Trying to follow both state and federal wage and hour laws isn’t that hard.

But it isn’t that easy either.

Let’s say you’re a restaurant with a waitstaff.  Like most restaurants nowadays, your customers pay by credit card and you, the employer, have to pay the credit card company a percentage on each sale.

You know there are rules regarding deductions of the wages to employees. But what about tips? Can you take out the percentage of fees being charged by the credit card company on the tips?

According to the U.S. Department of Labor: Yes.

In its fact sheet, the USDOL makes it plain that such actions by an employer do not violate federal law, so long as they are limited to the fees on the tips themselves.

Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the FLSA.

The DOL also has 2006 opinion letter bolstering its views here. Even Connecticut, in an unofficial guidance, permits the practice.

While that aspect is clear, the remaining aspects of tip pooling are still very much being debated.  According to a DOL Field Bulletin this spring, in the Conolidated Appropriations Act, 2018, the Act provided that certain other portions of DOL regulations that barred tip pooling when employers pay tipped employees at least the full FLSA minimum wage and do not claim a tip credit no long have further force or effect.

As a result, according to the DOL, “employers who pay the full FLSA minimum wage are no longer prohibited from allowing employees who are not customarily and regularly tipped—such as cooks and dishwashers—to participate in tip pools.”

And if that weren’t confusing enough, employers in Connecticut also need to comply with the Wage Order drafted by the Connecticut Department of Labor that has additional guidance on tip pooling.

Employers must continue to tread cautiously in the area of wages. Minefields continue to be ever present — and the impact of a failure to comply with the law can be costly.

 

Like a lot of people, I’ve got the summer bug and, given the choice between a walk outside and a blog post — well, you can figure out what has been winning.

But I’ve got a few posts lined back up the next few weeks.  In the interim, I want to share with you one of the most meaningful and amazing speeches I’ve ever heard in person.

It’s from last week when I attended the American Bar Association Annual Meeting in Chicago, where I serve as the State Delegate for Connecticut (and on the ABA Nominating Committee as well).  At that meeting, the ABA presented it’s ABA Medal (it’s highest honor for exceptionally distinguished service by a lawyer to the cause of American jurisprudence) to Bryan Stevenson.

Stevenson is the founder and executive director of the Equal Justice Initiative. During a 40 minute speech (which you really must listen to), he called on attendees to do four important tasks:

  1. Get close to people who live in the margins of society
  2. Change the narrative
  3. Stay hopeful
  4. Do things that are inconvenient and uncomfortable

Sounds straightforward enough. But with Stevenson’s brilliant oratory, he encouraged all of us to find meaning in the work we do through this and allow all of us to strive towards justice.

You may not even agree with him that those convicted of the death penalty deserve mercy. His book on “Just Mercy”  has won numerous awards.  But there is little denying that Stevenson is a voice well worth listening to.

For employers, no doubt Stevenson would encourage employers to considering hiring those who have been convicted of a crime to a second chance after they are released from prison.  It might be doing what Bear’s Smokehouse does — looking at individuals and not judging them solely by their past. As Jamie McDonald, the owner of Bear’s recently said, “Sometimes all they need is somebody to believe in them and give them that chance.”

There may be other times when Stevenson’s advice might apply too; suppose you have an employee who failed to show up for work for three days in a row.  You might just fire them immediately for job abandonment.  But there might be circumstances where you should also try to understand the reasons behind the absence.  Sometimes there will be a good excuse behind it.

If you can find time to listen to Stevenson’s speech, you won’t be disappointed. For those of us who attended the ABA Annual Meeting, it was one that we will never forget.

Cars. Lots of really fancy cars.

That about sums up my Sunday in which I went to the Concorso Ferrari & Friends car event in West Hartford Center.  It has one of the biggest collections of ultra-expensive cars in the state — all to benefit the Connecticut Children’s Medical Center.

What I wouldn’t do to commute in the Pagani supercar! (Anyone have an extra $3 million lying around?)

