Checking job applicants’ credit as part of the screening process is a common practice, but it is declining.  In 2009, when only two states prohibited such inquiries, a survey by the Society of Human Resource Management reported that 60 percent of employers checked the credit of at least some prospective hires.  Only a year later, that rate dropped to 47 percent.  We expect that rate will continue to fall.  Simultaneously, employers are realizing that screening everyone is generally a poor idea.  For example, in 2010, only 13 percent of employers conducted credit checks on all prospective hires.

Advocates of checking credit say it can help screen out irresponsible applicants and even future criminals.  A study by the Association of Certified Fraud Examiners found that the two most powerful indicators of potential fraud are living beyond one’s means and experiencing financial difficulties.  Even though not everyone with those indicators commits fraud, the information is valuable to companies who will suffer if they pick the bad apple.

Opponents argue a bad credit report may be a result of financial struggles that are not the employee’s fault, such as a serious illness in the family or a layoff.  Many credit reports contain errors and others may be flawed due to identity theft.  Some argue discrimination based on credit puts people in a catch-22 where they cannot pay their bills because they have no income, but they cannot find a job because of their poor credit.

Employers who check credit need to ensure they comply with applicable state laws and should consult with counsel to determine whether the exceptions for employees with financial access apply in their specific case.  Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Currently, home caregivers are exempt from overtime.  Under the proposal, caregivers who work more than 40 hours per week and don’t work directly for the family will receive overtime at one and a half times their hourly rate.  In many cases, caregivers will be entitled to pay – and overtime – while they sleep.  As a result, third-party providers will be priced out of the market.  The benefits of professional screening and training of in-home caregivers provided by third-party providers will become a thing of the past.

Members of the public can submit their views on the proposed rules here for the Department of Labor to consider in setting its final rules.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

• Connecticut Paid Sick Leave- Who Qualifies?
• Connecticut First In The Nation To Provide Paid Sick Leave

The  law mandates certain employers provide up to 40 hours  of paid sick leave to their employees.  Sick leave will accrue at the rate of one hour per 40 hours worked, up to the 40-hour maximum.  The law also requires employers to permit workers to carry over up to 40 hours (five days) of unused accrued sick leave each year.  This could be an issue.  For employers whose policies differentiate between sick days and vacation/personal days, this process is straightforward.  But employers who embrace the more flexible “paid time off” approach have a new challenge.

In a “paid time off” plan, employers offer a set number of days off to be used for any reason, including illness.  The new law explicitly allows employers to continue using this method, as long as the plan allows the accrual and use of sick days at least as quickly as the law requires in general.  But employers do not need to allow employees to carry over 40 hours of vacation time or personal time, so employers who do not document the reason for the time off will not know how much sick time, if any, they must allow the employee to carry over.  For example, an employer that offers 10 days of paid time off does not need to allow any time to be carried over if an employee used at least five sick days.  But, if the employee took eight vacation days, the employer must allow two days to be carried over as sick time.

Because the employer’s obligations to allow carryover will differ based on whether time off is sick leave or time taken for another purpose, employers must document the reason for the time off if they want to limit the amount of carryover.  The law permits employers to request “reasonable documentation” supporting the request to use sick leave when the employee uses sick leave on three or more consecutive days. But what about using sick leave for a one day absence? While documentation may not be required, a simple question – were you out sick – should be allowed.  Under the law, “sick leave” includes time taken to care for a child or spouse who is ill or for medical or psychological treatment following family violence or sexual assault, so make sure to ask a broad enough question, without being invasive.  Probing too far into the employee’s reasons could lead to issues under the ADA, GINA, or other state and federal laws.  Exact guidance on this line has yet to be announced.

If you would rather not get into this complexity and you will not just allow the carryover of whatever time is unused, there are still alternatives.  The Connecticut Department of Labor has said employers do not need to allow carryover at all if they grant at least 40 hours of paid sick leave each January 1^st.  Another way to avoid carryover is to pay out the extra sick days at the end of the year, but this option is available only if the employee voluntarily decides to take it.

Especially because the Paid Sick Leave law is the first state law of its kind, there are many unresolved questions.  Using ambiguities to avoid compliance is dangerous.  Have an attorney review your sick leave policies to ensure it will comply.  We will continue to publish refinements to this law as they are announced.   You non-Connecticut employers, beware; you may be next!

Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

 A substance abuse counselor working for a nonprofit company went on FMLA leave to recover from knee surgery in 2003.  He took FMLA leave again in September 2008, for knee pain.  He exhausted his FMLA leave in the middle of December.  The employee submitted a doctor’s note stating he would need leave for a longer period of time. 

When his leave was exhausted, he failed to give a return to work date or a fitness for duty certificate.  Instead, he asked that the employer make a reasonable accommodation – hire a substitute counselor and allow him to take an indefinite leave of absence until he was fully recovered.  The employer terminated his employment while he was still on leave, claiming this accommodation created an undue hardship. 

The employee sued under the ADA.  The court found his request was not a reasonable accommodation and the employer was justified in terminating him.  Under the ADA, an employee has to be able to perform the essential functions of his job, with or without a reasonable accommodation.  The Court found the employee was unable to perform one of his essential job functions – coming to work regularly and on time.  Often, an accommodation allows the employee to perform the job without pain or with greater ease.  However, here, the accommodation request of an indefinite leave did not enable him to work.  More importantly, its indefinite tenure was unreasonable.

Employers should always take great stride to consider an employee’s request for accommodations; remembering that such consideration should be an interactive process between the employee and the company.  With the new amendments to the ADA, it is likely there will be increased accommodation requests.  Employers should consult with counsel or their Human Resources staff when evaluating such requests.  Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Representative Jackie Speier (D-CA) recently introduced a House bill which would extend COBRA benefits to same-sex couples and their partner’s children.  The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides employees the opportunity to continue health insurance coverage after losing their job.  Currently, COBRA benefits only extend to an employee, their legal spouse and legal dependents.  This bill would allow domestic partners and same-sex spouses to receive COBRA benefits as well.  These COBRA requirements would only apply to employers who already voluntarily provide health insurance benefits to same-sex couples.  The bill’s main goal is to protect the children of domestic partners from losing their health insurance.  Republicans oppose the bill, as they say it will increase costs for employers.

In addition, the Family and Medical Leave Inclusion Act was introduced into the Senate by Senator Dick Durbin (D-IL) which would allow an employee to take leave under the Family and Medical Leave Act (FMLA) to care for a domestic partner, same-sex spouse, or the family members of a domestic partner or same-sex spouse.  Currently, the FMLA does not require an employer to allow such leaves.  Employers should continue to keep an eye on the state and federal laws surrounding this issue.  If the laws change, you may need to change your workplace policies.  Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Diane Ames worked at Home Depot for five years without any problems.  One day, she told her supervisor she suffered from alcoholism and asked if he could help her enroll in the Employee Assistance Program.  Ames received paid time off so she could complete a rehabilitation program.  She was allowed to return to work after passing a drug and alcohol test.  She asked for, and was granted, scheduling accommodations so she could attend Alcoholics Anonymous meetings.  Ames also provided her manager with a note from her doctor, saying she was under his care and was seeing a psychiatrist for medication management. 

One day while at work, her supervisor noticed Ames acting strangely and smelled alcohol on her breath.  She was asked to take a blood alcohol test, which came back positive for alcohol.  Home Depot decided they would terminate Ames for violating their substance abuse policy.  Her supervisor scheduled a meeting with her on January 2.  On January 1, Ames checked herself into the hospital because she had grown so anxious about the meeting that she began drinking heavily again.  On January 2, Ames did not show up for the meeting with her supervisor, and her termination letter was mailed to her house.

Ames filed a lawsuit in Federal court claiming Home Depot violated the Family Medical Leave Act, and the Americans with Disability Act.  In order for the FMLA to apply, an employee must show that at the time of the disciplinary incident, he/she  suffered from a “serious health condition” which is an “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care at a hospital, hospice or residential medical care facility; or (B) continuing treatment by a healthcare provider.”  Here, Ames failed to show she was receiving continuing treatment by a healthcare provider, or was receiving care at a medical facility until after failing the alcohol test at work.  Also, the note from her doctor did not say she was receiving continuing treatment for any medical condition.

Under the ADA, alcoholism can be a disability but only if a person can prove a disability that impacted any “major life activities.”  These activities may include sleeping, walking, or eating.  Ames testified that her condition did not affect her performance at work or her activities at home.  Therefore, the District Court found Ames failed to show Home Depot violated the ADA or the FMLA.  The 7^th Circuit Court of Appeals affirmed the District Court’s decision. 

