Employment Law: Stay In the Know—and Out of Court
Every year, judicial rulings and legislation change the employment law landscape in Connecticut, altering the rules that govern the employer-employee relationship.
2017 saw new laws and judicial decisions on everything from medical marijuana to pregnancy discrimination to the ABC test for independent contractors.
Such constant change makes staying up to date on new employment law developments essential for employers and HR managers, says Marilyn Douglas, vice president and director of human resources at
Petra Construction in North Haven.
“Every business’s goal should be to stay in compliance with the law,” she says.
“Also, being aware of how laws and regulations are being interpreted can provide a basis for pursuing legislative changes.”
Navigating the maze of evolving employment law rules and regulations can be particularly difficult in Connecticut, where the state legislature often passes their own versions of federal laws like the ADA and
FMLA, says Mark Tyszka, director of human resources at the Connecticut Public Affairs Network.
“You have to comply with whichever produces the better result for the employee, so you have to be as well-educated as possible so that you know you’re doing the right thing,” says Tyszka.
“It’s good business to have a company that’s respected and treats their employees well.”
While it’s important for employers to know employment law, it’s also critical to understand what the legal missteps were that landed a company in court or prompted new legislation, says CBIA HR Counsel Mark Soycher.
“There are real-life circumstances behind court decisions,” he says.
“The takeaway value is, ‘Where was the breakdown and where would additional communication possibly have helped avoid a conflict or diminished the likelihood of a lawsuit?’
“Employers’ focus should not be limited to ‘Don’t break the law,’ but rather, ‘How do I conduct my business effectively within the bounds of the law?’”
Sometimes, says Soycher, that means solving the employee’s problem; other times it may mean letting an employee go.
“As an employer, you want to get to the right endpoint by the right path,” which in most cases means not letting an HR issue find its way into court if possible—even if you think you will ultimately prevail.
“‘Case dismissed in favor of the employer’ is one of the most expensive phrases an employer will ever hear,” says Soycher.
Keeping personnel problems from escalating depends on two key factors, says Douglas.
“One is to have policies in place that everyone is aware of, which are typically found in an employee handbook,” she says.
“The second is to make a point to know your employees as people and care about them as people.”
Tyszka believes problems can intensify when decisions are made too hastily.
“Use caution,” he says. “You can always buy time. One of the things I’ve learned over the years is you can always suspend somebody with pay so you have some time to make a decision—so you don’t make a rash decision.”
Medical Marijuana: ‘Your Personal View Is Irrelevant’
In 2017, several HR issues were addressed through new legislation and judicial rulings that HR managers need to pay close attention to and, in some cases, may require updates to workplace policies.
At a recent meeting of CBIA’s HR Council, attorney John Letizia, managing and founding partner of Letizia, Ambrose & Falls P.C. in New Haven, discussed some of those issues, including the tricky matter of medical marijuana.
Medical marijuana became legal in Connecticut in 2012 with passage of the state’s Palliative Use of Marijuana Act.
Under PUMA, patients with certain debilitating medical conditions as defined in the law can, with a doctor’s written certification, register as “qualifying patients” and receive a medical marijuana card.
The law explicitly protects qualifying patients from adverse employment action.
In other words, an employer cannot (with a few exceptions) refuse to hire, discharge, penalize, or threaten an employee solely because that person is a qualifying patient under PUMA.
Equally important, however, is the fact that PUMA does not allow an employee to consume or be at work under the influence of medical marijuana.
The critical point, says Letizia, is that employers need to dispense with any preconceived notions they may have about marijuana use and treat employees certified to use medical marijuana like any other employee who uses a legal, controlled medicinal substance—including opioids.
“When you think medical marijuana, you have to be thinking Percocet,” says Letizia.
“It’s no different for someone to say in an interview that they have a medical marijuana card than it is for them to say they’re taking Percocet for a back problem.
“So stop thinking of pot as something separate from opioids, and then you’ll be in a better place.
“Your personal view of marijuana is irrelevant. You’re just trying to minimize liability [for discrimination].”
Letizia cites a 2017 case where a job applicant sued a Connecticut employer for rescinding a job offer after the applicant, who disclosed she uses medical marijuana to treat PTSD (a qualifying condition under PUMA), tested positive for marijuana on a preemployment drug screening required by the employer.
The employer argued that PUMA is unenforceable because federal laws preempt it. The U.S. District Judge for the District of Connecticut, however, ruled that federal drug laws do not address the issue of employment and, therefore, do not prohibit employing a medical marijuana user.
The takeaway for employers, according to Letizia, is that the decision reinforces the existing principle in employment law that if state law is more favorable to the employee, it will usually be followed and not be preempted by federal law (except for ERISA—the Employee Retirement Income Security Act).
To minimize the risk of being sued for discrimination under PUMA, Letizia urges HR managers to make sure their workplace drug policies are comprehensive and applied fairly.
“You have to treat everyone the same; you can’t have a suspension policy for someone who tests positive for alcohol but then fire someone who tests positive for marijuana. You’re going to get sued.”
Update Your Drug Policy
Letizia advises HR managers to revisit their drug-free workplace policies.
