Connecticut Labor and Employment Law Journal

Connecticut Labor and Employment Law Journal

Representing Employers

Overtime Rule Increasing Salary Minimum Requirement Blocked Nationally

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

Earlier this year, the U.S. Department of Labor issued a rule requiring employers to pay most employees a minimum of $913 per week in order for them to be exempt from overtime under federal law.  This rule more than doubled the existing salary threshold of $455 per week and was slated to go into effect December 1.  The threshold applies to those exempt under the executive, administrative, and professional exemptions.

A federal district court in Texas just issued an emergency injunction blocking the rule from going into effect.  Moreover, the decision questions the validity of a salary minimum in general, calling into question not just the new rule, but the existing rule as well.  The emergency injunction preserves the status quo by blocking the rule from going into effect on December 1, and based on the court’s declaration that the rule is “unlawful,” a permanent injunction can be expected.  The court determined that the rule, in various respects, exceeded the authority granted by Congress to the Department of Labor under the Fair Labor Standards Act.  The Department of Labor could appeal the ruling, but given the short time remaining in the current presidential administration, it is unlikely that the rule would be defended.  In other words, the rule is likely dead.

What does this mean for employers?  If you have not already increased salaries or restructured pay to comply with the rule, you do not need to do so and can maintain the status quo.  If you already made changes, it can be hard to roll them back with current employees due to the effects on employee morale.  Some employers may choose to do this anyway, some employers may choose to make the effects permanent, and some may choose to return the pay structure to its previous status for future employees.  Collective bargaining agreements should be consulted before altering pay arrangements.  Any plans to reduce an employee’s pay must be communicated to the employee in writing before any work is performed under the new arrangement.

Future developments are difficult to predict, but it is possible we will see courts or the Trump Administration eliminate the existing salary threshold of $455 per week.  Many states, including Connecticut, have their own thresholds.  Connecticut requires a minimum salary of $400 per week for executive, administrative, and professional employees; a simplified analysis of the employee’s duties applies if a threshold of $475 is met.  Since 2004, when the $455 threshold went into effect nationally, the $400 threshold became irrelevant.  If the existing $455 threshold is eliminated, Connecticut employers may be able to pay salaries of as little as $400 per week in some cases without being subject to overtime obligations.  It is quite possible that Connecticut will pass legislation to increase the salary threshold statewide in light of the (apparently) failed effort on the federal level.

For now, the takeaway for employers is that the December 1 deadline is on hold.  What will follow remains to be seen.  Our team of labor and employment attorneys can assist employers in ensuring compliance with all applicable labor and employment laws.  Contact us to arrange a wage-and-hour self-audit for your organization.

The Future of Drug Testing and Employer Drug Policies

Posted in Employer Policies

This election, seven states and the District of Columbia passed expansive marijuana laws that permitted the recreational use of marijuana or cannabinoids.    This means that within these states and the District of Columbia people can openly smoke or ingest cannabis with no criminal repercussions.

While Connecticut has not embraced this libertine attitude toward marijuana use, Connecticut’s Palliative Use of Marijuana Statute (Conn. Gen. Stat. § 21a-408 et seq.) permits the use of marijuana by qualifying patients to treat certain medical conditions.  This statute also prohibits an employer from refusing to hire, disciplining, or discharging an employee because of their status as a qualifying patient or primary caregiver.  Conn. Gen. Stat. § 21-408p(3).

However, this issue can be problematic for private employers who conduct reasonable suspicion or random drug tests pursuant to Conn. Gen. Stat. § 31-51t et seq. or through a collective bargaining agreement for municipal employers.  It also raises questions about what an employer should do if an employee comes and/or returns to work under the influence of medical marijuana.

For starters: employers can still restrict employees from coming to work under the influence of drugs even if those drugs are medically required. Having a drug use policy that lays out what is prohibited as well as explaining what action will be taken for violations is imperative.  This policy should be provided to employees or posted in a highly visible area to put employees on notice.

