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HR Hotline

May 1, 2013 By CBIA

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

USCIS Publishes New Form I-9

Q: In last month’s HR Hotline article, you refer to the most current version of Form I-9 that the U.S. Citizenship and Immigration Service (USCIS) continues to advise employers to use, even though its expiration date has expired. Since then, the USCIS has come out with a new form. Do we have to redo all the old ones?

A: Ah, the perils of print media. Just as we mailed last month’s CBIA News, the USCIS finally published the updated Form I-9, revised to minimize errors in form completion.

The good news is that you do not have to redo any old I-9s. But as always, it’s wise to periodically conduct an I-9 audit for proper completion, since many noncompliance citations are issued for paperwork violations related to I-9 documentation rather than the more serious offense of illegally employing workers who lack the proper documentation or status.

The revised Form I-9, which expires March 31, 2016, can be found here.

Instruction pages are more detailed and intended to be more helpful. The form itself has been expanded from one to two pages and contains new data fields for passport information (when applicable) and applicant telephone and email addresses (optional).

The final page, containing the lists of acceptable documents, offers clearer descriptions of the various documents applicants may present to establish both identity and employment authorization.

Because some larger employers using electronic systems for I-9 completion and retention may need some time to change systems over to the new form, the USCIS has provided a 60-day transition period.

At the same time, employers are encouraged to immediately begin using this updated Form I-9 for all new hires and re-verifications. Using the new form is mandatory after May 7, 2013.

A Spanish version of the form is available at uscis.gov and may be helpful to Spanish-speaking employers and employees as a reference. For compliance purposes, however, it is only acceptable in Puerto Rico; the English version must be used in all 50 states and other U.S. territories.

If you are interested in a comprehensive guide on Form I-9 compliance that contains much more detail than the form itself, see the USCIS’s updated version of their Handbook for Employers.

Q: We observe Memorial Day as a scheduled holiday, but we may need to have a few employees work that day. Are we required to pay them overtime?

A: There’s no requirement to pay overtime when employees work on a holiday unless the holiday hours result in their working more than 40 hours in that payroll week. But many employers do pay employees time-and-a-half—plus the day’s holiday pay.

Some also count paid holiday time off as hours worked when they compute overtime for a week in which a holiday falls.

For more information on pay practices, see CBIA’s Benefits Survey Report, which gives an overview of benefits currently offered by member companies. To purchase a copy, call 860.244.1900 or click here. 

Q: We are a small manufacturer with several 17-year-olds working part-time. When school recesses for the summer, we would like to bring them on board full-time. Are there different time/hour restrictions for non-school weeks versus school weeks?

A: Sixteen- and 17-year-olds who are enrolled in school can work longer hours during the summer and other non-school weeks. According to the state Department of Labor, they may work up to eight hours per day/48 hours per week and six days per week when school is out. Unlike during school weeks, there are no restrictions on how late they may work on a given day. For 16- and 17-year-olds who are not enrolled in school and have not graduated, the restrictions are the same except that they may work nine hours per day.

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

April 1, 2013 By CBIA

New CT Driver’s License Program

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: A new employee presented me with a driver’s license marked, Not for Federal Identification. Is this no longer valid as an identity document for completing the federal immigration Form I-9?

A: That form of a Connecticut driver’s license—or a picture ID card with a similar statement issued by the state Department of Motor Vehicles (DMV)—is still acceptable for establishing the worker’s identity for completing the Form I-9.

The DMV has started a new program to offer verified identity protection to people renewing driver’s licenses and DMV-issued identification cards. Those seeking the new Verified SelectCT ID license or ID card at renewal time must present one of the designated original identity documents, such as an original copy of a birth certificate or social security card, passport, or other original paperwork showing lawful status in the U.S. This new license or ID card will have a gold star on the front top right corner.

Those renewing their license or ID card may also decline to provide this added documentation and simply get a regular or non-verified driver’s license or ID card that will be stamped “Not for Federal Identification.”

Holders of a non-verified driver’s license may face extra screening under a proposed federal program slated to go into effect in 2017 for airports and federal buildings.

