Rojgar Job News

USDOL Headquarters in DC Over the last few weeks, there’s been a lot of bluster about lawsuits filed that are challenging the new overtime rules that are set to take place in just a few weeks. And there was also news that Congress was considering a law restricting the law as well. Both seem unlikely to come to pass and employers that have been postponing action in the hopes of a “white knight” on the issue should think twice. I covered the new rules in several prior posts (here and here, for example). But as a reminder, the rule becomes effective December 1, 2016. Note that December 1 is a Thursday, so employers will have to make sure that the entire pay period is compliant with the new rule. So, that leaves you with precious few weeks to get into compliance.  There are a number of different approaches to take and its definitely not a one-size-fits-all type of law. One suggestion though is to have your trusted attorney or HR consultant take a look at any questions...

U.S. Department of Labor Headquarters A federal district court in Texas yesterday struck down (once and for all?) the changes to the overtime rules proposed by the Obama Administration.  Previously, those rules (affecting the white collar exemptions) had been stayed, but the Court’s ruling suggests that there is a fatal flaw to the proposed rules and barred its implementation. In doing so, the Court said that the salary-level test that was proposed was too high to determine which workers were exempt from overtime compensation. Of course, there was little chance that these rules were going to get the go-ahead anyways because the Trump administration has shown no desire to support them either politically or in court.  Indeed, in July, the Department of Labor sought public feedback on ways to revise the proposed rule. The ruling applies to employers nationwide. While you’ll see a round of headlines today about how this is a big decision, it really should come as no su...

It never seems to fail; I go on vacation and the Connecticut Supreme Court issues one of the few employment law decisions it issues every year during that week. Fortunately for all of us, it concerns the fluctuating work week method of overtime computation which most employers in the state consciously either avoid or try not to understand.  (In very basic terms, the formula calculates a pay rate based on the number of hours an employee actually works in a particular weeks.) I’ve previously discussed the “perils of trying to rely on a fluctuating work week.” As recently as 2012, I said that “while it can provide some benefit for employers, it must be done properly and must not be raised after the fact.”  And I noted way back in 2008 that employers have to jump through a variety of hoops to make sure they are compliant. Add to this cautionary tale the latest Connecticut Supreme Court case of Williams v. General Nutrition Centers, Inc.  The...

Like many of you, I long for vacations.  I like to plan them out in advance and then spend the intervening weeks and months plotting and scheming. What restaurants and new foods should we try? What attractions should we try to visit? And while that private tour my Facebook friend recommended sounds neat and all, what can we really afford to do? Having just returned from a trip overseas, I can attest that vacations are good for the soul too.  They provide time with friends and family and a much needed perspective.  There is simply more to life than the constant barrage of news that seems to infiltrate our lives nowadays. But where do vacations fit in the legal schemes employers set up in Connecticut? Well, for one thing, vacations are not mandated by any state or federal law.  Employers are free to decide whether or not they want to give their employees any vacation days.  But many employers recognize that offering vacation days makes jobs more attractive and als...

My law partner, Gabe Jiran, talks today about whether it’s all that easy to change the terms of a collective bargaining agreement.  Is it just as easy as a vote? Or does it require something more? The answer has implications for all employers.   With all of the talk about the financial difficulties faced by the government, I, and others in here, sometimes get the question of whether the State of Connecticut or other states might try to change the laws on collective bargaining or try to pass legislation to alter the terms of its existing collective bargaining agreements. Other states have started down this road, but it is not that easy. Recently, the Connecticut Attorney General was asked to opine on whether the General Assembly could statutorily change the contracts covering State employees to address the fiscal crisis.  A link to the opinion is here. The short answer is that the State could do so, such as by passing a statute that wage increases be delayed or elimi...

Update August 16th: Late yesterday, I received further confirmation that the provisions regarding FMLA were withdrawn entirely from the proposed Democrat-led budget bill. Moreover, the General Assembly early this morning voted on a Republican version of the budget implementer, which now goes on to Governor Malloy (who has indicated he will veto the bill). That version did not contain language on the FMLA changes either. So for now, employers can stand down. However, employers should continue to track the changes both this year and next. FMLA changes may make a return at some point.    Update at 2:06 p.m.: Since publishing this article, I’ve now heard from three people who work at or with the legislature that while they can’t find fault with my analysis of the proposed legislation as described below, the section on FMLA was intended to address a separate issue.   As a result, it appears that the section on CTFMLA changes discussed below may be withdrawn this...

