Summer feels really far away right now.  It’s just been brutally cold here in the Northeast.

(How cold? Too cold for skiing.  That’s brutal by any stretch.)

But summer WILL eventually come. So we’re told.

So the news late Friday that the U.S. Department of Labor was scrapping the test it had released just a few years ago about interns probably went a bit unnoticed.

At first blush, it might look like a big deal. But, in reality, not so much because the federal courts here (including New York as well) had already adopted the new test that the USDOL announced on Friday.

I’ve covered both before, but the TL;DR version is this: The DOL is going to the “primary benefit” or “primary beneficiary” standard that had been outlined in 2015 by the Second Circuit.

Law360 summarized it pretty well here:

Under the [Second Circuit] test, courts have analyzed the “economic reality” of interns’ relationship with their employer to determine which party is the primary beneficiary of the relationship. The standard has been applied in various cases where courts have ruled that interns in a variety of industries, as the primary beneficiaries of their internships, don’t qualify as employees for FLSA purposes and can’t collectively pursue claims for misclassification and wage violations under that statute.

That said, employers in Connecticut don’t have it easy. As I noted in a prior post as well, Connecticut passed anti-discrimination law protection for interns that uses another test too.  That law better tracked the old DOL interpretation which has now been overturned.   That said, that law does not apply to wage and hour claims, only discrimination claims.

So, what does it mean? Employers have a tricky time structuring internships to meet both federal and state law guidance. The “primary beneficiary” test is going to carry the day in many instances, but employers that often use interns should still consult their legal counsel to see if there are any particular issues that need to be addressed for your company.

  • Suppose there’s an old employment agreement between the employer and employee. Then the employer fires the employee.
  • But there’s been a few intervening events and it’s not exactly clear that the employment agreement still applies.
  • Indeed, there’s another contract (let’s call it an supplier agreement) that seems to provide an independent basis for ending the relationship.
  • Nevertheless, the employment agreement contains an arbitration provision.  Are the parties still required to go to arbitration even when one party (namely the employer) argues the contract is void?

Yes, says a new Connecticut Appellate Court decision called Stack v. Hartford Distributors, Inc..

(For background, the employment lawyers out there should look first at a 2007 Supreme Court case that established the strong preference to enforcement of arbitration provisions, which you can find here.  The rest of us can carry on.)

For the court, it noted that the employer appears to “concede that the arbitrator should decide its contention that the employment contract is void and unenforceable” but because the issues of the termination don’t have anything to the employment agreement itself, there was “nothing to arbitrate”.

The court disagreed and said the employee was entitled to have an arbitrator decide whether he was terminated properly under the employment agreement.

Here, the court said, the employment agreement, “which was entered into by the parties on November 2, 2010, the parties agreed, specifically in paragraph 14, to arbitrate any disputes ‘regarding the interpretation or enforcement of this Agreement or any provision hereof’ that could not be settled by mediation administered by the American Arbitration Association.  Additionally, paragraph 16 of the agreement provided in relevant part that ‘[t]his Agreement shall constitute the entire Agreement between [the employer and [the employee] with respect to the subject matter hereof.'”

And, the court went on to add, there was no dispute the employer terminated the employee or that there was an arbitration clause.  While the employer may claim that the employment agreement was void and unenforceable, that issue is still properly before an arbitrator.

In doing so, it relied on that prior Connecticut Supreme Court decision that ‘‘an arbitration provision is severable from the remainder of the contract . . . [and], unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.’’

The takeaway for employers: If you add an arbitration provision to your employment agreements, it’s likely to be read broadly in Connecticut.

In other words, be careful what you wish for; you just might get it.

  • You have your bread. And milk.  Presumably eggs too.  (Anyone making French Toast this morning?)
  • But do you know the employment law rules that apply for winter storms and classic nor’easters like we have today?
  • I’ve written about it plenty before, but here are three issues you may not have thought about recently.
  1. Reporting Time or Minimum Daily Earnings Guaranteed: Connecticut has a “reporting time” obligation (as do several of our neighboring states). It is contained in various regulations and applies to certain industries like the “mercantile trade”. You should already be aware of this law, but it has particular application in storm situations where people may not work full shifts.

