The Connecticut Appellate Court has an interesting case coming out officially early next week about an employer’s obligations to provide leave as a “reasonable accommodation”. You can download Barbabosa v. Board of Education here.

In it, the Court concludes that when attendance is an essential function of the job (as it will be for most jobs), an employee’s request for intermittent extended leave — that is, more days off — is not a reasonable accommodation under the state’s anti-discrimination laws.

The decision provides some much needed guidance to an area that has been increasingly litigated — namely whether a medical leave, above and beyond FMLA leave, is required as a reasonable accommodation under anti-discrimination laws. The court here finds that there are definite limits.

The facts of the case are pretty straightforward:

  • Plaintiff was a full-time one-on-one, and then classroom paraprofessional for a school system.
  • Throughout her employment, she had “long-standing and well documented issues with absenteeism and tardiness.”
  • By November 2012, a meeting was held to discuss her continued absences and the “negative impact” her attendance was having on students.  She was warned that further violations or unapproved absences could result in suspension.
  • By the end of 2013, she was given another verbal warning and another meeting was held about her absences.
  • In early January 2014, she filed a request for intermittent leave for the entire 2014 calendar year because of a serious health condition.  The request was denied because she had not met the hours requirement under the FMLA.
  • Eventually she was suspended for 30 days without pay in 2014 and yet still her employment was not terminated.
  • The Plaintiff filed a claim under state law alleging that she was discriminated against and suspended because of her disability and that her employer had failed to provide her with a reasonable accommodation. The lower court granted summary judgment to the employer.
  • On appeal, the Plaintiff argued that her generally positive performance reviews created an issue of fact as to whether she was “qualified” for her position. She also argued that her request for intermittent leave constituted a reasonable accommodation that did not eliminate the essential function of her job.
  • The Appellate Court rejects both arguments.

The court starts off by stating that both this court and other federal courts “have recognized that attendance at work is a necessary job function.”  And the court finds that there is no dispute that “Plaintiff failed to perform this essential function in the years leading up to her suspension. ”

The fact that she received generally positive performance reviews is of no concern to the court because the evaluations make repeated references to her attendance being an issue. Of the 13 reviews submitted by both parties, 10 contain a concern about her attendance or punctuality.

As to the request for intermittent leave, the court finds that because attendance is essential, it also shows that “plaintiff’s proposal for intermittent extended leave was not a reasonable accommodation, as a matter of law, because that proposal would eliminate the very essential job function it purports to address.”

The court continues: “Put another way, we fail to see how it is possible to perform the essential function of attending work through an accommodation that provides for even more absences from work”.

What are the takeaways from this case? Two things stand out.

First, the court was impressed by the patience showed by the employer and documentation provided at each step.  Don’t try to do shortcuts.

Second, employees who are continually absent will receive little protection from the courts — assuming employers can show that attendance is critical to the job. Make sure to highlight that in job descriptions if there is going to be some question about that.

There are certain expressions in the employment law world that don’t make much sense.   Call them: Employment Law Oxymorons.

At least for me, hearing an employer ask what they should do about their “1099 Employees” is one of them.

Let’s back up one step:

  • Employees are paid wages and as such, they get issued a W-2 tax form at the end of the year.
  • Independent contractors are paid fees and as such, they should be issued a 1099 tax form.

See the difference?

So when someone says a “1099 employee”, under the law, there really is no such thing.  The problem is that some employers still do not understand the differences or, worse, improperly label workers as “independent contractors” instead of employees.

The modern day example of this was a series of tweets put out last week by a website advertising for a “full-time freelance position.”

See the contradictions?  Full-time and freelance don’t really mesh together.  If you’re truly freelance, you should be able to set your time, place and manner of work.

How do you tell the difference? I previously covered the different tests that should be used but suffice to say that using the phrases “full-time freelancer” and “1099 employees” may indicate that you may not be following either.

Readers of the blog will no doubt know that it’s been far too long since I had Nina Pirrotti on the blog for a conversation about employment law topics.

Excuses abound, but Nina — who mainly represents individuals in employment-related disputes — recently penned a piece for the Connecticut Law Tribune that is too good to let more time pass.