The program stems from national security measures and federal identification standards resulting from the 9/11 terrorist attacks. It’s also designed to offer residents additional protection against identity theft by having a historical record of proven original identity documents shown to the DMV. More details and facsimile samples of these documents are available here.

In the future, the U.S. Citizenship and Immigration Service (USCIS) may revise the Form I-9 List A documents to include verified licenses or ID cards as establishing both identity and employment authorization, but for now they seem to have their hands full with simply updating the Form I-9. The most current Form I-9, which the USCIS has stated should continue to be used until further notice, has an OMB control number expiration date of August 31, 2012.

Q: We are covered by the federal Family and Medical Leave Act (FMLA). Several of our newer employees who are members of the National Guard or Reserves had been called to active duty and recently returned to work. If one of those employees were to now request FMLA leave, does the time missed due to National Guard or Reserve duty affect the employee’s FMLA eligibility?

A: An employee is eligible for federal FMLA leave if he or she has been employed by a covered employer for at least 12 months, not necessarily consecutive, and has 1,250 hours of service in the 12 months preceding the commencement of leave.

FMLA regulations make clear the protections for men and women serving in the military by stating that a break in service due to an employee’s fulfillment of military obligations must be taken into consideration when determining whether an employee meets the 12 months/1,250 hours requirements.

Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the months that an employee would have worked but for his or her military service must be counted in determining whether the employee has been employed for 12 months; similarly, hours that an employee would have worked are credited toward the minimum 1,250 hours.

Example: Jean worked for her employer for six months in 2011, then was called to active duty status with the Reserves. In 2012, Jean returned to her employer, requesting to be reinstated under the USERRA. Both the months and the hours that Jean would have worked but for her military status must be counted in determining her FMLA eligibility.

To determine the time that would have been worked during the period of military service, FMLA regulations say an employee’s pre-service work schedule can generally be used for calculations.

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

March 1, 2013 By CBIA

FMLA and Overtime

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: We are covered by the federal Family and Medical Leave Act (FMLA). We’ve just announced that our production employees will be required to work mandatory overtime for the foreseeable future. An employee with a serious health condition—a chronic condition that’s been covered under FMLA in the past—says he cannot work the extra hours because of his condition. His doctor agrees. He still has FMLA time available. What should we do? How does the FMLA figure into this situation?

A: If an employee would normally be required to work overtime but is unable to do so because of an FMLA-qualifying reason that limits the employee’s ability to work extra hours, the hours that the employee would have been required to work may be counted against his or her FMLA entitlement. In such a case, the employee is considered to be using intermittent leave or a reduced leave schedule.

For example, if the employee would normally be required to work 48 hours in a particular week, but due to a serious health condition is unable to work more than 40 hours that week, the employee would use eight hours of FMLA-protected leave.

Voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee’s FMLA leave entitlement.

Q: In the past, when we had 19 employees, we followed Connecticut’s “mini-COBRA” insurance continuation law and offered a separating employee the opportunity to purchase 30 months of group health continuation coverage. We now employ 22 employees. But if one employee were to leave, would we follow the federal COBRA law and offer only 18 months of insurance continuation?

A: You should continue to offer 30 months of coverage to any employee who loses eligibility for coverage as a result of a “COBRA-qualifying event,” that is, a reduction in work hours or any employment separation other than a discharge for willful misconduct.

In 2010, the state legislature revised Connecticut’s mini-COBRA law to expand the continuation period from 18 months to 30 months. In most other respects, the state and federal laws are the same.

Although the federal COBRA law is usually referenced for businesses that employ 20 or more employees, and Connecticut’s mini-COBRA law for those with fewer than 20 employees, the Connecticut law has no ceiling—a fact that is often overlooked. As a result, the state law continues to be applicable to the larger companies, overlapping with federal COBRA.

Where state and federal law both apply to a situation, the basic legal principle to rely on (with only a few exceptions that are not relevant here) is that the law that is more favorable or protective of the worker prevails. Therefore, in this case, the employee and covered dependents losing coverage eligibility due to a COBRA-qualifying event are entitled to the opportunity to purchase 30 rather than 18 months of continuation coverage.

Q: We are finally looking to add some staff, and in preparing paperwork, we noticed the version of the Immigration Form I-9 we will be using expired on Aug. 31, 2012. Are we risking a violation if we continue to use this version? Is there an updated form?

