As Connecticut employers of a certain size know, Connecticut implemented Paid Sick Leave recently which affords employees up to five days off a year.   Now, federal contractors (including those in Connecticut) have another layer to deal with. As my colleague Ashley Marshall explains below, paid sick leave will now be a requirement later this year.  Thanks too to my partner Gary Starr who helped pull this together today on short notice.

marshall If we travel back in time to September 2015, President Obama signed Executive Order 13706 (EO) which established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.

Today, the Secretary of Labor has issued regulations to implement President Obama’s Executive Order that established a mandate on federal contractors to give their employees up to 56 hours (7 days) of paid sick leave each year.  The regulation goes into effect on November 29, 2016.

Here are some of the highlights:

  1. The Final Rule covers new contracts and replacements for expiring contracts with the fdoctorederal government that result from solicitations on or after January 1, 2017.
  2. Employees will accrue 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered federal contract.
  3. Paid sick leave is capped at 56 hours (7 days) in a year.
  4. Employees may use paid sick leave for their own illnesses or other health care needs, for the care of a loved one who is ill, for preventive health care for themselves or a loved one, for purposes resulting from being the victim of domestic violence, sexual assault, or stalking, or to assist a loved one who is such a victim.
  5. The Final Rule allows for coordination with existing paid time off policies and labor agreements
  6. Employers may require that employees using paid sick leave provide certification from a health care provider of the employee’s need for leave if they use 3 or more days of leave consecutively.

A few other tidbits:

  • Whether an employee has to work a certain number of hours  for coverage depends on whether they work “on” a covered contract or “in connection” with a covered contract.
  • Employees that work “on” a covered contract are those that are performing the specific services called for by the contract. They are covered, regardless of the number of hours worked in a year and regardless of whether they are full or part time.
  • Employees that work “in connection” with a covered contract are  those that perform work activities that are necessary to the performance of the contract, but are not directly engaged in the specific services called for in the contract.  An employee who spends less than 20% of his or her hours working “in connection” with a covered contract in a particular workweek is not covered.

As with many new benefits, employees may try to take advantage of the new regulation, particularly since no medical excuse needs to be provided until the employee is out of work 3 or more days.  Employers are going to need to be vigilant against abuse.

The Final Rule will be published in the Federal Register September 30, 2016, and will go into effect exactly 60 days after its publication. More information can be found on the U.S. Department of Labor’s website in its Fact Sheet and Overview.

trumpphotoEach election cycle, I hope that employment law issues will move front and center to the Presidential campaign.

And each cycle, I’m slightly disappointed that such issues only get short shrift.  Sigh.

But as I’ve done before, it would be nice to fantasize about employment law questions that could be posed to the candidates at the upcoming Presidential debates.

So, just in case Lester Holt or the other moderators are brainstorming ideas on the internet, here are three questions I’d like to see asked of Donald J. Trump.

(I’ll have a followup post for Hillary Clinton.)

  1. The U.S. Department of Labor has recent proposed raising the salary threshold requirements for employees to receive overtime. As a result, millions more workers may start to get overtime in December of this year.  But this week, various states and business groups have filed suit to block its implementation. You have previously said that you support a rollback of these new rules.  Why? What specific changes would you propose to the overtime rules if you were going to roll back the current proposal.  Be specific.
  2. You recently said you would advise your daughter Ivanka to “find another career or find another company” if she faced the same harassment as alleged in the sexual harassment lawsuit against former Fox chief Roger Ailes.  Can you explain why you think your daughter should leave a company if faced with harassment? Doesn’t the company bear some responsibility to its employees to stop the harassment and ensure a safe working environment for its employees?
    Followup question: Given the allegations against Roger Ailes and Fox’s payment of $20M to resolve allegations by one of its former employees of sexual harassment, how do you justify consulting with him and what message (if any) do you think it sends to your female workers on your staff?
  3. States like Connecticut have passed a version of Paid Sick Leave. Do you support such a law? As a followup, you recently said you would support a six-week paid maternity leave program.  Why are fathers excluded from your proposal? Do you think fathers should have any paid time off after the birth or adoption of a child?

 

 

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.

 

Somewhat quietly (at least to me), the Connecticut Department of Labor has issued updated guidance regarding compliance with the state’s Paid Sick Leave law.

But employers who have been following the developments in this area — namely the changes to the law by the legislature — won’t be surprised much by the minor changes that have been made.

The changes to the guidance are essentially in conformity with the revisions to the law.

For example, to determine if an employer is subject to the law, the number of employees that an employer has on the payroll as of October 1st will be used.  It also notes that “radiologic technicians” have been added to the coverage of the law, consistent with the changes.

Nevertheless, if any employers have been using the previous guidance, it’s time to use this useful new resource and discard the prior guidance.

