Connecticut Labor and Employment Law Journal

Connecticut Labor and Employment Law Journal

Representing Employers

Connecticut Employment Laws You Didn’t Know Existed – Requirements for Safeguarding Social Security Numbers and Other Private Information

Posted in Employer Policies

This is Part 5 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.

While not an “employment law” per se, Connecticut requires any private individual or company to take certain precautions to safeguard Social Security numbers and other private information.  Violations of these laws are punishable by fines, civil penalties, and even imprisonment.  Of course, a data breach also can also subject your company to a loss of consumer confidence, which can create a devastating impact.  Therefore, data protection is something every business must take seriously.

The law states that anyone who collects Social Security numbers in the course of business must create a privacy protection policy that must be published or publicly displayed.  Since all employers must collect employees’ Social Security numbers for various administrative purposes, such as withholding taxes, every private employer is covered by this law.

The policy must (1) protect the confidentiality of Social Security numbers, (2) prohibit unlawful disclosure of Social Security numbers, and (3) limit access to Social Security numbers.  The policy must be available to the public, even if the only Social Security numbers collected belong to employees.  The law states that this can be accomplished by posting the policy on a company website, but other methods could also be appropriate.  It is not necessary to draw attention to the policy, so even placing the policy in an area that is not heavily trafficked by the public should be sufficient, as long as the public can actually view the document if desired.

In addition to requiring a Social Security number privacy policy, the law prohibits (1) intentionally communicating an individual’s Social Security number to the general public, (2) printing the Social Security number on any card required for the individual to access products or services, (3) requiring an individual to transmit his Social Security number over an unencrypted Internet connection, and (4) requiring an individual to use his Social Security number to access an Internet web site unless a password or other unique identifier is also required.  These requirements are generally not onerous.

Finally, the law also requires that any private individual or company in possession of personal information of another person to safeguard the data, computer files, and documents containing the information from misuse by third parties, and to destroy, erase, or make unreadable such data, computer files, and documents prior to disposal. “Personal information” is information capable of being associated with a particular individual through one or more identifiers, such as a Social Security number, a driver’s license number, a state identification card number, an account number, a credit or debit card number, a passport number, an alien registration number, or a health insurance identification number.  Your privacy policy does not need to address proper handling of this information, but it is a good idea to train employees to protect this information in accordance with the law.  Requiring all documents with personal information to be shredded prior to disposal is an easy way to keep personal information safe.  Our team of labor and employment attorneys can help you draft and implement policies that meet your company’s unique needs.

Connecticut Employment Laws You Didn’t Know Existed – The New Provision Affecting All Evaluation Forms and Disciplinary Notices and Other Personnel File Issues

Posted in Employer Policies

This is Part 4 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.

Have you issued discipline, fired an employee, or even given a written performance evaluation since October 1, 2013?  If so, you most likely violated a new provision in Connecticut’s Personnel File statute, which applies to private-sector employers.  The new provision requires employers to state on any disciplinary documentation, termination notice, or performance evaluation that the employee has the right to submit a written statement disagreeing with the contents.  Employees in Connecticut and several other states have long possessed this right, but the obligation to affirmatively notify the employee of this right is unique to Connecticut.  Employers should update their forms with “clear and conspicuous language” explaining this right.  We suggest putting the following statement in a 12-point (or larger) bold font: “Should you disagree with any of the information contained in this document, you may submit a written statement explaining your position.  This statement will be added to your personnel file.”  If the employee provides such a statement, it should be included any time the personnel file is being given to a third party.  (Other than certain limited exceptions, information maintained in a private-sector employee’s personnel file may not be shared without the employee’s consent.)

Importantly, employers must provide copies of documentation of disciplinary actions within one business day after the disciplinary action is imposed.  If the employee is terminated, any documented notice must be given immediately.  It remains unclear what, if any, notice is required for other situations, such as verbal warnings or internal memos regarding an employee’s performance.

At the same time that these requirements were added, the legislature clarified certain other requirements pertaining to personnel files.  Current employees must be granted access to inspect or copy their personnel files within 7 days of a written request.  Former employees must be given access within 10 days, but if the request is received more than a year after termination of employment, there is no obligation to comply.  Connecticut employers are not required to maintain personnel files, but if they do, they must be kept for at least one year after termination of employment.

