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Articles: Archive
- 2024 Employment Trends?
- Workplace Religious Accommodations
- Do I Have A Case?
- Employee’s Testimony Sufficient for Damages
- The NLRB: Noncompete Agreements Are Unlawful
- NLRB and Confidentiality and Non-Disparagement
- Continued Employment Can Support Restrictive Covenant
- Retaliation Claims
- Medical Marijuana and UC Benefits Case
- Avoiding The Rush To Terminate
- New 2022 Laws
- U.S. Supreme Court Ruling on Dobbs Case & Employment
- Emotional Distress Damages
- DOL Guidance on FLSA and FMLA Retaliaton
- No Women’s Only Work-Out Area in CT
- OSHA’S MANDATORY VACCINE POLICY FAILS
- COVID-19 and The Courts
- Legality of Mandated Vaccinations
- New Employment Laws Effective 10-1-21
- August, 2021-CT’s New Cannabis Law
- July, 2021
- CT WAGE DISCLOSURE LAW
- May, 2021
- ARPA
- Public Policy Discharge
- The Vanishing Jury Trial-Part Two
- 2020
- Employment Arbitration & Supreme CourtJanuary, 2019 SUPREME COURT RULES ON EMPLOYMENT ARBITRATION DISPUTE WITH TRUCK DRIVER There has been a flurry of activity at the U.S. Supreme Court concerning the resolution of employment disputes, not through court litigation, but by arbitration. On January 15, 2019, the Court ruled that a trucking company can not compel arbitration in a wage and hour case brought by a truck driver who was classified as an independent contractor rather than as an employee. New Prime Inc. v. Oliveira, No. 17-340. Full disclosure: I am an employment and commercial arbitrator with the American Arbitration Association, a commercial arbitrator with the American Dispute Resolution Center, Inc. and an arbitrator with the Financial Industry Regulatory Authority. In an arbitration agreement, or a contract providing for the resolution of employment disputes through private arbitration, employers and employees can agree in advance to have a neutral third party, i.e. an arbitrator who is usually an attorney, to decide legal claims rather than resorting to court litigation. Many times, employees unknowingly sign forms upon hire allowing arbitration. Resolution through arbitration is usually more timely and less costly than court litigation, although claimants may forfeit certain rights and possibly remedies that would otherwise be available in a court of law. Under the Federal Arbitration Act, (FAA), businesses can generally enforce reasonably drafted agreements to arbitrate work-related claims. However, Section 1 of the FAA has an exception for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Therefore, transportation employees involved in interstate commerce, such as long-haul truck drivers, can not be forced to arbitrate employment claims. The question in New Prime was whether this exception applies only to employees or also to independent contractors. The answer: the high court affirmed that the exception applies to independent contractors. “We see here no evidence that a ‘contract of employment’ necessarily signaled a formal employer-employee or master-servant relationship.” Justice Neil Gorsuch wrote for the 8-0 court, with Justice Kavanaugh taking no part in the consideration or decision of the case. Some considerations include 1) while this decision is important to the transportation industry, it may very well be limited to that industry; 2) although an independent driver’s agreement falls under the FAA exception, it still could be enforced under state arbitration laws. The Facts of New Prime The truck driver brought a class-action complaint in court against an interstate trucking company, alleging that he and other independent contractors were misclassified and due certain employment benefits, such as minimum wage payments. Although the driver has signed an arbitration agreement with the trucking company, he claimed that the FAA’s exception for certain transportation employees applied to employees and independent contractors alike. The trucking company argued that the exception applied only to employees and that arbitration agreements can be enforced against independent contractors. The First Circuit Court of Appeals ruled in the driver’s favor and held that the independent contractor agreement was a “contract of employment” and was exempt from the FAA, allowing him to proceed to court. The Supreme Court upheld the First Circuit’s ruling. The Question of Arbitrability Sometimes, arbitration agreements include a clause stating that the issue of whether the case should be heard by an arbitrator or the courts, i.e., “arbitrability,” is reserved for the arbitrator to decide. In another Supreme Court arbitration decision decided this month, the high court found that an arbitrator should decide the threshold question of whether an issue is arbitrable, even when there is language suggesting that there should be no arbitration. Schein, Inc. v. Archer & White Sales, Inc. The issue in Schein was whether the FAA permits a court to decline to enforce an agreement that delegates arbitrability questions to an arbitrator, if the court finds the arbitrability claim “wholly frivolous.” In his first opinion, Justice Kavanaugh issued a pro-arbitration decision that won unanimous support from the other justices. “The Act [FAA] does not contain a ‘wholly groundless exception’ and we are not at liberty to rewrite the statute passed by Congress and signed by the president. When the parties’ contract delegates the arbitrability question to the arbitrator, the courts must respect the parties’ decision as embodied in the contract.”
