Update August 16th: Late yesterday, I received further confirmation that the provisions regarding FMLA were withdrawn entirely from the proposed Democrat-led budget bill. Moreover, the General Assembly early this morning voted on a Republican version of the budget implementer, which now goes on to Governor Malloy (who has indicated he will veto the bill). That version did not contain language on the FMLA changes either. So for now, employers can stand down. However, employers should continue to track the changes both this year and next. FMLA changes may make a return at some point.   

Update at 2:06 p.m.: Since publishing this article, I’ve now heard from three people who work at or with the legislature that while they can’t find fault with my analysis of the proposed legislation as described below, the section on FMLA was intended to address a separate issue.   As a result, it appears that the section on CTFMLA changes discussed below may be withdrawn this afternoon.

What the motives were for this language are far beyond the scope of this blog; this blog has always tried to provide an apolitical analysis of the law and legislation.  For employers, just take note that the budget implementer bill language on FMLA is now likely to be withdrawn when the final bill is considered. 

Late this morning, the proposed bill implementing the state’s budget (a so-called “budget implementer”) was finally released. And like years past, the bill contains some nuggets that are seemingly unrelated to a budget.

As the proposal is a monstrous 925 pages (download here), I’m still reviewing it but employers in Connecticut need to be aware immediately about some proposed changes to the state’s FMLA provisions.  First, a caveat: This is still very much a work in progress so employers should keep a close eye and contact their legislators if interested.

  • First, the bill would expand the scope of relationships covered to include siblings and grandparents/grandkids.  Thus, if you needed to take time off to care for a grandparent, that would now be a covered leave.
  • Second, the bill would revise the definition of employer to now include the state, municipalities, public schools and private schools which means the CTFMLA would now apply to all of them.
  • But then things get even a bit more confusing. The bill changes the definition of “eligible employee” presumably to exclude state workers who are subject to collective bargaining. BUT the bill’s language is far more imprecise and would seemingly exclude ALL workers who are subject to collective bargaining (whether private or public).  Specifically, the definition of “eligible employee” would now mean an employee “who is exempt from collective bargaining…” It does not have the qualifier that perhaps the drafters intended, though, given the speed in which this has been prepared, readers take caution.
  • Next. and quite significantly, the bill would seemingly extend the leave parents get upon the birth of a child or for placement of a child for adoption of foster care.  Specifically, it indicates (line 8472!) that:

Leave under subparagraph (A) or (B) of subdivision (2) of subsection (a) of this section may be extended up to sixteen workweeks beyond the expiration of such leave due under subdivision (1) of subsection (a) of this section.

  • Thus, Connecticut employers would seemingly need to provide up to 32 weeks (16 + 16 more) of unpaid leave for new parents.
  • But the bill goes beyond that too — for leaves for birth, adoption placement, care of a family member or self or to serve as a organ or bone marrow donor, the bill expands the leave too.  Specifically, in line 8529:

An eligible employee may extend his or her personal leave provided under subparagraph (A), (B), (C), (D) or (E) of subdivision (2) of subsection (a) for up to twenty-four workweeks after the expiration of any accrued paid vacation leave, personal leave, or medical or sick leave with proper medical certification.

  • In addition, the bill goes on to add in line 8534, that for leaves for serious health conditions of self or family member, or for donor leaves:

The use of sick leave by an eligible employee for leave provided under subparagraph (C), (D) or (E) of subdivision (2) of subsection (a) of this section shall not be deemed an incident or occurrence under an absence control policy.

The changes are coming fast and furious and it is possible that this proposed bill won’t get passed in its current form.  It’s certainly far beyond the paid FMLA program that was originally under discussion by the legislature.  These changes would be effective in two weeks — October 1, 2017 — which doesn’t given employers almost any time to revise their policies or train their employees.

And I must confess that I’m still a bit surprised by the breadth of this and scratch my head as to whether this language was intended to mean what it appears to say.  I’d like to see a the office of legislative research recap this bill too.

In the meantime, I’m still reviewing the remainder of the bill for other changes relevant to private employers.  (It’s 925 pages and 26452 lines long so bear with me.)  Have you spotted anything else? Add it in the comments below.

GA2Today is the last day of the Connecticut General Assembly regular session.  So it’s a good time to take a look at some of the bills pending or passed.  Strangely, things seem pretty quiet on the employment law front.  But after the dust settles, I’ll have another update. Here is where we stand as of early this morning (Wednesday).

