Connecticut Labor and Employment Law Journal

Connecticut Labor and Employment Law Journal

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.

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

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