Which documents must be provided in response to such a request?  Any documents “pertaining to a particular employee that are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action including employee evaluations or reports relating to such employee’s character, credit and work habits” make up the personnel file, even if they are kept elsewhere.  “Stock option or management bonus plan records, medical records, letters of reference or recommendations from third parties including former employers, materials that are used by the employer to plan for future operations, information contained in separately maintained security files, test information, the disclosure of which would invalidate the test, or documents which are being developed or prepared for use in civil, criminal or grievance procedures” are excluded.

The good news for employers is that employees do not have a right to sue for violations of this statute.  However, violations are punishable by fines of up to $1,000.  It is also possible a court would refuse to allow an employer to introduce as evidence disciplinary records that do not comply with the statute’s requirements.  Our team of labor and employment attorneys would be happy to assist you in ensuring your compliance with this or any employment law.

Connecticut Employment Laws You Didn’t Know Existed – Why Your Payroll Deductions are Probably Illegal . . . and How to Fix Them

Posted in Employee Benefits, Employer Policies

This is Part 3 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.

Any time you are having employees pay you – whether through a payroll deduction or by having the employee pay you directly – you are walking into a legal minefield.  Deductions are typically allowed only when there is some benefit being provided to the employee in exchange.  Costs of loss, breakage, and customer theft are treated by the Connecticut Department of Labor as part of the “cost of doing business,” and are almost never recoverable from an employee.  While many employers are familiar with these parameters, many do not realize that most deductions must be authorized in writing by the employee on a form approved by the Commissioner of Labor.  Even more surprising is that the sample form provided on the Connecticut Department of Labor’s website may not be used without approval from the Commissioner of Labor!

So how do employers take deductions lawfully?  First, make sure the deduction is for a permissible purpose – no deductions for loss, breakage, or customer theft!  Some examples of permissible purposes are deductions required or authorized by state or federal law (such as taxes or garnishments) and deductions for contributions into automatic enrollment retirement plans.  These may be deducted without having an authorization form approved by the Commissioner of Labor.  Deductions may also be made if they are authorized by the employee, in writing, for medical, surgical or hospital care or service, without financial benefit to the employer and recorded in the employer’s wage record book.  This written authorization does not need to be approved by the Commissioner of Labor.  Any other deduction must be made pursuant to written authorization on a form approved by the Commissioner of Labor.

If you wish to make deductions requiring approval from the Commissioner of Labor, follow these steps:

  1. Draft a form that clearly explains the purpose of the deductions to be made and leaves room to fill in the dollar amounts to be deducted.  For items of benefit to the employer, such as uniforms or other equipment, you must ensure that the deduction does not result in the employee receiving less than minimum wage.  Spreading the payments out over time can help avoid this problem.  Be specific as to the nature of the deduction.   Do not include lines like “Other,” as these forms will not be approved!   You can use the sample form available on the Connecticut Department of Labor’s website to help you draft your own form.  Different sample forms are available for uniform rental/laundry service and for repayment of advances of vacation time or paid time off.  Remember, even if you do not make any changes, you must still obtain approval to use these forms!
  2. Include language explaining to the employee how to discontinue the payroll deduction if desired.  Make clear that the employee may still be required to repay any amount owed if the deduction is stopped.  This is particularly important if you offer services to employees that will be repaid over time.  For example, a veterinary office might allow employees to purchase care for their own pets, perhaps at a discount.  If the employee stops the payroll deduction used to repay this bill, the employee can still be billed as would a regular customer, but the form should specify this to ensure there is no confusion.
  3. Submit the form to the Connecticut Department of Labor for review.  Begin deductions only after receiving approval.
  4. Make sure the forms are kept up to date with new forms completed whenever an employee’s deductions will change.  Also, if you need to change the form to add new kinds of deductions for any other reason, you will need to have the form approved again.  With this in mind, be sure to draft your form with enough flexibility for future changes, while being specific enough to obtain approval.

Like several of the other laws discussed in this series of Connecticut Employment Laws You Didn’t Know Existed, compliance is not difficult if you know the law exists.  Our team of labor and employment law attorneys can educate you about the laws affecting your company and help ensure you are in compliance.

