

Certain industries may also have additional obligations to vaccinate employees. The CDC tracks such rules for healthcare workers, for example.

Employers can insist that employees receive a vaccine and will likely want to track who has received one to determine who might be “safe” to interact with the public without PPE versus employees who will need PPE to do so.  The EEOC recommends that employers strongly suggest such vaccinations — at least for the flu — but I suspect we’re likely to see updated guidance from both the state and federal government on the issue so stay tuned.

Thus, while it’s premature for employers to have a firm policy on vaccination, employers looking ahead at the next few months, may want to consider what approach it will take.  Consider the industry and your existing approach to flu vaccines for comparison.

Lastly, while it is still too early for a COVID-19 vaccine, employers should continue to push employees to get a flu vaccination.

Can you “Say Anything” in the workplace?

Last month, a Silicon Valley CEO told employees that its mission doesn’t include taking stands on political issues outside the financial realm.

As a result, and as reported by the San Francisco Chronicle, “employees were told that internal debates about politics and activism not related to work would no longer be tolerated. Those who disagreed with [that] vision of a “mission-focused company” could take exit packages.

Can a company limit the speech of employees like this?

As I noted in that same Chronicle article, “as a citizen we may have freedom of speech, but it only gets applied in certain contexts”.

States like California don’t typically extend the reach of the First Amendment, so the company is probably on solid ground.

But what about Connecticut? Connecticut actually has a law that has been interpreted as applying the First Amendment to the private workplace.   As a result, employees do have some free speech rights in the workplace.

But what exactly are those rights? I’ve recounted it on the blog before, but because we’re in the midst of a heated political election, my colleague Julie Fay and I decided we should do a deeper dive into this topic.

Thus, on Thursday, we’re producing a free webinar that’s part of the Shipman & Goodwin Fall Webinar Series on Employment Law.  It starts at noon and, did I mention it’s absolutely free to join?

We’ll talk about the election, protest movements, the pandemic, and more.  Find out what speech is and is not allowed in the workplace and on social media. And get practical tips on how to manage this thorny issue.

Hope to “see” you this Thursday where you can find out that you can’t “Say Anything” in the workplace.  

Among the employment law questions that most people ask, I can tell you that “Are strippers independent contractors or employees?” isn’t one of them.

And yet, having posed the question, isn’t there something about it that demands an answer? After all, the employment laws we have should apply to everyone, right?

Indeed, as I’ve recounted before, numerous gentlemen’s clubs claim to be leasing out their stages to exotic dancers to classify them as “independent contractors”.

Those arguments have typically failed and a new case in Connecticut has provided the same answer yet again.

Several years ago, the Keepers Gentlemen Club in Milford sought to use this argument again having dancers sign a entertainment lease with such sterling legal details like a rent provision stating “SEE THE ATTACHED SHEET!!!!!!!!!!!!!!!!!” (A separate rent provision actually charges more rent the less a dancer works.)

But a group of dancers decided to take legal action claiming that they have been misclassified as independent contractors and never received proper wages, eventually filing suit in court in 2015.

The club had one more tool to try to use against the dancers; the lease agreements all had arbitration provisions that it sought to enforce.

As I noted back in 2011 and 2017, this is not the first time these types of arbitration provisions have been used by gentlemen’s clubs. But if you have followed along thus far, you should know how this story is going to end.

First, the court did allow the club to enforce the arbitration provision. But last year, a retired judge serving as an arbitrator found for the dancers, notwithstanding that the dancers here did not remove their clothes entirely (yes, the club actually made the argument that there’s somehow a difference).

And what was the basis of the arbitrator’s decision? As it turns out, it’s nothing more than your standard misclassification analysis: The club exercised a substantial degree of control; the dancers had minimal opportunity for profit or loss; there was “limited genuine skill required to be an exotic dancer”; and the dancers were integral to the business of the club.

In other words, the dancers are really functioning as employees supporitng the club.