“If you write a policy that covers everyone who is intoxicated or under the influence, you can capture medical marijuana, because no one is allowed under PUMA or federal law to be at work under the influence,” he says.
“And we have reasonable-suspicion testing as a methodology for addressing that,” meaning that an employer who has a reasonable suspicion that someone is coming to work impaired can require that person to take a drug or blood alcohol test.
While most people are familiar with the signs of alcohol intoxication, recognizing when someone might be under the influence of marijuana may be more difficult for managers and supervisors.
CBIA Counsel Eric Gjede, a labor law specialist, says he’ll be urging the state legislature in the 2018 session to provide employers with some direction in this area.
“I think there should be guidelines to instruct employers in determining whether an employee is under the influence of marijuana and what signs they should watch for,” says Gjede.
“Many years ago, the state Department of Labor put out draft guidelines defining ‘reasonable suspicion’ that encompassed marijuana, alcohol, and other impairing substances, but never fully adopted them.
I think with some small tweaks, that would be a perfectly good vehicle.
“I’m hoping the legislature is willing to tackle that critical issue. We’ll be actively pushing for it next year.”
Pregnancy Discrimination Protections Expanded
Another state law with broad implications for Connecticut employers took effect Oct. 1 and expands employers’ obligations to pregnant employees and pregnant jobseekers.
Employment law in Connecticut already barred discriminating against pregnant employees, and employers were also required to follow the federal Pregnancy Discrimination Act, which requires employers to provide pregnant employees temporary, light-duty work if they provide light-duty work to employees with work-related injuries or illnesses.
Under the new state law, employers must notify employees that it is a discriminatory practice to fail to make a reasonable accommodation requested by a pregnant employee unless such accommodation is an undue hardship to the company.
“This law, for the most part, reflects best practices that are already being implemented by Connecticut employers when it comes to accommodating pregnant employees,” says Gjede.
The statute expands the meaning of pregnancy, defining it as “pregnancy, childbirth, or a related condition, including, but not limited to, lactation.”
“Now the law says the reasonable accommodation must continue through the lactation period,” says Letizia, “so that extends well beyond the disability. That’s the thing to focus on; that never existed in federal or state law.”
One other important point to remember, he says, is that you can’t prohibit a pregnant woman from working in a certain capacity if she wants to and doesn’t have a doctor’s note saying she can’t.
“You’ve got to let them work,” says Letizia, but adds that you also have the right to ask a doctor if the employee’s job poses a risk to her or the fetus.
The new pregnancy discrimination law also expands the scope of reasonable accommodations, which may include more frequent breaks, being permitted to sit, and modified work schedules.
In addition, the statute deems it discriminatory to segregate a pregnant employee or deprive her of an employment opportunity solely because of pregnancy.
The new requirement to notify employees of their right to be free from discrimination in relation to pregnancy can be satisfied by placing a poster in English and Spanish in the workplace.
Posters can be purchased from CBIA for $10.
Court Clarifies Independent Contractor Status
The vexing world of employee classification got a bit more business-friendly in March when the Connecticut Supreme Court ruled that an individual who provides services to only one company can still be considered an independent contractor.
A win for Connecticut businesses that use independent contractors, the decision stemmed from a case involving an automotive damage appraisal company, Southwest Appraisal Group LLC, which contracted with six independent appraisers to perform appraisals for a flat fee.
Three of the six performed work for no other client but the plaintiff.
The Connecticut Superior Court held that to satisfy part C of the Department of Labor’s ABC test for determining independent contractor status¹, an individual must work for multiple clients.
Thus, the lower court said, although the three appraisers satisfied parts A and B, they did not meet part C because Southwest was their only client.
The state Supreme Court overturned the lower court’s decision, however, ruling that whether an individual worked for multiple clients was not by itself sufficient to determine whether the person met part C of the ABC test.
“We conclude that evidence of the performance of services for third parties is not required to prove part C of the ABC test,” said the court, “but, rather, is a single factor that may be considered under the totality of the circumstances analysis governing that inquiry.”
The court then went on to identify 10 factors to consider in evaluating the totality of the circumstances under part C of the ABC test.
“Essentially, what the state Supreme Court decision did was acknowledge the validity of an independent contractor who doesn’t have a list of clients,” says Soycher.
Stay Informed on Employment Law
One of the best ways for CBIA members to stay abreast of the latest HR trends and employment law developments is by participating in CBIA’s Human Resources Council.
A key benefit of being a member of the council, says Mark Tyszka, is the face-to-face interaction at every meeting.
“It’s very helpful to hear in person different viewpoints and what other people are doing, so you can ask questions,” he says.
“I read journals and blogs, but to have even just a couple of people, including Mark [Soycher], saying this is what we do and this is the experience I have—it just broadens your experience to hear from other people who are in the same situations you are.”
Marilyn Douglas agrees.
“I’ve participated in the HR Council for years,” she says, “and I’ve always found the meetings to be informative and a good opportunity to meet people, network, and become exposed to ideas and things that other people may be doing differently.
“You also learn about resources available to obtain services that are used in performing day-to-day HR tasks.
“I would recommend that any CBIA member have a representative attend the HR Council meetings.”
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