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

There’s an old(?) Bonnie Raitt song that my parents used to listen to when I was in college called “Let’s Give Them Something to Talk About”.  It’s about a crush, but the intro could be just as applicable to a new court decision. The lyrics start: “People are talkin’, talkin’ ’bout people, I hear them whisper, you won’t believe it.”

The short lesson? Don’t give your employees something to talk about — namely when a lawsuit is filed, caution is strongly advised in distributing information about that lawsuit.  Interested in more? My colleague, Gary Starr, shares more:

A recent Connecticut district court decision (EEOC v. Day & Zimmerman NPS) is a cautionary tale for in-house lawyers and human resource managers who want to tell employees about an investigation into discrimination claim brought by a former employee, and that investigation may involve those employees.

Following a disability discrimination charge, the EEOC sought contact information about other employees as well as information about their employment.

Rather than simply advise the employees that the EEOC was being provided with their job title, dates of employment, home address, and phone number, the company also described the accommodation that was requested and information that the former employee’s doctor had indicated that without the accommodation, the employee could not perform the essential functions of the job.

The EEOC viewed this as retaliation against the former employee by disclosing the information and interference with the rights of the employees receiving the letter as the agency thought it would discourage others from making claims in the future out of concern that their personal information would be shared widely.

The Company’s efforts to justify the letter were rejected by the court, which decided that a jury will have to decide whether the letter was retaliation and/or interference.

In communicating with potential witnesses in an agency investigation or lawsuit, employers must be clear on why the notice is being sent.  And employers should exercise caution on deciding what information is being shared.  What the decision suggests is that employees do not need to know what the medical condition another employee may have, what accommodation has been requested by that employee, or what recommendation a doctor has made about the employee.

Letting employees know that their contact information has been given to the EEOC and that they may be contacted would likely have have been sufficient and not opened up the employer to criticism.  And the decision does suggest that offering them the choice of having a lawyer present should not interfere with their rights.

In this instance, less information is better than more.

In any case, in the unlikely event you do need to inform employees about a lawsuit, check with your counsel about the details you should (and should not) be sending.

USDOL Headquarters in DC
USDOL Headquarters in DC

Over the years in the employment law “blawgosphere” (isn’t there a better term by now?), I’ve had the pleasure of meeting with and conferring with several other attorneys who blog. One of those is Jeff Nowak, whose FMLA Insights blog has become a go-to place on all things FMLA.

So, it was no surprise yesterday that Jeff was one of the first to talk about a new FMLA notice that will be issued by the U.S. Department of Labor that can be used interchangeably with the existing notice. He also added this scoop:

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice. She confirmed that employers would be allowed to post either the current poster or the new version. In other words, employers will not be required to change the current poster. For those that want to use the new poster, I will post a link as soon as DOL releases it.

Jeff also linked to a new employer’s guide to the FMLA, a companion of sorts to a 2012 release by the DOL for employees.   This 71-page guide will be a good starting point for employers on the basics of the law but it leaves more complex issues about the law unanswered.  For more on it, see Jeff’s post and a followup post by Jon Hyman, of the Ohio Employer’s Law Blog this morning as well.

Connecticut employers though should exercise extreme caution about using this guide as a bible.  As most employers in Connecticut are aware, there are significant differences between Connecticut’s FMLA law and the federal counterpart.  And because employers with 75 or more employees in Connecticut are covered by both, there is a significant risk that employers using only the federal FMLA guide will get the law wrong.

Connecticut has historically posted a comparison of the two laws that is helpful, again as a starting point.  But that comparison is now 17 years old and doesn’t address many of the current issues or things such as a military exigency leave that have occurred through changes to the FMLA law over the years.

So what’s an employer in Connecticut to do? Ignore it? Read it?

Probably a little of both.

There are certainly items helpful in both guides but, in my view, they aren’t a substitute for talking with counsel about more complicated issues such as intermittent leave and FMLA’s interaction with the ADA and Connecticut’s Paid Sick Leave law.

If nothing else, be aware that when FMLA leaves do occur, there may be more to the solution than what is posted in the USDOL’s employer guide.

 

TimeIn catching up over some interesting employment law cases from 2015, I came across Lennon v. Dolce Vida Medical Spa (download here).  You would be forgiven if you missed it because it’s an unreported Superior Court decision on a seemingly-technical issue.

