With the final few working days of the General Assembly session, we’re starting to see the outlines on bills that are pretenders vs. contenders.

Yesterday, the House passed a contender on the subject of pay equity in a bi-partisan vote.  Unless the Senate decides not to bring up the matter (as it decided last year), employers should start preparing for its likely overall passage and implementation later this year.

Four other states (including Massachusetts) have a bill of this type on the books.

So what does House Bill 5386 say exactly?

Well, less than it originally said. At the vote yesterday, the House passed “Amendment A” that eliminated some of the more controversial provisions of House Bill 5386.

Ultimately, the bill would expand the prohibitions on pay secrecy now found in Conn. Gen. Stat. 31-40z, and prohibit an employer from:

Inquiring or directing a third party to inquire about a prospective employee’s wage and salary history unless a prospective employee has voluntarily disclosed such information, except that this subdivision shall not apply to any actions taken by an employer, employment agency or employee or agent thereof pursuant to any federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes. Nothing in this section shall prohibit an employer from inquiring about other elements of a prospective employee’s compensation structure, as long as such employer does not inquire about the value of the elements of such compensation structure.

So, while there is a general prohibition about asking applicants about their salary history, it does not apply (1) if the prospective employee voluntarily discloses his or her wage and salary history or (2) 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.

The bill also allows an employer to ask about compensation structure, but the employer may not ask about the value of the compensation structure’s elements, except for the value of stocks or equity.

Ultimately, the compromise that was reached was applauded by business groups like the CBIA:

Approval today of legislation addressing gender-based pay inequity is the result of discussions and compromise between multiple parties, including the business community, Democratic and Republican legislative leadership, and the governor’s office, and we thank them for all their commitment to forge a consensus.

If passed by the Senate and signed into law, the bill would take effect January 1, 2019.

You’ve agonized over firing an employee.  You hired her over a year ago and it just isn’t working out.  The employee is kind, conscientious and punctual, but just doesn’t have the skills needed for the particular position.

But you’ve made up your mind. You’re firing her at a meeting this afternoon.

In that meeting, the employee stops you part way to say that she too has been thinking the job hasn’t been a good fit and asks if she can resign instead.

Can you still accept the employee’s resignation?

It may seem obvious, but I’ve had more than a few discussions with employers who are caught offguard with such a request.  (In some other circumstances, the employer may ask if they can allow the employee to resign in lieu of termination. Gets to the same point.)

The answer is yes, you can allow the employee to resign. Even if you originally were firing them.

There’s no law that requires employers to stick with a decision that they are having second thoughts. You can withdraw a termination, you can change the termination to a resignation. It’s really up to you and the employee.

But here’s a related question. Can the employee still collect unemployment benefits if they “resign”?

Again, the answer is yes.  Mostly.

As the Department of Labor notes, the “general  rule  is  that  a  person who  voluntarily  leaves  suitable  work without good cause attributable to the employer is not eligible for benefits.”

But an employer who indicates that it is going to fire an employee and “allows” the employee to resign, is probably establishing the “good cause to be attributable to the employer” because it relates to the wages, hours or working conditions of the job.

There are exceptions, of course, but employers who contest unemployment of an employee that they “allowed” to resign in lieu of termination, should really be thinking long and hard about such a decision.

And, as another blog post reminds, “forcing” an employee to resign isn’t going to fly in many instances either.

Firing an employee isn’t easy. It shouldn’t be. But doing it the right way isn’t that hard either.

Three years ago, I floated the idea that perhaps an agency could come up with a modest “amnesty” program that would give employers a chance to get into compliance with FLSA laws, without facing the draconian consequences such an admission might entail.

Now, late yesterday, the United States Department of Labor announced its own pilot program doing exactly this. 

It’s being called the “PAID” program (Payroll Audit Independent Determination), and is designed to expedite “resolution of inadvertent overtime and minimum wage violations under the FLSA.”

According to a press release:

Employees will receive 100 percent of the back wages paid, without having to pay any litigation expenses, attorneys’ fees, or other costs that may be applicable to private actions.

The PAID program facilitates resolution of potential violations, without litigation, and ensures employees promptly receive the wages they are owed.  Under this program, the Wage and Hour Division will oversee resolution of the potential violations by assessing the amount of wages due and supervising their payment to employees.

