Carmody Torrance Sandak & Hennessey will hold a training session for supervisors on Thursday, December 6th 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.

For more information and to register, please click here.

Please join us for our 2018 Annual Labor & Employment Seminar on Friday, October 19th at the Aqua Turf Club in Plantsville, CT. Our panel will address the developments in Labor & Employment law and highlight legislative changes and significant cases from the U.S. and state courts. We also will discuss hot topics such as: The #MeToo Movement, Opioids, Marijuana and the Impaired Employee, Cyber Security and Data Privacy Issues, Alternative Dispute Resolution and Mandatory Employment Arbitration, Wage and Hour Issues.

Schedule of Events:
8:00 a.m.    Registration and Networking Breakfast
9:00 a.m.    Program
12:30 p.m.  Lunch

For more information, please click here.


Major Changes to Non-Competes

Massachusetts passed a new law that will limit the enforceability of non-compete agreements entered into on or after October 1, 2018. Some highlights of the new law include: (1) the law applies to employees who live or work in Massachusetts, and to independent contractors; (2) non-competes are prohibited for employees classified as non-exempt under the Fair Labor Standards Act; (3) non-competes are not enforceable against employees who are terminated without cause or laid off; (4) employers must pay employees during the non-compete period either 50% of their salary (referred to as “garden leave” pay) or “other mutually agreed upon consideration”, which is not defined; (5) the non-compete cannot be for a period of longer than one year, with limited exceptions; and (6) non-competes signed after employment has commenced must be supported by “fair and reasonable consideration”, which is not defined. There are numerous other requirements. Please contact us should you require additional information.

Paid Family and Medical Leave

Starting January 1, 2021, eligible employees will be entitled to take up to 20 weeks of paid medical leave to attend to their own serious medical needs, up to 12 weeks of paid leave to care for a sick family member or a newborn, and up to 26 weeks of paid leave to care for a covered service member. The paid leave program will be administered by the state of Massachusetts and funded through a 0.63% payroll tax, which the employer and employee will split. Employees will be required to cover 100% of the contributions for family leave, and 40% of the contributions for personal medical leave. However, employers with over 25 employees must pay 60% of the contributions for personal medical leave. Employer and employee contributions will begin on July 1, 2019.

Before receiving payment during leave, the employee will have to take seven days of unpaid leave.  Thereafter, the employee will be eligible for a weekly paid leave equal to 80% of the employee’s wages (capped at 50% of the state average weekly wage) plus 50% of their wages beyond that amount (capped at $850 per week), which is adjusted annually to remain at 64% of the state average weekly wage.

There are a number of other administrative and notice requirements. Please contact us should you require additional information regarding these requirements.

Increased Minimum Wage

Beginning January 1, 2019 and gradually increasing over the following five years, the hourly minimum wage in Massachusetts will increase from $11.00 to $15.00 and the tipped hourly minimum wage will increase from $3.75 to $6.75.


New York

Sweeping Sexual Harassment Laws

The New York state budget that was enacted on April 12, 2018 includes numerous requirements concerning sexual harassment. The new requirements: (1) extend protection against sexual harassment to non-employees, including contractors, subcontractors, vendors and consultants; (2) prohibit employers from requiring employees to arbitrate sexual harassment claims; (3) prohibit employers from including non-disclosure provisions in settlement agreements for sexual harassment claims unless the employee prefers otherwise and certain other requirements are met; and (4) mandate all employers, effective October 9, 2018, to adopt a sexual harassment policy containing certain specific provisions, and to conduct annual interactive sexual harassment training for all employees covering certain specific topics.

On June 27, 2018, the United States Supreme Court issued a pivotal decision in Janus v. American Federation of State, County and Municipal Employees, which overturned more than 40 years of precedent. The Janus case involved “agency fees” that unions typically require non-union employees to pay. That is, employees who are covered under a union’s collective bargaining agreement, but choose not to join the union, do not have to pay full union dues. Instead, they pay agency fees to cover the basic costs that the union incurs in representing them. In Janus, the Court held that public employee unions cannot force non-union employees to pay agency fees because this requirement violates the First Amendment.

