HR Hotline: How Does the Location of Our Employees Affect Whether FMLA Applies to Us?

By Mark Soycher
CBIA HR Counsel

Q: We have more than 50 employees nationwide, but based on their distribution at various regional offices, no one facility has 50 employees working within 75 miles of that worksite. Does the federal FMLA apply to us?

A: It’s likely that your company is subject to the law, but also that none of your employees is entitled to FMLA job-protected leave. Let me explain.

In determining whether or not your company has 50 or more employees and is therefore covered by the federal FMLA, you must count all employees regardless of location: full-time, part-time, and remote workers in home or corporate offices. Next, you need to assess whether a specific employee is entitled to FMLA protections based on:

  • The reason leave is needed (must be an FMLA qualifying reason)
  • The employee’s length of service (must have at least one year of employment with your company)
  • The number of hours the employee worked in the past year (must be at least 1,250 hours worked)
  • Work location (must be working at a location where there are at least 50 employees working within 75 miles of that worksite)

In your case, it appears this last element is not met, so you have a situation where your company is subject to the FMLA, but no individual worker is entitled to FMLA leave because of the geographic distribution of the workforce.

You still must display at all worksites the U.S. Department of Labor poster, WHD Publication 1420 (available in CBIA’s Poster Compliance Kit), notifying all employees that they work for an FMLA-covered employer.

Upon a request from an employee or your learning that an employee is in need of time off that might be FMLA qualifying, you must respond with the U.S. Department of Labor Form WH-381, Notice of Rights and Responsibilities, and check off on the first page the section indicating that the employee is “not eligible for FMLA leave because he or she does not work and/or report to a site with 50 or more employees within 75 miles.”

HR Hotline: Does a Reduced Headcount Mean Reduced FMLA Obligations?

By Mark Soycher
CBIA HR Counsel

Q: An employee requested and was approved for FMLA qualifying leave. But after he was out for six weeks, we closed a facility, with the result that he no longer works at a site with 50 or more employees within 75 miles. Does that mean his leave is no longer FMLA qualifying and his job is no longer guaranteed?

A: No. Employee eligibility for FMLA job protections is determined at the time FMLA leave is requested.
A subsequent change in a company’s situation—such as a reduction in the number of employees or a change in the geographic distribution of the workforce—would not interrupt or curtail the FMLA leave rights of an eligible employee for the particular leave circumstance previously requested.

If an FMLA leave period is less than 12 weeks, however, leave requested for a new reason at some future date when the employer is no longer covered—for example, because of an insufficient number of employees—could be denied.

The Code of Federal Regulations’ FMLA provisions contain a reference that appears to directly address this issue. Section 29 CFR Sec. 25.110(e) defines an “eligible employee” this way:

“Whether 50 employees are employed within 75 miles to ascertain an employee’s eligibility for FMLA benefits is determined when the employee gives notice of the need for leave.

“Whether the leave is to be taken at one time or on an intermittent or reduced leave schedule basis, once an employee is determined eligible in response to that notice of the need for leave, the employee’s eligibility is not affected by any subsequent change in the number of employees employed at or within 75 miles of the employee’s worksite, for that specific notice of the need for leave.

“Similarly, an employer may not terminate employee leave that has already started if the employee count drops below 50. For example, if an employer employs 60 employees in August, but expects that the number of employees will drop to 40 in December, the employer must grant FMLA benefits to an otherwise eligible employee who gives notice of the need for leave in August for a period of leave to begin in December.”

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: Does Our Workplace No-Weapons Policy Supersede a State Permit to Carry a Gun?

By Mark Soycher
CBIA HR Counsel

Q: An employee presented me with a copy of his state permit to carry a handgun, stating he’d like to carry a gun while working on company premises. His job does not place him in an unsafe environment, nor is he responsible for valuable property or cash where his security or that of company property is at risk. Does our policy prohibiting weapons at work supersede his right under state law to carry a weapon?

A: Employers in Connecticut have the authority to restrict or prohibit employees from carrying weapons on the job or bringing weapons to the workplace even if the worker has a state permit to carry a gun. Connecticut General Statutes Sec. 29-28(e) states the following:

“The issuance of any permit to carry a pistol or revolver does not thereby authorize the possession or carrying of a pistol or revolver in any premises where the possession or carrying of a pistol or revolver is otherwise prohibited by law or is prohibited by the person who owns or exercises control over such premises.”

Nationally, this has been an issue of ongoing debate, with some states passing laws that restrict an employer’s right to ban weapons at work. The Connecticut legislature has not passed such a law and does not appear to be considering moving in this direction.

If you are interested in receiving an article discussing the status of this issue across the country or a sample policy addressing weapons on company premises, call CBIA’s HR Hotline at 860.244.1900 or email mark.soycher@cbia.com.

HR Hotline: Can We Keep Debt Collectors from Calling Employees at Work?

By Mark Soycher
CBIA HR Counsel

Q: One of our employees has been receiving calls at work several times per week from a debt collector, some directly to the employee, some transferred by the receptionist to our HR manager. Must we pass such calls to our employees? Can we tell the caller not to contact our employee at work?

A: State law requires employers to notify employees of incoming emergency calls involving a serious injury, illness, or the death of an immediate family member. Beyond that, employers are not obligated to interrupt employees at work with other types of calls, including collection calls.

Keep in mind, however, that this does not diminish an employer’s obligation to implement a properly (legally) served wage execution arising from an employee’s failure to pay attention to his or her creditors. In fact, a company could be on the hook for the debt payments if it ignores the law’s mandate that certain wage garnishments be implemented in a timely manner.

Also note that it is illegal to subject an employee to disciplinary action because of wage executions unless the employer is served with more than seven wage executions on that employee in a calendar year.

Although it is permissible for you to inform a debt collector that you will not pass along collection calls to your employee and that you do not want such calls placed to your company, that alone may not end unwanted calls from a persistent collector.

Your employee, however, does have the ability to prevent such calls. The federal Fair Debt Collection Practices Act requires that debt collectors treat debtors fairly, and it prohibits certain methods of debt collection, including phone calls at inconvenient times or places, such as before 8 a.m. or after 9 p.m. The federal law also prohibits a debt collector from contacting a debtor at work once notified by the debtor that his or her employer disapproves of such contacts.

If your employee advises a collector in writing to refrain from contacting him or her at work because you object, the collector can no longer place such calls, other than to say there will be no further contact or to notify the debtor that the creditor intends to take some specific action, such as filing suit. Your employee should understand that this strategy does not erase any legitimate debt that is owed, and it may result in further legal action to recover on the debt, but it should eliminate any further disruptive calls at your workplace.

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? CBIA Members can get free information from CBIA’s experts by calling 860.244.1900.

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.