In addition, drug testing may still be used especially if the business falls under federal regulations (which still prohibit the use of marijuana as a class 1 narcotic).  These businesses may employ CDL drivers; drivers whose occupation is considered “safety sensitive”; or who otherwise fall under the regulations of the Federal Motor Carrier Safety Administration.  In addition businesses who receive federal grants or who are considered a federal contractor may be required under the Federal Drug Free Workplace Act to have a policy that prohibits the “unlawful manufacture, distribution, dispensation, possession or use of a controlled substance” as well language explaining what remedial action that will be taken for violations.  If a federal regulation does require drug testing, it is important to ensure your drug testing policy includes all required provisions of the regulation or else civil fines (and in some cases debarment from federal contracts) can ensue.

Because this issue is evolving, and medical marijuana may open the door to a number of other issues (including the Americans with Disabilities Act and the State and Federal Family and Medical Leave Act) it is best to speak with an attorney about drafting a drug use policy and/or a drug testing policy.  Our attorneys are well versed in this facet of the law and have decades of experience drafting drug use and testing policies as well as advising employers on best practices.

Do You Need to Provide Employees Time Off to Vote?

Posted in Employer Policies

Election Day is rapidly approaching and voter turnout is expected to be particularly high.  While many states have laws providing time off for employees to vote, Connecticut is not one of them.  How should employers handle requests for time off to vote?

Polls in Connecticut are open from 6 a.m. until 8 p.m.  A voter only needs to be in line by the time the polls close in order to be permitted to vote.  In most cases, the hours should be sufficient to allow employees to vote either before or after work.

However, in some cases an employee will not have sufficient time to vote before or after work.  Many states are addressing these issues by allowing “early voting,” where voters can vote on days other than Election Day, reducing wait times and allowing more flexibility if time off is needed.  Early voting is not an option in Connecticut.  One option available to Connecticut voters is to register for an absentee ballot.  The deadline to request an absentee ballot is November 7, 2016.  Absentee voting is permitted for a variety of reasons, such as illness, service in the military, etc.  A voter can receive an absentee ballot because of his or her absence from the town in which he or she is registered to vote for all hours of voting on Election Day.  Employees working in the same town in which they vote would not be eligible for an absentee ballot on this basis, even if they are working a shift that covers all hours.

Many employers choose to provide flexibility for employees who need to come in late, leave early, or take an extended lunch break in order to vote.  However, this is not a legal requirement.  Non-exempt employees who take time off can be required to use paid time off or to take the time unpaid.  However, in the case of an exempt employee, partial day deductions from pay are not allowed in this circumstance, but can require an exempt employee to use paid time off to cover the partial absence.

In deciding whether to allow time off to vote, employers should consider operational needs, employee morale issues, collective bargaining agreements (including past practices), and the anticipated time employees will need at the polls.  Employers should also remember that employees may spend a great deal of time talking about the election and that political speech in the workplace is generally protected in Connecticut.

Our team of labor and employment attorneys can assist you in all aspects of labor-management relations in the public and private sectors.

Retaliatory Intent of Employees May Be Imputed to Employer in Title VII Retaliation Claim

Posted in Discrimination

The Second Circuit recently adopted the “cat’s paw” theory of liability for retaliation claims brought under Title VII, holding that “an employee’s retaliatory intent may be imputed to an employer where the employer’s own negligence gives effect to the employee’s retaliatory animus and cause the victim to suffer an adverse employment decision.” Vasquez v. Empress Ambulance Service, Inc., Docket No. 15-3239-cv (Calabresi, J. August 29, 2016)

The Plaintiff, Andrea Vasquez, was an EMT with the defendant, Empress Ambulance.  She was the recipient of unwelcome sexual advances from a co-worker, Tyrell Gray, which she immediately reported to Empress.  Empress undertook an investigation that consisted exclusively of evidence from Gray, which he had doctored to make it look like Vasquez was the aggressor.  Empress refused to consider any contradictory evidence offered by Vasquez and fired her for sexual harassment.  Vasquez brought suit against Empress and Gray, alleging she was wrongfully terminated in retaliation for filing a sexual harassment complaint in violation of Title VII and New York Human Rights Law.  The district court dismissed her claim, holding that the retaliatory intent of Gray, a low-level employee without any decision making authority, could not be imputed to Empress, and, therefore, Empress could not have engaged in retaliation based on his actions. The Second Circuit disagreed.

