The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage.

Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months.

Governor’s Bill 5043 sets up the following changes:

  • First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15.
  • Second, the bill would also require all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years.
  • The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religious creed, age, sex, gender identity or expression, marital status, and national origin.
  • The training would also be required to include information about the employer’s policy against harassment, examples of the types of conduct that constitute and do not constitute harassment, strategies to prevent harassment, bystander intervention training and a discussion of “workplace civility” that shall include what is acceptable and expected behavior in the workplace.
  • The bill would require employers of three or more employees to continue to post information regarding all types of harassment and, on an annual basis, to “directly communicate such information and remedies to employees on an annual basis”.

My best guess is that this item of legislation will go through some additional tweaks to satisfy various constituencies, particularly because of the increased costs involved.

For example, expanding the training to all employees would create a massive new industry for training and, as the CBIA has said, a costly mandate as well.

There is more legislation coming down the pike in the employment law area.  This is just one of the items being floated so stay tuned.

Summer feels really far away right now.  It’s just been brutally cold here in the Northeast.

(How cold? Too cold for skiing.  That’s brutal by any stretch.)

But summer WILL eventually come. So we’re told.

So the news late Friday that the U.S. Department of Labor was scrapping the test it had released just a few years ago about interns probably went a bit unnoticed.

At first blush, it might look like a big deal. But, in reality, not so much because the federal courts here (including New York as well) had already adopted the new test that the USDOL announced on Friday.

I’ve covered both before, but the TL;DR version is this: The DOL is going to the “primary benefit” or “primary beneficiary” standard that had been outlined in 2015 by the Second Circuit.

Law360 summarized it pretty well here:

Under the [Second Circuit] test, courts have analyzed the “economic reality” of interns’ relationship with their employer to determine which party is the primary beneficiary of the relationship. The standard has been applied in various cases where courts have ruled that interns in a variety of industries, as the primary beneficiaries of their internships, don’t qualify as employees for FLSA purposes and can’t collectively pursue claims for misclassification and wage violations under that statute.

That said, employers in Connecticut don’t have it easy. As I noted in a prior post as well, Connecticut passed anti-discrimination law protection for interns that uses another test too.  That law better tracked the old DOL interpretation which has now been overturned.   That said, that law does not apply to wage and hour claims, only discrimination claims.

So, what does it mean? Employers have a tricky time structuring internships to meet both federal and state law guidance. The “primary beneficiary” test is going to carry the day in many instances, but employers that often use interns should still consult their legal counsel to see if there are any particular issues that need to be addressed for your company.

“Joe, in response to all this NFL stuff, we want you to display U.S. flags at your workstation.”

“No.”

“Well, then you’re fired.”

Don’t think that can happen? Then you haven’t heard about the Cotto v. United Technologies Corp. case — a long-forgotten Connecticut Supreme Court case from 20 years ago that has particular meaning in today’s environment where standing for the national anthem has become front page news.

Is this patriotic too?

The basic facts are as I described them above:

  • The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years.
  • In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations.
  • The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing or exerting pressure on employees to display the American flag.
  • After a suspension, he was fired by his employer on or about May 16, 1992.

The Supreme Court had two things to say on this. First, the Court held that the employee could raise a claim under a state law that an employee’s free speech claims were being violated. Again, i talked more about this law in a post last month.

But that’s only part of the decision. In the other half of the decision, the Court was asked to decide whether the employee actually had a free speech claim.

The Court reminds us first that not everything is a federal or even state case.  “As a statutory matter, a statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question.”

And then the court reminds us, in language that has direct implications for the discussion we’ve been having about standing for the national anthem, that the Complaint was missing a few essential aspects to rise to that level.

Significantly, the plaintiff has not alleged that:  (1) he was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto;  (2) he was directed to affix the flag to his person or to his private property;  or (3) he was indirectly directed to associate himself with the symbolism of the flag because the location of his workstation was such that members of the public, or his fellow employees, reasonably could have attributed that symbolism to him personally.

Instead, the claim rested on the requirement for the Plaintiff to affix the flag to the workstation. The Court saw no meaningful difference to that act, versus an employer who did it for the employee — which would not violate the First Amendment.

A direction to the plaintiff to affix a flag to his workstation did not require him either to manifest or to clarify his personal political beliefs.   Because a flag was to be affixed to  each workstation, and because the plaintiff’s workstation was not exposed to public scrutiny, he was not required to assume the risk that others might attribute to him any political beliefs about the flag that he did not share.   In other words, the direction to the plaintiff, as a matter of law, was not a “coercion of belief.”

