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If you’ve read this blog long enough, you know that certain workers are classified as “exempt” from the overtime requirements. The most well-known of these are the white-collar exemptions of executive, administrative and professional personnel.

But state law has several other categories of exemptions you may never have heard about such as a chief engineer of a radio station.  (Conn. Gen. Stat. 31-76i(b).)

The General Assembly, however, recently added a new one in an innocuously titled piece of legislation called “An Act Concerning Commercial Mortgage Loan Originators”.

This is actually not the first time that the legislature tackled this. Back in 2010, courts began to rule that mortgage loan officers were not exempt.   But the legislature in 2011 amended the law to add certain mortgage loan originators as being exempt.

However, the way the language was drafted back then suggested that it may only cover residential mortgage loan originators.  Thus, a fix was proposed this year and passed in Public Act 21-136 (Senate Bill 831).

The new exemption states that the following position is exempt:

any commercial mortgage loan originator who is a highly compensated employee, as described in 29 CFR 541.601. For purposes of this subdivision, (A) “commercial mortgage loan originator” means an individual who for compensation or gain or with the expectation of compensation or gain, either for such individual or for the person employing or retaining such individual, (i) accepts a commercial mortgage loan application, or (ii) offers or negotiates the terms of a commercial mortgage loan, and (B) “commercial mortgage loan” means a mortgage loan not primarily for personal, family or household use.

One other small, but notable change for employment lawyers out there: The cites to each of the exemptions in this section has been relabeled from a letter to a number.  Thus, any cites in legal briefs or presentations should have the updated information.

The law goes into effect October 1, 2021.

Employment law is constantly changing in ways big and small.  This is just another example of the small changes that happen each year that add up over time.

On Friday, July 9, 2021, President Biden issued a sweeping executive order that asked the Federal Trade Commission (“FTC”) to develop new regulations that ban or limit noncompete agreements.

The request has no immediate impact on existing noncompete agreements, but employers should expect new regulations in the coming months.

In the meantime, many questions remain for employers to consider:

  • Will the FTC ban noncompete provisions outright, or will it limit their use with only “low-wage” workers?
  • What would constitute a “low-wage” worker?
  • Will the FTC regulations create new penalties against companies who seek to use non-compete agreements?
  • Can the regulations have retroactive effect?
  • Will other types of restrictive covenants (including confidentiality or non-solicitation provisions) be excluded from any order?

I, along with my colleagues Glenn Cunningham, Peter Murphy, Sarah Niemiroski have published a full alert on our firm’s website here and we will be monitoring the Administration’s actions closely in the coming months.

We will provide additional guidance when new regulations are announced.

In the interim, employers should ensure that any noncompete agreements that are currently being utilized or contemplated are in compliance with new state laws–many of which already address the questions being considered by the FTC.

In a decision released on Tuesday, the Connecticut Appellate Court affirmed the dismissal of a state law gender discrimination claim on the grounds that it was barred by the doctrine of res judicata. 

The procedural background of Fernandez v. Mac Motors, Inc. illustrates an important mechanism for employers to use to avoid fighting a two-front battle in both state and federal courts, while providing a warning sign to attorneys who represent individuals.

The Plaintiff, a former finance manager at the defendant’s car dealership, first brought a federal court action under the Equal Pay Act alleging that she had been paid less than male employees who performed the same job.  While that action was pending, she filed a gender discrimination claim with the CHRO; upon receiving a release of jurisdiction, she then brought a separate state law action alleging gender discrimination.

The allegations of both complaints were nearly identical, according to the court.  Rather than seek a stay of the federal court action or seek to amend her federal complaint to add the state law claim, she just decided to proceed on both tracks. That strategy proved to be a mistake, according to the court.

The federal court first dismissed the Equal Pay Act claim at the summary judgment stage.  Almost immediately thereafter, the employer then filed a motion in state court to dismiss that complaint on the grounds of res judicata. The lower court granted that motion and it was affirmed by the Appellate Court.

As the Appellate Court quotes: “Res judicata, or claim preclusion, express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. . . . Res judicata bars the relitigation of claims actually made in [a] prior action as well as any claims that might have been made there. . . . Public policy supports the principle that a party should not be allowed to relitigate a matter which it already has had an opportunity to litigate.’’

Here, the plaintiff had “several opportunities that were available to her that she could have employed in order to bring her gender discrimination claim before the District Court.”  As if the punctuate that finding, the court even refers to a law school review article on the subject “Avoiding the Trap of Res Judicata: A Practitioner’s Guide to Litigating Multiple Employment Discrimination Claims in the Third Circuit.”

In other words, res judicata bars the plaintiff’s discrimination claim in state court from proceeding.

(A separate sexual harassment claim was not barred by res judicata but was also dismissed on summary judgment grounds, and affirmed by the Appellate Court.)

