Hiring should focus on the applicant’s qualifications, not pregnancy, child care, or other family issues.

Assumptions and stereotypes are dangerous.  Not all women take on caregiving roles at home.  Nor do men necessarily lack caregiving responsibilities.  Avoid sex discrimination claims by recognizing the individual needs of your employees.

Parental status is a protected class under many state laws.  Have you checked yours?

Pregnancy is a protected status under federal law and many state laws.  Pregnancy-related disabilities are covered by the Americans with Disabilities Act.

You should be aware of all the state and federal laws that deal with caregiving responsibilities, often indirectly.  For example, Connecticut’s new medical marijuana law prohibits discrimination against certain caregivers and its new sick leave law allows time off to care for a parent, spouse, or child.  The Americans with Disabilities Act prohibits discrimination against individuals who are associated with a person with a disability.

Men can bring sex discrimination claims when they do not receive the same benefits as women for caregiving issues.

Over half of married mothers with children under age 6 are employed.

The Fair Labor Standards Act was recently amended to provide breastfeeding breaks for nursing mothers.

HR Audits should be used to reveal disparities you did not realize existed.  Consider whether employees with caregiving responsibilities are being hired, promoted, and paid on par with other employees.

Employees who have sued for issues related to family responsibilities have a higher success rate in court than employees who sue for most other employment issues.

Review your employee handbook with an eye toward disability and leave policies.  Make sure they are written and implemented in a non-discriminatory manner.

Single people have complained about the scheduling flexibility employers have given to married workers to handle family responsibilities, but this has not evolved into a significant legal concern for employers.  Nonetheless, to boost morale among all employees, consider that single people may have caregiving responsibilities not covered by your policies (e.g. for an elderly aunt or a disabled neighbor) or that they may be resentful of being asked to take on extra responsibilities due to family responsibilities of others. 

Daycare costs are one of the top reasons parents choose not to return to work after the birth of a child.  Some companies provide on-site daycare or discount vouchers as a way to retain their employees.

Assessing employees by results rather than “face time” helps provide flexibility, while holding all employees accountable for their output.

Your obligation under the Family and Medical Leave Act to allow leave to care for a child extends to employees who act as parents, even if they are not the child’s actual parents.  Examples are grandparents caring for grandchildren or Opie’s Aunt Bee from The Andy Griffith Show.

Brody and Associates regularly advises management on complying with the latest 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.

The law makes it illegal to discriminate against an applicant or employee based on that person’s status as a “qualifying patient” or “primary caregiver” under the law.  In order to be a qualifying patient, the person must be eighteen years of age or older, be a resident of Connecticut, and have been diagnosed with one of the medical conditions for which marijuana use is permitted.  A primary caregiver is someone other than the patient or the patient’s physician who is eighteen years of age or older and undertakes responsibility for managing the qualifying patient’s well-being with respect to the use of medicinal marijuana.  Employers may take action against these individuals when required by federal law or required to obtain federal funding.

While discrimination against medical marijuana users and their primary caregivers is prohibited, employers may still prohibit the use of marijuana during work hours and discipline employees who are under the influence of marijuana during work hours. 

Employers must also grapple with the issues medical marijuana raises under the Americans with Disabilities Act (e.g., the duty to accommodate) and drug-free workplace policies (e.g., whether to modify the policy to recognize legal use).  Connecticut’s new law is silent on these issues.  Until more guidance is available, employers will want to take a conservative approach to avoid becoming a test case.

Brody and Associates regularly advises management on complying with the latest 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.

