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DOL vs. DRS: Battle of the Employee / Independent Contractor Misclassification Tests

Employers who want to (or need to) use independent contractors often scratch their heads at a disconnect – how do you determine who is an independent contractor?  I recall at one speaking engagement years ago, an employer who came up to me and asked: “So are you saying that there are TWO tests to determining if someone is an independent contractor?” Yes, that’s exactly what I was saying. The Connecticut Department of Labor and the Connecticut Department of Revenue Services (the state equivalent ...
Tags: Law, Irs, Shipman Goodwin, Department of Labor, DRS, Connecticut Department of Labor, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour, Manager & HR Pro’s Resource Center, Misclassification, Abc Test, Featured Content, Control Test, Factor Test, Indpedent Contractor

Busy General Assembly Session for 2019 Just Getting Started (Part 2)

Yesterday, I tackled the bills floating around the Senate-side of the Connecticut General Assembly,  In today’s post, let’s look at the House side to see what bills are under consideration there: House Bill 5003 is the mirror-image bill of Senate Bill 1 on Paid Family & Medical Leave.  Yesterday’s post gave the highlights, which apply equally to this bill too. Similarly, proposed House Bill 5004 would raise the minimum wage in the state. The details are still to be drafted, but the CBIA has bee...
Tags: Law, Senate, Training, Minimum Wage, House, Judiciary, Applications, Age Discrimination, Sexual Harassment, Senate Bill, Janus, Connecticut General Assembly, Human Resources (HR) Compliance, Wage & Hour, Discrimination & Harassment, Legislative Developments

Busy Legislative Session Has Lots of Employment Law Bills On Tap (Part 1)

The Connecticut General Assembly is already busy with a full compliment of employment law bills under consideration.  At this point, it seems likely that several will pass in one form or another and thus employers should be playing close attention to the developments. Here are a few of the Senate ones that I’m watching (I’ll tackle the House bills in tomorrow’s post): Senate Bill 1 – This is the Paid Family and Medical Leave bill that has been kicking around for a few years.  Late last week, th...
Tags: Law, Senate, Restaurants, Bills, Legislation, Service, House, Scheduling, Sexual Harassment, Equal Pay, Shift, Senate Bill, Confidentiality, Connecticut General Assembly, Paid Leave, Wage & Hour

RIFs, WARN, OWBPA, Disparate Impact – An Alphabet Soup for a Future Downturn

In my prior post, I wondered aloud whether there were some rough waters ahead for employers.  Apple recently announced that it would not meet it’s earnings estimates in the first quarter of 2019, in part because of soft demand from China. Other companies are expected to announce some similar issues. Honestly, I’ve had enough conversations in the last few years with HR professionals who just haven’t lived through a major downturn. Think about this way: For anyone who joined the workforce since 20...
Tags: Apple, Layoffs, Law, China, Recession, Statistics, Class Actions, ADEA, Performance Review, Human Resources (HR) Compliance, Laws and Regulations, Discrimination & Harassment, Manager & HR Pro’s Resource Center, Owbpa, Reduction in Force, Rif

An Early Prediction for 2019? Perhaps Dusting Off Your Reduction in Force Guidance

You do a blog long enough and everything comes full circle.  Back in January 2008, I took out my crystal ball and suggested that reductions in force (RIFs) and lawsuits would soon follow. We all know what happened next. The economy crashed and discrimination claims at the EEOC peaked at their highest levels in more than 20 years.   So here we are 11 years later.  A whole generation of HR professionals have never experienced a significant downturn.  Are we headed there again in 2019? I’ll leave t...
Tags: Facebook, Law, Recession, Connecticut, Litigation, Class Actions, Bear Market, EEOC, Human Resources (HR) Compliance, Wage & Hour, CHRO & EEOC, Discrimination & Harassment, Reduction in Force, Rif, Layoff, WARN

