Connecticut Labor and Employment Law Journal

Connecticut Labor and Employment Law Journal

Representing Employers

To Terminate or Not to Terminate: That is the Question

Posted in Discrimination, Employer Policies

If you work or operate a business long enough, it is inevitable that the decision to terminate will be made at some point.  This decision, while not an easy one to make, is compounded by issues that can arise immediately after when the terminated employee believes they were “wrongfully terminated” and seek redress through a number of channels including the Equal Employment Opportunity Commission or the court system.

In order to help shield you from possible claims, the following checklist can aid in deciding that termination is appropriate as well as help mitigate any possible fallout.

If you can answer yes to each of these questions, then there is a good chance that not only is termination appropriate, but that any punitive action by the terminated employee can be disposed of quickly.

  • Is there credible (and documented) evidence that supports termination?
  • Is the rule cited for termination job related?
  • Has the employee received adequate notice that violating this rule can result in termination?
  • Is the termination consistent with past-practice? If not, can you point to (and show) a legitimate business reason as to why termination is appropriate in this instance?
  • Have the prior disciplinary problems been documented and has the employee been made aware of these prior actions?
  • Has care been taken to ensure that any prior discipline did not violate state or federal law?
  • Have you given the employee a chance to explain his or her side of the story?

While the above is a good starting point in assessing whether there is a sufficient basis to terminate the employee, it is always important to speak with your labor attorney or human resources director in order to fully understand any potential exposure as well as additional steps that must be taken in order to effectively terminate the employee as well as shield your business from any possible repercussions.

At Berchem Moses & Devlin, P.C., our labor and employment attorneys have years of experience in handling terminations as well as litigating claims based on wrongful termination both in courts and other administrative agencies.  Should you require assistance in making the decision to terminate call one of our attorneys at (203) 783-1200.

Reminder – Connecticut Minimum Wage Rises to $9.15 on January 1

Posted in Wage & Hour

Connecticut employers must begin paying $9.15 per hour to their employees on January 1, 2015 as part of legislation designed to raise the state minimum wage to $10.10 per hour by 2017.  For restaurant waitstaff who receive sufficient gratuities, the employer must pay $5.78 per hour under the new minimum wage, but the employee must still make at least $9.15 per hour including tips and employers must follow recordkeeping and reporting obligations related to the tip credit.

Employers must also update their workplace posters to ensure they reflect the new minimum wage.  The posters are available from the Connecticut Department of Labor at

Our team of labor and employment attorneys can assist employers in adjusting to the new minimum wage requirements and ensuring compliance with all applicable labor and employment laws.

Snow Days Come With Employer Obligations – Are You Prepared?

Posted in Employer Policies, Wage & Hour

For employers, preparing for winter weather includes ensuring all employees are paid properly on snow days.  Many employers are surprised to learn that their payroll does not take a snow day when their employees do.  While snow days are probably the most common application of the principles discussed in this article, these rules apply to most temporary closures regardless of the reason.

Exempt Employees

Somewhat counterintuitively, exempt employees have greater rights when it comes to temporary closures than non-exempt employees do.  This is because exempt employees (with limited exceptions) are paid on a salary or fee basis, so a reduction in their hours typically cannot trigger a reduction in pay.

For exempt employees, if the business is closed for less than a week, exempt employees must be paid their full salaries.  Under federal law, it is permissible to require the employee to use vacation days or other paid time off to cover the absence, but even if the employee has no available time off, it is not permitted to reduce the employee’s salary.  It is also permissible to require the employee to make up the missed time.  State law may vary on these issues.  For example, Connecticut employers are not permitted to make a deduction from an exempt employee’s paid time off (or vacation, sick, personal, etc.) bank if the worksite is closed.  This restriction does not apply to teachers, attorneys, physicians, and very limited other categories of exempt employees.

If the worksite is open but the employee chooses not to report to work (even if it is for very legitimate reasons, such as impassible road conditions), it is permissible to deduct from the employee’s salary or paid time off bank.  But remember, if an exempt employee performs any work during the day (whether onsite or from home), the employee must be paid for the whole day.  Partial-day deductions from a paid time off bank are allowed, even for exempt employees.  So, if an exempt employee chooses to come in late due to road conditions, a portion of a day may be deducted from the employee’s paid time off bank.

