Wage and hour class actions are nothing new in Connecticut.  Over the last few years, some employers, particularly in the restaurant field, have been blindsided by the sheer number of them. Some — to be sure — have merit to them.

But we’ve also seen class action lawsuits that attempt to push the envelope.

Take the case of Belgada v. Hy’s Livery Service, Inc.

The facts, according to the court, are relatively undisputed.

The company — which employs limo drivers — had a written policy about meal breaks and allowed the drivers a one-hour break.  During the break, the drivers had to stay dressed in work clothes, monitor their phones and shouldn’t leave the limos “unattended”.  If they were called, they would be paid for their time.  Drivers weren’t expected to watch the vehicles “24/7”.

The lawsuit maintained that the chauffeurs were “effectively chained to their vehicles” and therefore should be paid for their meal breaks.

Who’s right?

The Connecticut Superior Court — while certifying the class — rejected the claims in a decision released last week.

First, the court rejected the claim that the policy created a contract.  It did so in fairly easy fashion. Why? Because the employer’s policy was in the employee handbook and the handbook contained a clear disclaimer that the handbook is not a contract.  Thus, the policy was not a contract.

However, the court said it didn’t really matter.  The regulation cited by the class says a break without pay requires an employee to be “completely relieved of duty”.  The Court, however, said that being “ready for duty isn’t duty”, according to the Court.  At most, the drivers are told they “might get called to duty”. In fact, according to the decision, one of the drivers visited an off-track betting facility during one of these meal breaks.  Thus, the drivers really were relieved of duty.

What about the claim from the drivers that they couldn’t leave the vehicles “unattended”?

According to the court, “in the class’s view this grapples these chauffeurs to their vehicles with hoops of steel”.  The court rejected this because it would lead to an “absurd” result.  Instead, the court said that it would apply the ordinary meaning that “all the chauffeurs have to do is look after their vehicles–take care of them–before they go on their breaks.”

The court’s decision is worth a read for its criticism of the “logic trap class counsel sprang on a couple of Hy’s managers”, though it’s a bit arcane even for an employment law blog.

Is this the end of wage & hour class actions in Connecticut? No way.  In fact, this same judge certified a wage and hour class just a few months ago in another case. 

However, to say that there are no defenses for employers in these cases is going too far as well.  The court’s analysis shows that there are still a few paths for employers to challenge such claims.

One path forward for employers? Conduct a compliance review before a lawsuit is filed.  Figure out where your blindspots are.  There may not be easy fixes but at least employers can understand their risks and work towards full compliance with experienced counsel.

In a decision that will be officially released on Tuesday, the Connecticut Appellate Court has upheld the dismissal of a wrongful discharge claim against Marvelwood School, an independent school in Kent, Connecticut. In doing so, the Court turned back an attempt to limit the employment-at-will doctrine and provided employers in Connecticut with reassurance that wrongful discharge claims will be appropriately limited.

The case, Zweig v. Marvelwood School, can be viewed here.

(An upfront disclosure: My firm represented the employer here and I represented the school on the successful appeal.) 

The facts of the case are relatively straightforward and are summarized in the court’s decision. The plaintiff Aaron Zweig was employed by the defendant Marvelwood School as a history teacher and school’s Director of Food Studies. That role required him to establish and maintain a garden on campus and use it to teach a class on food studies.

In May, 2015, Mr. Zweig allegedly objected to the school’s suggestion that telephone poles that had been treated with creosote, a pesticide and wood preservative, be used to make raised beds in the garden because he believed that the chemical posed a health risk to himself and his students.

Continue Reading Connecticut Appellate Court Rejects Challenge to At-Will Employment Doctrine

Over the weekend, I became one of an ever-growing club: The Fully Vaccinated.  (A lucky extra dose at a pharmacy was my early miracle.)

By early May, there will many millions more.

What then?

I posted on Twitter over the weekend that being fully vaccinated right now is a strange world that is causing the voices in my head to go “Let’s go outside! Maybe even a restaurant!” and “There’s so many people here! Do we have to?”

Yes, there have many of you that have continued to go into an office or retail store or manufacturing floor. But there is also a good majority who haven’t done much of anything in close to a year.

