Connecticut Employment Law Blog

Inquiring Minds Want to Know: What Workplace Issues are Employees Thinking About?

Daniel Schwartz — Fri, 16 May 2008 20:31:54 -0500

Opening the Hartford Courant on Friday (yes, I still do look at the paper version every once in a while), there was a nice big photo and article about another survey about the "mood" of American workers. I'm always a little leary of such articles, only for the presumption that "American workers" are a homogeneous group.

But, then I saw that a friend and former colleague, Glenn Dowd of Day Pitney, was featured prominently about the survey in a detailed interview. So, I put aside my healthy skepticism because I knew this wasn't just "another" survey article. And sure enough, its a good Q&A. Glenn's as straightforward and down-to-earth in the interview as he is in person, with some terrific insights and conclusions to draw from the survey.

The thrust of the interview, which focuses on the connection to the Presidential campaign is as follows:

Q: What is the most significant finding of the survey?

A: It's clear that the top issues that Americans are interested in are the ability of folks to earn a living wage, keeping jobs from being outsourced and providing health care.

If you look at each of the [presidential] candidate's websites, they make an effort to address these topics. Each of the candidates has a detailed health care plan. The assumption is that we are going to see some legislation addressing health care.

In terms of a living wage, we always have the age-old question, is it simply a matter of raising the minimum wage, or is there some alternative plan that is the answer: tax credits, investing in education or other economic stimulus measures to try to promote the growth of better-paying jobs?

So, do yourself a favor and check out the article. And congrats to Glenn on such a nice piece.

Gross Misconduct and COBRA - When Can An Employer Try to Deny Coverage to Terminated Employee

Daniel Schwartz — Fri, 16 May 2008 00:10:18 -0500

The Employee Benefits blog has a terrific post this week explaining the "Gross Misconduct" rule for COBRA Coverage.

For those unfamiliar with the lingo, The Consolidated Omnibus Budget Reconciliation Act (COBRA) (among other aspects) describes rights that employees have to continue their health insurance after their employment as been terminated (and for some other reasons too). But there is an exception: When the employee is terminated for "gross misconduct", the benefits cease. What does that mean? Well, the Act doesn't define it.

But the Employee Benefit blog shares some insight from one case about what it means.

Three things are very important about this decision. First, the court did not find that any “criminal” conduct was required to meet the “gross misconduct” definition. Gross misconduct can be an intentional, deliberate, extreme and outrageous that “shocks the conscience.” It can be “reckless or in deliberate indifference to an employer’s interests.” ...

Second, the employer has the burden of establishing the termination was for “gross misconduct.” ... It must be the primary reason, not one of many.

Finally, the employee and potential COBRA beneficiaries have to be notified of the determination that COBRA is not being offered because of the termination for gross misconduct.

So what's an employer to do? The blog suggests some thoughts, but I'll share some general observations as well.

1. Document, document, document. If an employer is going to claim "gross misconduct", there ought to be ample documentation supporting the decision.

2. Make sure the termination documents reflect the actual reason and the reason amounts to "gross misconduct". Meeting this standard is difficult and courts will understandably look to any reason to deny it. Having a letter of termination that merely states the employee was let go for "performance" reasons, isn't going to cut it.

3. Follow policies and COBRA to the letter. The requirements, for example, about notification under COBRA are strict. Missing deadlines or not providing information may provide the escape hatch that might not be available otherwise.

And as always, seek some legal guidance on this. Denying COBRA nowadays is rare; if an employer does try to use that provision, it can be assured that a fight about coverage may not be too far behind.

A Master Resource - Using Law.alltop.com to Keep Updated

Daniel Schwartz — Thu, 15 May 2008 06:27:58 -0500

As I will discuss in an upcoming post, keeping up to date about legal developments (employment law or otherwise) is a challenge for any employer, employee or in-house lawyer. Parsing through all the websites and legal-related blogs for information can seem like a monumental challenge as well.

Fortunately,besides the RSS feeds I normally use, there is a great new resource out there to keep up to date on legal issues.

Law.alltop.com is a recently launched part of Alltop.com. What is it? I'll let the creators tell you in their own words:

We help you explore your passions by collecting stories from “all the top” sites on the web. We’ve grouped these collections — “aggregations” — into individual Alltop sites based on topics such as environment, photography, science, Muslim, celebrity gossip, military, fashion, gaming, sports, politics, automobiles, and Macintosh. At each Alltop site, we display the headlines of the latest stories from dozens of sites and blogs.

