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

The recent Supreme Court decision in Janus v. AFSCME struck down a government union’s right to collect agency fees (usually three quarters of the normal union dues) from government employees who do not belong to the union.  The Janus holding could foreshadow a similar shift in a private union’s ability to collect agency fees from non-members in the private sector.

Private sector employees have a right not to belong to a union.  In Communication Workers v. Beck, the Supreme Court held that the union may not require members to pay for the union’s political activities.  Unions may charge objectors an agency fee, which is slightly less than the regular dues. In Beck, the union contract required employees who do not become union members to pay agency fees in an amount equal to the dues paid by union members. The non-member employees challenged the union, arguing that the union’s expenditure of their fees on activities such as political activities violated the union’s duty of fair representation and the First Amendment.  The court found that the National Labor Relation Act authorizes unions to collect only those fees and dues necessary to perform the duties relating to labor-management issues; it could not collect fees to finance political activities.  The court did not determine whether the First Amendment was violated.

In Janus, the Supreme Court addressed the payment of agency fees in the public sector context.  A majority of the court held that agency fees violate “the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern.”  This specifically refers to financing union activities.  Therefore, public sector employees are no longer required to pay an agency fee because it violates their First Amendment rights.

There are several interesting arguments that could be made with respect applying Janus to the private sector.  While it may seem obvious that all U.S. citizens have rights under the First Amendment, what is not widely known is that the deprivation of a citizen’s First Amendment rights can only be addressed if the violation is done by state action.  There is a line of cases holding that union rules or contracts requiring payment of union dues do not constitute state action, and thus cannot be addressed by the First Amendment.  However, in Connecticut, we have a statute, Section 31-51q, which protects employees in their exercise of rights under the First Amendment.  This could be grounds for an employee to allege, like in Janus, that their payment of an agency fee to a private union violates their First Amendment rights as provided in the cause of action in Section 31-51q. Continue Reading Landmark Decision Could Impact Private Sector Unions

Recently, the U.S. Supreme Court ruled that government workers who choose not to join a union cannot be charged for the cost of collective bargaining and related activities.

In a 5-to-4 decision, a majority of the Court noted in Janus v. AFSCME, Council 31, that “agency fees” violate, “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

As we have reported before, this case stemmed from an Illinois public sector employee who challenged a requirement that government workers who opt out of a union still have to pay partial dues (known as an “agency fee”) to cover the union’s cost of negotiation and other functions associated with policing and enforcing the contract.  This decision overrules the Court’s own 41-year-old precedent, which said workers did not have to pay for unions’ political activities but could be required to contribute to other costs of representation, such as negotiating wages and benefits and processing grievances.  The Court’s decision frees those non-members from having to pay the fees. Continue Reading Janus Decision Expected to Weaken Public Sector Unions and What You Need to Know

Public agencies responding to requests made under the Freedom of Information Act will face a new notification requirement starting October 1, 2018, when requests are made for records contained in an employee’s personnel, medical or similar files.  Importantly, these procedures apply only when requests are made for records contained in such files.  Similar information contained in other records (such as interoffice emails) do not trigger the same protection.

Under the current law, when a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files, and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency must follow a notification procedure designed to allow the employee to object to the disclosure.  Specifically, the agency was required to disclose whatever responsive records would not be an invasion of privacy, but also notify each employee concerned in writing (except if written notification would be impractical due to a large number of employees concerned) and also notify each employee’s collective bargaining (union) representative, if any.  If the employee objected to the disclosure of information after such a notification, the public agency would not disclose it unless and until the Freedom of Information Commission ordered disclosure.   The employee should be given the opportunity to object to the disclosure only of those records whose disclosure could legally constitute an invasion of privacy.

The law remains unchanged with respect to the procedure for information that the public agency reasonably believes would legally constitute an invasion of privacy.  It adds a requirement that whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files, and the agency reasonably believes that the disclosure of such records would not legally constitute an invasion of privacy, the agency shall first disclose the requested records to the person making the request to inspect or copy such records and subsequently, within a reasonable time after such disclosure, make a reasonable attempt to send a written or an electronic copy of the request to inspect or copy such records or a brief description of the request, to each employee concerned and his or her collective bargaining representative, if any.

It is important to note that the public agency must promptly disclose the requested information when it reasonably believes disclosure would not legally constitute an invasion of privacy.  The disclosure in such cases must occur prior to the notification of employees and union representatives.

To determine whether a disclosure could legally constitute an invasion of privacy, public agencies must apply the Perkins test, developed from case law under the Freedom of Information Act.  Under the Perkins test, a disclosure could legally constitute an invasion of privacy if the information sought does not pertain to legitimate matters of public concern and the disclosure of such information is highly offensive to a reasonable person.   By way of example, details of an employee’s medical condition and treatment are generally viewed as meeting the Perkins test, while numerical attendance records are not.

In another update to the Freedom of Information Act, the Freedom of Information Commission will have some discretion to afford relief to public agencies contending with vexatious requesters, including the ability to relieve the public agency of responding to that requester’s Freedom of Information Act requests for up to one year.  This is welcome news for public agencies struggling under the burdens of complying with requests made to encumber or antagonize the public agency.

