Today marks Rosh Hashanah, the Jewish New Year and one of the holiest days of the Jewish year.

But it’s a day of business to many.

What should employers be doing for employees, though, that are celebrating the day?

There are actually a few different ways to answer the question.

The first answer, looking just at the legal obligations, is that the employer must provide an accommodation under Title VII.

But that standard is different than an ADA analysis.

Instead, the law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

Thus, giving an employee a day off to observe the holiday will, in many instances, be deemed to be a reasonable accommodation to the employee.

So that answers the legal obligation, but what else should an employer be doing?

Well, are you e-mailing that employee on their “day off”? Are you scheduling important meetings, even though you know that employee can’t attend?

Those things aren’t necessarily illegal.

And they aren’t always a bad idea either. Life moves on and conflicts are inevitable.

But a bit of sensitivity can help minimize those issues and some foresight can avoid the issue altogether.

I know that when a meeting gets scheduled, my own practice is just remind people of the holiday and leave it at that.

It happens. I just don’t get riled up about it

But I know others who when asked to attend something on holidays respond by saying: “How would you feel if I called you on Christmas?”

That only gets to part of the issue. Rather, pestering the employee out on a holiday, sends the wrong message to employees that their religious observances are something to be ignored. Meetings can go on but what can be put off for the day the employee is absent?

So before you decide to send multiple e-mails to your co-worker, or someone else observing the holiday, insisting on a response particularly when you know they don’t want to respond, think about the implications further.  It really reflects more on you than them.

An e-mail is an e-mail.

Except when it means something more.

Like many of you, I long for vacations.  I like to plan them out in advance and then spend the intervening weeks and months plotting and scheming.

What restaurants and new foods should we try? What attractions should we try to visit? And while that private tour my Facebook friend recommended sounds neat and all, what can we really afford to do?

Having just returned from a trip overseas, I can attest that vacations are good for the soul too.  They provide time with friends and family and a much needed perspective.  There is simply more to life than the constant barrage of news that seems to infiltrate our lives nowadays.

But where do vacations fit in the legal schemes employers set up in Connecticut?

Well, for one thing, vacations are not mandated by any state or federal law.  Employers are free to decide whether or not they want to give their employees any vacation days.  But many employers recognize that offering vacation days makes jobs more attractive and also leads to happier employees in the long run too.

That said, Connecticut law basically leaves it to the employers to set up policies — and then requires them to follow them.  The point this truly becomes an issue occurs when an employee leaves employment and still has vacation days that have accrued.

The key law here is Conn. Gen. Stat. Sec. 31-76k, which states:

If an employer policy or collective bargaining agreement provides for the payment of accrued fringe benefits upon termination, including but not limited to paid vacations, holidays, sick days and earned leave, and an employee is terminated without having received such accrued fringe benefits, such employee shall be compensated for such accrued fringe benefits exclusive of normal pension benefits in the form of wages in accordance with such agreement or policy but in no case less than the earned average rate for the accrual period pursuant to sections 31-71a to 31-71i, inclusive.

In plain English, the law dictates that employers follow their policies and practices.  Don’t want to pay your employees accrued vacation time upon termination? The law says that is ok, but only if your policies say that in advance.

As you craft your vacation policies, here are some other questions for an employer to consider:

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a “use it or lose it” policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Vacations are great. Encourage your employees to use them.  Just make sure your company’s policies are clear enough that you won’t be dealing with headaches later on.

healI’d much rather write about a legal topic than a personal one, but before I talk about the logistics of handling an employee who has exhausted their paid time off, I wanted to share a brief personal update.

Last November, I shared with you my wife’s diagnosis and treatment for cancer.  Because she is a fairly private person, I haven’t really posted an update since.  I’m pleased, however, to report that my wife has recovered well from surgery and the original cancer diagnosis.  We are now in the stage where you wait for each followup scan with a bit of anxiety — never quite feeling comfortable enough to declare yourself “cancer-free” but not worried about day-to-day survival.  Which is another way of saying that we’re doing ok right now.  Thank you all for your continued support.

Ok, back to business.

