A tuition reimbursement program can be a very attractive employee recruitment and retention tool, while simultaneously providing employers with the benefit of a more educated workforce.  Launching a tuition reimbursement program sends employees the message that you value them and their growth enough to invest in their futures.

Such programs can be tax-favored as well.  If you design your program to meet the Internal Revenue Service’s requirements for an “educational assistance program,” the first $5,250 of tuition assistance is excluded from wages for federal tax purposes. Continue Reading Back to School for Employees – How to Design a Successful Tuition Reimbursement Program

On January 1, 2017, Connecticut will “ban the box” for private employers, as well as public employers.  “Ban the box” laws prohibit employers from asking questions about criminal background on employment applications, with some exceptions.  Such laws are becoming increasingly common in states and municipalities throughout the United States.

The new Connecticut legislation, known as Public Act 16-83, An Act Concerning Fair Chance Employment, defines “employer” as “any person engaged in business who has one or more employees, including the state or any political subdivision of the state.”  The law prohibits employers from inquiring about a prospective employee’s prior arrests, criminal charges, or convictions on an initial employment application.  There is an exception when the employer is required to do so by state or federal law.  However, it is not clear whether this exception will apply only when the employer is bound to inquire about criminal background on an initial application or if it will apply as long as the employer is required to ask at some point in the process.  A literal reading of the language implies the former.  There is also an exception when a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Notably, the legislation only bans employers from asking about criminal history on an initial employment application.  It does not prohibit asking altogether, nor does it require a conditional offer prior to asking.  Therefore, employers need to check their application forms to ensure they do not ask about criminal background (unless an exception applies), but may ask such questions at any later point in the application process.

Existing state law requires that an employment application form that contains any question concerning the criminal history of the applicant contain a notice, in clear and conspicuous language:

(1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a,

(2) that criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and

(3) that any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

Further, employers may not reject an applicant or terminate an employee based on erased records or because of a prior conviction for which the individual has received a provisional pardon or certificate of rehabilitation pursuant to Conn. Gen. Stat. § 54-130a, or a certificate of rehabilitation pursuant to Conn. Gen. Stat. § 54-108f.

While the ban-the-box legislation does not allow an individual to sue an employer, a complaint may be filed with the state Department of Labor.

Employers should remain aware of other considerations relating to the role of prior convictions in the application process.  Employers in certain regulated industries, particularly where employees will work with children or finances, may have special requirements to inquire about criminal background.  Employers in all fields should ensure that they make carefully reasoned decisions about the relevance of prior convictions to the employment sought; failure to do so could give rise to discrimination charges based on race and national origin, even where a policy is applied evenhandedly.  Finally, before conducting a criminal background check, employers should ensure they are complying with notification requirements of the federal Fair Credit Reporting Act.

Due to the complexity of the law in this area, employers should consider having their applications and other onboarding materials reviewed by a labor and employment attorney.  Further, before taking adverse action (including refusing to hire an individual) based on a criminal conviction, it is advisable to seek counsel, as certain enumerated factors should be considered and documented.

Our team of labor and employment attorneys can assist employers in adjusting to the new criminal background inquiry restrictions and ensuring compliance with all applicable labor and employment laws.

As an employer, you’ve worked hard to put together an attractive benefits package – vacation, insurance, retirement benefits, and maybe even some unusual perks.  But many benefits go unutilized or underutilized, and retirement benefits requiring employee involvement are no exception.  As defined benefit plans – pension plans that provide a set amount of income in retirement – are on life support due to economic factors, most private employers have turned to defined contribution plans (such as 401(k) plans) as an alternative, and many public employers are following suit.  A defined contribution plan is one in which a certain amount or percentage of money is set aside each year by an employer for the benefit of the employee, but how much the employee gets in retirement is determined by market forces.  For employees to have a secure retirement on a defined contribution plan, they need to decide early that they will participate, save early, and invest wisely.  Employers can – and often should – encourage employees to make the most of this benefit so employees and their families are more likely to have their money last in retirement.

