Yesterday, I made a spectacular dive.

Unfortunately, it was not in a pool. It was in the middle of the street.

But it’s what happened AFTER that unfortunate fall, that I find most compelling.

Let me first say, however, that I’m FINE. Really, I’m fine. I’ve said that over and over the last 24 hours but really, well, you get the point.

The incident itself was a classic case of just a plain old accident. I was crossing the street on my way to lunch and didn’t happen to notice the pothole, ditch, depression, or whatever you want to call it in the street.

My ankle turned, I lost my balance, thought I regained it, then realized I hadn’t, and came crashing down mostly (and thankfully) on my hand, shoulder and knee.

End result: A scratched up hand, a bruised shoulder, broken glasses, wrecked suit.  But fortunately no broken bones or anything of the sort. No need for ambulances, hospitals, or taxi-rides home.

It happened to be right outside my work so I got up to get out of the road, took quick stock of myself, and walked (limped?) back inside to find the first aid kit.

In a bit of luck, I also ran into one of our office staff who mobilized our internal first aid health/safety team. Turns out, they are always ready for this.

Within minutes, I had an ice pack, bandages, and a chair.  Someone else offered to return a call for me for an upcoming appointment.  And 30 minutes later, there were still others who stopped by to see how I was doing and encouraged me to recuperate at home. (Advice taken.)

Here’s what I didn’t have: Endless questions about whether this was a “work-related” injury or what the “policy” was on these types of injuries.

Was it on a lunch break? Was it work-related? Those questions don’t really matter in the moment.

Indeed, this wasn’t the first time I’ve seen our health and safety team in action; a year ago, a colleague was choking on some food on my floor. The alerts came fast and furious and they sprung into action — without thinking.

And so, out of a spectacular dive comes your employment law tip of the day:

Your policies are important.

But the way you treat your employees and how your employees treat each other are even more important.  Train those employees to do the “right thing” in the moment and you’ll get glowing returns in spades.  Having a health/safety team for these types of matters is a crucial, and overlooked part of your company.

Policies are helpful in dealing with the unknowns.  But building your company’s culture so that your employees act instinctively, is far more important in the long run.

Your company will have someone like me who just trips and falls, or maybe they’ll be choking, or perhaps something even worse; what you do next will be important to who you are as a company.

And so today, I’m back at work, a little sore, a little bandaged up on my hand.

But thankful, I work at a place that puts its people first.

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 I continue to work on a major redesign and relaunch that I hope (!) to roll out by month’s end which has held up some blog posts, my colleague Gary Starr returns this morning with a new post regarding a recent Connecticut court decision and temps. 

starrEmployers who use a staffing company to supplement their employees may find themselves in for a rude awakening if the temp gets hurt at their worksite.

Ordinarily, an employee injured on the job would be covered by the workers compensation insurance.

A recent Superior Court decision rejected the idea that the temp is covered by the employer’s workers compensation insurance and is allowing a lawsuit to go forward against the employer.

The court found that the temp was an employee of the staffing company and not the employer, even though the temp accepted the assignment with the employer, the work was being done for the employer, and the temp was under the control of the employer at the worksite, and not the staffing company.

While there are several state court decisions that have found this arrangement to be a dual employment situation, other courts have rejected the concept of dual employment.  Under dual employment, the temp would have been covered under the employer’s workers compensation insurance.

Until an appellate court or the Connecticut Supreme Court rules on this issue or the legislature clarifies the statutory scheme, employers using staffing companies to fill out their employment needs, run the risk that if the temp gets hurt, they could be sued.

Such a lawsuit would present a risk of liability that could exceed the workers compensation formulas, with possible punitive damages.

Employers should be careful in their negotiations with staffing companies to try to establish a dual employment relationship with the temp, even having the temp sign a written agreement with the employer accepting the assignment with the employer.  There should also be clarification of the scope of any indemnity.  The employer should check with its workers compensation insurance carrier to ensure coverage of any temps.

While these steps may not avoid the consequences described above, it may provide a basis for arguing for dual employment and for coverage under workers compensation.

Of course, dual employment has its own set of challenges as well so employers using temps need to understand both the pros and cons in such a relationship.