The case can be downloaded here.

One of my favorite finds during the pandemic has been Ted Lasso – the Apple TV breakout hit.  If you haven’t seen it, it’s about an American football coach who gets hired for an English Premier League soccer (or the “other football”) team.

At least that’s what it’s ostensibly about.

But not really.

Because to watch Ted Lasso is to appreciate the optimism that Ted Lasso has.

Like some of the best workplace comedies (think Newsradio, Taxi, or sure, the Office), the workplace just serves the basis for sharing laughs and perspectives.

With a new season coming out this month and summer vacations (read: time for streaming) in full swing, I thought I would highlight some of my favorite workplace “lessons” that I was able to glean from the first season.  It’s The Lasso Way.

  • Be positive and a good person

We all know the expression regarding a glass half full (versus half empty), but the positive attitude Coach Lasso brings is infectious. “I do love a locker room. It smells like potential.” He puts up a sign of “Believe” and always thinks positive. Good will begets good will is an expression I often use.   That positivity translates well to a workplace.   There are limits to the positivity, however, as his broken marriage demonstrates so positivity can only get you so far.

  • Be empathetic and treat people with respect

No doubt this flows from being positive, but Coach Lasso is consistently taking an interest in each team member to understand them for who they are, not necessarily who you want them to be.  He allows people to be themselves, despite their flaws.  He treats the team’s owner with respect saying that “we can’t be good partners if we don’t know each other” but also takes a genuine interest in the “water boy” too.  There’s something to be said about not judging people by their worst days.  The notion of being respected by others and not underestimating them is the subject of the favorite scenes while playing darts. I won’t spoil it but you can watch it here.

“You know what the happiest animal on earth is? It’s a goldfish. Want to know why? Got a ten second memory. Be a goldfish.” The point Coach Lasso makes is to not focus and dwell on mistakes; learn from them and move on. Quickly.  We all have made mistakes in our careers, whether as staff or managers.  Similarly, managers need to not judge an individual by a simple mistake; take a larger view. (Note: just don’t put your goldfish in a lake. Bad for the fish and the environment.)

  • Surround yourself with good people and listen

Coach Lasso isn’t afraid to surround himself with opinionated assistants who can confront him.  One of the signs of a strong leader is the ability to hire “A-level” talent instead of “B” or “C” grade talent. Why? Because good leaders understand that they can only be great when they can foster greatness from those that they work with.   Be happy for their success and let them have their own moments, rather than making it all about you.

  • Don’t hold grudges

One of the most moving scenes of the season happens when (spoiler alert) Coach Lasso forgives the team’s owner for sabotaging his efforts.  It is done without reservation but rather with an understanding to her situation — “Divorce is hard….it makes folks do crazy things.”  He extends his hand as a gesture of good will.  Too often, people hold long lasting grudges, perhaps never allowing people to shake first or second impressions. Being open to change and understanding people is a big part of who Ted Lasso is.

  • Understand that training and practice leads to success

Another big scene happens early on with the team’s supposed superstar.  The star tells the coach he is “hurt” for practice (when it is clear he is just sitting out).  But Coach Lasso — despite all his positivity — isn’t afraid to set his player straight.  As he notes, they weren’t spending time and energy talking about the game, “the game you go out there and die for”, but rather just on practice. The point he takes is that his star was taking all this energy to be negative to his entire team about training. Thinking about this in an office setting, how many times has a key salesperson complained about having to go through training by saying they’re too “busy”.  “You know you’re supposed to be out there.  You know you’re supposed to lead by example”.  Exactly.

(Incidentally, if you haven’t seen this mashup between this speech and the Allen Iverson press conference, it is AMAZING.)

If you haven’t hopped on board the Ted Lasso train, I strongly encourage you not to miss it. Can’t wait to watch Season 2.  Now, I just need to go make some biscuits (here’s the recipe).

 

Many years ago, I wrote about the passing of a lawyer named Palmer McGee.  He was from a different generation, one who viewed the practice of law as a profession and someone who had a small but important role in my life.  But perhaps the best thing about him was what my mother (who had worked with him) told me: He was a lovely man.

I don’t know if Ralph Monaco ever met Palmer but they were cut from the same cloth. Ralph was a lawyer’s lawyer and a gentleman in every sense of the word. He was the person that other lawyers looked to when they needed advice whether for a case, their job, or life. Ralph became the second youngest President at the time of the Connecticut Bar Association nearly a decade ago — and it was entirely earned and well-deserved.  He was both ahead of time and from another time too.

Ralph passed away suddenly on Saturday far far too early. And I’m heartbroken by his  passing.

