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The holidays are here and you know what that means: New Year’s Resolutions. I recently caught up with Attorney Sarah Poriss who I’ve known for many years and realized she had an interesting perspective for employers and how to start the year off right. Sarah runs her own small firm focusing, in part, on foreclosures for individuals.  Recently, she’s been handling matters for homeowners impacted by the crumbling foundation crisis happening in eastern Connecticut.  What follows is an edited online conversation we had following my meeting with her and continues a long-running (if rarely repeated) series I’ve done conducting interviews with people outside my firm.  I hope you enjoy.

Dan: So, before we talk about crumbling foundations, you had mentioned that you’ve gotten a great appreciation for an employer’s perspective by running your own business. What have you seen?

Sarah: Now that I am an employer, I have begun to appreciate the value of a focused and efficient staff.  It can be distracting enough when something good or exciting happens in the life of one of my staff; it’s even worse when they experience something stressful or tragic.

My goal is to provide a workplace that allows time for their family and personal needs, but I can only go so far when it comes to ensuring they are not distracted by the stress of financial issues.

I’ve had staff with debts in collection, or who are working on their credit with a goal of buying their first home, or who have unexpected expenses due to illness of a parent or child or unemployment of a spouse.

Dan: With that in mind, what’s do you try to achieve?

Sarah: Whenever I’m dealing with my staff (and clients) who present with these issues – I really do try to work with the aim of providing some peace of mind so we can all get back to work (I actually feel like I’m more of a sleep specialist than a lawyer at times).

Dan: For those of us used to paying a mortgage each month, I confess it’s tough to know what to say to someone (like an employee) who is facing not being able to make their mortgage payment.  What’s some general recommendations you make to those people?

Continue Reading Five Questions With… Sarah Poriss: Crumbling Foundations and Employers

Do you remember when the Target store data breach made news? This was not that long ago, and yet, five years later we’ve arguably become immune to the news.

Take Facebook’s latest snafu — 50 million accounts compromised.  And yet, it hardly made headlines for a 24 hour period.

Heck, even the U.S. State Department has had personal information about its employees breached in the last month — though “only” one percent may have been affected – so…yawn.

Have we become that immune to such breaches at this point?  Perhaps.

But that doesn’t mean that employers can let their guard down. Indeed, I would argue that new laws and regulations (including one in California) are making the job of employers even more challenging.

I’ll be talking about all of this at my firm’s upcoming Labor & Employment Seminar later this month with my colleague Ashley Marshall.  It’s scheduled for October 25th at the Hartford Marriott.

Here’s the formal program:

If You Collect It, You Must Protect It: Dealing with Employee Data Privacy Issues
Presenters: Daniel A. Schwartz and Ashley L. Marshall

Cyberattacks are on the rise and employers must take the necessary steps to protect employee data.  This session will address data protection worries of human resources and review state and federal laws and regulations pertaining to workplace privacy, including the Personnel Files Act, GDPR, California statutes, and HIPAA complaint releases. 

We’ve got several other topics being tackled too.  We are probably only a few days away from selling out so be sure to sign up for this complimentary seminar today.

You’ve agonized over firing an employee.  You hired her over a year ago and it just isn’t working out.  The employee is kind, conscientious and punctual, but just doesn’t have the skills needed for the particular position.

But you’ve made up your mind. You’re firing her at a meeting this afternoon.

In that meeting, the employee stops you part way to say that she too has been thinking the job hasn’t been a good fit and asks if she can resign instead.

Can you still accept the employee’s resignation?

It may seem obvious, but I’ve had more than a few discussions with employers who are caught offguard with such a request.  (In some other circumstances, the employer may ask if they can allow the employee to resign in lieu of termination. Gets to the same point.)

The answer is yes, you can allow the employee to resign. Even if you originally were firing them.

There’s no law that requires employers to stick with a decision that they are having second thoughts. You can withdraw a termination, you can change the termination to a resignation. It’s really up to you and the employee.

But here’s a related question. Can the employee still collect unemployment benefits if they “resign”?

Again, the answer is yes.  Mostly.