- Union Grievance, Lawsuit or Both?
- CT Paid Family & Medical Leave Act CT PAID FAMILY LEAVE FACT SHEET FOR EMPLOYERS & EMPLOYEES On June 25, 2019, Connecticut passed legislation to create a comprehensive paid family and medical leave insurance program – Connecticut Public Act 19-25. The Paid Family and Medical Leave Act (PFMLA) is administered by the quasi-public CT Paid Leave Authority, a department of the Department of Administrative Services. The purpose of the PFMLA is to provide workers with access to paid leave for life events covered under the federal Family and Medical Leave act of 1993 (FMLA), the Connecticut Family and Medical Leave Act (CT FMLA) and the Connecticut Family Violence Leave Act: • To address the worker’s own serious health concern; • To care for a child after birth, adoption or foster placement; • To provide care to a seriously ill or injured family member; • To address qualifying exigencies arising from the military deployment of spouse, son, daughter or parent of employee on active duty or has been notified of an impending call or order to active duty, or to care for a military family member who is injured during active duty; • To serve as an organ or bone marrow donor; or • To address certain matters relating to family violence. The program will be funded by employees and voluntary self-enrolled participants (self-employed individuals or sole proprietors who can opt-in). Collection of employee wage deductions by employers must begin on January 1, 2021. Payment of benefits determined by the Authority will begin on January 1, 2022. Eligibility Employers: Employers with one or more employees. Employees: A covered employee, even a part-time employee, under PFMLA earned wages of at least $2,325 in the highest quarter of the first four of the five most recently completed quarters and are currently employed or were employed by a Connecticut employer during the 12 weeks immediately preceding the employee’s application to the Authority. Definition of Family Member Child, Parent, Spouse, Domestic Partner, Grandparent Grandchild, Individual related to employee by blood or affinity whose close association shows to be equivalent of those family relationships. Length of Paid Leave A qualified employee is entitled to up to 12 weeks of paid leave benefits. In the event of the employee experiences a serious health condition resulting in incapacitation that occurs during a pregnancy, the employee may qualify for an additional 2 weeks of paid leave under the PFMLA. Amount of Pay If an employee’s wages are less than or equal to the CT minimum wage multiplied by 40, the weekly wage rate under the PFMLA will be 95% of the average weekly wage. Note: 40 times the minimum wage will be equal to $520 weekly in January, 2022, the start of the payout, increasing to $560 on July 1, 2022 and $600 on June 1, 2023. If an employee’s wages exceed the minimum wage multiplied by 40, the weekly benefit rate will be 95% of the minimum wage multiplied by 40 plus 60% of the amount the average weekly wage exceeds the minimum wage multiplied by 40. The benefit rate is capped at 60 times the CT minimum wage. Payroll Deductions of Employees Employee payroll deductions begin January 1, 2021 at 0.5% of the employee wages up to the Social Security contribution base. The deductions will be pooled into a single trust managed by the State Treasurer. There is no employer match. Exclusions • Employees of the federal government; • State and municipal employees who are members of a union (unions can bargain to be included in the program); • Employees of local and regional members of boards of education; • Non-public elementary and secondary school employees. Enforcement The CT Paid Leave Authority’s website states that it “…offers payment for qualifying events but does not offer job protection to employees taking leave. Only employers can determine, in communication with the employee, whether the leave taken is subject to job protection. Federal and state Family & Medical Leave Acts describe the rules for job-protected leave and are NOT paid leave laws.” There is no private right of action under the CT PFMLA. A complaint must be addressed to Commissioner of the CT Department of Labor for a decision and review may be submitted to Superior Court. Relief is limited only to the compensation that was denied.
- Fighting Words and Free Speech
- EPSL and UC Benfits
- New Supreme Court Employment Cases
- COVID-19 and Unemployment Benefits
- CT’s Shared Work Program
- COVID-19
- Workplace Ageism
- Retaliation
- Increse in CHRO Sexual Harassment Claims
- Jury Duty
- New Employment Laws
- Do I Have A Case?