    For example, in Conn. Regs. 31-62-D2(d) for stores, an employer who requests an employee to report to duty shall compensate that employee for a minimum of 4 hours regardless of whether any actual work ends up getting assigned. So if you bring your employees in today only to send them home 30 minutes later, you may be on the hook. For restaurant workers, it is typically a minimum of two hours (Conn. Regs. 31-62-E1)

    Takeaway? For certain industries, be sure to know whether you will need to pay employees for a minimum amount of time if you send them home early from their shift.

  2. Wage Agreements: Also be aware of any wage agreements (collective bargaining agreements mainly) that require you to provide employees with a guaranteed minimum number of work hours. Typically, these will need to be followed.
  3. Hours Worked: Be aware of Connecticut’s “hours worked” regulation found in Conn. Regs. 31-60-11. That regulation says that “all time during which an employee is required to be on call for emergency service at a location designated by the employer shall be considered to be working time” regardless of whether the employee is called to work.

    When an employee is on call, but is simply required to keep employer informed of whereabouts or until contacted by the employer, working time starts when the employee is notified of his assignment and ends when that employee is finished.

As I’ve said before, none of these issues should really be new for an employer in Connecticut. But with this being the first big storm of the season, it’s time to shovel out those policies.

For more on storm-related posts, check out this post here.

In years past, I’ve looked at my crystal ball, I’ve read the tea leaves and I’ve even examined my Magic 8-Ball sitting in my office.  (You never know when you need one.)

I’m out of prediction-making tools.

And indeed, since I started doing this, there are now national lawfirms that are offering up their predictions on employment laws. And everyone is pretty much saying the saying thing nationally:

More focus on sexual harassment claims; more on pay equity;  big changes at the NLRB; more on LGBT employment law protections and still more wage/hour lawsuits.

I’ll make it easy: I agree.

But what’s missing is a look at the local perspective for Connecticut employers. So here are some fearless predictions for 2018 applicable to employers in Connecticut.

  1. It’s (still) the economy, stupid. Where’s the recovery? As it turns out, Connecticut’s economy and budget are both in a bit of a mess. Unemployment has crept back up of late and the General Assembly looks to be coming back to deal with a growing budget deficit. Are we in a recession?There’s no end in sight for this mess for 2018; that said, is the federal tax cut going to trigger some activity?I’m guessing not. I think layoffs and more use of independent contractors may carry the day here. And with that, will we see more lawsuits and more charges of discrimination? Let’s check back in a year.
  2. Count on an interesting Connecticut Supreme Court case or two. Each year, the Connecticut Supreme Court releases an employment law decision or two. Some are important to employers; several others are only notable for employment lawyers.This year, there’s one or two cases pending that may be both.  Keep an eye out for MacDermid Inc. v. Leonetti, which was argued in November 2017.  In that case, an employee signed a separation agreement which included a release of a pending workers’ compensation claim for $70,000 or so.  But the employee pursued the workers compensation claim and the Commission (and the Connecticut Supreme Court) found that the agreement didn’t bar the claim. The employer then sought return of the severance and a jury agreed. Now the employee appeals.  My guess: A close call but comparable federal “tender back” rules suggest employee may not need to return the severance for an invalid release. That said, I’m hedging a bit because the case is complicated with lots of briefing so don’t be surprised if a limited exception for the employer here is found.   (I’ll have more on this case in an upcoming post.)And there’s a decision expected in whether religious institutions have immunity from employment discrimination suits under Connecticut law.  Stay tuned.
  3. Less action from the General Assembly than you might think. It’s an election year for Governor. Moreover, the Senate is evenly split.  And if you following polling, the Democrats in the state seem to have some vulnerability.  All that adds up to a legislature that may be less active than you might think.That said, there’s likely to be a discussion about the use of confidentiality provisions in settlements of sexual harassment claims.  And more attacks on the use of non-compete agreements. But like the pregnancy discrimination law that was passed in 2017, expect a compromise that makes any proposal much more palatable to business interests.

So, there you have it.  Three fearless predictions in Connecticut employment law.

In the meantime, I need another cup of coffee this morning. Best wishes for a happy and healthy 2018.

The only relevant test of the validity of a hypothesis is comparison of prediction with experience.

So said the economist Milton Friedman.  At least the Internet says he said it. Must be true, right?

Anyways, before we turn the page to 2018, let’s take a look back at the predictions I laid out on January 2, 2017 for the employment law year. 

  • 2017 is going to be different. Very different it seems.  The USDOL nominee is an outgoing fast-food company CEO for starters.  He’ll bring a management perspective far different than the current administration.

