Daniel Schwartz's Recent Articles from LexMonitor

What You Can Learn From a Group of Graduate Students About Social Media & Employment Law

dschwartz@pullcom.com (Daniel Schwartz) — Fri, 05 Mar 2010 13:38:48 GMT

Last night, I had the privilege of speaking to a graduate-level class at the University of Hartford. (My thanks to Professor Olga Clark for the invitation).

The topic of the discussion overall was the interaction of social media and employment law. It's a talk that I've given before, but the class had some unique questions and insights on the subject.

While the class was composed of people from various backgrounds, many emphasized the same thing: Social media can be a great thing...if you use your common sense.

Overall, I agree with that concept.

But here's the problem: One person's "common sense" is another person's stupid decision. Even within the class, the students use social media in very different ways. One person has nearly 1700 "friends" on Facebook, while several others aren't on that site at all.

Who has better "common sense"? It obviously depends on your perspective.

Apply this concept to companies and you can easily see the trouble that arises. If a company does not have social media guidelines for its employees, it leads to each employee coming up with their own set of guidelines. And using their "common sense".

So what to do? Well, there doesn't need to be a one-size-fits-all approach. Each employer may have a different level of use and need for social media. But employers at this stage need to do more than merely relying on employees to use their "common sense".

I've heard from a few lawyers who push back at that concept saying that its overly dramatic to advise companies to have social media use and guidelines and that I'm making this a bigger issue than it needs to be.

I disagree. Even with firewalls at work, there are vast numbers of employees who are using social networking or media sites, many times at work, on iPhones, Blackberrys and Android smart phones. (The story of the Israeli soldier posting about an upcoming raid on Facebook this week is yet another example.)

There is no putting the genie back in the bottle on this one. Over 400 million people are on Facebook. And they're not just talking about what they had for breakfast anymore.

Not telling your employees about the parameters on how to use social media would be like not telling your employees 10 years ago about how they should and should not use the computer system. Companies concluded that they needed a policy because employees' "common sense" led some of them to pass around dirty jokes or inappropriate pictures. .

I firmly believe we've reached that same tipping point on social media now.

But if you're still not convinced, ask yourself this -- do you simply want to rely on your employees' "common sense"? If you have any hesitation, the time for social media guidelines is now.

President Signs Bill Extending COBRA Subsidy For One Month; To be Applied Retroactively

dschwartz@pullcom.com (Daniel Schwartz) — Wed, 03 Mar 2010 13:38:13 GMT

Late Tuesday night, the Senate approved and the President signed a bill that , among other things, extends the COBRA subsidy (that had expired on February 28, 2010) to March 31, 2010 and applies that extension retroactively. That means that any terminations on Monday and Tuesday this week that would have been subject to the COBRA subsidy (but for the expiration of the prior law) may need to be revisited.

The bill (H.R. 4691) also extends unemployment benefit eligibility as well.

Besides extending the time for eligibility for the COBRA subsidy, the bill also has a number of other provisions attempting to clarify portions of the prior law.

What does this mean for employers?

Check back on the Department of Labor's COBRA page today and tomorrow for additional information from the agency. The agency will no doubt release some additional information on how employers should handle this.
If employers have had any terminations that would otherwise qualify for the COBRA subsidy the last two days, those terminations need to be reviewed and notices may need to be sent telling those individuals that they may be eligible for the COBRA subsidy.

This is still a fluid situation so employers with any COBRA-related questions should check with their counsel to get the latest advice on how to handle them.

Misclassification Initiatives: How Can Employers Be Prepared; Next Webinar Set

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 02 Mar 2010 19:50:04 GMT

It has been widely reported over the last month that the United States Department of Labor is planning some new initiatives to crack down on usage (or abuse) of independent contractors by companies.

Several blogs have done a thorough job on reporting about it including the Delaware Employment Law Blog, Point Of Law, Florida Employment & Immigration Law Blog, and Minnesota Labor & Employment Law Blog.

But beyond this, there is also talk about revising some of the exemptions to federal overtime laws, including the domestic service exemption for home health care aides, as discussed by the Prima Facie Law Blog.

In short, 2010 is likely to mean further changes and focus on wage and hour laws for employers.

What does this all mean for employers? For starters, it means its time for companies to do a hard look at their wage/hour practices and how they classify their workforce. As one post stated:

Don’t let your business get caught with misclassified employees. Review the business relationship between you and anyone currently classified as an independent contractor to prevent any litigation or penalties for your business.