I first met Ralph over 20 years ago in the Connecticut Bar Association Young Lawyer’s Section.  He was a few years ahead of me both in professional practice and in personal life.  But he never let his work stand in the way of his family who he loved immensely.  He even brought his toddler to a YLS retreat — Baby Bjorn and all.  We travelled together to ABA conferences for a number of years, shared good meals, and many laughs.

I know that in the days and weeks to come, much will be shared about Ralph’s life.  His family and law partners were closest to him (you can view his professional profile here);  I just knew Ralph as one of the greats.  And while there are many attributes that I could talk about with Ralph, I want to focus on three:

  1. Whenever I saw him, he had a smile as wide as the ocean.  Before the pandemic, he chaired the Connecticut Bar Association Opioid Task Force and he and I worked together again on an Opioid Summit that was held at Quinnipiac Law School when I was Chair of the Connecticut Bar Foundation Fellows.  Always with the smile and warmth.
  2. Ralph was cool under pressure. He had a successful personal injury practice, dealing with a wide range of issues. But he was always prepared.  If he had butterflies, it was well camouflaged by his demeanor. I remember his speech at that Opioid summit. He knew exactly what he was going to say; nothing was left to chance.
  3. Ralph was a leader.  Ralph chaired the CBA YLS a few years before me; I was in the ladder to go up and you can be darn sure that I watched everything he did.  He was inclusive — always willing to help others, particularly newer attorneys.  And he made you feel heard.  When I appointed Ralph to help revise our bylaws when I became YLS President, he accomplished the task without drama.  He just led by example.  Years later when he became the CBA President, he had to navigate multiple crises — never shying from the tasks.

Ralph’s passing will leave a huge void in Connecticut.  He is gone much too soon and I will miss him for what he was — one of the best people around.  He is survived by his wife, Dina, and two daughters, Abby and Anna, and an entire community of friends and family that will miss him dearly.

May His Memory Be for a Blessing.

 

A new website by Connecticut on cannabis use was announced by Governor Lamont’s administration over the weekend.   Unfortunately, it contains an error regarding the cannabis use and the workplace; it highlights the mess that has been created by the General Assembly on the cannabis bill.

Here’s one example.

Over the weekend, the website began to post FAQs on what the new law means.

On one section on the workplace, the website lists the following question:

Can my employer prohibit me from consuming cannabis products outside of work? 

The answer to that question, until July 1, 2022, is just “yes”.   After all, the provisions of the law that are mainly applicable to the workplace, don’t go into effect until July 1, 2022.  (You can go to line 4422 on page 145 of the bill. I’ll wait.)  Nothing has changed for the most part on the current state of the law for employers. (Medical marijuana, for example, remains permitted.)

But that’s not what the website says. In fact, it states that:

The law says that non-exempt employers may not prohibit the off work use of cannabis or take adverse action against an employee or a potential employee for a positive THC test unless the employer has adopted a policy that states otherwise. Generally, an employer may not take adverse action against an employee or potential employee for use of cannabis prior to applying for or working for the employer.

Now, in July 2022, some of this will be true.  However, there’s nothing on the state website to warn people that this portion of the law doesn’t go into effect until another year.

And even the so-called answer is only telling part of the story.  Non-exempt employers AND employees in non-exempt positions will have some protection for off-duty cannabis use unless an employer has a written policy.  But again, that nuance is lost on the website. And what is a “non-exempt” employer anyway? Might the state actually explain what is and is not covered, particularly right now?  And what about an employee who uses cannabis before work (see my 2013 post about people who use the hashtag “#wakeandbake”)  but shows up to work under the influence?

After touting the new website in a press release, it seems somewhat embarrassing to have to explain to someone that the government’s website is just incorrect. But here we are.

So, cannabis users beware. For a more complete summary of the rules and how they apply to the workplace (mainly in July 2022), see the post my colleague Sarah Westby and I did on our sister employment law blog.

As to the workplace and the pandemic, what now?  It’s a question I’ve posed before, but each time, there’s something new on the horizon.

There a lot of uncertainty. Adding to the uncertainty, is the near certainty that the Delta variant will start making more of an impact in this area.

Already, we are seeing cases tick up slightly in Connecticut the last two weeks. And in areas with lesser vaccination rates, the uptick is even more prominent. 

All this comes at a time when employers are eager to move on to a next step. Never mind what that next step exactly is — just something…different.