As the Department of Labor notes, the “general  rule  is  that  a  person who  voluntarily  leaves  suitable  work without good cause attributable to the employer is not eligible for benefits.”

But an employer who indicates that it is going to fire an employee and “allows” the employee to resign, is probably establishing the “good cause to be attributable to the employer” because it relates to the wages, hours or working conditions of the job.

There are exceptions, of course, but employers who contest unemployment of an employee that they “allowed” to resign in lieu of termination, should really be thinking long and hard about such a decision.

And, as another blog post reminds, “forcing” an employee to resign isn’t going to fly in many instances either.

Firing an employee isn’t easy. It shouldn’t be. But doing it the right way isn’t that hard either.

In yesterday’s post, I talked about the basics of what is and is not “sexual harassment”.

Continuing the theme of going back to the basics, employers in the Constitution State have certain posting and training requirements that must be followed.

These requirements are found in the administrative regulations set up by the CHRO regarding sexual harassment prevention.

I first detailed these in a post WAY back in October 2007 (!) but they remain just as important today as ten years ago.

For posting: All employers who have 3 or more employees must provide notices that say sexual harassment is illegal and address what the remedies are for such harassment.

But here’s a free shortcut: The CHRO has prepared a model poster that complies with the statute and is free to download.  You can do so here. 

It’s a good time to remind employers too that employers should also update their “Discrimination is Illegal” poster also offered by the CHRO.  The poster was updated in October and again, is free to download here.  

For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.

Of course, this does not mean that employers who have less than 50 should NOT provide the training; indeed, offering the training can assist with a defense of a potential sexual harassment training.

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.

The format of the training should be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

The CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Those topics are:

  • (A) Describing all federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply, including, but not limited to, the Connecticut discriminatory employment practices statute (section 46a-60 of the Connecticut General Statutes) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section 2000e, and following sections)
  • (B) Defining sexual harassment as explicitly set forth in subdivision (8) of subsection (a) of section 46a-60 of the Connecticut General Statutes and as distinguished from other forms of illegal harassment prohibited by subsection (a) of section 46a-60 of the Connecticut General Statutes and section 3 of Public Act 91-58;
  • (C) Discussing the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving persons of the same or opposite sex;
  • (D) Describing the remedies available in sexual harassment cases, including, but not limited to, cease and desist orders; hiring, promotion or reinstatement; compensatory damages and back pay;
  • (E) Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
  • (F) Discussing strategies to prevent sexual harassment in the work place.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.

What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should consider following this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training.

Again, it is a wise course of action to follow.

If you haven’t taken a look at your posting and training materials at your company, now is a good time to do so.

Sometimes, government is thought of as the enforcer of rules.  But sometimes, the government is also in the business of helping businesses too.

The latest example of this is an Employer Resource Guide put out a few weeks ago by the Connecticut Department of Labor. You can download it directly here.  

According to its introduction:

This employer resource guide was created to educate all employers on the wide array of programs, services, and incentives available in Connecticut. This guide will be  periodically updated, and automatically emailed to all registered employers in CTHires, ( www.cthires.com), the Department of Labor’s no cost online job bank. In addition, a link to the resource guide will be available on the Department of Labor’s website, http://www.ctdol.state.ct.us/employerresourceguide.pdf.

For some larger employers, much of the information contained here may not be news. But for others, there are programs that the government runs that may be helpful. For example, if you are struggling financially and may need to do layoffs, the Department’s Rapid Response Team can provide some assistance. There are also shared work programs, which I’ve talked about before, which allow employers to maintain some staff on reduced hours, while affording the employees the opportunity to collect unemployment compensation too.

Overall, the guide provides some very useful materials on programs that sometimes fall below the radar.  If you haven’t taken a look recently at the Department of Labor’s offerings, it’s well worth a few minutes of your time to see if there is a program that matches your company’s needs.

There are many confusing aspects of employment law — not the least of which is that certain laws only apply to employers of a certain size.

For example, the federal age discrimination law, ADEA, only applies to a business if it has 20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last).

