Employees Are Entitled to Mandatory Paid Leave During Coronavirus Outbreak. In our continuing effort to bring you immediate and pertinent employment related information during the Coronavirus outbreak, I have the following answer to your question whether you will be paid for sick leave by your employer if you contract the Coronavirus and are ordered to self-quarantine at home.
I have researched for you all the states that provide for Mandatory Paid Sick Leave for employees who contract the Coronavirus. There are different requirements in each state and I have attempted to summarize them below. I have also included a link to each state statute for your further reading.
Please note, these benefits are in addition to Family Medical Leave Act benefits under state and federal law. Generally, employees are entitled to 12 weeks of paid/unpaid time off due to a serious medical condition under federal FMLA; some states like Connecticut provide for 16 weeks of FMLA leave. Employers often coordinate such a leave with Short Term Disability Benefits at a 100% of base salary.
The following states now provide paid sick leave to employees.
Employees are immediately entitled to paid sick leave upon hire. Employees accrue one (1) hour of earned sick leave time for every thirty (30) hours worked, but employees can only accrue 40 hours of earned paid sick leave per year. The statute applies to employers with 15 or more employees; employers may elect a higher annual amount if they choose.
Employees who work for employers with 50 or more employees are entitled to 40 hours of paid sick leave per year. Employees accrue one hour of sick leave for every 40 hours worked. Employees can carry over unused sick leave from year to year, but are limited to 40 hours each year.
Employees are entitled to 40 hours of paid sick leave each year or every consecutive 12 months. Law prohibits use it or lose it benefits, and must pay the balance of unused benefit; the paid sick leave can accrue year over year. The law prohibits a use it or lose it policy and the employer must compensate for unused paid sick leave.
This article is meant to inform and offer guidance for either an employer or an employee who wishes to have a better grasp on the complex matter of employee exemptions. At the start of employment it is crucial for both parties to understand and be on the same page about the incoming employee’s exemption status so that he or she may be properly compensated and to hopefully avoid any legal disputes that may arise. If this is not clear from the start, an employee who believes he or she might be nonexempt will expect to receive overtime pay in addition to regular pay and a legal battle could ensue where the employer may not only be liable for back pay for the overtime hours, but if if can be shown that the failure to pay the overtime was knowing or intentional, the employer could be subject to double damages (overtime back pay times 2).
The Fair Labor Standards Act (FLSA) Regulations (promulgated by the U.S. Department of Labor established after passage of the FLSA. The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. The FLSA provides that covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek (any fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods) at a rate not less than one and one-half times the regular rate of pay. There is no limit on the number of hours employees 16 years or older may work in any workweek. The FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days. While the FLSA sets forth guidelines related to overtime pay for covered employees (nonexempt employees), it also exempts certain types of employees from its overtime pay requirements.
EXEMPT EMPLOYEE HAVE NO RIGHTS
An exempt employee has virtually “no rights at all” under the FLSA overtime rules. In fact, all an exempt employee is entitled to under the FLSA is to receive the full amount of the base salary in any work period during which s/he performs any work (less any permissible deductions). Nothing in the FLSA prohibits an employer from requiring exempt employees to “punch a clock,” or work a particular schedule, or “make up” time lost due to absences. Nor does the FLSA limit the amount of work time an employer may require or expect from any employee, on any schedule.
Under the FLSA, some jobs are classified as exempt by definition. For example, “outside sales” employees are exempt (“inside sales” employees are nonexempt). For most employees, however, whether they are exempt or nonexempt depends on (a) how much they are paid, (b) how they are paid, and (c) what kind of work they do.
THE SALARY BASIS TEST
To be exempt, an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in the FLSA Regulations. Most employees must meet all three “tests” to be considered exempt. Employees who are paid less than $23,600 per year ($455 per week) are, for the most part, automatically nonexempt.