The Janus case overturned the Court’s prior decision in Abood v. Detroit Bd. of Educ. where the Court held that agency fees were constitutional so long as the union used the fees for non-political purposes, such as collective bargaining, contract administration, grievance adjustment purposes, and other activities “germane to the union’s duties as collective bargaining representative.” The Court reasoned that there was a compelling state interest in promoting “labor peace” and avoiding the issue of “free riders”—i.e., employees reaping the benefits of union representation without paying dues.

In Janus, the plaintiff was a non-union public employee who was required to pay an agency fee that was 78.06% of total dues, or $535 annually. The plaintiff challenged the agency fee claiming that it violated the First Amendment because it was “coerced political speech.”

The Court held in favor of the plaintiff describing the Abood decision as “poorly reasoned.”  It also pointed out that the decision has led to “practical problems and abuse.”  The Court explicitly rejected the “labor peace” and “free rider” justifications underlying the Abood decision, concluding that these justifications did not outweigh First Amendment protections.  With respect to “labor peace,” the Court noted that there are millions of public employees in states that do not allow agency-fee arrangements and unions continue to represent them.  On the issue of “free riders,” the Court concluded that the issue simply does not provide a compelling interest to override the First Amendment protections at issue.  As a result, the Court concluded that mandatory agency-fees are unconstitutional and that public employees must affirmatively agree to pay union dues.

The Janus decision will have a significant impact on public unions particularly in states like Connecticut, which allow agency fees.  We are monitoring developments following this decision and will update you as more details unfold.  Please do not hesitate to ask us any questions you might have regarding this decision and its affects.

On May 21, 2018, the United States Supreme Court held in Epic Systems Corp. v. Lewis, and two related cases, that class action waiver provisions contained in arbitration agreements do not violate the National Labor Relations Act. This decision is a significant favorable development for employers. Justice Gorsuch, writing in a 5 to 4 decision, held that although the public policy is debatable, the Federal Arbitration Act allows arbitration agreements with such waiver provisions to be enforced despite claims that “concerted activity” under the National Labor Relations Act includes the right to file class actions. In a strongly worded dissent, Justice Ginsburg called the decision “egregiously wrong.”

What Does This Mean?

 As we alerted you previously, this is a hot button issue that provides key insight into the current Supreme Court’s view on arbitration and the National Labor Relations Act. The decision continues a long line of cases favoring arbitration. Stated simply, it means that employers may require employees to sign valid arbitration agreements prohibiting class actions as a condition of employment.

Under these waiver provisions, it will be more difficult for employees to challenge employment practice violations through the usually more expensive and burdensome class action litigation process. (The cases before the Court were alleged wage-hour violations under the FLSA.) Instead, such challenges will be decided individually on the merits through what is generally regarded as a more expedient and efficient arbitration process. Critics of the Court’s decision argue that this will discourage claims, lead to inconsistent decisions and result in less protection of employee rights. Proponents argue otherwise: the more efficient arbitration process could result in more claims being filed. Proponents also note that the costly and burdensome class action process was being misused to leverage large settlements from employers.

In addition to the major impact this decision could have on the employment law landscape, the decision also is significant because it foreshadows the current Court’s more limited view on deference to administrative agencies, such as the NLRB, under the so-called “Chevron deference” doctrine.

What Should Employers Do?

Employers should revisit the pros and cons of requiring their employees to arbitrate employment claims. The Court’s decision in Epic Systems is a major factor, among others, in favor of binding arbitration.  However, other countervailing factors should be considered, such as reduced chances of prevailing on dispositive motions and limited appellate review. Yet there is no question that most large employers could benefit from limiting their exposure to class actions, particularly given the recent surge in class or collective wage-hour litigation. As a caveat, employers should recognize that there are essential components that must be included to establish a legally enforceable, mandatory arbitration procedure.

