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.

Connecticut Supreme Court Clarifies Test Used to Evaluate Independent Contractor Status

In Southwest Appraisal Group v. Administrator, Unemployment Compensation Act, the Connecticut Supreme Court resolved an important question bearing on the so-called ABC test, which is used to evaluate whether an individual is an independent contractor or an employee.

Specifically, the Court held that an individual who works in connection with only one company can still be considered an independent contractor. However, the Court noted that it will continue to use the ABC test in assessing the putative employer-employee relationship.

As noted by the Court, the ABC factors include: (1) the existence of state licensure or specialized skills; (2) whether the putative employee holds himself or herself out as an independent business through the existence of business cards, printed invoices, or advertising; (3) the existence of a place of business separate from that of the putative employer; (4) the putative employee’s capital investment in the independent business, such as vehicles and equipment; (5) whether the putative employee manages risk by handling his or her own liability insurance; (6) whether services are performed under the individual’s own name as opposed to the putative employer; (7) whether the putative employee employs or subcontracts others; (8) whether the putative employee has a saleable business or going concern with the existence of an established clientele; (9) whether the individual performs services for more than one entity; and (10) whether the performance of services affects the goodwill of the putative employee rather than the employer.

Federal Court Rules That Title VII Protections Apply to Sexual Orientation

In Boutillier v. Hartford Public Schools, No. 3:13-CV-01303-WWE (November 17, 2016), a Connecticut district court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. This decision is at odds with Second Circuit Court of Appeals precedent in Simonton v. Runyon, where the Court held that “Title VII does not proscribe discrimination because of sexual orientation.”

As Judge Eginton explained in Boutillier, “straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex; the two are necessarily intertwined.The court further reasoned that “[p]resuming that an employer has discriminated against an individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s sexual orientation, that employer has necessarily considered both the sex of the partner and the sex of the individual.”

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.

White House Urges Prohibition on Non-Compete Agreements

Laws governing non-compete agreements vary from state to state. Certain states, such as California, North Dakota and Oklahoma, ban non-compete agreements entirely.

The White House is pressuring states to follow suit, and to ban non-compete agreements for certain employees and in certain industries, stating that that non-compete agreements unfairly limit the ability of workers to jump from one company to another. Specifically, the White House is advocating for the ban of non-compete agreements as to low-wage employees who are unlikely to know trade secrets, health and safety employees, and employees laid off through no fault of their own.

This announcement comes on the heels of last week’s announcement by the Department of Justice and the Federal Trade Commission that they would launch criminal investigations into companies caught colluding on salaries or agreeing not to hire each other’s employees.

Connecticut Supreme Court Reinstates Employee Fired for Smoking Marijuana on the Job

In State of Connecticut v. Connecticut Employees Union Independent, the Supreme Court of Connecticut upheld an arbitrator’s determination that termination was too harsh a punishment and was not mandated by the employer’s drug-free workplace policy.

The case involved a UConn Health Center employee who was discovered by a Health Center police officer smoking marijuana in a state-owned van during his shift. The employee was in possession of two bags of marijuana and marijuana paraphernalia. The employee was arrested and the Health Center terminated his employment. The Health Center asserted that the employee had violated numerous workplace policies, including the Health Center’s drug-free workplace policy, and had demonstrated that he was untrustworthy to perform his duties.

The employee’s termination was arbitrated, and the arbitrator determined that that termination was too harsh a punishment and was not required by the Health Center’s drug-free workplace policy. The arbitrator also noted mitigating factors including the employee’s claim that he had been using marijuana to treat his anxiety and depression. The arbitrator determined that a six (6) month unpaid suspension and random drug testing upon his return to work was appropriate discipline. The Health Center sought to vacate the arbitrator’s decision, stating that it violated a defined public policy against drug use in the workplace. The trial court found for the Health Center.

The case eventually made it to the Connecticut Supreme Court, where it was reversed. Specifically, the Connecticut Supreme Court found that Connecticut has a strong public policy against recreational marijuana use in the workplace, but that the arbitrator’s decision did not violate the public policy.

DOL Increases Penalties For Wilful Overtime and Minimum Wage Violations

In conjunction with its recent changes to overtime rules, the United States Department of Labor has also announced that penalties for wilful violations of the minimum wage and overtime provisions of the Fair Labor Standards Act will increase from $1,100 to $1,894 for each violation, to be assessed in addition to back wages and liquidated damages.

Note that a “wilful” violation may be found where an employer intentionally committed prohibited conduct or showed a “reckless disregard” for the law.