Rojgar Job News

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...

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements. After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers. Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish. Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did. And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement. When I heard this, I scratched my, well, proverbial head about this one.  Did I mi...

Update: As noted below, the redesigned blog should be up at some point Tuesday, perhaps late – a new post will follow thereafter.  If it’s Tuesday and you’re seeing this blog post and the old design first, it’s coming later in the day. Promise.   Every good superhero story needs an origin story.  I’m not a superhero but I’ve got a super origin story to tell. Not a Daredevil You may have heard it before, but humor me. I’m turning 10. You see it was ten years ago, in a hotel conference room in where my life changed. Of course, like lots of such “a-ha” moments that people have, I didn’t realize it at the time. (Pause here to acknowledge that there are plenty of moments you know are going to be big: kids, marriages, your first iPhone). I was at the Spring Conference for the American Bar Association Young Lawyers Division in, of all places, Canada.  Montreal, to be specific. But I woke up early, on a fe...

Last week I talked about the new state law regarding pregnancy discrimination that is going into effect on October 1, 2017.  In that post, I mentioned a new notice that was required to comply with the law. Although there is no set form that is required to be used, the Connecticut Department of Labor has created one that is available for employers to use that will comply with the state law.  It is free to download here.   Because the content is useful, I’m using it down below so that employers can cut and paste it into a handbook or into a notice to be given to employee upon starting work too.  One can quibble with some of the word phrasings that are used, but overall — and stating the obvious — if you use this, you’ll be in comp liance according to the state. Covered Employers Each employer with more than 3 employees must comply with these anti-discrimination and reasonable accommodation laws related to an employee or job applicant’...

“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...

By now, you may have read about yesterday’s decision by the Second Circuit Court of Appeals that Title VII bars discrimination on the basis of sexual orientation. Connecticut is in that federal circuit (along with New York and Vermont).  You can download the decision in Zarda v. Altitude Express, Inc., here. (You’ve been warned though — there are 163 pages to the various opinions!) The decision talks a lot of “associational discrimination” and other academic theories of proving a case under Title VII; that’s beyond the practical aspects of this blog for employers but practitioners in the area should review the decision as a whole. So what IS the practical impact on Connecticut employers?  Not as much as you might first think. Connecticut state law already bars employers from discriminating on the basis of sexual orientation. Indeed, last year, I wrote that the debate over whether federal law includes a bar against discrimination on sexu...

The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage. Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months. Governor’s Bill 5043 sets up the following changes: First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15. Second, the bill would also require  all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years. The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religiou...

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 ...

On “Survivor”, one of my favorite broadcast TV shows (or, as my YouTube/Netflix watching teens might say — “what’s that?”) the notion of “immunity” plays a central role in the outcome of an episode. And in a decision released last week by the Connecticut Supreme Court, whether or not to grant immunity again plays a pivotal role for religious employers. In its unanimous decision, the court refused to grant outright immunity to a religious institution from an employment discrimination claim.  The case, Trinity Christian School v. CHRO , can be downloaded here. For religious institutions, the case serves as reminder that while the employment discrimination laws may be more limited in their impact (more on that in a second), seeking “immunity” from such claims is a step too far for the courts. In doing so, it’s helpful to note that the U.S. Supreme Court decided earlier this decade that the “ministerial exception...

The U.S. Supreme Court this morning in Janus v. AFSCME (download here) reversed 40 years of labor law precedent and concluded that  requiring public employees to pay “agency fees” for labor unions that they don’t want to belong to violates the First Amendment of the U.S. Constitution. Previously, prior cases have banned forcing public sector employees from joining a union and paying union dues. But a number of states permitted union contracts that required employees to still pay an “agency fee” to cover the costs of collective bargaining. In its 5-4 decision, the U.S. Supreme Court rejected this — leaving public sector unions, particularly in states like Connecticut, to potentially lose significant funds from employees who say that they want no part of their salary to go towards unions. Given that this blog covers more employment law than labor law, and focuses more on private-sector than public sector, I’m not going to do a deep-dive today...

If April Showers bring May…Oh never mind. In Connecticut, April might as well mean that the General Assembly is getting serious about the bills under consideration.  All the proposals that make headlines in February mean nothing until committees start to vote on the bills and the bills start getting the spotlight on them. Usually by now, we start to see a significant fall off between aspirational goals and practical bills. Not this year. Right now, however, it feels like there is still so much in play.  Things are changing rapidly so it doesn’t make a lot of sense to look at each bill individually.  But beyond the Paid FMLA and the Minimum Wage bills that have gotten the most press, there are still several others that are worth following. SHB 6913 would make massive changes to the state’s non-compete laws. The current version would limit non-competes to one year unless special circumstances would apply. Non-competes would also be unenforceable if the em...

One of my colleagues, Mike Chase has, for the last several years, been tweeting at “Crime a Day” about the various federal criminal laws and regulations that we have. Or rather, the thousands upon thousands of them. In fact, Mike has now put out a great book “How to Become a Federal Criminal” that is the perfect beach read or birthday gift.  The point Mike likes to make is this:  Congress has been so careless in giving lawmaking authority to federal agencies that in the process it has created an incoherent and largely accidental body of criminal law.  Recently, I wrote about how it will now a violation of the state’s employment law to discriminate against someone because of their status on the Civil Air Patrol.  Pretty random, right? It may only impact a few employers, but it’s just another one in a long series of laws that employers need to follow in this state.  It really got me thinking — how many  employmen...

