Last week, a story caught my eye and the attention of some of my colleagues.  As reported first by Bloomberg BNA, IBM has stopped providing the comparison information that is typically required in separation agreements for older workers under the Older Workers Benefit Protection Act.

You may be wondering how that is possible.  Robin Shea, of Employment & Labor Insider beat me to the punch with a very good recap that I don’t think I can improve upon.  So I’ll cite two paragraphs below:

As you know, when an employer has a “group termination” — usually, a reduction in force, but a “group” can be as few as two people – it is required to disclose the job titles and ages of the individuals in the “decisional unit,” which means the working unit from which the decisions were made. If the employer doesn’t make the disclosures (and get ‘em right), then it can’t get a valid waiver of age discrimination claims under the federal Age Discrimination in Employment Act although the waiver may be valid in other respects …..

But how can IBM do this?  They aren’t requiring employees to give up their age discrimination claims, that’s how. They’re just requiring them to use arbitration instead of the court system. Which I think is legal, based on Gilmer v. Interstate/Johnson Lane, a Supreme Court decision from the 1990′s.

In essence, IBM is using a separation agreement with two sets of rules: For all claims except age discrimination, employees must release IBM. For age discrimination claims, IBM has said that employees do not have to release IBM but must take any such claims to arbitration.

Will it work? That remains to be seen. It has yet to be challenged in court or the EEOC.

But most employers are not IBM and do not have the resources to take this strategy.

So I suspect that many employers will simply follow the path of least resistance and provide the comparison information under the OWBPA.  If done right, then employers will get the benefit of an additional release without the hassle of arbitration or the added cost.   It’s worked for many employers for over 20 years and, IBM’s strategy notwithstanding, it’s probably not worth changing gears now.

There are many good free resources for additional background on this topic. One that I would suggest was produced by the ABA in 2008 and is still highly relevant today.

The Connecticut Department of Labor late today posted brand-new guidance (available here) comparing the new federal FMLA regulations with the existing Connecticut regulations.   For employers struggling to adopt the new FMLA regulations with Connecticut’s FMLA rules, this document is a must-read because there are some very real and significant differences now that will arise — at least until those differences are handled via statutory and regulatory amendments.   

A little background first: the 30 page document is the work of Attorneys Heidi Lane and Jennifer Devine in the Office of Program Policy who enforce the CFMLA on a daily basis.  The document, as noted in the cover, is an attempt to provide Connecticut employers with as much information as possible to modify their policies.

But as the cover also explains, there is likely to be a formal rule-making change (with appropriate notice period) this year to address some of the differences that are now arising between federal and Connecticut regulations.  The Department will also be holding a seminar on the interplay between federal and Connecticut regulations on February 26, 2009 for a nominal fee of $25.

Overall, the document notes that some changes can be adopted immediately because they conform to the "practice" of the Department of Labor or are a "reasonable interpretation". Other provisions cannot, particularly because Connecticut’s FMLA statute and regulations are just different. A rule of thumb is that where the state regulations are more favorable to the employee, those state provisions will be followed. 

Because of that "rule of thumb", employers now need to be very cautious in adopting the new federal regulations. Indeed, all of the regulatory changes that were favorable to employees (or at least neutral) will be followed by the CTDOL, but all of the federal FMLA changes that were favorable to employers will not.  [This is not the Department’s fault, per se, but rather the way Connecticut’s statute has been written.] So, that change to the "perfect attendance" bonus rule under federal law? Out. That provision allowing employers five business days to give notice to affected employees, instead of two? Gone as well.

So what are some of the highlights?

  • The CTDOL will allow for the adoption of the new FMLA notice, designation and certification forms (available here) with certain very notable exceptions. In particular, forms WH-381 (Eligibility Notice) and WH-382 (Designation notice) will need to be provided to employees within TWO business days, not the five allowed under the new federal regulations. Expect a change to the state regulations to make it consistent with federal law, but until that happens, Connecticut employers still need to follow the 2 day limitation.

    In addition, "key employee" and "fitness for duty" provisions differ from the new FMLA regulations. Employers should review the specific regulations and consider eliminating some of the language on the forms to conform with Connecticut law.
     

  • The new federal regulations also dictate that employees must provide notice of their absences consistent with their employer’s policy. However, the CT DOL indicates that Connecticut law is not as strict and merely requires"timely verbal or other notice". Thus, until this regulation is amended, Connecticut employers applying CTFMLA will need to show more flexibility.
     