How the Government Shutdown Impacts Employers

It’s sometimes easy to forget that the government shutdown has very real-world implications. Case in point? The Equal Employment Opportunity Commission. As of now, it’s closed.  The agency has even posted a notice about it on its’ website.  That doesn’t mean that the time limits for filing a charge have been extended.   Generally, federal claims must be filed within 300 days of the alleged discrimination. As noted by the EEOC, “These time limits may not be extended because of the shut-down.” The...
Tags: Law, Government, Delays, Shutdown, EEOC, Equal Employment Opportunity Commission, Mediation, CHRO & EEOC, Discrimination & Harassment, Charges, Featured Content

New Year, New Law: No Salary Inquiries of Job Applicants (Mostly)

January 1st is typically a time for new laws to kick in and 2019 is no exception. For employers, the biggest change is one that I discussed way back in May with amendments to Connecticut’s Pay Equity law. The new law prohibits employers from asking a job applicant his or her wage and salary history. But the prohibition does not apply in two situations: if the prospective employee voluntarily discloses his or her wage and salary history, or; to any actions taken by an employer, employment agency...
Tags: Gender, Law, Pay, History, Connecticut, Salary, Ban, Equity, Inquiries, Laws and Regulations, Wage & Hour, Discrimination & Harassment, Legislative Developments, New Law, Pay Equity, Featured Content

Five Questions With… Sarah Poriss: Crumbling Foundations and Employers

The holidays are here and you know what that means: New Year’s Resolutions. I recently caught up with Attorney Sarah Poriss who I’ve known for many years and realized she had an interesting perspective for employers and how to start the year off right. Sarah runs her own small firm focusing, in part, on foreclosures for individuals.  Recently, she’s been handling matters for homeowners impacted by the crumbling foundation crisis happening in eastern Connecticut.  What follows is an edited online...
Tags: Google, Law, Connecticut, Employer, Sarah, Foreclosure, Dan, Homeowner, Sarah Poriss, Mediation, Human Resources (HR) Compliance, Featured Content, Crumbling Foundation

The Shifting Ground for Connecticut Employers: Massachusetts Starts Retail Sales of Marijuana

Today, Massachusetts started retail sales of marijuana at two locations. Perhaps no location is closer to the population centers of Connecticut than Northampton — just 30 miles up the road from Enfield.  It’s the first store east of the Mississippi River. And lest you think that this is a Massachusetts-only affair, you need only watch the news reports from today to understand that there are plenty of Connecticut residents lining up seeking to avoid the restrictions in place in the Constitution S...
Tags: Law, Massachusetts, Marijuana, Connecticut, Northampton, Pot, Medical Marijuana, Ada, Hiring, New England, Drug Test, Mississippi River, Waterbury, Enfield, Lamont, Human Resources (HR) Compliance

What Does the Blue Wave Mean for Connecticut Employment Law?

The results are in: The General Assembly and the Governor’s office have been caught up in the Blue Wave in this state.  Instead of a split, the Democratic party will control a sizable majority in both houses and the Governor’s Office. But with Governor-Elect Ned Lamont coming from a business-side perspective and touting the need to grow business in Connecticut, what are we likely to see in the next legislative session? Already legislative leaders are talking about a push for a series of progress...
Tags: Law, Senate, Training, Minimum Wage, House, Connecticut, Union, Sexual Harassment, General Assembly, Legislative, Lamont, CT Mirror, Summary, Paid Leave, Legislative Developments, Paid Family Leave

Honoring the Life of One Organ Donor Recipient With CTFMLA

Back in 2010, I wrote a simple blog post about how organ donors were protected under Connecticut’s FMLA law.  In it, I recount how my father — 25 years prior at that time — donated a kidney to his brother (my uncle).  At the time, I noted that both were well.   On Sunday, October 28, 2018, my uncle passed away after a short illness.   Dr. Allen Schwartz was retired as the Deputy Director of Policy and Enterprise solutions at NYS Office for People with Developmental Disabilities and recently serv...
Tags: Law, America, Connecticut, DMV, Obituary, Health Care, Donation, Organ, Organ Donor, Andrea, Allen, Aetna, Department of Labor, Transplant, US Department of Labor, FMLA

