The news is alarming. More than 760 residents of Connecticut nursing home have died from COVID-19. Nursing homes have underreported COVID-19 deaths in their facilities. Governor Ned Lamont enlisted medical personnel from the Connecticut National Guard and Army Reserve to perform site inspections with the Department of Public Health.
Become A Whistleblower
What does this mean for the healthcare workers and nursing home or assisted living facility employees? How do you stay safe and healthy, protect the population you serve, and protect your job? Answer: Become a Whistleblower.
State and Federal Whistleblower Laws
Connecticut and the federal government have several whistleblower protection laws designed to protect employees against retaliation if they report unlawful or unethical activity. These laws allow employees to follow their consciences and the law without losing their jobs, getting demoted, penalized, punished etc.
Occupational Health and Safety Act: You have a right to report unsafe or unhealthy working conditions to the federal Occupational Health and Safety Administration without fear of reprisal. This can include your employer’s failure to provide appropriate Personal Protective Equipment, or to properly sequester residents with COVID-19 from residents who are not infected.
Private Employers: Conn. Gen. Stat. § 31-51m protects employees of private employers from retaliation if the employee reports violations of state, federal, local law to a “public body.” Which public body depends upon the law being violated, but it is critical to recognize that this does not protect idle gossip or social media posts.
Public Employers and Contractors: Conn. Gen. Stat. § 4-61dd protects public employees and contractors against retaliation for reporting corruption, unethical practices, violations of law, abuse of power, waste, etc. The employee must make the report to the Auditors of Public Accounts.
It is critical to remember that these laws do not protect you for “going public” with the information. They only protect you when you report the activity to the proper public authority. Also, they provide a means of making you whole after the fact – i.e., after your employer already punished you for blowing the whistle. Many people find it useful to talk with an employment lawyer to work out the best strategy to avoid the punishment altogether.
Whistleblower Laws Help Healthcare Workers Do What’s Right AND Keep Their Jobs. For more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.
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.
No Whiners Please! This was the bumper sticker I saw on the back of a large sail boat last night after sailing. At first I thought the phrase was directed at the owner’s kids who disliked sailing with the captain every weekend. Then I realized maybe the captain’s message was much broader in scope. Certainly, we all know someone who fits nicely under this category. We do distance ourselves from them either because they are simply annoying or because we just do not have the energy to deal with the nuances of their person agitation.
We as a lot find our work life stimulating and challenging. Office politics and upward struggle are the norm and we comfortably handle these obstacles. However, there are those coworkers who simply unnerve us by their incessant complaints related to the latest ongoing work issue. Whether the coworkers’ complaints are justified or not, the coworker gets labeled as a whiner! In reaction, the coworker becomes alienated and ostracized by his or her peers in the office. Sometimes whiners find themselves together with other like-minded whiners, –and there is nothing wrong with that, they need someone to whine to. But it is our basic collective intuitive reaction to immediately disassociate ourselves with whining coworkers that caused me to pause and think twice about the bumper sticker.
What if the whiner was bitching about something that was vitally important to the business, but coworkers chose not to listen and labeled him as a whiner. In my experience, this happens every day and more often than you think. The consequences of ignoring the complaints of the complainer could be enormous, such as a failure to address internal complaints involving fraud or misconduct, resulting in loss of revenue or assets. Other examples involve internal complaints of discrimination that go uninvestigated and the employee is later fired and files suit. No investigation means no defense in employment lawsuits. Whiners can be actual whistle blowers and their tirade can alert management to serious concerns in the company. So, think twice about whiners, they may be on to something important.
No Whiners Please! If you would like more information please contact Carey & Associates PC at 203-255-4150 or email to info@capclaw.com.