In order to establish a retaliation claim under Title VII, an employee must show the employer discriminated or took an adverse employment action against him/her because of his/her opposition to an unlawful employment practice.  The employee must also show a connection between the adverse employment action and his/her participation in a protected activity. The term “cat’s paw”, derived from an Aesop’s fable, refers to a theory of liability involving an employee who suffers an adverse employment action by a decision maker who does not have a discriminatory motivation but who has been “manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.”

In Vasquez, the Second Circuit, in holding that the “cat’s paw” theory of liability can be used to support a claim of retaliation under Title VII, noted that it’s adoption of this theory is consistent with long standing precedent in the Circuit that “a Title VII plaintiff is entitled to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias has played a meaningful role in the [decision-making] process.”

In addition to adopting the “cat’s paw” theory, the court held that, under agency principles, such liability could be imputed not only to supervisors, but to low ranking employees, where the employer’s negligence gives effect to the retaliatory intent of that employee. Here, the Second Circuit determined that Empress’ refusal to look at any evidence other than that provided by Gray was sufficient to allege negligence in conducting its investigation of Vasquez’s allegations.

The Circuit court emphasized that its ruling should not be interpreted to mean that an employer will be held liable simply because it acts on the information of a biased co-worker or because the employer was reached an incorrect conclusion regarding alleged employee misconduct, but “only when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee and therefore affords that biased employee an outsized role in its own employment decision, can the employee’s motivation be imputed to the employer an used to support a claim under Title VII.”

The take away is that employers should be aware of potential biases and motivations of supervisors and witnesses when considering employee discipline, particularly in discharge cases.  Any investigations should be thorough, fair and well-documented to reduce the potential for liability based on employer negligence for failure to recognize improper animus.

Public Act 16-67: New Hiring Requirements for Board of Education Personnel

Posted in Employer Policies

Effective July 1, 2016, local or regional boards of education, governing councils of state or local charter schools and inter-district magnet school operators (collectively “BOEs”), are going to have to follow new requirements for hiring education personnel.  The state legislature recently enacted Public Act 16-67 (“the Act”) in response to a new provision in the federal Every Student Succeeds Act (“ESSA”). The new ESSA provision, entitled “Prohibition on Aiding and Abetting Sexual Abuse”, is aimed at preventing school employees who have engaged in sexual misconduct with students from being passed from one school district to another, by requiring states, state educational agencies and local school districts that receive federal funding to establish laws, regulations and policies that prevent employment of school personnel where there is reason to believe that person has previously engaged in sexual misconduct with a student or minor.

Who is impacted by the new requirements?

The Act has broad application and seeks to identify potential predators earlier in the hiring process. Significantly, the Act applies to applicants, rather than those offered employment, and prohibits the employment of any applicant who fails to meet the new requirements.  The Act makes no distinction between certified and non-certified personnel, but instead applies to all “applicants for a position, including any position which is contracted for, if such applicant would have direct student contact”.  “Direct student contact” is not defined by the Act, but positions with direct student contact would include teachers, administrators, paraprofessionals, behavioral therapists, coaches, food service workers, custodians, clerical/administrative support staff in the schools, and school nurses.  There are specific provisions for temporary positions (less than 90 days), substitute teachers and contractors, but even applicants for these positions must comply with the requirements for criminal and employment background checks.  Student employees remain excluded from the requirement of a criminal background check under Conn. Gen. Stat. §10-221d.

What is required under the Act?

The Act imposes significant changes on existing laws regarding hiring of education personnel, specifically impacting Conn. Gen. Stat. §§ 10-221d (criminal and child abuse registry background checks), 10-222c (hiring policy) and 10-145 (substitute teachers). Continue Reading

Unionized Employers May Have Less Than They Bargained For

Posted in National Labor Relations Board

A recent decision from the National Labor Relations Board (“NLRB”) may significantly weaken the “management rights” clauses found in many collective bargaining agreements.  A management rights clause reserves certain rights to management, often anything not covered by the collective bargaining agreement.  When a right is reserved to management, it can be changed unilaterally by the employer without bargaining with the union.