But, if followed by other courts, it has a notable twist.

First, the simple background: In Connecticut, employees must typically file discrimination claims first with the state agency, the Commission on Human Rights & Opportunities before going to court.  These claims are, pursuant to a work-sharing agreement with the EEOC, typically cross-filed with the federal agency too.

(For the lawyers out there — yes, you can file first at the EEOC, but the vast majority of claims get filed first at the CHRO.)

In any event, in order to bring suit in court, the employee must obtain a “right-to-sue” letter from the CHRO and, I think many people believed, from the EEOC as well.  The employee must then bring suit in court in the following 90 days from receipt.

In the Lennon case, the employee received only the right to sue letter from the CHRO and yet brought both state and federal discrimination claims.

The employer moved to dismiss the federal claims.  The Superior Court, however, rejected that motion to dismiss, saying the existence of a work-sharing agreement between the CHRO and the EEOC as well as the fact that the filing requirement is not a jurisdictional bar, does not merit dismissal of the claims here.

[Dismissal is not warranted because of] the plaintiff’s timely compliance with [the state] filing requirement, the nature of the work-sharing agreement in place between the CHRO and the EEOC, the fact that every federal circuit court presented with this issue has decided that obtaining a right-to-sue letter is a precondition rather than a jurisdictional requirement for bringing suit based on EEOC violations, and recent decisions of the district courts of Connecticut holding that a plaintiff who has a release from the CHRO is not required to obtain a duplicate right-to-sue notice from the EEOC….

Fair enough.  The court cites some similar federal court cases from Connecticut to support this position as well.  (I should note, however, that Superior Court decisions have questionable precedential value according to some so be sure to check with counsel about any use of this case.)

But if that’s going to be the law — that an employee need not wait or get a separate right-to-sue letter from the EEOC before filing suit on both state and federal grounds — what is left unanswered from the case is a different by similar set of facts.

Suppose an employee receives the right-to-sue letter from the CHRO but, for whatever reason, does not file suit in state or federal court in the next 90 days.  Months go by and the EEOC then issues its  notice of a right-to-sue nearly one year later (which is what happened in the Lennon case).  The employee then files suit in federal court on the claims within 90 days.

Are his or her federal claims now time-barred because courts have ruled that the employee could have brought suit with simply a state (CHRO) right-to-sue letter?  Are the state law claims revived based on this EEOC letter?

Employers would certainly ope the answers are “no” and “no” but we’ll just have to wait-and-see what the courts do on this. Something tells me that employers shouldn’t get their hopes up too much — at least on the first question.

Readers of a certain vintage, will remember Gilda Radner’s character Emily Litella who often said “Never Mind”.  (If you’ve never heard of Gilda Ratner or this, then I’ll pause while you watch this classic video.)  Readers of a later vintage will think of Nirvana’s “Nevermind”. If you just want the dictionary definition, here it is.

My work colleague, Jarad Lucan (vintage: timeless), has an informative post today updating us the status of a certain notice being advanced by the National Labor Relations Board and why “Never Mind” comes to mind.

Despite twice requesting extensions of time within which to file petitions for a writ of certiorari with the United States Supreme Court, the NLRB officially announced this week that it will not seek review of two U.S. Court of Appeals decisions invalidating its Notice Posting Rule.

That rule would have required most private sector employers to post a notice of employee rights under the National Labor Relations Act.

As many of you may recall, back in May of 2013, the D.C. Court of Appeals, in National Association of Manufacturers v. NLRB (which Dan discussed here), struck down the notice posting rule on the grounds that it violated an employer’s right to speak (or more accurately, right to remain silent) as protected by Section 8(c) of the NLRA.

One month later, the Fourth Circuit Court of Appeals in Chamber of Commerce of the United States v. NLRB likewise struck down the notice posting rule on the grounds that the NLRB was not empowered to promulgate such a rule.

What does this all mean for private employers in CT?

Well, at the 30,000 foot level, both Court of Appeals decisions now set binding precedent that may prove (it is far too early to tell) to restrain what has been viewed as the NLRB’s attempts to expand its powers, particularly in the nonunion context.

At the ground level, employers can stop asking “when do we need to post this thing?” You don’t need to.  A big “Never Mind”. 

It should be noted, that while the NLRB has decided not to seek Supreme Court review, in a recent press release, the NLRB stated that it will “continue its national outreach program to educate the American public about the statute.”