- New CT Sexual Harassment Law
- New CT Anti-Sexual Harassment Law
- May, 2019 WHAT IS A CONSTRUCTIVE DISCHARGE? Many times, work can seem unbearable. But the law does recognize certain limited circumstances where an employer’s conduct becomes so unreasonable that it provides a basis for a claim of a “forced resignation” called a “constructive discharge.” However, two recent cases from the Appellate Court, released within days of each other, illustrate that the bar to establish a “constructive discharge” is exceedingly high. In Connecticut, “constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily ….Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign …” Brittell v. Dept. of Correction, 247 Conn. 148, 178 (1998). But a claim of constructive discharge must be supported by more than the employee’s subjective opinion that the conditions were intolerable such that she was forced to resign. In the first Appellate Court case, Karagozian v. USV Optical, Inc., 186 Conn.App. 857 (Jan. 8, 2019), the plaintiff was employed as a licensed optician manager of the optical department owned and operated by the defendant USV Optical, Inc. in a JCPenney store. The defendant required the plaintiff, as part of his duties, to provide optometric assistant services to the doctor of optometry in the store. When the defendant refused the plaintiff’s request to not perform these additional duties, the plaintiff, as he alleged in his complaint, was “compelled to resign from his position.” The trial court granted the defendant’s motion to strike the complaint on the ground that the complaint insufficiently alleged the elements of a claim of constructive discharge. The Appellate Court agreed with the trial court, holding that the plaintiff failed to allege that defendant intentionally created an intolerable workplace or that there was an intolerable workplace that would have compelled a reasonable person to resign. In the second case, Boucher v. St. Francis GI Endoscopy, LLC, 187 Conn.App. 422 (Jan. 22, 2019), the plaintiff sought to recover damages from the defendant claiming that the defendant retaliated and constructively discharged three days after her complaint of being sexually harassed by a coworker. The trial court granted the defendant’s motion for summary judgment finding that the defendant took no adverse action against the plaintiff to support a retaliation claim. Additionally, the Appellate Court, in citing Second Circuit precedent, stated that a constructive discharge claim cannot be proven merely by evidence that an employee … preferred to not to continue working for that employer or that employee’s working conditions were difficult or unpleasant. Additionally, an employee claiming constructive discharge under retaliation must give the employer a reasonable chance to remedy any intolerable working conditions before quitting. In this case, the plaintiff’s supervisor tried to stop the plaintiff from quitting by asking her, “Are you sure you want to do this?” I did say the bar is quite high, right? In one case the Busca Law Firm was involved with, the plaintiff quit after her employer’s remedy to her sexual harassment complaint against her supervisor was for her to continue to work in close proximity to her supervisor under supervised arrangements. The court granted the defendant’s motion for summary judgment on the constructive discharge claim, stating that the plaintiff did not give this arrangement a chance to succeed. Other claims the plaintiff made survived summary judgment. What to take away from this case: before you quit your job because of an “unreasonable” employer, speak with a knowledgeable employment attorney.
- Employment Law & DIY
- NLRB Rules on Concerted Activity
- Employment Arbitration
- SUPREME COURT RULES ON EMPLOYMENT ARBITRATION DISPUTE WITH TRUCK DRIVER There has been a flurry of activity at the U.S. Supreme Court concerning the resolution of employment disputes, not through court litigation, but by arbitration. On January 15, 2019, the Court ruled that a trucking company can not compel arbitration in a wage and hour case brought by a truck driver who was classified as an independent contractor rather than as an employee. New Prime Inc. v. Oliveira, No. 17-340. Full disclosure: I am an employment and commercial arbitrator with the American Arbitration Association, a commercial arbitrator with the American Dispute Resolution Center, Inc. and an arbitrator with the Financial Industry Regulatory Authority. In an arbitration agreement, or a contract providing for the resolution of employment disputes through private arbitration, employers and employees can agree in advance to have a neutral third party, i.e. an arbitrator who is usually an attorney, to decide legal claims rather than resorting to court litigation. Many times, employees unknowingly sign forms upon hire allowing arbitration. Resolution through arbitration is usually more timely and less costly than court litigation, although claimants may forfeit certain rights and possibly remedies that would otherwise be available in a court of law. Under the Federal Arbitration Act, (FAA), businesses can generally enforce reasonably drafted agreements to arbitrate work-related claims. However, Section 1 of the FAA has an exception for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Therefore, transportation employees involved in interstate commerce, such as long-haul truck drivers, can not be forced to arbitrate employment claims. The question in New Prime was whether this exception applies only to employees or also to independent contractors. The answer: the high court affirmed that the exception applies to