I told you so.

It’s not very often you can say that. It is rarer still to have documented proof.  But back in 2008 — when nobody was focused on Facebook and there were fewer of you reading this — I said this about using Facebook to screen employees:

Overall, employers should tread very carefully in using social networking sites as a screening device. There are very little substantive advantages to using such sites and there are several landmines employers need to avoid. While they may satisfy an employer’s curiosity, the time-worn principles of checking references, conducting interviews and, if necessary, background screening, should typically satisfy most employer’s need to hire the best candidate.

So, imagine my surprise the last few days when the topic of employers asking applicants for Facebook passwords has suddenly made front page news.  (Indeed, the topic of whether passwords are even protected by the Constitution is now making the rounds as well.)

I couldn’t help but say to myself, “NOW you’re interested in this?” 

The kerfluffle has been fostered in part by one of Connecticut’s senators, Richard Blumenthal, who wants to introduce legislation to make that practice illegal.  Facebook has responded by saying that it will take action against those employers who engage in such a practice.

I’ll make it easy on both of them.  If you’re an employer, it’s probably not the best business practice to ask for the passwords of your applicants.  In other words, find another way. 

Why? Jon Hyman on his blog cited several legal reasons but then said it best this morning:

Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and that recognize that employees are entitled to a life outside of work?

Social media provides a lot of benefits to employers. It opens channels of communication between employees in and out of the workplace. And, when used smartly, it enables employers to learn more about potential employees than ever before. You can learn if an employee has good communication skills, is a good cultural fit, or trashed a former employer. But, this tool has to be used smartly to avoid legal risks. Requiring passwords is not smart.

Enough said.

The big news in Connecticut this morning has to be the retirement of Senator Chris Dodd and the announcement by Attorney General Richard Blumenthal that he will seek that seat.

This is most definitely NOT a political blog so I’ll leave it to others to figure out the political ramifications.

But what has yet to be explored is the impact that Blumenthal ‘s departure from the AG’s office will have.  Whether a Democrat or Republican fills that seat will certainly determine the scope of that change. But, assume for a moment that a Democrat retains that seat, will it have any impact on employers in the state in the enforcement of labor & employment laws? 

The short answer is that it probably won’t have a direct impact, but indirectly, it’s hard to see of a future Attorney General taking as public a stand on issues as Blumenthal has for nearly twenty years.

So why no direct impact? As a practical matter, enforcement of the state’s labor & employment laws actually resides primarily with the state Department of Labor and the Commission on Human Rights & Opportunities. While the office does get involved from time to time, it is mainly at the request of the state agencies and departments.

The AG’s office does have an "Employment Rights Office" but that unit doesn’t do what you might think it does. Rather, by its own description, it defends the state against discrimination claims:

This department defends state agencies and state officials in employment related litigation and administrative complaints and provides legal advice and guidance to state agencies on employment issues. We are currently defending the state in approximately 160 employment cases in the state and federal courts, as well as a similar number of complaints before the Connecticut Commission on Human Rights and Opportunities and the Equal Employment Opportunities Commission.

But indirectly, Blumenthal’s departure has the potential to change the landscape for employers in Connecticut.  Blumenthal has made no secret of his strong support for labor unions, for example.  Indeed, on several occasions, he has filed "friend of the court" briefs in various cases where he thought the state’s interests were at stake. (For example, his office filed a brief in the recent Pratt & Whitney plant closing dispute.) 

It remains to be seen if the next Attorney General has anywhere near the level of commitment that Blumenthal had to getting involved but even if a Democrat is elected, it will be big shoes to fill. 

UPDATED

Over the last 24 hours, it seems that every politician is decrying the use of Connecticut wage and hour laws as apparent support for AIG’s payout of various retention payments. Connecticut Attorney General Richard Blumenthal’s comments are among the most pointed, according to Capitol Watch:

"I have significant doubts about the validity of AIG’s claims that they are required by Connecticut law to pay these outrageous bonuses,” Blumenthal said. "AIG is shamelessly shielding itself behind the Connecticut Wage Act — a joke of a justification for squandering scarce taxpayer resources.”

One reporter has even called Connecticut’s wage laws, an "obscure" law.  But that would likely be news to the Connecticut Department of Labor which features that law prominently in the materials about the subject in its website. 