Suppose you run a business that has about 30 employees total — all in Connecticut. You’re not covered by the FMLA or CTFMLA or even the Connecticut Paid Sick Leave Act.  Charlie — your employee — has been battling cancer the last six months and has just used up his four weeks paid time off.  He is still dealing with the occasional chemotherapy treatment, but your policies — such as they are — don’t say anything about getting any more time off.

What are your obligations as an employer?

Well, you shouldn’t assume that you may not be covered at all by state or federal law.  The Americans with Disabilities Act requires that a reasonable accommodation be made for disabled employees — and that could mean that in some circumstances, an unpaid leave of absence may be suitable.  State law may have a similar imposition in some instances.

In the EEOC’s guidance on the topic, it states:

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability.  An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.  For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.

And indeed, that may be a solution that you stumble to regardless. But the fact remains that there are limits to the rights of an employee in this situation.  Charlie may not have the right to additional time off without losing his job.

So legally, an employer may decide (and again, consult with your lawyer about the specifics as not all cases are created equally) that it is within its rights to terminate the employee who has exhausted his paid time off.

But suppose you WANTED to give the employee additional time off — could you? Sure. You might give the employee time off unpaid but say that his job isn’t necessarily protected.

You may have to worry about the precedent this sets, but failure to treat your employee with additional courtesy may lead to bigger troubles of morale in the workplace and beyond.  On the other hand, giving an employee additional time off may get yourself some additional loyalty from that employee when he returns healthy.

It is these sorts of employment law questions that are the trickiest because while you may have some legal rights as an employer, you may feel that you have an obligation (moral perhaps?) to act otherwise.  For those, think carefully through each decision and seek appropriate legal help to guide you through it.  I’ve covered other issues with cancer in the workplace here, for example.

The first day back from vacation is always fun.

And by fun, I mean “not fun AT ALL.”

There’s the e-mails. And the voicemails. And the things that you should’ve gotten done before vacation that you really honestly tried to do, but well, you just couldn’t.

And then there’s the news and other “information” that you missed.

That’s what Monday morning is shaping up to be for me.

But here’s the thing: With technology, it’s too easy to keep up with your life. Looking at Twitter. Reading some articles.  Even when you’re out of the country, wifi is everywhere.

What I found out during my time “off” is that, more than ever, I seem to hear a lot more “noise” about employment law on social media, via e-mail newsletters, and newspapers.

Everyone seems to be screaming with headlines about how things are going to “dramatically” change for employers. Or that employers “must” pay attention”. Or some other nonsense.

It’s a lot like a waterfall I visited on vacation. It just keeps coming with a constant stream of noise (and water, of course.)

Yes, I walked the bridge.
Yes, I walked the bridge.

For example, the EEOC released a ruling on sexual orientation that attempts to expand job protections nationwide for that protected class even though Congress has attempted (and failed) to pass a law that would do the same thing.

Except, it shouldn’t change much of anything in Connecticut because we have had those protections thankfully for many years already. But you wouldn’t know that from articles which gloss over that fact.

And after a few days on vacation, I just sort of checked out from all that noise.  Kind of liberating.

I read more on my Kindle and less and less on Twitter.   (Strongly recommend “Boys in the Boat” about a University of Washington Crew Team and the 1936 Olympics.)

Maybe that’s what we all need for a little while too.

In fact, you may have noticed a few less posts on here recently.  That’s somewhat purposeful. I think the trend from lawfirms is to publish posts on blogs on nearly everything nowadays whether it is “news” or not.

As a result, there seems to be a lot less perspective being shared and more scare tactics and more alerts than ever.

The fact is that as an employer in Connecticut some things have changed, but a lot hasn’t.  Yes, we need to be more alert on misclassification issues, but really, that isn’t new. You need to be worried about your interns, but again, that isn’t new either and their use should be limited anyways.

And for all the bluster on proposed changes to overtime rules, we’re still months off from any final rules and the only change is to the salary test — not even the duties test.

Sure, you need to be vigilant. But that isn’t new.

So, go on that vacation this summer. Unplug. And take some more deep breaths.  Things aren’t as crazy as headlines and alerts suggest.

Let’s all try for a little more perspective and a little less noise.