Now, the odds on you commuting in a supercar and wondering if you’re getting paid by your employer are probably about the same as winning Powerball, but it’s still worth asking the question: Why don’t you get paid for commuting to work?

The answer lies in the law and something called the Portal-to-Portal Act. 

The Act states that employers are not required to pay for the time employees spend on activities occurring before or after (“preliminary or postliminary”) they perform the principal activities for which they are employed.

Thus, compensable working time generally does not include time spent:

  • Traveling to or from work.
  • Engaged in incidental activities before or after work.

A few years ago, an argument was made that state law ought to allow for some compensable travel time to and from work if the employee was travelling with tools.

The Connecticut Supreme Court rejected that interpretation saying such laws were pre-empted by the Portal-to-Portal Act.

And yet, the Connecticut Department of Labor continues to advance a regulation on travel time that, according to same court, “was not promulgated pursuant to any formal rule-making procedures or articulated pursuant to any adjudicatory procedures, has not been time-tested or subject to judicial review in this state.”

In any event, commuting with a supercar might be fun — but it doesn’t change whether you get paid for it under the law.

If you ever read the state labor laws (wait, you haven’t?), you sometimes come across provisions that seem like they were written for another generation.

And indeed, they were.

Take, for example, Conn. Gen. Stat. 31-23.  It prohibits children under the age of 16 from working in the “manufacturing, mechanical, mercantile or theatrical industry”.

That seems to make some sense as far as child labor laws are written. Then it goes on.

It also prohibits working in a “restaurant or public dining room.”

Public Dining Rooms? I was about to write this off entirely as just outdated but there is at least one reference I’ve found in Connecticut to a “public dining room”.  Grasso Tech’s culinary arts program advertises a “public dining room” on Facebook, so perhaps we can give them a break.

And then the statute singles out three other businesses to add to the prohibition: any bowling alley, shoe-shining establishment or barber shop.

It seems an odd arrangement for businesses. Some of it can certainly be seen rooted in safety — you wouldn’t necessarily want minors dealing with sharp tools if a barber shop or the equipment of a bowling alley.

Indeed, Conn. Gen. Stat. 31-25 prohibits minors from operating elevators! Tell that to my kids who love pushing the buttons.

My best guess from review of the legislative history, though, is that the statute is rooted in something more nefarious — that these industries would somehow show the dark side of society.

Now, there are some exceptions for other businesses over the last decade or so that I’ve covered previously; golf courses, or cashiers in supermarkets etc. all have some exceptions.

But the bowling alleys and shoe shining establishment bar still stands.

Some laws are hard to change.

Earlier this week, I made my long-awaited (ok, long-awaited by ME) return on WNPR’s ever-popular “Where We Live” show.

As always, I’m thankful for the invite.

My appearances date back quite some time (remember pizza and child labor in 2010?), so it was nice to be back in the studio to talk about age discrimination and other workplace issues.

So, is age discrimination still a problem?

The answer is plainly “yes”.

A related question, though is how MUCH of a problem? And is it getting better or worse?

By one measure, it’s been going down in a noticeable way the last several years.  In 2008 for example, there were over 24,500 charges filed on age grounds; in 2017 – it was down below 18,500 – a drop of over 20 percent.

Statistics, though, only tell part of the story because historically, you’d expect more to see more charges in a recession than an improving economy.

An article by The New York Times over the winter raised concerns that Facebook Job Ads were being used in a way to target younger potential applicants.  And some have suggested that the federal law itself is too weak.  

So, recognizing the age discrimination remains an issue in society is an easy task. But solving this — and ensuring that workplaces have a diversity of ages, remains a issue of which there are no easy answers.

With Memorial Day coming up this weekend, it’s often a time (or it ought to be a time) to reflect on the sacrifices made by our military.  And at the same time, consider how we, as a society, treat our veterans.

This issue was highlighted for me many years ago.  During a court proceeding in which fraudulent behavior of the witness was being discussed, the witness brought up his past military service, perhaps as a way to seek leniency from the court.

