On December 18, 2019, a federal appeals court ruled that the Affordable Care Act’s (ACA) individual mandate is unconstitutional, since the mandate tax penalty had been reduced to zero. The individual mandate, the requirement that everyone have health insurance coverage, was previously challenged as unconstitutional. In 2012, the Supreme Court ruled that the individual mandate was valid as a tax, noting that it would not be valid under the Commerce Clause power.

The 2017 Tax Cut and Jobs Act repealed the individual mandate penalty on individuals without insurance, effective in 2019. Although the penalty was nullified, the individual mandate remained in the statute. Texas and other states filed suit challenging the constitutionality of the mandate claiming that since it no longer raised revenue for the government, it could not be upheld as a tax.

In December 2018, a federal district court agreed with Texas, finding that the individual mandate penalty was unconstitutional since it no longer functioned as a tax. In addition, the court stated that since the individual mandate was essential to the Affordable Care Act, the entire Act was unconstitutional.

On December 18, 2019, the Fifth Circuit appeals court held that the Texas district court was partially correct, in that the individual mandate, without a penalty, was unconstitutional. However, the appeals court did not uphold the portion of the decision to strike down the entire ACA.  The court remanded that aspect of the case back to the federal district court to determine whether the mandate can be severed from the rest of the ACA. The appeals court also instructed the federal district court to analyze the individual mandate’s interplay with other ACA provisions.

On January 3, certain Democratic states’ attorneys general and the U.S. House of Representatives, defending the ACA, filed petitions requesting that the Supreme Court immediately weigh in on the constitutionality of the mandate, as well as the viability of remainder of the ACA.

Employers should continue to comply with ACA, including the requirement for large employers (over 50 full-time employees) to provide affordable insurance to its full-time employees and report such coverage to the IRS (Form 1095-C). Note that all other ACA provisions, such as guaranteed issue, no annual or lifetime limits, age 26 coverage for adult children, etc., remain in effect.

Stay tuned!

Connecticut law now requires nearly every employer to provide sexual harassment prevention training for all employees, including supervisors and non-supervisory employees. For more information on the new law, click here.

In response to numerous client requests, Carmody will be offering separate two-hour seminars: one geared toward supervisors and the other geared toward non-supervisory employees. Our training complies with Connecticut’s training requirements, and we will provide written confirmation to your attendees upon completion of the session. Our schedule for seminars is set forth below.

The supervisor 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.

Now offering webinars! For those unable to attend in-person, we will now offer the scheduled programs by webinar at the same time. The fee is $50 per person and begins at 8:30 a.m.. The non-supervisory program will be presented by webinar only.

Seminar Schedule: 

Supervisor Harassment Prevention Training
March 13, 2020, June 12, 2020, September 11, 2020, and November 13, 2020

Employee Harassment Prevention Training
January 17, 2020, May 8, 2020, August 14, 2020, and October 9, 2020

On-Site Training: Carmody also provides customized on-site training for supervisors and/or employees. In many cases, this can be done on a fixed-fee basis, making it a cost-effective option for employers that need to train groups of employees and/or supervisors. Please contact Romania Jawahir or a member of our Labor & Employment group if you are interested.

Click here to register!

The holiday season is here and many employers have scheduled holiday parties to celebrate the year, thank employees for their service, and build employee morale. These parties are a long-standing tradition that employees look forward to attending.

Every year, however, holiday parties result in claims of harassment and discrimination based on various acts of misconduct. An employer can be held vicariously liable for incidents that occur at its party because it is generally considered an extension of the workplace. This is not necessarily a good reason to avoid having holiday parties, but it is a good reason to carefully plan so that the risk is minimized.

Monitor Alcohol Consumption and Provide Transportation
Alcohol is the greatest risk factor.  If not properly monitored, alcohol consumption can cause employees to engage in inappropriate, unwelcome or injurious conduct.  Consider the following:

  • limit alcohol consumption by providing “drink tickets”,
  • limit the period when alcohol is served,
  • stop serving alcohol at least one hour before the party ends,
  • only serve beer and wine, and
  • offer food and non-alcoholic options to counteract the effects of alcohol consumption.

Employers should strongly consider hosting the party at a restaurant, hotel or other venue that is licensed to serve alcohol. If the party is catered, a professional bartender should be hired to serve alcohol.

Employers should also consider providing transportation to and from the party or have a plan for carpooling with a designated driver. Employers should never allow an employee to drive home if there is suspicion that the employee is under the influence of alcohol.

Set an Appropriate Time
Consider hosting the party during the day or end the party earlier in the evening.  Regardless, make sure there is a strict end time and employees do not hang around after the party. Employers also should not sponsor or organize “after-party” events, and management employees should not attend the “after-party.”

Remind Employees of Expectations
Remind employees of the relevant personnel policies in advance (e.g. anti-harassment, drugs and alcohol, dress code, and the code of conduct.). Management employees should also be reminded that they must lead by example, intervene where appropriate, and hold employees accountable. Employers must promptly investigate any complaints of inappropriate behavior.

Avoid Wage and Hour Issues
Time spent performing duties for the benefit of the employer is considered compensable work time.  Therefore, Employers employers should clearly establish that attendance at the party is voluntary and should not ask nonexempt employees to perform any duties unless they are paid.

Address Social Media Issues
With virtually everyone carrying a camera on their smartphone, it is easy to post an embarrassing picture or video on social media. This can be damaging to the employee(s) affected and the employer. To minimize this risk, employers can instruct employees not to take pictures or video record employees without their consent.

Holiday parties can be rife with potential liability if employers are not careful.  Following these tips can help ensure that employees are able to celebrate the close of another business year while reducing the risk of liability.

Happy holidays!

Don’t miss the last session of the 2019 Human Resources Roundtable Breakfast Series on December 4th!

Topic: Wellness Programs: We will review trends in wellness programs and other initiatives that employers are taking to control health insurance costs. We will also highlight the different categories of wellness programs and the basic requirements applicable to each category.

For more information and to register, please click here.

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.