Let’s state the obvious first: We’re in favor of anything that raises awareness to the issue of ALS and #icebucketchallenge has done that and more.  And for the record, I did the challenge last weekend, after being suitably doused by my kids. (My friend, Robert Becker, posted a clip from mine here.)

But my colleague Chris Engler is back today with a cautionary tale.  Even when this meme ends, there will be something else. Sooner or later, the lawyers get involved…..

The ALS Ice Bucket Challenge has been ruling the airwaves and headlines for the past few weeks. 

No one can argue about the campaign’s success.  And you have to think the hype will have to die down soon.  The Internet is running out of celebrities, athletes, politicians, and everyday folks to nominate for the experience.  I’ve already heard the term “jumped the shark” tossed around.

But that’s not to say that it’s over. Yet.  (And regardless, there will be almost certainly be copycat campaigns for other worthy causes.)

With a meme this big, it was only a matter of time before we lawyers had to get involved and pour cold water on everyone’s parade.

You see, the fad has gone beyond individual acts of dousing.  Many companies and workplaces have teamed up to soak themselves en masse.

It’s apparently easy enough to goof up when dumping a bucket over your own head.  Multiply that by a few dozen employees milling about in festive spirits, and your risk manager is going to start sweating.  Indeed, even professionals have injured themselves during mass soakings.

By no means am I advocating against participating in the challenge. (After all, how can you not enjoy these celebrity videos?)  I may be an attorney, but I’m not that much of a wet blanket.

But the meme has gotten to the point where our office has started to get questions about it. And employers that are considering hosting or approving a group ice bucket challenge should keep some things in mind.

  • Peer Pressure – Will the event be voluntary?  We all know that “voluntary” can be a slippery word.  While it’s good to encourage employees to participate, some people might be really uncomfortable soaking themselves in front of their coworkers, and some might be unwilling or unable to donate money as an alternative.  Respecting individual preferences goes a long way towards building camaraderie.  And what happens when an employee says no? Will he/she be shunned?
  • Overtime – Suppose the event happens at the end of the day.  Can employees demand overtime pay for participating in the event?  It may depend on when it happens during the day, and probably whether it was truly voluntary or instead strongly “encouraged.”  Employers should consider wage and hour laws when deciding on the timing of the event.  Nevertheless, let us also suggest that the employee who demands to be paid for this charitable event may kind of be missing the point.
  • Workers’ Compensation – If an employee does get injured, is the injury covered by workers’ comp?  Again, it might depend on how voluntary the activity was.  If you’re concerned, be sure to check with your workers’ comp carrier, and perhaps your general liability insurer as well.  The answer may not be as simple as you think it is.  And people have gotten injured. 
  • Dress Code – What to wear?  Perhaps not surprisingly, there aren’t many people in the linked videos above who take the challenge wearing a business suit.  But many of the outfits worn in the videos probably wouldn’t pass muster under even a casual dress code, particularly when wet.  So a gentle reminder to your employees about what attire is acceptable for the event may unfortunately be necessary.
  • Social Media – The ice bucket challenge was born on the Internet and thrives on the Internet.  As Dan discussed a few months ago regarding the World Cup, employers might be tempted to discipline workers for excessive Internet use – and to be sure, they are entitled to do so.  But it might be worth cutting employees a little slack if the employer is hosting its own challenge, especially if the employees are simply promoting the workplace’s event.

You would hope that no legal issues would arise from a voluntary, charitable activity.  But past history has shown that work-related charitable activities inevitably lead to claims — whether we like it or not. 

Now, before you leave thinking we’re a wet sponge for the post, here’s one of our favorite #icebucketchallenge videos

During the holiday break, I did what many lawyers do (but will publicly deny): I watched a few “bad” reality tv shows.  

No, I didn’t watch “Here Comes Honey Boo-boo” (even I have my limits). 

But on the Food Network was a marathon of episodes of a show called “Mystery Diners”.   The show is based around so-called “Mystery Diners” who are undercover operatives that go into restaurants, bars and food service establishments with hidden cameras to perform surveillance to “find out what’s really going on when the boss isn’t around.”  

Clearly, it was time to break out the popcorn over this show. 