EXAMPLES OF EXEMPT EMPLOYEES
The following are examples of employees who are explicitly exempt from the overtime pay requirements:
Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor’s regulations);
Employees of certain seasonal amusement or recreational establishments;
Employees of certain small newspapers and switchboard operators of small telephone companies;
Seamen employed on foreign vessels;
Employees engaged in fishing operations;
Employees engaged in newspaper delivery;
Farm workers employed on small farms (i.e., those that used less than 500 “man days” of farm labor in any calendar quarter of the preceding calendar year);
Persons employed solely by the individual receiving services (not an agency, non-profit, or other third-party employer) primarily providing fellowship and protection (companionship services) to seniors and/or individuals with injuries, illnesses, or disabilities;
Certain commissioned employees of retail or service establishments;
Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non manufacturing establishments primarily engaged in selling these items to ultimate purchasers;
Auto, truck, or farm implement parts clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers;
Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans;
Announcers, news editors, and chief engineers of certain non metropolitan broadcasting stations;
Domestic service employees solely employed by the individual, family, or household receiving services (not an agency or other third-party employer) who reside in the private home where they provide services;
Employees of motion picture theaters;
In sum, where an employee meets or exceeds the minimum weekly pay of $455/week and is paid on a “salary basis”, the analysis of whether they are exempt will come down to what type of work they do and whether that type of work explicitly or otherwise somehow places them into one of the above exempt job title categories.
In many cases, the determination of whether an employee is exempt comes down to whether the employee falls under the first bullet point above (executive, administrative or professional), as the other bullet points for exemption are straight forward. However, whether an employee is considered an executive, administrative or professional employee is not always clear, and in particular, whether an employee is considered a “professional” is the least clear of the three job designations.
PROFESSIONAL EMPLOYEE DEFINED
Under C.F.R. Section 541.301, an employee may be considered a “professional” for purposes of exempt status if he is determined to be a “learned professional”. Section 541.301 provides, in pertinent part, the following:
(a) To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This primary duty test includes three elements:
(1) The employee must perform work requiring advanced knowledge;
(2) The advanced knowledge must be in a field of science or learning; and
(3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
PERFORM WORK REQUIRING ADVANCED KNOWLEDGE
(b) The phrase “work requiring advanced knowledge” means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.
IN A FIELD OF SCIENCE OR LEARNING
(c) The phrase “field of science or learning” includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.
CUSTOMARILY ACQUIRED BY A PROLONGED COURSE OF SPECIALIZED INTELLECTUAL INSTRUCTION
(d) The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is also available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. Thus, for example, the learned professional exemption is available to the occasional lawyer who has not gone to law school, or the occasional chemist who is not the possessor of a degree in chemistry. However, the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.
In order to determine if an employee qualifies as a learned professional, pursuant to 29 C.F.R 541.301 (a) the DOL and courts will look to such factors as whether the work performed includes the consistent exercise of discretion and judgement as distinguished from performing routine mental, manual, mechanical or physical work. The test also includes whether the advanced knowledge required by the job is in a field of science. For example, there is no dispute that engineering is one such field and so often times an employee having an engineering academic background will be an exempt employee, even if the majority of their work duties involves manual labor. Lastly, the test includes whether the employee has a degree which requires a prolonged course of specialized intellectual instruction and that the employee’s job duties could not be performed without this specific engineering training. Moreover, the job duties contemplated must be the employee’s “primary duties. Factors that the DOL and courts take into account in determining whether the “primary duty” requirement is met are:
DEFINING PRIMARY DUTIES TO DETERMINE EXEMPTION
the relative importance of the exempt duties as compared with other
types of duties;
the amount of time spent performing exempt work;
the employee’s relative freedom from direct supervision; and
the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee
In the case of Cooke v. Gen. Dynamics Corp., 993 F. Supp. 56 (D. Conn. 1997), the court stated that employee’s “primary duty” will usually be what he or she does that is of principal value to employer, not collateral tasks that he or she may also perform, even if they consume more than 50% of his or her time, for purposes of determining whether employee is administrative employee exempt from overtime pay requirements of Fair Labor Standards Act (FLSA). The court also held that whether an employee is exempt from overtime pay requirements of Fair Labor Standards Act (FLSA) is determined by employee’s actual work activities, not by the employer’s characterization of those activities through job title or job description.