You can think of an Alltop site as a “digital magazine rack” of the Internet. To be clear, Alltop sites are starting points—they are not destinations per se. The bottom line is that we are trying to enhance your online reading by both displaying stories from the sites that you’re already visiting and helping you discover sites that you didn’t know existed. In other words, our goal is the “cessation of Internet stagnation” by providing “aggregation without aggravation.”

The "Law" section is one of their newest parts and it reads like a who's who of legal blogs and sites.

But here's the best part: They've added the Connecticut Employment Law Blog to the section of law sites. Clearly, they are on to something (either that, or they felt pity for this site). In any event, I'm honored and humbled to have this blog listed as one of the "top" sites on the web from them.

So check them out using this link.

Court: Connecticut Anti-Discrimination Employment Laws Are For Employees, Not Surviving Spouses

Daniel Schwartz — Tue, 13 May 2008 20:53:40 -0500

One of the underlying fears that many employers have is that anti-discrimination laws will eventually be interpreted so broadly, that they will be open to litigation even for the most remote possibilities. Thus, the idea of "standing" (in essence, who has the "right" to sue another party) is one that can sometimes be used to prevent overreaching in employment law cases.

The Connecticut Supreme Court, in a decision to be officially released next week, has held that only employees (and not surviving spouses of employees) have standing to sue under the state's anti-discrimination laws. In McWeeny v. City of Hartford, the Court fairly readily disposes of the claims by saying, in essence, the employment anti-discrimination laws cover, well, employees.

By its plain and unambiguous terms, § 46a-60 (a) (1) prohibits an employer from firing or refusing to hire or discriminating against any employee or prospective employee in the terms, conditions or privileges of employment. Thus, § 46a-60 (a) (1) pertains only to those persons who have sought or obtained an employment relationship with the employer alleged to have engaged in a discriminatory employment practice. The plaintiff does not fall within either of those categories.

In this case, a state court judge, Robert F. McWeeny sought various benefits as the surviving spouse of another state court judge. The Supreme Court drops these facts to footnotes and discards the relevance of it : "The plaintiff is a judge of the Superior Court. His judicial position, however, is not relevant to this appeal." That said, it's certainly not everyday that a group of judges dismisses an appeal of one of their colleagues.

For employers, the case demonstrates an important rule of thumb: Not everyone who complains about discrimination is even covered by a state statute. That is not to give employers a free pass to treat people unfairly, but it also means that to not overlook the obvious argument of standing when defending against a claim like this.

About Milestones and Readers

Daniel Schwartz — Tue, 13 May 2008 06:30:30 -0500

Just a short self-promoting post this morning to recognize some amazing milestones for this humble employment law blog. After just a few months in existence, we had our 50,000th visit around 2 a.m. this morning! Last week, we had our busiest week (on top of last month's "busiest month). In other words, we keep growing and expanding.

The blog's reach on Google is also compelling and sometimes leads to some strange referrals. For example, one reader was referred to this blog by typing in "How to Harass Employee" into their search. You too, can see the results here. That's a little disconcerting for an employment lawyer, but, in my defense, Google located my entry about woman who used a Barenaked Ladies song to harass an employee. (Interestingly, Google also locates that same post with some "not safe for workplace" searches as well).

But all of this could not be done without you, the loyal reader.

You probably won't hear much about future milestones, since I concede it's mildly tacky to tout a blog's achievements (which is one reason you don't find those "site meters" much any more). However, I couldn't let this particular milestone pass without passing on my sincerest thanks.

And now a request -- keep forwarding me tips, ideas, comments and suggestions. I'll even take an occasional criticism or two. But my hope is continue the build this blog into a resource for employers in Connecticut and keep others informed on notable developments. Although "Connecticut Employment Law" may not, at first, strike you as an interesting topic, I hope you'd agree that these are the types of issues that affect everyone.

Workplace Posters - Is It Worthwhile Purchasing Them From Companies That Sell Them?

Daniel Schwartz — Mon, 12 May 2008 16:40:10 -0500

A while back, I wrote about a Connecticut law that requires employers to post about the services of the Office of Healthcare Advocate and about one company that sells such a poster, Progressive Business Compliance.

But the question is often asked, are these workplace posters that available for sale by companies like PBC, useful and worthwhile to purchase in general? My response is "Yes" with a small "but" attached to it.