While partial-day deductions in pay are never allowed for exempt employees in the private sector, exempt employees in the public sector may, in limited circumstances, receive partial-day deductions.  This is only permitted when certain conditions are met and the deduction is required by a law, policy, or practice established pursuant to principles of public accountability.  Due to complexities in this area, a competent labor and employment attorney with experience in the public sector should be consulted to determine whether a partial-day deduction is required.

Non-Exempt Employees

Non-exempt employees are subject to much different treatment.  In general, a non-exempt employee must only be paid for hours worked.  Some passive time, such as on-call time, is considered “hours worked,” so it is possible some non-exempt employees will need to be compensated, even if they do not perform any actual work.

Some state laws require some form of payment for non-exempt employees who report to work and are then sent home early.  In Connecticut, employees who work in restaurants (including hotel restaurants) must be paid for a minimum of two hours at their regular rate of pay if they reported or were called to work and were not given adequate notice the day before not to report.  In the case of mercantile employees, there is a four-hour minimum, subject to the same notice requirements.  (A partial waiver is available for mercantile employees in some cases, subject to approval from the Connecticut Department of Labor.)  Other Connecticut employees are not required to receive any “report-in pay.”  In other states, like New York, nearly all non-exempt employees are eligible for report-in pay, subject to specific requirements by industry.  In addition, employers should count these hours as “hours of service” for purposes of the Affordable Care Act.

Recommendations for Employers

As discussed above, there are several circumstances in which an employer may make deductions from pay or a paid time off bank based on inclement weather.  Many employers choose to pay all employees for the full day, without deducting from a paid time off bank, for administrative simplicity, employee morale, or other reasons.  (Of course, a collective bargaining agreement may limit these choices.  Employers with collective bargaining agreements should rely on the applicable contract and past practice to determine what is permissible.)

Whether or not to close the worksite can be a difficult decision and may be influenced by road conditions, the length of employees’ commutes, the nature of the job, whether schools are closed, production requirements, whether telework is possible, employee morale, and the amount of pay at issue.  Unless the employee’s job is of a critical nature (e.g. hospital employees), employers should avoid subjecting an employee to discipline or termination for failing to report to work if the employee feels the road conditions are unsafe.  Employers should communicate to employees beforehand how the employees will be notified of a worksite closure.  Small employers typically will call each employee at home or send an email, while larger employers may announce a closure through a radio station or company website.  Whatever you choose, make sure employees know whether they are expected to report to work.

Our team of labor and employment attorneys can assist you in keeping up with employee pay requirements and addressing other labor and employment law compliance issues.

The New Connecticut Provisional Pardon Law and What you Need to Know

Posted in Discrimination, Employer Policies

On October 1, 2014 Public Act 14-27 went into effect which revamped Connecticut’s provisional pardon law (Conn. Gen. Stat. § 54-130a).  The revisions were based on the recommendations of the Connecticut Sentencing Commission and under this new bill: “a provisional pardon or certificate [of rehabilitation] creates a presumption of rehabilitation. The bill requires the state or an agency that denies employment or a credential based on a conviction for which the person received a provisional pardon or certificate to give the applicant, in writing, the reasons for the denial.”  While Connecticut’s Provisional Pardon has been around since 2005 (P.A. 06-187) the new law makes it illegal for an employer to solely deny employment to an applicant who presents a Certificate of Employability or to discharge or discriminate against someone based solely on a conviction for which the individual received a provisional pardon.

This statute applies to all employers in the State of Connecticut and it bars public and private employers from (1) denying employment based solely on a conviction for which the applicant received a provisional pardon or (2) discharging or discriminating against someone based solely on a conviction prior to being employed for which the employee received a provisional pardon.

According to the Connecticut General Assembly, an applicant who presents a certificate of employability may only have their prior conviction used against them in the employment decision after they consider the following:

(1)   the nature of the crime and its relationship to the job;

(2)   information pertaining to the person’s rehabilitation; and

(3)    the time elapsed since the conviction or release.

What does that mean for your business? Essentially an applicant with a Provisional Pardon cannot be automatically eliminated from employment merely because the conviction exists.  Instead, if an employer believes the conviction will interfere with the job, must carefully evaluate the applicant before making the decision.  In addition, for state and other agencies, the applicant must receive in writing the reasons why they are not being considered for employment.

Since each applicant must be reviewed on a case-by-case basis; coupled with the nuances that are inherent in all hiring decisions, human resource directors and other members of management need to carefully evaluate an applicant who presents a certificate of employability.  When questions or problems come up with provisional pardons, our teams of lawyers are here to assist you in making the proper, informed choice to minimize exposure.