 

vacationLast week was the first time in the seven year history of this blog that no blog posts were uploaded. Why?

Vacation.

It’s been a long cold winter and my wife and I were able to corral our kids for some much needed warm-weather rest and relaxation — after a very challenging year.

As it turns out, way too many American didn’t take any vacation days last year — whether by choice or necessity.

Vacation days have a way of making their way into litigation too. There was this story of an employee who was fired for accruing too much vacation days.

And stories of those employees who went on vacation after their boss told them to cancel their plans.  And were fired.

A few companies are now moving to an “unlimited” vacation policy where employees can take as much as they need. But only 3 percent of companies have adopted such a practice.

And it works best for those in upper management who have a tough time taking vacation.

Which leads me to this point: Vacation actually improves productivity.  Indeed, a study by Oxford Economics in 2014, found the following:

Our research finds that employers and employees perceive significant benefits to taking PTO. For the employer, benefits include more productive, focused and dedicated employees. For employees, time away from work reduces stress with notable benefits to relationships and health. Most employees report coming back to work feeling renewed and refreshed, and ready to focus on work.

However, despite most workers earning paid time off—and an apparently supportive corporate environment—many US workers do not use all of this entitled time. More than 4 of 10 employees finished 2013 with unused PTO.

So, after this long winter, encourage your employees to take their vacation time. It’ll help both y our employees AND your company in the long run.

Five years ago during summer, I posted a series of questions for employers to think about during the summer season.  I figured it was time to take a look back at them and update them.

Vacations/Paid Time Off — Vacations are a common part of the summer season. Some companies use “Paid Time Off”, while other companies specifically designate that employees can use vacation time.  The latest trend is the “unlimited” vacation policy that says that the employee can take time off so long as the job is getting done.   But can the employer do anything to regulate these vacation Considerations?

Yes, particularly if the employer’s policies are up to date.  What are some questions for an employer to consider?

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a “use it or lose it” policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Friday Sick Days — There’s nothing quite as intoxicating in the summer as the long three-day weekend.  And, with that comes “Friday Fever” .  The symptoms? An otherwise healthy employee calling in on a beautiful sunny Friday.  What are some questions to consider?

  • Does it make sense to change to a simple “Paid Time Off” policy that doesn’t distinguish between vacation and sick time?
  • What documentation do you ask employees for when out on sick days?
  • Do you pay employees for a paid holiday, like Memorial Day, if the employee has been absent the day before or after such a holiday, without approval?

Summer Parties and Office Dress – As with the office party around the December holidays, many companies have corporate outings.  With the warm weather, some might even include swimming or decent amounts of alcohol.  Summer dress codes also tend to allow for more revealing attire. What can the employer consider for these summer outings and summer dress?

  • Are the employers policies on harassment and discrimination up to date and do they make explicit reference to the fact that “work” also includes company-sponsored outings?
  • Are dress codes easy to understand and enforce? Do they provide employees with sufficient guidance on what is expected of them?
  • Have expectations been set up for employees about what is proper behavior and dress at corporate summer functions?
  • Are any summer hires (college or high-school interns) apprised of the rules and regulations of the company, and have employees been advised how to deal with these employees?

These questions are by no means exhaustive, nor are the topics, but with summer in full swing, it’s another way to get through the dog days of summer.

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.

With today being Columbus Day, the following  is a reprint of an earlier column I wrote about the holiday.  Enjoy Columbus Day and these unseasonably warm temperatures.

Over the last few years, I’ve been running a popular post about Columbus Day and the origins of the work holiday in Connecticut. Indeed, it has its foundation as a federal holiday and is listed in the United States Code (5 U.S.C. Sec. 6103).

First landing of Columbus

Columbus Day is officially on October 12th (celebrating Columbus arrival on October 12, 1492), but it is celebrated on the 2nd Monday in October as a result of the federal law.   So, if you work for a federal or state employer in human resources, or otherwise, you are likely going to have today off.

But it is also one of those holidays that private employers increasingly have decided do not merit a vacation day.  A survey from a few years ago showed that just  seven percent of employers in California, for example, give the day off to their employees.