“Joe, in response to all this NFL stuff, we want you to display U.S. flags at your workstation.” “No.” “Well, then you’re fired.” Don’t think that can happen? Then you haven’t heard about the Cotto v. United Technologies Corp. case — a long-forgotten Connecticut Supreme Court case from 20 years ago that has particular meaning in today’s environment where standing for the national anthem has become front page news. Is this patriotic too? The basic facts are as I described them above: The plaintiff alleged in his complaint that he was employed on a full-time basis by the defendant for approximately twelve years. In April 1991, the employer distributed American flags to employees in the plaintiff’s department and it was expected that all employees would display American flags at their workstations. The plaintiff declined to display the American flag and further gave his opinion on the propriety of coercing o...

An applicant for a job posting in education lists his most recent relevant experience as occurring in 1973.  You don’t bring him in for an interview. Is it gender discrimination? Beyond that, if he says that he is the most qualified candidate — do you have to hire him? And if you don’t hire the most qualified person, is that evidence of gender discrimination? No to all three, says one recent federal court decision. The decision by the court was quietly released late last month and might otherwise go unnoticed, but it underscores an important point for employers. In the matter, the Plaintiff argued that the employer discriminated against him because of his gender by denying him the opportunity for a job interview.   The employer chose four female and two male candidates for interviews. The Plaintiff argued that he was more qualified than the female candidates who were interviewed and ultimately hired by the employer. The court said, however, that the...

The Dialogue – an occasional discussion between myself and a prominent employee-side attorney, Nina Pirrotti returns today after a late summer hiatus. Today’s chat focuses on employee separations and severance agreements.  Share your own tips or observations in the comments below. As always, my thanks to Nina for sharing her insights here. Dan: Hi Nina! How was your summer? Mine was fine except I can’t stop hearing news about President Trump. It seems to drown out everything else going on and I think I have a headache from it all. But let’s give it a try, shall we? I know I’m often confronted with having to fashion separation and settlement agreements for employers.    What do you find are the items in agreements that you think both sides ought to be paying attention to? Nina:  Drowning in Trump-related noise.  The image is horrifying!  My husband and I were chatting the other day about an old Saturday night live weekend updat...

Like most of America, I spent a few hours this weekend seeing the new Avengers movie. (Don’t worry – no spoilers here in this post.) But it’s amazing how much the Marvel Universe has permeated our pop culture the last few years. So, it is with tongue firmly in cheek, when I use this post to talk about a presentation I’m doing tomorrow with my colleagues that plays off one such segment of these movies. Entitled, “Guardian of Your Own Galaxy: Making Informed Decisions on Hiring (Legally) and Sharing Information (When Appropriate)”, we’re going to talk a lot about how the hiring decisions of Tony Stark (i.e. Iron Man), Pepper Potts and how Stark Enterprises is run. Ok, one spoiler alert: No Tony Stark. Instead, we’re going to talk all things related to the hiring process: Background checks, interview questions, school-related employment history checks, registry checks, credit checks, ban the box, etc. We’re also going to talk about pers...

With the final few working days of the General Assembly session, we’re starting to see the outlines on bills that are pretenders vs. contenders. Yesterday, the House passed a contender on the subject of pay equity in a bi-partisan vote.  Unless the Senate decides not to bring up the matter (as it decided last year), employers should start preparing for its likely overall passage and implementation later this year. Four other states (including Massachusetts) have a bill of this type on the books. So what does House Bill 5386 say exactly? Well, less than it originally said. At the vote yesterday, the House passed “Amendment A” that eliminated some of the more controversial provisions of House Bill 5386. Ultimately, the bill would expand the prohibitions on pay secrecy now found in Conn. Gen. Stat. 31-40z, and prohibit an employer from: Inquiring or directing a third party to inquire about a prospective employee’s wage and salary history unless a prospecti...