So, what IS the law that everyone keeps referencing? Well, the main provision is Conn. Gen. Stat. Sec. 31-72. That law states, in part:

When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, …., such employee may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court…  

In plain English, what this means is that if an employer does not pay an employee "wages", that employee can sue the company and MAY recover twice the amount of wages that should have been paid. 

And what’s a "wage"? Well, Conn. Gen. Stat. Sec. 31-71a(3) defines it as "compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation."  As I’ve discussed in prior posts, some (but not all) bonuses are treated as "wages" and therefore, employees may sue under this statute. 

That view was confirmed in a quote from an unnamed Department of Labor official in today’s Courant: 

"Our first step is to determine if the bonus is a wage," said a state Department of Labor official.  "If it’s a wage, it’s based on performance, production and efficiency"" the official said. "It has to tie directly to your performance, that you met certain standards and certain goals in order to turn that into a wage. … Companywide performance is less likely to be a wage."

What’s left unanswered in the whole debate though is why Connecticut’s wage and hour laws should NOT apply here.  Is Connecticut now saying that retention payments are never "wages" or just not in this case?  Is it simply the amounts of the payments that make such payments intolerable here?

Of course, that’s not to say that of an employee’s right to be paid under a contract is absolute. But existing laws don’t make it easy to get around that right.  Slate has a good column that suggests several legal theories that may be out there to attempt to break or avoid such contracts.  (And, as I said yesterday, I’ll leave it to others to opine on whether the payments here were proper or not.)  The New York Times has a very good series of columns about whether the contracts can be broken as well. 

One thing is certain: The debate over these payouts is far from over. And Connecticut’s wage laws are likely to never be the same again.

Last year, Connecticut football fans were in nirvana. Giants versus Patriots. In a state where loyalties are divided among those two teams, you couldn’t ask for a better match-up.

This year? Well, let’s just say that many people will need to find some alternative reason to get excited about the matchup.

Which is where office pools come in. 

At many employers, either formally or informally, employees can contribute a small sum (a few bucks up or perhaps $20) to get a box on a 10×10 grid, which corresponds with the last digit of the football score for each team (0-9). Get a box that matches the score at the end of a quarter or game, and you might will a few hundred bucks. 

(And office pool "experts" will tell you that numbers like 0, 3 and 7 are decent draws, while 2, 5 and 9 are remote possibilities). 

But for employers, this raises an interesting question — are office pools legal?

Well, last year, Connecticut Attorney General Richard Blumenthal chimed in near game time to say, in essence, yes office pools are legal, so long as the "house" (or the employer sponsoring it) doesn’t take a portion of the money.  An article in the Norwich Bulletin, quotes Blumenthal as saying: “Office pools are generally legal unless they’re done for a profit by the person organizing it.  In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

The actual law is a bit hazier as I explained in a fairly detailed post last year (available here). But since it is pretty clear that the state’s top enforcement official has no interest in prosecuting office pools, there doesn’t seem to be much harm in jumping in.

Just hope you don’t get the dreaded 5-5 combination. 

This should come as a surprise to no one, particuarly given my prior posts, but Foxwoods Casino (properly known as the Mashantucket Pequot Tribal Nation) today formally declined to bargain with the UAW over a contract for approximately 3000 table game dealers, setting up an appeal that will focus on sovereign immunity grounds. The Day first broke the story earlier this afternoon.

The Union’s request for bargaining last week can be downloaded here. Foxwoods response today is available here

So, what’s the general gist of the Tribe’s argument declining bargaining?

In our view, the NLRB’s effort to assert jurisdiction over Tribal gaming enterprises constitutes a serious breach by that agency of time-honored commitments made by the federal government to Indian Tribes in statutes and other laws that support and ecourage tribal self government and the building of strong tribal governmental institutions. 

The Tribe also goes on to note that the two presumptive nominees for President — Senator Obama and Senator McCain — have issued statements indicating their strong support for tribal sovereignty (though notably, not about this case). 

The Tribe included additional documents in support of its argument which are available here and here

Because the D.C. Circuit has already decided the San Manuel Casino case last year (which, in essence, allowed the NLRB to have jurisdiction over tribal casino workers), it is unlikely that the appeal will be filed there; instead, look for the Tribe to file in the Second Circuit where they will hope for a different outcome.   An appeal is not expected for at least several more weeks. 

Attorney General Richard Blumenthal issued a statement this afternoon "condeming" Foxwoods’ decision.  Expect an amicus brief or intervenor brief from his office when the appeal is filed, as was done in the San Manuel case. 

