Author Archives: Eric Desmond

The Importance of Carefully Drafting Work-related Documents

 

Grammar, punctuation and language are critically important to the proper drafting of all work-related documents, including employment agreements; collective bargaining agreements; workplace policies, procedures and handbooks; settlement agreements; and separation agreements. While we all remember grammar lessons from middle school and beyond, it is important to put those lessons to good use when drafting important documents. The First Circuit Court of Appeals recently issued a stark reminder of the importance of grammar – and the consequences of ignoring grammar rules. In this case, the failure to recognize the important use of punctuation could cost an employer an estimated $10 million for unpaid wages.

Employees sued their employer claiming that they were due overtime wages, while the employer responded that the relevant Maine statute exempted them from the payment of overtime. The statute at issue exempts from overtime:

the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

The exact portion of the statute in question involved the phrase “packing for shipment or distribution of” the enumerated products, and the grammar rule in question is called the Oxford comma (because it derived from the Oxford University Press style guide) or the serial comma. The employees argued that what was exempted was the packing ‘for shipment or distribution’ (and that the comma was required to resolve ambiguity) while the employer argued that what was exempted was the ‘packing for shipment’ or the ‘distribution of’ the enumerated goods (and that the comma was unnecessary because there was no ambiguity). The employees also argued that all other items in the series were verbs ending in ‘ing’ and that the term ‘distribution’ did not fit within the series that was set-off with commas (adding, as a result, to the ambiguity of the statute).

The Circuit Court analyzed two grammar rules and their interpretation on the use of the Oxford comma, both of which can be considered correct depending upon how you were taught or the rules that you follow. The following style guides call for the use of the Oxford comma: The MLA Style Manual; The Chicago Manual of Style; and The US Government Printing Office Style Guide, among others. The following style guides do not call for the use of the Oxford comma, except to reduce ambiguity: The Associated Press Style Guide; The New York Times stylebook; and The Cambridge Guide to English Usage, among others.

The Circuit Court also analyzed the writing guidelines for the Maine legislature, which instructs that ambiguity should be resolved by rewording a series and not through use of the Oxford comma. In fact, the Maine Legislative Drafting Manual specifically instructs legislators to avoid using the Oxford comma when listing a series of items. The guidance instead suggests that laws and rules be worded to avoid ambiguity, stating that “[a]lthough authorities on punctuation may differ, when drafting Maine law or rules, don’t use a comma between the penultimate and the last item of a series.”

The Circuit Court held that the phrase as written was ambiguous and that a comma was necessary to resolve the ambiguity. The absence of the comma created ambiguity, and this ambiguity favored the employees. The Circuit Court ultimately overturned the previous ruling, which granted summary judgment to the employer, and has remanded the matter back to the District Court. However, when the matter returns for a trial, the District Court will be bound to the finding that the statute exempted from overtime the activity of ‘packing’ – for shipping and for distribution – certain goods (and not the ‘packing for shipping’ of certain goods or the ‘distribution’ of those same goods). Because the employees who brought the claim were drivers – who did not pack goods – it is probable that the ambiguity will result in a verdict potentially costing the employer millions of dollars.

Ryan & Ryan, LLC understands the importance of carefully drafting employment agreements, labor agreements and workplace policies. We understand that agreements and policies must be precisely drafted to avoid the unintended consequences of ambiguity, and take great care to address the needs of each client. Our practice is dedicated to the representation of employers throughout Connecticut and the United States in a wide range of industries, including banking, insurance, advertising, health care, construction, manufacturing, technology, hospitality, financial services and professional services. We also represent municipalities, boards of education, educational institutions, associations and other not-for-profit organizations.

If you have questions about drafting or the reviewing of employment documents, please contact William Ryan at william.ryan@ryan-ryan.net or by telephone at 203-752-9794.

Federal Judge Issues Nationwide Injunction Against Recent Department of Labor Overtime Rule

Federal Judge Issues Nationwide Injunction Against Recent Department of Labor Overtime Rule

A federal district court judge in Texas issued a nationwide injunction blocking the Department of Labor’s recent changes to the Department of Labor’s overtime pay rules. The changes would have doubled the salary level at which hourly workers must be paid extra to be exempt from overtime pay (from $23,660 to $47,476). It was projected that the changes would have required overtime pay for an additional four (4) million additional workers.

