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.

Amid the craziness that is 2020, employers need to be preparing for the rollout of the paid family and medical leave insurance program. Certain aspects of the program become effective in just a few short months — January 1, 2021.

To that end, my firm is hosting the first of several webinars this month on key employment law topics.

First up: A conversation with Paid Family and Medical Leave Insurance Authority CEO, Andrea Barton Reeves this Thursday, October 8, 2020.  You can register for free here.  

In this hour-long program, we will touch on what employers need to know how and find out information from Ms. Barton Reeves on the very latest developments.

In advance of that program, employers should also seek out the new Paid FMLA website which just went live from the authority.

There’s a section on frequently asked questions which may be your first visit, but other sections for employers as well.  I hope to do a deeper dive into this after our webinar this week.

Finally, there are other upcoming programs in our free webinar series as well:

  • October 15: Free Speech in the Workplace: Politics, Pandemic, Social Media & Protests (featuring my colleague Julie Fay and me)
  • October 22: Managing a Rapidly Shifting Workforce – Work-from-Home and Hybrid Considerations
  • October 29: Hot Topics in Labor & Employment Law

All of the programs are at noon and again, all are free to all.  Again, you can register here.

For some of my prior posts on Paid FMLA, see this post.

Late last week, Governor Lamont announced plans to move into the long-awaited plan to reopening businesses in Phase 3.

The exact timing is still to be worked out but the target date is October 8, 2020.

Phase 3 will ease some of the capacity limits but we’re still awaiting details in specific sector rules that have yet to be released.

However, the broad outlines of the Phase 3 reopening are as follows:

  • Increase from 50 percent to 75 percent capacity indoors – subject to COVID-19 safety requirements – for restaurants, personal services, hair salons, barber shops, and libraries;
  • Outdoor event venues (e.g. amphitheaters, race tracks, etc.) will increase from 25 percent to 50 percent capacity with masks and social distancing requirements;
  • Indoor performing arts venues will be able to open at 50 percent capacity with masks and social distancing requirements; and
  • Bars and nightclubs will continue to remain closed.

In addition, there are also changes to the size of gatherings planned. They are:

For private and social gatherings, capacity limits will be capped at 150 people for outdoors (up from 100). For indoors at a private residence, there will remain a 25 person limit but if it is at a place of business, it will be at a 50 percent capacity (capped at 100 people).

For graduations and religious gatherings, indoor events will be subject to a 50 perecent capacity (capped at 200 people) with masks and social distancing. Outdoor graduations and religious ceremonies wil have a 50 percent capacity with 6 foot spacing and no cap. Again, masks will be required.

Again, details on all are expected over the next week.  No changes have been announced for offices so the 50 percent capacity for offices will likely remain in place.

 

Every four years I have a dream that an employment law question will be asked at a Presidential Debate.

I have yet to have that dream realized. And if the topics of debate moderator Chris Wallace are to be believed, we will have to wait (still further) for such questions at an upcoming debate. (Though truth be told, if there was going to be any changes to the topics, might I suggest one on the candidates’ tax returns?)

But like 2016 (or 2012, or 2008), it’s still an exercise worth doing.  So much so that my fellow employment law bloggers have also posted their questions on Monday too. (Links down below.)

So here are two questions for each candidate that I’d like to see asked:

  1. (For Trump) Earlier this year, you signed a bill that — for the first time — provided paid leave to workers under the Famlies First Coronavirus Response Act. But that bill expires on December 31, 2020.  Thus, a three part question: 1) Would you support an extension of the FFCRA; 2) Why does this bill exempt larger employers who can most afford it? 3) If paid leave was worthwhile here, why have you not advocated for paid leave for all workers?
  2. (For Biden) One of your policy statements describes that you will sign into law, the “Domestic Workers Bill of Rights Act”, a bill proposed by your running mate, Kamala Harris. That bill would eliminate the overtime exception for domestic workers.  In another policy statement, you indicate that you will “hold corporate executives personally accountable for violations of labor laws“.  Among fears from some that you will be beholden to progressives in your party, how can you explain your support for businesses among these proposals that will make it more difficult for small business owners to run their businesses?
  3. (For Trump) Under your administration, claims of sexual harassment filed at the EEOC have increased to 7500, up over 10 percent from when you took over.  Some, including SHRM, have suggested that the #metoo movement is responsible for that, including claims against high profile men such as Harvey Weinstein or even Matt Lauer.  How do you explain that rise and what steps, if any, has your administration taken to address this growing concern?
  4. (For Biden) The Trump administration recently proposed revising the rules regarding independent contractors.  At the same time, so-called “gig” workers have provided valuable services while giving those contractors an additional source of income.  Yet you have called for allowing independent contractors the right to “organize”.  Isn’t the time right to revisit the rules regarding independent contractors and would you support a proposal similar to that offered by the Uber CEO last month in The New York Times?

