Only a few months into the new legislative session, Connecticut’s legislators appear ready to tackle some big issues impacting Connecticut employers in 2019.

Although several employment-related initiatives took effect January 1, 2019, including mandatory IRA requirements for private sector employers; expansion of certain health care benefits for women and individuals under 21; and prohibitions on salary history inquiries (see prior posts here and here), Connecticut employers did not see many significant statutory changes in 2018.

2019, however, is shaping up to be different.  So far, new proposed legislation includes the following hot topics:

Paid Family and Medical Leave – Several bills have been introduced to establish a paid family and medical leave program in Connecticut. The current proposal would significantly expand eligibility and qualification criteria and bring Connecticut FMLA in line with the federal entitlement period. (See post here)

Minimum Wage – Two proposed bills which just passed out of committee would provide increases to the minimum wage to reach $15/hour by 2022, another supported by the Governor would phase in increases more gradually and not reach $15/hr until 2023.

Medical Marijuana – Would provide that no employer is required to make accommodations for or allow employees to use or possess cannabis in the workplace.

Non-compete Agreements – Would prohibit employers from requiring certain employees from signing covenants not to compete.

Captive Audience Meetings – Would prohibit an employer from requiring an employee attend or participate in meetings sponsored by the employer concerning the employer’s views on political or religious matters.

Non-disclosure Agreements – Would place restrictions on workplace nondisclosure agreements related to settlement of sexual harassment claims.

Pay Equity – Would “ensure all employees receive fair and equal pay for equal work” (although what that exactly means is unclear).

Janus Decision – In what appear to be responses to last year’s Supreme Court decision in Janus v. AFSCME, one proposal would address the authorization process for employee payroll deductions; another would allow union presence at orientations for new employees.

Interest Arbitration Awards – Would prohibit binding arbitration awards for increased wages pursuant to collective bargaining negotiations from exceeding the level increase reflected in the prevailing Consumer Price Index.

Several of the proposals have made it out of committee, and public hearings have been held on several others. With changes in the Governor’s mansion and the make-up of the legislature following the November 2018 elections, it is likely that some of these proposals will receive a more favorable response than in the past.

The Labor and Employment attorneys at Berchem Moses PC can help employers keep up to date on the legislative changes impacting the workplace and maintain compliance with any new obligations.

Here we are again, another legislative year when the General Assembly appears determined to follow neighboring states Massachusetts and New York and pass legislation creating paid family medical leave in Connecticut.  The current proposal, which has already passed out of the Labor & Public Employees Committee, does far more than create paid family leave; it expands the definition of eligible employees and covered employers and greatly broadens the qualifying circumstances for leave.

As an initial matter, employers should understand that the proposed legislation seeks to fund paid leave entirely by employees through payroll deductions similar to payroll taxes.  Additionally, the legislation brings Connecticut FMLA in line with the federal FMLA and cap leave entitlement at 12 weeks per 12 months, instead of the current 16 weeks every 24 months.  The good news, however, ends there.

Currently, Connecticut’s FMLA requires employees to have worked for 12 months and 1000 hours as a threshold eligibility question.  The proposed legislation eliminates the length of employment requirement, simply mandating that employees must have earned $2,325 in order to be eligible.  As a result, employees may actually find themselves eligible for leave just days after starting employment.

As for covered employers, Connecticut FMLA provisions currently apply to employers with 75 or more employees.  This new bill lowers that threshold to cover all employers with one or more employees.

Finally, the new bill broadens the circumstances under which employees qualify for leave by expanding the universe of family members for whom employees can take leave to provide care.  Currently, Connecticut’s FMLA allows employees to take leave to care for spouses, children or parents with a serious health condition.  The proposed legislation adds siblings, grandparents, grandchildren and “any other individual related by blood or whose close relationship with the employee is the equivalent of a family member” to that list.

The Labor and Employment Practice Group at Berchem Moses, PC is hosting an HR Bootcamp! A labor and employment breakfast seminar series geared toward HR professionals and supervisors on everyday challenges in managing a workforce. The first session, Managing Employee Leave, to be held on March 22nd, will discuss the interplay of FMLA, the ADA and Workers’ Compensation.  For more information and to register for this and other sessions, go to https://www.berchemmoses.com/BMD-News/Seminars.shtml.

