Back in law school, I submitted a letter and resume for a summer internship at a Chicago lawfirm.  (We did this via letters back then. Ask your parents.)

Imagine my surprise when a week or so later I received a letter offering me a position at the law firm. No long interview sessions. And, well, no interviews at all!

But alas, I was quick to realize something was amiss. The letter was addressed to a Daniel J. Schwartz and referenced Northwestern University; I was at Washington University in St. Louis.  I called the firm and they apologized for the mixup.

I did not get a job offer.

Flash forward a year or so, and I started work at firm in Hartford.  I was placed into the employment law department, which I was thrilled with.

However, to my amusement, there was already another attorney with the last name of “Schwartz” in the department.

And the first name “Daniel”.

Was the employment law world really big enough for two of us?

And yet, with that placement, thus was born a decades-long acquaintance with Daniel L. Schwartz.  And while I no longer work with the “other” Dan Schwartz, the confusion that has arisen from that coincidence (as well as the humor) continues to this day.

So much so, that the Connecticut Law Tribune recently did a profile and interview with us regarding the names. The title? “Which Dan Schwartz? Don’t Mistake These Two Connecticut Employment Lawyers for Each Other.”

Which brings me to my tie-in with employment law: When running your background checks or doing even Google searches, you need to be sure you’re getting the “right” candidate. Even names as relatively uncommon as “Daniel Schwartz” can bring up differing results.

In fact, did you know that there’s a Daniel Schwartz who runs Burger King? I am not that person either.

The Fair Credit Reporting Act actually gives candidates the opportunity to correct the record. I talked a lot more about the pre-adverse action letters in a prior post, but the name confusion reveals it’s importance.  You wouldn’t want to reject a candidate named, say, “Michael Burnham” based on something that happened with a different “Michael Burnham“.

Names are easily confused, but perhaps I have my revenge in the end: A Google search “ranks” the attorney Dan Schwartzs. I’ll let you decide whether a higher ranking matters.

I had the opportunity to record another webcast recently with New Haven attorney Nina Pirrotti, who mainly represents employees in her work at Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C.

Our ongoing series, which we’ve titled “The Dialogue”, looks this month at whether employers can mandate coronavirus vaccines, how employers and employees are dealing with pandemic-related issues, and predictions for 2021.

My thanks as always to Nina for her participation in these important discussions. We hope you enjoy this frank and productive discussion between a management-side attorney and an employee-side attorney.  With any litigation, we tend to focus on the differences, but in these discussions, we tend to focus on the significant areas of agreement we have in common.

You can view the presentation here.

Over Thanksgiving, I did something novel (at least for me): I painted my home office space.

That, of course, led to the realization that the carpet was hopelessly outdated and, since we were at it, the light fixture was falling apart, and the desk and chair I was working from for the last 9 months were not conducive to 12 hour workdays.

And so, over the course of the last week, we replaced them all.  (Used office furniture now is really cheap.)  If I’m going to be working from home for the forseeable future, it might as well be comfortable.

Working from home SHOULD be comfortable. Yet for companies who are trying to accommodate employees (and the government) with working from home, they are coming across a hard reality – our modern employment laws are hopelessly dated when it comes to remote workers.

This is an uncomfortable place for employers to be.

Suppose you’re a Connecticut employer with an employee who has now been forced to work remotely.  Rather than be cooped up in an apartment, the employee has decided to rent a slopeside condo in the Lake Tahoe area.  Work never looked so good.

But does it?

What laws apply to that employee? Connecticut? California? Both?

What tax issues arise? Should the employer be withholding California taxes? Should the employer be registering as a business in California?

Does an employer have an obligation to pay for expenses for an employee working remotely? What about if they’re working in a state that may otherwise demand it?

An article Friday evening by Politico highlighted this absolute mess. The headline? “Congress struggles to fix tax mess caused by people working from home”.  

Complicating the issue further is the fact that certain states, like New York, are “notoriously aggressive about taxing people coming to the Empire State even temporarily”.

These are challenging questions — ones that can’t really be answered quickly by a blog post unfortunately.

But employers that have a workforce that has gone really remote ought to be considering all of these implications as weeks turn into months, and months turn into a year (or two or three?).

In the meantime, you know where you can find me? My home office in Connecticut. Though that ski house does sound awfully attractive….

Stay safe everyone.