A: You should continue using the same form. Although the U.S. Citizen & Immigration Services (USCIS) is planning to issue a new form, they have not yet done so and have posted the following statement on their website:

Until further notice, employers should continue using the Form I-9 currently available on the forms section of www.uscis.gov. This form should continue to be used even after the OMB control number expiration date of August 31, 2012, has passed. USCIS will provide updated information about the new version of the Form I-9 as it becomes available.

Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States.

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

February 1, 2013 By CBIA

Valentine’s Day Dilemma

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: We’ve been fairly successful in our past efforts to curtail employee exchanges of Valentine’s Day greetings, citing such activity as frivolous and distracting at a minimum and, at worst, cultivating a dangerous potential for harassment complaints resulting from unwelcome or offensive communications. This year our resident “jailhouse lawyer” has asserted that because Saint Valentine’s Day has a religious basis, the company prohibition constitutes an impermissible restriction on employees’ religious observance.

A: I suggest you thank this employee with a warm smile and a firm “nice try.” Be careful, however, to avoid an overly harsh response, since the employee’s inquiry into the possibility of engaging in religious observance could be construed, in and of itself, as a form of protected activity. The last thing you want is to be accused of illegal retaliation.

As to the substance of the employee’s request, while there may be some historical basis to the assertion that the contemporary Valentine’s Day has a genesis as a liturgical celebration of one or more early Christian saints named Valentinus, it has for some centuries now been firmly established as a secular day associated with romance and the exchange of flowers, sweets, and greeting cards.

Nonetheless, keep in mind that both federal and state laws clearly protect employees against religious discrimination and require employers to reasonably accommodate employees’ religious beliefs or practices. The law protects not only people who belong to traditional organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have “sincerely held religious, ethical, or moral beliefs.”

In addition, various court cases have broadly defined religion to include any sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by God and includes atheism and agnosticism.

In your case, however, the activity that the employee is seeking to cast as protected religious observance has no relation to any such core feelings of faith connected to guiding principles for how one lives one’s life. Filling colleagues’ mailboxes, real or virtual, with sweets or sweet nothings can be disruptive, introduce dangerous malware to your computer network, and run counter to your wellness efforts.

If this advice seems too rigid and you succumb to the social pressure to allow Valentine’s Day activities at your workplace on February 14, make sure your employees know where to draw the line. The exchange of suggestive messages or gifts could expose your company to charges of harassment or allowing a hostile work environment.

When it comes to Valentine’s Day cards or e-cards, advise employees not to send any message that would cause them—or the recipient—any embarrassment if it were read by the entire company.

In addition, you might want to check out Managing Workplace Romance, a webinar we presented in Jan. 2013.

Q: It’s that time of year again. Remind us—what safety records do we have to post and for how long?

A: The Occupational Safety and Health Administration (OSHA) requires employers to post the OSHA 300A summary of the total number of work-related injuries and illnesses that occurred during the previous year. Only the 300A summary—not the OSHA 300 log—must be posted from February 1 to April 30.

The form should be posted in a common area where other employee notices are usually displayed. A copy of the summary must also be made available to workers who move from work-site to work-site or who do not report to any fixed work-site on a regular basis.

The summary must include the total number of job-related injuries and illnesses that occurred in 2012 and were logged on the OSHA 300. To assist in calculating incidence rates, information about the annual average number of employees and total hours worked during the calendar year is also required. If a company recorded no injuries or illnesses in 2012, the employer must enter zero on the total line. A company executive must then sign and certify the form.

Employers with 10 or fewer employees, and employers in the retail, services, financial, insurance, and real estate sectors are normally exempt from OSHA recordkeeping and posting requirements. A complete list of exempt industries can be found here.

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

Average 2013 Merit Increases

January 1, 2013 By CBIA

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: We’ve heard that the average 2013 projected merit increase for companies in Connecticut is between 2% and 3%. Does that sound about right?