Well, he didn’t last long. The DOL nominee never made it to the Department of Labor.  By February of 2017, he withdrew his name as a nominee.  Who would’ve predicted that?

But the replacement nominee came from a similar management-side background. As such, he’s brought the expected change to the department.  And not surprisingly, 2017 has been very different indeed for employment law.  No overtime rules and a slowing down of other rulemaking as well.

All in all, a modest prediction and mostly met.

  • The biggest change we’ll see will come from the appointments to the National Labor Relations Board.  Expect the appointees to be management-friendly and roll back several decisions and rulings from the NLRB.  Those decisions, however, may take some time to work through however.

Well, this was spot on.  Admitted, it’s somewhat easy to predict because the NLRB is a nakedly-partisan group. The decisions that come from the NLRB are more political than almost any other agency — and change from administration to administration.  The appointments have, as expected, been management-friendly.

Moreover, it took a good bit of time for those decisions to work through the system. Indeed, arguably it was only last week that we saw the first major shifts as we recounted in a blog post earlier this week.

For this prediction, I think I can declare this one a success.

  • Federal increases to minimum wage or federal legislation on things like paid sick leave or employment law protection based on gender identity or sexual orientation also seem unlikely.

This too, seems on target.  There’s been no major federal legislation in the employment law area to come out of Congress despite the Republicans controlling both the House and the Senate.   While I’ll save the 2018 predictions for another day, I think it’s safe to say that we should expect more of the same in 2018.  Prediction met.

  • What happens at the U.S. Supreme Court is still up in the air as well, though don’t be surprised to see a return of a union dues or “agency fees” case.

It took until September, but the full Supreme Court took up the “agency fees” case again.  The court had deadlocked on the issue in early 2016 so it’s not a huge surprise to see it come back.  Oral argument is now scheduled for late February 2018 and a decision is expected by June.  Again, met this prediction.

So, all in all, a fairly modest list with some decent success.

What will 2018 have in store? Stay tuned!

Barring some major developments (or an urge to write), this will likely be the last post for 2017 as well.  I wish you, your workplaces and your familes (your real ones, not your workplace ones) a safe and warm holiday season, and a Happy New Year.

My colleague, Jarad Lucan, returns today with a very special post on a ground-breaking week at the NLRB.  For Connecticut employers, the decisions change a lot of what has been going on at the NLRB for the last several years.  

Back in January of 2013, I wrote an article for the Connecticut Law Tribune entitled “For the NLRB, a December to Remember,” which you can read here if you are interested . In that article, I discussed a slew of Obama Administration Labor Board decisions that were handed down in December of 2012 and that construed labor law in a way favorable to employees and unions.

Based on decisions last week from the new Trump Administration Labor Board (issued just before Chairman Philip Miscimarra’s term expired), this December has proven to be another memorable one;  this time, however, employers that are the beneficiaries.

In a decision involving The Boeing Company and its no-camera rule that prohibited employees from using camera enabled devices to capture images and video in the workplace without prior approval, the Labor Board took aim at its 2004 Lutheran Heritage Village-Livonia decision and the standard from that decision applicable to workplace rules and policies.

Under the Lutheran Heritage standard, an employer’s facially neutral workplace rule was determined to be unlawful if it would be “reasonably construed” by an employee to prohibit or restrict the employee’s rights afforded by the National Labor Relations Act.

For years, that standard had been used to find unlawful countless employer policies related to confidentiality, privacy, social media use, and courtesy.

In place of the Lutheran Heritage standard, the Labor Board, in The Boeing Company case, established what amounts to a balancing test.

Under the a new test, the Labor Board first looks at whether the rule or policy, when reasonably interpreted, would potentially interfere with employee rights under the Act.

If it does, the Labor Board then looks at two things:  (1) the nature and extent of the potential impact on employee rights protected by the Act; and (2) the legitimate justifications associated with the rule.  If the justifications outweigh the impact, the rule will be lawful.

The decision also lays out three categories into which the Labor Board will classify rules.

The first category covers rules that are legal in all cases because they cannot be reasonably interpreted to interfere with employees’ rights or because any interference is outweighed by business interests; the second covers rules that are legal in some cases depending on their application; and the third covers rules that are always illegal because they interfere with employees’ rights in a way not outweighed by business interests.

Applying the new test to The Boeing Company no-camera rule, the Labor Board determined that the rule was lawful.