The recent NLRB decision, Graymont PA, Inc., 364 NLRB No. 37 (June 29, 2016), could have a major impact on the effectiveness of broad management rights clauses utilized by unionized employers in the private sector; unionized public employers are not directly subject to the impact of the decision because they are not governed by the National Labor Relations Act, but the decision could still serve as persuasive authority in public-sector decisions.  In Connecticut, the State Board of Labor Relations has long required such specificity, so this is not a change for public-sector employers in the state.  This decision serves as a reminder of the importance of careful drafting in this area.

In the Graymont PA case, the collective bargaining agreement between the employer and the union contained a fairly typical management rights clause.  It provided that the employer “retains the sole and exclusive rights to manage; to direct its employees; to evaluate performance, . . . to discipline and discharge for just cause, to adopt and enforce rules and regulations and policies and procedures; [and] to set and establish standards of performance for employees. . . .” The employer decided to change work rules, the absenteeism policy, and the progressive disciplinary policy with notice to the union.  The employer denied the union’s information request and efforts to bargain with the employer over the changes.  The NLRB held that the employer failed to meet its burden of proving that the union had “clearly and unmistakably” waived its right to bargain over these changes, notwithstanding the language of the management rights clause.  Had the management rights language specifically referenced work rules, absenteeism, and progressive discipline or had the employer been able to show that the parties “fully discussed and consciously explored” these topics during negotiations, the outcome may have been different.

What this means for unionized employers is that management rights clauses must be quite specific in order to rely on them as waivers of the union’s right to bargain over changes to the terms and conditions of employment.  As a practical matter, at the next round of negotiations, employers may find that they need to make bargaining concessions just to achieve the management rights outcomes they thought they already had.  When considering changes to the terms and conditions of employment, unless the topic at hand is specifically enumerated as a management right, employers should meet with the union before making changes and respond to information requests from the union.

Our team of labor and employment attorneys can assist you in all aspects of labor-management relations in the public and private sectors.

As Election Season Heats Up Employers Need to Tread Lightly About Employee Speech

Posted in Employer Policies

Election season is here and the evidence can be viewed all around an employer’s campus: from bumper stickers on the cars in the parking lots; buttons festooned to employees; even screen savers on company computers; now more than ever broadcasting your support is easy.  However, with that support may come problems for the workplace.

Connecticut’s free-speech statute Conn. Gen. Stat. §31-51q protects an employee (acting in his or her private citizen capacity and not as an agent of the employer) from discharge or discipline for engaging in speech that would be protected by the First Amendment of the United States Constitution or Sections 3, 4 or 14 of the Connecticut State Constitution.  This includes what is called “political speech.”  Stated differently, an employee who voices support (such as campaigns for or speaks positively/negatively about a particular candidate) may not suffer any reprisal from the employer merely because the employer disagrees with that particular political philosophy.  This includes discipline (demotions, write-ups, suspensions etc.) and discharge based on that speech.

However, much like other issues concerning free speech rights, Conn. Gen. Stat. § 31-51q tapers the rights of employees from engaging in speech that “substantially and materially interferes with the employee’s bona fide job performance or the working relationship between the employee and the employer.”  Thus, while an employee may show support toward a particular candidate, that support cannot disrupt the business operations of the employer.  In other words, if the conduct of the employee is consuming so much of his or her working time; leading to political fights with other employees; and/or resulting in substandard work product or harm to business relationships, discipline is appropriate.

Given the nuances of Conn. Gen. Stat. § 31-51q and free speech laws in particular, it is always a good idea to consult with an attorney well versed in free speech rights in the workplace.  Our attorneys have handled these issues for both public and private employers and are familiar with this changing area of the law.

Department of Labor Updates Two Employment Law Posters

Posted in U.S. Department of Labor

Employers must immediately update their federal labor law posters.  The United States Department of Labor, with little notice, issued new posters related to the Fair Labor Standards Act and the Employee Polygraph Protection Act.  The new posters are available for download here and here.  It is important to ensure you are posting the correct posters at all times, including all required state and federal posters.  The use of “all in one” posters may not guarantee you are in compliance.

