Commonly Asked Questions
on Employment Law

A

It depends on the level of control exerted over you. If you are free to work when and how you please, you are likely an independent contractor. If, however, you have detailed procedures to follow, wear a company uniform, and are told when to come and go, you are more like an employee. Many employers are classifying employees as independent contractors these days in order to save on benefits, taxes, and other costs. Employees around the country are fighting back.

Click here for more information on this topic >

A

No. Being an “at will” employee simply means that you don’t have a contract of employment for a specific period of time. You still have lots of rights, including the rights provided under the various discrimination statutes as well as rights under the common law including defamation, and negligent misrepresentation.

Click here for more information on this topic >

A

Yes. State and Federal law require employers to conduct prompt and thorough investigations of sexual harassment claims.

Click here for more information on this topic >

A

Usually not. An employer is only allowed to deny you overtime if your duties fit certain “exempt” classifications and if they pay you on a salaried basis. Just because they’ve called you “salaried” doesn’t mean they are following the law. Commonly misclassified positions include retail store managers (and assistant managers), automobile damage appraisers, secretaries (sometimes labeled “administrative assistants”), “office managers,” and others.

Click here for more information on this topic >

A

You may. Sometimes employee handbooks can be considered to be a contract by a court but many times they contain disclaimers which defeat those claims. In some instances, representations in handbooks can become relevant evidence to support other legal claims, such as discrimination. Each case is different.

A

Usually not. There is no general legal obligation to give warnings before terminating someone. Promises contained in a contract or employee handbook can sometimes create such an obligation. Each case is different.

Click here for more information on this topic >

A

Perhaps. She may have a claim for defamation if the person accusing her falsely knew that the accusation was false and made the accusation in order to get her fired.

Click here for more information on this topic

A

Maybe. You may have rights under State and Federal disability discrimination laws. Generally, if you have a permanent disability, you may have the right to an ‘accommodation’ in order to assist you perform the job. If your employer can provide such an accommodation without undue financial hardship, it must and it cannot usually discharge you just because you asked for such an accommodation.

A

Absolutely. In Connecticut, the Connecticut Personnel Files Act requires employers to allow employees to review and copy their personnel file. It also restricts them from distributing it without the employees written consent. It also allows the employee to submit a written explanatory statement, if for example, you received a performance review that you disagree with.

A

Usually, yes. In Connecticut, covenants not to compete are enforceable if they are supported by consideration (this means you got something in return for it), if they are not too broad in geographic scope or restrict you for too long in time. Courts can be quick to invalidate these contracts if they are too broad. Courts will also usually interpret their terms narrowly (i.e., against the employer).

A

Usually not. The general rule of unemployment is that you are not entitled to unemployment benefits if you quit. The exception to the rule is if you quit because of “sufficient cause” attributable to your employer. You also have to show that you took reasonable steps to complain before quitting.

Click here for more information on this topic >

A

Usually not. Commissions are income, just like wages or salary, and if you have earned commissions pursuant to a commission plan, you cannot be denied them, even if you quit or are fired.

Many companies that employ sales people, have paragraphs in their commission plans that say that you forfeit any commissions that have not been paid if you leave the company or are fired before the money comes in. I believe these provisions to be illegal. We have a statute in Connecticut which makes it illegal to require employees to agree to pay a portion of their earnings as a condition of employment (C.G.S. Section 31-73). I believe that this statute would make it illegal to deny a sales person his or her commission that would otherwise be payable just because the employment relationship ended.

If you hadn’t yet earned the commission until the money comes in, perhaps because you had an ongoing obligation to service the account, then the employer might be able to claim that you aren’t entitled to it. If your only obligation was to close the deal and move on, then I believe you cannot be denied earned commissions when your job ends.

A

In Connecticut, an employer’s obligation to pay employees for sick days is outlined under the state Department of Labor. Visit the following .pdf, “An Overview of the Paid  Sick Leave Law”, to determine if your employer is non-exempt and review important definitions.