Hmmm.

Now, if you’ve been paying attention, you’ve been seeing press reports that the NFL and its teams may require its players to stand at the national anthem.  Let’s suppose that happened in Connecticut too and that a paid employee was fired for refusing.

Given the language in Cotto, could the employee allege that he “was directed to manifest his patriotism by saluting the flag or otherwise affirming his allegiance thereto” — a fact that was missing in the Cotto case?

That obviously is an unanswered question, but it just goes to show that you can learn a lot through your history.

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements.

After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers.

Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish.

Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did.

And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement.

When I heard this, I scratched my, well, proverbial head about this one.  Did I miss something?

The short answer is no, I didn’t miss something.  Connecticut law doesn’t say this.  You can see for yourself in Conn. Gen. Stat. 46a-60.

But how did the employee get such advice?

The first answer may be the simplest one: The attorney he spoke with doesn’t routinely practice in the area.  Sometimes, well-meaning lawyers just overstep their knowledge basis.

Another obvious answer is that the employee’s so-called advice was from “Attorney” Google.  Google is really good at finding things that might apply to your situation — not as good yet at telling you whether it actually applies to your situation.

And if you Google a topic like this, you might actually find a state court decision that looks — at first blush — like it might be on point.

State courts often use the following language in their decisions:

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.

What does THAT mean?

Typically for the same types of disparate treatment claims for, say, gender discrimination claims, courts in Connecticut don’t have as much as experience as federal law. So where the law is the SAME, it makes sense to look to federal laws that are similar.

The problem in the age discrimination statute context is that Connecticut law is DIFFERENT than federal law at times. There is no state equivalent. So looking to federal law makes no sense whatsoever.  And sure enough a quick search of Google Scholar reveals NO state law case applying that federal law to a review of separation agreements.

So how ARE separation agreements to be reviewed in Connecticut? In essence, you would most likely look at the agreement under state laws dealing with contracts.  Typically, this is also done through the “common law’ – that is precedent from the courts.  And Connecticut courts haven’t said much about separation agreements.

Employers are sometimes caught in the middle of receiving advice from their counsel (hopefully correct) and what the employee believes is true whether through an attorney or otherwise.  Employers should understand the misinformation that exists out there and, when confronted with these issues, try to explain them to employees.

Otherwise, a seemingly innocuous situation could turn much more stressful when the employee thinks (and worse, is being told) that the employer is violating a non-existent state law.

Update: As noted below, the redesigned blog should be up at some point Tuesday, perhaps late – a new post will follow thereafter.  If it’s Tuesday and you’re seeing this blog post and the old design first, it’s coming later in the day. Promise.  

Every good superhero story needs an origin story.  I’m not a superhero but I’ve got a super origin story to tell.

Not a Daredevil

You may have heard it before, but humor me. I’m turning 10.

You see it was ten years ago, in a hotel conference room in where my life changed.

Of course, like lots of such “a-ha” moments that people have, I didn’t realize it at the time.

(Pause here to acknowledge that there are plenty of moments you know are going to be big: kids, marriages, your first iPhone).

I was at the Spring Conference for the American Bar Association Young Lawyers Division in, of all places, Canada.  Montreal, to be specific.

But I woke up early, on a few hours sleep, to hear from this guy, Kevin O’Keefe, who had this company called “LexBlog”.

He talked about how lawyers could set up a law blog. Sounded interesting.

At the time, I kinda thought I was late to the party.  But I had long since wanted to do some type of writing – a remnant from my days as an editor on my college newspaper.

If you had asked me, I probably would’ve said that I just wanted to have my own New York Times op-ed piece.

(Pause here for having to explain to my kids how we used to read The New York Times in paper form etc.)

And so, over the summer months of 2007, I worked with Kevin’s company to design a blog.

What should it be called? Well, lawyers should have a geographic area and a practice area, I heard Kevin say to me.

What do you think about “Connecticut Employment Law Blog”, I asked? Sure, that sounds specific enough.

(Pause here to reflect on names I could’ve used, like “Dan’s Uber Employment Law Blog” or “Snapchatting About Employment Law”.)

And then in September 2007 — ten years ago this month — I was ready to launch.  You can see my first “Welcome” post here.

For the first few years, I used to joke that the blog didn’t make me a better lawyer — only “Google” search results suggested I was by moving this blog to the top of the charts.

