Employment Law

Hillel Goldman

Government Posting Requirements

SubjectStatute/RegulationPoster RequiredReference
SafetyOccupational Safety and Health Act; Connecticut Occupational Safety and Health Act of 1973Job Safety & Health Protection-OSHA 2203; Connecticut OSH Division Poster29C.F.R. § 1903.2
Conn. Gen. Stat. § 31-374(c)(1); Regulations of Conn. State Agencies, § 31-371-2.
Annual Summary of Job Inquiries (Post by February 1 of each year)29 C.F.R. § 1904.5.
Minimum Wage Overtime Equal Pay Child LaborFair Labor Standards Act of 1938Notice to Employees: Federal Minimum Wage-Wage/Hour Publication 108829C.F.R. § 516.4.
Equal Employment Opportunity (Title VII, Age Discrimination, Disability

Discrimination, Equal Pay, Non-discrimination by Federal Contractors, Veterans’ Rights)

Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Americans with Disabilities Act, Equal Pay Act, Executive Order 11246, Rehabilitation Act of 1973, Vietnam Era Veterans’ Readjustment Assistance ActConsolidated EEO Poster29 C.F.R. § 850.10.
42 U.S.C. § 2000e-10(a).
Exec. Order 11246, 30 Fed. Reg. 12,319 and Exec. Order 1 137532, Fed. Reg. 14,303.
41 C.F.R. § 60-741.4(d).
Public ContractsWalsh-Healey ActNotice of Employees Working on Government Contracts41 C.F.R.. § 50-201.1(g).
Polygraph TestingEmployee Polygraph Protection ActNotice: Employee Polygraph Protection Act29 U.S.C. § 2001.
Family and Medical LeaveFamily and Medical Leave Act of 1993Your Rights Under the Family and Medical Leave Act of 1993-WH Publication 142029 C.F.R. pt. 825.300.
State Wages and Hour IssuesConnecticut General Statutes, Chapters 557 and 558State of Connecticut: Labor Department Division of Regulation of WagesConn. Gen. Stat. § 31-66.
State Fair Employment PracticesConnecticut Fair Employment Practices ActDiscrimination Is IllegalConn. Gen. Stat. §§ 46a-54(13), (15).
Sexual HarassmentConnecticut Fair Employment Practices ActSexual Harassment Is IllegalConn. Gen. Stat. § 46a-54(15); Regulations of Conn. State Agencies, §§46a-54-201 to 46a-54-204.
Workers’ CompensationConnecticut Workers’ Compensation ActState of Connecticut: Notice to Employees-WC 8171bConn. Gen. Stat. § 31-279.
Unemployment CompensationConnecticut Unemployment Compensation ActNotice of Registration-Form UC-8Regulations of Conn. State Agencies, § 31-222-10.

Inappropriate Employer Inquiries
Employers must avoid inquiries – whether on an employment application, in an interview, or otherwise – which may constitute evidence of illegal discrimination or which are prohibited by law. Some topics which may lead to problems include:

  • age / date of birth / date of graduation;
  •  eye / hair color;
  •  sex;
  •  height / weights (unless job-related);
  •  citizenship (except may ask for proof that applicant can legally work in US);
  •  ethnicity / national origin;
  •  physical capabilities (unless job-related);
  •  physical disability / illness / psychiatric hospitalization;
  •  medications;
  •  past treatment for drug addiction / alcoholism;
  •  sexual preference;
  •  maiden name;
  •  marital status;
  •  spouse’s name / spouse’s occupation;
  •  widowed / divorced / separated;
  •  dependents;
  •  pregnancy / plans to have children / urogenital health;
  •  age of children / child care arrangements;
  •  religion (unless job-related);
  •  availability for work (i.e. on Saturdays, Sundays, holidays);
  •  economic status / bankruptcy;
  •  union membership;
  •  membership in clubs / organizations;
  •  candidate for public office;
  •  military experience / type of discharge;
  •  smoking;
  •  education / previous experience (unless you can justify the necessity of requiring a certain level of education or amount of experience when asking these questions);
  •  arrests / convictions (unless job-related).