What do I mean? Well, as I've said before, the companies that prepare the workplace posters do provide a valuable service by combining the posting requirements under various state and federal laws into one poster. These "5-in-1"s or whatever number that is chosen, are then printed in an easy to read format and are often laminated to preserve their appearance. For this reason, spending money on the posters is an easy call for many employers.

Certainly, companies like Progressive Business Publications (which also goes by the name Progressive Business Compliance) or G.Neil can fill that role well. Indeed, a number of attorneys that I know have used posters from both of these companies for years without incident and I haven't seen or heard about any specific posters that they sold that did not comply with the law. I certainly wouldn't discourage employers from using these services, even with the cost involved, because for many employers it is "worth it" to have easy-to-use posters prepared by someone else.

And before people get too up-in-arms about companies making money off their product, it's not like these companies are alone in charging for items that the goverment otherwise makes available free to the public. For example, LEXIS and Westlaw charge people for using their services to find and locate court decisions published by the courts, or legislation passed by the goverment.

Moreover, simply because you can get the materials for free elsewhere does not, in my view, provide a sufficient reason for ignoring these companies either. They're not government agencies (nor do their websites pretend to be) but they make it their business to do their best to understand each state and federal law.

But here is my small reservation about using these companies (or companies like these): Employers should not rely on their services as the exclusive source of their information, nor for advice.

If an employer is investigated by the Department of Labor about its postings, it won't really do the employer much good to say that they merely relied on what another company told them to do. Rather, each employer has an independent obligation to ensure that they are complying with the applicable laws.

So, how can an employer do that AND still take advantage of the services offered by the workplace poster companies? Work with a qualified and experienced human resources professional or an attorney to ensure that all of its posters and polices are up-to-date. Also figure out what state and federal laws actually apply to them. Once the employer performs such an assessment, then reach out to the poster companies.

Maybe they will even cut a volume discount.

Paying an Employee for Commuting Time? Probably Not, But It Depends, Says Court

Daniel Schwartz — Mon, 12 May 2008 06:39:57 -0500

For non-exempt employees (in other words, those employees eligible for overtime), a common question is whether an employee should be paid for commuting time. The answer to that question is typically no.

Now suppose the employee carries their work files in a briefcase to and from work, does that change the analysis? According to a recent Second Circuit decision (which covers employers in Connecticut, New York and Vermont), the answer is still no. In doing so, the Second Circuit in Singh v. City of New York has clarified the limited circumstances when an employee may be paid for their commuting time.

When is that? Well, under the Fair Labor Standards Act (FLSA), the employee must engage in work for the employer's benefit at the employer's request, in order for commuting time to be compensable. In addition, if an employer's policies increase that commuting time by a trivial amount, the employee is still not entitled to be paid under the FLSA.

When is work required during a commute? When the employee's work during that time is integral and indispensable. It typically depends on whether the time is spent predominantly for the benefit of the employer ("predominant benefit test"). For commuting, the Second Circuit indicated that the:

appropriate application of the predominant benefit test is whether an employer's restrictions hinder the employees' ability to use their commuting time as they otherwise would have had there been no work-related restrictions.

For employers, and particularly with the addition of BlackBerrys, this case emphasizes that the employer should review its policies and practices to ensure that commuting time remains non-compensable. In particular, the employer can emphasize that non-exempt employees should not perform work during their commute.

The Penalties to Connecticut Employers for Hiring Illegal Immigrants

Daniel Schwartz — Fri, 09 May 2008 08:31:24 -0500

One of my new favorite "undiscovered gems" on the Internet, is Connecticut Judicial Branch Law Libraries' Newslog. It is a site maintained by the librarians with daily entries to help people stay informed about "recent legal developments, legal practice tools, and law library resources". It's another example of how librarians are adapting to new technology and providing a helpful resource.

And best of all, they have added RSS feeds to allow readers to "subscribe" to it. (If you don't know what a "feed" is, see my easy-to-read post on the subject here.)

One of the entries that caught my eye recently was a research memo prepared by the Office of Legislative Research that discussed what the Connecticut laws are regarding employers who hire illegal immigrants. The issue arises out of a law that Arizona passed last year that provides for extreme penalties to employers who hire illegal immigrants.

