Connecticut Labor and Employment Law Journal

Connecticut Labor and Employment Law Journal

Representing Employers

Connecticut Bans Employer-Enforced Pay Secrecy

Posted in Employer Policies

Connecticut lawmakers want to ensure that employees are free to discuss their wages with one another. A recently enacted law, Public Act No. 15-196, prohibits public and private employers from barring discussions about wages or penalizing employees for discussing wages. The new law, which goes into effect July 1, 2015, protects the rights of employees to discuss their own wages and the wages of co-workers who have voluntarily disclosed their wages. The law does not require the employer or any employee to disclose wages. Rather, it protects those employees who choose to discuss wages.

Notably, the new law creates a private right of action. This means that employees can sue for damages. The statute authorizes compensatory damages, attorney’s fees and costs, punitive damages, and other legal and equitable relief in the discretion of the court. There is a statute of limitations of two years.

In many ways, this prohibition is not new. The National Labor Relations Act (“NLRA”), which applies to virtually every private employer, already prohibits employers from penalizing employees for discussing the terms and conditions of employment, such as their pay. However, the NLRA defines “employee” to exclude many members of management, while the Connecticut law contains no such exclusion. By reaching all levels of management, the new law has the potential to affect “glass ceiling” issues, as women call for equal pay at the higher levels.

Since an employer could violate the new law by maintaining a pay secrecy policy, even if it is never enforced, employers should check their handbooks to ensure no such policy exists. In addition, managers should be trained to know that they cannot shut down conversations among employees about their pay.

Our team of labor and employment attorneys can efficiently draft or update your employee handbook to ensure you are in compliance with all applicable federal, state, and local laws.

A Win for Employers: Appellate Court Holds Punitive Damages Not Recoverable in Discrimination Case

Posted in Discrimination

The Appellate Court of Connecticut, in a long awaited decision, recently held in Tomick v. UPS, 157 Conn. App. 312 (Conn. App. Ct. 2015), that a plaintiff cannot recover punitive damages under Connecticut’s statute prohibiting discrimination in employment, the Connecticut Fair Employment Practices Act (“CFEPA”).  The Court accordingly set aside the jury’s $500,000 award of punitive damages to the plaintiff, who claimed he was discriminated against because of his disability, among other claims.

Following the canons of statutory construction, the Court reasoned that punitive damages, an “extraordinary remedy”, may only be awarded if the statute expressly provides for them.  The relevant provision of CFEPA allows the court to award attorney’s fees and court costs, but not punitive damages in addition.  Other statutes, on the other hand, do expressly allow an award of punitive damages, for example, in cases of discriminatory credit practices with a cap and discriminatory housing practices.  In sum, if the Legislature had wanted to make punitive damages available to a plaintiff in the case of employment discrimination, it knew how to say so but did not.  Attorney’s fees and court costs remain available to prevailing plaintiffs.

The Tomick decision comes as a boon to employers, who have had to factor into their settlement strategies and litigation budgets the uncertainty of an enormous jury award of punitive damages.   In this very case, for instance, the jury’s $500,000 award in punitive damages was 5 times the damages otherwise awarded for the disability discrimination.  If the matter is appealed and the Supreme Court overturns the decision, an unsettled issue is whether the punitive damages should be set by the judge or the jury, the latter of which generally presents greater anxiety for defendant employers.

The Tomick case serves as a reminder to employers to review their own anti-discrimination policies.  Our firm provides guidance to employers in crafting such policies and conducts employee training on discrimination and sexual harassment in the workplace.

New Law Will Restrict Employer’s From Accessing Applicants Facebook Page

Posted in Uncategorized

The Connecticut General Assembly recently passed Senate Bill No. 426 (2015) titled “An Act Concerning Employee Online Privacy.” This new law will prohibit employers from requiring employees or applicants to:  (1) provide their user name and password or any other access to an employee’s personal online account; (2) access an online account in the employers presence; or (3) accept an invite or other invitation from the employer to join a group associated with the employee’s online account.

Unless Governor Malloy vetoes the Bill (which seems unlikely) it will take effect October 1, 2015.  This Bill will apply to both private and public employers with the only exception to the pre-employment screening for law enforcement applicants

Essentially, the Act prohibits an employer from “firing, disciplining or otherwise retaliating against an employee” for refusing to provide access to their online accounts.  In addition it prohibits an employer from refusing to hire an applicant because they did not provide access to their online accounts.

To make sure employers comply, an enforcement mechanism is included which charges the Connecticut Department of Labor to investigate complaints and impose civil fines against violators ranging from $25 against applicants and $500 against employees that can increase to $500 and $1,000 for continuing or repeat violations.

Because of the increase in use of social media and an individual’s online presence, it is important that human resource and personnel directors review their current policies and advise their managers and supervisors about these changes.  Should you need one of our attorneys to review your current policies or to provide training to your managers, please contact us at (203) 783-1200.

Predictability Bill is Introduced Before the General Assembly

Posted in Uncategorized

The Connecticut House has taken up Raised Bill No. 6933 which would require employers (including public sector employers) to begin posting employee schedules at least 21 days in advance.  Employers will also be required to provide advance notice of at least 21 days if the employer changes the schedule and that these changes must be approved by the employee in writing.

Should this Bill be adopted, employers would be required to compensate employees should they change or alter the pre-posted schedule ranging from one hour (if less than 21 days but more than 24-hours) to four hours or the total number of hours the employee would have worked in the shift (if less than 24-hours).

In addition, the Department of Labor will permit aggrieved employees to file charges to recuperate wages up to three times the full amount; with half being retained by the Commissioner of Labor “for the purposes of administrating this section.”  It is no wonder that opponents are calling this bill a “predictability tax” for employers.

While the stated purpose of this Bill is “to provide stability to workers in the state…and to compensate their employees if the employer amends such schedules,” it is obvious to many who testified before the subcommittee that this Bill would pose significant administrative nightmares for employers.

We will keep you posted on this Bill’s progress.

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 http://www.ctdol.state.ct.us/gendocs/labor_posters.htm.

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.

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