From the Archives: Halloween is No Excuse to Harass

From time to time, I take a look back at a prior post that may have particular relevance now. With Halloween knocking on our doorstep and sexual harassment claims on the rise, this post from 2010 has just as much meaning today.… For most people, Halloween is a fun and silly holiday. Yet the holiday has a distinct place in employment law history.  Indeed, for some employers, the holiday has brought more tricks than treats. In Marrero v. Goya of Puerto Rico, 304 F.3d 7 (1st Cir. 2002), a supervis...
Tags: Costumes, Halloween, Harassment, Law, Court, Cosplay, Sexual Harassment, Goya, Fed, Richardson, Marrero, Lester, Department of Treasury, Halloween Party, Human Resources (HR) Compliance, Discrimination & Harassment

An Early Look at the Trends at the CHRO

As part of my continuing series of posts about the CHRO, and following up from the 75th Anniversary panel discussion earlier this week, I wanted to provide an early look of the statistics that are soon to be released by the agency. I was provided a preliminary draft in preparation for the panel presentation; it should be out in the next week or two and I was asked not to divulge the specific numbers.  Stay tuned for my deep dive into the numbers when they are officially released. (As a refresher...
Tags: Harassment, Law, Trends, Claims, Complaints, Statistics, Numbers, Sexual Harassment, Sex Harassment, Increase, CHRO & EEOC, Discrimination & Harassment, Cchro, Chro, Settlements, Featured Content

CHRO Turns 75 … and Looks to the Future

Yesterday I had the opportunity (along with my fellow Shipman & Goodwin partner Peter Murphy) to speak as part of the Commission on Human Rights and Opportunities’ (CHRO) 75th Anniversary celebration. The panel — The Barriers to Employment Legal Update and Panel Discussion  — was chock full of the types of insights, data and analyses that is so often overlooked in this Twitter generation. We spent a good 90 minutes talking about the changes that have been going on at the CHRO and talked about wh...
Tags: Human Rights, Law, Car, Commission, Opportunities, EEOC, Shipman Goodwin, Legal Division, Peter Murphy, CHRO & EEOC, Discrimination & Harassment, Cchro, Chro, 75th Anniversary, Cfepa, Featured Content

Wage & Hour Claims Still Going Strong and Yet…

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 $2.7...
Tags: Law, Overtime, Wage, Hour, Class Action, Class Actions, Arbitration, U S Supreme Court, Ninth Circuit, FLSA, Human Resources (HR) Compliance, Wage & Hour, Misclassification, Waiver, Featured Content, Hotel and Hospitality

Is Your Workplace Prepared for Layoffs?

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 F...
Tags: Law, Recession, Unemployment, Manufacturing, Class Actions, Human Resources (HR) Compliance, Laws and Regulations, Discrimination & Harassment, Owbpa, Rif, Layoff, WARN, Featured Content, Hotel and Hospitality, Disparate Impact, 45 Days

Infertility – Must Employers Provide Accommodations to Employees Trying to Get Pregnant?

Lawyers love their cocktail chatter. And at a recent bar event, an interesting hypothetical came up among lawyers: Suppose an employee is trying to get pregnant and is thinking about infertility treatments.  She’s considering time off for rest, and perhaps even for some in vitro fertilization (IVF) appointments. Perhaps even the doctor has said that the employee needs “light duty” work during certain days.   Maybe things are a little more hazy; suppose the employee just says that they are underg...
Tags: Law, Pregnancy, Treatment, Fertility, Connecticut, Leave, Ivf, Discrimination, Ada, Infertility, EEOC, Second Circuit, FMLA, Seventh Circuit, In Vitro Fertilization, Human Resources (HR) Compliance