The Connecticut Attorney General’s Office quietly filed suit this week in Connecticut State Court(download here) against American Future Systems, which does business under the name of Progressive Business Publications (and also Progressive Business Compliance).   You won’t find a press release about it on Attorney General Richard Blumenthal’s website.  Back in March, I had reported that the AG’s office started investigating the company due to its practices advertising its products. 

Those who have been reading this blog for a while know that I wrote a series of posts about an e-mail and website page that PBC had regarding a somewhat obscure workplace poster.  Ultimately, the company revised their website regarding this poster and I applauded the company for fixing the issue on their website. 

But the suit filed by the AG’s office focuses not on the website, but on a facsimile that was allegedly sent out by the company in the winter with the heading "Connecticut Healthcare Advocate – Official Notice".  The notice also says that the poster "lists employee’s rights to health insurance under Connecticut law" — which is nearly identical to the language that was used on their website.

A copy of the notice can be found attached to the lawsuit.  The AG’s office alleges that this facsimile solicitation was misleading to consumers and violated Connecticut’s Unfair Trade Practices Act (called CUTPA). 

It should be noted, however, that the name of Progressive Business Compliance is also found on this facsimile as well and readers can make their own determination about whether the facsimile is, in fact, misleading when viewed as a whole.  (It should also go without saying that the lawsuit contains allegations, not proven facts.)

Interestingly, the lawsuit also alleges that PBC did not file the proper papers to transact business in Connecticut with the Secretary of the State’s office (Conn. Gen. Stat. 33-920a).  In addition, the AG’s office has claimed that the facsimile was an improper unsolicited advertisement under Conn. Gen. Stat. 52-570c(a). 

The Company has not filed an answer or appearance yet to the lawsuit.

In May, I did speak with an official from PBP and offered to post a statement from them. They declined the offer then and I suspect that they will keep their responses to court papers now that a lawsuit has been filed.

In the meantime, you can track the progress of the case via the court’s docket available here.

Last month, I broke the story about a company that was selling various employment law posters online, and the Connecticut government’s response to the posters.  A post recapping all events with links to all prior posts is located here.  

One poster, in particular, dealt with a "Healthcare Advocate" poster. At that time, the company’s website stated specifically  "New Poster February 2008! Employers are required to display this poster. Lists employee’s rights to health insurance under Connecticut."

As of my last prior post, last month, the company, Progressive Business Compliance had not made any changes to their website nor did they provide any public comment. While I’ve been tied up the past few weeks, their website for this poster has now changed. 

Their website for this poster  now reads: "New Poster February 2008! Employers are REQUIRED to display this poster.  Lists the services of the Office of the Healthcare Advocate under Connecticut Law, and gives contact information for employees."  However, the company still charges $12.99 for the poster. 

Employer and human resources professionals may still wish to exercise caution about using this particular poster. First, this poster — while apparently "new" to the company — is not new at all. It has been a requirement for a while. Second, in response to our prior post, Connecticut’s Office of Healthcare Advocate now has the exact poster available on their website.  You can download it directly from here.  Third, and most importantly, it’s available free of charge. 

I’ll leave it to the Attorney General to determine whether its a fair trade practice to sell a free government poster for $12.99.  Perhaps it contains a protective plastic cover.   And as I noted previously, these companies can provide a service to employers by combining various posters onto one laminated poster.  For some employers, it is a service worth paying for. 

But for employers who just want to comply with this particular law without any bells and whistles, the OHA’s poster that can be downloaded free of charge will suffice just fine. 

Of course, there are other posters that must be posted as well, so employers should check with an attorney to determine if they are meeting all the legal posting requirements. 

Lastly, I have been meaning to post about another website that summarized our prior posts on workplace posters quite well.   Lawroom.com posted about it here.  Each week, Lawroom sends out an email broadcast to several thousand HR and business subscribers (primarily in California, but also nationwide and in other states). They cover case, legislative, and regulatory developments, as well as interesting news stories. They also discuss “recurring” issues in employment law – including the need for mandatory posters.  My sincere thanks to them for the reference.  Please do check them out. 

Credit the Office of Healthcare Advocate for acting quickly.  I received word late Thursday that the Office of Healthcare Advocate — responding, in part, to my post on Wednesday — has now posted its required poster for employers on their website.  You can actually download the poster directly from this link. 

