When new laws get passed, the complications that arise from the passage aren’t immediately clear. But a look at Connecticut’s new family violence leave provisions (effective October 1, 2010) demonstrates how some of those complications are now making themselves apparent.
As you may recall, the new Family Violence Victim leave law permits employees to take up to 12 unpaid days leave for medical care or counseling arising from a domestic violence situation or to attend court proceedings r
elated to the same (or a variety of other listed reasons.) If an employee has compensatory time or vacation time or the like, the leave can be paid.
The law specifies that employers do not need to provide paid leave if (1) the employee is not entitled to paid leave pursuant to the terms and conditions of the employee’s employment or (2) the paid leave exceeds the maximum amount of leave due the employee during any calendar year. However, the bill requires the employer to provide unpaid leave if paid leave is exhausted or not provided.
Easy enough, right?
But when the statute is put in the context of other wage & hour issues, there’s bound to be some confusion. And indeed, its interaction with exempt employees should have employers scratching their heads a bit. Let me explain.
To simplify, for exempt employees in Connecticut (using the standard white-collar exemptions), employers can deduct from an employee’s pay for one or more full days "if the employee is absent for personal reasons other than sickness or accident" or for "sickness or disability" if pursuant to a policy where deductions are made when sick days are exhausted. Deductions can also be made for FMLA-covered leave in less than a full day increment.
So, suppose an exempt employee is injured during a domestic violence assault and sees a physician. Can the employer not pay the exempt employee for the days not worked without losing the exemption? Part of the answer depends on whether you consider the absence for a "personal reason" or whether its a "accident".
Now, suppose that an employee is taking only a half day off, can the employer dock the employee for a half-day without losing the exemption? One could argue "no" because less than a day increments are only allowed for FMLA-related leave, not other types of leave. Which then raises the question, can the employer requires that the family violence leave be taken in increments of not less than a full day?
Now, suppose the employee needs to attend a court proceeding relating to a family violence issue, is that absence also to be considered a "personal reason"?
Still more questions to ponder: Does the Department of Labor have any jurisdiction to issue regulations or guidance on the impact of this new law? If not, who does and how can we get more guidance on these types of issues as they arise?
Obviously, these types of situations are not going to be the everyday-type of issues that employers have, but I highlight them because even well-intended laws like the new family violence leave bill, can have unintended consequences and raise unexpected issues. Unfortunately, as history has shown, it is often only through litigation through the courts that we may ultimately get some answers to the interpretation of this law.