For First Time, Court Protects Medical Marijuana Patient from Discrimination

One of the benefits of writing a blog as long as I have is that you get to track the progress of a law or legal development over a number of years. It was back in 2012, for example, that I first provided a comprehensive summary of a new medical marijuana bill that was making it’s way through the legislature. And I was quick to note that the law had enough questions attached to it that employers would be wise to spent a late night or two studying all of the quirks. Now, years later, we have the f...
Tags: Law, Marijuana, Pot, Puma, Discrimination, Medical Marijuana, Litigation, Human Resources (HR) Compliance, Laws and Regulations, Discrimination & Harassment, Thc, Chris Engler, Featured Content, Palliative Use, First Time Court

EEOC Reports Sexual Harassment Claims Up 12 Percent Nationwide

Last year I talked about how the new era of sexual harassment claims was coming.  The open question was: Would the number of claims actually increase? The answer to that is now known: Yes. The Equal Employment Opportunity Commission released its preliminary data regarding workplace harassment today. And it’s findings shouldn’t be a surprise if you’ve been paying attention. Among the notable pieces of data: Charges filed with the EEOC alleging sexual harassment increased by more than 12 percent ...
Tags: Harassment, Law, Anniversary, Connecticut, Discrimination, Sexual Harassment, EEOC, Equal Employment Opportunity Commission, Human Resources (HR) Compliance, CHRO & EEOC, Discrimination & Harassment, Cchro, Chro, Featured Content, MeToo

The Importance of Listening in Employment Law

If you’ve been playing close attention, this blog has been a bit quiet of late.  Indeed, it’s probably the longest stretch between posts in the 11 years I’ve been doing this. It’s not for lack of ideas. Rather, after many years of spouting off (which, after all, is the underlying purpose of the blog), I found myself desiring to do a lot more listening.  Listening to employers. Listening to my colleagues. Listening to other lawyers.   And the only way to do that was to really stop writing for a w...
Tags: Law, Listen, Employment law, Termination, Listening, Performance Review, Human Resources (HR) Compliance, Featured Content, Jennifer Romig

Compliance Issues for Restaurants with Credit Card Fees, Tips to Waitstaff and Tip Pooling

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? Acco...
Tags: Credit Cards, Law, Labor, Minimum Wage, Restaurant, Connecticut, Tips, Fees, Credit card fees, DOL, U S Department of Labor, FLSA, Connecticut Department of Labor, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour

Religious Institutions Do Not Get Immunity from State Anti-Discrimination Laws

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 ...
Tags: Supreme Court, Law, Connecticut, Bar, Institutions, Religious, U S Supreme Court, Hartford, YouTube Netflix, United States Supreme Court, Connecticut Supreme Court, CHRO & EEOC, Discrimination & Harassment, Chro, Hosanna Tabor, Ministerial

How Employers Can Further Their Commitment to Justice

Like a lot of people, I’ve got the summer bug and, given the choice between a walk outside and a blog post — well, you can figure out what has been winning. But I’ve got a few posts lined back up the next few weeks.  In the interim, I want to share with you one of the most meaningful and amazing speeches I’ve ever heard in person. It’s from last week when I attended the American Bar Association Annual Meeting in Chicago, where I serve as the State Delegate for Connecticut (and on the ABA Nominat...
Tags: Justice, Law, Chicago, Connecticut, Bear, Hiring, Aba, Jamie Mcdonald, Bryan, Stevenson, Laws and Regulations, Discrimination & Harassment, Manager & HR Pro’s Resource Center, Employers, Medal, Equal Justice

It’s Not the Damages, It’s the Attorneys’ Fees

Typically, in our court system, we operate under the “American Rule” which means that parties have to pay their own attorneys’ fees in cases, regardless of whether they win or lose.  (Contrast that with the English Rule which is a “loser pays” system.) But there is one big exception to the American Rule — and it can be found in lots of employment law cases.   In several instances, the governing statute allows the prevailing party (or, in some instances, just the Plaintiff — read “employee”) to c...
Tags: Law, Settlement, FLSA, Highlight, Attorneys Fees, Human Resources (HR) Compliance, Wage Hour, Discrimination & Harassment, Prevailing Party, Loser Pays, American Rule, Featured Content, Lodestar, District Court of Connecticut

