Connecticut Labor and Employment Law Journal

Connecticut Labor and Employment Law Journal

Representing Employers

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.

My Employees Want to participate in a National Strike, What are My Options?

Posted in National Labor Relations Board

A new tide of political involvement has swept the nation after the election of President Donald Trump.  Groups of people are marching, participating in Town hall rallies, and organizing at the grass roots level at an unprecedented rate.  Recently, the group that organized the Women’s March on Washington has announced that they are organizing a Woman’s strike which, as the organizers are claiming will entail: “A day of striking, marching, blocking roads, bridges, and squares, abstaining from domestic, care and sex work, boycotting, calling out misogynistic politicians and companies, striking in educational institutions.”

In labor parlance a strike has a very particular meaning and effect and, depending on if the strike is lawful or unlawful, the ramifications of engaging in a strike can be dire.  Typically intermittent strikes, which are short strikes over a series of time used to achieve a common goal, are unlawful.

However, in a recent decision of the National Labor Relations Board, EYM King of Missouri, LLC d/b/a Burger King, 365 NLRB No. 16 (January 24, 2017), the decision of an administrative law judge holding that a nationwide one-day strike at fast food restaurants was lawful.  In the decision, the ALJ noted that the union “has been responsible for coordinating nationwide strikes in the campaign to set the minimum wage at $15 an hour” and had coordinated such strikes several times throughout the country.  However this did not stop the ALJ from finding that the one-day strike was not an intermittent strike and affirmatively proclaimed that “Clearly, a single one-day strike does not constitute intermittent strikes.”  In order to find that the strike was intermittent and, therefore, unlawful, several factors must be analyzed on a case-by-case basis including: “whether the strikes were part of a common plan, whether there was Union involvement, whether the strikes were intended to harass the employer into a state of chaos, whether the strikes were for distinct acts of the employer, and whether the alleged discriminates intended to ‘reap the benefits of strike action without assuming the vulnerabilities of a forthright and continuous strike.’” Based on these factors, the ALJ opined that “the Board has often declined to find that even two work stoppages amount to intermittent strikes without a showing that at least the employees sought to overtake the work site, attempted to work in their own terms, engaged in violence or prevented other employees from working.”  Thus, whether or not the Woman’s strike would be an unlawful intermittent strike may turn on the specific facts of each case.

Even if employees engage in a lawful strike, does not necessarily entitle them to be paid for such activity.  Part of the tradeoff of engaging in a strike is that the employer loses the labor and the employee loses their income.  Of course an employer may grant an employee time off pursuant to a vacation or personal day policy but, typically these days are at the employer’s discretion and are premised on the fact that the employer will have enough staff to carry on their operations.  Thus, depending on operational needs of the employer, such requests do not have to be granted.  Moreover, an employee who calls out sick and is later found to not have been sick may be disciplined for abusing sick leave.  Further, many contracts may contain No-Strike clauses which prohibits employees from striking or refusing to work and offers the employee no protection from discipline or discharge when they participate in a strike.

Because of the nuances and serious ramifications inherent in any strike situation, it is important to obtain legal advice before any strike situation.  Our team of attorneys has vast experience in dealing with strikes and other work stoppages and can help prepare employers and their managers for such situations.

Trump Appoints Philip Miscimarra as Chairman of the NLRB

Posted in National Labor Relations Board

President Trump hatty_sugaras tapped National Labor Relations Board Member Philip Miscimarra to be acting Chairman.  Mr. Miscimarra will replace Mark Gaston Pearce who served as the NLRB Chairman under President Obama since 2011.  Mr. Miscimarra is a graduate of the University Of Pennsylvania School Of Law and the Wharton School of Business.  Prior to joining the NLRB in 2009, he worked for several firms representing employers in Chicago as well as serving as a fellow for the Wharton School of Business Center for Human Resources.

While a Board member Mr. Miscimarra has been a vocal critic of the NLRB’s activist streak enjoyed under the Obama administration where the NLRB reinterpreted existing federal rules to expand its reach.

Most notably was Mr. Miscimarra’s lengthy dissent in the case of McDonald’s USA, LLC, 363 NLRB No. 92 (January 8, 2016) a ruling that concerned the joint-employer liability before it had been proven that an unfair labor practice (“ULP”) had occurred.  In that case, the NLRB ruled that the Administrative Law Judge’s decision: “provides for an orderly presentation of evidence that helps to protect each Respondent’s confidentiality and due process rights, as well as controlling the efficiency and costs of litigation for those individual businesses.” The Board reasoned that preliminary joint employer evidence is necessary to determine whether McDonald’s is a proper party and also potentially probative of the unfair labor charges.

