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

Employers must immediately update their federal labor law posters.  The United States Department of Labor, with little notice, issued new posters related to the Fair Labor Standards Act and the Employee Polygraph Protection Act.  The new posters are available for download here and here.  It is important to ensure you are posting the correct posters at all times, including all required state and federal posters.  The use of “all in one” posters may not guarantee you are in compliance.

Our team of labor and employment attorneys can assist employers in determining the correct workplace postings and ensuring compliance with all applicable labor and employment laws.

On June 10, 2016, the State Board of Mediation and Arbitration (SBMA) announced it would be raising the filing fees for grievance arbitration for the first time in at least 17 years (the last time the regulation was amended). Effective July 1, 2016, the fee for submitting a grievance to the SBMA for arbitration took a huge jump from $25 to $200.  (Regs., Conn. State Agencies, §31-91-24)  The measure was one of a host of fee increases enacted to implement the revenue enhancement measures set forth the Governor’s FY17 budget.

It will be interesting to see if the increase has a chilling effect on the number of grievances filed by the unions.  At the very least, perhaps it will force them to be more selective in the types of matters they choose to advance to arbitration.  Of course, the increased fee also has to be paid by the employer and may significantly impact labor costs in the already fragile budgets of municipal employers, still reeling from cuts in State funding to municipalities, and could be used as leverage by unions with large coffers to negotiate favorable resolutions short of arbitration.

Stay tuned.

Connecticut employers must begin paying $9.60 per hour to their employees on January 1, 2016 as part of legislation designed to raise the state minimum wage to $10.10 per hour by 2017.  For restaurant waitstaff who receive sufficient gratuities, the employer must pay $7.82 per hour under the new minimum wage, but the employee must still make at least $9.60 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.

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.

This is Part 4 in a 6-part series on Connecticut Employment Laws You Didn’t Know Existed.

Have you issued discipline, fired an employee, or even given a written performance evaluation since October 1, 2013?  If so, you most likely violated a new provision in Connecticut’s Personnel File statute, which applies to private-sector employers.  The new provision requires employers to state on any disciplinary documentation, termination notice, or performance evaluation that the employee has the right to submit a written statement disagreeing with the contents.  Employees in Connecticut and several other states have long possessed this right, but the obligation to affirmatively notify the employee of this right is unique to Connecticut.  Employers should update their forms with “clear and conspicuous language” explaining this right.  We suggest putting the following statement in a 12-point (or larger) bold font: “Should you disagree with any of the information contained in this document, you may submit a written statement explaining your position.  This statement will be added to your personnel file.”  If the employee provides such a statement, it should be included any time the personnel file is being given to a third party.  (Other than certain limited exceptions, information maintained in a private-sector employee’s personnel file may not be shared without the employee’s consent.)

Importantly, employers must provide copies of documentation of disciplinary actions within one business day after the disciplinary action is imposed.  If the employee is terminated, any documented notice must be given immediately.  It remains unclear what, if any, notice is required for other situations, such as verbal warnings or internal memos regarding an employee’s performance.

At the same time that these requirements were added, the legislature clarified certain other requirements pertaining to personnel files.  Current employees must be granted access to inspect or copy their personnel files within 7 days of a written request.  Former employees must be given access within 10 days, but if the request is received more than a year after termination of employment, there is no obligation to comply.  Connecticut employers are not required to maintain personnel files, but if they do, they must be kept for at least one year after termination of employment.

Which documents must be provided in response to such a request?  Any documents “pertaining to a particular employee that are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action including employee evaluations or reports relating to such employee’s character, credit and work habits” make up the personnel file, even if they are kept elsewhere.  “Stock option or management bonus plan records, medical records, letters of reference or recommendations from third parties including former employers, materials that are used by the employer to plan for future operations, information contained in separately maintained security files, test information, the disclosure of which would invalidate the test, or documents which are being developed or prepared for use in civil, criminal or grievance procedures” are excluded.

The good news for employers is that employees do not have a right to sue for violations of this statute.  However, violations are punishable by fines of up to $1,000.  It is also possible a court would refuse to allow an employer to introduce as evidence disciplinary records that do not comply with the statute’s requirements.  Our team of labor and employment attorneys would be happy to assist you in ensuring your compliance with this or any employment law.

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.

The Department of Labor recently proposed new regulations designed to implement and interpret the National Defense Authorization Act for Fiscal Year 2010, which amended and expanded the Family and Medical Leave Act (“FMLA”).  The amendments expand military caregiver leave and incorporate a special eligibility provision for airline flight crew members.

As set forth in the DOL’s informational notice, the major rule changes include:

  • Extension of entitlement to military caregiver leave to family members of veterans for up to 5 years after leaving the military.  Presently, the FMLA only covers family members of service members that are currently serving;
  • Expansion of qualifying exigency leave to employees whose family members serve in the regular armed forms, as opposed only to employees whose family members serve in the National Guard or reserves as provided by existing law;
  • A more flexible definition of “serious injury or illness” of a veteran; and
  • Several provisions specific to airline flight crew members aimed at increasing accessibility to FMLA benefits.

The regulations are not yet final and anyone that would like to submit comments on the proposed regulations may do so prior to April 16, 2012.  Following review of the comments, the DOL will release final regulations.

Employers subject to the FMLA should stay tuned as these regulations have the potential to significantly expand leave entitlement, most notably as it relates to military caregiver leave for veterans.

For more information, please visit our website.

The Connecticut Department of Labor (“DOL”) has released guidance concerning Public Act 11-52, the new paid sick leave law.  The DOL also released a poster that complies with the law’s notice requirement.

Both the guidance document and the poster are available on the DOL’s website

The Spanish version of the poster is forthcoming.

We provided a detailed review of the sick leave law in a post last month.

Though the guidance document does not appear to contain any major revelations, it does provide clarification of certain points and is in a format that is easier for employers to navigate that the Public Act.

 

Continue Reading DOL Releases Guidance and Poster for New Paid Sick Leave Law