Notably, the CTDOL has also updated their posters for Paid Sick Leave for employers to use.  These new posters should be displayed immediately by employers in place of the old ones.

 

I’ve previously touched on a number of bills that were passed in the short legislative session that ended earlier this month but I thought I would recap the session briefly in one post.

Of course, the CBIA already did most of the work so I won’t repeat the good work and recommend the post to you first.

The minimum wage hike in Senate Bill 32 is certainly the most significant piece of legislation to come down.  It will increase as follows:

  • $9.15 per hour on January 1, 2015
  • $9.60 per hour on January 1, 2016
  • $10.10 per hour on January 1, 2017

This will also affect the minimum wage for hotel and restaurant employees with the corresponding tip credit.

  • $5.78 per hour on January 1, 2015
  • $6.07 per hour on January 1, 2016
  • $6.38 per hour on January 1, 2017.

For bartenders, the minimum wage will change to the following:

  • $7.46 per hour on January 1, 2015
  • $7.82 per hour on January 1, 2016
  • $8.23 per hour on January 1, 2017

As I noted in a prior post as well, the legislative approved fixes to the Paid Sick Leave law in House Bill 5269. You can find my recap of those changes here.

And that’s pretty much it.  There were many proposals on the table — including changes to the CHRO or banning discrimination against the unemployed — but none made it to a vote.  Given all the mandates of the prior years, employers should be enjoying this short reprieve.

With the governor’s race this fall, it’ll be very interesting to see the results of that.  If Governor Malloy is elected for a second term, employers should continue to expect a good number of bills to continue. If Tom Foley is elected, expect to see more compromise legislation.  But that’s six months away.

For now, employers can breathe a little easier knowing that they don’t have to make too many changes this year.

In the hours before the General Assembly’s 2014 session closed, there were a number of bills being watched by employers.  I’ll have an additional recap of the session in the days ahead, but one bill that passed on Wednesday night made a number of small, but important, changes to the state’s Paid Sick Leave law that employers should take note of.

For background on Paid Sick Leave, you can check out some of my prior posts here and here.

House Bill 5269 — which still requires the Governor’s signature — makes several changes that have long been sought.  (For a full recap, see the OLR Bill Analysis here.)  The changes become effective January 1, 2015, when the bill is signed.

First, the bill changes the method for figuring out if a non-manufacturing business employs 50 or more employees.   Under the bill, the company will determine if it satisfies the annual 50-employee threshold based on the number of employees on its payroll for the week containing October 1, rather than the quarterly formula presently used.

Next, the bill prohibits employers from firing, dismissing, or transferring an employee from one job site to another to come under the 50-employee threshold.   Any affected worker can file a complaint with the Labor Commissioner.

The bill also changes the timeframe for accruing paid sick leave and makes it more in line (though not exactly parallel) with the state FMLA law.  As noted by the OLR: “Under current law, employees accrue one hour of sick leave for every 40 hours worked per calendar year. Under the bill, they accrue one hour of paid sick leave for every 40 hours worked during whatever 365-day year the business uses to calculate employee benefits. This allows the employer to start the benefit year on any date, rather than only on January 1.”

And lastly the bill adds radiologic technologists to the list of job categories eligible to accrue and take paid sick leave.

Employers who have been close the 50 employee cut-off should review these rules in particular but all employers should take note of the changes to the accural methods. That should make it easier, in the long run, for employers to track such time.

 

The dust is still settling from the mad dash that is the end of the Connecticut General Assembly session. 

I’ll have more in the upcoming days as events warrant, but here’s a quick look at a few items that I’ve been tracking in recent weeks. 

  • A bill (HB 6658) restricting the use of non-compete agreements passed last night. But it is a watered-down version of the previous bill.    As summarized by the OLR: “This bill voids certain noncompete agreements between an employer and an employee made, renewed, or extended on or after October 1, 2013, unless before entering into the agreement, the employer provides the employee with (1) a written copy of the agreement and (2) at least seven days, and more if reasonable, to consider the merits of entering into the agreement.” 

    The important caveat is that this applies only when “(1) an employer is acquired by or merges with another employer and (2) as a result of the acquisition or merger, an employee’s continued employment is conditioned on the employee entering into a noncompete agreement.”  

    The bill allows an employee to waive his or her right to have a noncompete agreement rendered void pursuant to the bill by signing a separate document that describes the right he or she is waiving before entering into the agreement.If signed by the governor, it would become effective October 1, 2013.  For employers with mergers or acquisitions, this should be added to any due diligence checklist and any list of closing documents to be considered. 