After-Acquired Evidence Permitted to Prove Non-Discriminatory Basis for Termination

Posted in Discrimination, Employer Policies

Most of the time, when an employer terminates an employee, and that employee sues, a court will not let an employer introduce evidence uncovered after the decision to terminate.  However an exception has been added due to a recent decision by the Second Circuit Court of Appeals where it was held that evidence that is uncovered after termination may be used to show that an employer had a non-discriminatory basis for the discharge.

In Weber v. Fujifilm Medical Systems USA Inc., 13-4891-cv(L); 14-206-cv (XAP) (2d. Cir. 2014) the Plaintiff claimed he was fired based on his race and national origin under Title VII of the Civil Rights Act of 1964 and also brought suit alleging breach of contract and tortious interference with a contract.  Over the objections of the Plaintiff, the Defendants were permitted to use evidence uncovered after the termination that the Plaintiff had engaged in misconduct and other irregularities during his tenure.  The District Court allowed the evidence for the limited purpose of showing a non-discriminatory basis for the termination and as a defense to the Plaintiff’s claim of breach of contract.  The jury found the Defendants not liable for discrimination (but liable for breach of contract and tortious interference) and awarded damages totaling over $500,000; far less than he would have been entitled to if the Plaintiff prevailed on the Title VII claims.

In its decision, the Second Circuit found that even though the defendant learned of the evidence only after the Plaintiff was terminated, “Defendants were…not estopped from arguing that the after-acquired evidence of Weber’s role in the [financial] arrangement confirmed their suspicions that he mismanaged [Defendants’] finances.”

While this decision helps employers in defending against discrimination claims where actual evidence of malfeasance is uncovered after termination, care must be taken anytime the decision to terminate is made.  Properly training managers or supervisors helps mitigate the potential for lawsuits.    Contact any of our experienced labor attorneys for training or if you have a discrimination case pending.

Pending Legislation Would Extend Whistleblower Protections for Employees

Posted in Employer Policies

State representatives out of the 95th and 93rd districts have proposed Senate Bill No. 263 which would extend the whistleblower protections afforded to employees who report violations of law and other abuses.  Under the current law, Connecticut General Statutes § 31-51m, an employer may not penalize any employee because the employee reports a violation or suspected violation of law to a public body, participates in an investigation by a public body, or reports child abuse or neglect.  Additionally, as the law stands now, no municipal employer may discharge, discipline or otherwise penalize any employee because the employee reports to a public body unethical practices, mismanagement, or abuse of authority by his or her employer.

The new legislation would extend the whistleblower protections to employees who make internal complaints of violation of law to a supervisor or manager of the employer or who participate in internal investigations of the same.  Curiously, the bill does not extend the same protection to municipal employees who make internal complaints of unethical practices, mismanagement, or abuse of authority.

The bill would also double the time within which an employee may file a civil action from 90 to 180 days, and expand the available remedies to include noneconomic damages, the removal of any discipline or penalty imposed upon the employee, and “future economic damages attributable to a reduction in the employee’s wages in the event that reinstatement of the employee’s previous job is not feasible or is impracticable.”

Superior Court cases have come down both ways on whether the existing law applies to internal complaints even absent the passage of the pending bill.  Employers, then, are advised to investigate all employee complaints made in good faith, both in the event that the existing whistleblower law is again interpreted to include internal complaints, and as a matter of best practices.  Our labor and employment law team is experienced with assisting employers with internal investigations, including whistleblowing and whistleblowing retaliation claims.

Are you Prepared for OSHA’s New Workplace Reporting Rules?

Posted in Employer Policies

Beginning January 1, 2015, the Occupational Safety and Health Administration (“OSHA”) will begin enforcing its new workplace reporting rules which requires quicker reporting of severe injuries within 24-hours and an employment fatality within 8-hours.  The time to report begins when the employer learns of the injury and/or fatality.

Under the new regulations, a severe injury is characterized as:

  • Work-related inpatient hospitalization regardless of duration;
  • All amputations;
  • All losses of an eye

Prior to this change, employers were only required to report fatalities and hospitalizations of three or more employees.

One of the significant changes is that the new severe injury reporting policy will apply to all employers covered by OSHA whereas the old reporting procedure did not apply to employers who were exempt from maintaining illness and injury records.  This means most manufacturing employers as well as Towns and Municipalities will be required to comply with this new severe injury reporting policy and must prepare accordingly.

