Connecticut Labor and Employment Law Journal

Connecticut Labor and Employment Law Journal

Increased Salary Threshold for Overtime Exemptions Struck Down By Federal Judge

Posted in U.S. Department of Labor, Wage & Hour

In a victory for employers in Connecticut and across the country, a federal district court in Texas last week invalidated the Obama Administration’s Department of Labor overtime regulation which sought to increase the salary threshold for the overtime exemptions under the Fair Labor Standards Act from $455 per week ($23,660 annually) to $913 per week ($47,476 annually) with the thresholds increasing every three years.  For employers who have exempt employees receiving salaries below the proposed increased threshold, this decision allows them to continue to keep those employees exempt at their current salary.  The court’s decision follows its injunction last November to enjoin the rules from being implemented.

“This significant increase would essentially make an employee’s duties, functions, or tasks irrelevant if the employee’s salary falls below the new minimum salary level,” the judge wrote in his August 31st opinion.  “As a result, entire categories of previously exempt employees who perform ‘bona fide executive, administrative, or professional capacity’ [EAP] duties would now qualify for the EAP exemption based on salary alone. . . This is not what Congress intended with the EAP exemption.”

This decision comes as the Trump Administration has begun the process of revising the “white collar” exemption going forward and the Trump-DOL withdrawing the appeal filed by the Obama Administration.

Maximum Leave Policies Can Cost Employers – Big Time

Posted in ADA, Employer Policies

UPS recently agreed to pay a $2M to settle a disability discrimination suit brought by the EEOC relative to its maximum leave policy. The company’s policy required “administrative separation” if an employee was unable to return to work after 12 months.  The EEOC said this inflexible leave policy violated the ADA. In addition to the $2M, UPS agreed to update its policies on reasonable accommodation to include extended leaves of absence; improve implementation of its interactive process; conduct ADA training for management; and submit reports regarding its compliance for 3 years.

What is an inflexible leave policy?

Maximum leave policies (sometimes referred to as “no-fault” or “inflexible” leave policies) provide for automatic or administrative termination of employees after they reach a set leave limit. These policies come in a variety of forms, some simply track applicable FMLA requirements, some limit the amount of leave an employee can take in a given period, and some – as in the UPS case – call for separation after a fixed period, e. g. 6 or 12 months. These neutral absence control policies in the context of workers’ compensation were specifically upheld in Connecticut in Chiaia v. Pepperidge Farms, in which Attorney Christopher Hodgson represented the company.

The EEOC’s position

Despite UPS’ generous maximum leave policy, the EEOC said it violated the Americans with Disabilities Act (ADA) because its automatic termination did not allow the employer and employee to engage in the interactive process as required by the ADA.  According to the EEOC guidance issued in May 2016, an employer must modify its inflexible leave policy to provide additional unpaid leave as a reasonable accommodation unless another effective accommodation would allow the employee to perform the essential functions of his/her job or granting additional leave would be an undue hardship.  The guidance identifies inflexible leave as one of three leave-related employer practices it sees as a violation of the ADA; the other two are (1) 100% healed policies and (2) failure to allow employee transfer to vacant alternative positions.

What do the courts say?

Although EEOC has taken a strong position, there does not appear to be a bright line rule among the federal courts.  In the Second Circuit, which includes Connecticut and New York, courts have held that a reasonable accommodation under the ADA may include offering a limited amount of additional leave over and above a uniformly applied “neutral” leave policy.  See, Graves v. Finch Pruyer & Co. (2nd Cir. 2006) A recent District Court case in Connecticut, the Court took the majority view and held that “a disabled employee’s request for leave to recover from a medical condition that causes a disability may, under certain circumstances, constitute a request for reasonable accommodation under the ADA. The key is an employer’s willingness to consider definite and short extension of leave period, however, the court noted this does not require an employer hold a position open for an indefinite period of time. Green v. Cellco Partnership, (D. Conn. 2016)

Your takeaway

So, although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may, depending on the facts of the particular situation, have to grant leave for a definite period beyond the maximum policy amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause and undue hardship.