(Pause here to say my best party trick is telling people to Google “Connecticut Employment Law”. There’s now something called “EmploymentLawHandbook” that pretends to be number 1 sometimes– someone tell Google.)

But after 10 years, I’m not quite sure that’s accurate anymore. I’ve come to conclude that the blog has improved my life in immeasurable ways, which is why it’s so valuable as a “origin” story.

Here are three things I think about:

  1. I’ve met amazing people through the blog. Readers, fellow lawyer bloggers, special clients, technology people, reporters, and more.  Perhaps I would’ve met a few of them somehow, but the blog has expanded my own horizons. And in turn, I’ve learned a lot more than I ever would’ve though about employment law, the state of the legal profession, and myself.
  2. Writing nearly every day helps shape your own writer’s voice.  You start to hear yourself when you write and, like riding a bike, it just gets easier the more you do it.  That, in turn, has helped my legal writing as well.  I’ve become less afraid to experiment more with my legal writing. To write shorter sentences. To speak directly to the reader. To be direct.
  3. Rather than be “late” to the party, I’ve come to realize that I was early. In fact, when Twitter and Facebook took off, I wasn’t nearly as afraid to use them for professional and personal purposes.  Instead, I realized that they were opportunities to expand my network and learn more from others.

The last time this blog was redesigned was back in 2011.  That is the look you still see today, Monday.

But with some luck and a lot of perseverance (as well as continued help from Lexblog — which has become a partner to me), this blog gets relaunched tomorrow.

What will that look like? What will happen? Stay tuned for tomorrow’s post where I look at where this blog goes forward.

Day One of the new Connecticut Employment Law Blog begins tomorrow. (Probably late in the day, tomorrow if you’re really paying attention.)

Last week I talked about the new state law regarding pregnancy discrimination that is going into effect on October 1, 2017.  In that post, I mentioned a new notice that was required to comply with the law.

Although there is no set form that is required to be used, the Connecticut Department of Labor has created one that is available for employers to use that will comply with the state law.  It is free to download here.  

Because the content is useful, I’m using it down below so that employers can cut and paste it into a handbook or into a notice to be given to employee upon starting work too.  One can quibble with some of the word phrasings that are used, but overall — and stating the obvious — if you use this, you’ll be in compliance according to the state.

Covered Employers

Each employer with more than 3 employees must comply with these anti-discrimination and reasonable accommodation laws related to an employee or job applicant’s pregnancy, childbirth or related conditions, including lactation.

Prohibition of Discrimination

No employer may discriminate against an employee or job applicant because of her pregnancy, childbirth or other related conditions (e.g., breastfeeding or expressing milk at work).

Prohibited discriminatory conduct includes:

  • Terminating employment because of pregnancy, childbirth or related condition
  • Denying reasonable leave of absence for disability due to pregnancy (e.g., doctor prescribed bed rest during 6-8 week recovery period after birth)*
  • Denying disability or leave benefits accrued under plans maintained by the employer
  • Failing to reinstate employee to original job or equivalent position after leave
  • Limiting, segregating or classifying the employee in a way that would deprive her of employment opportunities
  • Discriminating against her in the terms or conditions of employment

    *Note: There is no requirement that the employee be employed for a certain length of time prior to being granted job protected leave of absence under this law.

Reasonable Accommodation

An employer must provide a reasonable accommodation to an Employee or job applicant due to her pregnancy, childbirth or needing to breastfeed or express milk at work.

Reasonable accommodations include, but are not limited to:

  • Being permitted to sit while working
  • More frequent or longer breaks
  • Periodic rest
  • Assistance with manual labor
  • Job restructuring
  • Light duty assignments
  • Modified work schedules
  • Temporary transfers to less strenuous or less hazardous work
  • Time off to recover from childbirth (prescribed by a Doctor, typically 6-8 weeks)
  • Break time and appropriate facilities (not a bathroom) for expressing milk

Denial of Reasonable Accommodation

No employer may discriminate against employee or job applicant by denying a reasonable accommodation due to pregnancy.

Prohibited discriminatory conduct includes:

  • Failing to make reasonable accommodation (and is not an undue hardship)**
  • Denying job opportunities to employee or job applicant because of request for reasonable accommodation
  • Forcing employee or job applicant to accept a reasonable accommodation when she has no known limitation related to pregnancy or the accommodation is not required to perform the essential duties of job
  • Requiring employee to take a leave of absence where a reasonable accommodation could have been made instead
    ** Note: To demonstrate an undue hardship, the employer must show that the accommodation would require a significant difficulty or expense in light of its circumstances.