Thanksgiving is now in the rear view mirror. Just a month to go until we turn the page to 2021.

But before that happens, there are a few things left to check off your to do list for 2020.

Let’s get to it.

  1. Register for Paid Leave Program – Conneticut requires every employer to register for the paid leave program.  Deductions from paychecks for employees start on January 1, 2021.  Now’s the time to figure out what your company is doing. Are you participating in the state-run program, or doing a private plan?  The Hartford Courant also had this article over the weekend. 
  2. Conduct Sexual Harassment Prevention Training – Yes, the deadline has been extended to February 9, 2021, but that’s just 9 weeks away.  So, it’s time to get your employees trained on sexual harassment prevention.  There are many options out there but if you want something done by an attorney, I recorded an online session a few months back that is just $20 per person (group discounts available). The best thing about it? You can do it right now.  All the details are here.
  3. Double Check Your Minimum Wage – With the pandemic, it’s easy to overlook certain details. Among them: Minimum wage increased on September 1, 2020 to $12 per hour , and will increase again on August 1, 2021 to $13 per hour.  If you’ve made a mistake, talk with an attorney about how to fix it ASAP.
  4. Follow the Sector Rules: Pandemic fatigue is real. Also restlessness. How do I know? Because I voluntarily spent Thanksgiving weekend repainting my home office space. The pandemic is going to continue for several more months (at least!), so be sure your company is following the Sector Rules. The reasons should be self-evident, not the least of which is that you’ll be protecting your employees.  The state has tweaked them over the months so it’s time to take a look at them with fresh eyes.
  5. Keep an Eye Out for Federal Legislation: Currently, the emergency paid sick leave rules for the pandemic are set to expire on December 31, 2020. But there are currently talks in Washington D.C. for a new round of stimulus. Expect an extension of the FFCRA to be on the agenda as well.  If that happens, employers will have to move quickly.
  6. Track Down Employees Working Really Remotely:  With some employers allowing employees to work remotely during this pandemic, a few employees have decided that working from home is just the start. Indeed, some have decamped to ski resorts or warmer weather, with some even giving up apartments.  Employers have looked the other way for much of 2020, but there’s no doubt that states will want to start collecting tax revenue for employees working remotely in their states.  Employers who want to get ahead of their tax obligations would be wise to find out where employees are actually working from nowadays. Moreover, you may have an obligation to follow other state laws if your employees are working remotely from those states.  Time to figure it out.

This just touches the surface of what employers need to worry about right now. But it should provide a good head start. Be sure to keep your employment lawyers nearby; looks like the next few months are going to be just as busy as the last few months.

I don’t often let you peek behind the curtain of the Connecticut Employment Law Blog. After all, the focus (for 13+ years!) has always been on “new and noteworthy developments” in employment law for Connecticut businesses.

But as we approach Thanksgiving and, well, because these are anything but unusual times, I wanted to share a few personal anecdotes and nuggets from this year that haven’t quite made it into a blog post for one reason or the other.

I’m now in month 9 in working from home on essentially a full-time basis.  For the first two weeks into the pandemic I worked in the living room. That quickly ended when the rest of the family all agreed they were tired of hearing me on call after call, particularly early in the morning when they were all trying to sleep in.

Thinking back to those first few weeks, I recall days filled with putting out fires for employers who were dealing with furloughs, illnesses, government shutdowns and more — all at once.  What’s notable though now is that they were always calls.. But over time, it’s really remarkable how much of my days have now been taken over by video conferences. Whether by Zoom, Webex, Microsoft Teams, Google Meet, or Lifesize (who knew?), it’s fascinating how much of a shift has occurred in 2020.

That shift will have major ramifications for the way employment law is practiced in the future.  I expect mediations to mainly be done via video conference from here on out. Why make attorneys and parties (and insurers) travel hours on end to wait in uncomfortable conference rooms, when a video conference is worthy, less costly substitute?

Similarly, I expect that more depositions will just be conducted via video conference as well. Sure there will be those attorneys who insist that in-person depositions are far superior to video.   But the more you try video depositions, the more you realize how misplaced that notion is.  And the longer this pandemic goes on, the more these new options will become the norm.

Cases, however, are moving at a speed slower than a turtle, as the expression goes. Deadlines are fluid and there hasn’t been a civil trial in this state since March with no real sign that we’ll be getting back to normalcy until mid-summer 2021 — at the earliest. It will take years to work through that backlog. That means more cases may be ripe for settlement.