So what does Connecticut say on the subject? Well, the memo points to Conn. Gen. Stat. 31-51k, which has been on the books for 35 years, as the applicable law:

Since 1972, Connecticut law has penalized employers who knowingly employ aliens not entitled to lawful residence. A first offense is punishable by a fine of $ 200 to $ 500. Any subsequent offense is a class A misdemeanor, punishable by a fine of $ 2,000, imprisonment for up to one year, or both.

But not so fast.

As the OLR memo goes on to state, that law is likely preempted by the 1986 Federal Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” 8 U.S.C. 1324a(h)(2). Thus, even with a Connecticut law on the books, it probably has no real effect anymore because of the federal law "preempting" it. (Why have the state law then still on the books? That's a good question for another day.)

The memo concludes by stating that the Arizona law is different because that state statute deals with a business license, which is exempted from preemption.

With no action on any immigration-related bills in Connecticut this session, Connecticut employers should continue to educate themselves on the requirements of IRCA in dealing with illegal aliens. The Department of Labor's website is a good place to start and there are additional materials located here. But the enforcement of laws relating to the hiring of illegal aliens has also been picked up by the Department of Homeland Security and even Connecticut has its own Alien Labor Certification Unit. It is an area filled with risk and employers should continue to tread carefully.

Lastly, on a lighter note, what post on alien workers, would be complete without a link to the classic Genesis song "Illegal Alien". So, on this Friday, a link to the deliciously tacky video is below:

U.S. Department of Labor Updates Website with New Tools Regarding Recordkeeping and Reporting Requirements

Daniel Schwartz — Thu, 08 May 2008 09:10:27 -0500

This week, the U.S. Department of Labor updated their website and provided some new online tools to help employers figure out which recordkeeping, reporting and notice requirements apply to them.

According to the DOL:

The new FirstStep Recordkeeping, Reporting and Notices elaws Advisor has been integrated into a FirstStep suite of advisors that also includes the revised and expanded FirstStep Poster Advisor and FirstStep Employment Law Overview Advisor.

"These Internet tools will make it easier for small business employers to learn about and comply with the federal laws that apply to them," said Secretary of Labor Elaine L. Chao.

However, employers in Connecticut using these tools should be cautious. There are additional requirements that employers in Connecticut that may apply and some are stricter than the federal rules.

Because of this, employers should use the department's online tools as a resources, but should followup with an attorney or the Connecticut Department of Labor about additional requirements that may apply.

(H/T Delaware Employment Law Blog)

Connecticut Legislative Update: Paid Sick Leave and Whistleblower Bills Not Brought Up for Vote

Daniel Schwartz — Thu, 08 May 2008 08:41:28 -0500

A bill to provide mandatory paid sick leave to employees and a bill to provide greater protection to state whistleblowers were among the employment law-related bills that were not voted upon in the final day of the legislative session -- effectively killing them.

The Paid Sick Leave bill, S.B. 217, had passed the Senate last week, but the House did not bring the measure up for a vote. As I indicated yesterday, nearly 25 amendments had been proposed on it -- a sign that the bill was going to be in for a long fight. My earlier coverage of the bill is available here. CT News Junkie has a report on it as well.

The Whistleblower bill, S.B. 335, had also passed the Senate, but again, the House did not act on that provision either. My earlier coverage of the bill is available here.

Other bills that were not acted upon by the legislature include: a Workplace Bullying bill; a bill protecting child in the entertainment industry from child labor abuses; and a bill to allow workers to be paid by a pay or debit card.

One bill that did pass this week allows for the regulation of various professional service organizations and about employee misclassification (H.B. 5113). I'll cover that in further detail in an upcoming post.

The Right to Attend Opening Day at Yankee Stadium...and Get Paid by Your Employer

Daniel Schwartz — Wed, 07 May 2008 06:32:26 -0500

Today is the final day of the General Assembly and the Paid Sick Leave proposal (S.B. 217) is expected to come before the House before the close of business. But, perhaps in a sign that it is doomed to die a procedural death, it has drawn nearly 25 proposed amendments.

One of the listed amendments is just a head scratcher. Specifically, House Amendment 6092 (proposed by House Republican Leader Lawrence Cafero and Rep. Aman) would, in essence, allow employees to use paid sick leave for the first day of summer, the first day of fishing or hunting season, or, and I kid you not, the opening day of baseball season.

