Wage and Hour Issue Articles

Independent Contractor Test Gets Easier to Meet Under Connecticut Law

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            The Connecticut Supreme Court recently released an opinion making it easier to meet the independent contractor test under Connecticut law.  Southwest Appraisal Group v Administrator, Unemployment Compensation Act.  The Connecticut Department of Labor traditionally followed the ABC test in determining whether a worker was an employee or independent contractor for unemployment compensation purposes.  Part C of the test requires an employer to prove that the worker is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service provided to the employer.  One element of that test was whether the worker had customers beyond the employer.  The Supreme Court, however, has now held that while the number of customers may be considered there is no minimum requirement that a worker have multiple customers to be considered an independent contractor.

Compensating Home Care Workers (2)

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             Effective January 1, 2015, changes to federal and Connecticut law will impact the compensation of home care workers. Federal DOL Final Rule Fact Sheet and Public Act 14-159. Home care workers typically provide “companionship services, including “fellowship” and “protection,” for elderly or disabled persons. “Fellowship” is defined as engaging the person in social, physical and mental activities, while “protection” means being present in the person’s home, or accompanying them outside to monitor their safety and well-being. Examples of companionship services include conversation, reading, games, crafts, accompanying a person on a walk, running errands, and attending appointments and social events. Companionship services differ from “care,” which includes assistance with activities of daily living, such as dressing, grooming, feeding, bathing, toileting and transferring.

DOL Plans to Limit Exempt Status and Toughen Independent Contractor Enforcement

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             The U.S. Department of Labor recently announced a proposal to expand the number of employees who would become eligible for overtime pay. Under the Fair Labor Standards Act (“FLSA”) certain employees are exempt from overtime payments if they meet two key tests; the salary basis test, and the duties test. Under the salary basis test, an employee must currently earn at least $455 ($475 under Connecticut law) per week, and that salary may not fluctuate based on the number of hours worked, except in limited circumstances. In addition, the employee must also meet the duties test by showing they work in an executive, professional, or administrative position. Each type of position has a specific statutory definition. Outside sales representatives are also exempt, regardless of salary. Further, under federal law, computer employees meeting the salary test are exempt.

Internal Complaints Sufficient to Trigger Anti-Retaliation Protection under the FLSA

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              The U.S. Court of Appeals for the Second Circuit recently ruled that oral and written complaints regarding wages made to supervisors followed by an adverse job action are sufficient to support retaliation claims under the Fair Labor Standards Act (“FLSA”). Greathouse v. JHS Security. Under the FLSA’s anti-retaliation provision it is unlawful to discharge or discriminate against any employee because such employee has filed any complaint related to the FLSA’s provisions. In previous decisions the Second Circuit held any such “complaint” must be made in writing to a government agency,  and internal complaints to supervisors, as well as oral complaints to an agency, were insufficient to trigger protection. In reversing its position, the Second Circuit relied on guidance from a U.S. Supreme Court decision making oral complaints to an agency sufficient, and sister Circuit decisions making any internal complaint enough to gain protected status.

Time Spent Undergoing Security Screenings Not Compensable

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          The U.S. Supreme Court recently ruled that time spent by employees waiting to undergo workplace security screenings is not compensable. Integrity Staffing Solutions,  v. Busk.

            Integrity required employees at its warehouse operations to undergo anti-theft screenings at the end of each shift. The process took up to 25 minutes each day, during which time the employees received no pay. As a result, the employees filed suit claiming they should have been paid as the screenings were purely for the benefit of the employer, and that the time spent could have been reduced to a de minimis amount had the employer added additional screeners, or staggered shift ending times. 


 

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