My home office is nothing like my office at work. First of all, we have two shelves full of pandemic supplies in one corner with more snacks, soups, masks, and (my favorite) jelly beans than you can use in a year. My office mate consists of my 9 year old Australian Labradoodle who would like nothing more than to have me throw his toy endlessly.  I still dream that I’m going to redo the space to make it more professional, but there’s something also homey about the space that is worth keeping too.  And no commute is certainly good as well.

The home office has its downsides as well.  The computer is always there — and during this pandemic, there is an endless supply of work to be done.  Days turn into nights.  As a result, I’m working more than ever despite the so-called “luxury” of working from home.  It’s also harder to collaborate with colleagues at work; however, as the pandemic has progressed, I’m finding that with a bit of scheduling and, yes, Webex, it’s become easier over time.

Each day has that “Groundhog Day” sameness that others have noted.  Get up, put on work clothes, put up a pot of coffee, let the dog out, go “into” the office. Each day. Every day. There’s no travel anymore.  No clients to visit. Days blend into each other. No businesses lunches. And why take vacation when vacation is just another day at home?

And yet.

Despite the exhaustion of it all, as we approach Thanksgiving, I still find reasons to be thankful. Thankful I’ve gotten to spend far more time with my family. Thankful that I have a job that allows me to work from home when I know millions are not so fortunate. And grateful, for the work by healthcare providers, scientists, and teachers, who have kept us going.

A vaccine brings hope. It’s still months away. But it’s tangible. Real. We now know it is coming.

And for that, we all have reason to be thankful.

Be safe. Stay healthy. Happy Thanksgiving.

The timing for employers (which is basically any private business) to register with the state for the new Paid Family Medical Leave program couldn’t be worse or better, depending on your perspective.  It started November 1, 2020 and continues to run.

In just six weeks, employers will be required to start withholding .5% of a covered employee’s wages and then make contributions to the state in the form of those collections.

But there’s an exemption that employers need to start considering: A private plan.

In order to qualify for an exemption from making contributions to the CT Paid Leave Authority, employers must offer to all employees a plan that provides all of the same rights, protections, and benefits as the Connecticut Paid Leave (CTPL) program.

There are plenty of conditions that must be met as well.  In order to be approved, a private plan must:

  • Offer at least the same number of weeks of benefits
  • Offer at least the same level of wage replacement for each week of benefits
  • Include no additional requirements or conditions
  • Deduct the same amount from employee paychecks as the state plan
  • Cover all employees through the duration of their employment
  • Apply to all current and future employees at your business
  • Be approved by a majority of your employees
  • Remain compliant with any additional requirements established by the CT Paid Leave Authority

The state has already reviewed and approved a list of private plan to choose from and this grows weekly.  You can find the list here. 

The details of the private plan option are still being fully developed but employers can view the authority’s policy regarding such plans here.

Notably, employers can self insure but must provide a surety bond as well.

The exemption is unusual in that employees must be contacted and given the right to vote on whether to approve the plan by secret ballot.  Note that the plan must be approved by a majority of all Connecticut employees, not just the ones who end up voting.

For now, the authority is taking a page from Massachusetts and allowing employers to submit a declaration of its intent during this “interim” period. As soon as the final rules are released, employers will likely have 60 days to make their plans final as well.

Employers that are considering this would be wise to consult with their counsel to work through all the issues. The guidance here has been changing frequently.

In the meantime, the authority produced an excellent webinar last night on the subject.  You can find all their webinars here.

 

Early on in this pandemic, I co-authored a post with ADNET Technologies’ Christopher Luise regarding the possibility of digital contact tracing for COVID-19.  I recapped it in a post here as well. 

That possibility is now a reality in Connecticut with the state turning “on” the COVID-19 exposure notification system.

First an explanation. As Christopher said:

Digital contact tracing is one of these emerging technologies, using mobile devices ,data management, automation and analytics.  A little primer on this technology; imagine having your mobile phone notify you that you have come in contact with someone that tested positive for COVID-19. The technology that will be rolling out in the next release of Apple iOS and Android Operating systems will do just that. This is an automated way to perform what is being referred to as “Contact Tracing.”