The cost to the club? An award from the arbtitrator in excess of $200,000.

Still, the club contested the arbitration award in court claiming that if the lease agreement was invalid, the arbitration provision should also be struck down.  (It also contested the evidence and the award of attorneys’ fees.)

The Superior Court this week rejected those arguments in a new decision.  The Court said that because the arbitration clause had already been declared valid (due to the club seeking to enforce the arbitration provision), it survived any finding that the substantive portions of the agreement were invalid. (The decision in Horrocks v. Keepers, Inc. was first reported by the Connecticut Law Tribune here.)

At the end of the day and strippling away the arguments, the purported agreements by gentlemen’s club simply are as thin as the clothes the dancers wear.

Of course, that probably won’t prevent yet another strip club from attempting to use the lease argument again.  And indeed, the dancers may have a tough time trying to collect their damages.

But that’s a far more mundane topic. Suffice to say the easier lesson to learn is this: Employment laws apply to everyone. Even to exotic dancers.

Before the pandemic (remember then?), you may recall a case last year that drew headlines: Chip’s Family Restaurants was having issues with a class action lawsuit filed against the small chain by allegedly improperly deducting a tip credit from server earnings thereby paying those potential class members below the minimum wage for the performance of “non-service” tasks.

In part as a reaction to that lawsuit, various legislators passed a bill that was little-noticed at first that revoked a key regulation that formed the basis of such claims. That bill was later vetoed and new compromise legislation was passed. Regulations on that new law were set to be released as I noted in an earlier post.

But what happened with the original lawsuit? Notably, the legislation did not retroactively repeal the prior regulation; it only repealed it on a going-forward basis from date of publication. The legislation did add requirements for class certification but the impact on pending lawsuits (and on future ones) is still playing out.

So the lawsuit is very much still alive.  And yesterday, the Connecticut Supreme Court upheld the class action status and answered an important question: To what extent should a court consider the merits of a party’s legal theory before certifying a class action?

The court’s answer? Inquires into the merits of a plaintiff’s case shouild be performed only to the extent necessary to ensure that the plaintiff has met the class action requirements.  (In plain English, a court need not look much into the merits.) The employer here wanted the court to get into a full-fledged analysis of the differences between service and non-service work.

But the Supreme Court (in Rodriguez v. Kaiaffa LLC et al — download here) suggested that there wasn’t a persuasive reason why a determination of the meanings of “service” or “non-serivce” would have an impact on how class certification sould be handled.   The court ultimately concluded that issues of commonality and predominance — two necessary elements for a class action — need not rely on a deep-dive into the legal merits of the underlying claim.

Thus, the court concluded that trial court was correct in not analyzing the merits of the plaintiff’s legal theory in certifying the class.

For employment law attorneys, the case will be an important marker in how class actions certification motions are handled.  In some important ways — at least on wage/hour class actions — the case brings such class actions closer to the federal model.  In FLSA collective actions (which are slightly different than class actions and would involve at least a blog post or two on its own), early certifications without a deep dive into the merits are routine. At least in this case, the court had no issue with postponing a similar review into the merits.

For employers, there are a few other takeaways:

1) For restaurants, the tip credit issue can remain costly. While the rules are changing going forward (and the new law does make it more challenging to bring class actions — more on that in another post), it’s vitally important to get this right.  There are plenty of attorneys looking for these types of cases to take against employers.

2) For other employers, wage/hour class actions might be a bit easier for employees to bring and to get certified. It’s not a sure thing and the full impact isn’t exactly known; however, because of the uncertainty, the cost of defending against such claims is also now up. As a result, employers should again be mindful to follow the rules, no matter how complex they may be seem.

Wage and hour class actions remain expensive — expensive to defend against and expensive to settle.  Employers that seek to use any gray areas in the law — whether for misclassification of workers or for overtime purposes — do so at their peril.  And it serves as yet another reminder that an experienced employment law attorney can help but can’t work miracles.