Articles

April, 2017

There have been several new cases and issues affecting Connecticut employees and employers at the workplace.

CONNECTICUT SUPREME COURT CLARIFIES INDEPENDENT CONTRACTOR STATUS

In a case released March 21, 2017, the Connecticut Supreme Court clarified the factors to consider when evaluating whether an individual should be considered an excluded independent contractor for unemployment benefit purposes.  Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act.

Connecticut Labor Statute §31-222 contains the so-called “ABC” test to determine if an individual is an employee eligible for unemployment benefits.  These factors are summarized as follows: 1) whether the individual is free from the employer’s control and direction; 2) whether the individual’s service is performed outside the employer’s business; 3) whether the individual is engaged independently in an established trade, occupation, profession or business of the same nature as the employer’s.

The issue before the Court was whether an independent contractor who works only with one company can still be an independent contractor, i.e., the “C” or third part of the “ABC” test.  The Court stated that an individual could still be considered an independent contractor under the “totality of the circumstances” test.  The factors to be considered for this test include:

1. The existence of a state license or specialized skills;
2. Whether the individual holds himself or herself out as an independent business through
3. The existence of a place of business separate from that of the employer;
4. The individual’s capital investment in the independent business, such as vehicles and equipment;
5. Whether the individual handles his or her own liability insurance;
6. Whether the services are performed under the individual’s own name as opposed to the employer’s;
7. Whether the individual employs or subcontracts with others;
8. Whether the individual has a saleable business with existing clients;
9. Whether the individual performs services for more than one entity;
10. Whether the performance of services affects the goodwill of the individual rather than the employer.

NEW LIMITS ON DISCIPLINING EMPLOYEES

A recent article published by the Society For Human Resource Management highlights the real liabilities that employers can suffer when they discipline employees without regard to developments in workplace law.

The NLRB

The article states a fact, previously examined in this newsletter, that insubordination towards a supervisor may be protected by the National Labor Relations Act as “protected concerted activity,” even in non-union workplaces.  This is true for criticisms of management on social media which gathers co-employee support, especially during union organizing drives.

The ADA

Also, employee anger or defensiveness towards co-workers or a general inability to work with others have been tempered by court decisions ruling that such mental health issues could invoke the protections of the Americans With Disabilities Act, (“ADA”).  Communicating with others and even thinking and concentrating are considered “major life activities” under the ADA.

Discipline for Excessive Absenteeism

Many states have enacted paid-sick leave laws for employees.  Such laws may severely limit an employer’s right to discipline for excessive unscheduled absences or tardiness and may deny the employer’s right to ask for a doctor’s note or advanced notice as a condition of using the paid sick leave.

In Connecticut, employers with 50 or more service employees are required to provide paid sick leave at an accrual rate of one hour of paid sick leave for each 40 hours worked to a maximum of 40 hours per year.  Such employees can carry over up to 40 unused paid sick leave hours from one year to the next.  The allowable reasons include:  the employee’s own illness, injury or health condition; medical diagnosis, care or treatment of his/her mental or physical illness, injury or health condition; preventative measures.  Such paid sick leave may be used for a child’s or spouse’s illness, injury or health condition, medical diagnosis, care or treatment of mental or physical illness or preventative medical care.

Connecticut statutes prohibit retaliation or discrimination for such employee use.