To my surprise, rather than dismiss the comment as outright pandering to the court, the judge took a few minutes to express appreciation to the witness for his service and to note that the judicial system should be sensitive to the needs of veterans.

The court didn’t rule in favor of the witness but I was still struck by the judge’s sensitivity.  It was a learning moment for me that all of us involved in the legal system ought to treat veterans in a similar way — with, at a minimum, recognition for their service and respect.  It didn’t matter at that time whether the veteran was honorably discharged or not; it was their service that mattered.

It is with that background in mind that employers should consider the new guidance from the Commission on Human Rights and Opportunities (CHRO) entitled “Guide to the Nondiscrimination in Hiring and Employing Connecticut Veterans”.

In it, the CHRO reminds us that employment discrimination on the basis of “status as a veteran” became illegal effective October 1, 2017.

And what is a “veteran”? Anyone who served? Actually no.

According to the statute, “veteran” means “any person honorably discharged from, or released under honorable conditions from active service in, the armed forces.”

Thus, by its own terms, employers cannot discriminate against veterans who received an “honorable discharge” or a discharge “under honorable conditions”.

But the CHRO guidance addresses whether employers can make hiring decisions regarding veterans who have received discharges under the three other primary designations:  “other-than-honorable discharge, bad conduct discharge, and dishonorable discharge.”

The CHRO calls these designations (along with the discharge under honorable conditions) as “less-than-honorable” or “bad paper” discharges.

The CHRO’s guidance suggests that discrimination against someone who received these “bad paper” discharges might also violate the law because of their “disparate impact on veterans of color, LGBT veterans, and veterans with disabilities”.

Thus, the CHRO opines, “reliance on discharge status” may still violate Connecticut’s anti-discrimination laws.

What’s the proposed solution from the CHRO? Several suggestions are offered:

  • “Provide individualized consideration to veterans with less-than-honorable discharges. This means you should consider the nature of the discharge (i.e. why the veteran was discharged—was it for a minor infraction or because of behaviors related to a mental health condition?), the time elapsed since the discharge, the nature of the positions sought and how the discharge is in any way related to the position the veteran is applying for.
  • Second, you should provide the veteran-applicant the opportunity to present her case for why the discharge should not be factored into your hiring decision. You might also consider the presence of mitigating circumstances like PTSD if the veteran discloses them to you.
  • Additionally, for those service members who were discharged due to conduct arising from a disability like PTSD, you have an independent obligation under both state and federal law to provide “reasonable accommodations” such as making the physical work environment accessible or providing a flexible work schedule.
  • Finally, if you contract with a consumer reporting agency such as HireRight or TransUnion to conduct background checks and your background check results in the discovery of information about an individual’s discharge status, you are required under the Fair Credit Reporting Act to provide notice to the veteran applicant prior to taking any adverse action….”

Employer Takeaways

The CHRO’s guidance here is reminiscent of guidance issued by the EEOC in the early 2010s regarding the use of criminal background checks and the potential for a racial disparate impact.

At the time, some argued that the agency overstepped its authority because there was nothing that outright prohibited the use of such checks under the law and the reach to “disparate impact” was a step too far.

One could make a similar argument here that the CHRO’s suggestion that discrimination against veterans of all types of discharges might also be covered — after a new law that was passed that prohibited discrimination against only those veterans those who received honorable discharges — might be deemed to be overreach.  The legislature only sought fit to protect veterans with honorable discharges; why can’t employers consider those with “bad paper” discharges as a factor in their hiring decisions?

I’ll leave that for the policy-makers to debate.

For employers, the takeaway should be that the CHRO will be looking at discrimination against veterans who received so-called “bad paper” discharges more closely.  While the law may not outright prohibit it, the CHRO will be looking at whether the employer’s decisions might have a disparate impact on a protected class.

And for employers, making individualized determinations on an applicant based on the applicant’s overall fit and qualifications for the position isn’t a bad practice anyways.

 

 

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.

 

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.

A while back, I had a good discussion with a colleague on a topic with no real firm answers.