CBIA recently surveyed members on that very topic. We asked employers to indicate planned or projected average merit increases. Here was the response:

Overall
Plant/Hourly: 1.95%
Admin/Clerical:  2.34%
Exempt (non-manager) 2.39%
Manager 2.39%
Executive 1.96%

Excluding Firms Giving 0%
Plant/Hourly: 2.72%
Admin/Clerical:  2.77%
Exempt (non-manager) 2.89%
Manager 2.92%
Executive 2.94%

A roughly 3% increase among companies giving raises appears to reflect a consensus among consultants and researchers. The figure is similar to last year’s average merit increase and represents an incremental rise over the last few years.

For more information on CBIA surveys on such topics as executive compensation and employee opinions, contact Phillip Montgomery, director of compensation services, at 860.244.982 or phillip.montgomery@cbia.com.

Q: Last month, we completed open enrollment for employee health insurance. We’ve had to update our payroll processing data to reflect changes in employee premium contribution amounts. Can we still use the old forms signed by employees authorizing paycheck deductions for group insurance premium contributions?

A: First, it’s good that you’ve complied with the state labor law that requires an employee’s written authorization for payroll deductions for health insurance premium payments.

Connecticut wage payment laws are very specific about when and how employers may withhold money from a worker’s paycheck, dividing such deductions into three categories, the first of which relates to your question.

Deductions for employee contributions toward group health premiums require the employee’s written authorization and may be documented on any form you choose. So at a minimum, it would be important to insert the new deduction amount and have the employee initial the revised form, or you may complete a new form for the employee to sign. Either approach complies with the law and avoids any misunderstanding regarding the amount. Otherwise, an employee complaint to the labor department challenging the amount withheld may result in your being denied the right to deduct it, yet still having to pay the group insurance premium until proper authorization is obtained.

Deductions in the second category, those required for regular payroll tax withholdings, may be made without employee authorization. In fact, failure to make necessary withholding tax and FICA tax deductions can land you in deep trouble with the IRS and the state Department of Revenue Services.

The third category, deductions for a variety of purposes—such as repayment of vacation pay advances, personal loans, employee purchases, disability benefit premiums, and payroll savings programs—require written employee authorization on a form that has been approved by the state labor commissioner. Once approved, you are allowed to use the form repeatedly without approval for each instance it is used.

The state Department of Labor (DOL) has published sample forms, making it easy to submit a request for approval online. If you already have a form you prefer to use for miscellaneous deductions, you may request that it be approved by submitting a copy via email or regular mail. If it is inadequate in any respect, the labor commissioner will indicate revisions needed for approval.

If you are using an unapproved form, or no form at all (verbal agreements are wonderful until the time comes for enforcement against an individual whose memory is short), it would be advisable to update your documentation by reaffirming the arrangement using an approved form. Otherwise, in the event of a complaint, you might be directed by a DOL investigator to cease deductions from the paycheck and to pay the employee amounts previously deducted illegally. Your employee may still be obligated to pay amounts agreed upon, and you may have the legal right to repayment, but you may be left enforcing the transaction in some manner other than as a deduction from the employee’s paycheck, such as through small claims court.

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

December 1, 2012 By CBIA

Exempt from Sick Leave Law?

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: We are a nonprofit operating only in Connecticut and believed we were subject to the new state Paid Sick Leave Law, which we began following when it took effect on Jan. 1, 2012. Recently someone told me that nonprofits are exempt. Is that so?

A: The exemption for nonprofits is quite limited. Under the new law, the nonexempt entity must be a nationally chartered organization—like the YMCA/YWCA, exempt from taxation under Section 501(c)(3) or any subsequent corresponding section of the U.S. Internal Revenue Code—that provides all of the following services: recreation, child care, and education.

Also exempt are any business establishments classified in sector 31, 32, or 33 in the North American Industrial Classification System (NAICS)—basically, manufacturers. NAICS refers to one facility as an establishment (generally a single physical location) and an entire company as an enterprise. Each establishment should be assessed separately to determine if primary business activity falls within sector 31, 32, or 33. An employer may have one facility subject to the law and other facilities that are not, a source of confusion for employers. CBIA will be urging the 2013 state legislature to revise the statute to avoid distinguishing between establishments and enterprises.

Q: Hurricane Sandy forced us to shut down for the better part of a week. Employees who did not work and lost wages for all or a part of the week have filed for unemployment benefits. Will these benefit payments be charged to our company’s unemployment experience account and cause our tax rate to rise?