Responding to Requests for Employee Leave for Disaster Relief Efforts

Posted in Employer Policies, Uncategorized

In response to Hurricane Harvey’s destruction in Texas and Louisiana, employees may wish to take time off from work to participate in the cleanup efforts.  Employers may wonder what their obligations are when faced with requests for leave.

Public Sector

State employees who are certified disaster service volunteers with the American Red Cross may, with approval of the employee’s supervisor, serve for up to 15 days per year without loss of pay or paid time off.  Municipal employees have a similar opportunity for leave, with an allowance for 14 days per year with approval of the legislative body of the municipality.  Notably, the statutes authorizing this service limit it to the American Red Cross upon the agency’s request, and this leave is available only to certified disaster service volunteers.

Other Requests for Disaster-Related Leave

How should an employer address requests for leave that are not covered by the special provisions above?  First, the employer should determine whether there is an obligation to provide leave.  While there is no Connecticut or federal law requiring employers to provide leave for disaster relief, employers should consider whether other laws apply.  For example, an employee wishing to travel to Texas to care for his displaced parent may have an entitlement to leave pursuant to the Family and Medical Leave Act (FMLA) if the parent has a serious health condition.  Or, an employee may have an entitlement to leave if he or she is called upon for National Guard service related to disaster relief.

If there is no applicable law, the employer should look at its leave policies.  Employers may choose to allow for some variance from the policies, such as allowing employees to use sick time for a reason other than illness or allowing an unpaid leave of absence, but should be prepared to set a precedent.  Employers should also set limits to ensure that its own operations are not unduly impacted.  If a small employer has several employees take time off to volunteer, will the business become the next casualty?  Employers must think about the big picture.  Of course, employers with collective bargaining agreements must follow their terms.

Finally, employers can consider other ways to contribute to the relief efforts.  Fundraising drives can be a great way to allow employees to engage in relief efforts and may be more practical than on-the-ground volunteering in many cases.

Our team of labor and employment attorneys can assist employers with employee leave issues and other human resources matters.  Contact us for assistance in creating or administering employee leave or other employee policies.

Back to School for Employees – How to Design a Successful Tuition Reimbursement Program

Posted in Employee Benefits

A tuition reimbursement program can be a very attractive employee recruitment and retention tool, while simultaneously providing employers with the benefit of a more educated workforce.  Launching a tuition reimbursement program sends employees the message that you value them and their growth enough to invest in their futures.

Such programs can be tax-favored as well.  If you design your program to meet the Internal Revenue Service’s requirements for an “educational assistance program,” the first $5,250 of tuition assistance is excluded from wages for federal tax purposes.

Here are some factors to consider when designing your company’s program:

  • Who should be eligible for the program?  Part-timers or only full-timers?  New employees or only those who have been employed for a certain period?  Certain classifications of employees but not others?  The answers to these questions are within the employer’s discretion, although to receive favored tax treatment, the program must comply with ERISA’s nondiscrimination rules, meaning that highly compensated employees must not be favored over other employees.  In most instances, it should not be difficult to construct eligibility requirements to allow for tax benefits.  Many employers choose to limit eligibility to full-time employees with some tenure of service (such as a year) to ensure that the employee has proven himself or herself to be a valuable employee before undertaking tuition payments.  It may be appropriate to make employees with recent disciplinary issues ineligible for the benefit.
  • What kind of coursework can be reimbursed?  Does it need to relate to the business at all?  How closely must it relate to the employee’s job?  Can an employee take coursework related to other jobs within the company (sometimes done with the hopes of transferring to a different department)? The IRS does not allow tax-favored status for payments made for education related to sports, games, or hobbies, but otherwise does not require the coursework to be job-related.  If your business has a large percentage of college-age employees, consider whether to reimburse coursework in any subject as a recruitment/retention tool for employees pursuing their degrees.  Also consider whether you will require the employee to be enrolled in a degree-granting program or whether the employee can take a single course or enroll in a certificate program.
  • What accreditation will you require?  It is advisable to require that the coursework be provided by an accredited institution.  However, not all accrediting agencies are equal.  Consider requiring that the accrediting agency be recognized by the U.S. Department of Education.
  • How much money will you reimburse and toward what expenses?  Do you want to foot the entire bill or just a percentage?  Will you have a dollar-amount limit by semester, by year, or on a lifetime basis?  Will you pay only for tuition, or also fees, books, supplies, etc.?  Consider how these decisions will impact utilization of the benefit.  For example, if you have a predominantly low-paid, college-aged workforce and choose to pay 20% of tuition costs, will your employees be able to afford the rest, even with financial aid?  If not, the program may be underutilized and the business may not benefit as anticipated.  Remember, only the first $5,250 is eligible to be excluded from wages for federal tax purposes, but this does not limit how much you can offer.
  • Will you require pre-approval of courses?  This is a good idea to ensure that employees do not take courses that don’t meet your program’s criteria and submit the bill only when it’s too late to withdraw.  Requiring pre-approval helps keep everyone on the same page about what will or will not be reimbursed.
  • How flexible will you be with scheduling?  Will you allow employees to switch shifts to attend their desired classes?  Will you allow employees to take time off for exams?  Consider addressing this in your policy.  It is also important to remind employees that coursework must not interfere with work performance and employees are not free to use working time to complete course assignments.
  • What level of success does the employee need to demonstrate in order to receive reimbursement?  Many employers require a grade of “C” or better in order to reimburse coursework.  Some only require a passing grade.  The standards you choose should fit the needs of your business.
  • Will you require continued employment to receive the full benefit? Will you feel that the employee “burned” you if he or she resigns shortly after receiving tuition reimbursement benefits?  Many employers structure the benefit to require the employee to remain employed for a certain period after completion of the coursework in order to receive the full benefit.  This can be done by withholding a portion of the reimbursement until the employee meets this requirement.  More often, the reimbursement is paid upon successful completion of the course with the employee signing an agreement to repay the employer if he or she leaves employment before a certain specified period of time.  It can be a good idea to apply this provision regardless of the circumstances of the employee’s departure, rather than solely if the employee quits.  This is because some employees will, unfortunately, act out to try to get themselves fired so as not to be required to repay tuition.  However, employers should never fire an employee in order to prevent the employee from meeting the time period necessary to keep the reimbursement payment.  This could subject the employer to civil liability on a variety of legal theories.  Employers should be aware that collecting the money back through payroll deductions is often unlawful and, usually, the way to recoup the money is by suing the former employee.

A well-designed tuition reimbursement program can be a great way to build knowledge and skills while boosting employee morale.  Carefully considering how the program is crafted can avoid the buyer’s remorse that comes with handing out reimbursement dollars without adequate safeguards for the company’s interests.

Our team of labor and employment attorneys can assist employers in employee benefits and human resources matters.  Contact us for assistance in creating a tuition reimbursement program or any other employee benefit or policy.

Employers Must Update Their New-Hire Paperwork By September 18th – Again

Posted in Employer Policies

Starting September 18, 2017, all employers will be required to use a new I-9 Form, the form used to verify an employee’s eligibility to work in the United States.  The most recent change to the I-9 was less than a year ago, so it is important to ensure that you are using the edition dated 7/17/17.  The date appears in the lower left-hand corner of the form.

I-9s must be completed on all new hires who will perform work in the United States.  Employers may switch to the new form now or may continue using the old one until September 18.  The new form is available at https://www.uscis.gov/i-9.  (The Spanish form is available as an aid, but outside of Puerto Rico, the English form is the one that must be completed.)

The changes to the form are technical in nature.  The only change of consequence for employers is that the Consular Report of Birth Abroad was added to List C, meaning that it can be used to establish an employee’s identity.