In a scathing dissent, Miscimarra found the NLRB’s ruling to be a clear departure from precedent in order to expand the reach of the General Counsel:

Now, as the train departs for an extended journey, we are discarding decades of Board experience adjudicating these types of claims in a conventional way.  Instead, we are substituting entirely new procedures that—rather than fostering fairness and avoiding undue burdens on private party-litigants—have two primary purposes: (i) to forge ahead with a single consolidated case regardless of its epic proportions; and (ii) to facilitate the General Counsel’s efforts to impose liability on McDonald’s USA for whatever ULP’s are proven to have occurred.  Unfortunately, the Case Management Order accomplishes these objectives by disfavoring the separate respondents and unfairly diminishing their ability to fully participate in relevant proceedings.

In another ruling, Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015), Mr. Miscimarra again dissented from the majority opinion of the Board.  In that case a majority agreed to abandon its automatic “witness statement” test and replaced it with a “balancing test” requiring an employer to determine on a case-by-case basis whether a written statement by an employee-witness must be produced to a union.  This was contrary to the longstanding policy of the NLRB in Anheuser-Busch which had held that there was an exception to disclosure to the union concerning witness statements because of the possibility witnesses (i.e. employees) would be reluctant to give statements absent assurances.  In his dissent Miscimmara found that this new rule would negatively impact an employer’s ability to investigate and, if necessary, remedy workplace misconduct:

When employees step forward to provide information that may involve a coworker’s misconduct, there is little question that they risk coercion, intimidation, harassment, and retaliation, and this risk is especially high if the employer is required to disclose their witness statements to a union.  The rule of Anheuser-Busch protects witnesses from this very real concern.  That by itself is reason enough to adhere to the rule of Anheuser-Busch, but it begets a further reason to do so: because the Anheuser-Busch rules enables employers to promise employees that their witness statements will remain confidential, it encourages employees to step forward in the first place and participate in investigations of workplace misconduct.

Given Mr. Miscimarra’s track record, it would appear the NLRB is, once again, going to be changing course and taking less of an activist role; especially with cases concerning supervisory status as well as temporary and secondary strikes coming down the pipe.

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Recent EEOC Decision Highlights the Importance of Dealing with Third Party Harassment

Posted in Employer Policies

A recent judgment awarded $250,000 in compensatory damages (including emotional distress) resulting from an employer’s inaction against a customer who for more than a year engaged in a pattern of harassment including inappropriately touching the employee and stalking.

In EEOC v. Costco, the EEOC proved that Costco failed to take steps to protect an employee from a customer who engaged in a pattern of harassing behavior.  The EEOC noted that as evidence of Costco’s inaction, it took them more than a year to even ban the customer despite the employees’ repeated protestations.  Because of Costco’s inaction, the employee was left with no choice but to go to the police and obtain an order of protection against the customer on her own.

Based on the company’s inaction, the EEOC argued Costco created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.   As the EEOC Lead Trial Attorney noted: “An employer should not wait until an employee is so fearful that she resorts to seeking a restraining order before intervening against a customer.  Employers should work diligently to ensure that all of its employees have a safe, harassment-free workplace.”

This case is a reminder that under Title VII employers needs to have plans in place to handle complaints by employees against customers, vendors, contractors or even friends of employees.  If an employee complains of harassment from a third-party, the manager or supervisor must treat the complaint as they would any other harassment complaint on the worksite.  This includes promptly investigating the issue and correcting the problem if the complaint can be sustained.  Training for supervisors to address and respond to these matters is also essential to ensure the employer does not run afoul of Title VII or similar state anti-discrimination laws.

Our team of attorneys has decades of experience in drafting harassment policies and training management on responding to complaints.  Providing these services is the first step in avoiding costly litigation and ensuring compliance with the various state and federal statutes.

Employers Must Update Their New-Hire Paperwork By January 22nd

Posted in Uncategorized

Starting January 22, 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.  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 January 21, 2017.  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 new form is essentially a makeover of the existing form, including an option to complete the form electronically.  Although the form may be completed electronically, it still must be printed and signed.  The benefit of the electronic form is that there are small question mark icons next to each blank.  Clicking the icon provides tips for completing the form correctly.  The form will also notify the user of certain errors, such as not entering enough digits on a Social Security number.  Employers may use the paper form if they prefer.  There are some substantive changes to the form, but they are of minor significance.

The incoming Trump Administration is expected to view I-9 compliance as particularly important given the President-elect’s immigration stance.  Employers may have minimized the importance of I-9s in the past, but it is more important than ever to ensure compliance.

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 new 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.

Reminder – Connecticut Minimum Wage Rises to $10.10 on January 1

Posted in Wage & Hour

Connecticut employers must begin paying $10.10 per hour to their employees on January 1, 2017.  For hotel and restaurant employees who normally receive sufficient gratuities, the employer must pay at least $6.38 per hour ($8.23 for bartenders) under the new minimum wage, but the employee must still make at least $10.10 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.

Also, in case you missed it, the new “overtime rule” for salaried employees was blocked nationally on November 22nd.

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

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.

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