Rojgar Job News

It was only a few years ago that the phrases “unconscious bias” or “implicit bias” started making the rounds in the legal community. I can trace the discussion on this blog to a 2014 guest post from a former law professor of mine, Kim Norwood, who talked about it in the context of her own experiences here.  I also talked about it in the context of a 2014 study that showed that married men with stay-at-home wives had negative attitudes towards working women.   Implicit bias has gained steam over the last several years. Indeed, Professor Norwood came to our firm in 2015 to give a presentation on The Mischief Biases Play in Law and the Legal Profession.  Suffice to say, it was well received and she was asked back again for a further presentation. All of this is a precursor to what I think may be the biggest development thus far in the mainstreaming of the “implicit bias” theory and training. Earlier this week, Starbucks announced that it w...

You have your bread. And milk.  Presumably eggs too.  (Anyone making French Toast this morning?) But do you know the employment law rules that apply for winter storms and classic nor’easters like we have today? I’ve written about it plenty before, but here are three issues you may not have thought about recently. Reporting Time or Minimum Daily Earnings Guaranteed:  Connecticut has a “reporting time” obligation (as do several of our neighboring states). It is contained in various regulations and applies to certain industries like the “mercantile trade”. You should already be aware of this law, but it has particular application in storm situations where people may not work full shifts. For example, in Conn. Regs. 31-62-D2(d) for stores, an employer who requests an employee to report to duty shall compensate that employee for a minimum of 4 hours regardless of whether any actual work ends up getting assigned. So if you bring you...

There is news in the employment law world beyond sexual harassment.  Arbitration clauses to be exact. Yesterday, the Second Circuit issued a small, but important decision for employers that will continue to limit FLSA wage & hour claims. The court ruled that an employee’s FLSA claims in court were barred by the arbitration clause contained in his employment agreement.  While it isn’t the first time, it’s clear logic will be tough to ignore. (The case, Rodriguez-Depena v. Parts Authority, Inc. et al can be downloaded here.) For the court, it was not even a close call. The court ruled that the Supreme Court’s pronouncement years ago that age discrimination claims were barred by an arbitration clause controlled. The court also looked at whether its decision in the Cheeks v. Freeport Pancake House, Inc. – which required oversight of settlements of FLSA claims — precluded arbitration. The court said it did not. The rationale of Cheeks, h...

Late yesterday, various press reports signaled what could be the beginning of the end for 2011 Department of Labor guidance that had greatly expanded legal claims against restaurants. The 2011 rule barred businesses (mainly restaurants) from including nontipped workers in their tip pools.  That practice – if done involuntarily – then entitles the servers or waitstaff who have contributed those tips to the tip pool to minimum wage for their hours (not the tip-credit minimum wage.) As of this morning, the DOL had not released its’ rule publicly, but according to a Law 360 report the description “suggests it would roll back the DOL’s 2011 rule amending its interpretation of the Fair Labor Standards Act to blog businesses from giving a portion of service employees’ tips to traditionally nontipped workers, such as kitchen staff.” The attack on this 2011 guidance is also making its way through the courts.  The U.S. Supreme Court is expected ...

Back in 2011, I discussed a titillating case of strip club dancers (or, a decision says, “performers”, “entertainers”, “dancers” or even “exotic dancers” — although not “strippers”) who were trying to claim wages for the time they worked at a popular strip club in Connecticut. The story at the time was that they were compelled to arbitrate their claims.  So private arbitration should mean end of the public story, right? Well, as it turns out, no. And the analysis of the case has some very real practical implications for employers. I’ve been going to back through some older posts to do some followups. And in doing so, I discovered that this case had a public ending — except for the fact no one reported on it. It seems that the dancers won big in an arbitration proceeding and then asked the court to “confirm” the award — making the whole thing public.  (You can read the arbitrato...

Trying to follow both state and federal wage and hour laws isn’t that hard. But it isn’t that easy either. Let’s say you’re a restaurant with a waitstaff.  Like most restaurants nowadays, your customers pay by credit card and you, the employer, have to pay the credit card company a percentage on each sale. You know there are rules regarding deductions of the wages to employees. But what about tips? Can you take out the percentage of fees being charged by the credit card company on the tips? According to the U.S. Department of Labor: Yes. In its fact sheet, the USDOL makes it plain that such actions by an employer do not violate federal law, so long as they are limited to the fees on the tips themselves. Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent o...

Back in 2011, I wondered aloud: Might the impact of new arbitration decisions from the U.S. Supreme Court bring about the end to big wage & hour class actions? At the time, I said it would be premature. Seven years later – what’s changed? Well, as it turns out, wage & hour class actions are not dead. Indeed, based on some statistics, they’re as costly as ever. Earlier this year, the Workplace Class Action Litigation report noted that just the top  ten class action settlements totalled over $2.72  billion in 2017 . I’d say the class action is still very much alive and well. Yet there are still signs on the horizon that employers may be able to fight back a bit on these claims. Late last month, the Ninth Circuit shot down a potential class action against Uber, on the grounds that the arbitration provision barred class actions.   It’s a significant victory for the company and highlights a way for companies to push back against the ...