Retirement planning should be a matter of attention for employees at any age.  Millennials are entering the workforce in larger numbers, often saddled with crippling student loan debt and struggling to live independently and start families.  These employees may feel they have the least opportunity and incentive to save – their earnings are at the low end of the spectrum due to inexperience and retirement is decades off.  But employers can talk to millennials about the importance of developing a habit for saving and the exponential benefits of compound interest.  Mid-career employees have higher incomes, but may be paying off mortgages and putting children through college.  Employers can encourage these employees to consult with a financial planner (sometimes available as part of the 401(k) plan) to discuss balancing these demands and adjusting their investment portfolios to take on the right amount of risk for their life situations.  As employees near the end of their careers, employers may want to remind them that federal law allows those age 50 and over to make “catch-up contributions” to ramp up their savings.  Employers should steer clear of exerting pressure on employees or offering specific investment advice.

Having the retirement conversation can be beneficial for employees and employers alike.  Employers have the opportunity to show their employees that they care about their long-term financial wellbeing and that they are engaged in helping them succeed.  Financial pressures are a major source of stress for employees, so helping them succeed in this area may lead to a healthier and more productive workforce.  If you match employee contributions or offer profit-sharing contributions, make sure to remind employees of this valuable benefit.  A word of caution to those with employees earning around minimum wage or engaged in wage disputes – employees may not take kindly to such shows of concern if they feel they are underpaid or are not paid enough to afford today, much less the future.  Employers should also take care to avoid coming across as paternalistic.  Finally, employers should avoid stereotyping or making assumptions when speaking with employees.  For example, it would be unwise to assume that an older employee with no children has no financial demands and is therefore prepared for retirement.

What if you do not currently offer a retirement plan and cannot or choose not to do so?  Employees can still contribute to individual retirement accounts (IRAs) provided they meet federal eligibility requirements.  In addition, a new federal retirement account called the myRA is available to those without access to a retirement plan at work and can be funded through payroll deductions.  The myRA has no fees, is easy to understand, and carries no risk of loss.  A limitation to the myRA is that while it functions well as a starter account, it is unlikely to be enough for employees to retire in comfort as there are no participant options for investments and the elimination of risk means these investments are not designed for significant growth.  Balance caps provide another limitation, although many employees will become eligible for employer-sponsored plans long before reaching those caps.  Therefore, the myRA may be a good option for employees who value security over growth.  The myRA is a new option designed to deal with an epidemic of inadequate retirement savings.  States are tackling this problem as well.  Connecticut is exploring a program to mandate that most employers offer retirement plans, so employers should stay tuned for new developments.

Employers can help employees become aware of their options when it comes to retirement to help solve this national crisis while boosting employee relations at the same time.  This is an opportunity that should not go to waste.

Rebecca Goldberg, an Associate at Berchem, Moses & Devlin, P.C., is a labor and employment attorney advising employers on all aspects of the employment relationship.  She regularly advises small to large businesses with everyday human resources questions and concerns, providing clients with cost-effective ways to avoid litigation exposure.  She can be reached at 203-882-4105 or rgoldberg@bmdlaw.com.

 

Since the Affordable Care Act’s enactment in March, 2010, employers with 200+ employees have been awaiting the implementation of regulations that would explain the automatic enrollment rule.  Employers with 200+ employees would have had to enroll employees in the company health care plan automatically, while allowing them the option to decline coverage.  Most employer plans work the opposite way – employees must affirmatively elect to participate.  On November 2, 2015, President Obama signed into law a bill that eliminated this requirement for employers.  Employers may, however, choose to automatically enroll employees (subject to state laws governing payroll deductions).  The repeal of this provision of the Affordable Care Act simplifies the administrative process for employers and ensures that employees do not end up with unwanted and/or duplicative health benefits by virtue of their failure to opt out.

Our team of labor and employment attorneys can assist you in designing legally compliant employee benefit plans and other labor and employment law compliance issues

Connecticut employers need to re-evaluate whether they are covered by the Connecticut Paid Sick Leave Law based on changes to the statute. Broadly speaking, the law requires employers with 50 or more employees to provide up to 40 hours of paid sick leave to certain employees. Earlier this year, the legislature amended the law in a few respects.

Most significantly, the method for calculating whether an employer has 50 employees was simplified. Now, employers are subject to the law if they have 50 or more employees during the company’s payroll for the week including October 1. So, on January 1, 2015, employers would look back at the payroll week including October 1, 2014. If there were 50 or more employees on payroll that week, the employer is subject to the law. But don’t get too clever – it is now unlawful to terminate, dismiss, or transfer employees for the purpose of falling below the threshold. (It appears that an employer may delay hiring until after that payroll week in order to avoid coverage, though.)

