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

Malloy Signs Intern Anti-Discrimination Bill
Malloy Signs Intern Anti-Discrimination Bill

Capitol Watch — The Hartford Courant’s political site – tweeted the following yesterday:

And a review of the Governor’s website reflects that approval in the bill notification release. (I read them so you don’t have to!)

So, what does that mean for employers? Well, I’ve covered the bill before so I won’t recap everything here.

But the bill’s provisions now become effective October 1, 2015.  Thus, employers who regularly use interns should update their employee handbook and anti-harassment provisions to explicitly cover interns.

One of the other things to consider that hasn’t been discussed much is the extent to which the bill’s definition of “intern” may get adopted in the context of establishing whether an intern is really an “employee” for wage/hour purposes.

What do I mean? Well, back in 2012, I talked a lot about how employers could properly structure internship programs. In that post, I noted that there were six factors that the U.S. Department of Labor would look at:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Now, let’s compare this with the definition of “Intern” in the new anti-discrimination bill.  An intern is defined as an “individual who performs work for an employer for the purpose of training, provided”:

  1. the employer is not committed to hire the individual performing the work at the conclusion of the training period;
  2. the employer and the individual performing the work agree that the individual performing the work is not entitled to wages for the work performed; and
  3. the work performed:
    1. supplements training given in an educational environment that may enhance the employability of the individual,
    2. provides experience for the benefit of the individual,
    3. does not displace any employee of the employer,
    4. is performed under the supervision of the employer or an employee of the employer, and
    5. provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer.

If you track each item carefully, you’ll notice that they are actually fairly similar. That’s a good thing.  While there are subtle differences, it’s unlikely that those differences will be meaningful in their application.

As a practical matter, that means employers that adopt the defintiion of “intern” in the new state statute are likely to be following the federal interpretation as well, reducing the risk of a wage/hour claim as well.

The bottom line, however, is that employers who just use interns without much worry as to the liability that using interns may create should rethink their practices. The new law is yet another area where new rules will make using those interns may expose employers to possible claims.  Is it a small risk? Perhaps. But small risks can turn into big ones if employers aren’t mindful.

My kids are at overnight camp this week and of course, my brain never stops thinking about cute employment law lessons that can be gleaned from everyday experiences.

So, you may wonder: do camp counselors who, after all, spend 24/7 with the kids, have to be paid minimum wage? And what about babysitters that you may employ over the summer?

If you look at the state law itself (Conn. Gen. Stat. Sec. 31-60), it seems to require minimum wage:

Any employer who pays or agrees to pay to an employee less than the minimum fair wage or overtime wage shall be deemed in violation of the provisions of this part.

But one of the lessons you learn in law school is that just because the legislature uses the word “employee”, it may not mean what you think it means.

In other words: check the definition.

And sure enough, when you look at the definition of employee in Connecticut, it specifically excludes whole classes of people.

“Employee” means any individual employed or permitted to work by an employer but shall not include any individual employed in camps or resorts which are open no more than six months of the year … or any individual engaged in baby sitting ….

So, in some circumstances, those employees of camps aren’t really employees under state wage & hour law. (Federal law has an exemption as well, though with different requirements.)

Thus, for camps, a whole other set of requierments may apply.  (For any camps out there, before you start changing all your rules, please note that there are lots of other regulations that may apply, as noted in this detailed summary by the American Camp Association. Seek your appropriate legal counsel.)

But for the rest of us, it may be summer, but there are always lessons you can learn — even from camp.

Reading the headline, I’m sure a few of you rolled your eyes.  Dodd-Frank? Sarbanes-Oxley? Those statutes are seen as dull and tedious.  But a new federal court decision in Connecticut should start to change that, and it has implications for employers nationwide. 

The case is Kramer v. Trans-Lux, which you can download here. It addressed an employer’s motion to dismiss a claim of whistleblower retaliation under the Dodd-Frank Act. Ultimately, the court allowed the employee’s claim to proceed, noting that under the facts alleged, the employee has a viable claim.

What was the case about?  According to the applicable complaint (which the court assumed as true for purposes of deciding the motion), the plaintiff was a Vice-President of Human Resources with responsibility for ensuring that the company’s benefit plans were in compliance with applicable law.  He claimed that he expressed concern about the makeup and number of people on the pension plan committee and that he did not believe the company was adhering to its pension plan. 

He claimed that he contacted the audit committee and, importantly, claimed that he sent a letter to the SEC regarding the company’s failure to submit a 2009 amendment to the board of directors.  He then claimed that he was reprimanded and the subject of an investigation. Shortly thereafter, he was stripped of his responsibilities and later terminated. Continue Reading A New Whistleblower Retaliation Statute Grows Up: Dodd-Frank is the new Sarbanes-Oxley.

What Would Noah Webster Think?

One of the things that law school teaches you is to read the definitions of words in any new law that is passed. Why? Because a word like “employer” may be defined differently than what you would expect.

That’s a hard concept for real employers to understand. After all, how can you be an “employer” in one part of the law, but not an “employer” in another? Such is the nature of bill drafting.