In the last few months, I’ve had some inquiries from employers asking about resources for layoffs. Yawn. Everyone remembers the layoffs of the recession, right? Actually no, as it turns out. In the ten years since the last great round of layoffs, there is a big group of new managers, directors, human resource personnel, lawyers etc that have joined the workforce.  And, as it turns out, they really DON’T remember the layoffs.  Unemployment is low. “Why would I need to worry about a Reduction in Force?” The stock market’s drop yesterday should remind all of us that good times aren’t always going to last. What’s ironic about this is that back in 2008 — when the unemployment rate was skyrocketing — programs about reductions in force were just taking off and I noted the same concerns about whether employers were sufficiently aware of the issues. History may repeat itself. Back then, I highlighted a few items that employers ...

Readers of the blog will no doubt know that it’s been far too long since I had Nina Pirrotti on the blog for a conversation about employment law topics. Excuses abound, but Nina — who mainly represents individuals in employment-related disputes — recently penned a piece for the Connecticut Law Tribune that is too good to let more time pass. So, knowing still that titling a piece a “Dialogue” while just offering up a link to her piece is less than ideal, it’s important that we move beyond labels to get at the heart of sexual harassment issues remaining in the workplace. Nina suggests that there are still far too many employers that have chosen to “bury their heads in the sand rather than confront the harassers who line their pockets.” You can disagree about the scope of the issue but the underlying premise is sound — sexual harassment remains a scourge of the workplace for too many. What are some of her tips for employers? C...

Buried deep in the budget (page 417 of 567) that was passed by the state House last night is this provision: Sec. 305. (NEW) (Effective from passage) For purposes of this section “covenant not to compete” means any contract or agreement that restricts the right of an individual to provide homemaker, companion or home health services (1) in any geographic area of the state for any period of time, or (2) to a specific individual. Any covenant not to compete is against public policy and shall be void and unenforceable. It’s so buried that I had to read it a few times to make sense of it. Was it part of some other law? What is it related to? Why no public hearing on this? But all you can find is the bill analysis that essentially says the same thing: The bill prohibits contracts for provision of homemaker, companion, or home health services that restrict the right of an individual to provide such services in any geographic area of the state for any period of time or to a s...

Earlier this morning (Friday, May 17th), the state Senate approved of a measure that will increase the state’s minimum wage to $15 per hour by 2023. House Bill 5004 (as amended) can be downloaded here. The bill had previously passed the House and now moves to the Governor’s office where he is expected to sign it. There are several key components to the bill that are important for employers. YEARLY INCREASES TO MINIMUM WAGE The bill increases the minimum wage from the current level of $10.10 per hour as follows: $11.00 on October 1, 2019 $12.00 on September 1, 2020 $13.00 on August 1, 2021 $14.00 on July 1, 2022 $15.00 on June 1, 2023 But perhaps even more importantly, beginning January 1, 2024, it indexes future annual minimum wage changes to the federal employment cost index for “wages and salaries for all civilian workers”.  (As of the March 2019 ECI, the compensation costs increased 2.8 percent, by way of example) TRAINING WAGES Starting October 1, 2019, ...

A bill that would have brought the state’s tipping regulations in line with federal regulations was not brought up for a veto override vote earlier this week. I previously covered the subject in prior posts here and here. According to a report in CT Mirror, a “deal” is now being sought that would allow the issue to be brought back before the General Assembly.  However, that may not happen until next year. ( Update on July 29, 2019:  The deal may be brought before a special session late this summer.) As a result, restaurants should continue to ensure that they meet the requirements of the state’s confusing regulations on service vs. non-service work. I covered that in a prior post. This will, no doubt, come as a disappointment to some who had sought to have this bill go under the radar.   Indeed, I even heard grumblings that I shouldn’t have even posted about it — as if talking about something that passed the General Assembly o...

Update: Governor Lamont vetoed this bill on July 12, 2019.   Bear with me because this is a story about how a little provision slipped in at the last minute and buried deep in a innocuously-titled bill will have big implications for the restaurant industry in Connecticut. You might have missed House Bill 5001 (now Public Act 19-198) titled “AN ACT ESTABLISHING A TASK FORCE TO STUDY WORKFORCE TRAINING NEEDS IN THE STATE.” There was no legal analysis of the bill by the the Office of Legislative Research because “it does not analyze Special Acts.”  This must just be a bill about a task force, right? Well not exactly. Through an amendment that was adopted and passed by the House unanimously at 7:07p on the last day of the General Assembly session, two little noticed sections — Section 5 and 7 — were added to this bill.  Three hours later, the Senate also passed it unanimously. These provisions don’t have anything to do with a stu...