The following is a basic explanation of the I-9 process, which is not changed by the issuance of this new form.

In most circumstances, the I-9 process is fairly straightforward.  The employer must review documents establishing the employee’s identity and eligibility to work in the United States and complete the I-9.  On or before the employee’s first day of work (but not before the employee has accepted an offer of employment), the employee should be provided the I-9 form.  The employee must complete Section 1 no later than the first day of work.  Within three business days of the first day of work, the employee must show the employer original documents (such as a passport, drivers’ license, or Social Security card) that prove the employee’s identity and authorization to work in the United States.  The employer is only obligated to ensure that the documents appear valid on their face and that they pertain to the person in question.  The employer fills out Section 2 of the Form I-9 and copies the employee’s original documents (not required, but recommended).

The process typically is completed one time, when the employee is first hired.  There are limited circumstances when re-verification is required (Section 3 on the form).  If an employee leaves and is rehired within 3 years or if an employee is rehired with a name change, the employee’s status should be re-verified and the employer can either complete a new form or complete Section 3 on the original form.  If the employee is rehired after 3 years, a new form must be completed.   If an employee’s work authorization documents expire, re-verification is required.

If the documents appear to be forged or invalid (such as a Social Security card with a number that is clearly fake or a drivers’ license for another person), the employer should notify the employee that the documents are unacceptable and request appropriate documents.  It is important to note that the employer cannot specify which documents it wants and it should not discriminate between citizens and non-citizens or afford more scrutiny to certain groups.  If the employee cannot provide valid documents, he or she simply cannot start work, even if the employer believes the employee is a citizen or is otherwise authorized to work.

Again, completing the form is normally straightforward; questions tend to arise when an employee provides unfamiliar documents.  The interactive form may make these situations easier for employers.

Federal contractors and employers in certain states are required to use a computer-based verification program known as e-Verify.  E-Verify lets the employer know whether the employee is authorized to work in the United States by validating the information, while employers who only use the I-9 form are engaging in due diligence but are not required to be “right” about whether the employee is actually authorized to work in the United States.  However, employers may not knowingly employ someone who is not authorized to work in the United States.

Our team of labor and employment attorneys can assist employers in ensuring compliance with all applicable labor and employment laws in the hiring process and throughout the employment relationship.  Contact us to arrange a self-audit for your organization.

Connecticut Discrimination Statutes Still Cover Sexual Orientation

Posted in Discrimination

The United States Department of Justice recently filed a friend of the court brief with the Eastern District Court of New York arguing that Title VII of the Civil Rights Act of 1964 does not cover sexual orientation.  However despite what is taking place at the National level, Connecticut has a separate statute which governs discrimination against persons on the basis of sexual orientation.  Connecticut General Statute 46a-81c states that:

It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s sexual orientation or civil union status, (2) for any employment agency, except in the case of a bona fide occupational qualification or need, to fail or refuse to classify properly or refer for employment or otherwise to discriminate against any individual because of the individual’s sexual orientation or civil union status, (3) for a labor organization, because of the sexual orientation or civil union status of any individual to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer, unless such action is based on a bona fide occupational qualification, or (4) for any person, employer, employment agency or labor organization, except in the case of a bona fide occupational qualification or need, to advertise employment opportunities in such a manner as to restrict such employment so as to discriminate against individuals because of their sexual orientation or civil union status.

Employers who are accused of discriminating against an employee based on their actual sexual orientation (or perceived sexual orientation) may face a complaint filed with the Connecticut Commission on Human Rights and Opportunities better known as the CHRO.  Once the complaint process is initiated the employer will have to file an answer, attend a mandatory mediation, and participate in either a fact finding conference, a full investigation, or a combination of both whereby the CHRO may use its authority to subpoena records, subpoena documents, interview employees, and interview other witnesses.  The process is not only very time consuming but can be very challenging for those unfamiliar with the CHRO case process.

