HR Hotline: Are We Obligated to Pay Part-Timers During Jury Duty?

By Mark Soycher
CBIA HR Counsel

Q: A part-time employee has been called to jury duty. Are we obligated to pay her for the time served as a juror?

A: The law does not require that part-time workers be paid while on jury duty. However, Connecticut’s “one-day, one-trial” jury service law requires that all full-time employed jurors be paid regular wages for the first five days of jury service.

A “full-time employed juror” is an employee who holds a position that requires thirty hours or more of service in each week that is neither temporary nor casual. A full-time employed juror also includes an employee holding a position through a temp service that normally requires 30 or more hours of service per week and who has been working in that position for more than 90 days.

A person is considered a full-time employed juror on any day of jury service in which he or she would have earned regular wages if not for serving jury duty that day, or would have worked at least one-half of a shift that extends into another day if not for serving jury duty.

If jury service extends beyond five days, the state judicial system provides the employee/juror $50 per day, and no additional wages are owed by the employer for such days. Job-protected time off, however, is still required for the remainder of jury service.

Any juror who has served eight hours of jury duty in any one day shall be deemed to have worked a legal day’s work, and an employer may not require the juror/employee to work additional hours that day. A juror excused from jury service after less than eight hours’ jury duty may be required to report to work for the remainder of the scheduled workday in order to receive full pay for that day.

More information

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Do Part-Timers Have Full Reinstatement Protection Under USERRA?

By Mark Soycher
CBIA HR Counsel

Q: A part-time, temporary employee left for active military duty before completing his six-month probationary period at our company. He is now seeking reemployment after completing a period of active duty that lasted for just over a year. Does the law require rehiring a former part-time, temporary, probationary employee upon completion of military service?

A: Yes. The Uniformed Service Employment and Reemployment Rights Act (USERRA) applies to part-time, temporary, and even probationary employees, requiring reinstatement in almost all cases.

Keep in mind that an employee leaving for active military duty does not separate from employment, making rehiring unnecessary. Instead, the employee should be deemed on a leave of absence, with clearly established rights to reinstatement.

There are fairly narrow circumstances in which reinstatement is not required—for example, where the pre-service position is brief or for a nonrecurrent period and there is no reasonable expectation that employment would continue indefinitely or for a significant period. In such cases, the employer has the burden of showing the uncertainty of a continuing job opportunity.

Your situation is one of many examples of the value of a job offer letter to accurately characterize terms of employment or job status in a timely manner. Another possible case where reinstating a returning vet is not required occurs when an employer’s circumstances have changed so that reemployment would be impossible or unreasonable—for example, a reduction-in-force that would have included the vet.

In any event, under USERRA, the general standard is that it is unlawful for an employer to deny an individual “retention in employment” because of his or her membership in a uniformed service or performance of uniformed service. USERRA further specifies that the reinstated vet may not be discharged without cause for six to 12 months, depending on the length of the military service period.

Returning vets are entitled to be reinstated in the position they would have attained had they been continuously employed (usually, but not always, in the position held prior to commencing leave). If the period of military service was 91 days or more, the employer does have some additional flexibility and may reinstate the vet in an alternate position for which he or she is qualified, as long as it provides like seniority, status, and pay.

During an employee’s absence for active duty, employers are permitted to hire a replacement. However, the returning employee is entitled to reemployment upon completion of the military service, even if it requires termination of the replacement.

If you need additional help, the Connecticut Office of the Employer Support of the Guard and Reserve (ESGR) is a free resource for employers and service members, providing education, promoting USERRA compliance, and assisting in resolving conflicts.

Do you have questions related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? CBIA members can get free information by calling 860.244.1900.

HR Hotline: Do You Need a Specific Reason to Fire Someone in Connecticut

By Mark Soycher
CBIA HR Counsel

Q: Since Connecticut is an employment-at-will state, do we need a specific reason to fire someone?

A: Employment at will means that an employee can be fired at any time, with or without advance notice, for any reason or no reason, as long as it’s not for an illegal reason. Relying simply on Connecticut’s status as an employment-at-will state to justify a termination, however, should be a last resort.