As part of that program, the NLRB has decided to post the same message that was to be printed on the notice on its website here. Some of you may find it interesting that the NLRB has taken it upon itself to translate that message into 26 different languages and promises to provide additional translations as they become available.

Of course, nothing prevents an employer from putting up such a poster; as the NLRB suggests on its website now, “Important note: Appellate courts have enjoined the NLRB’s rule requiring the posting of employee rights under the National Labor Relations Act. However, employers are free to voluntarily post the notice, if they wish.”  But employers who thought they needed to add this one to their poster arsenal can put those worries aside for now.

 

As you’ve no doubt noticed, I’ve taken a few days off from the blog to attend to the logistics that a new job entails and also attend the ABA Annual Meeting earlier this week.  There have been some interesting developments in both the FLSA and FMLA the last few days so look for posts on those topics and the ABA meeting soon.

In the meantime, I’ve had several discussions with people lately about the implications that Connecticut’s revised Personnel Files Act will have on their companies on October 1st — the law’s effective date.

I’ve previously summarized the law in a prior post here so I won’t repeat all I said there.

The most frustrating provision is the new Sec. 31-128b(c) which states as follows:

Each employer shall provide an employee with a copy of any documentation of any disciplinary action imposed on that employee not more than one business day after the date of imposing such action. Each employer shall immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.

There are a few issues that come out of this:

  • First, the requirement to provide a copy of any documentation of any disciplinary action is a new one. More than that, it needs to be done “not more than one business day” after imposing the action.  Is that the date that the decision is made or told to employee? What about a suspension that takes place the following week; is it the date the suspension first occurs or some other date?
  • But then suppose the employee is out of the office on suspension, will mailing a copy of the notice suffice? If so, when is the notice effective? The date of mailing or date of receipt? What about e-mail? These questions are left unanswered though you have to think from an enforcement perspective that the CTDOL will adopt some type of reasonableness standard along with this.  (Remember too that any violations of the Act are to be handled by the department itself.)
  • But the issues go on: look at the phrase “any documentation of any disciplinary action imposed on that employee”.  What is exactly the scope of “any documentation”? Just the notice of the discipline itself? Or everything leading up to it too, including an investigation? The reasonable interpretation would seem to suggest just the actual discipline itself, but will the CTDOL take a similar position for enforcement purposes?
  • Next up, when an employee’s employment is terminated, the employer must “immediately” provide a copy of any documented notice.  What about a notification over the phone with a followup letter? Does that satisfy the purposes of the statute? After all, in some instances, it may be impractical to bring an employee who has been suspended back to the workplace just to fire him or her.  Again, the new law leaves this bit confusing too.

There are, of course, other issues to deal with on this new law.  Employers have about 6 weeks left to update their policies and figure out how to deal with requests for personnel files too.  Time is ticking so be sure to consult with your local employment counsel if you are unsure how to proceed.

Ever wonder what happened to the case of the “exotic dancers” who claimed that they were misclassified as independent contractors?

Well, the case continues and yesterday, the federal court denied a summary judgment filed the strip club on a technical issue that is probably overlooked by employers in many instances.  You can download the decision in D’Antuono v. C&G of Groton, Inc. here.   

Under a wage & hour (FLSA) collective action, a litigant may not be a party plaintiff unless he or she gives “consent in writing to become such a party and such consent is filed in the court which such action is brought.”  If it is not done in time, the statute of limitations (two or three years, depending on the facts of the case) may preclude the suit.

The filing of a complaint is not enough to satisfy this requirement.  There has to be some written consent. 

In this case, the court was confronted whether a plaintiff’s signed affidavit, attached an exhibit in opposition to a motion to dismiss, consistuted signed written consent.  In that affidavit, the plaintiff stated:

Given my current financial circumstances and my understanding of the costs associated with arbitration, I cannot afford to arbitrate my claims and I could not afford to undertake this litigation and pursue my rights if I had the risk of paying the Defendants’ costs if I lost at arbitration.

The federal court said that it could not find a case similar to this one.  Thus, the court was left to decide whether this statement manifests a “clear intent to be a party plaintiff.” 

The court concluded that it was a “close one” and it would not have arisen if the plaintiff’s attorney had “simply ensured that a written consent form was filed along with the complaint.” 

