Over the weekend, the General Assembly approved a bill prohibiting employers, including the state and its political subdivisions, from asking, or directing a third-party to ask, about a prospective employee’s wage and salary history.

I have previously discussed the measure here.  There were a few versions floating around and it was House Bill 5386 that carried the day (as amended).

The prohibition does not apply in two situations:

  • if the prospective employee voluntarily discloses his or her wage and salary history, or;
  • to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

While salary may not be inquired, the bill DOES allow an employer to ask about the other elements of a prospective employee’s compensation structure (e.g., stock options), but the employer may not ask about their value.

The bill has a two year statute of limitations. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.  This bill amends Conn. Gen. Stat. Sec. 31-40z

As amended, the effective date of the bill is now January 1, 2019.

The final bill is different from a prior bill because it eliminates provisions that generally would have (1) allowed employers to ask about the value of a prospective employee’s stocks or equity, (2) allowed employers to seek a court order to disallow compensatory or punitive damages, and (3) required certain employers to count an employee’s time spent on protected family and medical leave towards the employee’s seniority.

For employers, upon signature from the governor, this bill will become law.  As such, employers should notify all of their hiring personnel of the new restrictions that are likely to go in place effective January 1, 2019. I’ll have more updates after the legislative session winds down this week.

Over the years, I’ve had the opportunity to conduct "voir dire" — an outdated Latin phrase meaning "to speak the truth" — which is the process in which we select jurors for a possible trial.  

(Why we are all still forced to use the phrase "voir dire" instead of "juror questioning" is perhaps a topic for another day.)

But on Friday, for the first time in my professional career, the tables were turned: The interrogator becomes the potential subject.

I was called for jury duty in state court.

Before I relay some observations, I’ll answer two obvious questions.  First, I wasn’t selected for a jury.  On the one case that I was called for, I knew attorneys at both firms and had a major scheduling conflict.  

And second, I did not get any special favors as an attorney. Indeed, i was in the last batch of individuals sent home for the day — long after I had any hope of getting out early.

Lawyers in Connecticut have to serve our day just like everyone else.  Attorneys are not likely to be picked to serve on a jury, but nevertheless, we have a same public service obligations as the rest of the public. 

So, what did I observe during my day?

  • The potential jurors were a varied group. One was reading Sarah Palin’s "Going Rogue" while another was busy studying for some classes she was taking. It was a mix of ages, genders and races.  A quiet group to begin, but by mid-morning, many of us were chatting with these new strangers, all commiserating with our lot for the day.  
  • On a Friday, moods start to shift from a grudging willingness to take part in the morning, to near hostility to the process by mid-afternoon.  As an attorney, it’s a good reminder that you can’t beat the clock or the calendar. Keeping potential jurors late in the day is a sure way to make enemies.
  • The holding room in Hartford Superior Court could use some free wifi like Starbucks, or at least some magazines more current than an Reader’s Digest from July 2005. (Was that a good issue?)  If you are called, bring plenty of reading material; don’t expect to be entertained at the court.  And don’t expect to watch the news there; it’s frowned upon, lest there be a discussion on a case.
  • The orientation process was pretty good  — though a bit too long. (Is it really necessary to advise people where the recycling bins are?)  As a lawyer, it’s best to remember that when prospective jurors are being examined, they have just gotten information about things like the burden of proof and to build off that information when conducting voir dire.  
  • First impressions still matter.  When prospective jurors walk into a courtroom for the first time, they’re a bit disoriented and taking in the surroundings. How attorneys and parties act in front of them will make an impact one way or the other. 

Overall, while I can’t say that I’m looking forward to being called again, I can say that the experience in Hartford is a decent one and that there’s valuable lessons for employers and their attorneys to learn from experiencing it for yourself.  

It only reinforces something I’ve long preached to clients: A trial in front of a jury of your peers will mean your fate is being decided truly by a varied group of strangers.  If a settlement is within range, is a jury trial a risk worth taking?

Here are a few other tidbits if you’re called to jury duty in Hartford.  

  • You can get called for a civil case OR a criminal case, even though the holding room is in the criminal building.
  • Lunch offerings are limited; the food truck outside is a decent option, but you can walk down to Broad Street for the Cafe at Billings Forge or even Firebox.  You can always pack a lunch and store it in the refrigerator.
  • You are given a prospective juror sticker when you arrive. Oddly, they also collect them at the end of the day; there must be some logic to this but the extent of effort to recover these small circles seems a bit out of proportion.  
  • You can and should check whether your attendance is required the night before. On the sheet, it just provides a telephone option BUT you can also check it online here.  Do the online option — it’s much quicker than listening to dozens of names being read over the phone.  