Family and Medical Leave

Connecticut Family & Medical Leave Act
Employers with 75 or more employees
Unpaid leaves of absences for up to 16 weeks in any two-year period.
a) Service for at least 12 months of service with employer or
b) Worked 1,000 or more hours in the one-year period prior to the 1st day of the leave

Federal Family & Medical Leave Act 
Employers with 50 or more employees
Eligible employees are entitled to take up to 12 weeks leave in any
12-month period.

Basic Elements of an Employee Handbook
There are a variety of policies which can and should be included in an employee handbook. Examples of these policies are as follows:

1. Introduction and Contract Disclaimer
a. Welcome the employee to the company
b. Tell about the Company (its products, customers, etc.)
c. Mission Statement, vision, core values
d. Establish the at-will nature of the employment relationship
e. Establish the employer’s right to change policy at any time without notice
2. Equal Employment Opportunity Statement
3. Wage and Salary Policies
a. Categories of Employees (exempt, part-time, etc.)
b. Salary Review/Raises
c. Overtime
d. Shift Premiums
e. Payroll Deductions/Automatic Deposit of Paychecks
f. Payday
g. Time Records
h. Pay Advances
i. Break/Meal Periods
4. Employee Benefits and Services
a. Medical, Dental, Life, Short-Term Disability, Long-Term Disability, Retiree Insurance, Insurance plans
b. Workers’ Compensation
c. Flexible Benefit Plans
d. 40IK plans
e. Vacation time
f. Holidays
g. Sick Leave
h. Personal Time
i. Leaves of Absence
i.    Family and Medical Leave
ii.    Military
iii.    Jury Duty
iv.    Bereavement
v.    Personal
j. Employee Counseling Programs
k. Educational Programs
l. Employee Assistance Programs (EAP)
m. Employee Incentive Awards and Plans
n. Employee Referral Bonuses
5. Employee Development
a. Personnel Records
b. Job Descriptions/Duties
c. Performance Evaluations
d. Job Posting
e. Employee Communications/Bulletin Boards
f. Suggestions/Complaints
g. Promotion/Transfer/Demotion
h. Changes in Personal Data
6. Facilities
a. Cafeteria or lunch area
b. Parking
c. Employee Lounge
d. Lockers
7. Employee Safety and Health
a. Emergency Instructions/Closings
b. Safety Procedures
c. Alcohol
d. Drug-Free Workplace
e. Smoking Policy
8. Standards of Conduct
a. Attendance and Punctuality
b. Reporting Absences (Planned and Unanticipated)
c. Rules of Conduct/Disciplinary Procedures
d. Workplace/Sexual Harassment & Discrimination Policy
e. No Fraternization Policy
f. Solicitation and Distribution/Union Activities
g. Confidentiality of Company Business
h. Business Accountability/Whistleblower
i. Ethics/Conflicts of Interest
j. Dress Code
k. Telephone Use/Cell Phones
l. Return/Use of Company Property
m. Electronics Communications/Monitoring/Privacy
n. Inclement Weather
o. Employment of Relatives/Nepotism
p. Moonlighting/Other jobs
q. Workplace Violence
9. Termination
a. Resignation Procedures
b. Exit Interviews
c. COBRA
d. References

Employee Handbook Issues
I)    HIPAA Policy:
Employee handbooks should include a policy that requires employees to provide the employer with a HIPAA – complaint authorization so that an employer can obtain the needed protected health information from the employee’s health-care providers where necessary.

1) Family & Medical Leave Act leaves; or
2) Reasonable accommodation requests.

II)    E-mail Use and Privacy Policy:
Reason: An employee’s invasion of privacy claim cannot succeed unless the Court finds that the employee has a reasonable expectation of privacy in the e-mails that are sent or received.