  • As for the certification forms (WH-380E and WH-380F), those can be used with one notable exception. The new forms have a section where the doctor is to indicate a "diagnosis"; the CT DOL states that an employer may not request a diagnosis under CTFMLA. A formal change to Connecticut regulations will be needed to adopt this particular change. These forms must also be given to employees within TWO business days, not five as allowed under FMLA.
     
  • Overall, the CTDOL adopts the changes to the definitions of "serious health condition" that dictate that employees visit doctors within certain specified periods of time.
     
  • While the new FMLA regulations allow for the denial of a "perfect attendance" bonus/award to employees who take FMLA, Connecticut regulations do not allow this. Thus, until the regulations are amended in Connecticut, employers in CT cannot deny perfect attendance awards to employees who take CTFMLA leave.
     
  • The federal FMLA regulations permit an employer to contact the employee’s health care provider in limited circumstances, but the Connecticut rules do not. This distinction will remain.
     
  • For "fitness for duty" requests, the CTDOL notes that employees need only provide a "simple statement of an employee’s ability to return to work". While the federal regulations allow for a more detailed certification, the CTDOL has indicated that it cannot follow this provision.

The document is a vital piece of information for employers’ compliance efforts and I applaud the department’s efforts in providing employers this information in a fairly short period of time.

But it now highlights the fact that the legislature and CTDOL should act quickly to eliminate some of the awkward differences that will now arise between federal and state FMLA.

For employers, continue to seek appropriate legal counsel on implementing the federal regulations but make sure that any analysis includes application of Connecticut regulations where appropriate.

With Alaska Governor Sarah Palin’s speech last night, it makes sense to try to learn a little more about each of the vice presidential candidates and how each of them have impacted the state that they represent.courtesy wikimedia -

For that reason, I wanted to suggest a few blogs that cover their states pretty well.

  • Alaska Employment Law Blog has been around for a while and covers the ins and outs of that state.   Long before the media started focusing on Alaska, this blog has been covering some of the happenings in the state. For a smattering of articles referring to Gov. Palin at the site, you can click here.
  • While the Delaware Employment Law Blog hasn’t been around as long, the writers there have been prolific in keeping up to date on issues relating to Delware employers and to employers in general.  Their most recent post about Sen. Biden’s position on work-life issues is worth a read and is available here.

And finally, while not an employment blog per se, the Delaware Corporate and Commercial Litigation blog has long been a favorite read of mine.  The blog recently had a very enlightening post about the impact Senator Biden has had on corporate law as well. 

Regardless of your political affiliation, learning about the respective backgrounds of each of the candidates can help each of us make an informed decision. 

For more information about Connecticut candidates, you can also check out a site I heard about today sponsored by the CBIA, called CTBizVotes.com.  There are links to each of the major political parties and information about issues that matter to both employers and employees. 

As I reported a few weeks ago, 14- and 15-year-olds can legally work again in limited capacities in Connecticut.  (Summer camp counselors are summer camp; courtesy "morgue file"on the list.) 

But how does state law compare to federal law?

Turns out the Office of Legislative Research has already done the research.  OLR recently posted the results of their research on their website.

What does the research conclude?

In some areas, state law sets a higher standard than federal law regarding employment of 14- and 15-year-olds. In other areas, state law is silent, therefore the federal standard applies.

State and federal law coincide in a number of areas, including permitting minors age 14 and 15 to do certain nonhazardous jobs outside of school hours for limited times each day and week.

[The recently passed] PA 08 -108 permits 15-year-olds to be employed as baggers, cashiers, or stock clerks in retail businesses under certain work-hour restrictions. Federal law sets a similar standard for 15-year-olds, but also allows 14-year olds to work in these establishments.

As with the interaction of other labor laws (such as FMLA and CTFMLA), each of these laws acts as a "floor" for protection. Thus, while one law may be more lenient than another, proper interpretation of the law takes the more "stringent" of the laws. 

For employers who use teenagers in their work, particularly for the summer, I suggest a peek at the OLR research report to ensure that you understand the differences between the two areas of law.

This is particularly important because of more severe penalties that have recently been passed by Congress. More on that law can be found here.

Ed: Updated to fix links.