The U.S. Department of Labor recently announced a proposed rule that would change the minimum salary threshold for exemption for the so-called “white collar” exemptions – the administrative, executive, and professional exemptions.

The federal Fair Labor Standards Act (“FLSA”) requires that employees receive minimum wage and overtime (calculated at one-and-a-half times the regular rate of pay for hours over 40) unless they are “exempt” from one or both requirements. The most popular exemptions are the so-called “white collar exemptions,” which apply to executive, administrative, and professional employees who meet rigorous criteria based on their duties. To be exempt, these employees must be paid a salary of at least $455 per week and the employer must pay on a salary basis (meaning no docking for partial workweeks, subject to limited exceptions). Doctors, lawyers, and teachers can be exempt under the FLSA even if they are not paid on a salary basis and there is no minimum salary for these employees. (The computer professional exemption has special rules under which employees can be paid hourly, but in any event, there is no computer professional exemption under Connecticut state law.)

The proposed rule would increase the salary threshold from $455 per week ($23,660 annually) to $679 per week ($35,308 annually). Nondiscretionary bonuses and incentive payments (including commissions) may account for up to 10 percent of the minimum salary level under the proposed rule, while discretionary bonuses would not count toward the minimum salary level.  The duties tests are not changing under this rule. The threshold for the “highly compensated employee” exemption increases from $100,000 to $147,414, but Connecticut does not recognize this exemption, so employers should not rely upon it for employees in the state.

Raising the salary threshold is expected to transform many exempt employees into non-exempt employees overnight. Some employers will be able to weather this change better than others. Virtually every employer in the country is subject to the FLSA, even if there is only one employee. This includes non-profits and public sector employers. In Connecticut, where the cost of living is high, the effect of this change may be lower than elsewhere in the country. It is more likely here than elsewhere that employees who meet the duties tests are already earning at least $679 per week. However, non-profit, low-profit, and government employers may find that many of their employees are subject to this rule change and these employers may have more rigid budgets that cannot withstand the impact. Employers with an annual volume of sales or business of less than $500,000 may wish to consult an employment lawyer to see if they are one of the very few employers not subject to the FLSA.

Assuming the rule is ultimately promulgated, employers will need to either raise salaries of affected employees to ensure they meet the threshold or begin treating these employees as non-exempt. Raising salaries is straightforward, but remember that the rule is likely to require periodic increases, so the amount will change going forward. If employers do not wish to raise salaries, the employees must be treated as non-exempt. This means that employers must keep records of their hours worked and they must be paid overtime for hours over 40. It is legally permissible to cap hours at 40 by prohibiting employees from working overtime and some employers may choose to hire multiple employees to do what was once one employee’s job. Collective bargaining agreements may limit employers’ options.

Employers with exempt employees earning less than $679 per week should consider their budgets and operational practices to determine how they wish to comply with the rule if and when it goes into effect.  The last time the Department of Labor promulgated a rule on this subject, it was halted by a court decision, so employers should be prepared for a great deal of uncertainty regarding whether and when this proposed rule would go into effect.  Nonetheless, it is a change that may require significant advance planning, so it is a good idea for employers to examine their payrolls now.

Our team of labor and employment attorneys can assist employers in adjusting to the new white-collar exemption requirements and ensuring compliance with all applicable labor and employment laws.  Contact us to arrange a wage-and-hour self-audit for your organization.

Connecticut employers with employees who work or even who simply reside in Massachusetts must abide by Massachusetts’ onerous new non-compete law.  Under the new law, a provision in a non-compete providing for the application of another state’s (such as Connecticut’s) law is not enforceable if the employee is, and has been, a resident of or employed in Massachusetts for at least 30 days before his or her employment ceases.  The law applies to non-compete agreements entered into on or after October 1, 2018.

Connecticut employers with Connecticut operations and Connecticut non-competes must now be concerned with whether a single employee resides across the border in Massachusetts.  If that is the case, the employer can still use its Connecticut non-compete for other employees, but could not enforce it against the Massachusetts resident.  However, an employer will not always know at the time the agreement is signed which employee(s) will reside in Massachusetts for 30 days before separation.  It appears that if an employee resided in Connecticut and worked in Connecticut when the agreement is signed and the agreement provided for the application of Connecticut law, if the employee then moves to Massachusetts, the agreement will not be enforceable.  This may present significant hardships for Connecticut employers whose contractual benefits can be thwarted by the unilateral action of employees.