The Division will not impose penalties or liquidated damages to finalize a settlement for employers who choose to participate in the PAID program and proactively work with the Division to fix and resolve their potential compensation errors.

But there will be limits.  Employers who are in litigation or currently under investigation are excluded, for example.  Moreover, it is a one-time use; employers can’t keep coming back under it.  And it will require employers to take other steps as well.

The pilot program is being run nationwide for approximately six months, after which the Department will evaluate the pilot program and consider future options.

Employers and their counsel are going to need to do a crash course to learn about its availability.  Some FAQ are available on the DOL website but there’s still more that needs to be filled in.

It’s clear, for example, that this won’t necessarily prevent a private lawsuit from flowing or from employees who might reject this and seek out their own counsel.

And for employers in Connecticut, a word of extreme caution:  There will still be the issue of STATE law violations that aren’t addressed by this program.

Indeed, when I floated this idea with a CT Department of Labor official years ago, he noted that legislation would have to be written because the CTDOL didn’t have the ability to create such a program.

I will continue to monitor this as well as my firm but if you have any interest in FLSA issues, you’ll want to contact your employment counsel to stay up to date on this very important development.

 

 

Ten years ago today, I wrote about the then-Tenth Anniversary of one of the horrible events that made a lasting impact on Connecticut employers.

I recounted the Connecticut Lottery shootings that happened a decade earlier.

Today, marks 20 years. (The CT Mirror has another perspective here.)

The New York Times report of that event is still chilling in its matter of factness:

Angered about a salary dispute and his failure to win a promotion, a Connecticut Lottery accountant reported promptly to his job this morning, hung up his coat and then methodically stabbed and gunned down four of his bosses, one of whom he chased through a parking lot, before turning the gun on himself.

Since that time, we’ve had other workplace shootings in Connecticut including one even deadlier (Hartford Distributors) and, of course, the massacre in Sandy Hook.

I’m reminded of a post I did early on that was titled: Are there really any lessons to be learned from evil? In it, I suggested the answer was “perhaps” — if only because employers need to keep reviewing their workplace violence policies and keep figuring out ways to spot trouble before it arises.

Just in 2014 alone, there were over 400 workplace homicides nationwide reported to OSHA.

Indeed, it seems the rare case where workplace violence just pops up out of nowhere.

OSHA does have some resources on the subject — but many of them are starting to be dated. 

One of the more useful items was a set of guidelines issued in 2015 targeting healthcare and social service workers.

It calls on employers to develop workplace violence prevention programs from five building blocks:

  1. Management commitment and employee participation;
  2. Worksite analysis;
  3. Hazard prevention and control;
  4. Safety and health training, and
  5. Recordkeeping and program evaluation.

There are far more details in the report than a blog post could recap but for employers looking to reduce the risk of a workplace shooting at their facility, getting started on your own program is as good a place to start as any.

As we remember the victims of the Connecticut Lottery shooting, may we honor their memories to keep bringing change and safety to our workplaces.

Earlier this week, as I peeked up from my bed covers, I heard the lovely, comforting sound I heard when I was a kid.

“Come on Down!”

“The Price is Right” was starting.

Sure, Bob Barker is no longer the host, but I didn’t care.

At that moment, when my stomach was churning and the room was moving a bit, all I was hoping for was a round of Plinko. (I did, however, miss the ultimate Plinko win a few weeks back.)

Well that, and maybe a spin of the wheel where someone wins a $1000.  (And I missed this record-setting set of spins too.)

Netflix? My head hurts.

Bingeing on a show? Too much thinking.

But at 11 a.m. — like chicken soup — The Price is Right was there for me.

Is it the classic show for working folk to watch when they’re sick? Who knows.

With an iPhone by your side and the e-mails piling up, it’s hard to just rest and let your body recover.

In fact, I would argue that it’s harder in this 24/7 work environment to just tune out. But one of the myriad of bugs going around this winter laid me up for a few days.

Sure, I could’ve read up about paid time off, or debate whether flu shots should be required.

But where’s the fun in that?

Employment laws are great — except when you’re the person you is the subject of them. Thankfully, my firm (and our clients) are understanding. Better to stay home and not get others sick, than to come in.