A

Not all employees are covered under the FMLA. Up to 2 weeks of unpaid leave is provided for: births, adoptions, serious illness, bone marrow donation; and illness of certain family members such as a spouse, child, step-parent, parent-in-law, or legal guardian. Whether or not your leave is covered also depends on both the size of your company and how long you’ve worked there.

A

It depends. Generally, non-competition clauses are enforceable in Connecticut. They are looked at very strictly, however, by the courts and must not be too broad in geographic scope or in time. For example, a non-competition clause which claimed that you could not compete for five years might be too long and might be held in valid by a court.

These clauses also need to be supported by consideration. Employers who do not have you sign the non-competition agreement at or around the beginning of your employment run the risk that they will be held invalid and unenforceable. Non-competition agreements which are signed well after the commencement of your employment could be invalid if your employer didn’t offer you something new in exchange for this new promise, such as a bonus, a raise, a promotion, or something else of value.

You should keep a copy of your non-competition agreement and understand its terms. It is not advisable to assume that they are unenforceable.

A

No, not unless you are an executive, a professional or an administrator of the company, or if your duties fit some other recognized exemption.An employer cannot deny you overtime pay (hours worked in excess of 40 in a a week) unless you are truly an exempt employee.Many people misunderstand this area of the law. Most think that an employer can simply say you are salaried and thereby deny you overtime pay. Not so.Unless an employer assigns work to you which fits a specific exemption and pays you the say salary every week, you may not be denied overtime pay.

A

Usually not. Generally, you have a right to privacy in the information contained in your medical records. The right to privacy in your medical records is protected by numerous laws including the Americans with Disabilities Act (ADA), the Health Information Portability Accountability Act (HIPAA), and state statutes. These laws also mean that your employer cannot ask your doctor for your medical records without your permission.

A

No. Employers may not require you to take a polygraph, or lie detector test, in order to obtain or keep your job.  They also may not fire you or discipline you for failing, refusing or declining to submit to or take such a test. Employment agencies are also prohibited from participating in such conduct.  Connecticut General Statutes Section 31-51g.

Any employer which violates this law, can be subject to fines of up to $1,000.

It is permissible to require polygraphs of police officers or corrections officers at the Department of Corrections as a condition of obtaining or maintaining employment.

A

No. Not unless it posts a notice or otherwise informs you that your calls may be monitored. Both State (Connecticut General Statutes Sections 52-570d, Athe Recording Act”, and 54-41r, Athe Wiretapping Act@, and Federal (Title III the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. ‘ 2510-2520) law prohibit employers from secretly monitoring or recording telephone calls in the workplace. Employers who violate this law can be sued for damages and can be assessed civil penalties. If you have concerns, check your employee handbook and any break room postings to learn if your employer is recording or monitoring your calls.

A

Not without turning you into a non-exempt employee. Being an exempt employee means that you are exempt from the overtime requirements of State and Federal overtime laws. If you perform exempt duties (managerial, administrative or professional) then you can be paid on a salaried basis and not paid overtime. But your employer cannot have its cake and eat it, too. It cannot deny you overtime when you work more than 40 hours in a week and then dock your pay when you work less. Partial day dockings of an exempt employee’s pay violate the salaried basis test and turn that otherwise exempt employee in to a non-exempt employee. If your pay is subject to being docked for partial day absences (less than 8 hours) then you are not an exempt employee and you are entitled to be paid for all hours over forty in a week. You should carefully review your employee handbook or other wage policies to see if your pay is subject to being docked for less than a whole day.

A

No. Not without your written consent. Sometimes, employers think they can take money out of your paycheck, for example if a waitress accidentally drops a tray of dishes. In fact, they may not do this. In Connecticut, employers may only withhold money from your paycheck if

1. The employer is required or empowered to do so by state or federal law, or
2. the employer has written authorization from the employee for deductions on a form approved by the commissioner, or
3. the deductions are authorized by the employee, in writing, for medical, surgical or hospital care or service, without financial benefit to the employer and recorded in the employer’s wage record book.