The episode that I flipped on didn’t disappoint, mixing employment law issues with food.  (I’ll leave it to you in the comments to decide if there is any better combination).  Here’s the way the show describes the episode:

Los Angeles restaurant owner Derrick has a problem with an employee who claims he hurt his leg on the job. This former waiter has threatened a [workers compensation] lawsuit, so to appease him, Derrick has made him a host; however, his lazy behavior has not stopped … and Derrick wonders whether the injury is even legitimate. Derrick contacts Charles for help, and Mystery Diners Shellene, Lukas and Tracey go undercover to see if this coasting host needs to be toast.  

Suffice to say that my time watching the show would probably have been better spent on nearly anything else, but I couldn’t help but think how some restaurant owners might be tempted to go through something similar. 

So, if you’re a restaurant owner in Connecticut and thinking about going on a reality show like this, let me suggest two things:

1) This is a spectacularly bad idea.

2) If you aren’t convinced that this is a bad idea, at least hire a lawyer to tell you this is a bad idea. 

There are a number of laws that may be implicated in this type of reality show “sting”.  First off, Connecticut law restricts employers from conducting surveillance, as I’ve noted before.  Connecticut law also restricts employers from conducting electronic monitoring — absent notice (which I’ve also covered here before). 

That’s not to say that you ought to do nothing when confronted with a similar situation; employees who abuse workers compensation are sometimes put under surveillance by the insurance company to determine the legitimacy of an injury.  But that is typically done by trained professionals; not television producers in search of viewers.

In addition, just because an employee has threatened a lawsuit, it does not mean that they are immune from discipline. But that discipline needs to be done carefully; otherwise, a retaliation lawsuit will be on your menu.

And keeping counsel involved, allows you, as the employer, to have privileged conversations with the attorney about legal strategy too.

So, reality television may make for good holiday watching.  But leave the hidden camera tricks for someone else.

The Connecticut Supreme Court, in a decision that will be officially released next week (but released this morning), held that an animal control officer for several towns, was an employee of each of the towns. 

Because of the creation of an employer/employee relationship, her claims that she was injured on the job (she suffered a serious ankle injury) are barred by the Workers’ Compensation Act.

The case, Rettig v. Town of Woodbridge (download here), has important implications as municipalities in Connecticut — looking to share expenses — move to regionalization of services. 

In this case, the employee had already settled a workers compensation claim against the district animal control for $800,000.  Nevertheless, she continued to bring negligence and nuisance claims against the towns as well. 

The employee claimed that the structure of the animal control district meant the towns were trying to insulate themselves from claims. The Court rejected that argument saying that the towns were responsible for all of the expenses of the animal control district, including the employee’s employment. 

As a result, the plaintiff could not pursue claims against the town; her claims were barred by the Workers’ Compensation Act exclusivity provisions. 

The Court concluded that there was no real difference between, say, board of education employees, and regional district employees; both are still employees of the town. 

For towns that continue to look to regionalization of services, this case provides them with strong support for that approach with the understanding that they will not be on the hook for claims by employees, aside from the workers compensation act.

In a decision that will interest those that practice in Workers Compensation and with the U.S. Postal Service (and perhaps no one else), the Connecticut Supreme Court yesterday ruled that U.S. Postal Service is not an employer within the scope of workers compensation laws in Connecticut.

The decision in Lopa v. Brinker Int’l is an interesting exercise on statutory interpretation and whether the state intended to cover certain federal government entities in the statute (or whether it even has the power to do so).  Ultimately, it concludes that the postal service was not organized under or created pursuant to the laws of Connecticut, and therefore cannot be an employer, as defined by Connecticut law.

But for employers, the decision should otherwise be a non-issue and I can’t foresee it having any real impact on private employers in the state, other than to leave the Postal Service out of any workers compensation case that may get filed.

Continuing our weekly series of basic laws of the workplace, this week will focus on the injuries at the workplace.

In 2008, there were over 67,000 injuries reported at the workplace (with 34 fatalities).  Thus, at some point or another, odds are that one of your employees will get injured.

While there are whole books spent on handling such claims, there are two basic concepts that employers should consider when employees have work-related injuries.

First, all of these type of injuries (with some limited exceptions) are covered by the workers compensation system in Connecticut.  The WCC in Connecticut has a detailed information packet that provides all the necessary forms and information for employers to get refreshed on the topic.

Second, when these injuries occur, the employer should consider three steps: 1) Assist the employee is getting medical treatment; 2) Notify your insurer of the injury and possible claim; and 3) Fill out the "First Report of Injury" to the insurer, which serves as a more official notice of the claim.