No, it wasn’t on whether the Yankees are better franchise than the Red Sox.  The answer to that is unequivocally yes.  (Sorry, Sox fans.)

Rather: When is a employee-related issue a legal one? Or alternatively, when can human resources handle the issue on it’s own?

What comes to mind at first is the old Justice Potter Stewart quote of, “I know it when I see it” but that seems unsatisfying.

For some smaller employers, the answer may lean more heavily towards “legal” in part because there may not be an in-house human resources professional to call on.

But on the flip side, there are some other employers that might rely heavily (perhaps overly so) on their HR contacts to handle matters, trying to avoid unnecessary legal expenses.

What I’ve concluded is what I’ve started with — there are no real answers to the question.

But I can outline a few (non-exclusive) times when a lawyer should probably get involved.

  1. You get a letter from a lawyer threatening legal action on behalf of an employee or, in the case of a non-compete, from a former employer.  Pretty self-evident; lawyer = legal issue.  I’m going to not even dwell on the obvious: an actual lawsuit being filed means an attorney ought to be contacted.
  2. You get a notice from a state or federal agency investigating wage/hour laws, anti-discrimination laws, workplace safety issues, or labor union-related issued. Anything from the DOL, CHRO, EEOC, OSHA, or NLRB (to name a few) has the potential to be a big deal. Things you say there can be used against you too.  The earlier the better.
    1. But unemployment compensation claims may not always rise to that level.  Some employers handle unemployment claims and appeals internally.  For those situations, it depends on the complexity of the situation.
  3. You have to conduct an investigation into a workplace issue, such as sexual harassment, AND you may want that investigation to be privileged and confidential.  Again, HR may be able to conduct a whole host of minor investigations but there are going to be some that involve sensitive issues, or perhaps raise company-wide concerns. Bring counsel involved and let them help to manage the investigation.
  4. You have a complex issue that doesn’t have a clear legal answer.  It’s pretty well-settled now that employers need to engage in interactive discussions with an employee regarding reasonable accommodations that they may need.  Qualified HR can handle those discussions.  But suppose the employee is injured on job, is out on workers’ compensation, has exhausted FMLA time and needs additional time off — what then?

But I’m interested hearing from other lawyers or human resources personnel. When is an issue a legal one and when is HR perfectly capable of addressing it? Leave your best tips in the comments below.

So a few weeks back, I suggested that we were entering into a new era of sexual harassment cases and wondered out loud when the statistics would back up my observations.

We now have our first signs.  Maybe.

In my exclusive continued look at the case statistics from the Connecticut Commission on Human Rights and Opportunities, we can see the first signs of an increase.

But as I’ll explain below, it’s difficult to know if this is a statistical anomaly.

Despite significant drops in most types of discrimination complaints, the number of sexual harassment complaints in Connecticut went up last fiscal year to 145, up from 135 the year before.

As a percentage of overall claims, sex harassment employment claims are just 3 percent of the overall claims filed, up from 2.5 percent the prior year.

But here’s the issue: When you look back at prior fiscal years in 2014 and 2015, the number of sex harassment claims is still below those years.

In other words, is it a trend up? Or overall down? Indeed, the numbers from FY 2012 are comparable to FY 2017’s numbers. Except that as a percentage, there were more sex harassment claims made 5 years ago, then now (3.6% to 3.0).

What else do we see? Well, as expected with an overall drop in cases is an drop in claims of wrongful discharge, refusal to provide reasonable accommodations, terms and conditions, and even demotions.

Remaining constant were claims for failure to promote, termination of employment due to pregnancy, and aiding & abetting discrimination.

When you review the basis for claims filed, we see drops in claims for age (FY 2017 451 vs FY 2016 518), race (551 vs 616), sex (507 vs 532) and physical disability (445 vs 520).

Some other bases hold steady or even slightly increase: ancestry claims (200 vs 188) and mental disability claims (103 vs. 110).

For employers, watch the trends. Will sex harassment claims continue to increase? And will overall claims decline?

There’s more that we can glean from these numbers too. I’ll have more in an upcoming post.