The new app that has been released in Connecticut (and in other states to be clear), accomplishes this very possibility.  As noted by a press release:

COVID Alert CT is a voluntary, anonymous, exposure-notification smartphone app. You will get an alert if you were in close contact with someone who tests positive for COVID-19. Knowing about a potential exposure allows you to self-quarantine immediately, get tested, and reduce the potential exposure risk to your family, friends, neighbors, co-workers and others.

The only caveat is that you have to affirmatively turn this option (or app) on your phone to the “on” position.  And suffice to say that an app like this works best when more people use it.

The use of this technology in the workplace is quite promising though could lead to potential abuse if employers are not careful. As I noted back in May:

Employers may jump at the chance to turn this technology “on” in the workplace. Imagine that employers can quickly and easily find out who Employee X has been near during the last several days. Employers could then isolate those individuals more easily than having to shut down a department for fear of exposure.

But such technology raises important privacy and employment concerns covered – in direct and indirect ways – by existing laws. For example, Connecticut has an electronic monitoring law that requires that employers provide notice to employees on the methods it is using to track employees. California is in the midst of rolling out a fairly broad data privacy law that requires that employers take great care with the information it collects and obtain consent where possible.

And then think of the scenario where the employer uses the contact tracing data to find out that Employee X has been talking to other employees about safety concerns in the workplace and the need to unionize. The employer might then be in violation of labor laws by retaliating against the employees.

We haven’t even begun to think of all the real workplace usages for this but still it is another tool for employers to consider in trying to control the spread of COVID-19. Employers that allow employees to bring their own devices to work may want to consider having this option turned on for employees.

However, as with any new technology, also consider talking to a lawyer about how your firm may use any such data or how it may monitor it so you don’t run afoul of existing data privacy laws.

Digitial contact tracing is another one of those “only in 2020” developments we couldn’t have foreseen a year ago.  Whether it lives up to its promise, remains to be seen.

For more on the technology aspect of this, see this great explainer post by Tim Weber at ADNET as well.  

Several years ago, I saw Bruce Springsteen in concert. (Remember those?)

It was over three hours long and by the time we were done, I remember turning to my friend and saying, “Now THAT was a concert.”

Then, a few years back, we were in New York for the weekend (remember weekends away?) and Bette Midler was in her last weekend in the Broadway production of “Hello Dolly” along with David Hyde Pierce from Frasier.  We got cheap tickets WAY in the balcony.

But we all agreed that it was easily one of the best shows we had seen in some time and my skepticism that Bette Midler was overrated was, well, way offbase.

I’ve realized over the years that spending money to see the best artists at what they do brings me much joy and happiness (calling Marie Kondo).  These performers aren’t merely good.  They are fantastic at what they do.

Now, by the same token, I also remember having tickets to Andrew Lloyd Weber’s sequel to Phantom of the Opera called Love Never Dies.

Never heard of it? That’s because it wasn’t just mediocre — it was awful.  So bad that we walked out at intermission. After all, why waste more time on something that is just painful to watch? Sometimes you need just cut your losses.

Think about now of your business, or your department.  And the people that you have.  The fact is that some are better at what they do than others.

For your top performers, business books will say that you should reward them.  That’s easy.

But what to do with the ones at the bottom?

That’s when the lawyers come in.  Often times, a client will call and you can immediately hear the stress in their voice.  They have had it.   An employee needs to be fired; can the lawyer help?

The answer is always “Yes”, but there are distinct caveats and questions that have to be asked. Among them:

  • What documentation do you have?
  • Is there a contract involved or is the employee “at will”?
  • Is the person in a protected class?
  • How do you treat other similarly situated people?
  • And will the employee be blindsided or understand the decision?

And so on. Most times, the decision to terminate the employment of an employee is a business decision, not a legal one.  And there are business questions to be asked too such as:

  • What impact is this employee having on the business?
  • Can the investment in the employee be rescued with counseling and support?
  • Are there alternatives (perhaps even another position) to termination of employment that are available?

Once both legal and business questions have been asked and answered, a lawyer can help a business evaluate the decision further and make suggestions on how to reduce risk (such as suggesting a separation agreement) that might still otherwise exist.

But one thing I do know: Ending the employment of an employee may be painful for all involved in the short term (with the obvious note that the employee will suffer the most), but often times, it can result in something new.