Because it is such a hot topic, this month's installment of our webinar series will focus on these initiatives from the federal government. The next webinar is set for March 17, 2010 at 12 p.m. EDT and, as always, is free of charge. You can sign up here. My colleague, Joshua Hawks-Ladds (who currently chairs the Connecticut Bar Association's Labor & Employment Law Section) will lead the discussion.

Labor Committee Holding Hearings on CHRO and Bullying Bills

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 02 Mar 2010 15:55:31 GMT

It's that time of year in Connecticut's short legislative season when legislative proposals come fast and furious but only a few will make the cut. One of the mechanisms used to separate out the contenders from the pretenders is the committee hearing process. It is a process that allows proponents and opponents to have their say.

At a hearing at the legislature today, the Labor & Public Employees Committee is scheduled to take up several bills. They are:

S.B. No. 169 -- AN ACT REQUIRING EMPLOYERS TO CITE A REASON FOR TERMINATION OF THEIR EMPLOYEES.
S.B. No. 239 AN ACT CONCERNING THE CONTINUATION OF DAY CARE SUBSIDIES TO UNEMPLOYED WORKERS.
S.B. No. 240 AN ACT CONCERNING THE E-VERIFY PROGRAM.
S.B. No. 241 AN ACT CONCERNING THE DEPARTMENT OF ADMINISTRATIVE SERVICES AND PREQUALIFICATION AND EVALUATION OF CONTRACTORS.
S.B. No. 242 AN ACT CONCERNING THE RETENTION OF JOBS IN CONNECTICUT
S.B. No. 243 AN ACT CONCERNING UNEMPLOYMENT BENEFITS FOR THOSE PERSONS WHO BECOME DISABLED WHILE UNEMPLOYED.
S.B. No. 261 AN ACT CONCERNING THE CONNECTICUT JOB CORPS TASK FORCE.
H.B. No. 5058 AN ACT CONCERNING THE RIGHT TO ORGANIZE FOR CERTAIN STATE EMPLOYEES.
H.B. No. 5195 AN ACT CONCERNING THE REHIRING OF RETIRED STATE EMPLOYEES
H.B. No. 5203 AN ACT CONCERNING STATE SERVICE RETIREMENT CREDIT AND TEACHERS' RETIREMENT CREDIT
H.B. No. 5206 AN ACT PROVIDING AN INDIVIDUAL THE RIGHT TO BRING A DISCRIMINATORY PRACTICE ACTION IN SUPERIOR COURT RATHER THAN THE COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.
H.B. No. 5284 AN ACT CONCERNING DOMESTIC VIOLENCE VICTIMS AND DISCRIMINATORY PRACTICES.
H.B. No. 5285 AN ACT CONCERNING STATE EMPLOYEES AND VIOLENCE AND BULLYING IN THE WORKPLACE.
H.B. No. 5299 AN ACT CONCERNING THE STREAMLINING OF THE UNEMPLOYMENT COMPENSATION APPEALS PROCESS.

Several, such as the bullying in the workplace proposal have been brought up before but with little enthusiasm.

As discussed last month, however, the proposal to circumvent the CHRO process merits the closest look because it would radically change the way discrimination cases are handled. Employers in particular need to keep close tabs on this because it would change the statute of limitations on such claims to a much broader standard. The CHRO has indicated that it opposes the measure as it is drafted.

The hearing is scheduled to begin at 2 p.m. at the Legislative Office Building, Room 1E. The hearings are open to the public and amazingly enough, if you'd like to speak on any proposal, you can simply sign your name up on a list there.

Another hearing is scheduled for this Thursday. You can view the agenda here.

No Criminal Background Checks? Proposed Bill Would Limit Use for Public Employers

dschwartz@pullcom.com (Daniel Schwartz) — Mon, 01 Mar 2010 12:25:12 GMT

Connecticut state law has long made it plain that the "policy of the state to encourage all employers to give favorable consideration to providing jobs to qualified individuals, including those who may have criminal conviction records." (Conn. Gen. Stat. 46a-79.)

In a prior post, I've discussed how state law does not prohibit private employers from using conviction records to make employment decisions, while public employers do have some restrictions under Conn. Gen. Stat. 46a-80.

A new bill being (R.B. 5207) floated in the Connecticut General Assembly (a hearing on it was held on February 25th) would expand the protection by not allowing the public employer to ask about a conviction under after a conditional job offer has been made (with limited exceptions). Specifically:

Except as provided in subsection (a) of this section, no employer, as defined in section 5-270, shall inquire about a prospective employee's past convictions using a consumer report, as defined in section 31-51i, until such prospective employee has been deemed qualified for the position and a conditional offer of employment has been made to the prospective employee.

Advocates for the measure held a press conference on the subject last week, according to a report from CT News Junkie.