  • Last night, the Senate approved of the measure (House Bill 6668) expanding protections in the workplace for workers who are pregnant.  It was previously passed by the House.   I’ve covered the bill in depth before but it now goes on to the Governor for his signature.  The bill, if signed, would become effective October 1, 2017.
  • The House also passed a measure last night (H.B. 6907) that exempts certain professional drivers from coverage under the state’s unemployment law.. The exemption applies to drivers under a contract with another party if the driver meets certain conditions. The measure moves to the Senate but given the backlog of bills today, final passage is definitely unclear.
  • The Senate last night passed a measure (H.B. 7132) that streamlines procedures for filing workers compensation claims.  Currently, the law generally requires private-sector employees seeking workers’ compensation benefits to submit a written notice of claim for compensation to either a workers’ compensation commissioner or their employer’s last known residence or place of business. This bill requires private-sector employees who mail the notice to their employer to do so by certified mail. It also allows employers, except the state and municipalities, to post a copy of where employees must send the notice (presumably a specific address). The posting must be in a workplace location where other labor law posters required by the labor department are prominently displayed.  Under the bill, employers who opt to post such an address must also forward it to the Workers’ Compensation Commission, which must post the address on its website. Employers are responsible for verifying that the information posted at the workplace location is consistent with the information posted on the commission’s website.By law, within 28 days after receiving an employee’s written notice of claim, an employer must either (1) file a notice contesting liability with the compensation commissioner or (2) begin paying workers’ compensation benefits to the injured employee (and retain the ability to contest the claim for up to a year). Employers who do neither of these within 28 days of receiving the notice are conclusively presumed to have accepted the claim’s compensability. Under the bill, if an employer posts an address where employees must send a notice of claim, the countdown to the 28-day deadline begins on the date that the employer receives the notice at the posted address.The bill now moves to the Governor for his review and approval.
  • The General Assembly is also continuing to review a possible Paid Family and Medical Leave insurance scheme.  This bill (S.B. 1) is definitely one to watch over the next day and over any special session as well.
  • Senate Bill 929 would expand whistleblower protections under 31-51m. It has passed the Senate and is awaiting a vote in the House.  Existing law prohibits employers from discharging, disciplining, or otherwise penalizing an employee for certain whistleblowing activities, including reporting suspected illegal conduct to a public body.  This bill additionally prohibits employers from taking such actions against an employee for objecting or refusing to participate in an activity that the employee reasonably believes is illegal. Specifically, it applies to such beliefs about violations or suspected violations of state or federal laws or regulations, municipal ordinances or regulations, or court orders. The bill also (1) extends the time an employee has to file such a lawsuit and (2) adds to the possible remedies available to employees, including punitive damages in certain circumstances.

That seems to be it so far. A lot can change though today and employers should continue to be mindful of the shifting landscape. Even bills that appear “mostly dead” sometimes come back to life at the end — and particularly in special session as well. So stay tuned.

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.

GA2The Connecticut General Assembly is finalizing its budget implementation bill today and suffice to say that there are more than a few surprises in there. (CT News Junkie first highlighted it in a tweet, it should be noted.)

For employers, buried deep in the bill is Section 422 entitled: “PAID FAMILY AND MEDICAL LEAVE IMPLEMENTATION”.  This seems to revive a paid family and medical leave program that was thought to be shot down earlier this session.

What does it do? It starts a framework for paid leave to be implemented similar to other payroll deduction services.

According to the summary of the legislation:

The bill requires the labor commissioner, in consultation with the state treasurer, state comptroller, and commissioner of administrative services, to establish the procedures needed to implement a paid family and medical leave (FML) program.

The labor commissioner must contract with a consultant to create an implementation plan for the program by October 1, 2015. At minimum, the plan must:

1. include a process to evaluate and establish mechanisms, through consultation with the above officials and the Department of Revenue Services, by which employees must contribute a portion of their salary or wages to a paid FML program by possibly using existing technology and payroll deduction systems;

2. identify mechanisms for timely claim acceptance; claims processing; fraud prevention; and any staffing, infrastructure and capital needs associated with administering the program;

3. identify mechanisms for timely distributing employee compensation and any associated staffing, infrastructure, and capital needs; and

4. identify funding opportunities to assist with start-up costs and program administration, including federal funds.
The bill also requires the labor commissioner, by October 1, 2015 and in consultation with the treasurer, to contract with a consultant to perform an actuarial analysis and report on the employee contribution level needed to ensure sustainable funding and administration for a paid FML compensation program.