Policy should at a minimum do the following:
1) Alert employees that the e-mail system is the property of the employer;
2) Advise employees that they should not expect that e-mail is confidential or private;
3) Advise employees that communications sent, received or stored on the system are subject to monitoring, access or disclosure by the employer without any prior notice to the employees;
4) Advise employees that the e-mail system “backs up” e-mails so that even “deleted” e-mails may be retrieved and accessed;
5) Advise employees that monitoring will be restricted to business and security reasons;
6) Address issues acceptable vs. non-acceptable use of the e-mail system, including such issues as whether personal use of the system is permitted, rules regarding charitable or political solicitation, bans on chain mail and bans on gambling, obscene or harassing e-mails;
7) Advise employees that use of the e-mail system that does not conform to company rules will subject the employee to disciplinary action, up to and including termination;
8) Should prohibit employees from getting into each other’s e-mails;
9) Should prohibit employees from subscribing to information without employer permission;
10) Should prohibit employees from violating copyrights or issuing defamatory statements;
11) Employers should issue passwords to employees and prohibit them from sharing those passwords, while maintaining the employer’s right to know all passwords and access an employee’s e-mail at any time; and
12) Should provide for complete, periodic deletions of messages and other information to avoid an overwhelming and exhaustive search if litigation occurs.

The increased use of e-mail and the Internet in the workplace raises a number of concerns:
a) Confidentiality;
b) Harassment;
c) Copyright concerns;
d) Risk of criminal transactions;
e) Litigation and discovery of e-mail.

III)     Nondisclosure/Confidentiality Policy:
1) Many companies require executives to execute confidentiality agreements to
protect the company’s:
a. “Trade Secrets” Customer lists; and
b. Other Confidential information such as employee handbooks, future plans, pricing and terms and conditions of services to customers, marketing plans and financial documents. But they fail to reinforce these confidentiality protections in their employee handbooks and, even when they do, the handbook policies are often inconsistent with the confidentiality agreements.

2) Employers should have both individual confidentiality agreements and employee handbook provisions addressing confidentiality and nondisclosure in case the employee handbook provision is held to be unenforceable against the employee due to the contract disclaimer language that should be included in every employee handbook.

3) The nondisclosure and confidentiality policy:
a) Should list the items that the employer considers to be confidential and clearly state that the list is not all-inclusive;
b) Should require that employees maintain confidential information in the strictest confidence and not share it with other people without written employer consent;
c) Should prohibit employees from discussing proprietary information in any public place where such discussion could be overheard; and
d) Should require employees to return all confidential information to the employers on termination.

IV)     Cell Phone Use Policy:
1) Cell phone use shall be for business purposes by employees who need to drive in their jobs.
2) Policy should take into account state laws that place restrictions on cell phone use when driving.

V)     Employee Reference Policy:
Often the basis for defamation and retaliation claims against former employers for releasing potentially damaging information.

1)    Policy should designate who responds to reference requests and prohibit other employees from doing so.
2)    Policy should limit the information that will be released to job title and terms of employment unless the former employee has signed his or her consent to the release of any additional information.

Three Reasons For Confidentiality Agreements
1. The agreement explicitly puts the employee on notice that the company believes that its business information is important and confidential.
2. It provides contractual protections against unauthorized disclosure. These protections may not otherwise exist in the law.
3. If a company does not provide a confidentiality agreement to its employees, its confidential information may not be given any protection by a court.

In order for an employer to establish that its documents are protected as a trade secret, the information claimed to be a trade secret must:
1. Derive independent economic value, actual or potential;
2. From not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
3. Be the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Restrictive Covenants

Courts Must:
1. Identify the interest that the covenant is designed to protect;
2. Decide whether those interests are legitimate; and then
3. Ascertain whether the employee is in a position to threaten or impair those interests “by use of weapons” that the employer has placed in his hands.
4. The covenant cannot be so restrictive that it interferes with the public’s interest in maintaining a free economy.
5. The court must conclude that the covenant prevents only extraordinary competition, and under those circumstances, it will be enforced.

Defenses to Covenants Not to Compete
1. Unenforceable due to absence of threat to customer relationships;

2. The restrictions in the agreement are unreasonable;
a) The length of time the restriction is to be in effect;
b) The geographical area covered by the restriction;
c) The degree of protection afforded to the interest of the party in whose favor the covenant is made;
d) The restrictions imposed on the employee’s ability to pursue his occupation; and
e) The potential for undue interference with the interests of the public.

3. Contract Defenses
a) Misrepresentation;
b) No consideration;
c) Waiver and estoppel.

4. California and Massachusetts

Nonsolicitation Agreements Two Weapons Employers Can Furnish that Create Unfair Advantages for Employees
1. The opportunity for the employee to forge his own relationships with customers;
2. The opportunity to acquire the employer’s confidential business.