A common pitfall for employers is the misclassification of employees as exempt from overtime pay and the misclassification of workers as independent contractors. These misclassifications often occur because an employer is taking an aggressive legal position or does not, understandably, know all the legal requirements and nuances. Misclassifications can also occur because an employer mistakenly assumes that the classification is proper because the individual has consented to it or even requested it.

An individual’s consent or desire to be classified as an independent contractor or an exempt employee does not make it legal. So, an employer should avoid this temptation if there is not a solid legal basis for the classification. An “agreement” with an employee that seems to have no immediate practical consequence could easily become an issue down the road if the individual files a complaint with the DOL, files for unemployment compensation benefits (for individuals classified as independent contractors), or there is DOL audit.

Given the federal DOL’s recent announcement that effective January 1, 2020, the minimum weekly salary level for exempt status will increase from $455 to $684, now is a good time for employers to review their exempt/non-exempt classifications and independent contractor classifications. Employers should also review and address other common wage and hour compliance issues, such as:

  • Improper deductions from the salary of exempt employees;
  • Time-keeping practices that do not accurately record hours of work and meal breaks;
  • Allowing non-exempt employee to work “off the clock” without compensation;
  • Failing to pay non-exempt employees for compensable travel time, training time, and on-call time;
  • Failing to include bonuses, shift-differential pay, and other compensation in calculating a non-exempt employee’s regular rate of pay on which overtime is paid;
  • Deducting, without DOL authorization, an employee’s wages upon separation of employment for various reasons, such as the overuse of paid time off and/or the damage or theft of company property;
  • Providing non-exempt employees compensatory time off instead of overtime pay; and
  • Not having a clear bonus and/or commission pay plan.

While not always easy, being proactive in addressing these issues is much better than trying to address them after a complaint has been filed or the DOL comes knocking!

The Internal Revenue Service (IRS) has increased the amount employees may contribute to their 401(k) and 403(b) plans next year from $19,000 to $19,500. The IRS announced this week its inflation adjustments for 2020, including:

• Overall contribution limit for defined contribution plans increases from $56,000 to $57,000.

• Total compensation that may be considered under a qualified plan increases from $280,000 to $285,000.

• Limitation for defining a highly compensated employee increases from $125,000 to $130,000.

• Catch-up contributions for 401(k) or 403(b) plans for individuals aged 50 or over increases from $6000 to $6500.

• Employee contributions to a flexible spending account increases from $2,700 to $2,750.

Be in touch with any questions and stay tuned!

On October 18, 2019, the firm hosted its 31st Annual Labor and Employment Seminar at the Aqua Turf Club in Southington, Connecticut. Our annual seminar is a complimentary offering for our clients, which is eligible for SHRM, HRCI and Connecticut CLE credits. The event began with breakfast and an opportunity to mingle before the seminar.

Following breakfast, our practice group attorneys covered significant developments including:

• Changes to Connecticut’s Harassment and Discrimination Laws
• #MeToo, Pay Equity and Transgender Legal Issues
• Immigration and No Match Letters
• Employee Benefits Updates
• Connecticut’s New Paid FMLA law
• Wage and Hour Changes
• Developments at the NLRB
• Connecticut Legislative Developments

After the seminar, clients enjoyed lunch and had another opportunity to mingle and ask questions. If you are interested in attending our seminar in the future, please join our mailing list by clicking here or e-mail rjawahir@carmodylaw.com.

Below are pictures from the event. We look forward to seeing you next year.

Enjoy!

                  

                 

In 2018, website accessibility lawsuits increased by 177%. Website accessibility lawsuits can arise when people with disabilities cannot use a company’s website because it does not use current technology. Businesses are required by federal law, the Americans with Disabilities Act of 1990 (“ADA”), to accommodate people with disabilities. In 2018, Domino’s Pizza argued that it did not have to update its website to work for a blind customer as digital accessibility is not specified in the ADA. Domino’s lost its case and last week the U.S. Supreme Court denied its appeal.

The decision confirms that websites and apps are within the ADA’s definition of “places of public accommodation.” Any place that opens its doors to the public must accommodate people with disabilities. Recent courts have found that a website is just another type of door to the public, and thus, it also must be accessible.

The ADA, however, lacks specifications for what makes a website accessible. Such uncertainty can lead to lawsuits, which may result in businesses reducing their online presence. Federal legislation or a Supreme Court ruling could establish clear guidelines for ADA compliance. In the meantime, employers should take reasonable steps to make their Internet websites and apps accessible—third-party service providers are available to assist.

Stay tuned!

Each year the new laws passed by the General Assembly generally take effect on October 1. Below are the new laws taking effect today that will affect employers and the workplace.

Wage and Hour Changes

  • The minimum wage has increased to $11. As we reported previously, the minimum wage will increase gradually to $15 by June 1, 2023.  Beginning January 1, 2024, the minimum wage will be adjusted annually and indexed to the federal “employment cost index” for “wages and salaries for all civilian workers.”  The law allows the Labor Commissioner to recommend that increases be suspended after 2 consecutive quarters of negative growth to state GDP.
  • Employers may pay a subminimum wage to minors for the first 90 days of employment. Under the new law, employers may pay individuals under 18 (excluding emancipated minors) the sub-minimum wage of the greater of $10.10 per hour or 85% of the minimum wage.