By further example, the court in Aneja v. Triborough Bridge & Tunnel Auth., 35 F. App’x 19 (2d Cir. 2002) found that a worker who was employed by the Bridge and Tunnel Authority, who earned a salary of $68,000 per year, who worked in engineering, and who exercised discretion and judgment regularly was a “professional employee” who was exempt from the overtime provisions of the Fair Labor Standards Act (FLSA). The fact that worker supervised others in addition to his engineering tasks, that he lacked authority to hire and fire, and that there was purported a “public service” nature to his work was irrelevant to the analysis of whether he was “professional employee” for FLSA overtime purposes.
Based on the above, just because an employee’s job duties include certain manual tasks such as repairs and maintenance does not automatically take that employee outside of the professional exemption where the employee’s advance knowledge and intellectual skill set is of prime importance to the employer
DEPARTMENT OF LABOR AND EMPLOYMENT ATTORNEY GUIDANCE
The DOL routinely issues opinion letters for reference on these matters. These are useful when trying to find similar fact patterns to your own in order to determine the exemption status. However, even if there is a perfectly on point opinion letter, or this article has helped you arrive at a preliminary determination, we urge you to contact an experienced employment attorney if this issue is not crystal clear. As an employee you might be entitled to overtime in addition to your regular pay. And as an employer, you might be found to have committed DOL violations which would require you to compensate your employee for back pay and in some instances subject you to punitive damages. This dollar amount derived from this damage award could be devastating, especially for a small business owner who has failed to pay overtime wages for a long duration. The statute of limitations under the FLSA is two years of general violations and three years look back for willful or flagrant violations. In determining whether punitive damages against an employer is appropriate, courts will look to whether the employer knew or should have known that the employee was nonexempt and eligible for overtime. Some courts have been known to consider the employer’s good faith effort to properly designate an employee’s exemption status in their determination of whether the employer’s conduct was intentional or willful. An employer’s efforts to seek counsel and elicit an informed option on this issue will go to the issue of willfulness and might help to convince a court that the mischaracterization and resulting failure to pay overtime wages was an honest mistake. Therefore, if you are an employer who finds themselves in this situation, it is important to get professional legal advice about your employee’s exemption status is there is any gray area or as soon as you are aware there might be an issue as to the employee’s designation. This is especially true when an employee’s job duties, pay, hours, work requirements or experience/education change during the course of their employment.
10 Things You Should Know About Employment in Connecticut
1. Employers Can Give Bad References, Just Not False Ones
Employers no longer give references for former employees, so stop worrying. Employers fear being sued for defamation or claims for negligent hire. The majority if not all employers will provide prospective employers and their recruiters with your dates of employment, position, and possibly salary. The employer will not provide the reason(s) for termination. However, if you hear your former employer said they would not recommend for rehire, that is code language that you are a poor employee. The only exception I can think of is if you and your employer are FINRA registered members, i.e. brokerages and licensed employees in the financial industry. FINRA regulated employers are required to provide the reason for termination in the employee’s U-5 record.
Under the Connecticut Family Leave Act, employees are entitled to take up to 16 weeks of unpaid leave. Connecticut law provides for an additional 4 weeks on top of the federal FMLA (12). Employees should ask there employers if they have short term disability benefits to coincide with the 16 weeks of leave. A typical STD plan provides for six months of paid leave at 60% of the employees base pay. Nothing is guaranteed, and the employer will not volunteer the information. Employees in need of a leave of absence must self-advocate for their rights and document all their requests in writing. Remember, your job is protected during the FMLA, but if you fail to return before your leave ends, you will lose your job.
3. Connecticut Employees Have a Right to Personnel Files
Connecticut employees are entitled to a complete and accurate copy of their personnel files, including a copy of their supervisor’s version of their file. All the employee has to do is make a written request via email to the HR department and the employer must provide a copy of the file within 30 days. If the employer refuses, please contact the CT Department of Labor and register a complaint.