( Post has been updated to note a legislative development.) Running a restaurant is hard. It’s long hours, short tempers and fickle customers. But add in those wage & hour laws? What a headache. And there are lawyers out there who know it. In fact, there are some that rest their business model on seeking out restaurant workers that can be used as representative plaintiffs in class actions.  Moreover, they use the internet — quite legitimately in most cases — to find them. Indeed, in New York, one enterprising firm has put up a whole website entitled WaiterPay.com to educate workers on their rights.   If that weren’t enough, the United States and the Connecticut Department of Labor both have divisions that continue to investigate aggressively these industries for violations. I’ve been following some of the new lawsuits that have been filed against restaurants and have notice a trend — we’re seeing more lawsuits claiming that wa...

A hearing is set for Thursday on draft legislation to “fix” a bill that had been earlier vetoed and that I discussed in a post earlier this week.  CTNewsJunkie.com was first to report on the details earlier Wednesday. The bill comes at an interesting crossroads in restaurant wage/hour law. Earlier this week, the U.S. Department of Labor released proposed guidance that would give restaurants far greater latitude in deciding on tip pools and the application of the tip credit. Indeed, the proposed federal regulation would permit a tip credit to be taken  regardless of the percentage of servers’ time that’s spent on so-called “non-service” duties, provided this side work is done during, just before, or a reasonable time after regular “service” time. The proposed Connecticut bill can be found here and would require the CTDOL to write regulations that employers can then, in good faith, rely upon. The bill would also try to limit ...

So a few months ago, I got a call from a CTDOL employee asking if I knew about a certain bill that had passed the legislature. I was still reviewing the bills but decided to take a deeper look. As it turned out, a deal had been struck to insert language in the last few hours into an otherwise procedural bill that gave restaurants some needed protection from very costly wage & hour lawsuits that have been filed.  And I posted about it. I reached out to a few people before clicking publish but was told to go ahead — nothing to worry about or “see”. Except, of course, there was plenty to see because this was a bill that no one was supposed to see before it was signed by the Governor. Eeek. I later discovered that the Governor’s office had not been involved in the deal and my blog post was news to the them.  I even got a call from another attorney representing a restaurant who wanted me to take my blog post down. (Which is, of course, kinda crazy since ...

Six months after a little-noticed bill passed unanimously by the General Assembly (and was then vetoed by Governor Lamont), a new compromise measure passed yesterday in a special session.  For a full article, check out CT Mirror’s coverage here or CTNewsJunkie here. The bill uses some of the same concepts that had been previously discussed, particularly at a public hearing in October. But the bill tries to address the issue in a more nuanced way. Perhaps the biggest concession that was made is that existing class actions on wage and hour laws challenging the so-called “dual duties” regulation may proceed though with limits. You can read the bill here. Governor Lamont has indicated that he will sign the measure.  Here are the other key provisions: The biggest takeaway is that the bill requires the Department of Labor to revisit a 1950 regulation that has been interpreted by some as requiring time that a server spends on “non-service duties...

The news late Friday was not unexpected. The Governor is shutting down the offices of non-essential businesses including non-profits. But if I had told you two weeks ago that Connecticut would be issuing an order telling non-essential businesses that their offices would have to close, I’m not sure I would’ve had many believers. And yet, here we are. Executive Order 7H has been something I’ve been trying to get employers to prepare for, particularly in a prior post. Here’s the key text: All businesses and not-for-profit entities in the state shall employ, to the maximum extent possible, any telecommuting or work from home procedures that they can safely employ. Non-essential businesses or not-for-profit entities shall reduce their in-person workforces at any workplace locations by 100% not later than March 23, 2020 at 8:00 p.m. Any essential business or entity providing essential goods, services or functions shall not be subject to these in-person restrictions....

Thursday brought still another busy day of news as increased testing in Connecticut brought a big jump in numbers of confirmed COVID-19 cases.  We’re starting to hear about employers considering furloughing employees instead of simply laying them off. (Though the numbers of layoffs in Connecticut is over 54,000 — since Friday.) In general terms, a furlough that some are considering would involve setting an employee to “zero hours” in schedule and not paying him or her a salary. (There are different types of furloughs, to be fair.) Sort of like an unpaid leave of absence, if you will. But the employee would still be eligible under some health insurance plans to remain on the company plan with the company and employee still contributing the same amounts as during regular employment. This option is attractive to some because of concerns that a loss of job might result in a COVID-19 related illness left uncovered by insurance.  It also avoids the “yo...

Wednesday was supposed to be the first day of vacation for me and my family in Florida. Instead, I spent it at home helping clients run from one crisis to another. It’s pretty amazing how quickly all of our lives have changed so dramatically. Also amazing: Congress passed major legislation on leave related to COVID-19.  In record time. Normally, I would recap those types of things here but everyone (including, to be fair, my lawfirm) has already recapped it so I have little to add.  That said, you can and should read my firm’s recap here.  What else transpired on Wednesday that Connecticut employers need to be aware of? Another day, another executive order — this one titled “7F” (quick question: What happens after 7Z? Let’s hope we don’t have to get there). This one closed recreational facilities such as bowling alleys and zoos.  Expect more closures in the coming days. Access Health CT announced that it was having a special ...