Don't believe me? Here's the actual language:

(e) No employer shall require documentation of an illness, injury or health condition, as described in subsection (b) of this section, if the employee uses a paid sick day on the twenty-first day of the month of June, the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes, or the opening day of the official Major League Baseball season. "

Thus, under this amendment, an employee could take the day off to attend the Opening Day of baseball season, and the employer would just have to "take the employee's word" that the day was a paid sick leave day. The Office of Fiscal Analysis even issued a one sentence report indicating that it would have no "fiscal impact" in the state.

Because the proposal comes from two Republican lawmakers (who, as a group, have expressed skepticism about the bill), I think it's fair to say that this proposal will go nowhere. Maybe it is just being used to make a point that the paid sick leave bill will be difficult to enforce. But, given the ramifications of the Paid Sick Leave act bill, as I've covered before, one has to wonder what they were thinking in taking the time to draft an actual amendment on this topic.

The General Assembly starts again this morning. Grab your popcorn. Should be a fun last day.

The Employer Strikes Back: Supreme Court Asked To Reconsider Curry v. Allan S. Goodman Decision

Daniel Schwartz — Tue, 06 May 2008 22:00:14 -0500

Last month, I addressed the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, which expanded state disability laws to match (or in some cases, exceed) the scope of the federal Americans with Disabilities Act (ADA).

The employer has moved, on limited grounds, to have the court reconsider its decision. You can download a copy of the motion here.

One of the grounds raised by the employer is something that I touched on before -- namely that the court is expanding the duty to provide reasonable accommodation to former employees who request reinstatement and an accommodation.

The employer has also requested reconsideration on the grounds that the court's ruling could also be interpreted to require an employer to convert a temporary light duty position into a permanent one, contrary to the general rule cited by the court. Because the case's procedural status was that of a summary judgment, the employer also expressed its concern that the court's rulings could be seen as determinations of fact in case that still has issues of disputed facts.

The brief's relevant portion is as follows:

In this case this court has ruled, for the first time, that the disability provisions of General Statutes § 45a-60(a)(1) require an employer to make the same kind of reasonable accommodation required under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112(b)(5)(A). However, in the course of applying this principle to the facts of this case, this court addressed issues other than the application of the reasonable accommodation requirement itself. In this regard, the opinion identifies two actions that “satisfy the plaintiff’s burden of initiating the interactive process.” 286 Conn. at 417.
The first is the plaintiff’s “affirmative request to continue working the warehouse night shift in March, 2001.” Id. The second is plaintiff’s counsel’s letter of April 19, 2001 requesting that the defendant “(1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions.” Id.
However, as the opinion notes, the defendant did not contest the claim that the statute required it, prior to the defendant’s termination, to make some accommodation and to engage in an interactive process with the employee to determine if a reasonable accommodation existed. Rather, the focus of the parties below was on the adequacy of the employer’s efforts at reasonable accommodation, not on whether the two actions cited by the court constituted new requests for accommodation requiring a new interactive process. There are, at the very least, serious questions whether either of the actions cited by the court is sufficient to trigger this obligation.

It's too easy for some to state that all employers are the "evil empire" and that all arguments that they raise are frivolous.

But as I've noted before, the grounds the employer raises here are sensible ones. The Court went beyond what it needed to to make its decision and, in doing so, created some rules that could have significant implications in all disability cases in Connecticut.

Here's hoping that the Connecticut Supreme Court takes the time to review them; otherwise, there may be a lot of busy employment law lawyers later this year.

Connecticut Legislative Update: 15-Year-Old Worker Bill Passes, Jurors Get Expanded Protection for Jury Duty

Daniel Schwartz — Tue, 06 May 2008 21:40:22 -0500

I realize this blog has been a little top heavy of late with legislative developments, but it always seems that a whole year's worth of developments occur within a 2-3 week period at the end of the short General Assembly session. With this year's session scheduled to close at the end of the day on Wednesday, the developments are fast and furious. The court updates will return in force soon.

In the meantime, here's the brief recap of some of the developments from the last day or two (more to follow if and when necessary):

15-Year-Old Workers

The House late today passed a bill today that reinstates the labor law permitting 15-year-olds to work in grocery stores and similar positions. I expect the Governor to sign it shortly. I've covered the bill in detail, most recently yesterday. The bill, S.B. 216, can be downloaded here. It will become effective immediately upon signature by Gov. Rell. It amends Conn. Gen. Stat. Sec. 31-23.