Of course, there are always questions that pop up that don’t fit into neat categories. The classic example is an employee who suffers an injury at the company softball game. I suppose the updated example is an office invests in a Nintendo Wii to keep the company morale up and allow people to spend some time during breaks getting in shape.  (Nutmeg Lawyer Adrian Baron takes this one step further; his firm actually bought some Wii games for his staff.) 

Each of these situations will be a little different.  Companies that have risk management departments may be able to address these issues without much outside help, but small to mid-size employers should consider working closely with their insurer to determine the best practices approach to dealing with injuries at the workplace.

And consistent with yesterday’s article, making sure your company has purchased workers’ compensation insurance is critical to avoiding getting ensnared in the government’s crackdown.

For the second time in a month, the Connecticut Supreme Court overturned a sizable verdict to an injured worker.  And for the second time, the Court, in rcourtesy morgue file "excavator"uling on a contractor liability case, re-emphasized that workers compensation laws will act as a bar to many such claims against general contractors. 

The case, Archambault v. Soneco/Northeastern, available here, will be officially released this week. The Connecticut Law Tribune has the background and reaction in an article in this week’s edition (subscription required). 

[The case] centers on an accident in Willimantic, where a big retail store was under construction. Excavator operator Richard Archambault, an employee of subcontractor Soneco, was injured in a trench cave-in. He sued general contractor Konover Construction after winning workers’ comp benefits from Soneco. …

The Superior Court allowed the Plaintiff to argue that Konover, as general contractor, had a non-delegable duty to assure workplace safety on site.

But in a unanimous ruling penned by Justice Peter T. Zarella, the high court found [then Superior Court Judge Barbara] Quinn erred in granting those instructions. The court stated that Konover should have been permitted to assert a general denial of liability and argue that Soneco’s negligence was the sole proximate cause of Archambault’s injuries.

The case is now remanded back to the Superior Court for more briefing and perhaps a second trial.

The case follows the recent decision in Pelletier v. Sordoni Skanska where the court overturned a $41 million verdict for a paralyzed steelworker.  The Plaintiff has moved to reargue that matter. 

For construction companies in Connecticut, the case continues to highlight two points:

  • Safety must remain a top priority.  And without the coverage of workers compensation laws, there are huge potential risks if the cases are before a jury.
  • The laws regarding liability for contractors/subcontractors and the interplay with the state’s workers compensation claims continues to develop in Connecticut.  The two cases this month still reflect the uncertain nature of the law.  Construction contracts should be thorough and should address indemnification provisions, insurance, and the like.  Should an employee get injured on the job, seeking legal advice about what may happen next may help companies avoid having their dispute end up at the Connecticut Supreme Court, like this one.

When a worker is injured on the job, it’s tragic.  It’s even more tragic when that employee is left a paraplegic.

When that same worker and his wife are awarded $41 million by a jury against a general contractor, it’s noteworthy.  It’s particularly noteworthy in Connecticut, which is not known historically for its high jury awards.

When the Connecticut Supreme Court throws out the entire jury award and directs a verdict for the defendant — a contractor — it’s remarkable.

Yet, that’s exactly what happened on Monday in Pelletier v. Sordoni/Skanska Construction Co. (download here).  The Connecticut Law Tribune has the details here (available free):

A defense judgment directed by the Connecticut Supreme Court has saved a New Jersey contractor more than $41 million in legal liability to a paraplegic who was injured when a defectively-welded girder fell on his head.

In addition to the setback the high court dealt Norman Pelletier and his wife Reine, the unanimous verdict also found contractor Sordoni Skanska wasn’t liable because the accident was not foreseeable.

Peter T. Zarella, writing for the court, found that Waterbury Superior Court Judge Jon Alander improperly found that Connecticut’s construction code created a non-delegable duty for the contractor to make sure the welds were inspected for the benefit of welder Pelletier, among others.

The decision will have more impact for those in the construction industry, than employment, because it allows some contractors to delegate duties without risk of liability.  But one obvious reason why workers sometimes try to sue parties other than their employer is the fact that workers compensation acts as a bar to such claims.

Kudos to Dan Krisch, the current chair of the Connecticut Bar Association’s Young Lawyers Section for his representation of the defendant in this case.