The shift to full vaccination is a weird one.  Ostensibly I should be able to go back into the office without much worry. But will I? Do I even want to go back into the office every day? What about others?

For a look to our future, look at Israel.  Israel has led the world in vaccinations and has experienced a huge decline in cases in the last month with over 50 percent of the population now vaccinated.  Will Connecticut be far behind? Already over the weekend, the number of cases has started to drop here in the state and hospitals are reporting a slight decline too.

It’s not hard to think that by the end of April we’ll be in an entirely different place.

For employers, one of the biggest questions to consider is now moving front and center: Do we mandate vaccines? If so, when? Anecdotally, I’m hearing from more employers that are starting to consider it.  With vaccines now available to entire working population, what was previously a desire, can now move to reality.

The devil is in the details though.  Employers that are considering it need to be mindful of the exceptions that should be considered for religious or disability-related reasons. But it finally seems like the time is right to at least consider it and consider drafting a policy.

Fully vaccinated is coming quick — and probably quicker than you may realize.   I’m still thinking about everything I can do now.  Baseball game? Dinners with friends? Costco runs?

Employers should start to think about all the things you might be able to do too.

The headlines from the American Rescue Plan Act are all about the $1400 recovery rebate credits.

But for employers, there are a lot more details about the tax issues and employee benefit issues that are contained within ARPA.

My colleagues have prepared a thorough summary on our sister blog, Employment Law Letter.  One item that employers should focus on concerns a new COBRA subsidy in place for the next 5 months or so.

As my colleagues have explained:

ARPA provides an “assistance eligible individual” (an ARPA-defined term that generally means a person eligible for COBRA whose employment is terminated by the employer, not from the employee voluntarily terminating his or her employment) with no-cost COBRA premiums during the portion of the person’s COBRA coverage period beginning with the month of April (e.g., the first month beginning after ARPA is enacted) and ending on September 30, 2021.  (Note that the COBRA premium assistance ends when the assistance eligible individual becomes eligible for coverage under another group health plan or under Medicare.)

ARPA defines assistance eligible individual to include both the employee and his or her eligible qualified beneficiaries, and also applies the COBRA premium assistance benefit to persons whose qualifying events precede the enactment of ARPA.

ARPA also permits an assistance eligible individual who elects COBRA to choose to enroll in a group health plan that is different from the plan the person was enrolled in at the time of his or her qualifying event, provided that the employer chooses to offer that choice to the assistance eligible individual. ARPA provides for special notices that must be furnished to an assistance eligible individual to notify him or her of these special COBRA rules.

For employers, this is a two-fold issue. For those employees who are already on COBRA, employers should be updating them on their rights to receive this new COBRA subsidy. For employees who become COBRA-eligible, employers should further notify them of their rights to receive this new COBRA subsidy as well.

For more details, check out the full post here. 

It’s late March, which means that it’s too soon to predict which bills at the Connecticut General Assembly are going to have enough support for final passage, but not too soon to take a look at what is on the table.

By “on the table”, I mean bills that have been voted out of the Labor & Public Employees committee.  Before that happens, a lot of proposals are good for headlines but may never see the light of day.

But now that the Labor committee has finished up its work last week, the bills outlined below have been voted out of committee.  As we know from our Schoolhouse Rock songs, these bills still have a long way to go — other committees, the House, the Senate, the Governor — and that presumes a vote too.

Here are a few that are worth keeping an eye on:

The CBIA has done a full recap on the Labor & Public Employee Committee’s work here. 

 

Last week, along with my colleagues Lisa Zana and Robert Grady, I presented to the Association of Corporate Counsel group from Westchester County and Southern Connecticut on Returning to the Office.

Of course, it’s still premature.  The COVID-19 cases in Connecticut and New York are among the highest in the nation. While vaccinations continue to be ramping up, right now at least, it seems that the virus is willing — particularly among the twenty- and thirty-something generation.

The pandemic isn’t over.

Before my partners talked about the legal issues surrounding office leases and I talked about how some employers might bring some employees back sometime, we also had a representative from CBRE, the largest commercial real estate services company in the world, talk about workplace current trends.

