Employment Law for Employers FAQ

Do you own your own business? Act as a manger? Deal with employee issues on a regular basis? Then check out the latest Employee FAQ by Attorney David Rintoul. The questions focus on hiring, firing and keeping employees as well as sexual harassment issues. 

Required Notice for any Employee Performance Review or Disciplinary Notice

Effective October 1, 2013, when giving an employee any written performance review or disciplinary warning, or termination notice, Connecticut employer are required to advise employees of their right to submit a response to document, and have that statement made part of the employee’s personal file. 

For many years, the Connecticut Personnel Files Act, Connecticut General Statute Section 31-128e(b) has allowed employees who disagree with any performance review, disciplinary notice or termination notice to submit a response that the employer is required to include in the employee’s personal file.  In 2013, the statute was amended to require employers to include a statement in “clear and conspicuous” language informing an employee of this right.  Therefore, if you give any employee a written performance review, warning, or notice of termination, you must include this notice.  We would suggest the following:

If you disagree with any of the information contained in this document, you have the right under Connecticut law to submit a statement explaining your position regarding this document, which statement will be maintained as part of your personnel file.

For specific questions on how you as an employer can incorporate this required language into personnel file documents, please contact Attorney David Rintoul. 

Bar Exam Application Questions Raise Mental Health Concerns

To be considered for admission to the Connecticut Bar, law students endure a lengthy application process. Article VI of the Connecticut Bar Examining Committee Regulations allows the committee to specifically ask applicants about their treatment for “mental health and chemical or psychological dependency matters.” The committee asks these questions as a means of fulfilling its duty to those seeking legal services and because the committee wants to ensure that a mental health condition will not interfere with an applicant’s ability to practice law.

These mental health questions have always been controversial. Many argue that these questions prevent law students from seeking much needed treatment for fear that they will not be admitted to the bar. Additionally, many argue that only medical professionals should be privy to the confidential information these questions yield. The Bar Examining Committee has attempted over the years to narrow the questions in order to comply with the Americans with Disabilities Act.  A new call to review these questions was initiated this past December when David Borden, a former Connecticut Supreme Court Justice, raised the issue at a meeting of the Connecticut Bar Examining Committee.

Approximately one-fourth of adult Americans have some form of mental illness. Hartford Hospital’s Stop the Stigma! campaign represents a Connecticut effort to reduce the stigma surrounding mental health. With this growing discussion on mental health, it will be interesting to see whether the Connecticut Bar Examining Committee will make any changes to the bar examination application.

Connecticut General Assembly to Consider Bill to Implement Additional Ski Safety Standards: Will it Reduce Ski Facility Operators’ Liability or is it All Downhill From Here?

       Skiing is a popular winter activity, but hitting the slopes can be a risky endeavor. Connecticut law currently requires skiers and ski facility operators to take certain safety precautions. This legislative session, the Connecticut General Assembly will consider a bill that would require skiers to assume responsibility for properly using restraint bars while riding on ski lifts. Although the proposed legislation would limit a ski facility owner’s liability if skiers are injured by not properly using the restraints, ski facility owners and skiers are still responsible for complying with the current safety protocols. In fact, in a recent Hartford Courant article, Representative Janice Giegler, who introduced the bill, noted that many ski areas in Connecticut already utilize the proposed safety practices, but the legislation is necessary to formally codify the standards. 

            Raised Bill No. 5148, “An Act Concerning Ski Safety,” mandates that ski facility operators install restraint devices on ski lifts, post instructions so that skiers know how to properly use the restraint devices, and post notices stating that skiers are required by law to use the devices. The bill also includes a provision that would require ski facility operators to apply protective padding to hydrant snow-making equipment and lift towers located within the boundaries of the ski area.

            Although this bill would improve ski safety, it would not dramatically alter the current law. This is because the proposed legislation still incorporates all of the safety requirements presently codified in Connecticut General Statutes §§ 29-211 and 29-213. For example, ski facility operators will still need to mark trail maintenance vehicles so that skiers can see them, identify trail and slope entrances with markers, and mark lift towers located on trails or slopes that are not readily visible, among other safety measures. (Conn. Gen. Stat. § 29-211). Similarly, skiers will still be legally required to refrain from throwing objects from ski lifts, interfering with the operation of ski lifts, and placing objects in the ski area that may cause other skiers to fall, among other prohibitions. (Conn. Gen. Stat. § 29-213).