We know not all employers are like that. However, this winter, it seems to have shifted a bit — at least informally.  The messages have been getting out — don’t come into work sick.

Spring is coming. And work resumes.

But The Price is Right is, at least for me, a reminder that taking care of yourself is eternal.

 

Do you remember your first day at work?

I’m not just talking about a new job.

I mean your first day EVER at a workplace.

For my oldest daughter, today is that day.

She starts as an intern at a local manufacturer of “Highly Complex Machined Parts and Precision Cams for Aerospace, Medical and Commercial Applications” to help her focus on aerospace engineering.

This internship program started a few years ago from our town’s high school and gives students a chance to see the workplace from the inside, all under the supervision of an internship program.

When she came home earlier this week from an “interview” (which I think was more of a guided tour, truth be told), the excitement from her was palpable.

“The machines are so….cool!”

When asked to explain, she said, well, it was just “cool”.  She had a huge smile and couldn’t wait for today to come.   She loves engineering (we’re starting on college applications this fall!) and the chance to have her work at a place where engineering is at its core is pretty, well,  “cool”.

Of course, like any good father (who is also an employment lawyer), I talked to her about some workplace notions — she needed to be on time, to be helpful, and to work hard.

And I told her that she had a right to be treated fairly, to be free of harassment (not that I had any notions that is going to happen here), and that the internship program was intended as a learning tool (and thus ask questions).

Of course, I could’ve pointed her to prior blog posts on internships here, here and here but that would just be asking for the classic teenage eye roll.

I’m wise enough to know that someday she’ll have a tough day at a job.

But I hope she remembers the excitement of Day One.

Because it’s really “cool”.

Summer feels really far away right now.  It’s just been brutally cold here in the Northeast.

(How cold? Too cold for skiing.  That’s brutal by any stretch.)

But summer WILL eventually come. So we’re told.

So the news late Friday that the U.S. Department of Labor was scrapping the test it had released just a few years ago about interns probably went a bit unnoticed.

At first blush, it might look like a big deal. But, in reality, not so much because the federal courts here (including New York as well) had already adopted the new test that the USDOL announced on Friday.

I’ve covered both before, but the TL;DR version is this: The DOL is going to the “primary benefit” or “primary beneficiary” standard that had been outlined in 2015 by the Second Circuit.

Law360 summarized it pretty well here:

Under the [Second Circuit] test, courts have analyzed the “economic reality” of interns’ relationship with their employer to determine which party is the primary beneficiary of the relationship. The standard has been applied in various cases where courts have ruled that interns in a variety of industries, as the primary beneficiaries of their internships, don’t qualify as employees for FLSA purposes and can’t collectively pursue claims for misclassification and wage violations under that statute.

That said, employers in Connecticut don’t have it easy. As I noted in a prior post as well, Connecticut passed anti-discrimination law protection for interns that uses another test too.  That law better tracked the old DOL interpretation which has now been overturned.   That said, that law does not apply to wage and hour claims, only discrimination claims.

So, what does it mean? Employers have a tricky time structuring internships to meet both federal and state law guidance. The “primary beneficiary” test is going to carry the day in many instances, but employers that often use interns should still consult their legal counsel to see if there are any particular issues that need to be addressed for your company.

  • Suppose there’s an old employment agreement between the employer and employee. Then the employer fires the employee.
  • But there’s been a few intervening events and it’s not exactly clear that the employment agreement still applies.
  • Indeed, there’s another contract (let’s call it an supplier agreement) that seems to provide an independent basis for ending the relationship.
  • Nevertheless, the employment agreement contains an arbitration provision.  Are the parties still required to go to arbitration even when one party (namely the employer) argues the contract is void?

Yes, says a new Connecticut Appellate Court decision called Stack v. Hartford Distributors, Inc..

(For background, the employment lawyers out there should look first at a 2007 Supreme Court case that established the strong preference to enforcement of arbitration provisions, which you can find here.  The rest of us can carry on.)

For the court, it noted that the employer appears to “concede that the arbitrator should decide its contention that the employment contract is void and unenforceable” but because the issues of the termination don’t have anything to the employment agreement itself, there was “nothing to arbitrate”.

The court disagreed and said the employee was entitled to have an arbitrator decide whether he was terminated properly under the employment agreement.