Employers who wish to play it safe and craft their non-competes to abide by Massachusetts law must note the following:

  • Only exempt employees can be subject to a non-compete.
  • If the employee is laid off or terminated without cause, the agreement is not enforceable.
  • The maximum duration is one year, unless the employee has engaged in certain acts of misconduct, which may allow for an extension.
  • Non-competes must be presented to new employees with the formal offer or 10 business days before the start date, whichever is earlier.
  • The non-compete must be signed by both parties and must state that the employee should consult a lawyer.
  • The non-compete must provide for “garden leave” or “other mutually-agreed upon consideration.”  “Garden leave” is defined in the statute as payment during the period of the non-compete of 50% of the employee’s highest annualized based salary within the prior two years.  
  • Separation agreements with non-compete clauses are not subject to the new law, but the agreement must provide that the employee has seven business days after signing to rescind acceptance.

Connecticut employers face difficult decisions in light of this new legislation.  Our team of labor and employment attorneys can assist employers with restrictive covenant agreements and keeping up with legislative changes.

If employers haven’t done so already, it’s time to revise job applications and interview questions to eliminate inquiries about past pay history for job applicants.  As discussed in a previous post (here), in May 2018, Connecticut became one of a growing number of states to enact legislation aimed at addressing the pay inequality issue by prohibiting employers from inquiring about a prospective employee’s wage and salary history.

Although Connecticut had previously enacted pay equity legislation (Conn. Gen. Stat. 31-40z), which made it unlawful for an employer to prohibit employees from discussing their wage and salary information, recent amendment to the statute now also makes it unlawful for an employer to inquire or direct a third party to inquire about a prospective employee’s wage and salary history unless a prospective employee has voluntarily disclosed such information, except where such disclosure or verification is authorized by law.  An employer is permitted to inquire about other elements of a prospective employee’s compensation, e.g. fringe benefits, but not the value of those elements.

Conn. Gen. Stat. 31-40z authorizes a direct cause of action for violation of the statute if brought within two years, and subjects an employer to compensatory damages, attorney’s fees and costs, as well as punitive damages if found liable.

The attorneys in the Labor and Employment Law practice group at Berchem Moses, PC are available to answer your questions on the recent amendments to Connecticut’s Pay Equity law, as well as assist you with any labor and employment related matters.

Last week the CHRO released its case data for FY 2018.  Overall, the numbers do not dramatically differ from FY 2017.  However, perhaps not surprisingly given the media coverage of the viral #MeToo movement beginning in October 2017, some notable increases emerged.

The increase in the overall number of complaints filed in FY 2018 rose slightly from FY 2017 (up from 2376 to 2484).  While not alarming, in the past we have seen the number of complaints filed against employers drop during periods of low unemployment such as currently reflected in the U.S. labor market.

Historically, employment claims alleging discrimination based on race, age, physical disability, sex, and color make up the greatest percentage of CHRO complaints.  In FY 2018, however, the number of complaints based on sex jumped more than 20%, elevating sex discrimination complaints to the head of the pack while the number of complaints based on race, age, physical disability and color remained fairly consistent. Even more dramatically, the number of complaints alleging sexual harassment rose by nearly 62% over FY 2017.

The data in Connecticut mirrors national trends. The EEOC released preliminary FY 2018 sexual harassment data in early October showing that the Commission filed 66 harassment lawsuits, including 41 alleging sexual harassment, reflecting more than a 50% increase in suits challenging sexual harassment over FY 2017.    Charges filed with the EEOC alleging sexual harassment increased by more than 12% over the same time period.

The increase in sexual harassment claims and complaints based on sex discrimination coincides with the explosion of media headlines and high profile sexual harassment cases which sparked last year’s #MeToo movement.  Anecdotal information regarding the number of sexual harassment complaints filed with the CHRO in the current fiscal year suggests an even more dramatic rise in the number of these claims in the first half of FY 2019.

What’s the takeaway?

As legislative, legal and cultural shifts addressing sexual harassment in the workplace continue to develop, employers should brace for an increase in the number of sexual harassment and sexual discrimination claims.  However, maybe – just maybe – these shifts will result in long term changes to the culture that allowed this conduct to exist in the first place.