The Labor Board reasoned that the rule potentially affected employees’ rights protected by the Act, but that the impact was comparatively slight and outweighed by important business justifications, including, in that case, national security interests.

In light of this decision, employers should take a fresh look at their workplace rules and policies.  However, unlike such reviews following previous Labor Board rulings when employers would rush to revise or eliminate rules held to be invalid, employers should consider each rule and the justification behind the rule.

In another big move, but in a decision likely to impact less employers, the Trump Administration Labor Board majority voted to overturn the Obama Administration Labor Board’s controversial 2015 Browning-Ferris Industries ruling, which I wrote about here.

In Browning-Ferris Industries, the Labor Board held that two partners in a business relationship are joint employers when one has even “indirect control” over the other’s employees.

The Labor Board’s decision restored the Board’s prior “direct control” standard for weighing joint employer status.  As the Labor Board majority stated, “[w]e return today to a standard that has served labor law and collective bargaining well, a standard that is understandable and rooted in the real world.”

Additionally, the Trump Administration Labor Board majority voted to overturn the 2011 Specialty Healthcare “Micro-Unit” standard.

That decision related to the appropriateness of the make-up of a newly petitioned-for bargaining unit and seemingly placed great emphasis on the extent in which the petitioned-for unit was organized.

Under that standard, and employer could only add to the individuals included in a petitioned-for unit if it could prove an overwhelming community of interests.

The Labor Board has now returned to previous precedent and will examine whether petitioned-for employees share a community of interests “sufficiently distinct” from excluded employees to warrant their own unit.

In the coming months, the Trump Administration Labor Board is likely to overturn other labor law decisions, including those related to college student’s rights to unionize, and employee use of employer e-mail systems to engage in protected concerted activities, among others.

Such is the nature of a labor board that pays little regard to precedent and instead shifts according to the administration in power.

Stay tuned.

This post is for the employment law nerds out there.

You know who you are.

You pore over the statistics that show a correlation between the unemployment rate and EEOC filings.  (I see you Lawffice Space.)

You rate who the “Worst Employer” is of 2017.  (Can’t wait for the announcement next week, Ohio Employer’s Law Blog.)

You listen to podcasts about employment law. (Yes you, Hostile Work Environment podcast from Marc Alifanz.)

And, if you’re the publisher of this blog, you pore over meeting minutes of the Connecticut Commission of Human Rights and Opportunities.

Someone has to do it.

And in reading the minutes of an August 2017, I saw a references to a new Case Assessment Review process in place since July 1, 2017.

“What was this?”, I thought at the time.  I got excited.

And then in October 2017, in a moment of brilliance extreme employment law nerd-ism, I sent an old-fashioned Freedom of Information request for that procedure.

Then I waited.  And waited.  At least it seemed like I waited.

Actually, it wasn’t long at all. Just a few days, in fact. My thanks to the agency for complying with state law humoring me and responding so promptly.

It arrived in my inbox. All 18 pages worth.

I wish I could tell you that it was groundbreaking.

It wasn’t.  A lot of the details in it are so pedestrian (“Clerical creates a case folder in the S drive”) that it’s only surprising in the level of detail.

There are a few nuggets of data.  It confirms that the Case Assessments are being handled by “Legal” now in a centralized location.

In fact, the cases are assigned to different people for drafts based on the last digit of the case number.  (Rejected slogans: “C’mon Lucky #7!” or “Stay Alive with #5!”)  The Principal Attorney will then review the proposed drafts.

And…I’ve probably lost you already.

See? It really only something for the employment law geeks.

If you are such a person, you can read the document here.  Consider it your Hanukkah present.

You’re welcome.

 

I’ll never forget the day I drove into Newtown, Connecticut.  As NBC 30’s Gerry Brooks tweeted this morning: How could you?

It was probably the first time I had made my way to that town outside of Danbury.

But that wasn’t the reason I remember that day.

It was the empty hearse outside a church.

Outside a Newtown church

It was the massive flag on the history Newtown flagpole at half-mast, blowing in the wind on a crisp December day.

It was the countless makeshift memorials and signs reading “Pray for Newtown” that dotted the road.

And it was days after one of the worst events in Connecticut and in the nation’s history.

Today marks five years since that awful, despicable day in Newtown when 26 children and adults were shot and killed in Newtown.

And in the days afterwards, I went to Newtown to deliver dozens upon dozens of gift cards that my wife and I collected in 48 hours after that tragedy from friends, friends of friends, and others.