The labor commissioner must submit a report on the implementation plan and actuarial analysis to the Labor and Appropriations committees by February 1, 2016.

But wait! There’s more. There’s a whole series of changes to the CHRO that are added in as well in Sections 71-87.

As for those changes, indeed, several are technical, but some are not. For example, under this legislation, a commission legal counsel could intervene in a public hearing or appeal without consent of the parties.   It would also limit the avenues for Complainants to reopen complaints that have been pending over two years.

The bill also creates a “Low Wage Employer Advisory Board” in Section 497 which would review the impact on employees of paying “low wages”.

My cursory review of the bills shows other provisions relating to “labor peace agerements” for certain state projects, and a minimum $15/hour wage on certain contracts.  For employers, this is definitely a bill to review today.

Given that this bill was released at the last minute and contains all sorts of compromises, I think its unlikely that it will be amended at this late stage, but stay tuned over the next 36 hours to see what’s next!

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.

 

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.

 

Back in 2010, at the same time the U.S. Department of Labor was making a big publicity push on its interpretation of rules regarding unpaid interns, the New York Times ran piece noting how employers were skirting the law when it came to internships:

The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships.

“If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law,” said Nancy J. Leppink, the acting director of the department’s wage and hour division.

The biggest problem, according to the article is that the employer should derive “no immediate advantage” from the intern’s activities — “in other words, it’s largely a benevolent contribution to the intern.”  The takeaway from this article, as I said back in 2010 is that employers should not use interns to do real work. 

Flash-forward to 2012. The New York Times over the weekend ran another piece on internships. This time, however, it was critical of employers who only assigned the interns menial tasks.

Although many internships provide valuable experience, some unpaid interns complain that they do menial work and learn little, raising questions about whether these positions violate federal rules governing such programs.

So, within the span of two years, you have two articles on internships: One critical of employers that assign unpaid interns real work and one critical of employers that assign unpaid interns menial work.

What’s an employer to do?  

Well, I talked quite a bit about this on Thursday on The Proactive Employer radio show and there were really two solutions (you can listen to the entire broadcast below).

First, if you’re going to have interns do real work, you can do so — you just need to pay them minimum wage.  Second, if keeping interns unpaid is important, it’s critical that employers follow six criteria outlined by the U.S. Department of Labor. 

The articles in The New York Times are well-timed to make sure that employers are aware of their obligations.  What I said back in 2010 holds true today: “As the summer season approaches, employers are now on notice that their use of interns is going to be under closer scrutiny than ever before. ”

 

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.

Yesterday, I discussed the carryover rule that requires employers to allow service workers to carry over up to five days of paid sick leave each year.

Not All Issues in Paid Sick Leave Law are Clear

But a loyal blog reader posed the following question to me: Suppose you are an employer that voluntarily offers 12 paid time off (PTO) days at the start of every calendar year to your employees.  In that case, are you still required to offer 5 carryover days (in addition to the 12 that you offer) to your employees even though you are otherwise compliant with the act?

Rather than opine on the subject in a vacuum, I forwarded the question onto Heidi Lane, who has been among the Connecticut Department of Labor staff members who have been drafting the guidance and overseeing the Department’s response.  She was very kind to respond and my sincere thanks to her and the DOL staff for being so open to discussions on this law.

We had quite a back and forth discussion of the answer and she authorized her response to be used here.  In slightly condensed form, here were some of her responses.  You won’t find this in the guidance (and, to be sure, its merely advisory), but for employers dealing with the issues, this is important to understand the CTDOL’s position:

The law never requires an employer who provides 5 or more paid days (or 40 hours) off that can be used for paid sick leave to ever provide more than that. So, taking your example, if an employer provides 12 PTO days and the service worker uses them all, then there is nothing left to carry over. Using another example, if the service worker uses 5 days for vacation and has 7 of the 12 days remaining at the end of the year, then the service worker has 5 days of paid sick leave that s/he never used and can carry over. However, if the service worker used the 5 days for paid sick, then the law would not require the employer to allow the service worker to carry over the remaining 7 PTO days (that would be the employer’s option).