There was lots to digest, but his overall pitch — which I think is the correct one — is that the pandemic did not create new trends; rather it vastly sped up the existing ones and will continue post-pandemic.

Among them was a realization by the C-suite that remote work has maintained or increased workers’ productivity, that employees realized they preferred to work remotely 2-3 days a week and that offices workplaces need to be reconfigured.

As a result, CBRE was predicting that there will be a more fluid workforce in the future, in which offices have more unique hospitality-inspired experiences, where flexibility and technology still rule the day.

Of course, this isn’t going to change some of those essential workplaces, like manufacturers or grocery stores, but for many traditional white-collar jobs in finance, legal, insurance or technology, there is not “going back to normal”.

“Activity-based work” is now under widespread consideration as office occupiers, as CBRE calls them, try to take advantage of the hybrid work model that may spring.

2021 is already shaping up as a whiplash kind of year where we’ve gone from the quiet solitude of the cold winter months, and a state where vaccinations become widespread by summer.

Still, the rush back to the office is more likely to be gradual at best. Employees have grown comfortable with some of the aspects of working from home and employers take stock of whether offices should be reconfigured.

In the meantime, stay safe everyone. The next month or so promises to test everyone’s patience as this latest wave builds (and hopefully crests).

A few days ago, I drafted a pretty somber take on the last year in lockdown.  It recounted those early hectic days and the long slog of working from home.

Candidly, it was kind of depressing. Maybe I’ll post it one day here. But not now. (If you want a post from a year ago, I can give you that link.)

Vaccinations have a tendency to make you start to think about the future in ways that seemed only theoretical before.  Why look back when right now, it’s never been better to look forward?

Don’t pop my balloon by telling me that the UK or NY or South Africa or Brazil variants are spreading.  It’s a race with the vaccines and I’m going to remain optimistic that the vaccines are winning.

Over the weekend, the CDC posted eye-popping statistics showing the country doing nearly 3 million vaccines in one day. That’s over 1 percent of the eligible population.

You don’t need a math degree to understand that if this pace continues or even increases, we could be getting to widespread immunity (along with those who have already had COVID-19), sometime over the summer.

That means that employers will have a whole new set of issues to think about. Business travel, for example, is set to make a return. Not in same numbers as before, but in-person meetings, business golf trips, conferences and the like are going to return in some fashion. And maybe sooner than was previously thought.

And after that, in-person dining, cocktail hours, and the bad judgment tales that have historically accompanied such endeavors will also likely return.

For employment law lawyers, I’m still not quite sure what to make of 2021.  Will litigation turn around and rise again? Will wage & hour claims continue to dominate? Will government agencies investigate and pursue safe workplace rules relating to COVID-19 when workforces return in person in droves? And how long will it take for the case backlog to work through the courts?

It’s hard to think that remote work is going to disappear. In fact, what this last year has demonstrated is that remote work can be terrific — when properly utilized.  I’ve gotten used to making that pot of coffee at home in the morning, and not fighting with traffic as well.

But if I’m being honest, I miss those moments in my commute or travelling, when nothing is going on. Those times when I can collect my thoughts and just listen to music or a podcast.  It’s a much needed respite.

One year in, I’m mostly grateful every day for my family that I’ve gotten to spend more time with than they are used to and for my work colleagues who have had to work extra time addressing client issues.

And I’m more optimistic that I’ve been in a long time that the future is looking brighter. The fog of this pandemic is starting to lift. It’s not over and heaven knows there are still far too many people who are refusing to get the vaccine for reason that I can’t quite grasp.  But right now, it feels like the worst may be behind us.

Let’s all hope that it stays that way.

Big changes are on the way for employers in Connecticut that have been operating for close to a year under “Sector Rules” — mandatory practices that were set out by the state that businesses had to follow in order to reopen.

All that changes effective March 19th. 

Late Friday, the state updated the website regarding sector rules for reopening. While some mandates remain, most of the requirements are changing to best practices. As the webpage indicates by the DECD:

The following rules apply to all Connecticut businesses and organizations and are effective March 19, 2021. Please keep in mind that it is the cumulative effects gained from social distancing, hand washing, and mask-wearing that will continue to prevent the spread of COVID-19. Businesses should take these rules as the minimum baseline of precautions needed to protect public health in Connecticut and refer to the recommended guidance by sector listed at the bottom of this page for best practices. Individual establishments should also take additional measures as recommended by industry experts or by common sense applied to their particular situation.