As the author Maria Konnikova has written, “When we should be cutting our losses, we instead recommit…”

Ultimately, spending too much time with the poor performers detracts from the attention you could be giving your top performers — the ones who bring in money to the business.  Talk with your lawyer to make sure the decisions you make with benefit the company in the long run.

You won’t regret those decisions.

Well, it’s over.

Joe Biden will be the next President of the United States effective January 20, 2021.

For employers, the last several years have been filled with several retreats from existing policies.   And over the last year in particular, the Trump administration was busy rolling out new regulations for employers to follow.  It’s not quite as predicted four years ago at this same time but not that far off either.

What’s interesting, however, is that those regulations may not be rolled back so quickly under a Biden administration.  Obviously, the proposed ones can be stopped in their tracks, but others may face a fight in Congress to get them repealed. And if the GOP holds on to the Senate, that will be a challenge.

Other firms are providing a national overview so I’m not even going to try to add that perspective. But I thought in this post, I’d touch on a few thoughts I had been thinking for employers in Connecticut and what we might see in the months ahead.

  1. FFCRA renewal.  Even before Biden takes office, it’s hard to imagine that the paid sick leave provisions of the FFCRA won’t be renewed for 2021. It’s currently set to expire at the end of the year and in the midst of ever increasing cases, this one seems like a priority during the lame duck session.  Jeff Nowak of the FMLA Insights blog did a longer summary here a few days.  For employers in Connecticut, this may end up proving tricky.  After all, Connecticut employers will start to need to comply with the PFML withholding providings in January 2021 and the paid leave itself kicks in the following January.  If you don’t have someone managing this regularly, now’s the time.
  2. Renewed input from Connecticut senators and governor — and feedback.  This may seem less obvious than first but anyone who saw President Trump’s often wildly exaggerated tweets about Senator Blumenthal knows that Connecticut has been out of favor for quite some time.  That will obviously change in a Biden administration.  That may mean more resources, and related to the pandemic, more consistency.
  3. Renewed enforcement at the DOL and EEOC.  Remember the white collar overtime regulations that were released in the closing months of the Obama administration? Maybe not since they were overturned by Congress after President Trump came into office.  While we’re unlikely to see these regulations come back soon, there is no doubt that President-Elect Biden will place a great deal of power and oversight into these federal agencies.  That in turn could trickle down to the state level as well. For example,  will there be a battle regarding so-called “gig” economy workers? Or will a compromise (like Prop 22 in California) be coming at a federal level?

There will obviously be far more analysis in the weeks and months to come.  For now, frankly, they are all dwarfed by the pandemic.  While it’s in “red alert” territory in several parts of the state, it’s raging uncontrollably in other parts of the country.  That is bound to impact state employers.  Even if progress is somehow made over the next eight weeks, I have no doubt that the pandemic will be issues number one, two and three for many months in 2021 too.

 

At his press conference on Monday afternoon, Governor Lamont previewed a new set of changes to the Sector Rules that businesses have been operating under. These changes rollback some of the openings under Phase 3, and Lamont has called this new version “Phase 2.1”.

We’re still awaiting all the details this week; the changes are expected to take effect on Friday. But here’s what’s been released thus far:

  • Restaurants will revert back to 50 percent capacity indoors with 8 people at a table maximum
  • Restaurants and entertainment places will have a curfew; they must be closed to 9:30p though takeout and delivery can continue past that time
  • Personal services (hair and nail salons, for example) can remain at 75 percent capacity
  • Event venues will have deep restrictions; 25 people indoors and 50 people outdoors
  • Performing arts and movies theaters can remain open with capacity capped at 100 people
  • Religious gatherings will also be restricted with 50 percent capacity (and 100 person maximum) with virtual services strongly encouraged.

The governor also announed additional recommendations for businesses:

  • Employers should maximize work from home
  • Employers (and employees) should cancel or postpone non-essential travel. This means those business trips should be cancelled for the forseeable future.
  • And “stay safe, stay home” remains the recommendation.
  • He encouraged those 60 or older, or those in high risk should take extra precautions.
  • He encouraged everyone to stay at home from 10p to 5a.
  • Events and gatherings should end by 9:30p.

The goal overall is to make sure to avoid a larger shutdown later and in particular, to keep schools and childcare places open as long as possible.

Be sure to bookmark the state’s latest guidance and watch for the update sometime this week.