            Despite the implementation of these safety precautions, skiing can still be a dangerous activity, and generally, people participate at their own risk. Specifically, Connecticut General Statutes § 29-212 states that skiers assume the risks and legal responsibilities for any injuries that they suffer due to the “hazards inherent in the sport of skiing,” which may include variations in terrain, trees or objects not located in the boundaries of the ski trail, and collisions with other skiers. Nevertheless, if a ski facility operator is negligent in maintaining its facilities or implementing the legally required safety measures, it cannot necessarily avoid liability. In addition, ski facility operators cannot entirely avoid liability for their own negligent actions by requiring that skiers sign liability waivers.

            If you would like to know more about how the proposed legislation may impact your ski facility, the lawyers of Brown, Paindiris & Scott can answer your questions regarding Connecticut’s laws governing ski facilities and advise you on next steps. 

A novel approach to drug trafficking?

It is not usual for law enforcement in Connecticut to occasionally intercept packages in the mail that have narcotics within.  Public and private package services (USPS, UPS, FedEx) often know what to look for in packages that they suspect contain illegal substances.  Moreover, these services can be quick to involve law enforcement when their suspicion has arisen.  However, a 37 year-old Hartford man has found a novel, if seemingly idiotic, way of avoiding attempting to avoid detection:  become a United States Postal Service Supervisor!  If you are a United States Postal Service Supervisor, you can just intercept the package when it comes into your post office (in this case Waterbury).  There is one downside however, in addition to the possible expose for possession of narcotics by the criminal justice system in the State of Connecticut, you may also be indicted by a federal grand jury for Embezzlement of Mail By an Employee of the United States Postal Service, in violation of 18 United States Code Section 1709.  … Maybe it’s not such a great plan after all. 

Chimp Attack Victim has Trouble Bringing Lawsuit

Most of us remember the brutal chimpanzee attack in 2009 that left a Connecticut woman with severe and disfiguring injuries. The victim, Charla Nash, hoped to sue the state of Connecticut for failing to remove the violent chimpanzee from her friend’s possession and is claiming $150 million in damages.

One legal obstacle has thus far prevented her from doing so. The State of Connecticut typically has sovereign immunity, meaning it cannot be sued. The state claims commissioner, however, has the authority under Connecticut General Statute § 4-160 to waive this immunity. Last year, the state claims commissioner granted a motion by the attorney general to dismiss Nash’s case, effectively denying her the ability to sue the state.

Nash’s only remedy is to now convince the state Judiciary Committee to overturn the ruling of state claims commissioner. This is likely difficult as few state claims commissioner decisions have been overturned. The House and Senate must approve the final Judiciary Committee decision. With so much at stake, Nash’s case is anticipated to be discussed at length in the state legislature.

Employee Misclassification and Exotic Dancers

Employers are responsible for ensuring that individuals who work for them are correctly classified as either “employees” or “independent contractors” in accordance with state and federal laws and regulations. Although at first it may seem as though these terms are simply “labels,” many employees often learn that their classification significantly impacts their rights and benefits. People classified as “employees” are eligible to receive family and medical leave, overtime pay, minimum wage, unemployment insurance, healthcare coverage, and employer contributions to Social Security and Medicare tax payments, among other benefits and protections. Accordingly, if an employer misclassifies an “employee” as an “independent contractor,” that individual will be unable to receive those benefits.

There are a number of different tests that courts utilize to determine whether an individual should be classified as an employee or as an independent contractor. For example, the Second Circuit employs the “economic realities test” and considers a number of factors in reaching its decisions, including the degree of control that the employer exercises over its workers; the degree of skill and initiative required for workers to perform their tasks; and the extent to which the individual’s work is an integral part of the employer’s business. In Connecticut, courts employ the “ABC test” codified in Conn. Gen. Stat. §31-222(a)(1)(B), and the individual must satisfy all components of the test in order to deemed an independent contractor.

Recently, there have been a number of lawsuits filed in various jurisdictions in which exotic dancers have asserted state and federal claims against strip club owners who have misclassified them as independent contractors rather than as employees. Exotic dancers in New York, Colorado, California, Maryland, West Virginia, and Georgia have filed wage and hour cases in attempts to recover unpaid wages, as many of them were not paid minimum wage, or overtime pay, as required by state labor laws. Some of these cases are still pending, but so far, dancers in California have negotiated a $13-million settlement and in the case of In re Penthouse Executive Club in New York, exotic dancers were able to negotiate an $8 million settlement for unpaid hourly fees and wages.

If you believe that you may be misclassified as an independent contractor and are entitled to the benefits that employees receive, contact Attorney David Jaffe at 860-266-4278 or 877-783-5367, who has represented employees with similar claims in Connecticut.