A: As we reported about a year ago, employees out of work due to a weather-related business interruption would be deemed out of work through no fault of their own—a “lack of work” situation. If otherwise eligible for jobless benefits, such employees would be entitled to unemployment benefits for either full or partial unemployment.

In the aftermath of Hurricane Sandy, the President declared the storm to be a “major disaster” in Fairfield, New Haven, Middlesex, and New London counties. Under state employment law, employers in those counties are entitled to relief from unemployment tax chargeability for benefits paid out due to storm-related disruptions.

In order to obtain relief from charges, it will be necessary for those unemployment claims to be identified as “storm-related.” For example, benefits paid to a worker whose employer remained open that week but was laid off due to lack of work for reasons other than the storm, or whose unemployment was due to another nondisqualifying reason, will be charged to the base period employer.

Even if an unemployment notice (Form UC-61) did not note that a claim was storm-related, it may still be possible to contest the charge to your unemployment experience account. When a claim is initially approved at the first administrative level, a Notice of Potential Liability (Form UC-280) is sent to the base period employer, who then has 21 days from the date the form was mailed to contest the claimant’s eligibility or protest the chargeability of the benefit payments. This deadline is quite rigid, so it is important to be vigilant and timely in requesting relief.

Q: Christmas and New Year’s Day—both paid company holidays—fall on successive Tuesdays this year. If we were to close for the two preceding Mondays, would we have to pay employees for these two additional days off?

A: If you closed your workplace for those two Mondays, state and federal wage-hour laws would impose differing pay obligations for exempt and nonexempt employees.

Exempt workers, those not eligible for overtime pay under the executive, administrative, or professional exemptions, would be entitled to their regular pay for the week, including Monday. Such workers must be paid their guaranteed fixed weekly salary for any week in which they work any time, with only a few limited exceptions. The situation you raise is not one in which their paychecks can be reduced because of a reduced work schedule.

However, you may charge the extra holiday’s pay against accrued paid time off (PTO) benefits such as vacation, personal time, or floating holiday—or even against a future accrual of PTO time if an exempt employee has exhausted all PTO time. In any event, exempt employees would still be entitled to their full week’s pay.

Nonexempt employees, those eligible for overtime pay, are entitled only to be paid for time actually worked. However, if they have accrued PTO benefits available, you can offer them the option of using those benefits for the two Mondays before Christmas and New Year’s.

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

November 1, 2012 By CBIA

Medical Marijuana Law Revisited

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: In the September CBIA News, you indicated that “an employer cannot fire, decline to hire, or otherwise penalize an employee or applicant solely because the person is qualified to use medical marijuana.” We have employees in two job categories subject to random drug testing: (a) Commercial Driver Licensed (CDL) drivers of vehicles covered by federal DOT standards and (b) “high-risk/safety-sensitive” jobs, as designated by the Connecticut Department of Labor (DOL). If any of these employees tests positive for marijuana but also has a registration certificate from the state Department of Consumer Protection for use of medical marijuana, does Connecticut’s new medical marijuana law prevent us from taking that employee out of service and/or discharging him or her?

A: The law specifically permits employers to apply a drug-free workplace standard to employees in jobs governed by federal law requirements such as CDL drivers—which could lead to refusing to hire an applicant or reassigning or discharging an employee who is using medicinal marijuana.

However, the law does not similarly acknowledge the high-risk/safety-sensitive job designation under the Connecticut drug testing law that permits random testing. Such jobs are defined by state law as “an occupation which presents a clearly significant life-threatening danger to the employee, his fellow employees, or the general public; and requires the exercise of discriminating judgment or high degree of care and caution; and is separate from the ability to discern impaired or enhanced performance by direct supervision.”

One section of the new medical marijuana law states that the protections against workplace discrimination for those using medicinal marijuana will not apply to “any palliative use of marijuana that endangers the health or well-being of a person other than the qualifying patient or the primary caregiver.”