independent contractors. “We see here no evidence that a ‘contract of employment’ necessarily signaled a formal employer-employee or master-servant relationship.” Justice Neil Gorsuch wrote for the 8-0 court, with Justice Kavanaugh taking no part in the consideration or decision of the case. Some considerations include 1) while this decision is important to the transportation industry, it may very well be limited to that industry; 2) although an independent driver’s agreement falls under the FAA exception, it still could be enforced under state arbitration laws. The Facts of New Prime: The truck driver brought a class-action complaint in court against an interstate trucking company, alleging that he and other independent contractors were misclassified and due certain employment benefits, such as minimum wage payments. Although the driver has signed an arbitration agreement with the trucking company, he claimed that the FAA’s exception for certain transportation employees applied to employees and independent contractors alike. The trucking company argued that the exception applied only to employees and that arbitration agreements can be enforced against independent contractors. The First Circuit Court of Appeals ruled in the driver’s favor and held that the independent contractor agreement was a “contract of employment” and was exempt from the FAA, allowing him to proceed to court. The Supreme Court upheld the First Circuit’s ruling. The Question of Arbitrability: Sometimes, arbitration agreements include a clause stating that the issue of whether the case should be heard by an arbitrator or the courts, i.e., “arbitrability,” is reserved for the arbitrator to decide. In another Supreme Court arbitration decision decided this month, the high court found that an arbitrator should decide the threshold question of whether an issue is arbitrable, even when there is language suggesting that there should be no arbitration. Schein, Inc. v. Archer & White Sales, Inc. The issue in Schein was whether the FAA permits a court to decline to enforce an agreement that delegates arbitrability questions to an arbitrator, if the court finds the arbitrability claim “wholly frivolous.” In his first opinion, Justice Kavanaugh issued a pro-arbitration decision that won unanimous support from the other justices. “The Act [FAA] does not contain a ‘wholly groundless exception’ and we are not at liberty to rewrite the statute passed by Congress and signed by the president. When the parties’ contract delegates the arbitrability question to the arbitrator, the courts must respect the parties’ decision as embodied in the contract.”
- ADEA Expansion
- U.S. Supreme Court docket
- Employer Workplace Investigations
- September, 2018
- CT Statute 31-55bb
- Janus v. AFSCME
- CT Pay Equity Act
- Breach of Employment Contract Cases
- New Tax Law Prohibits Sexual Harassment Deductions
- Sexual Harassment Legal Standards
- USERRA
- Workplace Arbitrations
- New CT Law for Pregnant Employees & Applicants
- Transgender Discrimination
- July, 2017
- June, 2017
- May, 2017
- April, 2017
- March, 2017
- Sexual Harassment at the Workplace
- Adverse Employment Actions
- Sexual Orientation Discrimination
- Direct and Indirect Evidence of Discrimination
- October, 2016
- EEOC Retaliation Guidance
- No Evidence That Training Prevents Harassment
- US Dept. of Labor Employer Investigations
- Training Does Not Prevent Harassment
- EEOC Leave Guidance
- Age discrimination
- Supreme Court Allows Agency Fees
- Employer Investigations
- Happy 2016 Labor & Employment Year!
- Criminal Background Checks Under CT Law
- Facebook postings of employer
- FMLA
- Reasonable Accommodation Under the ADA
- U.S. Supreme Court
- Older Workers
- THE DEFINITION OF “EMPLOYEE” UNDER CFEPA IS ONE WHO RECEIVES “REMUNERATION”
- Connecticut Supreme Court Issues Decision Reversing Summary Judgement Based On Hostile Work Environment-Sexual Harassment
- U.S. Supreme Court Issues Decision Regarding Pregnancy Discrimination Act
- Labor and Employment Issues Under Consideration By 2015 Connecticut General Assembly
- Perceived Physical Disability A New Cause Of Action In Connecticut
- Company Email Can Be Used To Organize A Union
- Summary Of Labor And Employment Legislation Passed By 2014 Connecticut General Assembly
- Court Does Not Consider Written Warning An “Adverse Employment Action”
- Suspension Without Pay Not Considered An “Adverse Employment Action” Where Employee Used Vacation And Sick Pay.
- What Is Defamation And How Does It Apply In The Employment Context
- Practice of Issuing Bonus Did Not Create Contractual Obligation
- Supreme Court Deals A Glancing Blow To Public Sector Unions
- A Wrongful Discharge Case Against An Employer for “Intimidating, Bullying and Humiliating” Under Conn. Gen. Stat. Section 31-49
- Are College Football Players Receiving Scholarships “Employees” Under the National Labor Relations Act?
- Connecticut Legislative Update
- New Haven Police Establish Their Own Union
- Report of Internal Investigation Precluded as Prejudicial in Age Discrimination Case
- It Won’t Be A Happy New Year For Unemployment Recipients
- Why Attorneys Will Not Be Going To Federal Court With Your Claims
- When Does A Resignation Become A Discharge
- Wage Laws Prevent Unpaid Interns Used As Employees
- Busca Law Firm Wins Summary Judgment
- CT Supreme Court Interprets Labor Arbitration Award In Determining Whether Public Policy Violated
- Supreme Court Hands Down TwoEmployer Friendly Employment Decisions
- Changes Proposed At The Chro
- Proposed CT Bill Would Provide Free Speech Protections To Employees
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