Jury Duty

The provision on jury duty were amended in a few subtle ways through a bill passed by the House on Monday and expected to be signed by the Governor.

First, House Bill 5918 (download text here) allows persons who have served on jury duty in the last three years to request the opportunity to serve again even though they would otherwise be excused. (It amends Conn. Gen. Stat. 51-217a(a) in doing so.)

Second, the bill also provides additional protection to workers on jury duty. Specifically, it makes it clear that "any juror-employee who has served eight hours of jury duty in any one day shall be deemed to have worked a legal day's work as that term is used in section 31-21...and an employer shall not require the juror employee to work in excess of eight hours."

What does this mean? In practical terms, it means that jurors cannot be required to work while they are also serving full days on jury duty. Employees can, it appears, voluntarily work -- after hours, for example -- since the language prohibits requiring the employee to do so. Because Connecticut does not have a daily overtime rule, the employee may not even be entitled to overtime for simply working in addition to jury duty.

This jury duty law will go into effect on October 1, 2008, assuming Gov. Rell signs the bill.

Child Performer Protection

The House has yet to address House Bill 5677, which would institute a whole new range of protections for children who act (or "perform"). You can download the bill here, but the lack of action on the bill so far indicates that time may run out on this provision.

Whistleblower Protection

S.B. 335, which expands the protection of state whistleblowers has yet to be considered by the House. I looked at Senate Bill 335 in an earlier post.

State Senate Passes Minimum Wage Increase; Bill Now Moves to Gov. Rell for Approval

Daniel Schwartz — Tue, 06 May 2008 06:53:50 -0500

The State Senate late yesterday approved a bill that would increase the minimum wage in 2009 and 2010. The bill (H.B. 5105), had previously passed the House and now moves to Governor Rell for her signature.

CT News Junkie reports that Gov. Rell has some reservations about the bill:

Gov. M. Jodi Rell is still uncertain about whether she would sign it. Rell’s spokesman Adam Liegeot said in an emailed statement, “While the governor understands the needs of minimum wage workers, she does not want to take any action that will negatively impact businesses and jobs in Connecticut, especially during this troubled economy. Governor Rell will take her time and review this bill closely before deciding what action to take.”

The bill, if signed, will increase in the minimum wage from $7.65 an hour to $8 an hour starting in January 2009 and $8.25 an hour in January 2010. Assuming a 40-hour-work week, the average wage increase for those making minimum wage will be a little over $700 annually.

For most employers in the state, the bill will not have any impact because many workers receive more than the minimum wage. For others who rely on workers at minimum wage, the bill could have a real impact; $700 or so per worker per year could affect those with thin profit margins. However, others will certainly be able to afford the modest increase.

Although the bill did not have full bipartisan support, it did pass the General Assembly overwhelmingly. I would expect the Governor to sign the bill because a veto would likely be overturned by the General Assembly.

Connecticut House Has Yet to Approve Bill Allowing 15-Year-Old Workers

Daniel Schwartz — Mon, 05 May 2008 07:37:21 -0500

With just a few days to go, the list of pending bills in both the state Senate and House continues to grow.

But it is worth updating readers on one uncontroversial employment law bill that passed the Senate over a month ago that remains pending.

Specifically, Senate Bill 216 would renew a labor law that permitted 15-year-olds to work in grocery stores as baggers, shelf stockers and cashiers. As readers will recall, this law expired last fall "apparently because lawmakers forgot to renew it."

The law has been on the books for 20 years, but had an automatic sunset provision in it that lawmakers overlooked when the session ended last year.

The new bill, which would also grant amnesty to those employers who have continued to employ 15-year-olds during the last six months or so, passed the Senate last month on the consent calendar and looked to have swift passage in the House.

And perhaps it will pass in the closing days. But given the full agenda of the House, it would be a shame if the General Assembly overlooked this important law again. House members would be wise to make sure this bill is put on the consent calendar again in the closing days. It's passage will ensure valuable jobs for teenagers are open for years to come.

UPDATE 12 p.m.: The bill appears on the "Go List" for today, which is available here. There are two amendments that may potentially be raised today regarding home-schooled teens and apprenticeships. While both topics are interesting, the bill ought to be passed in its original form; otherwise, it will need to be returned to the Senate for further consideration.