So here are some things for employers to consider as they think about the next steps:

  • I suspect this is the summer of the vacation.  So it’s unlikely that if you brought people back to the office that everyone would immediately show up anyways. In other words, you have some time the next two months to figure out your next steps.
  • More employers are requiring vaccinations, at least to come back to the office. Already, hospitals are indicating that they will be requiring staff to be vaccinated. Private schools too.  Thus, consider whether this will work for you; vaccinations solve some (but not all) of the issues regarding returning to the office.
  • If you don’t require vaccinations, think further about how exactly you want to maintain a mask policy. For everyone? For everyone just in common areas? Or just the unvaccinated?
  • Even if you don’t require vaccinations, consider collecting the information regarding vaccination status (along with the cards). Knowing you are at a 90 percent rate vs. 50 percent rate can make a big difference in your plans.  How big an issue do you have to manage?
  • If you do mandate vaccinations, consider how you are doing to deal with those who may require an accommodation due to pregnancy, disability or religious belief. Consider further how you will respond to those who say that they are already “immune” because they had COVID-19.
  • And finally, consider whether some caution remains advised. This Delta variant has already shown itself to be far more contagious than prior strains. Introducing it into the confined space of an office is sure to cause issues. Being conservative in reopening right now may also prevent you from having to reverse course in 6 to 8 weeks.

We’ve made a lot of progress this year in the fight against COVID-19 but we’re not quite done yet. The next six months will bring a new set of issues and questions to deal with.

This week, my colleague Sarah Westby and I published a detailed look at the new legal cannabis law in Connecticut and what it means for employers. I’m not going to duplicate the post here but strongly encourage you to read it.

One thing that didn’t make it in the post was strange provision found in one of the definition sections.

Before I explain it, let me set the table:

As I have said time and again, employees and independent contractors are two different animals.  Think black and white.  People who work are either one or the other.  There are tests to determine this as well including the ABC test. People who work are not an employee AND an independent contractor.

Which makes this next provision just bizarre.

As Sarah and I cover, new workplace rules go into effect next year for “employers” and “employees”.  Employers are restricted from taking some actions against employees for cannabis use without a policy and other conditions being met.

You might think that the General Assembly would simply borrow the definition of an “employee” from another section. But you would be wrong.

Instead, the legislature has created a new definition for an “employee” specifically for this law covering cannabis regulation in the workplace.

Section 97 (1) states: “‘Employee’ means any individual employed or permitted to work by an employer, or an independent contractor.

Huh? An independent contractor (which is, by the way, not defined!) is an “employee” too?

Beyond just sheer confusion, this definition is bound to cause issues.  For example, read literally, one could argue that an employer should be barred from taking an “adverse action” against an independent contractor just because that contractor uses cannabis products (absent a policy).  Does that mean that contracts with such independent contractors are void on this issue?

The answers, of course, to these questions are unknown. We are in uncharted waters here. But this is an example of legislation that could’ve used a bit more vetting.  And until (or unless) the legislature cleans up this bill, employers have a lot more to worry about than just cannabis in the workplace.

For now, employees = independent contractors.

Lost amid the press regarding the new law legalizing cannabis use is the fact that the law also restricts smoking far more in the workplace and affords employers more flexibility as well.

The new law requires employers to to ban smoking and e-cigarette use in any area of the workplace (this will apply to tobacco or cannabis). Previously, employers with five or more employees could designate a smoking room for smoking tobacco.

The new law also requires employers to ban smoking both inside the workplace and outside within 25 feet of a doorway, operable window or air intake vent.  Thus, those employees who pop just outside the door to “take a smoke” should be prohibited from doing so unless they move further away.

The new law also allows employers to ban smoking entirely on the property. Previously, employers could just ban it in their “facility”.

There are a few exceptions that will apply including those facilities that are exempted under the Clean Indoor Air Act.

Interesting, the bill does not appear to modify Conn. Gen. Stat. Sec. 31-40s which prohibits employers from requiring, as a condition of employer, that employees refrain from smoking outside the course of employment.

These restrictions become effective October 1, 2021.

For employers, this is a good time to review your policies and practices regarding smoking and, if applicable, review where you have your smoking areas as those areas may have to change if you’re still going to allow it on premises.

Earlier today, I appeared on Dennis House’s Sunday News Show, “This Week in Connecticut” on WTNH, to talk about the state’s new legal cannabis law and its implications for the workplace.

My thanks to Dennis for the invitation to bring this issues to employers and discuss how employers are going to need to adapt new policies.

While many of the rules regarding workplace regulation don’t go into effect until July 2022, that’s little solace to employers who will need to deal with employees who may not understand that and may start flocking to Massachusetts to make purchases starting this Thursday.

Here are the key takeaways for employers:

  • Effective July 1, 2021, personal use of marijuana becomes legal in Connecticut.
  • Employers can still follow existing rules regarding drug use, however, including drug testing applicants and employees for marijuana use.
  • Employers can also refuse to hire employees and can fire employees for use of marijuana both in and outside the workplace.
  • Effective July 1, 2022, new rules go into effect that will require some employers to have workplace policies regarding cannabis use if they want to regulate it.  I’ve recapped these rules in a prior post.

Employers might consider addressing how your particular workplace is going to address this — regardless of when the new laws for the workplace go into effect.