I’m reminded of that lesson when looking at the Paid Sick Leave Act to determine if towns and cities are covered by the new law.  Here is the relevant portion of definition of employer:

“Employer” means any person, firm, business, educational institution, nonprofit agency, corporation, limited liability company or other entity that employs fifty or more individuals in the state in any one quarter in the previous year, which shall be determined on January first, annually. Such determination shall be made based upon the wage information submitted to the Labor Commissioner by the employer pursuant to subsection (j) of section 31-225a of the general statutes.

Now, you might think, on first glance, municipalities are not covered.  There’s no explicit reference to them. But the word “other entity” is broad enough to likely cover them. Indeed, according to the CTDOL and bill summary prepared by the OLR, they are covered, so long as that town meets the 50 or more individual threshold.  Arguably, school boards and public and private schools may also be subject as well.

You can see this a little more clearly when you contrast this definition with the one in Connecticut’s FMLA law.  That definition states:

“Employer” means a person engaged in any activity, enterprise or business who employs seventy-five or more employees, and includes any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer and any successor in interest of an employer, but shall not include the state, a municipality, a local or regional board of education, or a private or parochial elementary or secondary school.

Since courts presume that the legislature acts logically when it crafts definitions, the difference in definitions is likely to mean something — here, that municipalities aren’t excluded from the paid sick leave law.

If you want to hear more about this law, Heidi Lane from the Connecticut DOL is speaking to the Connecticut Bar Association’s Labor & Employment Section tonight. Details are here.

My post yesterday on a new Superior Court decision in Velez v. Mayfield has generated a lot of discussion from the counsel for the individual who brought the suit. (You can also view the original DOL decision here.) 

As I mentioned in the update, the case is being appealed so it’s very likely we’ll get Appellate Court or Supreme Court guidance on this issue. But assuming Velez is allowed to stand, let’s talk about a few more examples of how this decision might impact employers.

Example 1:

Suppose an employer has 100 employees in Texas and 1 sales employee based in Connecticut, who must care for a sick family member.  The employee in Connecticut would not be eligible for federal FMLA leave because the worksite that he or she works at has less than 50 employees.  However, the employee would be eligible to receive Connecticut FMLA (16 weeks over 2 years), under Velez.  

What might the employer be required to do? In some instances, provide the FMLA leave and then hire a temporary replacement or move another employee to temporarily fill the position on an interim basis.  When the FMLA-eligible employee is ready to return to work, Conn. Regs. 31-51qq-21 seems to specify a likely path : 

[The] employee is entitled to be returned to the original position the employee held when leave commenced, or if the original position is not available, to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.

There are, of course, some exceptions. If the employer decided to simply close the Connecticut facility, that might dictate a different course, but in the example above, the employer is in the difficult position of living with a great deal of uncertainty for a small office where temporary replacements might be difficult to find.

Example 2:

Although the court in Velez suggests that its decision may help smaller employers in Connecticut, it might also hurt them too because it could impact Connecticut-based employers that have — until now — been seen as being exempt because they were too small to be covered.  Suppose an employer has a Connecticut office of 40 employees, with approximately 40 other employees working on a part-time basis at various locations outside the state. Federal FMLA would not kick in, again because the worksite has less than 50 employees. But under Velez Connecticut FMLA would now seem to apply to all of the Connecticut employees because the company employs more than 75 employees.

One question left unaddressed by the decision is what impact might this have if its analysis were applied to other labor and employment laws. For example, the discrimination laws (Conn. Gen. Stat. Sec. 46a-51) specify that an employer is a company that employs three or more persons. Would out-of-state workers be included in that calculation as well?

Other statutes raise similar questions: Do the rules prohibiting smoking in the workplace have to count out-of-state workers too? (Conn. Gen. Stat. Sec. 31-40q). Why are the workers compensation statute definitions (Conn. Gen. Stat. Sec. 31-275(10)), which are undoubtedly intended to cover employees of small branch offices, structured so differently if — as the court states — the intent was the same? And the same could be asked about the unemployment insurance statutes too (Conn. Gen. Stat. Sec. 31-223).

In the meantime, companies with employees in the state should take a hard look at their exposure on this issue.

The Connecticut Supreme Court today addressed the issue of who is an "employee" under a provision of the state’s unpaid wage law that allows individuals to institute a civil action.  (Conn. Gen. Stat. Sec. 31-72). That statute basically says that when wages aren’t paid under some other provisions (sections 31-71a to 31-71i), the employee may bring a lawsuit to recover damages.

Here’s the conundrum: Conn. Gen. Stat. Sec. 31-72 doesn’t define the term "employee".  In the case released today, Saunders v. Firtel (download here) (officially released on September 22, 2009) , the employer argued that the definition of "employee" — found in the minimum wage section of the law, Conn. Gen. Stat. 31-58 — should apply (which would exclude executive, administrative and professional individuals from being an "employee"). 

The Connecticut Supreme Court disagreed and found that the definition of "employee" found in another statute, Conn. Gen. Stat. Sec. 31-71a should apply instead. That statute defines an employee as any individual who "suffered or permitted to work by an employer" (a much broader standard).  