Despite this “lapse”, the court concluded that her affidavit was enough and denied the defendant’s motion for summary judgment. 

For employers, this case is a good reminder that wage & hour collective actions are complicated and contain several procedural hurdles for the employees.   Although the defendant here was not successful in its challenge, its still important for employers to seek out experienced counsel who can spot those issues.

Employers in Connecticut (and other states) have a whole host of notices that must go up in a common meeting area for employees to see.

But what happens when an employer forgets to do the postings, or, worse, purposely avoids putting those posters up? 

Federal Court "Linsanity"

A recent federal case in Connecticut addresses that question with important ramifications for the employer in a wage & hour case.

(Why, you may be asking, is there a “Lin” pun in an article about wage & hour law? Well, New York Knicks sensation Jeremy Lin isn’t the only one with the last name; the relevant case is Lin v. Brennan, which you can download here.)

In Lin, several restaurant workers sued the owners of the now-defunct Mianus River Tavern claiming back overtime wages. The defendants raised an affirmative defense that some of the wage claims older than three years were barred by the applicable statute of limitations.

The court rejected that argument saying that defense could be waived by a theory called “equitable tolling.”  In other words, Defendants don’t get to avail themselves of that defense because of something they did.

Here, that “something” was that they failed to comply with the posting requirements of the wage & hour laws.  Therefore, the court said defendants could not use that defense as a shield against the claims. 

[T]hat statute of limitations is subject to equitable tolling because Defendants never posted any notice explaining the FSLA to their employees. Asp v. Milardo Photography, Inc., 573 F. Supp. 2d 677, 695-96 (D. Conn. 2008). Such a failure is sufficient to warrant tolling, especially when the employees have difficulty speaking English. See Yu G. Ke v. Saigon Grill, 595 F. Supp. 2d 240, 259 (S.D.N.Y. 2008).

Why is this important to employers? Because complying with the posting requirements is cheap compared to a wage & hour claim.   State and federal agencies allow employers to download the notices for free (or order them from the agency.) A number of reputable companies also offer all-in-one compliance posters for less than $100.

As the case shows, it’s “Linsane” for employers to ignore these posting obligations, particularly when the consequences can be severe.  For more “Linformation”, check out the various government websites or consult with your attorney. 

And if these puns aren’t enough for you, check out David Letterman’s Top Ten List from last night.

The Hartford Office of the National Labor Relations Board has a message for employers: There are new posting requirements coming and nearly all employers — not just those who are unionized — need to be aware of them.

Why? Because they are effective in just six weeks: January 31, 2012.

Here are some highlights for employers in Connecticut.

Who’s Covered? If you’re subject to the jurisdiction of the NLRB in general, you’re covered.  The NLRB describes it as follows: “As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws.”  If you’re not sure, be sure to check out the specific rules.

What’s Required? Two things.

First, a notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.

Second, employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there.  You can download the notice directly from the NLRB website.  (As an added bonus, the NLRB has also published the poster in 27 other languages as well, which may be required if 20 percent of your workforce speaks a language other than English.)

What Happens If You Don’t Put Up the Notice? The NLRB tries to suggest that employers should post the notice but concedes that it probably won’t know about many of those instances.  Nevertheless, there may be real world consequences for failure to post the notice:

The NLRB does not audit workplaces or initiate enforcement actions on its own, nor does it have the ability to assess fines or penalties.

A failure to post the Notice would need to be brought to the Board’s attention in the form of an unfair labor practice charge by employees, unions, or other persons. In most cases, the Board expects that employers who fail to post the Notice were unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  If an employer knowingly and willfully fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

With all the other requirements for employers, it’s quite possible that this one is getting overlooked. Consider yourself warned.  And if you want answers to more frequently asked questions, you can access them here.

And for the latest newsletter from the Hartford Region, you can download the newsletter here.

 

One of the unique features of Connecticut’s Paid Sick Leave law is the requirement that employers post information about the law in both English and Spanish.

At the time the law was passed, I openly questioned how employers were to accomplish this and suggested that the Connecticut Department of Labor consider publishing such a notice in both languages.

This week, the CTDOL finally released its Spanish language version of the poster. It is available for download here.  (The English version is also available for download here.)

The poster should be printed by employers and posted by the January 1, 2012 deadline in the same area where you post other employment-related notices.