Lastly, no matter how bad you think jury duty can be, remember that your day could get worse.

You could wind up like me and have a flat tire when you come out.  True story.

(Pictures courtesy of State of CT and Morguefile.)

The Connecticut Supreme Court today ruled (in a decision that will be "officially released" on June 24, 2008) that an agreement between an employer and his employees to defer an employee’s past wages until the employer receives revenue sufficient to pay those wages, is contrary to public policy , therefore, an invalid defense in a criminal prosecution for failure to pay wages.

The case, State of Connecticut v. Lynch (available here) is somewhat unusual because there are not very many criminal prosecutions of a failure to pay wages. Most cases arise in the civil context. But not here.  Here, the employer failed to pay wages for several pay periods and then tried to get employees to agree that their back wages and future wages would be contingent on future revenue of the company.

You may recall a case a few months ago  Ravetto v. Triton Thalassic Technologies (discussed in this earlier post)  which held than an agreement to defer accural of wages in the future does not violate public policy.  Indeed, back then, the court noted:

We cannot conclude as a matter of law, however, that an employer experiencing financial hardship that honestly informs employees that it cannot meet payroll and that does not promise them that future payment will be made is acting unreasonably when it allows employees to continue to work with the hope of future payment. This is particularly true where the employees are experienced business people and members of management who choose to continue working in the hope that their services to the employer will improve the financial status of the company. We can imagine circumstances in which such a choice by employees may inure to their benefits particularly when the financial hardship is short-lived and the financial status of the company ultimately improves. In the present case, we recognize that Triton ultimately did pay the plaintiffs the wages that were due them.

So, what’s the difference here? Here, the Court says that the Agreement at issue applied by prospectively but also retroactively and as such, violated public policy. In fact, at the time that the employer proposed this "agreement", the employer had already missed several payroll periods.  Thus, the Court said that an agreement to postpone accural of wages violates public policy when applied retroactively.  In the absence of an agreement on when wages accrue, it’s safe to assume that they accrue when the employee performs work.

What’s the takeaway for employers from this case? First and foremost, keep up with obligations of payroll.  In the extreme case, the Connecticut Department of Labor can and will file criminal charges against employers that fail to keep up. Failure to pay wages is not one of those "grey" areas. Set up a payroll system and stick to it.

But if the company begins getting cash flow problems, it may consider setting up agreements with employees that may make payment future wage payments contingent on revenue.  This often happens in small, start-up ventures where the work is being done ahead of revenue coming in the door. 

These agreements will be heavily scrutinized so getting sound legal advice on this issue (as many others) should help ensure that the agreement will hold up later on.  The Court took great pains to note that agreements on when the employee accrues wages may be okay, but employers should still tread carefully because of the important public policy of paying employees wages "on time".

The U.S. Supreme Court this morning asked the government for its views on whether workers may settle Family and Medical Leave Act (FMLA) claims with their employers.  The SCOTUS Blog has the details:

The Supreme Court on Monday asked the U.S. Solicitor General for the government’s view on whether workers may settle with their employers their claims under the Family and Medical Leave Act. The issue arises in Progress Energy v. Taylor (07-539). The Fourth Circuit Court (download decision here), ruling in conflict with the Fifth Circuit Court, decided that a Labor Department regulation barred both past and future waiver of all FMLA rights. The Labor Department has taken the position that its regulation permits backward-looking release of claims under that law.

The Fourth Circuit’s decision arises mainly from a regulation promulgated by the Department of Labor.  Specifically, 29 C.F.R. § 825.220(d) states that "[e]mployees cannot waive, nor may employers induce employees to waive, their rights under [the] FMLA."  That decision created a split in the circuits that have decided the issue. 

Lots of outside parties have already submitted papers at the U.S. Supreme Court asking for consideration of this issue including the Association of Corporate Counsel, Society for Human Resource Management, and the U.S. Chamber of Commerce. 

For those in Connecticut, remember that the state regulations mirror the federal regulations on this particular subject. So it is likely that a U.S. Supreme Court decision may also have an impact on how this issue is ultimately decided in Connecticut.  Conn. Regs. 31-51qq-25(d) states:

Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees (or their collective bargaining representatives) cannot “trade off” the right to take FMLA leave against some other  benefit offered by the employer.

 It remains to be seen if the U.S. Supreme Court will take up this issue or wait for the split in circuits to become clearer. But given that the Roberts court has taken up several employment law claims for consideration, don’t be surprised if this issue gets put on the docket later this winter.