Her answer prompted a followup question from me: Is it your contention that the employer needs to find out if the employee is using his/her paid time off because of illness? And if the employer doesn’t ask, then service worker gets to carryover 5 days?  She responded as follows:

Yes, we believe that an employer would need to find out whether they are using the time for paid sick leave, vacation…. I know that this will be problematic but we have had many discussions on this. If the employer gives the service worker 12 days of PTO and s/he uses 10 days for vacation, s/he still has 2 days available for paid sick leave.

If an employer gives a bucket of 12 days of PTO on January 1 and replenishes it every January first, then the above situation would not apply.

In my response back to her, I noted that such an interpretation could be at odds with the law itself. In the relevant section,  an employer is “deemed to be in compliance” merely if it “offers any other paid leave…that (1) may be used for the purposes of section 3 of this act, and (2) is accrued in total at a rate equal to or greater than the rate described in subsections (a) and (b) of this section.”  In my mind, the “may be used” language is different from “is used” and onlyly requires an employer who has a PTO policy to allow service workers to use PTO for a reason authorized by the Act.

She replied by stating that my interpretation was adopted by some others, but the Department has taken a different position:

We think the problem with your interpretation is that you are not permitting someone to use the PTO leave for a paid sick leave. The law provides that an employer is “deemed to be in compliance” if it gives service workers the opportunity to use PTO for paid sick leave. So it seems to us that if a service worker uses 5 days in January for a vacation, and then is penalized for using additional days for paid sick leave (i.e., days 6, 7 and 8), the employer has not met the requirements of the law. The law dictates that service workers should be allowed to use paid sick leave without fear of retribution, whether it be a point in an attendance policy or more serious discipline. If the service worker is penalized for using the time for paid sick leave (i.e., days 6, 7 and 8), then he really isn’t being given the opportunity to use the other PTO time for paid sick leave.

We both agreed that this is perhaps one of the issues that may — sometime down the road — end up in court.  But that, of course, isn’t helpful for employers now.

For employers who use PTO policies, you may have to consider asking “service workers” to designate whether their PTO is due to a “sickness” or another qualifying reason for the absence under the act.  Failure to do so and failure to offer a carryover policy may turn an otherwise compliant employer into one that is out of compliance, at least according to the CTDOL.   If the employer allows the employee to carryover 5 unused PTO days a year — or offers the worker generous PTO at the start of each calendar year — then these tweaks may alleviate the risk.

As always, employers should seek their preferred legal counsel to make sure that your particular policy and practice is compliant with this new law.

We continue with our series of posts (see prior posts here, here, here, and here) on the new Paid Sick Leave Guidance issued by the Connecticut Department of Labor earlier this month. Today’s post focuses on the “carryover” rules.

Another issue that the Paid Sick Leave addresses is the “carryover” rules — or how much accrued paid sick days an employee can carryover each year.

In the past, some businesses that have offered paid sick days have allowed employees to carryover those paid sick days from year to year — sometimes in an unlimited fashion.  In time, this became an employer’s de-facto short-term disability plan.  But as insurance offerings have become more sophisticated, employers also began to realize that this could also lead to potential abuse (and a big payout at the end.).  Thus, employers began to limit the amount of time that may be carried over.

The new paid sick leave law recognized the potential for abuse too by only allowing service workers to carryover up to 40 hours (5 days) worth of time each year.  The CTDOL guidance explains this rule a little further and whether employers can pay employees for their unused paid leave.

Service workers shall be entitled to carryover up to 40 hours of any unused accrued paid sick leave at the end of each calendar year. Service workers are limited to carry over 40 hours each year, regardless of how many hours they have accumulated. Some employers either require or provide their employees with the option of being paid out at the end of the year for any unused paid leave. Because the law provides that service workers “shall be entitled” to carry over any unused paid sick leave, employers cannot require service workers to take the pay out. However, employers may offer the option of pay out in lieu of carry over to service workers as long it is voluntary.

Because the act doesn’t go into effect until January 1, 2012, these carryover provisions won’t apply until the calendar year 2013 starts.

For employers who provide paid time off in lieu of paid sick leave, the guidance still does not specify that the carryover provisions that the employer uses must be the same as the law, but a reading of the law suggests that is the case.  Thus, employers should review their PTO policies to determine if they are compliance with these carryover sections.