Now in some instances, that might not matter in Connecticut because Connecticut’s general anti-discrimination laws generally (with exception) apply to employers of three or more employees.

Why does this matter? Because there are some aspects of this federal law (and others) that don’t apply to small employers.

One prime example of this is the requirement that employers comply with the Older Worker Benefit Protection Act, which is part of ADEA.  This law requires separation agreements to have certain conditions, including 21 days for the employee to consider the release.  But employers who are under 20 employees are not covered by ADEA and thus don’t need to follow this particular legal requirement (even if it may still be a good idea).

Another area that this comes up is in FMLA coverage.  Most people are aware that FMLA only applies to employers who have 50 or more employees.

But there is a secondary requirement that is often overlooked — that the employee asking for such leave be located in an office that itself has 50 or more employees within a 75 mile radius.

By way of example: Suppose an employer has 1000 employees, but only 25 located in Connecticut and there are no offices within 75 miles.  An employee has a serious health condition; is the employee eligible for FMLA leave?

The answer is no.  At least 50 employees must work for the employer within a 75 mile radius.

Practical Law had a good summary of this:  

Employers should analyze whether the employee meets the 50 employee and 75 miles requirement when the employee gives notice that leave is needed. An employee who is deemed eligible for FMLA leave continues to be eligible for the next 12 months even if the number of employees drops below 50. To determine whether an employee is eligible, the distance is based on:the employee’s physical work site using surface miles over public streets, roads, highways and waterways by the shortest route; or if an employee has no fixed work site, the employee’s work site is his home base, the site to which he reports or the site from which his work is assigned.

Now, nothing prevents an employer from giving all of its employees FMLA-leave, but they’re not required to.

Thus, employers who are in various locations should be sure to look at all the employer-size rules to figure how where they are covered and how. Because size really does matter.

worker3After nine-plus years of writing about employment law in Connecticut, it’s getting to be pretty rare to find a topic that I haven’t at least touched upon, but here’s one: The Duty of Loyalty.

Indeed, a new Connecticut Supreme Court case is giving me the opportunity to do so.

The case arises from an employee who, while working for one employer, was secretly working as an independent contractor for a competitor.  The employer sued under a breach of the duty of loyalty claim.

The case, Wall Systems Inc. v. Pompa, officially released last week, can be downloaded here.

Lawyers will look at the case because it sets forth what types of damages are recoverable when a breach of a duty of loyalty claim is established.  In doing so, the court makes it clear that a trial court has some discretion in fashioning the appropriate remedy:

We agree with the plaintiff that the remedies of forfeiture of compensation paid by an employer, and disgorgement of amounts received from third parties, are available when an employer proves that its employee has breached his or her duty of loyalty, regardless of whether the employer has proven damages as a result of that breach. Nevertheless, the remedies are not mandatory upon the finding of a breach of the duty of loyalty, intentional or otherwise, but rather, are discretionary ones whose imposition is dependent upon the equities of the case at hand. Moreover, while certain factors, including harm to the employer, should not preclude a finding that the employee has committed a breach of the duty of loyalty, they nevertheless may be considered in the fashioning of a remedy. Here, because the trial court properly exercised its broad discretion when it awarded damages but declined to order forfeiture or disgorgement, we will not disturb its judgment on this basis.

But I think the more interesting point for companies is to understand the scope of the duty of loyalty.

In discussing the scope of this duty, the Connecticut Supreme Court reaffirmed principles that were last set forth in detail over 50 years ago in Town & Country House & Homes Service, Inc. v. Evans.  In that case, the court found an employee breached the duty of loyalty by soliciting employer’s customers for his own competing business while still working for the employer.

The court noted that an employee’s duty of loyalty includes “the duty not to compete … and the duty not to disclose confidential information”.  The court noted that this duty not to compete is during the employment relationship — not necessarily after — and is not dependent on the use of employer’s property of confidential information.

The court went on to say that the duty of loyalty “also includes the duty to refreain from acquiring material benefits from third parties in connection with transaction undertaken on the employer’s behalf.”  What does this mean? Essentially, it bars the collection of “secret commissions and kickbacks which might cause the employee to act at the expense or detriment of his or her employer”.