So, knowing still that titling a piece a “Dialogue” while just offering up a link to her piece is less than ideal, it’s important that we move beyond labels to get at the heart of sexual harassment issues remaining in the workplace.

Nina suggests that there are still far too many employers that have chosen to “bury their heads in the sand rather than confront the harassers who line their pockets.”

You can disagree about the scope of the issue but the underlying premise is sound — sexual harassment remains a scourge of the workplace for too many.

What are some of her tips for employers?

  • Conduct Live Trainings
  • Investigate Responsibly
  • Reject the “He Said/She Said” Cop-Out
  • Incentive the Bystander to Come Forward
  • Support the Survivor

There can and should be those who might suggest other paths for employers to follow.

I might suggest that Boards of Directors require their CEOs to provide quarterly reports on what the company is doing to combat sexual harassment, for example.

But having this discussion makes sure that companies continue to focus on combating sexual harassment in the workplace.  That way, as Nina says, we can turn #metoo into #allofus.

 

The Connecticut Commission on Human Rights and Opportunity (CHRO) was sued yesterday by its longtime (and former) Regional Manager Pekah Wallace.  The federal lawsuit claims her employment termination was improper and provides a whole host of information about what has been going on behind the scenes at the agency.

You can download the complaint here.  

(As with all new lawsuits, my standard warning applies — these are allegations in a complaint, not a determination from a court.)

I’ll leave it for others to opine on the merits of the case because my firm represents a number of clients before the agency.

The allegations, however, show, at a minimum, that there was a great deal of friction going on at the agency for a number of years — even while the agency was investigating the outside complaints of employees against their own employers too.

Ms. Wallace alleges violations of: Conn. Gen. Stat. Sec. 31-51q (applying the First Amendment to the workplace); First Amendment retaliation under the Constitution itself and 42 U.S.C. Sec. 1983; Denial of Equal Protection; Intentional Infliction of Emotional Distress; Tortious Interference with Contractual Relations; and Defamation.

The lawsuit, in which she is represented by Anthony J. Pantuso, III, seeks an unspecified amount of dollars.

Among the allegations raised are a series of allegations that Ms. Wallace claims were unfair accusations that she released confidential CHRO case information to her own personal attorney, Miguel Escalera, of Kainen Escalera and McHale, LLC during the course of her employment.

Ms. Wallace claims that the “information included in the reports which Wallace prepared at the direction of [CHRO employee Cheryl] Sharp included only processing dates, and did not include information as to ‘what has occurred in the course’ of CHRO investigations…” (Complaint, Paragraph 145).

She alleges that CHRO Executive Director Tanya Hughes and Sharp have instead “repeatedly disclosed information on pending CHRO cases to Attorney Escalera when it suited their purposes,” (Complaint, 144), and that the information they disclosed “falls more closely within the prohibitions of the statute, contrary to the information Wallace provided.” (146)

Ms. Wallace alleges that when her employment was terminated, the CHRO “falsely stated” that Wallace had  “deliberately violated policies on the use of [her] state email account and the state network, by sending numerous non-business related emails;” (b) “on multiple occasions and in voluminous amount in violation of C.G.S. 46a-83(J) [she] had released to Miguel Escalera . . . information on active CHRO cases;” and (c) “that [she] had acted in an offensive manner to me, Tanya Hughes on January 29, 2018, when via email, [she] instructed me to contact [her] attorney if I wished to meet with [her].” (Complaint, 161)

The CHRO has yet to file an answer or a motion asking for a dismissal and there’s no indication yet that the agency has been served with the Complaint yet either.  The case has been assigned to U.S. District Court Judge Michael Shea.

This is not the first time that Ms. Wallace has sued the agency she works for.

In 2006, she brought a federal lawsuit making allegations regarding her employment as well including a claim that she was denied equal protection in violation of the 14th Amendment under 42 U.S.C. Section 1983. (Download here.)  That claim was dismissed by stipulation before trial.

In 2007, two other employees filed suit against the agency alleging discrimination. In that Complaint, the former employees that “at least ten (10) women other than the Plaintiffs also experienced this discrimination and hostility” and that this individuals included “…Pekah Wallace…” (2007 Complaint, 38)

Later today, I’ll be speaking to the next group of startups chosen to participate in the Accelerator for Biosciences in Connecticut, or ABCT. 