Our team of labor and employment attorneys can assist employers in determining the correct workplace postings and ensuring compliance with all applicable labor and employment laws.

State Board of Mediation and Arbitration increases filing fee

Posted in Grievance Arbitrations

On June 10, 2016, the State Board of Mediation and Arbitration (SBMA) announced it would be raising the filing fees for grievance arbitration for the first time in at least 17 years (the last time the regulation was amended). Effective July 1, 2016, the fee for submitting a grievance to the SBMA for arbitration took a huge jump from $25 to $200.  (Regs., Conn. State Agencies, §31-91-24)  The measure was one of a host of fee increases enacted to implement the revenue enhancement measures set forth the Governor’s FY17 budget.

It will be interesting to see if the increase has a chilling effect on the number of grievances filed by the unions.  At the very least, perhaps it will force them to be more selective in the types of matters they choose to advance to arbitration.  Of course, the increased fee also has to be paid by the employer and may significantly impact labor costs in the already fragile budgets of municipal employers, still reeling from cuts in State funding to municipalities, and could be used as leverage by unions with large coffers to negotiate favorable resolutions short of arbitration.

Stay tuned.

Connecticut Supreme Court: Unpaid volunteers not employees for purposes of State’s employment anti-discrimination laws

Posted in Wage & Hour

In a recently released decision, CHRO v. Echo Hose Ambulance, et al, a unanimous Supreme Court affirmed the Appellate Court’s dismissal of the CHRO’s appeal of a human rights referee’s determination that a volunteer was not an employee for purposes of Connecticut Fair Employment Practice Act, Conn, Gen. Stat. §461-60, et seq. (“CFEPA”) The issue before the Court was whether the Appellate Court properly applied the remuneration test to determine employee status.

Brenda Puryear filed a CHRO complaint against the City of Shelton and Echo Hose Ambulance (a volunteer ambulance corps) on behalf of her minor daughter, Sarah Puryear, alleging racial discrimination under both federal (Title VII) and state (CFEPA) antidiscrimination statutes. Sarah was a volunteer in the Echo Hose’s “precepting program”, but was not voted in as a member of Echo Hose Ambulance. The complaint alleges that Sarah was harassed and treated differently in terms of discipline based on her race and color.  The Human Rights Referee dismissed Sarah’s claim after applying the federal remuneration test to determine Sarah was not an employee and, therefore, not protected under either statute. The CHRO appealed and the trial court dismissed the appeal, the Appellate Court affirmed and the Supreme Court thereafter granted certification on the limited issue of whether the Appellate Court properly applied the federal “remuneration test” rather than the State’s common law “right to control” test to determine an “employee” under CFEPA.

The Court determined that the circular definition of an “employee” found in CFEPA (“any person employed by an employer”) was “unhelpful” to its analysis and followed precedent in looking to the federal court employment decisions for guidance in construing CFEPA. The federal courts employ two tests in determining whether an individual is an employee under Title VII, which uses a “virtually identical” definition of employee: The “right to control” test and the “remuneration test”.

The Supreme Court rejected the “right to control” test proposed by the CHRO, agreeing with the Second Circuit that “a test designed to distinguish employee from independent contractor is ill-suited to distinguishing employees from volunteers.”  Instead the Court held that the remuneration test – which was used to address circumstances where it was not clear whether an individual had been hired – was better suited for such a determination.

The remuneration test involves a two-step inquiry: First, as a threshold issue, a volunteer is required to show remuneration.  If remuneration could be established, then – and only then – would the court analyze the employment relationship under the agency test. The Court acknowledged that remuneration was not limited to salary or wages, but could include “indirect benefits not merely incidental to the activity performed.” What exactly that might entail is left for another day.

The Supreme Court also rejected the CHRO’s argument that the legislature’s subsequent enactment of P.A. 15-56, “An Act Protecting Interns from Workplace Harassment and Discrimination”, clarified the existing law to protect volunteers like her. The Court held that P.A. 15-56 expanded protection to a “narrowly defined class of persons – unpaid interns – to which Sarah does not belong.”

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