Employers should revisit, review and revise their company’s Sexual Harassment Prevention policy and ensure compliance with Connecticut’s sexual harassment prevention training requirements.  Perhaps more importantly, employers should strive to go beyond the legal requirements in addressing and responding to sexual harassment complaints, and seek to change workplace culture so that these – and other forms of discriminatory conduct – find zero tolerance in the workplace.

The flu cost U.S. employers an estimated $21 billion in lost productivity last year.  The 2018-2019 flu season is just beginning.  What should employers do to avoid crippling productivity?

One option is requiring each employee to be vaccinated each year against influenza.  This option is very effective at limiting the impact of flu in the workplace, but it can also lead to friction with employees who choose not to be vaccinated.  Employers are generally permitted to mandate flu vaccines, but they must consider exemption from the requirement as a reasonable accommodation for an employee’s medical or religious concerns.  At least one federal court has held that veganism could be a valid “religious” objection to a vaccination requirement even if the employee’s veganism is not grounded in a specific religion.  Traditional flu vaccines use eggs, and therefore are not vegan, although alternative vegan vaccines are available.  When an employee is granted an exemption from the vaccination requirement, consideration of alternate measures should be made.  For example, some employers, typically in healthcare settings, require non-vaccinated employees to wear face masks.

Employers should consider how they will handle employees without medical or religious reasons who choose not to be vaccinated.  Absent a contract or other legal requirement limiting an employee’s ability to be fired for any reason, it would be legal to fire such employees.  However, employers must consider whether this is what they want to do and be prepared for addressing the practical ramifications of such a decision.

Employers considering a vaccination requirement should work with employees to generate support for the initiative.  In a unionized setting, employers should consider whether their management rights clauses would encompass a unilateral requirement for vaccination.

Employers can also encourage vaccination, without requiring it, along with other hygiene-oriented measures.  Some options to consider are:

  • Distributing information on the flu vaccine from public health organizations and agencies;
  • Holding vaccine clinics where employees can receive vaccinations at work;
  • Setting vaccine participation rate targets and rewarding the entire workforce if they are met;
  • Encouraging hand-washing (scented soaps can go a long way);
  • Placing hand sanitizer and sanitizing wipes throughout the workplace; 
  • Requiring employees to wear face masks if they are not vaccinated or if they are coughing or sneezing;
  • Sending employees home if they are sick and requiring the use of paid time off, if available, to cover the absence; and
  • Encouraging telecommuting and avoiding in-person meetings during flu season.

Mandating vaccination tends to dramatically increase vaccination rates over even the best of efforts to encourage vaccination, so employers may have strong reasons to opt for a mandate, particularly in healthcare or childcare settings.  

Our team of labor and employment attorneys can assist employers with all aspects of the employer-employee relationship, including creating vaccination programs.

As many Human Resources professionals may recall, last year we saw the first court decision regarding Connecticut’s Palliative Use of Marijuana Act (“PUMA”). The District Court of Connecticut declined to dismiss the case of a plaintiff seeking redress under PUMA, holding that PUMA creates a private cause of action for employment discrimination and, further, that PUMA’s anti-discrimination provision is not preempted by federal law.  With that ruling, the case continued on in litigation and, on September 5, 2018, the same Court issued another decision in the case, providing additional insight into this ever-evolving area of employment law.

For those who do not remember the facts, a brief refresher of the background of the case:  The defendant-employer offered the plaintiff, Katelin Noffsinger, a job contingent on her passing a drug test.  The plaintiff voluntarily informed the defendant that she was qualified under PUMA to use medical marijuana to treat her post-traumatic stress disorder (PTSD).  Nonetheless, the defendant  required her to take the drug test and, not surprisingly, Ms. Noffsinger failed her drug test.  Based on the failed drug test, the defendant rescinded the job offer.  The Court denied the defendant’s motion to dismiss and the litigation continued.  

After completing discovery, the parties both filed motions for summary judgment…and the Court granted summary judgment in favor of Ms. Noffsinger on her employment discrimination claim under PUMA.  The parties agreed the defendant offered Ms. Noffsinger a job and that the defendant rescinded that offer because of a positive drug test result which stemmed from Ms. Noffsinger’s use of medical marijuana pursuant to her qualifying status under PUMA.