• You are subject to the law if you employed 50 or more total employees during any calendar quarter of last year.  For example, if you employed 40 employees last January, laid off 10 in February, and hired 20 new employees in March, you are subject to the law.  Also, if you employed 40 people, and 20 quit during the quarter and 10 more were hired, you are covered.  Not covered this year?  Next January 1, look back to 2012 and do the same analysis. 
• Even if you are a covered employer, not all of your employees are entitled to sick leave.  The law covers “service workers,” which includes food service, health care, and other workers who are paid hourly and are non-exempt under the Fair Labor Standards Act.  The statute provides a complete list.  However, merely comparing your job title to the job title offered under the statute (or not) is not a sufficient investigation.  You must check the actual job duties performed against the job duties described in the federal Bureau of Labor Statistics’ system, which the Connecticut statute uses to define the jobs it lists.
• Unlike usage, accrual began on January 1, 2012.  Accrual occurs at a rate of one hour of sick time for every 40 hours worked, up to 40 hours of sick time per calendar year. 
• An employee can use sick time after he or she has worked 680 hours for the employer since January 1, 2012.  This is a one-time requirement.  However, an employee is not entitled to use accrued paid sick leave if he or she did not work for you an average of 10 or more hours per week in the last calendar quarter.
• The employee can use paid sick leave for a child’s, a spouse’s, or his or her own mental or physical illness, injury, health condition, medical diagnosis, or preventative medical care.  Sick time can also be used for a variety of circumstances related to family violence or sexual assaults, including family relocation or court appearances. 
• An employer can require up to seven days advance notice, but only where the need to use leave is foreseeable.  If it is not foreseeable, the employer may require notice as soon as practicable.  An employer may not request documentation (such as a doctor’s note) unless the leave is used on three or more consecutive days.  This provision effectively requires the employer to assume the employee is being truthful, but nothing prohibits the employer from disciplining or firing an employee for lying about the use of sick leave.  But, be careful – the law prohibits retaliation against employees for using sick leave, so your justified discipline could put you under the microscope if it is misconstrued as retaliation for using leave.
• Employees are allowed to carry over up to 40 hours of unused accrued sick time until the following year, but the employee is not entitled to use more than 40 hours of sick time in a year. 
• Covered employers must notify their service workers of certain rights contained in the Paid Sick Leave Law at the time of hiring.  The most practical notification method is to place a poster in a conspicuous place accessible to service workers.  If you choose this method, you must post both English and Spanish versions of the poster.  This poster should have gone up by January 1, 2012!

If you would like more information on the Connecticut Paid Sick Leave Law, including the full-text of the statute, the poster in both English and Spanish, a guide to the law from the Connecticut Department of Labor, and our articles providing comprehensive analysis of the law, click here.

Brody and Associates regularly advises management on complying with the latest 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.

Other states and the federal government are considering similar legislation.  But even if your state does not enact similar legislation, asking for social media passwords is a bad idea.  First, such a request may offend your top prospect, and despite the buyer’s market, top talent is still hard to find.  Second, you may be exposing yourself to legal liability in the form of “TMPI” – too much protected information.  Many facts that are exposed on Facebook – someone’s religion, sexual orientation, charities of choice – should be irrelevant to employers but can be fuel to feed a discrimination lawsuit. 

Before making any employment decision, including asking for access to social media, employers need to ask two critical questions: (1) Can you? and (2) Should you?  In this case, the answer to the first question is yes, in most circumstances.   It is the second question– should you – that is the tough one.

First, it is true the employer may see “unprofessional” conduct that gives you pause before hiring the candidate, be it pink hair, foul language, racist leanings, displeasure with a current employer, and more.   If it were just a balance between the risk of uncovering TMPI – too much protected information –and getting insights you might otherwise miss, you might quickly say yes.  But what about offending that top candidate?  Worse yet, what if you are the test case that gets national attention for being “Big Brother” and experience a public backlash?  And the desperate applicant who reluctantly provides her password now may harbor resentment about the intrusion on her privacy and quit as soon as the economy recovers and she has another offer.

Second, while making this demand is not illegal, there are possible legal ramifications from your choice.  If an applicant’s membership in a protected class is apparent from his Facebook profile, you may be faced with a lawsuit if you don’t hire him, even if you had a legitimate reason for choosing someone else.  Religion, sexual orientation, disabilities, family responsibilities, past criminal convictions, cigarette and alcohol usage, and other statuses are protected by a number of states and in some cases, federal law.  Therefore, if you uncover this information with a Facebook password, you are putting yourself at risk.  Because you can’t “un-learn” this information, you should try to avoid learning about it in the first place, at least until an offer is made.  Knowing any of this before extending an offer may be TMPI.

Another emerging legal ramification arises if your policy intimidates current or future employees from using social media to communicate with co-workers about work conditions.  The mere presence of a policy that could reasonably discourage such activity is likely a violation of the National Labor Relations Act.  And employees who believe management is overreaching are more likely to unionize than those who believe their employer respects personal and professional boundaries.

Finally, laws governing computer and Internet use could also present problems.  Senators Chuck Schumer (D-NY) and Richard Blumenthal (D-CT) asked the Equal Employment Opportunity Commission and the Department of Justice to investigate whether this practice violates the Computer Fraud and Abuse Act or the Stored Communications Act by relying on coerced authorization to access electronic information.  Blumenthal is drafting legislation that would specifically ban employers from asking for Facebook passwords.

The takeaway in this case is simple.  Asking for passwords to personal accounts is just a bad idea. 

Brody and Associates regularly advises its clients on all labor management issues and provides various training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The ban is aimed at public places, workplaces, and government vehicles, including outdoor areas within 8 feet of an entrance to the establishment.  “Public places” includes any enclosed area where the public may go.  There are exceptions for bars, casinos, horse racing tracks, and similar establishments.

