I’m getting older. So are you, by the way.
There are a number of ways that this understanding becomes apparent for me. My back aches. I groan when I tie my shoes. I am a purveyor of bad jokes. I yell at the news on the television. I still watch television, etc.
But I am also starting to see folks from my childrens’ generation having kids. It delights me when I hear about a new baby on the way. The best thing that ever happened to me was becoming a dad, and I am always happy to hear when a friend or client of mine is about to join the parenting club.
Last week a friend of mine got in touch with me. His wife is due to deliver their first child within the month. It is an exciting time for them. I have tried to share some wisdom. His own wisdom will develop quickly.
In any event, his wife is a teacher in a district in central Connecticut. Her union contract says that she is entitled to twelve weeks of FMLA leave. That is the law. Under the contract, it also provides that when an employee takes FMLA leave, the employee is required to exhaust accumulated paid leave time where the leave is covered by the FMLA. The paid leave exhaustion runs with the FMLA leave. So the maximum available leave is twelve weeks, but it will be paid while the paid leave time is being exhausted.
That is fine with my friend who wants his wife to be able to use her sick time while she is caring for her newborn.
Here is the issue though. Her due date is July 1, which is after the current school year ends. So for the months of July and August she will not be required to use FMLA leave time because she will be on summer break.
But when the school year begins at the end of August, she will then begin using her FMLA leave of twelve weeks. The district has told her though that she will not be able to use up her paid leave time while out on FMLA because she will have had the child during the summer break.
That makes no sense. And it violates the contract. And it is probably illegal.
Suppose the woman was not having a baby on July 1. Suppose instead she broke her leg on July 1 and required surgery and convalescence that would keep her out of work through the month of September.
For the month of September she would simply apply for FMLA and use her sick time concurrently with the FMLA leave so that she could get paid. There would be no dispute.
The employer’s dispute in the present case is that because the woman is delivering a child on July 1, and is not injured herself but rather caring for her child in September, she is not eligible for paid leave. The district is wrong. And it is probably discriminating against the employee due to her pregnancy.
Under Connecticut law it is illegal to discriminate against an employee because of her pregnancy, including the denial of employment rights and opportunities due to pregnancy. In this case, it looks like the employer is doing just that.
Back in 2012 when the Sandy Hook Elementary School tragedy happened I was privileged to work with the Newtown Police Union. I still do.
At the time of that horrific event, few people in this state knew or understood that the emotional impacts that first responders suffered on that awful day would largely be borne alone by the officers, without any help from insurance companies, employers, or the government.
Many entities tried to step up to help those who were impacted on that day, but it became clear early on that even government officials had a hard time grasping how the workers’ compensation system worked, and how to help the public safety officers who responded.
Under Connecticut workers’ compensation law, covered employees can receive the entire range of benefits for physical injuries. For the most part, emotional injuries are not covered unless they result from a physical injury.
For example, if a person slipped and fell at work suffering a severe back injury, that person would receive workers’ compensation benefits for the physical injury. And if that person suffered anxiety and depression as a result of the back injury, either due to the pain from the injury, or because he was now limited in his activities of daily living, those emotional injuries would also be covered.
However, if the employee simply suffered an emotional injury, without any physical component, the workers’ compensation laws in our state would not provide the worker with any protections.
This problem became starkly apparent after Sandy Hook. Those of us who work with public safety officers had been aware of the problem for years before the tragedy at the school, but nobody really began taking a serious interest in it until after Sandy Hook.
Workers’ compensation provides three basic benefits. It provides medical expense coverage so that the injured worker can obtain treatment for his illness or injury. It also provides wage replacement benefits so that while the employee is out of work recovering from injury or illness, he will receive his regular paycheck. And finally it provides a payment for permanent disabilities and lost earning capacity resultant from the injury or illness.
It is rare that those benefits are sufficient to make a person whole, and rarer still for an employee to gain a windfall from the system. But the system is designed to get a worker back to good health as quickly as possible so that he can return to work and continue to earn a living. There are plenty of horror stories about the system’s failures, but in theory it is designed to work properly with a goal of getting injured workers healthy and back to work.