Although the court doesn’t touch on this, there could be a little bit of confusion on this issue because the particular definition (Sec. 31-71a) says it applies only to interpreting Sections 31-71a to 31-71i (the basis for an unpaid wage claim). But the court obviously had no problem finding that it would be bizarre for an employee to be able to have a claim for unpaid wages, but not be able to sue about it in the next section.

This decision is really of no surprise. It is hard to imagine that the court would carve out a whole group of employees from the state’s unpaid wage statutes that would be unable to sue. 

For employers, this decision should have virtually no impact on the way they run their business. The case addresses an interesting legal point, but aside from that, employers should be paying their employees anyways.

I’ll address the remaining part of the case discussing when double damages are appropriate in an upcoming post.  (There was a concurrence and dissent by Chief Justice Rogers on that issue, which is available here.) 

UPDATED 3/2/09 with New Link to Proposed Regulations

The text of the proposed new regulations on GINA have finally trickled out (you can download a copy here). 

Ross Runkel (whose stakes a claim to being "First in Employment Law") finally tracked it down earlier today.

It’s a 58-page document though much of what it contains has been discussed in previous posts here and here. Here are a few items that haven’t been touched on before

  • The definition of "employee" also covers former employees; this allows individuals who have been fired to raise discrimination and retaliation claims.  (Section 1635.2)
  • The EEOC seems particularly interested in comment on six terms that have not been used previously in employment law context (at least not with any frequency). These include: "Family member", "Family medical history", "Genetic information", "Genetic Monitoring", "Genetic Services", and "Genetic Test".  (Section 1635.3)
  • The regulations emphasize that although employers have 5 exceptions to the general rule that they may not acquire genetic information, these exceptions still do not allow an employer to discriminate by using such genetic information. (Section 1635.8)

Expect there to be more analysis in weeks to come. The comment period will end at the end of April 2009.  After that, expect the EEOC to release final regulations in the summer of 2009.

President Bush’s signature is expected any day now on the ADA Amendments Act of 2008 (click for my prior posts here), which represent some of the most important changes to federal employment laws in over a decade.  For employers in Connecticut, there is going to need to be some synthesis with Connecticut’s anti-discrimination laws so employers should not simply assume the ADA will apply over state law.

But regardless, these amendments are going to have a wide-ranging impact for most employers nationwide.  Here are some of the highlights:

When Do the Amendments Go Into Effect?

January 1, 2009.

Who is Affected by the Changes?

Employers who have been covered by the ADA before (those who have 15 or more employees) are going to be covered by the amendments.

What Changes Have Been Made On How a "Disability" is Defined?

Employers must now adopt a broad standard to determine if someone is "disabled" — something found in the language of the amendments itself. Courts are to provide coverage to individuals  "to the maximum extent permitted". 

In the short term, this means that more ADA cases are going to pass initial threshold tests. Prior to these amendments, courts dismissed many cases on the grounds that the individuals are not "disabled".  Employers should now assume that more employees are going to be covered by the ADA and make employment decisions with that assumption in mind. 

What is Now a "Major Life Activity"?

Until the amendments, the ADA was silent on what was a major life activity, leaving the issue to the courts to decide. But the new law has a laundry list of activities from thinking to concentrating, from eating to working that is now specified.  In addition,  the operation of any major bodily function is considered a major life activity. For employers, this is again another indication that a "disability" is going to be considered broadly. 

What Should be Done About Mitigating Measures?

Previously, courts and employers had to determine a person’s disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids.  Now, employers and courts must ignore those measures. Employers will now need to make sure that then engaging in the interactive process, these measures are properly separated.  

What About Ordinary Eyeglasses or Contact Lenses?

Despite the provision above, Congress created an exception for ordinary eyeglasses and contact lenses.  Those items CAN be considered when determining if someone is disabled.

Is The Revised "Regarded As" Provision In the ADA as Broad as it Seems?

Probably.  Under the amendments, an individual now must show only that that the employer perceived the individual has having a mental or physical impairment (not that that impairment substantially limits a major life activity necessary).  This is very broad and could potentially be setting the ADA up for a massive expansion in its scope.

But when the impairment lasts for only six months or less and is minor, it won’t qualify.  Whether this provision will have a real impact in narrowing the "regarded as" section remains to be seen. 

What’s the Takeaway For Employers?

Quite simply, ADA cases are likely to move from "threshold" issues (whether the person has a disability) to "liability" issues (whether the person was actually discriminated against).  Employers defending such claims should understand that ADA claims are going to be defended like many other types of discrimination claims: by showing that the employer has a legitimate, non-discriminatory reason for its decision. 

Employers should also start informing human resource staff  of the changes. These amendments are likely to affect the interactive process and employers may need to provide more accommodations to more of their workforce.  Caution should definitely be exercised in the short-term as employers adopt to these new definitions and rules. 

As always, consult with an employment attorney about how these changes will affect your company specifically.  And obviously, if you’d like any particular help for your company, feel free to drop me a line.