Given the controversy surrounding the Court’s decision and the policy questions it raises, state legislatures might seek to minimize or undermine the Court’s decision. We will continue to monitor this area and update you as the law develops. At the same time, we continue to work with clients as they modify policies in response to this important development.

The 2018 edition of Chambers USA Guide to America’s Leading Lawyers for Business ranks Carmody Torrance Sandak & Hennessey LLP Labor & Employment practice area and three attorneys in the top tiers in Connecticut. Chambers USA is a publication by Chambers and Partners, a third-party research and publishing company, that ranks U.S. Law firms and attorneys based on extensive interviews with clients and members of the legal community.

Lawyers are ranked on the basis of their legal knowledge and experience, their ability, their effectiveness, and their client service. Departments are ranked on the qualities of their lawyers and the effectiveness of the department as a whole.

Carmody’s Labor and Employment Group is included and noted for “a depth of litigation experience in claims concerning discrimination, retaliation and harassment, among other matters.” One source shared “They provide clear advice in personnel matters.” The publication also highlights three of the group’s attorneys, D. Charles Stohler, Giovanna Tiberii Weller and Domenico Zaino, for their extensive experience in labor and employment matters.

Chuck Stohler, of West Hartford, CT, is highlighted for his experience across a spectrum of employment  law issues, including labor relations and wage and hour disputes. One interviewee opined “He has a very good practical approach to problem solving. He has been doing this a long time and I’ve never seen anything rattle him. He’s very practical and methodical in dealing with problems on a step-by-step basis.”

Giovanna Tiberii Weller, of Meriden, CT, is noted for extensive experience representing employers in trials and appeals. She is described by her peers as “a fierce trial attorney and a litigator through and through.”

Nick Zaino, of Glastonbury, CT, is recognized for counseling employers on the full range of employment issues, including regulatory and compliance training. Sources also highlight his work with labor arbitrations and administrative proceedings.

The Connecticut General Assembly ended its legislative session quietly for the second year in a row. There were significant employment proposals on pay equity, paid FMLA, sexual harassment and discrimination, paid sick leave, and an increase in the minimum wage, but the General Assembly only passed the pay equity bill.

Pay Equity

The General Assembly passed “An Act Concerning Pay Equity.” Under this law, employers will be prohibited from inquiring or directing a third party to inquire about a prospective employee’s wage and salary, unless the prospective employee has voluntarily disclosed such information.

This law does not apply to employers or third parties who are required to inquire about wage or salary history by federal or state law. The law also does not prohibit employers from inquiring about other elements of a prospective employee’s compensation structure (e.g., whether the employee received stock options.) However, the employer may not inquire about the value of other elements of the prospective employee’s compensation structure (e.g., the value of the stock options.)

The Governor has indicated that he will sign this bill into law and if signed, it will take effect on January 1, 2019.

No Changes to Sexual Harassment Laws

One of the most surprising developments was the failure of the General Assembly to pass reforms to the state’s sexual harassment laws. Proposed bills would have, among other things, increased the number of employers required to provide sexual harassment training and would have required training for non-supervisory employees. One proposal also would have eliminated an important affirmative defense for employers and would have significantly increased the statute of limitations for bringing such claims.

These proposals were made in the wake of the #MeToo movement and had overwhelming support among legislators. It appears that the bill failed to pass due to concerns about a provision extending the statute of limitations for certain sex crimes. It remains to be seen whether the momentum for strengthening the state’s laws on sexual harassment will carry through to the next legislative session.

Employers should not take the Connecticut legislature’s failure to pass a bill as a sign that the #MeToo movement is waning. In fact, New York state, and New York City, recently passed laws requiring sexual harassment training for all employees. Other neighboring states also are considering new sexual harassment laws. Connecticut employers should continue to review their policies and procedures on preventing and properly responding to harassment in the workplace. Covered employers must continue to train their supervisors and, although not legally required to do so, an increasing number of employers also are training non-supervisory employees.

Please contact us if you are considering training your non-supervisory employees as we have developed a program for this audience.