Prohibition of Retaliation

Employers are prohibited from retaliating against an employee because of a request for reasonable accommodation.

Notice Requirements

Employers must post and provide this notice to all existing employees by January 28,2018; to an existing employee within 10 days after she notifies the employer of her pregnancy or related conditions; and to new employees upon commencing employment.

Complaint Process

CHRO:

Any employee aggrieved by a violation of these statutes may file a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). Complainants have 180 days from the date of the alleged act of discrimination, or from the time that you reasonably became aware of the discrimination, in which to file a complaint. It is illegal for anyone to retaliate against you for filing a complaint. CHRO main number: 860-541-3400 CHRO website: www.ct.gov/chro/site/default.asp CHRO link “How to File a Discrimination Complaint”: http://www.ct.gov/chro/taxonomy/v4_taxonomy.asp? DLN=45570&chroNav=|45570|

DOL:

Additionally, women who are denied the right to breastfeed or express milk at work, or are discriminated or retaliated against for doing so, may also file a complaint with the Connecticut Department of Labor (DOL). DOL phone number: 860-263-6791 DOL complaint form: For English: http://www.ctdol.state.ct.us/wgwkstnd/forms/DOL-80%20fillable.doc For Spanish: http://www.ctdol.state.ct.us/wgwkstnd/forms/DOL-80S%20fillable-Spa.doc

For those unfamiliar with the way a lot of Connecticut laws get implemented, October 1st could seem like just another day.  (Though for my kids, they would be impressed that it was a different October 1st in 1982 that EPCOT opened at Disney World.)

But a lot of bills that are passed by the Connecticut General Assembly go into effect on October 1st each year. This year is no exception.

For employers, the biggest of these bills is the new law concerning “Pregnant Women in the Workplace”.  I’ve previously recapped the law for pregnant employees in a prior post way back in May, but because we’re getting close to implementation, it’s time for a little refresher.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those rules remain unchanged. But the new law revises some other provisions and adds more to the protections. Effective October 1st, it will now also be unlawful to:

  • Limit, segregate or classify the pregnant employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • Discriminate against an employee or job applicant on the basis of her pregnancy in the terms or conditions of her employment;
  • Fail or refuse to make a reasonable accommodation for an employee or job applicant due to her pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship;
  • Deny employment opportunities to an employee or job applicant if the denial is due to the request for a reasonable accommodation due to her pregnancy;
  • Force an employee or job applicant affected by pregnancy to accept a reasonable accommodation if she (i) does not have known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • Require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of the leave; and
  • Retaliate against an employee in the terms, conditions or privileges of her employment based upon the employee’s request for a reasonable accommodation.

The changes don’t stop there. The new law also explains that the word “pregnancy” will also include “pregnancy, childbirth or a related condition, including but not limited to, lactation”.  It also expands the definition of “reasonable accommodation ” and “undue hardship”.

  • “Reasonable Accommodation” means, but is not limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignment, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk; and
  • “Undue Hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of the accommodation upon the operation of the employer.

Continue Reading Two Weeks Until New Protections for Pregnant Employees Become Effective

Labor Day has come and gone. Summer is over.  Can we all stop listening to Despacito now. (Please?)

But it’s time to look at a decision that came out during the dog days of summer that might have been overlooked.  A recent federal district court case (Noffsinger v. SSN Niantic Operating Co. LLC, download here) has answered the question of whether Connecticut’s medical marijuana laws were preempted by federal law.

The decision held that Connecticut employees who have received approval from the state agency to use medical marijuana outside of work cannot be fired just because they test positive for marijuana during a drug screening.  In doing so, the court held that employees and job applicants can sue based on a termination or a rescinded job offer.

As my colleague wrote for my firm’s alert:

Unlike the laws of other states permitting residents to be prescribed medical marijuana, Connecticut’s statute expressly makes it unlawful to refuse to hire or to discharge an employee solely because of the individual’s status as a qualifying patient, or for testing positive in a drug screening as a result of using medical marijuana within the protections of the statute. However, Connecticut does not protect such individuals if they are found to be using or are under the influence of medical marijuana during working hours.

The court analyzed federal drug laws and determined that they do not address the issue of employment and do not make it unlawful to employ a medical marijuana user. As a result, even though federal law prohibits possession or use of marijuana, those restrictions do not apply to someone properly using medical marijuana under state law.