Connecticut Employment Laws You Didn’t Know Existed – Employment Terms You Need To Put In Writing

Posted in Employer Policies

This is Part 2 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed

Many employers are unaware of a Connecticut employment law essentially requiring offer letters.  Employers must, at the time of hiring, advise employees as to his her rate of pay, hours of employment, and wage payment schedule.  The statute also requires employers to make available policies and practices related to wages, vacation pay, sick leave, health and welfare benefits, and comparable matters.  This can be done in writing or through posted notices.  If these policies change, employees must be notified in writing or through posted notices.

Now that you know about these requirements, how do you comply?  It is not difficult to comply with this statute, but many employers, particularly small ones, take a casual approach to hiring and do not put these employment terms in writing.  In a simple offer letter, set out the employee’s start date, position, rate of pay, work schedule, payment schedule (the day of the week, whether bi-weekly or weekly, etc.), and any benefits you wish to emphasize.  While these are not all required, this letter is a useful vehicle to welcome the new employee on board and clarify the details of the employment relationship.  If the employee is at-will, it is a good idea to mention this in the offer letter as well.  Likewise, it is wise to mention that the terms set out are the current terms, but they can be modified by the employer at any time unless constrained by law or contract.

The requirement to make certain policies available to employees is easily accomplished with an employee handbook.  If any policies change, the handbook should be updated.  Some employers do not have employee handbooks.  While an employee handbook is a good idea even for small employers, if there is no handbook, you can comply with this law by creating policy statements on wages, vacation pay, sick leave, health and welfare benefits, and any comparable matters and issuing these statements to employees.

Although this law imposes some burdens on employers, and noncompliance can lead to penalties, these are steps employers should be taking anyway.  Keeping employees informed of workplace policies minimizes confusion that can be the source of employee resentment or even litigation borne out of a misunderstanding.  Our team of labor and employment attorneys would be happy to assist you in formulating written policies or assisting with any employee issue.

Connecticut Employment Laws You Didn’t Know Existed – Why Your Bi-Weekly Payroll is Probably Illegal . . . and How to Fix It

Posted in Employee Benefits, Wage & Hour

This is Part 1 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.

Do you pay your employees at least weekly?  If you answered no, you are in good company.  Bi-weekly pay (paying employees every two weeks) is probably the most common choice of pay frequency.  However, a quirky feature of Connecticut’s wage payment statute makes weekly payment the default rule.  For most employers, the only way to pay less frequently than once a week is to obtain permission from the Commissioner of Labor.

Fortunately, it is very easy to request permission to pay bi-weekly.  Employers can simply fill out the form available at http://www.ctdol.state.ct.us/wgwkstnd/forms/paywaiver.htm, and within a few weeks, the Connecticut Department of Labor will respond.  The request is almost always granted.  This form can only be used by employers requesting permission to pay bi-weekly.  Employers that wish to pay less frequently (e.g. semi-monthly or monthly) can send a letter to the Connecticut Department of Labor’s Wage and Workplace Standards division stating the reason for the request.  However, such requests are less likely to be granted.  Paying less frequently than monthly is not permitted.

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Keep Your Unpaid Intern Away From the Photocopier!

Posted in Wage & Hour

As summer approaches, many companies are beginning to hire students to work as unpaid interns.  While unpaid internships are a time-honored tradition, they are almost always illegal in the for-profit world.  Typically, the so-called “intern” is actually an employee who must be paid minimum wage and, if applicable, overtime.  Depending on state law, Workers’ Compensation and Unemployment might also apply to these individuals.  Recent years have seen a dramatic increase in enforcement surrounding this issue, and employers can no longer assume their unpaid internships will go unchallenged.  Like with most other employment laws, it does not matter if the individual agrees to an arrangement that is not permitted by law.  ”The intern agreed to work unpaid” and “everyone in my industry does it” will not defeat a lawsuit or Department of Labor audit.

Many employers are under the mistaken impression that if the intern receives academic credit, there is no need to pay the intern.  This is not true.  Although some states require academic credit in order for the intern to be unpaid, this is never the sole factor.