The nationwide injunction was issued because the judge determined that the plaintiffs (twenty-one (21) states and more than fifty (50) business groups) stand a significant chance of prevailing in the lawsuit which seeks to overturn the rule and would suffer serious financial harm if the rule was put into effect as scheduled on December 1, 2016. The judge’s decision finds that the Department of Labor and the Obama Administration overstepped their authority by raising the salary cap below which all workers must receive overtime pay from $455 a week to $921 a week.

The judge rejected the argument that the raising of the salary cap simply allows wage rules to keep up “with our modern economy.” The decision noted that the rule effectively eliminated the overtime exception in labor law for “bona fide executive, administrative or professional” employees. As a result, the new rule essentially eliminated the need to examine the duties of employees to determine who fit within the overtime exception, which thwarts the intent of Congress. The judge held as follows: “the Department exceeds its delegated authority and ignores Congress’ intent by raising the minimum salary level such that it supplants the duties test.”

The injunction halts enforcement of the recent overtime rule unless a countermanding order is issued from a federal appeals court. The rule is also subject to reversal by the incoming Trump Administration.

If you have concerns about this or any other labor or employment issue, please contact David Ryan at david.ryan@ryan-ryan.net or by telephone at 860.460.7139 (mobile) or 203.752.9794 (office).

The ADA Interactive Process

 

If an employee has, or is believed to have, an qualifying disability within the meaning of the Americans with Disabilities Act (the “ADA”), the employer should engage in the Interactive Process. The Interactive Process is an informal process in which the employee is able to clarify what type of work-related accommodation s/he needs as a result of such disability. The employer and the employee work together to identify the appropriate, reasonable accommodation that allows the disabled employee to remain working. The employer need not accept any accommodation put forth by the disabled employee, but it also cannot without potential liability reject a reasonable accommodation. Ultimately, the choice between multiple reasonable accommodations belongs to the employer.

The employer may ask the disabled employee relevant questions that will enable it to make an informed decision about the accommodation request (or, if no request but the disability is obvious, to decide whether there is a reasonable accommodation that may exist). It should be noted that the more obvious the disability, the less extensive may be the questions about the disability/needed accommodation. This is because the EEOC will presume that the more obvious a disability, the more obvious are the resultant limitations (and, in turn, the more obvious will be the accommodations necessary to allow the individual to remain in the workplace). In this regard, the EEOC has indicated that requesting documentation for an obvious disability is not reasonable.

The employer is allowed to do the following:

  • Ask the employee what type of reasonable accommodation is needed.
  • Ask about the nature of the disability and the individual’s resultant functional limitations.
  • Ask for a description of the problems posed by the workplace barrier, and the accommodations the employee believes will remove that barrier.
  • Ask for documentation from the appropriate medical practitioner or rehabilitation professional regarding the disabling condition (no more than is necessary to assess the disability, to determine if it is an ADA-qualifying disability and to identify potential accommodations).
  • Ask for additional documentation if the initial documentation provided is insufficient to allow the employer to assess the disability, to determine if it is ADA-qualifying and to identify potential accommodations. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.
  • Ask whether the person would be willing to be seen by a medical practitioner of the employer’s choosing (if the employee does not provide sufficient documentation, despite opportunity, and the medical examination is job-related and consistent with business necessity).

If an employee’s disability or need for reasonable accommodation is not obvious, and s/he refuses to provide the reasonable documentation requested by the employer, then s/he is not entitled to a reasonable accommodation. Importantly, the employer is entitled to request a limited release for the purposes of obtaining documentation or submitting a list of specific questions to the medical practitioner or vocational professional (so long as the information is being sought because it allows the employer to determine whether the asserted disability is an ADA-qualifying disability).

If you have questions about the ADA interactive process, please contact William Ryan at william.ryan@ryan-ryan.net or by telephone at 203-752-9794.

FMLA Combined Leave Rules

Pursuant to the Federal Family Medical Leave Act (FMLA), subject to specific “military caregiver leave” situations, no person is entitled to more than twelve (12) weeks of leave during a twelve (12) month period. This restriction applies even when spouses work for the same employer. In this regard, as a general rule, eligible spouses who work for the same employer are each entitled to up to twelve (12) workweeks of FMLA leave in a twelve (12) month period. Each employee may take FMLA leave, without regard to the amount of leave their spouses have used during that twelve (12) month period, for the following reasons: (a) the care of a spouse or son or daughter with a serious health condition; (b) a serious health condition that makes the employee unable to perform the essential functions of his or her job; and (c) any qualifying reason caused by the employee’s spouse, son, daughter, or parent being a military member on “covered active duty.”