For those workers, particularly in public safety, who witness tragedy and violence on a regular basis, stress disorders are a real job hazard. PTSD is real and affects many of our first responders.
Last week, the Connecticut General Assembly finally moved, nearly seven years after Sandy Hook, to provide workers compensation benefits to first responders who suffer from PTSD resultant from the performance of their duties. There are various requirements of proof that have to be met before benefits become payable, and they will be applied stringently. But finally, Connecticut’s first responders will no longer have to suffer alone when they become witnesses to appalling tragedy.
I remember reading articles after the federal tax law changes went into effect last year that we would begin to see more and more folks seeking classification as independent contractors rather than as employees of the businesses that they work for. Indeed, over the last generation, millennials seem to be finding jobs more and more as contractors rather than employees.
These new graduates into the workforce bring special skills with them that they can share with a number of businesses. By working a few hours a week for a number of businesses, they can establish their own schedules, freelance their work, and earn a living in a way that many never considered when folks like me were getting out of college.
With work being done these days at home, in coffee shops, or even at the beach, contracting seems like an attractive way to make a living.
And the idea has its appeal to business owners too. Employees bring costs and liabilities with them. Hire an employee and you will be paying for workers’ compensation insurance and probably be incurring unemployment liability when the relationship ends. You will be responsible for payroll withholdings and state and federal tax payments too. Once you are done training the employee and showing him how the job gets done, you need to worry about retaining him before he goes to work for a competitor.
The idea of hiring independent contractors to get work done at a business seems to make a lot of economic sense. However, just because you classify a worker as an independent contractor, it does mean that the worker is an independent contractor under the law.
In Connecticut, our courts have established the so-called “ABC test” for determining whether or not a worker is an employee or an independent contractor. And generally the law will default to classifying a worker as an “employee” unless it can be proven that the worker fits squarely under the definition of “independent contractor.”
Under the “ABC test,” an employer must first show that the worker has been and will continue to be free from control and direction in connection with the performance of the work, both under his contract for the performance of service and in fact.
Second the employing party must show that the work is performed either outside the usual course of the employer’s business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed.
Finally, the employing party must prove that the worker is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
The easiest way to see this is by considering an accountant’s office. The office is in the business of providing accounting services. If the business decides that it has an overflow of work during tax season, it might decide to bring on an extra few CPAs to get tax returns done between February and April.
If the office farms out the work to the CPAs and the CPAs perform the work at their own places of business and bill the accountant for the service, that is likely going to be an independent contractor relationship.
But if the accounting firm brings the CPAs into its own office, assigns the CPAs work to do during regular hours at the office and pays them a certain rate of pay for hours worked, that will look more like an employee/employer relationship, and all of the liabilities of that relationship will follow.
While I have built my career representing employees in employment disputes, I still represent a handful of employers who do not have the revenue to support a human resources department. Many small employers face occasional employment issues that require a certain amount of expertise before making a business decision and I am happy I can fill the void for these hard-working folks.
One of the hardest decisions that an employer can face is terminating an employee. Even where an employee is underperforming, in lots of small businesses, subordinates and co-workers are like family. Letting someone go can be painful for all.
I had a client contact me recently because there was some tension among co-workers at his successful and growing business. I have watched as his business has grown and he has navigated the varied issues that often confront a business that is growing. For example, it is often difficult to find a good group of employees that can execute a business owner’s vision.
However, I have seen that this business owner has good leadership and he has been able to take a varied workforce and mold it into a unit that continues to execute and perform. Now and then though a poor employee comes in and it can be disruptive.
He had watched a new employee perform well and he promoted that employee to a position with greater responsibility. However, when the employee moved into that new position, his head got a bit too large and he became a bit of a tyrant when dealing with his new subordinates. He was spoken to and told to take it down a notch, but the counseling did not seem to resonate.
He continued on the path of destruction until finally a handful of subordinates and co-workers had enough. They got into a verbal dispute. Unfortunately, one of the subordinates used a slur when arguing. At that point, the supervisor ended the conversation and left the scene. The subordinate gave a moment to cool off and then apologized.