Employers should be mindful that alcoholism and other substance abuse problems may be considered disabilities under the ADA or a serious health condition under the FMLA requiring the employer to follow the guidelines of each statute.  Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The moral of the story is to train all supervisors on the FMLA.  Part of such training should include instructing supervisors not to give a definitive answer when an employee requests FMLA leave.  The supervisor’s response should be “I will have to check with HR and get back to you.”  

Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The DOL said that those who provide either financial support or day-to-day care for a child may be able to show an in loco parentis relationship. A person needs to show intent to assume the responsibilities of a parent. This determination is fact specific and requires a case-by-case analysis. Factors that may be considered include the age of the child, the amount of support provided, or how dependent the child is on the person. Even if a child has two biological parents, that does not preclude another person from claiming an in loco parentis relationship.   

Examples of situations where the in loco parentis relationship may apply include an unmarried parent taking care of their partner’s child, same sex partners who adopt children, grandparents taking care of children whose parents are incapacitated, or an aunt raising a deceased sibling’s child. These situations would allow for the unmarried partner, same sex partner, grandparent, or aunt to take FMLA leave to care for the child. Not included in the expanded definition are persons taking care of another’s children while their parents are on vacation. For those of you who watch late night reruns or have a long memory, Opie’s Aunt Bee, from the Andy Griffith Show, would qualify – if she worked outside the home!

If an employee requests FMLA leave, an employer may require reasonable documentation or a simple statement stating the nature of the employee’s relationship to the child. It is important that employers with 50 or more employees remain up to date on the FMLA.

CTFMLA Basics

The CTFMLA offers Connecticut employees 16 weeks of job-protected, unpaid leave for their own serious health condition, to care for a new baby (or adopted or foster child), or to care for a spouse, child, parent (including in-laws) with a serious health condition.  Unlike the federal Family and Medical Leave Act which covers employers with at least 50 employees, the CTFMLA covers employers with at least 75 employees.  While the CTFMLA is silent on where the 75 employees must be located, the Connecticut Department of Labor has long interpreted the law as counting only employees working in Connecticut.

The Velez Decision

In Velez v. Mayfield, although the employer (Related Management Company) had over 1,000 employees nationwide, there were only 35 employees in Connecticut.  The plaintiff, an office manager, fractured her hand and took time off to heal.  When she attempted to return to work, her employer declined to return her to work.  The plaintiff then filed a claim with the Connecticut Department of Labor claiming her rights under the CFMLA were violated.  The Department of Labor dismissed the claim explaining that because the employer did not have 75 employees in Connecticut, the Department lacked jurisdiction.

On appeal to the Superior Court, the Judge examined the text of the CFMLA and the associated regulations and found nothing expressly stating that only Connecticut employees are counted toward the 75 employee minimum.  Relying in part on a similar New Jersey case, the Judge ruled that the CFMLA does count out-of-state employees and therefore did apply to the employer.

What Velez Means for You

The only employers impacted by Velez are those with at least 75 total employees but with less than 75 employees in Connecticut.  According to Velez, those employers are covered by CTFMLA with respect to their Connecticut employees.  For example, a company with 60 employees in Florida and only 15 employees in Connecticut must offer CTFMLA benefits to the 15 Connecticut employees.  Fortunately, the Velez decision is being appealed.  Hopefully, the decision will be overturned or the legislature will step in and revise the law.  Until then, employers who don’t want the risk of litigation should comply with Velez.

Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

1. Do you have a Social Security number protection policy (many states impose penalties for failing to have such a policy in your handbook)?
2. Does your FMLA policy include the latest amendments (enacted October 28, 2009)?
3. Do you have an up-to-date policy on computer use and social networking?
4. Do you have a policy on cell phone use, and if so, does it cover talking or texting while driving?
5. Does your equal employment opportunity policy include all appropriate protected statuses? Many states have recently added sexual orientation, transgender status, and status as a domestic violence or sexual assault victim.
6. Is your Handbook available to your employees on line in a read only format, without allowing the public to see it?

 As you should already know, maintaining effective, current policies is the first step to minimizing the risk of employment litigation.

Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.