Connecticut General Statutes Section 31-71e. If your employer has withheld money from your paycheck in violation of this law, demand in writing that you be reimbursed. I believe that the employer has committed larceny by doing so.

A

No. In Connecticut, employers must offer a 30 minute break for any employee who works at least a 7 ½ hour shift. Furthermore, that break cannot occur during the first or last two hours of the break. For example, an employee who works 9 a.m. to 5 p.m. must have be offered a meal break between 11 a.m. and 3 p.m.

Understand that this meal break need not be taken. The only legal obligation is that it is offered. The exact language of the law is:

No person shall be required to work for seven and one-half or more consecutive hours without a period of at least thirty consecutive minutes for a meal. Such period shall be given at some time after the first two hours of work and before the last two hours.
C.G.S. Section 31.51i.

There are a few exceptions to this rule, including when:complying with this requirement would endanger public safety; the duties of the position can only be performed by one employee; the employer employs less than 5 employees on that shift at that one business location (this only applies to that particular shift); or, the employer’s operation requires that employees be available to respond to urgent conditions, and that the employees are compensated for the meal period.

There is no requirement to give any other breaks, such as morning and afternoon breaks. While many employers provide these benefits, they are not required by Connecticut law.

A

Usually not. There are a few laws which an employer could violate by firing an employee during sick leave, but there is no general prohibition against it in all circumstances.

The Family and Medical Leave Act (FMLA) prohibits employers of 50 or more employees from denying an employee a leave for a serious health condition. Those leaves can be 12 weeks under the federal law, 16 weeks under Connecticut law (over 75 employees). Accordingly, if you are on a protected FMLA leave and the time has not run out, you may not be fired or replaced unless the employer would have done so even if you hadn’t taken the leave.

Disability discrimination laws (ADA, CFEPA) prohibit employers from firing employees with disabilities. If your sick leave is because of a disability, it would be illegal to fire you.
The Workers Compensation Act prohibits retaliation against an employee for exercising her rights under the Act. An employer who fired an employee during a workers’ compensation leave could be violating those anti-retaliation provisions.
There may be other laws that prevent being fired on sick leave, including claims that the employer’s sick leave policy is contractually binding.

A

It depends. There is no general prohibition against a former employer “bad mouthing” you to new or prospective employers. Remember, it is a free country, and we all have a right to our opinions. Employers are free to express their opinions about you, including bad ones.

There are two specific laws that come into play in these circumstances; defamation and the Connecticut Personnel Files Act. Defamation is a false statement of fact that harms you in your reputation and is done with malice or at least with reckless disregard for the truth. An example would be if a former employer falsely told a new or prospective employer during a reference check that you stole from them when in fact you did not and they knew you did not. It would not be defamation if they honestly believed you stole.

The Connecticut Personnel Files Act prohibits employers from disclosing individually identifiable information from your personnel file without your consent. If your old employer told a prospective employer about a bad review that you got, they would be in violation of this law. If instead they simply said that they did not like you or thought in their opinion you weren’t a good worker, they would not be violating this law.

A

In Connecticut, an employer cannot ask about erased criminal records. Under Connecticut General Statute 31-51i, an employer is prohibited from asking about the existence of erased criminal records or from discriminating based on erased criminal records.

While an employment application form may ask about the criminal history of a prospective employee, the prospective employee is not required to disclose any criminal records that have been erased under Connecticut General Statutes 46b-14b, 54-76o or 54-142a. This means that any records relating to (1) a finding of delinquency or that a child was a member of a family with service needs; (2) adjudication as a youthful offender; (3) a criminal charge that has been dismissed or nolled; and (4) a criminal charge resulting in the person being found not guilty or for which the person received an absolute pardon. If a criminal record has been erased based on one of those four reasons, the person is deemed to have never been arrested, and may answer so on an employment application.

Under 31-51i, an employer is also not allowed to deny a prospective employee employment because the individual has an erased criminal record relating to one of the four reasons above. Similarly, an employer is not permitted to fire a current employee because the employee has an erased criminal record.