Compelled Public Sector Agency Fees Declared Unconstitutional by Supreme Court

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” ...
Tags: Supreme Court, Law, Court, Connecticut, First Amendment, Litigation, Public Sector, U S Supreme Court, Abood, Alito, Janus, AFSCME, Deductions, Labor Law & NLRB, Agency Fee, Constitutional

Commuting Time Typically Not Compensable — Even in a Supercar

Cars. Lots of really fancy cars. That about sums up my Sunday in which I went to the Concorso Ferrari & Friends car event in West Hartford Center.  It has one of the biggest collections of ultra-expensive cars in the state — all to benefit the Connecticut Children’s Medical Center. What I wouldn’t do to commute in the Pagani supercar! (Anyone have an extra $3 million lying around?) Now, the odds on you commuting in a supercar and wondering if you’re getting paid by your employer are probably abo...
Tags: Law, Car, Connecticut, Commuting, Commute, Supercar, Portal, Pagani, Department of Labor, Connecticut Supreme Court, Connecticut Department of Labor, Car Show, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour, Ctdol

Suicide and the Workplace – Shining a Light on a Unspoken Issue

It was the last semester of my senior year in college – right after Spring Break – when I heard the news that would forever shape my views on mental illness. A friend and fellow editor of the college newspaper I worked for, Steven Ochs jumped to his death from one of the many bridges near his hometown in Pittsburgh, PA. A group of us ended up driving out there across the fields of Pennsylvania to mourn his passing. It was the first time I was a pallbearer at a funeral and I knew then that was so...
Tags: Workplace, Law, Suicide, Mental Health, Bureau of Labor Statistics, Pennsylvania, Violence, Kate Spade, Health Care, Mental Illness, Employment law, Prevention, Wall Street Journal, Steve, Pittsburgh, Steven

CHRO Issues Rare Guidance on Hiring and Employing Veterans

With Memorial Day coming up this weekend, it’s often a time (or it ought to be a time) to reflect on the sacrifices made by our military.  And at the same time, consider how we, as a society, treat our veterans. This issue was highlighted for me many years ago.  During a court proceeding in which fraudulent behavior of the witness was being discussed, the witness brought up his past military service, perhaps as a way to seek leniency from the court. To my surprise, rather than dismiss the commen...
Tags: Law, Veterans, Connecticut, Employment law, Guidance, Discrimination, Hiring, EEOC, Military Service, TransUnion, Human Resources (HR) Compliance, Laws and Regulations, CHRO & EEOC, Discrimination & Harassment, Cchro, Chro

After Epic Systems, Employers Face New Considerations on Arbitration Agreements with Class Waivers

As I noted earlier this week, the U.S. Supreme Court has approved of the use of class action waivers in arbitration agreements with employees. My colleague, Gabe Jiran, has a recap of Epic Systems v. Lewis on my firm’s blog, Employment Law Letter, that you can access here. So, it’s a foregone conclusion that employers of all shapes and sizes will start using arbitration agreements and insert provisions with class action waivers, right? Not so fast. As Jon Hyman astutely noted in his Ohio Employe...
Tags: Law, California, Connecticut, Sexual Harassment, Class Action, Agreement, Class Actions, Arbitration, Collective, Lewis, U S Supreme Court, FLSA, Epic Systems, Human Resources (HR) Compliance, Wage & Hour, Discrimination & Harassment

BREAKING: In “Epic” Decision, Supreme Court Approves of Employer Use of Class Action Waivers in Arbitration Agreements

In an important 5-4 decision, the U.S. Supreme Court this morning held, for the first time, that class or collective action waivers, particularly in wage/hour cases, and contained in arbitration agreements between employers and employees are valid and enforceable. Because wage and hour class and collective actions are quite costly for employers to defend against, this decision should cause employers in Connecticut (and nationwide) to re-evaluate their employment relationships with employees and ...
Tags: Supreme Court, Law, Congress, Court, Connecticut, Faa, National Labor Relations Board, Class Action, Agreement, Class Actions, Board, Arbitration, Lewis, U S Supreme Court, Ginsburg, Lochner

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