You’ve agonized over firing an employee.  You hired her over a year ago and it just isn’t working out.  The employee is kind, conscientious and punctual, but just doesn’t have the skills needed for the particular position. But you’ve made up your mind. You’re firing her at a meeting this afternoon. In that meeting, the employee stops you part way to say that she too has been thinking the job hasn’t been a good fit and asks if she can resign instead. Can you still accept the employee’s resignation? It may seem obvious, but I’ve had more than a few discussions with employers who are caught offguard with such a request.  (In some other circumstances, the employer may ask if they can allow the employee to resign in lieu of termination. Gets to the same point.) The answer is yes, you can allow the employee to resign. Even if you originally were firing them. There’s no law that requires employers to stick with a decision tha...

Three years ago, I floated the idea that perhaps an agency could come up with a modest “amnesty” program that would give employers a chance to get into compliance with FLSA laws, without facing the draconian consequences such an admission might entail. Now, late yesterday, the United States Department of Labor announced its own pilot program doing exactly this.  It’s being called the “PAID” program (Payroll Audit Independent Determination), and is designed to expedite “resolution of inadvertent overtime and minimum wage violations under the FLSA.” According to a press release: Employees will receive 100 percent of the back wages paid, without having to pay any litigation expenses, attorneys’ fees, or other costs that may be applicable to private actions. The PAID program facilitates resolution of potential violations, without litigation, and ensures employees promptly receive the wages they are owed.  Under this program, the Wage...

Earlier this week, as I peeked up from my bed covers, I heard the lovely, comforting sound I heard when I was a kid. “Come on Down!” “The Price is Right” was starting. Sure, Bob Barker is no longer the host, but I didn’t care. At that moment, when my stomach was churning and the room was moving a bit, all I was hoping for was a round of Plinko. (I did, however, miss the ultimate Plinko win a few weeks back.) Well that, and maybe a spin of the wheel where someone wins a $1000.  (And I missed this record-setting set of spins too.) Netflix? My head hurts. Bingeing on a show? Too much thinking. But at 11 a.m. — like chicken soup — The Price is Right was there for me. Is it the classic show for working folk to watch when they’re sick? Who knows. With an iPhone by your side and the e-mails piling up, it’s hard to just rest and let your body recover. In fact, I would argue that it’s harder in this 24/7 work environment to just tu...

Do you remember your first day at work? I’m not just talking about a new job. I mean your first day EVER at a workplace. For my oldest daughter, today is that day. She starts as an intern at a local manufacturer of “Highly Complex Machined Parts and Precision Cams for Aerospace, Medical and Commercial Applications” to help her focus on aerospace engineering. This internship program started a few years ago from our town’s high school and gives students a chance to see the workplace from the inside, all under the supervision of an internship program. When she came home earlier this week from an “interview” (which I think was more of a guided tour, truth be told), the excitement from her was palpable. “The machines are so….cool!” When asked to explain, she said, well, it was just “cool”.  She had a huge smile and couldn’t wait for today to come.   She loves engineering (we’re starting on college a...

Summer feels really far away right now.  It’s just been brutally cold here in the Northeast. (How cold? Too cold for skiing.  That’s brutal by any stretch.) But summer WILL eventually come. So we’re told. So the news late Friday that the U.S. Department of Labor was scrapping the test it had released just a few years ago about interns probably went a bit unnoticed. At first blush, it might look like a big deal. But, in reality, not so much because the federal courts here (including New York as well) had already adopted the new test that the USDOL announced on Friday. I’ve covered both before, but the TL;DR version is this: The DOL is going to the “primary benefit” or “primary beneficiary” standard that had been outlined in 2015 by the Second Circuit. Law360 summarized it pretty well here: Under the [Second Circuit] test, courts have analyzed the “economic reality” of interns’ relationship with their employer to ...

Suppose there’s an old employment agreement between the employer and employee. Then the employer fires the employee. But there’s been a few intervening events and it’s not exactly clear that the employment agreement still applies. Indeed, there’s another contract (let’s call it an supplier agreement) that seems to provide an independent basis for ending the relationship. Nevertheless, the employment agreement contains an arbitration provision.  Are the parties still required to go to arbitration even when one party (namely the employer) argues the contract is void? Yes, says a new Connecticut Appellate Court decision called Stack v. Hartford Distributors, Inc.. (For background, the employment lawyers out there should look first at a 2007 Supreme Court case that established the strong preference to enforcement of arbitration provisions, which you can find here.  The rest of us can carry on.) For the court, it noted that the employer appears to ...

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 ...