The Court rejected the defendant’s position that as a federal contractor, the Drug-Free Workplace Act (“DFWA”) barred it from hiring Ms. Noffsinger. The court found that the employer was not required by federal law to impose a zero-tolerance drug policy, but simply chose to do so.  The court also found no federal law barring an employer from hiring Ms. Noffsinger on account of her medicinal use of marijuana outside of work, rejecting the defendant’s argument that hiring Ms. Noffsinger would violate the Federal False Claims Act.  Lastly, the court rejected the defendant’s argument that PUMA prohibits discrimination only on the basis of one’s status as an approved medical marijuana patient, but not on account of one’s use of medical marijuana.

Ultimately, and importantly, although the court granted Ms. Noffsigner summary judgment, the court rejected her claim for attorney’s fees and punitive damages.  The court reasoned that PUMA does not expressly provide for such damages, and declined to imply punitive damages as a remedy.

Given this decision, employers should understand that PUMA protects a qualifying patient’s use of medical marijuana outside working hours in the absence of being under the influence during working hours.  As such, as with any situation, employers should focus solely on the employee’s work performance and ability to successfully undertake the job at hand.  With PUMA in its infancy and few court decisions to provide guidance, employers should exercise caution when dealing with qualified patients under PUMA and consult an employment attorney prior to taking any adverse action.  

Our team of labor and employment attorneys can assist employers in complying with the complicated landscape of background check laws and ensuring compliance with all applicable labor and employment laws.

Employers conducting background checks of applicants or employees must update the Summary of Fair Credit Reporting Act Rights.  The new notice is available at https://www.consumerfinance.gov/about-us/newsroom/bureau-consumer-financial-protection-issues-updated-fcra-model-disclosures/.  The update to the form is primarily related to information about security freezes.  This change is of little importance to employers, but it is important to update the notice given to applicants and employees in order to be in compliance with the law.  If you use a third-party vendor for background checks, you should ensure it is using the updated notice.

If you conduct background checks but are not familiar with the Fair Credit Reporting Act (“FCRA”), it is crucial to get up to speed.  Seemingly minor technical violations have led to major litigation for employers.

FCRA is a federal law that applies in various contexts.  With respect to employers, FCRA applies to those using “consumer reports,” such as credit checks and background checks.  Before requesting such reports, FCRA requires employers to obtain written consent from the applicant or employee and to distribute the Summary of Fair Credit Reporting Act rights.   The written consent must be given on a standalone form.

If the employer chooses to take an adverse action based on information contained in the consumer report, such as a refusing to hire an applicant based on a criminal conviction, the employer must provide a copy of the report along with a copy of the Summary of Fair Credit Reporting Act rights.  This must be done before taking an adverse action.

After taking an adverse action, the employer must provide notice of the adverse action including:

  • the name, address, and phone number of the consumer reporting company that supplied the report;
  • a statement that the company that supplied the report did not make the decision to take the unfavorable action and can’t give specific reasons for it; and
  • a notice of the employee’s or applicant’s right to dispute the accuracy or completeness of any information the consumer reporting company furnished, and to get an additional free report from the company if requested within 60 days.

Employers are also required to securely dispose of reports when they are no longer being used, such as by burning paper files or erasing electronic files so that the information cannot be read or reconstructed.

As a reminder, Connecticut law limits criminal inquiries on employment applications.  Read more about this law here.  Connecticut law also requires background checks for school employers and their contractors.  Read more about this law here.

Our team of labor and employment attorneys can assist employers in complying with the complicated landscape of background check laws and ensuring compliance with all applicable labor and employment laws.

The U.S. Department of Labor has issued new FMLA Notice and Certification forms for use by employers subject to federal FMLA requirements.  The DOL is required to update these forms every three years under the Paperwork Reduction Act of 1980. The previous forms expired on May 31, 2018, and had been extended monthly until the new forms were released effective September 1, 2018.  Employers should start using the new forms immediately.

Of note, “new” is a relative term here, as the updated FMLA forms are identical to the previous versions – with the exception of the expiration date of August 31, 2021. The new FMLA forms are available on the DOL website at https://www.dol.gov/whd/fmla/forms.htm