Rather than asking if it’s permissible to fire someone without giving a reason, the more useful question is whether it’s advisable to fire someone without offering a reason. Think about it from the employee’s perspective. Nobody is fired for no reason; something has to have occurred to trigger an employer’s decision to let someone go—for example, a business-related incident or development or something pertaining to a worker’s performance or behavior.

If no reason is given to the worker, he or she is likely to suspect that disclosing the real reason would pose a problem for the company and that management must be trying to hide the real (possibly illegal) reason by using at-will employment as a shield.

Illegal reasons for firing someone include discrimination—for example, terminating an employee because of his or her race, religion, national origin, gender, pregnancy, sexual orientation, gender identity, or disability.

It is also illegal to fire someone as retaliation for doing something he or she has the legally protected right to do, including:

  • Taking time off for FMLA
  • Reporting illegal activities at work, such as safety or wage-hour violations or financial improprieties
  • Refusing to work under dangerous conditions
  • Filing a worker’s compensation claim
  • Appearing as a witness in another employee’s discrimination or unemployment compensation claim against the company
  • Taking time off related to a domestic violence situation

Other restrictions on your right to fire an employee may come from a union contract, personnel policy, or employment agreement that specifies reasons or procedures that must be followed before firing someone.

In approaching an employee termination—undoubtedly one of the most difficult and unpleasant tasks of managing a business—treat the employee with respect and provide a reason that reflects the truth. It does not have to include exhaustive, explicit details, nor should you expect the employee to accept or agree with your decision.

Less information may be advisable in some cases, but at a minimum, your explanation should include some characterization of events, performance, or behavior that is accurate, job-related, and non-discriminatory.

Of course, the employee may dispute your decision, but in most cases, the truth will set you free—both from legal claims and, very often, a troublesome worker who has unfairly dominated too much of your time and resources.

HR Hotline: Do We Have to Explain Employee Termination Decisions in Writing?

By Mark Soycher
CBIA HR Counsel

Q: When terminating an employee, is it enough to provide a pink slip and a verbal explanation of our decision, or must we also describe in writing why the employee is being terminated?

A: A 2013 change to the state personnel files law (Conn. General Statutes Sec. 31-128b) requires that an employer immediately provide an employee with a copy of any documented notice of the employee’s termination of employment. That notice must include a statement explaining that the employee can submit written comments disagreeing with anything in the termination notice, which will be retained as part of the employee’s personnel file.

Keep in mind, however, that while this law specifically requires giving the employee a copy of any documented notice of termination, it does not require creation of any new documentation, nor does it require that all documentation related to an employee termination be provided to the employee.

Arguably, the unemployment notice (Conn. Labor Dept. Form UC-61) would suffice as a documented notice of termination, to which you would have to add a note about the employee’s right to submit for inclusion in his or her personnel file a written statement containing any disagreement the employee has with the notice.

HR Hotline: Do Workplace Betting Pools Violate State Gambling Laws?

By Mark Soycher
CBIA HR Counsel

Q: As an employer, should we allow Super Bowl and March Madness betting pools at work? Would doing so violate state gambling laws?

A: Just to be clear, you can prohibit such non-work-related activities if you want. Every year around this time there are a variety of reports on the cost to companies when employees at all levels are distracted while setting up pools and following their favorite teams.

Last March, for example, global outplacement firm Challenger, Gray & Christmas Inc. calculated that with an estimated 50 million Americans participating in March Madness workplace pools, companies stand to lose at least $1.2 billion for every unproductive work hour during the first week of the NCAA tournament.

In addition, the very real concerns about problem gambling throughout the rest of the year are often set aside when the most visible national and local sports events take center stage.

But, while it is clearly an employer’s prerogative to ban such activities from the workplace, enforcing such a ban may be unrealistic. Sometimes an unenforceable policy is worse than none at all.

Notably, the Connecticut State Police annually issues an advisory regarding their enforcement plans for Super Bowl Sunday, focusing on safe, sober driving but also including the following comment on gambling:

In Connecticut, football pools are legal as long as all of the money taken in for the pool is given back to the winners participating in the pool. No percentage or cut can be taken by the person organizing the pool for his/her time and/or expense of running the pool.