In my new series (you can read the background here), I’m going to highlight an employment law that employers in Connecticut need to follow. Some of them can lead to lawsuits; some may just lead to fines.   I’ve titled this the “Employment Law Checklist Project”. First up: Conn. Gen. Stat. Sec. 31-40h.  This law states: No employer, including the state or any political subdivision thereof, shall condition the employment, transfer or promotion of any individual on the sterilization of such individual. What we’ll start to see from looking at these laws is that the definition of an employer can sometimes change and there are differences in the type of recovery that can be sought for violations. Scope: All employers, including the state. No limit on number of employees and there is no specific definition of employer here.  Contrast that with Conn. Gen. Stat. Sec. 31-40j (which follows this law), and you’ll find an actual definition of ...

The United States Department of Labor today released new regulations that dramatically change the existing rules on when two businesses are “joint employers” under federal wage and hour laws. I’ve previously discussed the changing rules in some prior posts here and here, so you should catch up there first if this is the first time you’re hearing about it. The new rules impact so-called “horizontal” and “vertical” joint employment situations, although the DOL has changed the use of the terminology a bit. In the horizontal situation, as now outlined by the USDOL rule, the employee has an employer but another person simultaneously benefits from that work. The other person is the employee’s joint employer “only if that person is acting directly or indirectly in the interest of the employer in relation to the employee. How do you know? The USDOL has set forth four factors on whether this other person: Hires or fires the employe...

Wednesday felt like a breaking point. The day when COVID-19 seemed to come out from under your office desk and said “You’re surrounded. Go home.” NBA – Suspending its season indefinitely. Schools in Fairfield County – Closed with the likelihood that more schools will follow soon. Tom Hanks – Another COVID-19 victim. Of course, this isn’t impacting everywhere at the same time. But it seems that several businesses are starting to contemplate severe restrictions in their workplace.  (Update: Thursday morning, Governor Lamont recommended that all businesses try to have employees work from home ASAP.)   Sure, many businesses will stay open or try to; we’ll need markets, pharmacies and utilities just to name a few.  But those businesses that can try to minimize their workplace interactions, probably will — or at least try to move to a remote-only workplace. Even the courts are now getting into the act by showing how the viru...

A few weeks ago, I talked about the impact that a public health emergency might have on employers and the statute addressing such emergencies. Today, Governor Ned Lamont invoked those provisions in declaring a public health emergency. But in doing so, he also invoked another provision, Conn. Gen. Stat. Sec. 28-9 –– the civil preparedness emergency statute. And it’s that provision that — potentially — gives him broad powers unlike any that we see in normal times. The key provision here is Section 28-9(b)(1) which states, in part: Following the Governor’s proclamation of a civil preparedness emergency pursuant to subsection (a) of this section or declaration of a public health emergency pursuant to section 19a-131a, the Governor may modify or suspend in whole or in part, by order as hereinafter provided, any statute, regulation or requirement or part thereof whenever the Governor finds such statute, regulation or requirement, or part thereof, is in con...

Each day of late feels like a week in terms of the firehose of news pouring out each day. On Monday came news that Italy was going on lockdown.  For a month. And Connecticut state government rolled out a series of orders that included no travel and limits on meeting sizes to 100 or less. And New Haven cancelled it’s St. Patrick’s Day parade. (Hartford was said to be considering it as well.) And the federal court in Manhattan issued orders restricting courthouse access to cases. It’s gotten me thinking a lot about how these next few months might start to look for employment law and litigation around the state (and litigation in general). It’s not pretty. Start, for example, with claims filed at the CHRO. Will in-person mediation sessions and fact-findings still be scheduled? Will public hearings have to be postponed? And then there are the lawsuits. Will case deadlines be automatically extended? Will people want depositions to still be done in person? How are...

On Wednesday, February 26th, the CDC reported the first case of COVID-19 where the source of the chain is, as yet, unknown.  That might indicate that community spread of the virus is going undetected in California. Regardless, the CDC has warned that spread of the virus is inevitable; Connecticut joined the chorus on Wednesday preaching preparedness. Employers that have overseas operations have already started to think of these issues. Complying with requirements in China, or Italy seem to change daily and the advice seems to get tweaked as well. And while employers need to be aware of the laws that will apply, the fact remains that the issues that employers have to deal with are far more complex.  There are literally hundreds of questions on the table.  What are just some of those questions? Suppose an employee’s child gets sick with suspected COVID-19.  Should the employee be barred from the workplace during the incubation period? And if so, are you prepared ...

From time to time, I have a conversation on this blog (titled “The Dialogue”) with Nina Pirrotti, a prominent labor & employment attorney representing employees in the New Haven area. With all of us now working from home for the foreseeable future, Nina and I thought we’d bring back this recurring feature — with a pandemic twist. We did the conversation via video conference! Because if there’s a winner from this loser of a year so far, it’s the widescale adoption of the video conference.  Never mind that my home office is doubling as our “bunker” with extra supplies (Pop Tarts anyone?).  It’s just good to connect. In this segment, we talk about what our respective clients have been going through and where we see this crisis in a few months. My thanks, as always, to Nina for the conversation.  Attorneys representing management and employees can sometimes disagree but we don’t have to be disagreeable with each ...

Let’s face it: Trying to keep up with all the pandemic-related employment rules released by the state only to see them modified again and again, is challenging to say the least. And yet, the Safe Workplace Rules for Essential Employers have been modified yet again Tuesday night by the Department of Economic and Community Development, just two business days after they were already updated to ask masks as a requirement. The modifications don’t just fix a typo, but significantly change what had been put in place over the weekend by reducing the need for employees to wear a mask at all times. Effective immediately, in workplace settings where employees are working alone in segregated spaces (i.e. cubicles with walls, private offices, etc.), employees may remove their masks . But, workers need to wear masks or face coverings “from the time they enter the building until the time they arrive at their cubicle/work station and at any time they are leaving their work station an...