ABCT is a Branford-based program spearheaded by Design Technologies LLC, which supports Connecticut’s aim of being a bioscience hub.

It’s an exciting time for new businesses in Connecticut like those chosen to participate in the program.

But employment law issues are often an after-thought for startups.  They shouldn’t be.

I’ll be talking in more detail to the startups in my presentation but here are three things I’ll be talking about for startups and new business ventures:

  1. Startups should document the relationships with new employees.  Offer letters or, in some instances, contracts should be set up so that new employees know the terms and conditions of their employment.  Even more important, the documentation should detail all forms of compensation — whether salary, bonus, equity etc.  And at-will disclaimers are crucial.
  2. Startups also need to consider protecting the intellectual property of the company from the outset.  After all, if a new employee can just take the knowledge and set up shop across the street, how valuable is the company? Thus, having Non-Disclosure Agreements or other restrictive covenants in place when employees or consultants start is critical to making sure a company’s intellectual property is protected.
  3. Lastly, just because the business is a startup, doesn’t mean there’s an exception to paying employees their wages.  Those businesses must comply with all the rules regarding weekly payment of wages.  Failure to do so can result in significant legal exposure and, worse for some, an investigation from the federal or state department of labor.  Startups should make sure they have the cash flow necessary to make payroll.  If you can’t afford to pay your employees, don’t hire them.

Obviously, there are other questions startups should ask themselves too: Are you going to use a PEO? (or perhaps, What is a PEO?) Are you going to use independent contractors? If so, how is that relationship documented and is it proper? Are employees classified as exempt vs. non-exempt? Are the employees even authorized to work in the United States?

If all these questions give startups some concerns — they should.  Employment law issues are an important part of building a company’s foundation.  Ignore them, and the business that you build might be the proverbial house of cards.

Sometime soon, your e-mail inboxes are going to be bombarded from attorneys telling you that you need to pay attention NOW to new overtime rules by the U.S. Department of Labor.  ROFL.  

At least based on what we know now, it’s best taking a lesson from my teenagers and ignoring the messages and hype (and all the text abbreviations too.)  SMH. 

Late last week, Bloomberg news reported that the DOL is considering changing the rules regarding who is eligible to receive overtime by increasing the salary threshold from about $24,000/year to $35,000. IKR?

In plain English, employees who make less than $35,000 would have to be paid overtime on any hours worked over 40 — no matter what their duties are.   MEGO. 

If all this sounds vaguely familiar, you may recall that the Obama-era proposed rules were enjoined by a court before implementation and then we had an election.  Those proposed rules would have set the bar even higher to approximately $47,000.  RIP.

But here’s the thing – we don’t have anything yet. And when released, the proposed rules will be just that — proposed.  They are still very much subject to change.  And even then, there will likely be a significant period of time before implementation.  My guess — and it’s just that — would be late 2019 or early 2020 at the earliest.  SWAG.

For now, here’s the one thing to think about: If you have any exempt employees that are paid about $35,000 or less, keep in mind that you may need to start paying them overtime…at some point.  MEH.

But remember: Just because you are paying employees a salary does not mean you’re following the law. Employees must also have “duties” that are exempt — typically, professional, executive or administrative.  

BOL.  

It seems likely that some type of paid Family and Medical Leave (otherwise known as “Paid FMLA”) bill is going to pass the General Assembly.

CBIA recently posted about the pitfalls that await employers with passage with one CBIA staff testifying that “small businesses are terrified of this proposal.”  

But the “paid” aspect of the bill is only one part. I’m not going to cover that in this post, but there are plenty of resources already on what it might mean.

What hasn’t been widely reported is that the bill would allow nearly all employees at nearly all companies in Connecticut to take protected family and medical leave — a monumental shift from the limits that are currently in place.  But in another way, it would expand the ability of employees to take unpaid leave too.

A caveat – there are various versions of the bill floating around.  For purposes of clarity, Bill No. 1 – which has already passed the Labor & Public Employees Committee – is the one that I’m going to discuss.