There’s a lot to unpack here; watch for further posts either here or on my firm’s sister site, Employment Law Letter, as we piece this together.  For now, I’m just going to hit a few highlights.

First, what’s still mandated?

  • Capacity limits are now up to 100%, subject to social distancing requirements (unless otherwise noted).
  • 6 ft. spacing and social distancing continues to be required where possible (unless otherwise noted).
  • Masks continue to be required in all public settings where social distancing is not possible.
  • All establishments must follow CDC Cleaning and Disinfecting guidelines.

What is now “recommended”?

  • Businesses/organizations should continue to support local public health contact tracing efforts, such as maintaining a log of employees on-premises over time.
  • Employers should continue to encourage employees to stay home when sick and encourage working from home when possible. In the event of a positive COVID-19 case, employees shall inform their employers and follow state testing and contact tracing protocols.
  • Businesses have the right to refuse service from customers not wearing masks.
  • Social distance markers, signage, and one-way traffic are still encouraged.
  • In terms of ventilation, facilities should work to increase the percentage of outdoor air that circulates into the system where possible, or use window units.
  • Businesses are still encouraged to post clear signage that includes the state hotline (211) for employees and customers to report potential violations of these rules.

For businesses, this is a bit confusing still.  If something is “encouraged”, what happens if employers decide not to follow these recommendations? The state seems to be saying that it will not enforce any penalties but query whether this still leaves employers open to claims by others that employers “should” be following certain rules. As I’ve talked about before, OSHA requires employers to provide a safe workplace; should that mean employers ought to be following this recommendations to provide a safe workplace? Or is a workplace safe without this?

Beyond the above, the new guidance is even more confusing.  Remember all those sector rules that employers have followed? According to the state, beginning on March 19, 2021, those documents “should be treated as recommended best practices”.  Moreover, the rules on the website supersede any conflicting recommendations in the sector guidance.  There are also some specific mandates that still must be followed in certain industries such as restaurants or event venues.

For now, employers should tread carefully.   These changes seem to be a work in progress.  This is a big shift from how businesses have been operating and we’re likely to see more changes over the next few weeks.  Clearly employers can bring more employees back to the workplace. But that doesn’t mean that on March 19th, employers should. The pandemic is still raging despite good progress on the vaccines.  And the risks to employees remain.

One last note: The emergency orders from Governor Lamont are set to expire April 20, 2021. There’s some indication that he may not renew it. So it’s possible that even these recommended practices might change further in another month or so.

 

Last month, our webinar on vaccines was really very popular.  Given the breadth of the topic, we didn’t get a chance to answer all the questions that people had.  In addition, since that initial program, Connecticut has modified its vaccination eligibility rules meaning employers that thought that they would have some time to think about things are now having to address these issues.

While we’ve been following up with clients on questions, we came up with the idea to hold a “mini-webinar” to address just those questions that people have.

On Wednesday, March 10th at 1p ET, I’ll be moderating a discussion where we try to answer as many questions as we can in a 30 minute webinar about COVID-19 vaccines and the very latest that employers need to know.

My colleagues, Keegan Drenosky and Sheridan King, will lead the program.  Best of all, it continues to be free to all.  Register here.

We encourage you to submit your questions ahead of time so we can make sure to know what you are most concerned about right now.  

Lastly, if you missed our first program on vaccines, we encourage you to watch that program ahead of time as we will be assuming some basic knowledge of the laws involved and will really try to get at some of more nuanced questions that have been arising as well.

Today, I bring back one of my favorite recurring features – my conversations with employee-side attorney Nina Pirrotti.

As we’ve moved our conversations (“The Dialogue”) from written to virtual format, we still find the effects on employment law by the pandemic to be wide-ranging.  While vaccinations are welcome, the move to remote work has created new sets of issues for employee and employers to be concerned about.

We hope you enjoy the conversation as much as we have.  My thanks to Nina as always for her time.

And, in the spirit of the lawyer-cat meme, I’ve titled it: We are not a cat.