Our team of labor and employment attorneys regularly assists municipal and board of education clients in complying with Freedom of Information Act requests and regularly defends clients before the Freedom of Information Commission.  Contact us for assistance in handling FOIA requests or FOIC hearings.

The Supreme Court on Monday, in a 5-4 decision in Epic Systems Corp. v. Lewis, No. 16–285 (U.S. May 21, 2018) (consolidated cases), ruled that companies can use arbitration clauses in employment contracts to prohibit workers from banding together to take legal action over workplace issues.  The Court’s decision could affect some 25 million employment contracts.

Writing for the majority, Justice Neil M. Gorsuch said the court’s conclusion was dictated by another federal law, the Federal Arbitration Act which for over 70 years coexisted with the NLRA and during this time permitted individual arbitration agreements.  Gorsuch also noted that the NLRA’s protections on “concerted activity” must only be understood in the context of traditional labor relations matters (such as union organizing and collective bargaining), not civil litigation of claims arising under statutes other than the NLRA: “If workers were allowed to band together to press their claims,” he wrote, “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace.”

The Court also rejected the argument that courts owe deference to the NLRB’s view of things, pointing out that courts do not and should not grant deference to an agency’s interpretation of a federal law outside its sphere of responsibility: “The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written.”

Requiring employees to submit class or collective claims to arbitration on an individualized basis is increasingly common.  Going forward, companies already employing this practice can be confident that the agreement is enforceable.  For employers who have not yet adopted such agreements, they should consider the benefits of doing so.  Our team of labor and employment attorneys can advise you on this topic.

Joining several other states including New York, New Jersey, and Massachusetts, Connecticut is set to enact legislation banning salary history inquiries by employers or their agents.  The General Assembly passed the measure and Governor Malloy is expected to sign it into law with an effective date of January 1, 2019.

The move is part of a trend among several states and municipalities to remove a barrier to gender-based pay equity.  Asking an employee’s salary history, the reasoning goes, allows employers to further entrench gender-based pay disparities by continuing a prior employer’s gender discrimination.  For example, if an employer makes it a practice to hire new employees at 10% above their prior salary in order to lure new hires, an applicant earning $70,000 at a prior job would be hired at $77,000 and an employee earning $80,000 at the prior job would be hired at $88,000 for the same work.  While prior salaries of applicants can vary for many factors other than gender, the aim of legislation like this is to eliminate the echoes of prior employers’ gender discrimination.

There are a few limitations on the ban:

  • It does not apply to any actions taken by an employer, employment agency, or employee or agent thereof pursuant to any federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes;
  • It does not apply if the prospective employee has voluntarily disclosed salary history; and
  • It does not apply to inquiries about other elements of a prospective employee’s compensation structure, as long as the employer does not inquire about the value of the elements of such compensation structure.

Significantly, nothing in the legislation prohibits employers from asking prospective employees about their salary requirements.  In other words, employers may not be permitted to ask what a prospective employee made at his or her old job, but can still ask what salary the prospective employee requires in order to accept the position in question.

In addition, the legislation does not prohibit employers from using salary history in setting compensation, so in theory, if an applicant voluntarily discloses his or her prior salary, it would be permissible to set pay based on it.  However, a recent case from the Ninth Circuit Court of Appeals, Rizo v. Yovino, held that salary history can never be a legitimate basis to pay women and men differently for the same work under the federal Equal Pay Act, so to avoid the possibility of inadvertent gender-based differentials in pay, it is best to avoid using salary history as well.

Under the Connecticut legislation, employers can be liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.

Is this legislation constitutional?  Recently, a salary history ban enacted in Philadelphia was partially enjoined by a federal judge on the basis that it violates the First Amendment’s free speech clause.  The judge determined that the portion of the ordinance banning the employer from using the information to set pay was valid, but blocked the portion allowing the employer to ask about the information.  Thus, it will be interesting to see whether Connecticut’s legislation (which only bans inquiries and not use) will be challenged on constitutional grounds.

Unless and until such a challenge is successful, employers in Connecticut should prepare to comply.  Employers should remove any questions about salary history from their employment applications and any screening instruments that may be used by third party agents, such as recruiting firms.  Employers should also instruct anyone conducting interviews on their behalf not to inquire about salary history.  In addition, when setting compensation, employers should ensure that any differences in compensation among employees performing the same work can be justified by factors other than sex or prior salary.  Legitimate job-related factors can include amount of experience, level of education, ability, and job performance.

Our team of labor and employment attorneys can assist employers with all aspects of employment law compliance, including the onboarding process and avoiding discrimination claims.  Contact us for assistance in addressing any compliance concerns.

Federal law requires employers to verify the identity and employment eligibility of their current and prospective employees and document their compliance using the Employment Verification, Form I-9. U.S. Immigration and Customs Enforcement (“ICE”) Homeland Security Investigations (“HSI”) has the authority[1] to inspect and review employer’s Forms I-9 and conduct workplace raids. Employers in Connecticut and other parts of New England face a fair chance of an I-9 audit and enforcement activity in their place of business.  This note covers compliance with Forms I-9.

A violation for the unlawful employment of an undocumented worker can result in the imposition of fines to employers, the arrest of employers who knowingly employ undocumented workers, and the arrest of workers working without lawful authorization for employment in the United States.[2]

Continue Reading Is your business ready for an inspection from U.S. Immigration and Customs Enforcement?