A

Yes. Under both the federal law (the Fair Labor Standards Act, 29 U.S.C. 255(a)) and state law (the Connecticut Minimum Wage Act, C.G.S. § 52-596), an employer must display posters in the workplace regarding overtime wage laws.

If your employer fails to display the required posters and you bring a claim for unpaid overtime wages, the fact that your employer did not display the posters may allow you to “equitably toll” the statute of limitations.

The statute of limitations for unpaid overtime wages under both Connecticut and federal law is 2 years. A court can extend (“equitably toll”) the statute of limitations if the two year period would produce an unfair result. Recently, a Connecticut District Court in Asp & Mertes v. Milardo Photography, Inc., held that equitable tolling of the two year period applied where the employer failed to post the required overtime posters because the employees did not have notice regarding their overtime rights.

If you have actual notice of your rights regarding overtime, even if it did not come from your employer (for example if you consulted with an attorney while you were still employed), then it is unlikely that the statute of limitations period will be tolled for your employer’s failure to post the posters.

A

Generally, yes.  Your employer can monitor internet usage and a majority of employers do.  In a 2005 survey by the American Management Association (AMA), the AMA found that 76% of employers monitor workers’ Website connections, 65% of employers use software to block connections to inappropriate Websites, 50% of employers store and review employees’ computer files, and 55% retain and review emails sent over company email.  Most employers (more than 80%) notify employees that their Web usage is being tracked and/or their email is being monitored.Under Connecticut law, Conn. Gen. Stat. 31-48d, an employer is required to notify employees in writing that it will be monitoring email or internet usage, by a posted notice.  There are exceptions to this rule, however.  Where an employer reasonably believes that employees are engaged in conduct that (1) violates the law, (2) violates the legal rights of the employer or other employees, or (3) creates a hostile workplace environment, the employer may conduct monitoring with prior notice.  Some examples of this would be if the employer believes an employee is gambling or looking at pornography, disclosing proprietary company information or engaging in activities that could lead to employer liability in harassment or discrimination cases (websites, screensavers, emails or images that are degrading to women, for example).Employees should keep in mind that while using company resources (computers, emails, telephone systems) they have a lower expectation of privacy than they would if they were using their own personal resources.  Monitoring of company resources is something that employers seem to take seriously – the AMA survey indicated that 26% of employers have fired employees for misusing the Internet, and another 25% have terminated employees for inappropriate email usage.

A

No, if you request a leave for the purpose of adopting a child, this leave will be covered under the Family Medical Leave Act.  In order to qualify for FMLA leave, your employer must have more than 50 employees, you must have worked for your employer for 12 months, and you must have worked 1,250 hours in the previous 12 months.  Provided that these requirements are met and you have given your employer proper notice (usually 30 days, if that is possible), then you will be eligible for up to 12 weeks of FMLA leave upon the placement of your adoptive child.  Upon your return from leave, the FMLA requires that your employer return you to the same position or an equivalent position with similar benefits, working conditions, and the same pay.  The FMLA fact sheet provides additional information on the requirements and limitations of taking leave under the Family Medical Leave Act.

A

Yes, but there may be consequences, and you may be entitled to unemployment compensation. If your employer reduces your pay – for any reason – this may be considered a demotion, even if your actual job duties and responsibilities remain the same.  If this happens and you quit because of the reduction in your pay, you may be entitled to receive unemployment benefits. Simply because you quit, however, does not mean that you are automatically entitled to receive unemployment.  Before you leave your job, in order to be entitled to collect unemployment for the reduction in your wages, you must (1) tell your employer that you are unhappy about the reduction in your wages; and (2) seek a remedy (for example the difference in the wages) through whatever means are available before you leave your employment.

A

No. Same-sex partners have FMLA rights equivalent to heterosexual spouses.

A

Generally, yes.