The subordinate had been a long-time worker with an effective work record. He was the glue that held his department together. He definitely screwed up, but his outburst was brought on by the behavior of the supervisor who had been warned a few times to tone down his behavior.
The supervisor went to the owner and argued that the work environment had become hostile. The owner thought that the supervisor was making the environment hostile. The sticky part was that the supervisor was the victim of the slur.
So the owner called me to find out what he could do. Before the blowup happened he was considering either demoting the supervisor or terminating him. Now he was concerned that if he took any action he might be sued for accepting a discriminatory work environment based on the slur.
I told him that he needed to bring the employees in who were engaged in the dispute that led to the slur and counsel them on hostile work environment behavior. The worker who uttered the slur needed to be disciplined and warned that if it happened again he would be terminated.
Still the employer wanted to let the supervisor go. I told him that he had to do what was best for his business and if that meant terminating the employee then he should do so. However, I warned him that it could lead to a lawsuit, and he had to factor that prospect into his decision-making.
Folks come to see me fairly regularly when they are either thinking about leaving employment, or soon after they have been let go from a job. These times are often fraught with anxiety and uncertainty as the person goes from the stability of having a regular job to trying to figure out what comes next.
Many of the people that I counsel have valuable skills that can be readily transferrable to a new employer. Others come to me with thoughts of starting their own business and using the skills they have developed over time to produce a better product or provide a better service.
This is the essence of the American dream. Each of us is supposed to have an opportunity to strike out on our own and fulfill our promise. But these days, more than ever, I have to tell the people who come to me to pump the brakes for a moment.
That is because increasingly people in the workforce are restrained by non-compete and non-solicitation “agreements” that severely constrain their abilities to move on in their careers.
Non-competes have increasingly found their way into employment relationships as employers try to limit an employee’s ability to take knowledge and relationships nurtured on the job and transfer them to a new employer.
When someone comes to see me about the ending of an employment relationship, my first question is always whether or not there is a non-compete provision. Often the client is unsure. Lots of times the non-compete is one of multiple documents signed when the employment relationship starts. It is rare that a new employee pays attention to the document because at that time the employee is thinking about the great new job, not about the potential ending of the relationship.
Generally, I think that enforcement of non-competes is bad policy. As an example, I read a news item last week about a patient in Iowa who needed to see a doctor who had provided cancer treatment to him a few years earlier. When he contacted the clinic, he was told that the doctor no longer worked there. When he asked for forwarding information, the clinic would not provide it.
The patient was not able to track the doctor down.
It turned out that the doctor had ended his employment with the clinic and he was subject to a non-compete which prohibited him from working within 35 miles of the clinic. The clinic had good reasons to have a non-compete. It did not want to lose its clients to the doctor’s new practice.
On the flip side however, it is bad policy to limit a patient’s access to a doctor that has treated him previously. Some states limit the applicability of non-competes in these situations because the public interest demands free access to qualified medical personnel. But every state is different.
According to the news article, nearly forty five percent of practitioners are now subject to non-compete agreements.
Patient advocates have argued that these types of agreements should not be enforced by the courts because they compromise the public health. That makes good sense. That is why in 2016 Connecticut passed a law limiting the scope of physician-related non-compete agreements to no more than one year in duration, and 15 miles in geographic location.
I often hear from employees who know that they are on the “hot seat” at work. The story is always the same even though the characters and settings may differ.
Usually, the employee has seen his long-time supervisor replaced by a new supervisor who is coming in to put his own imprint on the job. That usually means adjusting expectations, and looking at performance of employees with a more critical eye. Inevitably, one or two employees are singled out and continued employment becomes questionable.
Frequently the employees who come to see me are singled out because of their age, or their disability status. The new boss assumes that the age of the employee or the disability status renders the employee unable to perform up to the supervisor’s expectations.
Soon scrutiny of the employee increases and documentation of performance issues starts to occur. And then, before any action is taken, the employee may be put on a performance improvement plan or “PIP.”