Here, the court said, the employment agreement, “which was entered into by the parties on November 2, 2010, the parties agreed, specifically in paragraph 14, to arbitrate any disputes ‘regarding the interpretation or enforcement of this Agreement or any provision hereof’ that could not be settled by mediation administered by the American Arbitration Association.  Additionally, paragraph 16 of the agreement provided in relevant part that ‘[t]his Agreement shall constitute the entire Agreement between [the employer and [the employee] with respect to the subject matter hereof.'”

And, the court went on to add, there was no dispute the employer terminated the employee or that there was an arbitration clause.  While the employer may claim that the employment agreement was void and unenforceable, that issue is still properly before an arbitrator.

In doing so, it relied on that prior Connecticut Supreme Court decision that ‘‘an arbitration provision is severable from the remainder of the contract . . . [and], unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.’’

The takeaway for employers: If you add an arbitration provision to your employment agreements, it’s likely to be read broadly in Connecticut.

In other words, be careful what you wish for; you just might get it.

  • You have your bread. And milk.  Presumably eggs too.  (Anyone making French Toast this morning?)
  • But do you know the employment law rules that apply for winter storms and classic nor’easters like we have today?
  • I’ve written about it plenty before, but here are three issues you may not have thought about recently.
  1. Reporting Time or Minimum Daily Earnings Guaranteed: Connecticut has a “reporting time” obligation (as do several of our neighboring states). It is contained in various regulations and applies to certain industries like the “mercantile trade”. You should already be aware of this law, but it has particular application in storm situations where people may not work full shifts.

    For example, in Conn. Regs. 31-62-D2(d) for stores, an employer who requests an employee to report to duty shall compensate that employee for a minimum of 4 hours regardless of whether any actual work ends up getting assigned. So if you bring your employees in today only to send them home 30 minutes later, you may be on the hook. For restaurant workers, it is typically a minimum of two hours (Conn. Regs. 31-62-E1)

    Takeaway? For certain industries, be sure to know whether you will need to pay employees for a minimum amount of time if you send them home early from their shift.

  2. Wage Agreements: Also be aware of any wage agreements (collective bargaining agreements mainly) that require you to provide employees with a guaranteed minimum number of work hours. Typically, these will need to be followed.
  3. Hours Worked: Be aware of Connecticut’s “hours worked” regulation found in Conn. Regs. 31-60-11. That regulation says that “all time during which an employee is required to be on call for emergency service at a location designated by the employer shall be considered to be working time” regardless of whether the employee is called to work.

    When an employee is on call, but is simply required to keep employer informed of whereabouts or until contacted by the employer, working time starts when the employee is notified of his assignment and ends when that employee is finished.

As I’ve said before, none of these issues should really be new for an employer in Connecticut. But with this being the first big storm of the season, it’s time to shovel out those policies.

For more on storm-related posts, check out this post here.

There is news in the employment law world beyond sexual harassment.  Arbitration clauses to be exact.

Yesterday, the Second Circuit issued a small, but important decision for employers that will continue to limit FLSA wage & hour claims.

The court ruled that an employee’s FLSA claims in court were barred by the arbitration clause contained in his employment agreement.  While it isn’t the first time, it’s clear logic will be tough to ignore.

(The case, Rodriguez-Depena v. Parts Authority, Inc. et al can be downloaded here.)

For the court, it was not even a close call. The court ruled that the Supreme Court’s pronouncement years ago that age discrimination claims were barred by an arbitration clause controlled.

The court also looked at whether its decision in the Cheeks v. Freeport Pancake House, Inc. – which required oversight of settlements of FLSA claims — precluded arbitration. The court said it did not.

The rationale of Cheeks, however, is assurance of the fairness of a settlement of a claim filed in court, not a guarantee of a judicial forum.

For employers in Connecticut it remains to be seen if the Connecticut Supreme Court will be all in on such a logic for state wage & hour law claims, but the federal endorsement of arbitration provisions provide a strong basis for doing so.

The case is yet another sign that employers have a few options when it comes to FLSA claims.  It has previously held that class action waivers for FLSA claims are also valid.  

Nevertheless, employers should once again consider whether mandatory arbitration provisions are right for their workforce, particularly when combined with class action waivers.  Having such provisions in place could make a big difference in the future.