Because the new reporting rules are only two months away, now is the time to reexamine your policies to ensure you are in compliance as well as get your staff up to speed on OSHA’s requirements.  Our team of labor and employment attorneys can assist you in preparing and examining your policies as well as training staff in proper health and safety reporting.

Legislature Changes Connecticut Paid Sick Leave Law Coverage

Posted in Employee Benefits, Employer Policies

Connecticut employers need to re-evaluate whether they are covered by the Connecticut Paid Sick Leave Law based on changes to the statute. Broadly speaking, the law requires employers with 50 or more employees to provide up to 40 hours of paid sick leave to certain employees. Earlier this year, the legislature amended the law in a few respects.

Most significantly, the method for calculating whether an employer has 50 employees was simplified. Now, employers are subject to the law if they have 50 or more employees during the company’s payroll for the week including October 1. So, on January 1, 2015, employers would look back at the payroll week including October 1, 2014. If there were 50 or more employees on payroll that week, the employer is subject to the law. But don’t get too clever – it is now unlawful to terminate, dismiss, or transfer employees for the purpose of falling below the threshold. (It appears that an employer may delay hiring until after that payroll week in order to avoid coverage, though.)

Another legislative fix should make administration of the Connecticut Paid Sick Leave Law easier. Employers are now free to set their own 365-day benefit year, rather than using a calendar year. This change should be particularly helpful to educational institutions, as they tend not to use calendar years for benefit purposes.

Employers that are subject to the law should consult competent labor and employment counsel to ensure their policies are in compliance. Employers that do not grant sick leave to part-time workers or that do not allow sick time to be used for all of the reasons permitted by the statute may find themselves out of compliance. The statute requires that a covered employee be able to use paid sick time for a child’s, a spouse’s, or his or her own mental or physical illness, injury, health condition, medical diagnosis, or preventative medical care. In addition, employers must allow the use of sick time for certain reasons related to family violence or sexual assaults. Requesting documentation to justify the use of sick time can also put an employer in violation of the law if not done properly.

Now is the time to look at your policies to ensure they are in compliance. Our team of labor and employment attorneys can assist you in determining whether the Connecticut Paid Sick Leave Law applies to your business, which employees are entitled to paid sick leave, and how to administer leave in compliance with the law.

Connecticut Employment Laws You Didn’t Know Existed – Virtually Every Employer Engages in Electronic Monitoring, But Did You Notify Your Employees?

Posted in Employee Benefits, Employer Policies

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

Connecticut’s electronic monitoring law requires public and private employers to give prior notice to employees if their activities will be electronically monitored.  Electronic monitoring may take some unexpected forms.  For example, your computer systems likely log all Internet activity by employees.  This would be electronic monitoring, even if you never look at the log.  Other examples of electronic monitoring include alarm codes that identify when employees are in the building, surveillance cameras in non-public areas, or telephones that log or record calls.  Electronic monitoring does not include the collection of information for security purposes in common areas of the employer’s premises which are held out for use by the public, such as a security camera at a retail store.  (A different statute prohibits electronic surveillance in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms, or lounges.)

If you engage in any kind of electronic monitoring, you must give prior written notice to all employees who may be affected, informing them of the types of monitoring that may occur. This notice must be posted in a conspicuous place which is readily available for viewing by its employees. You can use the poster created by the state to meet this requirement.  Make sure you fill in the types of electronic monitoring used!

There are a few instances in which prior notice is not required.  If an employer has reasonable grounds to believe that employees are engaged in conduct that violates the law, violates the legal rights of the employer or other employees, or creates a hostile workplace environment, and electronic monitoring may produce evidence of this misconduct, the employer may conduct monitoring without notice.  The statute also states that any information obtained in the course of a criminal investigation through the use of electronic monitoring may be used in a disciplinary proceeding against an employee.  Also, prior notice is not required for electronic monitoring that occurs off-premises, such as using GPS tracking devices on company vehicles.

While an employee may not sue for a violation of this statute, the Connecticut Department of Labor can levy penalties from $500 to $3,000, depending on whether it is a first or subsequent offense.  It is also possible that courts or administrative agencies would opt not to entertain evidence that was collected in violation of this statute.

Our team of labor and employment attorneys can assist you in keeping up with employee notification requirements and addressing other labor and employment law compliance issues.

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.