The right to keep and bear arms does not mean that you can bring a gun into the workplace.  Connecticut has no law that requires an employer to allow weapons on their premises.  If you have a gun at work in Connecticut, your employer may fire you.

A

No.  Normally, pay that you receive after your termination date delays the commencement of your unemployment claim.  Examples are accrued but unpaid vacation pay and sick pay.  An exception to this rule is severance pay, but only if you have to sign a release of claims in order to get it (which is almost always the rule).So, if you obtained severance or separation pay and had to sign a release of claims in order to get it, you may file for and obtain unemployment benefits for the same period.  You do not need to wait until the severance period ends.  Furthermore, you should file right away because if you wait, you will not be able to collect benefits dating back to the termination date.

A

This is an easy one.  No.  Your employer must pay you for all compensation (meaning hourly wages, salary, bonuses, commissions, etc…) that you earned.  I have heard in this economy that many people are not being paid and are being told by their employer that they’ll be paid in the future. Connecticut law requires that all wages be paid weekly (bi-weekly only if permission is obtained from the Department of Labor) within eight (8) days of the end of the pay period.  C.G.S. Section 31-71b.  It is a crime to not pay wages, punishable by fines of between $2,000 and $5,000 and imprisonment of not more than five (5) years.  The Department of Labor will refer an employer who fails to pay wages to the State’s Attorney for prosecution. Any employee who is not paid wages due may complete a Statement of Claim for Wages and file it with the Connecticut Department of Labor.  Lawsuits for unpaid wages must be brought within two years.

A

Tough question.  Usually, the answer is yes, but there are exceptions.  At will employees can be fired for almost any reason.  An employer who believes in good faith that you committed sexual harassment may fire you, and, in some cases, must fire you. However, you may not be completely without a remedy.  The law of defamation protects you from being fired for a reason that your employer knows is false.   Also, our Second Circuit has held that an employer who believes that you committed sexual harassment because it believes that men have a “propensity” to commit sexual harassment has violated your Title VII right to be free from gender discrimination.  I have recently written about this case on my blog.  These are tough cases, but it is good to see the Second Circuit taking what I believe is a balanced approach.

A

Yes, because although alcoholism is a disability, my employer may enforce its attendance policy against me.

A

Maybe not. The National Labor Relations Act prohibits employers from disciplining or discharging employees who engage in a “concerted activity” aimed at making conditions better for a group of employees. This might include speaking out at an employee meeting or distributing a complaint or notice to other employees. You do not have to be in a union to be protected by the NLRA, but your activity must be aimed at helping a group of employees and inducing group action.

A

Perhaps not. A few courts have recently held that pharmaceutical reps do not qualify for the commissioned sales exemption to the Fair Labor Standards Act. The basis of these holdings is that pharmaceutical reps do not actually sell anything. Usually, they visit doctors and hospitals and inform the doctors about the drugs and encourage them to write prescriptions for the drug. The actual purchase and sale occurs when a patient buys the drug from a pharmacy. In this way, no actual sale occurs when the rep visits the doctor. Furthermore, the reps income is not directly connected to the sale of the drugs. Usually, they receive bonuses based upon overall sales in their geographic territory. The takeaway is that the FLSA is strictly and narrowly construed in favor of employees and an employer’s classification is not always right.

A

No.  The Fair Credit Reporting Act is a federal law that requires employers to send a copy of any background report obtained to job applicants before they reject them.  This important rule prevents employers from rejecting qualified applicants who have no criminal record when the Credit Reporting Agency includes false information.  Many national reporting agencies admit to making hundreds of thousands of mistakes each year.  The FCRA requires them to use accurate procedures and requires employers to give applicants a reasonable opportunity to clear their name.

Any applicant or employee who loses a job because of a false background check can sue for damages, including punitive damages.  The court can also make the employer pay the attorneys directly (saving the employee significantly).  One worker in Florida won over $1,000,000 in a case against the reporting agency.  A worker in Ohio won over $300,000 against the employer.  

Please contact us if you or someone you know has lost a job opportunity because of a false background check.