Although it seems this may offer a basis on which an employer may refuse to employ or assign a worker to a high-risk/safety-sensitive job if that person is also using medicinal marijuana, you should keep in mind that urinalysis, the most common form of drug test, does not measure impairment but rather recent ingestion of an illicit substance. Consequently, a worker assigned to a high-risk/safety-sensitive job who uses medicinal marijuana may fail a drug test, even if sufficient time has passed since such use so that the worker shows no signs of impairment and may actually not be impaired. So it may be difficult to assert that a high-risk/safety-sensitive worker failing a drug test due to the palliative use of marijuana may “endanger the health or well-being” of people at work.

Q: One of our employees just gave his two weeks’ notice, but we’d rather not have him around for the next two weeks. Can we tell him to leave now? If so, must we pay him for the two weeks?

A: Yes to the first question, no to the second. There is no state or federal law requiring you to accept the notice and let the employee stay on the job for the next two weeks or to pay him in lieu of accepting the notice. If you tell him to leave, however, and he files for unemployment compensation, it will be treated as a discharge rather than a resignation—and he may be eligible for benefits. Paying him for the two weeks’ notice period would preserve the resignation and probably make him ineligible for benefits.

Q: We have 60 employees, so we’re covered by the federal Family and Medical Leave Act (FMLA) but not by the state leave act. One of our employees asked for FMLA leave to care for his ill, out-of-state mother. We gave him a medical certificate and told him to have his mother’s doctor fill it out. He’s been back from leave for a week now, but we never received the certificate. What should we do?

A: Employers may require that an employee’s leave be supported by medical certification issued by the healthcare provider. The employer must give the employee a written request for the certificate and must also advise the employee in writing of the consequences of failing to provide the certificate. The employee generally has 15 days to return the completed form. If the employee fails to do so, the leave is not FMLA leave and the employee does not enjoy the protections of the leave law. In such cases, some employers refuse to reinstate the employee, count the leave as an unexcused absence, or treat the employee like a new hire.

If you did not fulfill the written notice requirements initially, you should do so now. Then decide what you will do if the employee still refuses to provide the certificate, and warn him about those consequences.

I recommend erring on the side of safety, but the final word on this may have to come from the state DOL in the form of guidance on the application of the law.

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

October 1, 2012 By CBIA

Proper Notice of Employee Rights

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: We know we have to provide initial notice of COBRA/state continuation rights when an employee first becomes covered by our group health plan. Our employee handbook includes COBRA information, and every new employee gets a copy of the handbook. Does this fulfill the initial notice requirement?

A: If the information in the employee handbook explains an employee’s rights to COBRA/continuation coverage, then the handbook likely is sufficient notice to a new employee. However, initial notice must also be provided to an employee’s spouse/dependents when they first become covered by a group plan subject to COBRA. The handbook would not fulfill this requirement.

A separate notice must be mailed to the spouse’s last known mailing address; first class mailing is sufficient. COBRA requires employers to be able to show that proper notice was provided—not necessarily received—so be sure to keep documentation proving you sent the notice, such as a photocopy of the metered envelope or a copy of the notice itself with a handwritten notation from the individual who sent it.

CBIA’s COBRA Administration Services are available to customers of CBIA Health Connections. Among the program’s free services are:

  • Initial and subsequent notification of eligibility
  • Billing of qualified beneficiaries
  • Premium collection
  • Payments to carriers
  • Activating and retrieval of records

For more information, contact CBIA’s Tom Guerra at 860.244.1160 or tom.guerra@cbia.com.

Q: After completing facility renovations, we now have limited wall space for posting required labor law notices. Since all our employees have ready access to computers, is it permissible to simply post required notices electronically on our intranet?

A: In most cases it should be permissible, but there are some issues to consider. FMLA and USERRA actually contain a reference to the possibility of electronic posting as an acceptable means of notice, as long as it otherwise meets the accessibility and content requirements. However, most of the laws mandating a workplace notice/poster advising employees of their rights were enacted before computer workstations came into widespread use. Consequently, those laws do not refer specifically to electronic posting.

The manner of required notice varies from law to law but is typically stated in sufficiently general terms to make electronic notice permissible. Generally, the mandates reflect a performance standard concept, stating that the information must be displayed in a “conspicuous or convenient place…where covered workers are employed,…where such notices are customarily posted,…or where it can be read easily,…readily available for viewing…“

Variations in some of the laws include document and type size requirements. In such cases an electronic version with the suitable document format and font size would be in compliance.