The law places several obligations on businesses where smoking is prohibited:

• Post conspicuous signs at each public entrance that say, “State Law Prohibits Smoking Within 8 Feet of this Entrance” or similar language;
• Post conspicuous signs (the law does not say where or how many) that say, “Smoking is Prohibited by State Law” or similar language;
• Ask individuals who are smoking in an area covered by the law to refrain from smoking and if they do not comply, “cause [them] to be removed” (such as by calling the police);
• Inform all employees that smoking is not allowed; and
• Remove ashtrays and other smoking paraphernalia.

In addition, a business may not retaliate against individuals for actions taken in accordance with the law, including reporting violations.

If the establishment is one of the exceptions where smoking is allowed, such as a bar, conspicuous signs must be posted that say, “WARNING: Smoking Is Allowed In This Establishment” or similar language.  Smoking is not allowed in parts of these establishments where minors are permitted.

Failing to comply with any of these requirements constitutes an infraction.  Fines can be steep.  The first three infractions carry penalties up to $1,000 each.  Additional violations can cost up to $10,000.

Employers should understand clearly: nothing in this law requires or permits discrimination against employees who smoke outside of work.  A separate Indiana state law prohibits discrimination on the basis of tobacco use outside the course of employment.

Brody and Associates regularly advises management on complying with the latest 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.

GINA was passed in 2008 with the goal of protecting job applicants and employees from discrimination based on their genetic information, including family medical history, with a few limited exceptions.  As with Title VII and the ADA, GINA covers employers with 15 or more employees.  GINA originally became effective on November 21, 2009.   

Fortunately, the new EEOC rule only mandates employers retain documents they already have made or kept, but does not require creation of new documents.  An employer subject to existing EEOC requirements should already retain all  personnel or employment records made or kept by the employer, including application forms and other records having to do with hiring, promotion, demotion, termination, and pay rate.   The information must be preserved for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later.  Further, employers must retain any records relevant to charges filed under Title VII or the ADA until final disposition of those matters, which may be longer than one year.  The new rule requires the same retention of documents relevant to charges filed under GINA.

Given the ever-changing regulatory environment, it is important to stay informed of new changes that affect not only employment decisions you make, but how you document those decisions.  Brody and Associates regularly advises management on complying with the latest 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.

Such legislation is a sign of the dwindling support for unions in the United States.  Not only is membership down to 6.9 percent in the private sector, but more and more legislatures are passing anti-union legislation, whether it be right-to-work laws or changes to benefit terms unionized state workers receive.  The trend is clear, but how far it will go is the question.

The victory in Indiana may be the beginning of a new era for the Right-to-Work movement.  Indiana is the first state in more than a decade to pass a right-to-work law.  Most of the 23 state right-to-work laws were passed in the 1940’s and 1950’s.  More significantly,  Indiana is the first state in the highly unionized manufacturing-heavy “Rust Belt” to enact a right-to-work law.  Plans are now in the early stages to enact similar legislation in Ohio, Michigan, and Minnesota.  The real litmus test is if these proposals can become law.  We will keep you informed.

Brody and Associates regularly advises employers on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

There are seven substantive changes:

• A pre-election hearing is only “to determine if a question of representation exists” and thus related issues should be handled post election;
• Pre-election Hearing Officers have the authority to limit evidence about voter eligibility and inclusion;
• Pre-election Hearing Officers have discretion over what post-hearing briefs can be filed;
• Eliminates the recommendation that the Regional Directors should ordinarily not schedule an election sooner than 25 days after the decision and direction of election, which provided the Board an opportunity to rule on a pre-election request for review before the election;
• Narrows the circumstances under which special permission to appeal to the Board will be granted; and
• Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides the Board has discretion as to whether to review any remaining post-election disputes.

On their face, the new rules merely limit the issues that can be resolved pre-election.  In fact, this streamlining will seriously limit employers’ opportunity to explain the downsides to unionizing because most elections will occur within two to three weeks of a petition being filed.  However, unions will continue to have as much time as they want to campaign before requesting an election.  This is the true unevenness of this labor playing field.

Legislative and judicial challenges to the new rule are underway.  At least three lawsuits were filed in December.  They are being consolidated into one case.  The House of Representatives passed the Workplace Democracy and Fairness Act, which would require a 35-day period between the filing of an election petition and the representation election.  It would also require a two-week waiting period before a hearing on the petition could be held.  Senator Mike Enzi is threatening to overturn these rules by filing a challenge under the Congressional Review Act.  If all these challenges fail, the rule will go into effect on April 30, 2012.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training. 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.