Despite the individualized twelve (12) month FMLA leave period, there are special circumstances that apply when spouses work for the same employer.

First, upon the birth of a baby, an adoption, or foster-care placement, the employees may take a ‘combined’ twelve (12) week leave for the purpose of ‘bonding’ with the child. The employees are entitled to combine their individual leave periods in any combination they choose, so long as the combined leave of both employees does not exceed twelve (12) weeks. The portion of the twelve (12) week period that each parent uses for ‘bonding’ is deducted from the annual twelve (12) week FMLA leave period each employee may use.

Second, the employees may take a ‘combined’ twelve (12) week leave for the purpose of taking care of a parent with a serious health condition. Importantly, the same rule applies to birth-parents and to in-laws. This means that both employees are entitled to take leave in order to take care of any parent that has such status by virtue of birth or marriage. As above, the employees are entitled to combine their individual leave periods in any combination they choose, so long as the combined leave of both employees does not exceed twelve (12) weeks. Also as above, the portion of the twelve (12) week period that each parent uses for taking care of a parent with a serious health condition is deducted from the annual twelve (12) week FMLA leave period each employee may use.

Third, the employees may take a ‘combined’ twenty-six (26) week leave for the purpose of taking care of a covered service member with a serious health condition. This leave, commonly referred to as “military caregiver leave,” can be taken in order to care for a covered service member who is a parent, spouse, son or daughter, or next of kin. Pursuant to the FMLA, an eligible employee may take up to twelve (12) weeks of the twenty-six (26) weeks for individual reasons, and then use the balance for “military caregiver leave” to care for a covered service member. If an employee uses less than twelve (12) weeks for individual reasons, the balance of the twenty-six (26) weeks may be used for “military caregiver leave.” Importantly, as to spouses who work for the same employer, they may combine this twenty-six (26) weeks in any combination they choose in the same manner as with leave to bond with a child.

Another important consideration is that the rules as to combined FMLA leave do not apply to employees who are not eligible for FMLA leave. Therefore, as to spouses who work for the same employer, where one spouse is eligible for FMLA leave and one spouse is ineligible for FMLA leave, only the spouse that is eligible for FMLA leave may take the full amount of leave.

If you have questions about FMLA leave, please contact David Ryan at david.ryan@ryan-ryan.net or by telephone at 203-752-9794.

Free Speech in the Workplace

Earlier this week, the Connecticut Supreme Court heard argument regarding the extent of free speech protections in the Connecticut workplace. Specifically, the Connecticut Supreme Court will determine whether an employee’s speech occurring during, or arising from, the course of that employee’s job-related duties is protected by the Connecticut Constitution. The United States Supreme Court has held that an employee’s speech occurring during, or arising from, the course of that employee’s job-related duties is not protected by the First Amendment to the United States Constitution. If the Connecticut Supreme Court answers in the affirmative, then it will have determined that the free speech protections in the Connecticut Constitution – at least as to an employee’s speech in the course of that employee’s job-related duties – are broader than the free speech protections in the First Amendment.

The Plaintiff sued his former employer alleging that it retaliated against him, in violation of CGS § 31-51q, by terminating his employment because he expressed his opposition to that employer’s alleged practice of overvaluing its clients’  real estate investments. The Plaintiff alleged that the Defendant’s practice was a matter of public concern, and therefore that his disclosure of that practice constituted speech on a matter of public concern that should be protected by the Connecticut Constitution and CGS § 31-51q, a whistleblower statute.

The Plaintiff’s position asks the Connecticut Supreme Court to find that the United States Supreme Court reasoning in Garcetti v. Ceballos is inapplicable to the Connecticut Constitution. In Garcetti, the United States Supreme Court held that the First Amendment to the United States Constitution does not protect a governmental employee’s speech on matters occurring during, or arising from, the discharge of that employee’s job-related duties. In other words, the United States Supreme Court held that in such a situation a governmental employee is not speaking as a citizen, to whom the First Amendment would presumptively apply, but as an employee, to whom the First Amendment would not apply. The Garcetti decision does not expressly apply to the Connecticut Constitution.