As detailed in earlier posts (here, here and here), employers that offer health insurance are required to post in their workplace about the services of the Managed Care Ombudsman.  It is mandated by Conn. Gen. Stat. 38a-1046.

Lastly, one final point from the Attorney General’s press release yesterday (see prior posts) bears some further comment. 

Selling state compliance posters is perfectly legal – until the companies use false and deceptive claims to push their product, as many have done.

It’s a valid point.  The companies that sell these posters in many ways offer a product that employers may find useful. They may laminate the poster or put a variety of information all in one. But when they overstep the line to scare employers or mislead them (and again, we’ll leave that issue for the AG’s office and readers to decide), they open themselves up to criticism.

A search of Google News this morning hasn’t turned up any additional coverage, including any response from PBC.  Thus, until there are significant further developments that I become aware of, I’ll consider this issue — from an employment law perspective — resolved for now.

Secretary of State Susan Bysiewicz and Connecticut Healthcare Advocate Kevin Lembo released their own press release (download here) this afternoon regarding the investigation into Progressive Business Compliance. 

According to the press release, Bysiewicz and Lembo are  "warning Connecticut’s business community about a deceptive marketing campaign that falsely claims there is a ‘new’ requirement that employers purchase compliance posters or face fines of $7500."  Bysiewicz is also investigating whether the company is operating legally in Connecticut. 

The Connecticut Employment Law Blog first broke the story of this marketing effort and discussed what the employer’s real obligations were under the law yesterday (see previous posts here and here.)  Earlier today, I noted Attorney General Richard Blumenthal’s statement. It is now available online here

The press release states:

“Today we are warning Connecticut business owners – do not be duped by the scare tactics of this unauthorized campaign and these phony “new” requirements,” said Bysiewicz. “My office has launched an investigation to determine if Progressive Business Publications is operating legally in Connecticut and I applaud Attorney General Blumenthal for his investigation of PBP for potential fraud. We urge anyone who has fallen prey to this scam to contact our offices.”

The marketing campaign, consisting of blast-faxes and emails from PBC, is entitled: "CONNECTICUT HEALTHCARE ADVOCATE, OFFICIAL NOTICE". This campaign is NOT authorized by the Office of the Healthcare Advocate, State of Connecticut. The promotion falsely states that this is a "NEW" requirement, and encourages the reader to purchase the poster under threat of "fines of up to $7,500." The solicitation gives potential buyers an option of purchasing a single compliance poster for $12.99 or a “Complete Connecticut State Kit” consisting of 11 posters for $89.99.

“As soon as we were notified of this scheme we took action,” said Lembo. This marketing campaign and solicitation are in no way authorized by the Office of the Healthcare Advocate. This scheme targets business owners trying to play by the rules. Business owners who are required to post health insurance information may contact my office and receive this poster free of charge.”

The Connecticut General Statutes (CGA 38a-1046) require that employers who offer a fully-insured health insurance product to their employees, "shall obtain from the Healthcare Advocate and post, in a conspicuous location, a notice concerning the services that the Healthcare Advocate provides." The notice/poster that fulfills this requirement is available, free of charge, by contacting the Office of the Healthcare Advocate at 1-866-466-4446 or healthcare.advocate@ct.gov.

As before, I’ll update with any noteworthy developments.

Yesterday, I broke the story about Progressive Business Compliance charging money for a free poster for a state and then highlighted the company’s website which made certain representations about the state of the law in Connecticut. 

In my post yesterday, I indicated that one of my colleagues had received some marketing materials that suggested there were new requirements and that the company’s website had indicated it was now effective February 2008.

I received an e-mail shortly after my post from Kevin Lembo, of Connecticut’s Office of Healthcare Advocate, indicating that action would be announced soon relating to the poster and the company.  (He also posted a comment to the blog indicating that the poster that I made available yesterday was indeed the state-mandated poster.) 

HartfordBusiness.com now confirms that the Attorney General Richard Blumenthal has opened an investigation against Progressive Business Compliance and other companies that market these types of workplace posters. 

According to the HBJ, Blumenthal has issued a press release stating the following:

PBC deserves a state warning poster of its own about consumer protection laws… Deliberately deceiving consumers into purchasing posters – through false claims about legal requirements or a company’s government affiliation – is plainly prohibited by our consumer protection laws.

This is a welcome step.  As companies in Connecticut are aware, Blumenthal has a knack for going after companies he perceives as violating the law. 

I should be getting some additional information from the State later today and will issue a followup when warranted.