4. An Unfair Employment Termination is Not Necessarily Illegal
Listen, employers can be really mean and behave in very unfriendly ways. However, just because the employer is a pain in the butt and trying to make your life miserable, this does not mean the employer’s actions are illegal. Employers do not care about employees, so get over it. Your job cannot be your identity. You are an “at will” employee and you should never assume your job is secure, even if you worked for the company for 10 years. In order to determine if your employer’s action to terminate you were illegal, you would need to speak to our employment attorneys. A quick 15 minute call to our office will flesh out the legal issues and permit us to determine if you were fired unlawfully.
5. Independent Contractors Have Rights Too
You may not know it, but if you are an independent contractor you are still protected against unlawful employment actions such as discrimination. You should also investigate if your employer is correctly classifying you as an independent contractor (IRS Form 1099) or regular employee (IRS Form W-2). We see a lot of employees misclassified as independent contractors when they should be regular workers. Employees fear challenging the employer on this classification because they believe they will lose their contract. If you are in doubt, call the CT Department of Labor or call our office to speak with an employment attorney. Also search the internet in Connecticut for the “ABC Test for Independent Contractors.” You can also search the IRS.gov website for the same information.
6. The Legal Effect of Quitting Your Job
Don’t ever quit your job! You cannot collect unemployment benefits. Also, it is too difficult to prove your voluntary job termination was a “constructive discharge”. The facts must show a series of recent events that violate state and federal law and that any reasonable person would also quit. If you are in a tight bind where your employer is giving you the writing on the wall treatment to get out, speak to an employment attorney in our office first. We will deter you from quitting and will advise you to leave your job through the signing of a separation agreement which includes a severance payment for your service with the company as a result of unlawful treatment.
7. Employees with Criminal Records Are Protected
Under Connecticut law, employers cannot refuse to hire or terminate an employee because of a criminal record. Obviously, each case is different, so you will need to contact an employment attorney in our office to figure out if you are protected.
8. You May Have a Legal Right to Severance Pay
Employees employed in Connecticut may have a legal right to severance pay. If the employer maintains a severance plan governed by ERISA (federal regulation), employees working in Connecticut are considered participants and entitled to severance pay pursuant to the plan document. The one condition to receive severance pay set forth in every ERISA severance plan is that the employee must signed a general release of claims. How do you know you company has a severance plan? You can check your internal human resource portal or employee handbook. All ERISA severance plans have to be filed with the U.S. Department of Labor. Years ago I found this free website where you can research your employer. Insert the employer’s name in the site and go through the various plans listed. You are looking for a plan labeled with the word “severance” in it. The plan severance plan code is “4i”. If you find it listed, then you know a severance plan exists. Once you have identified your employer’s severance plan, make a written request to the Human Resources Department for a copy of the severance plan. The HR Department has a legal obligation to provide a copy of the severance plan within 30 days of your written request. You will find in the plan the amount of severance pay based on your years of service with the employer. Don’t leave money on the table, but chances are the employer will remind you about your benefits, as they have a fiduciary obligation to you as a plan participant. If you need a severance attorney, call our office and speak with one of our employment attorneys.
9. How to Predict When You Are Getting Fired
Hmmm, try your gut instinct. Are you getting the awful feeling that your boss and coworkers have turned on you? You may have been a satisfactory performer last year, but this year your rating sunk or needs improvement. Or, you made a complaint to your supervisor or HR about your wages or unlawful discriminatory treatment, and suddenly your once friendly work place is not so friendly. Maybe you just announced you are four months pregnant and you are getting the cold shoulder. Worse, your supervisor makes pregnancy related comments and jokes. Finally, if your coworkers and/or supervisors are openly hostile with you and use derogatory language directed at your gender, sexual orientation, race or age, then you know the crap just hit the fan and you need to speak to one of our employment attorneys.
10. Don’t Sign Anything When You Get Fired
Isn’t this obvious? You should never sign anything when you leave your job. You should also not participate in any exit interview with the HR Department. No state or federal law mandates your participation in the exit interview. What you need to do is speak with an employment attorney in our office who will figure out if the termination was lawful and whether the employer acted unlawfully prior to the termination date, i.e. demotions, discrimination, etc.