Many businesses take the approach of disclaiming any official company involvement, prohibiting employees from using company equipment or resources in setting up pools, or from doing it while on the clock. Consistent with state law, they further require that any money raised from joining such a betting pool voluntarily organized by employees must all be paid back to the winning participants with no “profits” to the organizers or the company.

As an alternative, some companies have taken on the task of organizing a company pool but without any monetary investment required from participants, offering instead modest prizes to the winners, such as gift certificates to a local store or restaurant, paid for by the company.

If you adopt that strategy, participation should still be voluntary, respecting those employees who may object to any form of activity that could be construed as gambling based on personal, moral, or religious beliefs.

If interest in participating is fairly high, the activity might prove to be an employee morale booster, prompting an increase in interaction among disparate groups of workers. According to a March 2014 survey by staffing service OfficeTeam, nearly one-third (32%) of the 300 senior managers surveyed said activities tied to the college basketball tournament boost employee morale. Only 7% said such activities have a negative effect.

HR Hotline: Should Staff Be Allowed to Donate Their PTO?

By Mark Soycher
CBIA HR Counsel

Q: Some employees have asked if they can donate paid time off (PTO) to a coworker who’s exhausted his time but needs more due to a personal crisis? Is allowing this advisable?

A: It’s an admirable request, but in this case, it’s best not to proceed by the seat of one’s pants. One option is to establish guidelines and recordkeeping procedures for a PTO bank into which donated time is deposited. Doing so may aid in avoiding certain problems, including:

  • Uncomfortable situations arising from inappropriate solicitations or pressure to donate or grant PTO
  • Perceptions of favoritism or discrimination
  • Disagreements over the monetary value of time donated or granted. It’s best to value time off in terms of hours or days rather than dollars.
  • Establishing limits on use, which is best done through a neutral policy rather than in response to individual circumstances
  • Coordinating with FMLA leave. If FMLA applies, you may need to track FMLA job-protected leave time (unpaid) separately from donated PTO (paid).
  • Clarifying tax consequences. Donated PTO is not an IRS-recognized “charitable” donation or reportable/taxable income to the donor, but it is taxable income to the recipient.

If you are considering setting up a PTO bank, we suggest checking with your legal counsel or tax advisor. If you would like more information, including a sample policy, email mark.soycher@cbia or call our HR Hotline at 860.244.1900.

HR Hotline: Can You Offer FMLA Leave with Fewer Than 50 Employees?

By Mark Soycher
CBIA HR Counsel

Q: Even though we don’t employ enough workers to be subject to the FMLA, we would like to offer FMLA leave to our employees. Is that OK?

A: You may offer employees as much leave time as you choose, and for all the reasons (and more, if desirable) that would otherwise be FMLA qualifying, but calling it FMLA is not advisable.

Federal and state Family Medical Leave Act (FMLA) laws have specific jurisdictional standards defining which businesses, workers, and situations are covered. Those standards are also the criteria that federal and state labor departments and courts apply in determining whether a complaint may be accepted and processed. If the facts and allegations of a complaint do not meet the jurisdictional requirements of the law, the labor department or court lacks legal authority to address the matter.

In labeling a leave program or an employee’s absence as FMLA leave in a situation where the jurisdictional standards are not met, you may be creating unfounded employee expectations that certain rights apply and certain remedies are available. This could lead to a situation where an employee files a complaint that lacks legal status but that, nonetheless, costs your business considerable time and money in preliminary court or administrative proceedings. In other words, you don’t want to hear “case dismissed,” when the need for that conclusion could have been avoided with more careful packaging of your time-off program.

If you are inclined to offer leave that tracks FMLA in whole or in part, we suggest what might be characterized as an “FMLA-lite” policy. Call it something other than FMLA leave (perhaps, “Leave of Absence for Family/Medical Needs”) and include some specific disclaimer language clearly noting that the company does not employ a sufficient number of employees to be covered by the federal or state FMLA leave laws. (If you would like a sample of such a policy, email me at mark.soycher@cbia.com or call CBIA at 860.244.1900.)

If your employment levels increase to the point where your company is covered under the federal or state FMLA laws, you will need to notify employees and revise your leave policy accordingly.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Five Employees of 50 Are Offsite–Does FMLA Apply?