Here are four areas to focus on:

  1. Eligible Employee: Currently, to be eligible for state FMLA leave, the employee had to work for 12 months and 1000 hours. The bill would change that to simply that the employee must have earned at least $2325 from one or more employers. Theoretically, you could start taking leave from Day 1 of a new job.
  2. Employers: Currently, only employers with 75 or more employees are covered. The bill would change that to one or more.
  3. Amount of Leave: Currently, employees get 16 weeks of leave over 2 years. The bill would change that to 12 weeks over one year (consistent with federal FMLA rules).  One caveat: Employees could take two additional weeks due to a “serious health condition during a pregnancy that results in incapacitation”.  No definition of incapacitation is given.
  4. Reason for Leave: Currently, eligible employees can take leave to care for spouses, children or parents with a serious health condition. The bill greatly expands that to siblings, grandparents, and grandchildren. It expands the definition of a parent to include in-laws and “individuals who stood in loco parentis to the eligible employee when the employee as a child”.  If that wasn’t broad enough, employees could also take leave to care for “any other individual related by blood or whose close relationship with the employee is the equivalent of a family member”.

What’s the Takeaway?

If you’re an employer that has less than 50 employees, you’ve likely never had to deal with FMLA claims at the federal or state level.  That may change very soon and dealing with the FMLA is not necessarily intuitive.

Suffice to say that this bill is a massive expansion of FMLA. Small employers are simply not equipped to deal with this and having employees out on leave — even from Day 1 — is going to present a significant challenge for employers, small ones in particular.

The bill is still being crafted and it’s quite possible that we’ll see changes as this progresses.  But Governor Lamont has indicated support for a bill of this kind.

For now, employers should talk with their legislators if this is something of interest to them and share their concerns.  And stay tuned. This is a bill that all businesses are going to want to follow closely.

Employers who want to (or need to) use independent contractors often scratch their heads at a disconnect – how do you determine who is an independent contractor?  I recall at one speaking engagement years ago, an employer who came up to me and asked: “So are you saying that there are TWO tests to determining if someone is an independent contractor?”

Yes, that’s exactly what I was saying.

The Connecticut Department of Labor and the Connecticut Department of Revenue Services (the state equivalent to the IRS) have each developed tests for determining if someone is an employee vs. an independent contractor.

And they are not the same.

I’ve looked at this before, but my colleagues at Shipman & Goodwin — who now host a terrific new little blog on tax law (www.cttaxalert.com) — have posted about it too — but this time from the perspective of tax lawyers. 

Worth your time.

Yesterday, I tackled the bills floating around the Senate-side of the Connecticut General Assembly,  In today’s post, let’s look at the House side to see what bills are under consideration there:

  • House Bill 5003 is the mirror-image bill of Senate Bill 1 on Paid Family & Medical Leave.  Yesterday’s post gave the highlights, which apply equally to this bill too.
  • Similarly, proposed House Bill 5004 would raise the minimum wage in the state. The details are still to be drafted, but the CBIA has been asking for the raise to $15/hour to be scheduled over multiple years.  Some version of this is very likely to happen; it’s just a matter of timing of increases from the current $10.10 rate.  $15 per hour seems to be the prevailing wisdom.
  • Proposed House Bill 5053 would create a task force to look for employment opportunities for persons recovering from substance abuse. The details are to be drafted by the Labor & Public Employees committee and the bill will be up for discussion at a public hearing on February 14, 2019.
  • Proposed House Bill 5271 would re-introduce requirements that would broaden sexual harassment prevention training for employers.  The details, again, are still lacking but at a press conference last week, several legislators reintroduced a so-called “Time’s Up Act”.  This is definitely going to be subject to negotiation and change. While the 2018 died in session, it seems likely we’ll see something coming up again later this spring.
  • Proposed House Bill 6111 would allow employers to require employees participate in a direct deposit program for paychecks.  This bill is up for a public hearing on February 14, 2019.
  • Proposed House Bill 6113 is one that I don’t think we’ve seen much before. It would prohibit asking about an applicant’s date of birth or date of graduation on employment applications to “reduce age discrimination”.   Many employers have already taken those questions off their job applications to avoid even the impression that age is a consideration in their decisions; this bill would make that more explicit.  A hearing on this bill is set for February 14, 2019 as well — looks to be a busy hearing.
  • Proposed House Bill 6913 would prohibit “certain employees” from being required to sign “unfair” non-compete agreements.  Who those employees are and what terms would be “unfair” is likely to be the subject of the public hearing on this proposed bill on February 14th as well.  Proposed House Bill 6914 would create a similar ban on non-compete agreements for employees below a certain salary threshold.
  • Proposed House Bill 6936 would take a look at deductions for union dues, seemingly in direct response to the Janus decision. The details are still TBD but this is one that still merits an eye on.
  • Proposed House Bill 7043 would dictate certain requirements for lactation rooms in the workplace.  Rooms should be private, should contain or be near a refrigerator, and include access to a power outlet.  The bill also would make employers provide “breastfeeding support” for up to three years after childbirth.  The details of this bill are still TBD and this bill will be up for discussion at the February 14th hearing.  