An employer may seek the forfeiture of an employee’s compensation for the period of disloyalty, but the court concludes that such a remedy is an equitable one and subject to the facts of the particular case.

But it’s always important to read the footnotes and here, in footnote 9, the Court inserted the notion that the duty of loyalty may not apply all employees.  “The scope of the duty of loyalty that an employee owes to an employer may vary with the nature of their relationship. Employees occupying a position of trust and confidence, for example, owe a higher duty than those performing low-level tasks.”

Still, the case is an excellent one for employers to keep in mind — particularly if the employer does not have restrictive covenants with its employees.  If the employees are engaging in competing work while still employed, the employer can use this case — and the theories behind it — to see the appropriate remedies.

With the appropriate employee, the employer can further strengthen its arguments, but including this in an employment agreement along with restrictive covenants.  In such a case, the court reminds parties that an employer could then terminate that agreement prematurely and seek recovery of damages directly attributable to the employee’s breach.

Employers should consider consulting with their favored outside counsel to see how this decision may apply to them.

 

Thanks to all who came to our Labor & Employment seminar on Thursday. Our biggest crowd yet. In it, we talked about the importance of offer letters.  Marc Herman returns today with a post updating us on a recent Connecticut Supreme Court decision that came out while I was on vacation a while back that makes that point even clearer.  

hermanPicture this: Jill works for you.  You fire her as an at-will employee.  Two weeks later, you receive a letter from Jill claiming that she is owed commission for several sales that she completed prior to her termination.

What should you do?

Let’s look at her offer letter.  That it usually a good starting place.

Blah, blah, blah. . . ah, something about commission.  Let’s see what it says:

Commission is only paid once work has been performed and invoiced to the client.  Upon termination of employment, all commissions cease, except those commissions that have been invoiced to the client.

You look again at Jill’s letter and look-up her recent sales.  You realize that the commission to which she refers relates to sales that had not yet been invoiced to the client when Jill was fired.

You excitedly draft a response to Jill  – “Sorry, Jill – you’re out of luck!” (or words to that effect — your lawyer can probably help with the wording).

Jill sues you.  She argues that you owe her money.  Moreover, she argues that the commission provision is unenforceable as a matter of public policy — “you can’t deprive me of commission that I worked hard for!”

Now what?

Well, in a recent decision, the Connecticut Supreme Court concluded that provisions like the one above may be enforceable — and that employers may not have to pay a commission because of the language used in the offer letter.

In Geysen v. Securitas Security Services USA, Inc. (bearing facts very similar to Jill’s), a former employee argued that such compensation provisions are unenforceable as a matter of public policy and therefore his former employer had violated the law by not paying him commission.

The trial court agreed.

On appeal, the CT Supreme Court issued a thoughtful decision.  It made two main points:

Point One: Parties should have the freedom to make contracts with unfavorable terms.

Point Two:  You cannot draft a contract that simply tries to work-around the law.  They violate public policy — A big no-no.

So what about provisions like the one above?

The easiest answer is that such provisions should pass legal muster.  Sure, it may contain terms that favor the employer, but that’s ok because the parties bargained for it.  Nor is it a work-around the law; the law simply requires that employers pay employees in accordance with any agreement.

After concluding that the provision was enforceable, the Court read it literally: no commission due.  The Plaintiff’s hard work aside, he had previously agreed that no commission would be “due” prior to the client being invoiced.

The Court also agreed with the defendant-employer that the employee’s claim of wrongful discharge (as a matter of public policy) was also without merit.  No violation of public policy and therefore no wrongful discharge.

Note, however: the Court left open the possibility that such practices could amount to a breach of the implied covenant of good faith and fair dealing.  This really concerns the employer’s motive.

For example, an employer’s motive for firing an employee was simply to avoid paying commission, that would be a breach of the implied covenant of good faith.

What’s the lesson here? Agreements with employees are not unenforceable simply because they may seem unfair to the employee.  However, apply caution in drafting agreements that seek to work-around the law.