Our gift card donation

At the time, I didn’t mention the amount here. It was too soon to the tragedy.  I noted in a post just days afterwards that there was a tangible hole you could feel in Connecticut.

It’s still there.

But with time, I recognized that it’s important to acknowledge what we can do when we work together.

In just 48 hours, with nothing more than a few Facebook status updates, back in 2012 my wife and I collected $11,000 worth of gift cards in $25 to $100 increments.

It was so overwhelming that I asked an accounting firm to assist to make sure we tracked each card.

Things were so chaotic that I remember walking in to the administrative offices not quite sure what to do next.  I don’t think anyone there knew either. This was just before the massive relief funds were getting started.

I never did hear what happened to those gift cards that were destined to teachers.  At the time, it was thought that they could be used for supplies that the teachers might need.

I think back a lot to that time. The people I’ve met since. The work that everyone has done to help that community.

Five years later, and it still feels like yesterday.

And it still feels so painful.

My posts on the subject can be found here, here, here and here.  For more on contributions, please check out Sandy Hook Promise.  

There is news in the employment law world beyond sexual harassment.  Arbitration clauses to be exact.

Yesterday, the Second Circuit issued a small, but important decision for employers that will continue to limit FLSA wage & hour claims.

The court ruled that an employee’s FLSA claims in court were barred by the arbitration clause contained in his employment agreement.  While it isn’t the first time, it’s clear logic will be tough to ignore.

(The case, Rodriguez-Depena v. Parts Authority, Inc. et al can be downloaded here.)

For the court, it was not even a close call. The court ruled that the Supreme Court’s pronouncement years ago that age discrimination claims were barred by an arbitration clause controlled.

The court also looked at whether its decision in the Cheeks v. Freeport Pancake House, Inc. – which required oversight of settlements of FLSA claims — precluded arbitration. The court said it did not.

The rationale of Cheeks, however, is assurance of the fairness of a settlement of a claim filed in court, not a guarantee of a judicial forum.

For employers in Connecticut it remains to be seen if the Connecticut Supreme Court will be all in on such a logic for state wage & hour law claims, but the federal endorsement of arbitration provisions provide a strong basis for doing so.

The case is yet another sign that employers have a few options when it comes to FLSA claims.  It has previously held that class action waivers for FLSA claims are also valid.  

Nevertheless, employers should once again consider whether mandatory arbitration provisions are right for their workforce, particularly when combined with class action waivers.  Having such provisions in place could make a big difference in the future.

In yesterday’s post, I talked about the basics of what is and is not “sexual harassment”.

Continuing the theme of going back to the basics, employers in the Constitution State have certain posting and training requirements that must be followed.

These requirements are found in the administrative regulations set up by the CHRO regarding sexual harassment prevention.

I first detailed these in a post WAY back in October 2007 (!) but they remain just as important today as ten years ago.

For posting: All employers who have 3 or more employees must provide notices that say sexual harassment is illegal and address what the remedies are for such harassment.

But here’s a free shortcut: The CHRO has prepared a model poster that complies with the statute and is free to download.  You can do so here. 

It’s a good time to remind employers too that employers should also update their “Discrimination is Illegal” poster also offered by the CHRO.  The poster was updated in October and again, is free to download here.  

For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.

Of course, this does not mean that employers who have less than 50 should NOT provide the training; indeed, offering the training can assist with a defense of a potential sexual harassment training.

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.

The format of the training should be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

The CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Those topics are:

  • (A) Describing all federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply, including, but not limited to, the Connecticut discriminatory employment practices statute (section 46a-60 of the Connecticut General Statutes) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section 2000e, and following sections)
  • (B) Defining sexual harassment as explicitly set forth in subdivision (8) of subsection (a) of section 46a-60 of the Connecticut General Statutes and as distinguished from other forms of illegal harassment prohibited by subsection (a) of section 46a-60 of the Connecticut General Statutes and section 3 of Public Act 91-58;
  • (C) Discussing the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving persons of the same or opposite sex;
  • (D) Describing the remedies available in sexual harassment cases, including, but not limited to, cease and desist orders; hiring, promotion or reinstatement; compensatory damages and back pay;
  • (E) Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
  • (F) Discussing strategies to prevent sexual harassment in the work place.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.

What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should consider following this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training.

Again, it is a wise course of action to follow.

If you haven’t taken a look at your posting and training materials at your company, now is a good time to do so.