Harassment and Discrimination Law Updates

  • All employers must now provide sexual harassment training to supervisors. The new law requires employers to provide training to current supervisors by October 1, 2020 and to all new supervisors within 6 months of assuming the role.  If you have trained your supervisors hired on or after October 1, 2018, you do not have to provide training again.
  • Employers with 3 or more employees must now provide sexual harassment training to all employees. Covered employers must now provide training to all current employees hired on or after October 1, 2019 within six months of hire.
  • Failing to comply with the new sexual harassment training laws will result in consequences for employers. Failure to provide sexual harassment training in accordance with the new law will result in a $750 fine and can be considered a discriminatory practice.  Employers should note that the new law requires that you update your training every 10 years.
  • Employers must obtain written consent from a complainant in order to take “immediate corrective action” to address the complainant’s claim of sexual harassment. Examples of immediate corrective action under the new law are relocating the complainant, assigning the complainant a different work schedule, and other substantive changes to the complainant’s terms or conditions of employment.  There is an exception to this law if the CHRO determines the corrective action was ‘reasonable” and “not harmful.”
  • The statute of limitations for all harassment and discrimination claims arising under Connecticut law is now 300 days. The statute of limitations is extended for all claims arising on or after October 1, 2019.
  • Employers are now required to give notice to employees regarding the illegality of sexual harassment and the rights available to victims of sexual harassment by e-mail.  Notice must be provided within three months of hire if: (1) the employer provides an-email account to the employee, or (2) if the employee has provided the employer with an-email address. Employers must include the words “Sexual Harassment Policy” or “words of similar import” in the subject line.  Employers may satisfy this requirement by providing the employee with a link to the section of the CHRO’s website that contains information on the illegality of sexual harassment and the remedies available.  Failure to give notice will also result in a $750 fine.
  • The available remedies at the CHRO have been expanded. The CHRO may now: (1) “make the complainant whole” by determining the actual damages suffered, including awarding actual costs incurred and (2) award reasonable attorney’s fees to a prevailing complainant.  The law explicitly states that the amount of attorney’s fees cannot be contingent upon the damages requested by or award to the Complainant.
  • Courts may award punitive damages. This change addresses the Connecticut Supreme Court’s decision in Tomick v. United Parcel Service, Inc. et al. which held that the punitive damages were not available under CFEPA because the law did not expressly state punitive damages were an available remedy.
  • The CHRO may now appoint magistrates to conduct public hearings when there is a backlog of more than 100 cases. Magistrates will be selected from a list maintained by the Chief Administrator of the Connecticut Superior Court.  You can access that list here.
  • Limited discovery will now be available at public hearings. Parties will now have the opportunity to “inspect and copy relevant and material records, papers, and documents” of the other party.  The presiding officer may also order production of documents.
  • The CHRO may now assign legal counsel to pursue action in court rather than conducting a public hearing. If the CHRO is successful in establishing its claim by “clear and convincing evidence” a court may award the CHRO’s costs and legal fees and civil penalties up to $10,000.
  • The CHRO may now enter an employer’s business premises during business hours to ensure compliance with the posting requirements and to inspect all records, policies, procedures and training materials. The CHRO’s authority is limited to situation where its Executive Director reasonably believes the employer is violating the law or during the 12-month period following the date on which a complaint was filed against the employer.  If the employer’s place of business is a residential home, the homeowner must give the CHRO express permission.

Please let us know if you have any questions about the new training requirements or any of the other changes to the law.

The U.S. Department of Labor (“DOL”) released the final version of its highly anticipated Fair Labor Standards Act overtime and minimum wage exemption rule, setting qualifications for exemption at an annual salary of $35,568. The final rule is effective January 1, 2020.

Change is Coming 

Under the new rule, the salary level threshold will increase from $455 per week (or $23,660 annually) to $684 per week (or $35,568 annually). The increase is in between the current threshold last updated during the Bush administration in 2004 ($23,660) and the increase proposed by the Obama administration in 2016 ($47,476). The DOL estimates 1.2 million currently exempt workers will be eligible for overtime as a result of this increase.

Other changes include:

• Increasing the salary threshold for the so-called “highly compensated employees” from $100,000 to $107,432; and

• A commitment to periodically review the salary threshold, using the notice-and-commenting rulemaking process every four years.

The DOL has indicated that industries most likely to be affected by the new rule are education, wholesale and retail businesses, and businesses that provide professional services.

The rule does not make any changes to the job duties test.

Decisions, Decisions, Decisions 

Employers have until January 1 before the new rule takes effect, forcing quick decisions about employees whose salaries will be below the new threshold and, without any modification, would automatically lose their exempt-status.