  •  Two bills — to amend the state’s CHRO-related statutes, and to amend the paid sick leave bill to “fix” certain items did not receive a final vote (here and here) before the session ended. Passage had been expected in recent days, but I’ve heard unconfirmed reports of illnesses and last-minute opposition that did in the bills. Regardless of the reasons, those bills did not pass in their native form. 
  • A bill that would restrict employers from asking for the social media passwords of their employees also did not receive a final vote
  • A bill (HB 6553) to study  the “feasibility of establishing an insurance program to provide short-term benefits to workers who are unable to work due to (1) pregnancy or the birth of a child, (2) a non-work-related illness or injury, or (3) the need to care for a seriously ill child, spouse or parent” did pass the General Assembly. I’ve recapped the bill previously
  • A bill that would have significantly expanded the free speech rights of private-sector employees failed to receive final passage before the session ended

Note: This is by no means a complete list of bills under consideration or that have passed; it’s just a preliminary run through of some of the bills I had been following.   Be sure to check with your local counsel or the CBIA if there is a particular bill that you have been following or concerned about.

Shortly after passage of the Paid Sick Leave law a few years ago, it became apparent that there were several quirks in the law that would make enforcement and compliance challenging in some places. I highlighted a few issues in a post back then.

Well, the General Assembly has been working on a bill to “fix” these issues.  Senate Bill 1007 passed the chamber last week and focuses on several issues that needed clarification or revision.

Both the CBIA and the Office of Legislative Research have neatly summarized the bill here and here, but there are a few points worth highlighting because passage is expected before the end of the session.

  • The biggest change is that employers would be allowed the administer PSL using the same calendar method as they use for other benefits (like FMLA) instead of a using a January-December model.
  • The current PSL law uses a quarterly model to determine if an employer has reached the 50 or more employee threshold.  The bill would change that.   Under the bill, employers would annually determine if they meet the threshold based on their payroll for the week of October 1, which is consistent with other existing laws.
  • The bill also modifies the law to make it clear that, as the CBIA says, “employees cannot use ‘intermittent’ periods of paid sick leave that would result in disrupting work shifts. (For example, preventing an ambulance driver from taking paid sick leave midway through a shift when her or she may be needed at an emergency.)”  Again, this change isn’t controversial and gives employers a bit of flexibility in dealing with PSL issues.

If you’ve been having trouble with PSL or even if you haven’t, these are notable changes to the law that will impact all eligible employers. Take a look at the complete list of revisions and contact your local counsel with any questions you have about the bill.

If passed, the changes would become effective January 1, 2014.

There’s been little press over what is going on at the Connecticut General Assembly this spring. 

With no big employment law issue (other than minimum wage) dominating the headlines like Paid Sick Leave in the past, you might think that there isn’t much happening.

But as the Connecticut Business and Industry Association highlighted in a post late last week, there are a number of, what it termed, “anti-employer” bills that have already passed committee which, if approved, will make it “much harder and more costly for Connecticut employers to operate successfully in the state.”

Here are three things still to keep an eye on:

  • A parental leave bill that mandates employers provide up to eight hours of leave to attend a child’s qualified school activities is still being considered.   
  • Senate Bill 159 states that employers can’t ask or require employees or job candidates to disclose to the company their social media passwords. As I’ve noted before, however, the bill leaves employers vulnerable in the event the employee uses his or her own personal social media account to violate policy or share inappropriate information. 
  • A minimum wage increase is still up for debate too. 

On a positive note, some needed changes to the existing Paid Sick Leave law have also passed committee. These changes would clean up some of the issues that have been plaguing employers.   One of the changes would make calculating the number of employees an employer has more consistent with how CTFMLA is determined too. 

There’s still a little more than two months left to the session so there’s plenty of time to see how things all plays out.

The title of the post is a bit misleading because the answer to the question is, at this point, unanswerable. 

In what ways do we measure success under Connecticut’s Paid Sick Leave law? The number of employees who have used it? The people who didn’t get sick as a result? The overall flu rate?

Of course, that hasn’t stopped some from trying. Last week, a survey released from the Employment Policies Institute claimed that businesses have taken “labor-saving steps to adapt to the law’s costs — with consequences for employers and employees both.”

Specifically, the survey claimed that some employers “scaled back employee hours, cut wages and canceled plans to expand as a result of the law.”

But even that survey should be taken with a grain of salt since, by its own terms, it may not be “representative” of all employers. 

Unfortunately, it may be some time before we understand the full impact of Paid Sick Leave.  Even now, 20 years after the passage of the FMLA, its benefits are still being debated by employers and the government

What’s an employer to do? In some ways, stop worrying about whether the law works and instead consider lobbying the legislature to tweak the law to make it easier to comply and reduce the administrative burdens associated with the law.

One such change that has been proposed is to allow employers to calculate paid sick leave on something other than a calendar year, much like the FMLA. 

That’s a good start, but there are other solutions as well. Groups like the Connecticut Restaurant Association are focused on this too.

In the meantime, if you need a refresher on Paid Sick Leave, you can check out some prior posts here and here.