For more debate questions, check out the posts from:

You may recall that back in December 2019 (doesn’t that seem like so long ago?), the General Assembly and Governor Lamont fashioned a compromise on so-called “dual duties” legislation.

The bill required the Department of Labor to revisit a 1950 regulation that has been interpreted by some as requiring time that a server spends on “non-service duties” be segregated.  The DOL was required to propose a “notice of intent” to modify the regulations by April 1, 2020 and, in making its proposal “shall consult with representatives of the restaurant industry, restaurant employees, service employees and other interested stakeholders prior to posting such notice.”

No doubt, this regulation was delayed due the pandemic.

But the draft regulation is now complete; it will now be submitted to the secretary of state for publication.  As first announced by Bloomberg Tax, the new rule could take effect shortly thereafter.

The regulations make several notable changes and provide restaurants with some much needed clarity on the issue.

The regulation would allow a tip credit if nonservice duties make up less than two hours or up to 20 percent of the employee’s shift — essentially bringing back a version of the 80/20 rule that had previously been at issue.

But, the nonservice duties must be separated and recorded by the employer.  Moreover, the employer must provide substantial evidence — such as an electronic or written statement — that the employee has received gratuities not less than the amount claimed as a tip credit.

Notably, the statement may include documentation “via an electronic point of service system or any other method that verifies the amount a service employee has received in gratuitities…“.  This replaces the prior regulation which said that there must be a statement “signed by the employee attesting” to such gratuities.

The regulations also clarifies that certain duties are incidental to service and still qualify for the tip credit.

At the same time, the regulations make it clear that a tip credit cannot be claimed for time a service employee workes when an establishment is not open to patrons.

The proposed regulations can be found here or on the Bloomberg Tax site.

For restaurants, caterers and those who utilize the tip credit, the new regulations are a must-read.  Failure to adopt these regulations may now result in serious penalties for employers — above the punitive class actions that had previously been filed against employers.

Employers that fail to do so are at substantial risk of such claims; you’re on notice now.  Time to get started with adoption.

With little fanfare, the Commission on Human Rights and Opportunities updated its website to note that it was giving a blanket 90 day extension of time for all employers to complete the sexual harassment prevention training.

Previously, that deadline was set for October 1, 2020. While it was granting a 90 day extension of time before — it was only doing so upon request.

Now, the CHRO notes that with the Governor extending our state of emergency through February, the deadline for training has been extended to January 1, 2021 for all employers without the need to seek an extension.

This is great news for employers who have been struggling to keep up with the pandemic and other deadlines.

There are several great ways for employers to meet this obligation. But I’ll put in a plug for a newly recorded webinar that my colleague Keegan Drenosky and I gave last week.  It’s available for all employers (clients or not) on our website at just $20 per person.

There’s also a group rate discount available.

You can find it all on our website here: https://www.shipmangoodwin.com/sexual-harassment-prevention-training

Use this extra time to get this done. If you need additional legal assistance, be sure to contact an employment law attorney or any of my colleagues at Shipman & Goodwin LLP.

 

 

 

Honestly, it’s so hard to find the words to recognize the passing of Justice Ruth Bader Ginsburg.

There are the cute anecdotes about how my wife shared a legal assistant with Justice Ginsburg’s late husband, Marty, or how I’m pretty sure I talked with her at a holiday party many many years ago.  Or how I listened in awe at her receipt of the ABA Medal in 2010.

But such anecdotes seem trivial when compared with her legacy.

She should be remembered as being one of the most consequential jurists — and attorneys — of our lifetime.  She was a role model. Not just for women, of course, but for all.

And so, among the many quotes that I’ve been reading from her over the weekend, there’s one that has been a guiding principle for me that I thought was worth emphasizing.

“I tell law students… if you are going to be a lawyer and just practice your profession, you have a skill—very much like a plumber. But if you want to be a true professional, you will do something outside yourself… something that makes life a little better for people less fortunate than you.”

Let us all resolve to do something more and honor her legacy.

May her memory forever be for a blessing. Rest in Peace.