The decision follows one from Massachusetts that we previously recapped here.

In prior posts, I’ve talked about the difficulties for employers trying to navigate this still-developing area of law.  Employers should proceed carefully under such circumstances and ensure compliance with the state’s medical marijuana laws that prohibits firing employees solely because of the individual’s status as a qualifying medical marijuana patient.

If an employee is under the influence of marijuana during working hours, that may afford employers the opportunity to take decisive employment action but other circumstances may not be so clear.

Consulting with your legal counsel on this changing area of law is advisable for the foreseeable future while more court decisions define the parameters of acceptable action.

It never seems to fail; I go on vacation and the Connecticut Supreme Court issues one of the few employment law decisions it issues every year during that week.

Fortunately for all of us, it concerns the fluctuating work week method of overtime computation which most employers in the state consciously either avoid or try not to understand.  (In very basic terms, the formula calculates a pay rate based on the number of hours an employee actually works in a particular weeks.)

I’ve previously discussed the “perils of trying to rely on a fluctuating work week.” As recently as 2012, I said that “while it can provide some benefit for employers, it must be done properly and must not be raised after the fact.”  And I noted way back in 2008 that employers have to jump through a variety of hoops to make sure they are compliant.

Add to this cautionary tale the latest Connecticut Supreme Court case of Williams v. General Nutrition Centers, Inc. 

The court held that overtime pay for retail employees who receive commission cannot be calculated using the federal fluctuating workweek formula.

And beyond that, the court raised two important principles.  

First, it said that Connecticut law does not prohibit the use of the fluctuating method in general. Thus, for most employers and most employees, the use of the fluctuating work week is definitely in play.

Second, and perhaps most critical here, the Court said that Connecticut Department of Labor regulations that govern overtime pay for retail employees do prohibit the use of the fluctuating method for those employees:

By setting forth its own formula for mercantile employers to use when computing overtime pay, one that requires them to divide pay by the usual hours worked to calculate the regular hourly rate, the wage [regulation] leaves no room for an alternative calculation method….The wage order’s command to use a divide by usual hours method therefore precludes use of the fluctuating method’s divide by actual hours method, except, of course, when an employee’s actual hours match his usual hours.

It should be noted as well that while the case concerned retail employees, the regulation at issue applies to all businesses in the “mercantile trade.”

For employers that rely on the fluctuating workweek method of calculating overtime in Connecticut, this case is a good reminder to revisit those practices now to make sure they comply with this new Connecticut case. Seeking the advice of your trusted counsel to look at your particular circumstances is critical given the court’s decision.

 

Over the weekend, The New York Times ran a surprising (at least to me) article about how Idaho has implemented a legal framework that gives employers a great deal of flexibility in an area getting a good deal more publicity of late: Non-compete agreements. (H/T to a post by Suzanne Lucas in Inc. too.)

When everyone has a non-compete agreement, what problems does that cause? Lots, according to the article:

For the most part, states have been moving toward making it easier for people to switch teams, but Idaho went the other direction with legislation that was friendlier to employers. The resulting law was particularly strict because it put the onus on employees to prove that they would not harm their former employers by taking the new jobs.

Proponents note that the statute applies only to “key employees” who tend to have more responsibility and better pay. But employment lawyers say Idaho companies tie down all levels of workers, not just top executives, with tough employment contracts.

Contrast that with California, which bans nearly all types of non-compete agreement, and lately, Massachusetts, and suddenly, Connecticut’s laws on non-compete agreements look downright moderate.

Indeed, for now at least, Connecticut employers have a good deal more flexibility on non-compete agreements that in other areas of employment law.

In fact, I was reminded of this when I looked back on a post from 2014 that noted the same thing — also in response to an article from The New York Times. It seems back then, the newspaper was also bemoaning the increasing use of non-compete agreements. Hmm.

In any event, employers in Connecticut should be mindful of this edict from the courts from 40 years ago that still rings true today:

In order to be valid and binding, a covenant which restricts the activities of an employee following the termination of his employment must be partial and restricted in its operation “in respect either to time or place, … and must be reasonable—that is, it should afford only a fair protection to the interest of the party in whose favor it is made and must not be so large in its operation as to interfere with the interests of the public. The interests of the employee himself must also be protected, and a restrictive covenant is unenforceable if by its terms the employee is precluded from pursuing his occupation and thus prevented from supporting himself and his family.