Another legislative fix should make administration of the Connecticut Paid Sick Leave Law easier. Employers are now free to set their own 365-day benefit year, rather than using a calendar year. This change should be particularly helpful to educational institutions, as they tend not to use calendar years for benefit purposes.

Employers that are subject to the law should consult competent labor and employment counsel to ensure their policies are in compliance. Employers that do not grant sick leave to part-time workers or that do not allow sick time to be used for all of the reasons permitted by the statute may find themselves out of compliance. The statute requires that a covered employee be able to use paid sick time for a child’s, a spouse’s, or his or her own mental or physical illness, injury, health condition, medical diagnosis, or preventative medical care. In addition, employers must allow the use of sick time for certain reasons related to family violence or sexual assaults. Requesting documentation to justify the use of sick time can also put an employer in violation of the law if not done properly.

Now is the time to look at your policies to ensure they are in compliance. Our team of labor and employment attorneys can assist you in determining whether the Connecticut Paid Sick Leave Law applies to your business, which employees are entitled to paid sick leave, and how to administer leave in compliance with the law.

This is Part 6 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.

Connecticut’s electronic monitoring law requires public and private employers to give prior notice to employees if their activities will be electronically monitored.  Electronic monitoring may take some unexpected forms.  For example, your computer systems likely log all Internet activity by employees.  This would be electronic monitoring, even if you never look at the log.  Other examples of electronic monitoring include alarm codes that identify when employees are in the building, surveillance cameras in non-public areas, or telephones that log or record calls.  Electronic monitoring does not include the collection of information for security purposes in common areas of the employer’s premises which are held out for use by the public, such as a security camera at a retail store.  (A different statute prohibits electronic surveillance in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms, or lounges.)

If you engage in any kind of electronic monitoring, you must give prior written notice to all employees who may be affected, informing them of the types of monitoring that may occur. This notice must be posted in a conspicuous place which is readily available for viewing by its employees. You can use the poster created by the state to meet this requirement.  Make sure you fill in the types of electronic monitoring used!

There are a few instances in which prior notice is not required.  If an employer has reasonable grounds to believe that employees are engaged in conduct that violates the law, violates the legal rights of the employer or other employees, or creates a hostile workplace environment, and electronic monitoring may produce evidence of this misconduct, the employer may conduct monitoring without notice.  The statute also states that any information obtained in the course of a criminal investigation through the use of electronic monitoring may be used in a disciplinary proceeding against an employee.  Also, prior notice is not required for electronic monitoring that occurs off-premises, such as using GPS tracking devices on company vehicles.

While an employee may not sue for a violation of this statute, the Connecticut Department of Labor can levy penalties from $500 to $3,000, depending on whether it is a first or subsequent offense.  It is also possible that courts or administrative agencies would opt not to entertain evidence that was collected in violation of this statute.

Our team of labor and employment attorneys can assist you in keeping up with employee notification requirements and addressing other labor and employment law compliance issues.

This is Part 3 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.

Any time you are having employees pay you – whether through a payroll deduction or by having the employee pay you directly – you are walking into a legal minefield.  Deductions are typically allowed only when there is some benefit being provided to the employee in exchange.  Costs of loss, breakage, and customer theft are treated by the Connecticut Department of Labor as part of the “cost of doing business,” and are almost never recoverable from an employee.  While many employers are familiar with these parameters, many do not realize that most deductions must be authorized in writing by the employee on a form approved by the Commissioner of Labor.  Even more surprising is that the sample form provided on the Connecticut Department of Labor’s website may not be used without approval from the Commissioner of Labor!

So how do employers take deductions lawfully?  First, make sure the deduction is for a permissible purpose – no deductions for loss, breakage, or customer theft!  Some examples of permissible purposes are deductions required or authorized by state or federal law (such as taxes or garnishments) and deductions for contributions into automatic enrollment retirement plans.  These may be deducted without having an authorization form approved by the Commissioner of Labor.  Deductions may also be made if they are authorized by the employee, in writing, for medical, surgical or hospital care or service, without financial benefit to the employer and recorded in the employer’s wage record book.  This written authorization does not need to be approved by the Commissioner of Labor.  Any other deduction must be made pursuant to written authorization on a form approved by the Commissioner of Labor.