If you are subject to a CHRO complaint, time is of the essence since failure to comply may result in a default judgment.  All of our attorneys have handled CHRO complaints and have a proven track record in minimizing employer exposure.  Please call our offices if you are subject to a complaint or would like more information on training for staff or management.

Legislature Expands Pregnancy Protections, Malloy Set To Sign

Posted in Employer Policies

Just before the end of the legislative session, Public Act 17-118: An Act Concerning Pregnant Women in the Workplace, passed and is expected to be signed by the Governor.  Effective October 1st, this Bill amends Connecticut’s existing Pregnancy Discrimination Statute, Conn. Gen. Stat. § 46a-60 by expanding the employment protections provided to pregnant women and requiring employers to provide a reasonable workplace accommodations unless the employer demonstrates that the accommodation would be an undue hardship. The bill also prohibits employers from (1) limiting, segregating, or classifying an employee in a way that would deprive her of employment opportunities due to her pregnancy or (2) forcing a pregnant employee or applicant to accept a reasonable accommodation if she does not need one. It also eliminates certain employment protection provisions related to transfers to temporary positions for pregnant workers.

The significant changes are as follows:

  • The definition of “pregnancy” is expanded to include “a related condition, including but not limited to, lactation.”
  • Frequent or longer breaks, periodic rest, sitting more and assistance with manual labor are considered “reasonable accommodations.”
  • Claiming undue hardship in providing a reasonable accommodation will require the employer to demonstrate four factors in order to deny the request:

A) The nature and cost of the accommodation

B) The Employer’s overall financial resources;

C) Size of the business including location and types of facilities; and

D) The expense and other impact on the employer for granting the accommodation.

The bill also requires employers to provide employees with written notice of their right to be free from discrimination in relation to pregnancy, childbirth, and related conditions, including the right to a reasonable accommodation. Notice must be given to (1) new employees when they start work; (2) existing employees within 120 days of the bill’s effective date; and (3) any employee who notifies her employer of her pregnancy, within 10 days of her notification.  An employer may comply with the notice requirements by displaying a poster in a conspicuous place, accessible to employees, at the workplace with the required information in both English and Spanish.

When an employee raises issues concerning pregnancy accommodation or if you have questions about how to implement best practices based on this changing law, it is best to discuss plans with an experienced attorney.  Our team focuses exclusively on labor and employment issues and can provide assistance.

2d Circuit Court of Appeals reverses $2.6 million jury verdict in disability discrimination case

Posted in ADA, Employer Policies

A pharmacist was terminated after he claimed he was unable to administer vaccinations to customers.  Christopher Stevens sued Rite Aid for discrimination, retaliation and failure to accommodate under the Americans with Disabilities Act (ADA) and other state non-discrimination laws.  The jury awarded him $2.6 million, including $900,000 in non-economic damages.

By way of background, Rite Aid revised the job description for its pharmacists to require an immunization certification and made administering vaccinations an essential function of the job. Stevens, who suffers from trypanophobia (fear of needles), claimed he was disabled under the ADA and requested a reasonable accommodation excusing him from giving injections.  Rite Aid determined that Stevens was not disabled under the ADA, and therefore, it was not required to offer him reasonable accommodation. Instead, Rite Aid informed Stevens that if he did not comply with the vaccination requirement, he would be terminated. Stevens was thereafter discharged for refusing to perform an essential function of his job. For full text of decision click here. Continue Reading

The importance of punctuation: Missing Oxford comma benefits drivers in overtime case

Posted in Employer Policies

What is an Oxford comma? The Oxford comma is an optional comma before the word ‘and’ at the end of a list: for example, “lions, and tigers, and bears… (oh my)”.  While use of the Oxford comma has long been the subject of debate, the First Circuit Court of Appeals in Boston has determined its absence was critical in resolving the appeal in favor of a group of truck drivers in a class action suit in Maine.  The drivers sued the company, Oakhurst Dairy, claiming the company had improperly denied them several years of overtime pay. The company claimed the drivers were exempt from overtime under state statute.  The District Court agreed with the company and granted its motion for summary judgment.  The drivers appealed to the 1st Circuit Court of Appeals.