Legal Analysis of the Application of Employment Laws to Native American Reservations

Daniel Schwartz — Mon, 05 May 2008 07:05:03 -0500

Amid all of the buzz regarding the union representation campaigns at Foxwoods, one argument keeps being floated about: tribal sovereignty.

A new article by Thomas Meiklejohn -- one of the attorneys representing the UAW in its battle to represent workers at Foxwoods -- in Spring edition of the Labor & Employment Law Quarterly (not online) of the Connecticut Bar Association, sheds some additional light on the subject.

As Meiklejohn acknowledges, "federal law does recognize the sovereign right of a Native American tribe to govern itself with respect to its internal affairs". Thus, he argues, the question that must be asked is: When can employment laws be enforced against an employer on a tribal reservation?

Meiklejohn suggests three factors ought to be considered:

The Nature of the Employing Entity: Is the employer a branch of tribal government, a commercial enterprise owned by a tribe or a privately owned business operating on a tribal reservation?
Who is Bringing the Action: Is it a federal government agency exercising its authority or a suit by a private party?
The Source of the Legal Claim: Does this dispute involve federal or state law claims?

Meiklejohn argues that it is a fairly settled issue in Connecticut and the Second Circuit that the NLRB has jurisdiction over tribal casinos. I've indicated in prior arguments a bit of Foxwoods' response to this as well.

Of course, since Foxwoods has planned to appeal the election results to the Second Circuit and beyond, if necessary, we'll soon see how "settled" this law really is.

Connecticut Legislative Update: Some Construction and Repair Workers Must Get New Training Under New Bill

Daniel Schwartz — Sat, 03 May 2008 16:52:54 -0500

The focus for this term of the Connecticut General Assembly for employers and employees has been on the paid sick leave bill (still no action in the House as of May 3rd).

However, employers who have employees working on public works projects and manual labor on state or municipal building construction or repair contracts need to be aware of a bill that cleared both the Senate and House very early today (H.B. 5537). The bill is expected to be signed into law shortly, will become effective January 1, 2009. The vote tally in the Senate is available here.

Under current law, some of these employees must prove that they have completed a 10-hour construction safety and health course that meets federal OSHA Training Institute Standards. The new bill expands this training and expands the people who must receive training.

The Office of Legislative Research has fairly detailed report available here:

First, it expands the construction safety training requirement to any public works project, which includes sewage and water treatment plants, site work, road and bridge work, parking lots, drainage systems, and other public projects.

Second, instead of applying the training requirement to all projects of $ 100,000 or more, the bill applies the existing prevailing wage project thresholds to the training requirement. This means the requirement kicks in for (1) repair and renovation projects of $ 100,000 or more and (2) new construction projects of $ 400,000 or more.

Furthermore, it removes the requirement that the proof of the training be sent to the labor commissioner. Presumably, the proof will be sent to the contracting agency paying for the prevailing wage project. ...

The bill also creates training requirement exceptions for employees of public service companies and commercial vehicle drivers who either pick up at or deliver cargo to public work projects.

It requires the labor commissioner to adopt implementing regulations by January 1, 2009. By law, regulations cannot take effect before the effective date of the act authorizing them.

A few notable items:

The employees who must receive the training (which, under current law, is any employee "performing manual labor") is greater under the bill. The bill states that a mechanic, laborer, or worker must complete the safety training course.
Notably, according to the OLR, the safety training requirements "do not apply to employees of public service companies, which are defined in statute to include electric, electric distribution, gas, telephone, telegraph, pipeline, sewage, and water companies; cable franchise holders; and railroad companies."

With all the training requirements that exist for employers, employers should add this to their list if they are in the business of doing construction or repair work for the State of Connecticut.

CHRO Ruling Holds that Learning and Mental Disabilities (Attention Deficit Disorder) Must be Accommodated on Promotion Test

Daniel Schwartz — Sat, 03 May 2008 15:36:56 -0500

A few weeks ago, I pondered the impact that the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman would have on cases involving learning and mental disabilities. Turns out, I didn't need to wait long at all. A CHRO Hearing Officer has already used that decision to chime in and indicate that must be accommodated. (Big H/T: Overlawyered).

In CHRO ex. rel. Lenotti v. City of Stamford, (download here) a firefighter claimed that the City's refusal to give him additional time on a promotional exam violated the state's disability discrimination laws. The firefighter, who had Attention Deficit Order, claimed that state law required the the City' to provide him with a reasonable accommodation. A CHRO Hearing Officer agreed.