While most posting requirements refer only to “employees,” a few—for example, the CHRO, federal FMLA, and EEOC requirements—include a reference to job applicants as well. A typical applicant is unlikely to have access to an electronic notice on your intranet, although posting on your public website may be a solution.

Another reference contained only in the federal FMLA posting law, but which would be wise to consider in the context of all other posting laws, addresses the possibility that applicants or employees are not literate in English. In such cases, the notice should be available, whether in hard copy or electronically, in the language in which your employee or applicant population is generally literate.

Yet another variation contained in the federal FMLA posting law addresses an employer’s notice obligation to sensory-impaired workers, stating that such notice must “comply with all applicable requirements under federal or state law.” Electronic or paper postings may not meet the “readily available for viewing” standard for providing notice to applicants or employees with visual or motor impairments that may interfere with their ability to read or who cannot, without accommodation, access an electronic document using a standard keypad on a desktop computer or mobile device. In such cases, a government agency auditor will likely consider a company’s intent and good faith effort in achieving compliance when it comes to communicating the required information to the relevant population, whether on paper or in bytes and bits.

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

September 1, 2012 By CBIA

Connecticut’s New Medical Marijuana Law

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: With Connecticut’s new medical marijuana law going into effect on October 1, 2012, will our substance abuse preventive program still be viable?

A: Although this new law is a work in progress, its terms and projected procedures for growing, dispensing, and using marijuana for palliative or medical purposes attempt to strike a balance between the potentially competing interests of (a) those seeking to make marijuana legally available to patients as a strategy for pain management and (b) those concerned about maintaining workplace security and safety.

Starting Oct. 1, a “qualifying patient” can obtain a temporary registration certificate from the state Department of Consumer Protection (DCP) allowing the medical use of marijuana. A qualifying patient is a Connecticut resident 18 years or older with a debilitating medical condition, as certified by a treating physician. Covered conditions include cancer, glaucoma, HIV, AIDS, Parkinson’s disease, multiple sclerosis, epilepsy, cachexia, wasting syndrome, Crohn’s disease, and post-traumatic stress disorder.

One immediate problem for patients is that the systems, resources, and procedures for legally producing and dispensing medical marijuana are not expected to be established by the DCP until sometime in 2013. Consequently, when the law takes effect on Oct. 1, qualifying patients may legally possess and use marijuana but have no legal means of obtaining it.

Of greatest concern to employers is the fact some qualifying patients may still be able to work despite their medical condition and despite having used marijuana for relief during past episodes of incapacity. The question that arises is what happens if such a person, either as a job applicant or an employee, can’t pass a required drug test? The law states that an employer cannot fire, decline to hire, or otherwise penalize an employee or applicant solely because the person is qualified to use medical marijuana.

Balanced against this patient protection is language in the law that permits an employer to prohibit the use of intoxicating substances during work hours or discipline an employee for being intoxicated while at work.

The bottom line is that employers will need to review pre-employment and “for cause” drug test practices with legal counsel and medical providers to implement a process to verify a qualifying patient’s status. Employers will also need to evaluate whether medical use of marijuana may result in impairment on the job and, as required under state and federal disability protection laws, whether a reasonable accommodation would permit the qualifying patient/employee to perform the job’s essential functions.

Last but not least, employers should update policies, communicate any changes to employees, and train managers on implementing the new law. They should also provide managers with information about traditional substance abuse prevention strategies, including recognizing signs and symptoms of impairment as evidenced by worker performance or behaviors.

The DCP has posted some basic information about the new medical marijuana law and will be updating it as required procedures are developed.

Q: We had several teens working for us this past summer. Now that school has started, we would like to keep them on part-time. What are the restrictions on hours for teens who work during the school year?

A: There are some definite hour limitations for teens enrolled in school. As a general rule, 14- and 15- year-olds enrolled in school may not work:

  • During school hours
  • Before 7 am or after 7 pm
  • More than three hours per day on school days or more than eight hours on non-school days
  • More than 18 hours a week in school weeks or 40 hours in non-school weeks

Sixteen- and 17-year-olds can work more hours: six hours per day and 32 hours per week during school weeks and eight hours per day and 48 hours in non-school weeks. They must not start work before 6 am but they may work until 10 pm (11 pm in restaurants and in recreational, amusement, and theater establishments). They may also work an hour later on days not followed by a school day.