If you wish to make deductions requiring approval from the Commissioner of Labor, follow these steps:

  1. Draft a form that clearly explains the purpose of the deductions to be made and leaves room to fill in the dollar amounts to be deducted.  For items of benefit to the employer, such as uniforms or other equipment, you must ensure that the deduction does not result in the employee receiving less than minimum wage.  Spreading the payments out over time can help avoid this problem.  Be specific as to the nature of the deduction.   Do not include lines like “Other,” as these forms will not be approved!   You can use the sample form available on the Connecticut Department of Labor’s website to help you draft your own form.  Different sample forms are available for uniform rental/laundry service and for repayment of advances of vacation time or paid time off.  Remember, even if you do not make any changes, you must still obtain approval to use these forms!
  2. Include language explaining to the employee how to discontinue the payroll deduction if desired.  Make clear that the employee may still be required to repay any amount owed if the deduction is stopped.  This is particularly important if you offer services to employees that will be repaid over time.  For example, a veterinary office might allow employees to purchase care for their own pets, perhaps at a discount.  If the employee stops the payroll deduction used to repay this bill, the employee can still be billed as would a regular customer, but the form should specify this to ensure there is no confusion.
  3. Submit the form to the Connecticut Department of Labor for review.  Begin deductions only after receiving approval.
  4. Make sure the forms are kept up to date with new forms completed whenever an employee’s deductions will change.  Also, if you need to change the form to add new kinds of deductions for any other reason, you will need to have the form approved again.  With this in mind, be sure to draft your form with enough flexibility for future changes, while being specific enough to obtain approval.

Like several of the other laws discussed in this series of Connecticut Employment Laws You Didn’t Know Existed, compliance is not difficult if you know the law exists.  Our team of labor and employment law attorneys can educate you about the laws affecting your company and help ensure you are in compliance.

This is Part 1 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.

Do you pay your employees at least weekly?  If you answered no, you are in good company.  Bi-weekly pay (paying employees every two weeks) is probably the most common choice of pay frequency.  However, a quirky feature of Connecticut’s wage payment statute makes weekly payment the default rule.  For most employers, the only way to pay less frequently than once a week is to obtain permission from the Commissioner of Labor.

Fortunately, it is very easy to request permission to pay bi-weekly.  Employers can simply fill out the form available at http://www.ctdol.state.ct.us/wgwkstnd/forms/paywaiver.htm, and within a few weeks, the Connecticut Department of Labor will respond.  The request is almost always granted.  This form can only be used by employers requesting permission to pay bi-weekly.  Employers that wish to pay less frequently (e.g. semi-monthly or monthly) can send a letter to the Connecticut Department of Labor’s Wage and Workplace Standards division stating the reason for the request.  However, such requests are less likely to be granted.  Paying less frequently than monthly is not permitted.

Continue Reading Connecticut Employment Laws You Didn’t Know Existed – Why Your Bi-Weekly Payroll is Probably Illegal . . . and How to Fix It

Every employer in the United States must post at least some labor law notices.  Many state and federal employment laws come with such a requirement.  While different posters are needed for different situations (for example, based on the employer’s size or industry), no employer is exempt from posting at all.  It may be obvious that failing to meet all posting requirements can result in legal liability.  What is less obvious is that posting inapplicable notices may also result in legal liability – a danger if your company uses an “all-in-one” labor law poster service.

What’s Wrong with Too Many Posters?

Many employers overlook the risks of posting inapplicable labor law posters.  Each year, many employers receive offers to purchase a laminated “all-in-one” poster designed to cover all bases.  But, one size rarely fits all when it comes to the law.  For example, the Family and Medical Leave Act (FMLA) generally applies only to companies with 50 or more employees.  If a 20-employee company posts an FMLA poster, could this statement of employee rights bind the company to provide leave to the extent required by that statute?  At least one court has held that in the right factual circumstances, an employee may be entitled to take leave akin to FMLA leave. 

Continue Reading Labor Law Posters – The Perils of Too Few or Too Many

A recent speech by Labor Secretary Thomas Perez at the IAFF conference provided some details about the changes to the managerial exemption to the Fair Labor Standards Act (“FLSA”).  Significantly, Secretary Perez reiterated that the current salary threshold of $455 is inadequate and that the primary duties test creates an employer friendly “loophole” that is used to prevent many low income employees from earning overtime. 

The last changes to the managerial exemption occurred in 2004 when the salary threshold was raised from $250 to $455.  This was the second increase in the 40 years the exemption has existed.  The remarks by Secretary Perez mirror those made by President Obama back on March 13th that the current $455 threshold is inadequate.  

Continue Reading Obama and Labor Secretary are working to Overhaul Overtime Rules for Exempt Employees