The sole issue on appeal hinged on whether the phrase “packing for shipment or distribution of” foods referred to a single activity involving packing or two separate activities – packing for shipment and packing for distribution.  The statute in question excluded from overtime “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.”

The drivers claimed that they were entitled to overtime because they were not engaged in packing activities.  The company claimed it was not required to pay overtime because distribution was also excluded under the statute.  The First Circuit, citing the remedial purpose of the overtime law, held that the absence of the Oxford comma rendered the phrase ambiguous, and therefore, summary judgment in favor of the company was improper. If the truck drivers are successful in their class action, the company could be facing hefty overtime payments.

Whichever side of the Oxford comma debate you fall on, the take away here is the importance of attention to detail when drafting documents in order to ensure you are accurately conveying what you intend. While important in everyday life, such details are especially important in drafting documents that will likely impact future activities for years to come, and which may have to be interpreted long after the drafters have moved on.

Our team of labor and employment attorneys has extensive experience drafting documents important to both public and private sector employers, including collective bargaining agreements, policies and procedures, separation agreements, and employment handbooks and can advise you regarding all your labor and employment needs.

Practical Considerations in Complying with New Background Check Requirements for School Employers

Posted in Background Checks

Ever since the enactment of Public Act 16-67 last summer, school employers and contractors servicing them have faced the challenge of complying with new requirements for background checks for employees who will have direct contact with students.  The central aspect of the legislation is a prohibition against offering employment to an applicant for a position with direct student contact unless the applicant is first required:

  • To list the names and contact information for current or former school employers or other employers if the position otherwise caused the applicant to have contact with children;
  • To provide a written authorization consenting to and authorizing current and former employers and the state Department of Education to disclose records and information and to release those entities from liability from such disclosures; and
  • To provide a written statement giving certain information on prior abuse investigations involving the applicant.

The prospective employer must then contact the current and former employers listed and the state Department of Education to conduct a background check, seeking certain specified information.  The law requires the current or former employers contacted to respond to the request for information.

The state Department of Education published a form for employers to use to conduct these checks.  However, the employers cannot rely solely on the form, as it does not include the written authorization for the former employers and the state Department of Education to provide the information.  Some of our clients have experienced resistance, particularly from private-sector employers, to disclosing the information.  It is possible that the lack of a release form is driving this resistance.  Our firm has developed an authorization/release form to fix this problem.  We have also developed an applicant disclosure statement so that the applicant can indicate whether any of the scenarios pertaining to prior abuse investigations apply.  In other words, using the state-developed forms will not, on its own, suffice for meeting the authorization/release and disclosure requirements.

Another issue employers have been facing is determining what it means for a position to involve “direct student contact.”  The background checks are necessary before hiring for positions involving direct student contact, but where should the line be drawn?  We have generally advised that any position in a school building should be treated as having direct student contact.

A similar issue is what it means for a current or former non-school position to have “caused the applicant to have contact with children.”  These are the non-school-based positions that may need to be included in the background check.  It is clear that a day care would need to be checked.  But what if the applicant worked at an ice cream shop?  What about a department store?  We have advised clients to take a common-sense approach and contact the current or former employer if the position likely involved frequent interactions with children, but that it is not necessary if there is occasional, incidental contact.

Public Act 16-67 created several new obligations for school employers and, as is often the case, it may take a few years to work through the logistical implications and implement legislative fixes to certain problems.  For now, employers should make good faith efforts to comply with the law in all respects, as it provides mechanisms designed to help schools avoid hiring employees with a history of child abuse.

Our team of labor/employment and education attorneys can assist with implementation of these new employment requirements for BOE personnel.

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