To be clear, these are only the list of bills coming out of the Labor & Public Employees committee.  Each year, bills from other committees (including Judiciary) also have a tendency to impact employers.  There is plenty for employers to keep an eye on this year.

The Connecticut General Assembly is already busy with a full compliment of employment law bills under consideration.  At this point, it seems likely that several will pass in one form or another and thus employers should be playing close attention to the developments.

Here are a few of the Senate ones that I’m watching (I’ll tackle the House bills in tomorrow’s post – now available here):

  • Senate Bill 1 – This is the Paid Family and Medical Leave bill that has been kicking around for a few years.  Late last week, the Labor & Public Employees Committee issued a new draft.  There are a LOT of details to this but in essence, the bill would have two major changes. First, it would create a new paid family leave insurance program that would take contributions from employees and distribute those contributions to employees who need to take paid leave — similar to a workers’ compensation program.  Second, the bill would make significant changes to the existing Connecticut Family Leave law, to broaden the law’s application to all types of employers and broaden when an employee may take the leave as well.  More to come as this bill progresses.  A hearing on the bill is scheduled for February 14, 2019.
  • Proposed Senate Bill 64 – This is a rehash of a bill that would limit so-called “captive audience” meetings.  The details are still in flux but the Labor & Public Employee committee voted to draft the bill on February 7, 2019.  I’ve discussed prior versions of the bill here, including the Attorney General’s concern that such a bill may not be legal.
  • Proposed Senate Bill 358 – This proposed bill would provide employees with time off to vote in elections.  The committee voted to draft the bill late last month but there’s no indication yet whether this would apply to all local elections (such as a town budget referendum) or just broad state elections.
  • Proposed Senate Bill 697 – This proposed bill, which is scheduled for a hearing on February 14, 2019 and is lacking details as of yet, would “place restrictions on workplace nondisclosure agreements to prohibit the silencing of victims in the workplace and to prevent sexual harassment by repeat offenders.”  This would seem to go further than the recent federal law which limited tax deductions for confidential sexual harassment settlements.
  • Proposed Senate Bill 700 – This bill would allow for electronic signatures by employees in the restaurant industry when distinguishing between service and non-service duties. This bill is also scheduled for a hearing on February 14th.  It would be a small but significant help to small employers who have trouble keeping up with the record-keeping requirements in this area.
  • Proposed Senate Bill 764 – This bill would prohibit on-call shift scheduling — something that has been under attack in prior sessions as well.  Specifically, the bill would “prohibit the employment practice of requiring an employee to call an employer prior to a scheduled shift to confirm that the employee is needed for the shift, and to require employers to give an employee at least twenty-four hours prior notice if the employee is not needed to work a scheduled shift.” The Labor & Public Employee committee voted to draft this proposal so watch for a full-fledged bill soon.
  • Proposed Senate Bill 765 – And then there’s this proposed bill scheduled for a hearing on February 14, 2019.  Right now, it states that the law would ensure all employees “receive fair and equal pay for equal work”.  What that means for employers is anyone’s guess right now.

This is about a busy a listing as you can reasonably expect to see from our part-time legislature.  It’s still early but that’s just the half of it.  I’ll tackle the House bills in my next post.