A common question that arises, however, is why? Why do employees for private companies not have to close on a day that has been designated by the federal government as a national holiday?

The answer is actually quite simple: Because Congress didn’t cover private employers in the law.  And state law doesn’t mandate any requirements on private employers either.  And so, while employees may complaint (perhaps rightly) about the difficulty of some child-care arrangements for some closed schools or otherwise, employer continue to have discretion about the days that it designates as holidays.

Some employers have created their own work-arounds, allowing employees to take 1-3 “floating holidays” for days like this (or other types of holidays, like Yom Kippur or Three Kings Day).  That’s a sensible practice. But regardless, these types of policies should be discussed with employees so everyone knows what day is a holiday and what day isn’t.

Power is still out to big parts of the state, but here in Hartford, power is on and life continues. And so must the blog…

Back in June, when the Connecticut General Assembly approved of the paid sick leave bill, I was quick to note that the retaliation provisions in the bill seemed to apply to all employers, not just those covered by underlying provisions.

Sick Days are coming

It now appears that others are coming around to the same conclusion.

In last week’s Connecticut Law Tribune, an article titled, “Sleeper Issue In Sick Leave Bill – Workplace Retaliation” finally gets around to it.  Notably, it cites back to my original article.

It also cites confirmation from the Connecticut Department of Labor that I have been reading the broad anti-retaliation provisions correctly:

Connecticut Labor Department lawyer Heidi Lane said her office has been studying the new law from the start. “We’ve been examining it pretty much word for word, and in section 5 of the bill, it says, ‘No employer shall take retaliatory personnel action against an employee.’ Throughout the entire law, it’s always using the term ‘service worker.’ So where they’re actually saying ‘employee,’ they mean everyone.”

One of the questions raised, however, is how can the CTDOL enforce the anti-retaliation provision of a sick leave policy, when a particular employer may not have to have a policy because they do not fall within the fact otherwise.  The CTDOL says that it will use the employer’s existing policies.

A company need not have a paid sick leave policy expressed in so many words, Lane explained. Many employers give employees a set number of “PTO” or paid time off hours, for family emergencies or any reason at all. By implication, this includes time off for illness, and is a form of paid sick leave.

There’s a little over four months remaining until the new law goes into effect. If you and your company haven’t started thinking about the changes you may or may not need to make to your existing policies and practices, consider this article another incentive to do so.

Happy Independence Day

With July 4th weekend upon us, I wanted to first wish all of you a Happy Independence Day!

In the meantime, for those who are still looking for things to work on this weekend, I refer back to post in 2008 that talked about summer-related employment law issues.  Here are a few highlights:

Vacations/Paid Time Off — Vacations are a common part of the summer season. Some companies use “Paid Time Off”, while other companies specifically designate that employees can use vacation time.  But can the employer do anything to regulate it? Yes, particularly the employer’s policies are up to date.  What are some questions for an employer to consider?

  • Do your policies require employees to seek time off in advance?
  • Do you require employees to coordinate with other vacation schedules?
  • Do you have a “use it or lose it” policy on vacations, where employees are required to use vacation time by the end of the year, or do you allow for some carryover? If so, how much?
  • Do you have employees vacation time on a pro-rata basis? In other words, do employees get a day vacation for each month during the year worked?
  • Do your policies dictate that if the employee does take vacation time that has not accrued, what the penalties are?

Summer Parties and Office Dress – As with the office party around the December holidays, many companies have corporate outings.  With the warm weather, some might even include swimming or decent amounts of alcohol.  Summer dress codes also tend to allow for more revealing attire. What can the employer consider for these summer outings and summer dress?

  • Are the employers policies on harassment and discrimination up to date and do they make explicit reference to the fact that “work” also includes company-sponsored outings?
  • Are dress codes easy to understand and enforce? Do they provide employees with sufficient guidance on what is expected of them?
  • Have expectations been set up for employees about what is proper behavior and dress at corporate summer functions?
  • Are any summer hires (college or high-school interns) apprised of the rules and regulations of the company, and have employees been advised how to deal with these employees?

Hopefully, you’ll all be able to enjoy the great weather and the holiday.  Even employment law professionals and human resources managers need a vacation day.

Summer's Here