The city argued that a fire captain, the position Lenotti sought, must be able to read and process information quickly at a fire scene. But the CHRO Hearing Office concluded that the city never supported its position and never showed that it would be a "direct threat" to public safety if he were promoted under such conditions.

The case is a long read but there are a few quick bullet points of note:

Because Connecticut's definition of a mental disorder is anything listed in the Diagnostic and Statistical Manual, there was not a real dispute that the firefighter's ADD qualified as a "mental disorder". Although some employers view such claims with proper skepticism, this decision demonstrates that broad application of state law to these types of claims.
The Hearing Officer seemed troubled that although the City claimed it was "implicit" that a fire captain must be able to read quickly, that requirement was not in the written job description. Thus, a takeaway from the case is that employers should be sure their written job descriptions contain sufficient details and match what the requirements of the position really are.
Lastly, the case reinforces what I said earlier: After the Curry case, we may start to see more and more disability discrimination cases being brought under state law. With the state laws being interpreted in a broad manner, like they are here, employers in the state ought to start paying attention.

Foxwoods Union Election Update: Workers Reject Engineers Union

Daniel Schwartz — Fri, 02 May 2008 09:07:46 -0500

It's been a little while since we last checked in with the unionization efforts at Foxwoods. The appeal process of the election of UAW has begun its slow arduous process so don't expect to hear much on this for weeks or months at a time.

But in the meantime, various other groups have been vying to try to unionize other workers at Foxwoods. Yesterday, engineering department workers cast ballots about possible union representation by the International Union of Operating Engineers.

The workers overwhelmingly rejected such representation by a vote of 215-67.

The Day has this report from late Thursday evening:

The election results were hailed as a major victory by Foxwoods, which has recently received intense pressure as several unions have filed petitions seeking to unionize workers at the casino.

”We are very pleased with the vote of confidence that employees have given Foxwoods management today,” said Foxwoods President Barry Cregan in the release issued shortly after 7 p.m. “Those team members displayed outstanding professionalism through the entire process and clearly agreed that having an intermediary come between us wasn't necessary.”

What's interesting about this is that the tribe had also complained to the NLRB that the election shouldn't go forward citing its sovereign immunity, as it has done on other elections. The Regional Director -- as it has done before -- rejected those claims in a decision found here. But this time, Foxwoods prevailed in the union election so unless the union raises exceptions to the election, it is unlikely that the immunity argument will be tested again here.

Foxwoods still has several more union petitions from other worker groups to face in the upcoming months. You can find my prior coverage of the Foxwoods unionization efforts here.

Because of Foxwoods' status as one of the largest employers in Connecticut, and the novelty of unionization of its employees, this remains a topic worth following in the upcoming months.

Paid Sick Leave Bill Passes State Senate; Moves On to House for Consideration

Daniel Schwartz — Fri, 02 May 2008 08:53:29 -0500

Late Thursday night, the State Senate passed the Paid Sick Leave bill (S.B. 217) with various amendments including an exemption for some existing collective bargaining agreements. The vote was a close one -- 20-16 -- and you can find the roll call here.

The bill would make Connecticut the first state to require employers of 50 or more, to allow workers to take 6½ paid sick days per year. It would also apply to municipalities. One additional amendment that passed would limt the times when employee could use sick time for an illness of an employee or employee's child.

The bill now moves on to the House for further consideration, where nearly 40 legislators have publicly co-sponsored the bill already. Some of the sponsors of the bill have predicted passage there, but its real future is unknown at this point, with the session winding down. Debate in the Senate took two days and it is unclear if there is enough time left for the bill to pass.

The Hartford Courant has a late report and reaction here:

[State Senator Edith] Prague called the bill a major boon to average working people, "especially single parents, like women, who have to go to work. They can't afford the luxury of staying home if they're sick. They need that day's pay to feed the kids ... and heat the house." ...

But opponents said the increasing business competition in a difficult economy is the reason that lawmakers should not approve the bill: It would put Connecticut at a disadvantage and cost the jobs of some of the very workers it is intended to help, they said.

The state's leading business lobbying group, the Connecticut Business and Industry Association, has said the bill "would cost employers in dollars and productivity — a tough one-two punch in this weakening economy."

Various political blogs have started to chime in, including My Left Nutmeg here. My prior coverage of the bill can be found here.

UPDATE: You can also find the CT News Junkie coverage of the bill here.