According to the U.S. Department of Labor’s 6-part test, for-profit companies must pay interns at least minimum wage, unless all of the following criteria are met:

  1. The intern must receive training and the training  is similar to what would be given in a vocational school or academic educational instruction;
  2. The training is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under their close observation;
  4. The employer derives no immediate advantage from the activities of the intern, and on occasion the employer’s operations may actually be impeded;
  5.  The intern is not necessarily entitled to a job at the conclusion of the training period; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in training.

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Senate Republicans Filibuster Minimum Wage Bill

Posted in Wage & Hour

The Obama Administration’s goal of increasing the minimum wage to $10.10 has for the moment stalled in the Senate.   A Republican led filibuster has all but killed the President’s hopes of signing the Bill, which would increase the minimum wage by the November mid-term elections.

Senate Republicans, citing concerns about the effects that an increase on minimum wage would have on economic growth, were able to whip up support behind the filibuster, forcing the Democratic majority to withdraw the Bill.

Immediately following the Bill’s withdrawal, President Obama expressed his disappointment and vowed to continue the push in securing the minimum wage increase, which was his primary goal in 2014.   Because the Bill was only withdrawn, the Senate may reintroduce it at any time.

As we reported earlier, Connecticut has already passed and signed a bill which will raise the State’s minimum wage to $10.10 by 2017.  The Bill which failed today in the United States Senate would have impacted other States where the minimum wage still follows the federal rate.

Proposed Connecticut Bill Prohibits Employers From Taking Certain Actions Based on Unemployment Status

Posted in Discrimination, Employer Policies

Have you as an employer ever written in a job posting that only currently employed or recently unemployed applicants will be considered, or denied an applicant because he or she had a history of unemployment?

It sounds counterintuitive at first—like a restaurant turning away hungry people—but some employers may be concerned that unemployment itself indicates a lack of requisite experience or that a long-unemployed individual is motivated for any job at all.  A Connecticut bill currently under consideration would prohibit such hiring practices, following in the footsteps of New York City, New Jersey, Oregon, and D.C.

House Bill 5274, as amended, An Act Concerning Unemployed Individuals and Discriminatory Hiring Practices, would prohibit employers, employment agencies, and temporary help services from taking several actions if they are based solely on a person’s “status as unemployed.”  “Status as unemployed” includes not only current unemployment, but also past gaps in employment, regardless of duration.  The prohibited actions include:  (1) disqualifying a person from employment; (2) refusing to refer a person for employment (or requesting that he or she not be referred); and (3) limiting a person’s access to information about a job.

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Labor Law Posters – The Perils of Too Few or Too Many

Posted in Employee Benefits, Employer Policies, Wage & Hour

Every employer in the United States must post at least some labor law notices.  Many state and federal employment laws come with such a requirement.  While different posters are needed for different situations (for example, based on the employer’s size or industry), no employer is exempt from posting at all.  It may be obvious that failing to meet all posting requirements can result in legal liability.  What is less obvious is that posting inapplicable notices may also result in legal liability – a danger if your company uses an “all-in-one” labor law poster service.

What’s Wrong with Too Many Posters?

Many employers overlook the risks of posting inapplicable labor law posters.  Each year, many employers receive offers to purchase a laminated “all-in-one” poster designed to cover all bases.  But, one size rarely fits all when it comes to the law.  For example, the Family and Medical Leave Act (FMLA) generally applies only to companies with 50 or more employees.  If a 20-employee company posts an FMLA poster, could this statement of employee rights bind the company to provide leave to the extent required by that statute?  At least one court has held that in the right factual circumstances, an employee may be entitled to take leave akin to FMLA leave. 

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Dept. Of Labor Settlement Highlights Importance of Proper Wage and Hour Policies

Posted in Wage & Hour

Seven (7) Long Island restaurants have consented to a settlement with the United States Department of Labor (“DOL”) that includes $1.6 million in back pay as well as over $110,000 in penalties and interest for willful violations of the Fair Labor Standards Act (“FLSA”).  Specifically, the DOL found the restaurants failed to pay employees a minimum wage, paid employees in cash, had illegal tip pools, and failed to keep records of all hours worked.

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