The Plaintiff’s position, therefore, also asks the Connecticut Supreme Court to decide that Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012) does not apply to the Connecticut Constitution. It was in Schumann that the Connecticut Supreme Court held that Garcetti applies to a § 31-51q claim brought against a private employer by an employee who speaks on a matter occurring during, or arising from, the discharge of that employee’s job-related duties. Notably, however, Schumann did not address whether Garcetti should be extended to § 31-51q claims based on the free speech provisions of the Connecticut constitution. The instant case, therefore, seeks to have the Court differentiate between the protections afforded by the First Amendment to the United States Constitution and the protections afforded by the Connecticut Constitution, and to have the Court find that the free speech protections under the Connecticut Constitution are broader.

Please contact William Ryan for more information, or to see how we can help you.

Perceived Disability Claims in Connecticut

Until December 2014, the State of Connecticut allowed disability discrimination claims only when the discriminatory conduct was allegedly perpetrated in response to an actual disability. On December 16, 2014, the Connecticut Supreme Court issued its opinion in Desrosiers v. Diageo North America, Inc., 314 Conn. 773 (Conn. 2014), broadening the disability discrimination claims that may be brought to include claims premised upon whether the employer perceived the employee to have a disability (without regard to whether the employee had an actual disability). The Court reasoned that “the legislature’s overarching intent to ‘stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability, and mental retardation)’; Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 412; coupled with its efforts to be as inclusive as possible in defining the term physical disability, is consistent with interpreting § 46a-60(a)(1) to protect individuals who are perceived to be physically disabled.”

In Desrosiers, the Plaintiff alleged discrimination on the basis of race, color, age, physical disability and perceived physical disability. Ms. Desrosiers’ perceived disability claim asserted that the employer believed that she suffered from a disability after she informed it of her need to undergo a tumor removal surgery, and that it then discriminated against her based upon this belief because it subsequently (and quickly) terminated her employment. The perceived disability claim was dismissed by the trial court because prior precedent required the employee to have an actual disability. In other words, prior precedent confirmed the position that Connecticut did not recognize claims of discrimination premised upon a perceived disability. Notably, all other claims were tried to a jury, which decided in favor of the employer. The Plaintiff appealed only the dismissal of the perceived disability claim to the Court of Appeals, which affirmed the trial court’s dismissal of the claim. However, those decisions were reversed by the Connecticut Supreme Court, which held that perceived disability claims were within the public policy expressed by the Connecticut Fair Employment Practices Act. Consequently, perceived disability claims are now permitted in Connecticut.

Please contact William Ryan for more information, or to see how we can help you.

The United States Department of Labor Expands the Definition of ‘Spouses’ in the Family Medical Leave Act

The Department of Labor published its Final Rule defining ‘spouse’ in the Federal Register. The Final Rule expands the definition of ‘spouse’ by focusing on whether individuals are ‘spouses’ based upon the occurrence of a marriage rather than the location of residence, which may not recognize that marriage. As explained in the Federal Register, “[t]he Department is moving from a state of residence rule to a rule based on the jurisdiction where the marriage was entered into (place of celebration) to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live. 79 FR 36448.” The term ‘jurisdiction’ includes the several States as well as other countries so long as the marriage could have been entered into in at least one of the several States. The change was made by the Department “in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.” The Final Rule takes effect on March 27, 2015.

It should be noted that the rule as to ‘common law’ marriages did not change, and that FMLA rights are extended to an employee married by ‘common law’ even though not recognized in the State in which the employee is employed. Thus, while Connecticut does not recognize ‘common law’ marriage arising in Connecticut, it should generally be considered to exist when the ‘common law’ marriage arises lawfully pursuant to the law of one of the several States or an international jurisdiction (so long as the marriage could have been entered into in at least one of the several States).

The general eligibility criteria of FMLA still apply. As before, FMLA generally covers employers with 50 or more employees. In order for an employee to be eligible to take a leave of absence pursuant to FMLA, an employee must have: (1) been employed by a covered employer for at least twelve (12) months; (2) worked the requisite number of hours during that twelve (12) month period prior to the start of the leave of absence; and (3) worked at a location where the employer, within a seventy-five (75) mile radius, employed at least 50 employees.

Please contact David Ryan for more information, or to see how we can help you.