By Mark Soycher
CBIA HR Counsel

Q: We have more than 50 employees overall, but only 45 in Connecticut. The others are sales reps responsible for defined geographic regions of the U.S., working from their homes throughout the country. How does the FMLA apply to us, if at all?

A: The federal FMLA applies to companies that employ 50 or more employees during 20 or more weeks in the current or preceding calendar year. All your employees, including your sales reps, would be counted for determining if your total employee count meets the 50 or more threshold triggering the application of the FMLA to your company, regardless of where they work.

That’s not the whole story, however. You must determine if an individual employee is entitled to FMLA benefits, including protected leave time. Among other criteria, he or she must work at a “worksite” where 50 or more employees are employed by the employer within 75 miles of that worksite.

What is the worksite for a salesperson who works from home and whose job is performed at any number of customer locations dispersed across hundreds of miles? Federal regulations address the case of employees with no fixed worksite as follows: “…An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.”

So, although your sales reps may live hundreds of miles from your main office, if that is their home base from which their work is assigned or to which they report, your main office is considered to be their worksite, and they are entitled to FMLA leave if they are faced with an FMLA qualifying need for time off.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Can You Keep Illness from Spreading at Work?

By Mark Soycher
CBIA HR Counsel

Q: As we enter the flu season, and given all the frightening illnesses in the news that always seem about to “go viral,” literally, we’d like to do our best to protect our workforce from contagious illnesses. How far can we go regarding infection control practices, ranging from mandatory vaccinations to less intrusive steps, such as requiring regular hand washing and use of personal protective equipment, such as face masks and gloves?

A: The extent of the steps you take will vary based on your industry; the nature of your work environment; tasks performed; and interaction among employees or between employees, customers, clients, and the public.

It is clearly within your rights, and in some contexts highly advisable, to mandate that employees adopt good personal and workspace hygiene practices, including regular hand washing; disinfection of work surfaces; keeping hands away from eyes, nose, and mouth; sneezing into sleeves rather than on hands or openly into the air; as well as possibly using masks, gloves, and/or gowns if necessary to avoid contaminating the atmosphere or a work product.

Be aware of possible allergies some workers may have to protective equipment, and be prepared to explore accommodations, such as non-latex gloves, alternate fabrics, or nontoxic cleansers.

Regarding vaccinations, the EEOC says that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability—for example, an allergic condition similar to that described above—or under Title VII of the Civil Rights Act of 1964 if the employee has a “sincerely held” religious belief, practice, or observance that prevents him or her from taking the influenza vaccine.

In such cases, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Facts relevant to undue hardship in this context would presumably include, among other things, the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and (potentially) the number of employees who actually request accommodation.

Suitable medical documentation for an accommodation under the ADA could be as simple as a doctor’s note. Documenting a religious basis for an accommodation under Title VII can be a bit more subjective, as courts have defined religion very broadly—beyond the traditional, organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism—to include religious beliefs that are new, uncommon, not part of a formal church or sect, and only subscribed to by a small number of people.

Religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII. Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation.

For information about what employers need to know about Ebola, click here.

HR Hotline: Are You Subject to the Paid Sick Leave Law If Your Employee Count Drops Below 50?

By Mark Soycher
CBIA HR Counsel

Q: Until recently, we have had at least 50 employees and therefore followed Connecticut’s Paid Sick Leave Law. We are not a manufacturing business, and many of our employees fall within the law’s list of covered service workers. In December, however, we expect our employee count to drop below 50. Does that mean for 2015 we will not be subject to this law?

A: The law was changed this year, but the changes are not effective until Jan. 1, 2015. Under the current law, your employee count is based on the number of employees in any of the prior year’s calendar quarters. So, if you hit 50 employees in any one calendar quarter, as determined annually on Jan. 1, you are then subject to the law in that year, starting Jan. 1.

Under the revised law, effective Jan. 1, 2015, your employee count will be determined annually based on the number of employees on your payroll for the week containing Oct. 1, triggering application of the law to your company or exempting your firm from coverage as of January 1 in the following calendar year.

From your description, it appears that you have had 50 or more employees during one or more calendar quarters in 2014, as well as during the week of Oct. 1, 2014, which means that either under the current or revised law, you will have to provide paid sick leave in 2015