A “PIP” is not what it claims to be. It claims to be a plan to help the employee improve performance by setting benchmarks and providing supervisory guidance. In reality, a PIP always creates unattainable benchmarks without any supervisory guidance. It is created as evidence to show that the employer wanted the employee to improve, but in reality it exists to cause the employee to fail so that the employer can fire the employee for not meeting unreachable benchmarks.
Once a PIP is put in place, the handwriting is on the wall. The door has been opened, and the boot is aiming toward the employee’s backside.
Some employees, knowing what is about to occur, become more proactive in order to set the stage for a coming wrongful termination lawsuit.
In a recent case decided in Connecticut federal court last week, the court said that an employee could tape record meetings that his employer held in an attempt to gain evidence in support of his age discrimination case.
The employee had brought the age discrimination claim against his employer while he was still employed. At his deposition, it was discovered that he had surreptitiously recorded multiple meetings while at work. Following the deposition the employer fired him for making the recordings in violation of company policy.
The company then sought an injunction to prohibit the employee from using the recordings for any purpose. The company was concerned that the recordings contained confidential trade secrets. It did not want those trade secrets to be disclosed, and it claimed that the lack of security of those secrets posed a threat of irreparable harm.
The court found that the employee was convincing and believable that he made the recordings in order to support his discrimination case and not in order to steal trade secrets from the company. The company argued that the recordings jeopardized the security of its trade secrets. While the court agreed that the recordings might contain trade secrets, it would not prohibit the employee from using the recordings to support his age discrimination claim.
The case is unlikely to set a precedent in Connecticut because it comes from a trial court, but employers should be wary of harassing or discriminating against employees, because the employee may be able to record incriminating evidence and use it against the employer.
We have all heard stories in the news about felons getting released from prison and then within days engaging in a crime spree before being arrested again and sent back to prison. In the wake of their mayhem, lives are destroyed, property is lost or wrecked, and we all pay a price.
It never really made sense to me that men and women who have spent years, if not decades in prison, are suddenly just expected to reenter society and abide by the law without a secure job or housing.
According to Connecticut’s Office of Policy and Management, 54 percent of men and women discharged from Connecticut prisons return to prison within three years. It costs Connecticut’s taxpayers $50,000 per prisoner on average annually to keep a prisoner incarcerated. And eighty percent of the prisoners who are released have chronic medical, psychiatric, or substance abuse problems.
Still there are limited programs in place within the system to allow for a prisoner’s safe reentry into the population. Without a job and a place to live, much of the burden for a prisoner’s reentry is placed upon that prisoner’s family. But many of those families have limited resources to help support the released prisoner with adequate food, housing and medical care.
Proper reintegration into society requires that society help manage the burden of ensuring housing and workforce placement. Simply opening the prison door, shaking the prisoner’s hand, and sending him out into the world on his release date is not going to be good for the prisoner or for society.
Last week federal lawmakers came together in a bipartisan way to push for legislation to help ex-prisoners find work upon release. Republican and Democratic lawmakers proposed the so-called Fair Chance Act as they seek to reduce recidivism rates by making it easier for ex-prisoners to find work.
Under the law the federal government and federal contractors would be prohibited from making inquiries about an applicant’s criminal past before a conditional job offer is made. In supporting the legislation, Senator Ron Johnson of Wisconsin said that “getting people back to work improves the safety of our communities, strengthens families, and reduces government dependence.”
In 2016, Connecticut became one of 33 states in the union to pass so-called “ban the box” legislations that prohibits employers from making inquiries into an applicant’s criminal history at the beginning of the employment process in most circumstances. That means that employers cannot ask applicants, prior to making a conditional job offer, whether or not the applicant has any criminal convictions, has ever been arrested, or has ever been criminally charged.
Employers in Connecticut cannot make criminal background inquiries until the interview process has begun or a job offer has been made.
The idea behind these laws is to give former prisoners an opportunity to present themselves for a job on their merits so that they are not disqualified out of hand before the interview process even starts. While the laws do not require employers to hire former prisoners, it gives employers an opportunity to learn more about former prisoners before making a decision about whether or not to employ them.
If we are a society that believes in redemption, these types of laws are a step in the right direction.