Permitted occupations for teens are also limited, and there are some special hours-of-work rules for retail food stores and other retail establishments. Click here for more details.

Do you have a question related to employment law, wage and hour issues, or human resources? CBIA members can get free information from CBIA’s experts by calling 860.244.1900.

Your Questions Answered

July 1, 2012 By CBIA

Do you have a question related to employment law, wage and hour issues, or human resources? Members can get free information from CBIA’s experts by calling 860.244.1900.

By Mark Soycher and Lynn Atkinson
CBIA human resources experts

Q: A former employee has appealed a decision from the Unemployment Compensation Department denying her unemployment benefits, but our company will not be able to attend the Referee’s Hearing. What happens in this case?

A: First, notify the Appeals Division immediately to request a postponement or other arrangement. The telephone number of the Appeals Division office is printed at the top of the Notice of Hearing. Postponements are granted only for very good reasons.

If one of the parties fails to attend the hearing, a number of things can happen. If the appealing party fails to attend, the appeal likely will be dismissed and the department’s decision denying her benefits will stand. The referee can also decide to proceed with the hearing, and his or her decision will be based on the testimony of those present and the record. Or the referee can reschedule if there is good cause to do so.

If the appealing party attends but the non-appealing party does not, the referee can decide to proceed or to reschedule. If you do not attend the hearing, the referee’s decision could be based solely on your former employee’s testimony. So, unless a postponement is granted, it’s crucial that someone from your company attend.

Q: We generally observe the “big six” as scheduled holidays—New Year’s, Memorial Day, July 4, Labor Day, Thanksgiving, and Christmas—but sometimes may need to have a few employees work those days. Are we required to pay them overtime?

A: There’s no requirement to pay employees overtime when they work on a holiday unless the holiday hours result in the employee’s working more than 40 hours in that payroll week. But many employers do pay employees time-and-a-half—plus the day’s holiday pay—when they work on a scheduled holiday. Although not required to do so, some employers also count paid holiday time off as hours worked when they compute overtime for a week in which a holiday falls.

Q: Many of our nonexempt employees have smart phones or tablet computers, which they regularly use for work purposes while away from our facility during off-hours. Am I required to pay them for that time?

A: Ah, summertime, and the livin’ is easy, except in today’s 24/7 wired world, when many of us feel compelled to respond immediately to any work-related matter, even while on vacation.

Whether time spent by nonexempt employees is “working time” for which they must be paid has increasingly bedeviled management, as state and federal law has generally failed to keep pace with changing technology.

One constant in the law, however, has been the principle that if an employer knows or has reason to believe that an employee is performing work away from the job site (for example, while at home or on vacation), the time must be counted as hours worked, and wages must be paid to the employee.

From the regulators’ perspective, management has the authority to control its workforce and cannot accept the benefits of employee work without paying for it. Business owners or managers must take steps to ensure that work is not performed if they don’t want it to be performed. Simply telling employees not to work away from the job site and ignoring a different reality is not sufficient. Consequently, if a company institutes a no-work-at-home rule, management must advise employees of the rule and ensure compliance, even if that means taking disciplinary action.

Federal wage and hour regulations do, however, contain some language that seems to recognize typical use of contemporary communications technology.

In stipulating what time must be recorded as working time, the regulations specify that “insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis.”

Therefore, it is unlikely that you would have to pay an employee for the minute or two it takes to check email while away from the workplace. But, where that occurs regularly and leads to brief or not-so-brief periods of time spent answering texts or interrupting family time to speak with a customer or manager, it cannot be ignored as unpaid “voluntary” work without risking significant enforcement consequences for unpaid work hours. Managers should listen to their own oft-stated caveats to employees regarding improper online activity: There is an electronic record, so beware!

For more information on pay practices, see CBIA’s Benefits Survey Report, 12th edition, which gives an overview of benefits currently offered by member companies. Purchase a copy online or call 860.244.1900.

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