Connecticut Governor Dannel P. Malloy has signed two laws expanding benefits and protections to veterans. The first would reinstate eligibility for state benefits to any veterans discharged from the armed services, regardless of discharge classification, who were denied benefits solely based on their sexual orientation (Pub. Act 13-48). The second would revise current military leave protections to employees who are members of the state armed forces who take time from their employment to perform ordered military duty (Pub. Act 13-49). The laws become effective on October 1, 2013.
Articles about Connecticut Labor and Employment Law.
In Connecticut, a private employer’s right to discipline an employee for speech made within the scope of his employment and as part of his official duties was established when the Connecticut Supreme Court issued its ruling in Schumann v. Dianon Systems, Inc., 43 A.3d 111, 304 Conn. 585 (Conn. 2012). In Schumann, the Connecticut Supreme Court applied to the private sector the United States Supreme Court’s holding in Garcetti v. Ceballos, 547 U.S 410 (2006), which applied to public employers. In Garcetti, the U.S. Supreme Court held that employee speech that related to his or her job duties was not protected by the First Amendment.
In a much-anticipated ruling, the Connecticut Supreme Court has held that employers in Connecticut are not subject to the provisions of the Connecticut Family and Medical Leave Act unless they employ at least 75 employees within the state. Velez v. Commissioner of Labor, et al., Nos. SC 18683 & 18684 (Sept. 25, 2012). The decision has broad implications for employers in Connecticut.
A Connecticut state court recently found non-compete/non-solicitation agreements unreasonable and therefore unenforceable because the agreements did not protect any legitimate business interest. Creative Dimensions, Inc. v. Laberge is an unusual case in that the court found the agreements were reasonable in terms of their geographical and temporal restrictions, but nevertheless invalidated the agreements because they were inherently unfair to the employee-defendants. In reaching this conclusion, the court balanced the employee-defendants’ inability to work for 18 months against the employer’s failure to identify a protectable interest justifying the 18-month restriction.
The Connecticut Fair Employment Practices Act (CFEPA) prohibits discrimination based on an employee’s physical disability, and provides a broad definition as to what constitutes a physical disability. While the federal Americans with Disabilities Act (ADA) explicitly forbids discrimination against employees who are actually impaired, and against employees who are “regarded as” or perceived as disabled,1 there has been disagreement between the federal and state courts in Connecticut as to whether “perceived as” disability claims are valid under the CFEPA.2 In Desrosiers v. Diageo North America, Inc.,3 a Connecticut appellate court recently resolved this disagreement, finding that the CFEPA does not authorize claims of discrimination based on a perceived, but not actual, physical disability.
The Federal Arbitration Act preempts California law disfavoring the enforcement of a class action waiver in employee arbitration agreements, the California Court of Appeal has ruled. Iskanian v. CLS Transp. Los Angeles, LLC, No. B235158 (Cal. Ct. App. June 4, 2012). The Court noted the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), overruled California law. (For more information, please see our article, Supreme Court Strikes Down California’s Prohibition of Class Action Waivers in Arbitration Agreements.) The Court also ruled the FAA preempted the plaintiff’s claims under the California Private Attorney General Act (“PAGA”). Accordingly, it affirmed an order compelling arbitration and dismissing the employee’s class claims for alleged Labor Code violations and upheld a class action waiver.
Beginning on October 1, 2012, Connecticut residents will be able to smoke marijuana to alleviate symptoms of a debilitating medical condition without fear of arrest or prosecution by Connecticut authorities, or adverse employment action by employers in the state. The new law, entitled An Act Concerning the Palliative Use of Marijuana (Public Act No. 12-55), was signed by Governor Malloy on May 31.
On April 25, 2012, a Connecticut federal district court resolved an unfair competition discovery dispute concerning an alleged April Fool’s Day website post and bulk e-mail that the plaintiff claimed decreased attendance at a competitor’s conference. U.S. Magistrate Judge Joan Margolis ruled HR consulting firm SharedExpertise Media, LLC’s motion for an “attorneys’ eyes only” protective order to safeguard the identity of certain customers and prospects should only be granted [pdf] as to “customers, registrants, or e-mail recipients who have not been openly identified through resort to defendant’s websites.”
Connecticut state law, like the federal Fair Labor Standards Act (“FLSA”), requires employers to pay non-exempt employees one-and-one-half times their regular rate of pay for any hours worked in a workweek in excess of 40. A Connecticut Superior Court has held that the fluctuating workweek method (“FWW”) of overtime calculation complies with Connecticut state wage law. See Roach v. Moran Foods, No. HHD-CV-11-6023386-S (Conn. Super. Mar. 16, 2012). The court reasoned that because the Connecticut Legislature identified in the wage law (C.G.S.A. § 31-76(b)(1)) a specific category of employees (i.e., delivery drivers) to which the FWW method may not apply, the intent of the Legislature was to allow the FWW to apply to other employees.
Employers in Connecticut have a duty to protect employees from harassment based on sexual orientation that is just as compelling as their duty to prevent workplace harassment based on race, sex and other protected characteristics. The Connecticut Supreme Court has recently made this clear in Patino v. Birken Manufacturing Company,1 a unanimous decision that affirms a jury award of $94,500 for emotional distress suffered by an employee who was subjected to a hostile work environment because of his sexual orientation.
The Connecticut Department of Labor has issued guidance on the new Connecticut Paid Sick Leave Law. The law goes into effect on January 1, 2012. The guidance is available from the Departmentâ€™s website, at http://www.ctdol.state.ct.us/wgwkstnd/SickLeaveGuidance.pdf. (See our article, What Employers Need to Know about Connecticutâ€™s Paid Sick Leave Law, for more information on the new law.)
New and revised employment laws from the Connecticut legislatureâ€™s latest session will affect all employers in the state. Here are some highlights…:
Legislation significantly amending the procedures governing how the Connecticut Commission on Human Rights and Opportunities will process complaints takes effect October 1, 2011. Although new Public Act No. 11-237 is an attempt to shorten the time that a charge remains pending at the CHRO once a merit assessment review is completed, how well it accomplishes this is open to question. The amendments include significant changes that allow the CHROâ€™s attorneys to reinstate a complaint that was dismissed at the merit assessment review stage and explicitly authorize agency investigators to conduct interviews and site visits, subpoena documents, seek requests for admission of facts, and issue interrogatories.
Health care employers in Connecticut have new obligations to protect their employees when it comes to workplace violence. Public Act No. 11-175, signed by Governor Dan Malloy on July 13, 2011, applies to any Connecticut health care employer who employs at least 50 full employees, whether full-time or part-time.
A new law in Connecticut generally prohibits employers from using credit reports in making employment decisions regarding existing employees or applicants. The law, effective on October 1, 2011, applies to all employers in Connecticut that have at least one employee.