It is possible that pro-employee groups will challenge the new rule in court. The Obama administration’s 2016 overtime rule was litigated by business groups, management-side lawyers and workers’ advocates in court.

Stay tuned!

On September 12, 2019, the Equal Employment Opportunity Commission (“EEOC”) published a formal notice in the Federal Register that it does not intend to renew collection of EEO-1 Component 2 pay data at this time. The EEOC is pausing the requirements after discovering it severely miscalculated the cost burden to employers of collecting the data. The EEOC initially estimated that the annual burden costs for employers to collect Component 1 and Component 2 data would be $53.5 million; however, after reviewing and updating its methodology the EEOC determined the actual burden would be roughly $614 million. The EEOC has a duty to balance the utility of the data to its enforcement programs against the burden the data collection imposes on the employers who must submit it. The EEOC concluded that the benefit of collecting the Component 2 data utilizing the EEOC’s current methodology for collection is outweighed by the cost of the burden imposed on employers.

What does this mean for employers?

Required filers must still submit EEO-1 Component 2 data for 2017 and 2018 by September 30, 2019. Recall that this includes wages and hours worked for all employees by race, ethnicity and sex. However, employers will not be required to submit Component 2 data for future years unless the EEOC resumes the requirements or a lawsuit is brought against the agency to enforce the requirements.
Also, note that the EEOC explicitly stated that it plans to continue collection of Component 1 data. Therefore, required filers will have to continue filing Component 1 data in future years.

On Thursday, Governor Andrew Cuomo signed several pieces of legislation that bolster New York’s growing workplace protections.

These laws will be implemented over the course of the next year. They will:

• Increase protections for employees who are members of protected classes as well as for those who have been sexually harassed;

• Prohibit nondisclosure agreements in discrimination cases, preventing employers from effectively silencing their employees;

• Prohibit mandatory arbitration provisions in discrimination cases, allowing employees to bring a claim and have it reviewed outside of their employer and potentially have their day in court;

• Require employers to give notice to employees regarding their sexual harassment prevention training programs in English and the employees’ primary languages, ensuring employees comprehend available resources;

• Extend the statute of limitations to three years for claims resulting from unlawful or discriminatory practices constituting sexual harassment;

• Require review and update of the model sexual harassment prevention guidance document and sexual harassment prevention policy; and

• Eliminate the strict “severe or pervasive” standard required to show that sexual harassment occurred;

• Eliminate the employer’s affirmative defense to avoid liability (requiring employees to follow the proper procedure for addressing a sexual harassment claim or else be prevented from moving forward with a claim);

• Broaden New York’s law to cover all employers of the state;

• Allow for punitive damages and attorney’s fees in employment discrimination cases; and

• Direct the commission of labor to run a study on strengthening sexual harassment prevention laws.

• Prohibit nondisclosure agreements from barring the disclosure of facts surrounding the discrimination case to particular parties.

Check out our recent blogs covering changes to New York laws and stay tuned for more:

Updates to the New York anti-harassment and anti-discrimination laws

New York City releases guidance on race discrimination on the basis of hair

Sweeping sexual harassment laws in New York

Carmody Torrance Sandak & Hennessey LLP will hold a training session for supervisors on Thursday, September 12th on the prevention of sexual harassment in the workplace. The program will be presented from our Waterbury office, but individuals may also participate by video conference in our New Haven and Stamford offices. Registration starts at 8:15 a.m. and the program begins at 8:30 a.m. The fee is $75 per person and includes a continental breakfast.

Connecticut law requires employers with 50 or more employees to provide sexual harassment training for supervisory employees. State law also requires that new supervisors receive this training within six months of assuming their positions. New York law requires employers with 15 or more employees to provide sexual harassment training. Our training session meets Connecticut and New York State requirements for supervisory employees. We will inform supervisors on how to identify and handle incidents concerning sexual harassment. We also will outline steps employers can take to assert and defend their rights against challenges of harassment.

We offer this training session in response to your requests for an efficient way to ensure that all of your supervisory personnel are in compliance with the law. We will provide written confirmation to your attendees upon completion of the session. If you or your supervisors are unable to attend this session, we can provide customized on-site training upon request.

Click here to register!

If you have any questions, please contact any member of the Carmody Labor and Employment Practice Group for more information:

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Maureen D. Cox
(203) 575-2642; mcox@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Holly G. Wheeler
(203) 784-3158; hwheeler@carmodylaw.com

Carmody Torrance Sandak & Hennessey LLP is excited to announce Lauren M. Hopwood as a new Partner practicing immigration law in the New Haven office.

Lauren represents clients in a variety of industries, including the health care, science, financial services, information technology and educational sectors. She has extensive experience in a wide variety of business immigration matters, including nonimmigrant and immigrant visa petitions. She counsels employers on immigration considerations in the hiring context, including I-9 compliance and E-Verify. Lauren also regularly advises clients on immigration due diligence and compliance arising from mergers and acquisitions.

If Lauren may be of legal service to you, please contact her at (203) 784-3104 or lhopwood@carmodylaw.com.