If anything mentioned above sounds like your current situation, or if you find yourself there in the future, Carey & Associates, P.C. can help! Our firm specializes in employment, wrongful termination, discrimination, whistleblowing, and more.
It’s a fact, in the workplace women are seen as unequal. Of course no sane male employee will admit that to you. This is not because he would be politically incorrect in making such a remark, but because of some weird and nondescript force or code (man-code) he feels compelled to adhere to at all costs. (I obviously do not share in this dysfunction). This phenomenon is real and has a tight hold on the U.S. workforce. Yes, I could use the word gender discrimination or some similar phrase like unequal pay, but those concepts do not shed light on how to overcome the inequality. Those terms only equate to engaging in litigation, which is a slow, emotionally draining and a financially devastating road to follow.
At the heart of the pay gap/promotion issue lies two socially inherent obstacles, bias and fear. Men hold the bias, most likely nurtured in them via family upbringing and culture. The bias is simple, men are better than women and thus should be paid more. This bias is real as represented in the statistics mentioned below. And women hold the fear, equally nurtured via family upbringing and culture. Women fear challenging men to get what they deserve. This is not to say that all men and all women hold these same characteristics, but enough of them do given the current statistics below.
On a positive note, the pay inequality issue may be transforming on its own. According to the BLS (U.S. Bureau of Labor Statistics (http://www.bls.gov/)), in 2012 women earned 81% of the median wages of men. I presume this applies to working women of all ages up to retirement age. However, the pay gap is smaller for younger women in the age range of 25-34 where the current ratio is 90%+. For women in the age range of 45-54, the ratio is 75%, representing a possible age biased toward an older generation of female employees. The BLS numbers indicate the gender income inequality issue may have a strong generational variable, where younger working women encounter less income inequality in comparison to men. Pregnancy may play a lesser role in this younger generation, as the CDC reports that the mean age of women experiencing a first time birth is 26. http://www.cdc.gov/nchs/fastats/births.htm) Previous income inequality explanations suggested pregnancy was one of the main culprits, but that appears to be changing. More women are working in the U.S. workforce than ever before, nearly 47% of the workforce is composed of women, and this number is projected to exceed 51% by 2018. (This information is based on 2010 data). (http://www.dol.gov/wb/factsheets/Qf-laborforce-10.htm). My opinion is that women should be paid 100% in comparison to men.
Women need a workable solution, not more statistics or more calls to action during the academy awards, which only draws more attention but does not solve the problem. I have worked with or represented many women either in consultative employment counseling, litigating discrimination cases or contract severance negotiations. I have mentally collected these work experiences and have some simple yet straight forward solutions to solve the gender pay gap.
Men need to promote more woman based on their performance, not their gender. I am confident women will feel appreciated and incentivized to improve the company bottom line. That’s what women tell me.
Men need to pay women more based on their performance, not their gender, even if it means paying a wage equal to or higher than those paid to similarly qualified men. I am confident women will feel appreciated and incentivized to improve the company bottom line. Again, this is what women tell me.
And, everyone, men and women alike, should be allowed to work a flexible work schedule, which increases employee motivation and production quality for the real work companies want performed. In my office, we have a flexible work schedule and the work is completed in a timely fashion and everyone, including myself, is happier! The stale and stringent 9-5 work hours needs to be tossed out the window. I have heard too many complaints over the years by clients regarding ridiculous and inflexible work schedules enforced by poorly managed (some FORTUNE 500) companies.
Women need to aggressively self-advocate for promotion and salary increases even at the risk of creating an impenetrable glass ceiling or worse losing their jobs. Your employment (either at-will or term) is a contract that is constantly being renegotiated every day. If you do not ask, you will not receive. By professionally demanding a salary increase and promotion, you force your employer to tell you how they really feel about you and your performance. If they say no, move on to a company that does appreciate your skills, experience and knowledge.
The bottom line is to become more proactive, assertive and never fear the negotiation to get what you deserve, instead embrace it. This applies equally to us all.