Category Archives: Uncategorized

Connecticut Supreme Court Holds That Volunteers Are Not “Employees”

The Connecticut Supreme Court, in Commission on Human Rights and Opportunities v. Echo Hose Ambulance et al., ruled that unpaid volunteers are not “employees” for the purposes of the Connecticut Fair Employment Practices Act, which contains Connecticut’s workplace anti-discrimination laws.

Specifically, the Connecticut Supreme Court decided that a volunteer must satisfy the ‘‘remuneration test’’ used to resolve similar federal causes of action, as opposed to Connecticut’s common-law ‘‘right to control’’ test. The remuneration test is comprised of a two-step inquiry. As a threshold matter, the volunteer first demonstrate remuneration. Remuneration may consist of either direct compensation, such as a salary or wages, or indirect benefits that are not merely incidental to the activity performed. The second step involves analyzing the putative employment relationship under the common-law agency test.

Upholding the Appellate Court’s ruling, the Connecticut Supreme Court held that the Plaintiff was not an “employee” under the Connecticut Fair Employment Practices Act, because she failed to meet the remuneration prong of the remuneration test.



Employer’s Arbitration Agreement Deemed Unlawful

In Lewis v. Epic Systems Corporation, No. 15-2997 (May 26, 2016), the Court of Appeals for the Seventh Circuit ruled that an employer-imposed agreement that required that employees bring any wage-and-hour claims against the employer only through individual arbitration, and prohibited collective arbitration or collective action in any other forum, violated the National Labor Relations Act (NLRA), and was unenforceable under the Federal Arbitration Act (FAA).

An employee sued Epic Systems in federal court, contending that it had violated the Fair Labor Standards Act (FLSA) and state law by misclassifying him and fellow employees, and thereby unlawfully deprived them of overtime pay. Epic Systems moved to dismiss the claim and compel individual arbitration pursuant to the agreement. The Plaintiff responded that the arbitration clause violated the NLRA because it interfered with employees’ right to engage in concerted activities for mutual aid and protection and was therefore unenforceable. The district court agreed and denied Epic Systems’ motion.

The Seventh Circuit Court of Appeals upheld the district court’s determination, stating that the agreement ran straight “into the teeth” of  the employees’ Section 7 right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and that contracts that stipulate away employees’ Section 7 rights or otherwise require actions unlawful under the NLRA are unenforceable. 

Department of Labor Releases New Overtime Rules

In May, the United States Department of Labor  issued its final rule updating the regulations governing the exemption of employees from the minimum wage and overtime pay protections of the Fair Labor Standards Act. Significant components of the final rule are as follows:

1. Sets the standard salary level at $913 per week or $47,476 annually for a full-year worker;

2. Sets the total annual compensation requirement for highly compensated employees subject to the duties test to $134,004.

3. Allows employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level, so long as they are provided on a quarterly or more frequent basis; and

4. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Notably, the final rule makes no changes to the duties test. Employers have until December 1, 2016 to comply with the new rule.

Second Circuit Rules That HR Director May Be Held Personally Liable Under the FMLA

In March, the Second Circuit issued a significant decision in ruling that a human resources director can be held personally liable under the FMLA.

 In Graziadio v. Culinary Institute of America, the Plaintiff sued her former employer, alleging that she was terminated in violation of the FMLA and the ADA after taking leave to care for her son’s medical issues. Specifically, the Plaintiff requested and was granted FMLA leave to care for her son’s diabetes. On the date of her return to work, her other son broke his leg. As a result, the Plaintiff requested additional leave, including intermittent leave. The Culinary Institute of America (“CIA”) countered that, despite several requests, the Plaintiff failed to provide medical information certifying the need for intermittent leave. When the Plaintiff asked for what specific information was needed, CIA’s Director of Human Resources allegedly refused to provide details and informed the employee that it was her responsibility to provide complete medical information without any guidance from CIA. Eventually, the Plaintiff was terminated for job abandonment.

 The Plaintiff filed suit, claiming retaliation and interference in violation of the FMLA, and discrimination on the basis of her association with her son in violation of the ADA. In addition to naming the CIA as a defendant, she also personally named its Director of Human Resources.

 The District Court granted summary judgment in favor of CIA and the Human Resources Director, which included a finding that the Human Resources Director was not an “employer” under the FMLA. The Second Circuit reversed, finding that the Human Resources Director could be considered an “employer,” and remanded the case for a jury trial.

 In support of its finding, the Second Circuit relied on the “economic realities” test utilized in Fair Labor Standards Act cases. Pursuant to this test, a manager may be considered an employer if they have the power to control the employee. In making this determination, courts consider the totality of the circumstances based on a set of nonexclusive and overlapping factors including whether the employer: (1) has the power to hire and fire the employees; (2) supervises and controls employee work schedules or conditions of employment; (3) determines the rate and method of payment, and (4) maintains employment records.

 Under this test, the Circuit Court found that there was adequate evidence to indicate that the Human Resources Director sufficiently controlled the Plaintiff’s employment to be subject to liability under the FMLA.

 The application of the “economic realities” test in the FMLA context is groundbreaking, and means an increased risk of individual liability for human resource professionals, managers, and supervisory personnel.

Court Grants Summary Judgment In Favor Of Ryan & Ryan, LLC Client In Federal Discrimination Case

The United States District Court for the District of Connecticut recently granted the summary judgment motion that Ryan & Ryan, LLC filed on behalf of its client, a machine and metal component company in Milford, Connecticut.

In the lawsuit, the Plaintiff alleged that she was subject to discrimination based on her disability, that her employer refused to provide a reasonable accommodation for her disability (wrist and knee injuries), and that she was retaliated against on account of her filing a worker’s compensation claim.

Ryan & Ryan, LLC conducted fact discovery and marshaled support for the defense theories that (a) the Plaintiff failed to demonstrate a prima facie case; (b) there were legitimate non-discriminatory business reasons for altering the plaintiff’s job duties; (c) the employer reasonably accommodated any alleged disability; and (d) the plaintiff failed to establish conduct sufficient to support a claim for intentional infliction of emotional distress.

Thereafter, Ryan & Ryan, LLC submitted a written motion for summary judgment. Judge Victor Bolden granted summary judgment in favor of Ryan & Ryan, LLC’s client as to all of the Plaintiff’s claims.

Second Circuit Upholds NLRB Ruling Against Employer

In Sprain Brook Manor Nursing Home, Ltd., Board Case No. 02-CA-040231 (reported at 361 NLRB No. 54) (2d Cir. decided, November 18, 2015), the Second Circuit Court of Appeals found that substantial evidence supported the Board’s findings and enforced the Board’s order in full.

Specifically, the  Board concluded that Sprain Brook Manor told a Union member that she would have “trouble” if she left the room during her discharge meeting to find a Union representative, finding it “objectively reasonable for [the Union member] to have believed that the threatened consequences were serious and negative and thus sufficiently coercive to violate Section 8(a)(1).”

Next, the Second Circuit upheld the Board’s finding that the Union member’s discharge was retaliatory and motivated by Union hostility in violation of Sections 8(a)(3) and 8(a)(1). In this regard, the  Board found that Sprain Brook Manor terminated the Union member on account of her prior participation in highly visible union activities such as picketing and collective bargaining negotiations.

Finally, the Second Circuit upheld the Board’s determination that Sprain Brook Manor committed four violations of Section 8(a)(5) of the Act by unilaterally rescinding or altering employee benefits. Specifically, it found that Sprain Brook Manor eliminated free lunches, on-site check cashing, free physical examinations and tuberculosis tests required for continued employment, and a monthly payment to employees who declined health insurance, without first bargaining with the Union.