Freedom of contract is alive and well. . . for now.

monkeyIn yesterday’s post, I talked about some of the reasons why an employee’s lawsuit against his or her employer was destined for failure.

But employers, I’m afraid you’re not off the hook that easily. This post is for any employer that just got sued or threatened with suit.

Maybe that lawsuit isn’t so frivolous after all.

Wait a second! You said yesterday that ‘Odds are, you probably weren’t discriminated against’!”  

Ah, but isn’t that rub? Odds. Statistics.  Yes, some (many?) lawsuits brought by employees are losing propositions. But some are not.

Here are some things I tell clients or prospective clients when I see a lawsuit filed or threatened as to why they should take the lawsuit seriously.

1. That frivolous lawsuit is still going to cost you thousands (if not tens of thousands) to defend.  But I thought you said this post was about non-frivolous lawsuits?  True. But for my first point, that’s beside the point entirely.  Whether a lawsuit is frivolous or not, the system of justice through our courts and administrative agencies moves slowly and with some cautiousness.  Even the frivolous ones need to be defended.  Court filings need to be, well, filed.  And court conferences need to be attended.  So your first point always is to recognize that all employment law cases have a cost associated with them.

And as such, all cases have what we call a “nuisance” value as well.  That is — you are going to spend X amount of dollars defending the lawsuit.  It may be cheaper to just pay a certain amount to avoid the cost of defense.  Now, there are business reasons why you won’t want to do so in all or even many cases, but the employer who fails to recognize the nuisance value of the case is destined to be disappointed in the long run.

It’s a bit of hyperbole to say that any person can sue anyone at any time for any reason. But not that much.  Lawsuits are a part of doing business.  Frivolous or not, you will still have spend money to defend your decision. Be prepared for this eventuality when making your employment decisions and deciding whether or not to offer severance in exchange for a release.

2. “At Will” Employment Is a Misnomer.   In Connecticut, the default employment relationship between an employer and employee is “at-will”.  As many offer letters suggest, that means either the employer or employee can terminate the employment relationship at any time for any reason or no reason at all.  And so, I sometimes hear employers exclaiming “Connecticut is at-will! We should be able to just fire them for any reason!  How can they still sue?”

Continue Reading Maybe That Lawsuit Brought By Your Employee Isn’t So Frivolous

moquitobYour industry’s major conference is set for Miami Beach – the land of sun, beaches, and, now it seems, mosquitoes carrying the Zika virus.

Your key sales employee — the one who was setting up your booth for the conference — has come to you expressing concern about the Zika virus.  Perhaps she’s pregnant. Or perhaps he’s married with a pregnant wife expecting at home.

Now what?

The answers are still developing.  The Department of Labor’s OSHA division advises that:

Employers should consider allowing flexibility in required travel for workers who are concerned about Zika virus exposure. Flexible travel and leave policies may help control the spread of Zika virus, including to workers who are concerned about reproductive effects potentially associated with Zika virus infection.

The CDC has also issued advisories for the Miami-Dade area including that:

  • Pregnant women should not travel to these areas.
  • Pregnant women and their partners living in or traveling to these areas should follow steps to prevent mosquito bites.
  • Women and men who live in or traveled to these areas and who have a pregnant sex partner should use condoms or other barriers to prevent infection every time they have sex or not have sex during the pregnancy.

What can employers do?

First off, employers should not make any blanket decisions for pregnant employees about whether they should travel.  Rather, employers should educate all employees (including any pregnant ones) about the risks associated with the Zika virus.  If an employee refuses to travel, employers should evaluate the situation on a case-by-case basis.

But beyond that and considering that the transmission of the Zika Virus in Florida is still mainly with mosquitoes, employers can advise employees to use insect repellent and to reduce unnecessary outdoor work.

This is still a fluid situation but already there are already many other law blog posts on the subject — nearly all of which are repeating the same information. Any one of them can also be reviewed as well.

Employers should not overreact, but rather recall the lessons learned from prior disease outbreaks like H1N1 back in 2009.  Some flexibility in the short term is going to be required.