The measure is still a long ways off from thorough consideration or even passage. It has yet to be voted out of committee.

CHRO Executive Director Acknowledges Past Shortcomings, Promises Changes

dschwartz@pullcom.com (Daniel Schwartz) — Fri, 26 Feb 2010 14:03:24 GMT

At a packed gathering last night, new CHRO Executive Director Robert Brothers, Jr. did his best to defend the agency over the past mistakes while urging that he not be judged on that past history.

He acknowledged in a meeting of the Connecticut Bar Association's Labor & Employment Law Section that there "have been a lot of things done wrong in the past." It's a refreshing statement from the head of an agency that has long been criticized for being blind to its shortcomings. He was adamant that a new change was coming. "Don't judge me by what I haven't done yet."

But the road to rebuilding the agency will not come easy, he said. His staff levels are down nearly 25 percent over the last two years with several positions, such as Chief of Field Operations, remaining unfilled after retirements.

Nevertheless, he urged the attorneys present to contact him directly if they have a complaint with the process or related issues.

Of course, the question of how to fix the agency is a complicated one. Brothers said that he was seriously considering electronic filing of cases, which would help reduce printing and postage costs. It would also provide a better solution to the storage of cases (which, in most instances, need to be maintained for 10 years).

Another area that he sees as ripe for improvement is training of employees and uniformity of decisions across the various state offices.

Judging by the vocal complaints raised in the audience, he and the agency have a lot of work ahead of them.

EEOC Releases Proposed Rule Affecting "Reasonable Factor Other Than Age" Defense Under ADEA

dschwartz@pullcom.com (Daniel Schwartz) — Thu, 25 Feb 2010 14:18:35 GMT

Over the last week or so, various blogs have discussed a proposed rule released by the EEOC which discusses and defines what is meant by the "reasonable factor other than age" (RFOA) defense under the Age Discrimination in Employment Act (ADEA).

Not familiar with it? The Employer Law Report sums it up nicely here:

In Smith v. City of Jackson and Meacham v. Knolls Atomic Power Company, the Supreme Court held that the RFOA defense acts as a complete bar to disparate impact liability where an employer demonstrates that its facially neutral policy or practice, which had a disparate impact on older workers, was based on a reasonable factor other than the plaintiff’s age. Although the RFOA defense operates similarly to Title VII’s business necessity defense, this defense under the ADEA has traditionally been more “employer-friendly” because it preserves an employer’s right to make reasonable business decisions while protecting older workers from facially neutral employment criteria that arbitrarily limit their employment opportunities without requiring a showing of business necessity.

Here the EEOC has proposed a "prudent" employer standard with several (non-exhaustive) factors to figure out if the employer's decision makes sense.

Public comment is open until April 19, 2010.

The World of Work blog suggests that:

an employer who is considering a change in employment practices -- such as a layoff, change in employment qualifications, etc. -- should examine the impact of the change to determine whether it may create an adverse impact based on age. If it appears that it may, the employer should then apply the EEOC's six factors to see if it can adequately defend the change as based on reasonable factors other than age. If the change does not appear to pass each of the EEOC's six factors, the employer may want to consider altering the change to reduce the impact or abandoning it altogether.

That seems like a sensible solution for now. But there's also the tried and true view as well: If your layoff is going to have a disparate impact on older workers, you better have a really good reason for your decision. Otherwise, take a look at the underlying data again.

Plaintiffs in Ricci v. DeStefano Move to Disqualify District Court Judge

dschwartz@pullcom.com (Daniel Schwartz) — Wed, 24 Feb 2010 13:44:41 GMT

The Ricci v. DeStefano case (now on remand from the U.S. Supreme Court) has vanished from the headlines, but the case is still kicking around as the courts and the parties attempt to fashion a remedy that fits with the judgment in favor of the plaintiffs.

For some time now, however, the plaintiffs have made some oral arguments at various proceedings that the United States District Court Judge Janet Arterton should recuse herself from the case. Those accusations rose to a new level on Tuesday when they filed a lengthy motion to that effect.

You can download the motion here, and the accompanying memorandum of law here.

The judge has steadfastly denied thus far that she has done anything improper whatsoever in transcripts to various proceedings. .

I would be remiss if I did not note that these types of motions should be viewed skeptically for a number of reasons, most particularly that they don't claim to present a balanced picture. The judge is also limited in how she can respond publicly, and thus, there is much more to these issues than is being discussed.

But ask yourself when you read the motions: Are the plaintiffs justified in making claims here? Can a fear that the judge will be impartial be enough no matter how unreasonable that fear is? Is a judge barred from having public outreach on a case just because it is high-profile? And if a judge is later reversed by the U.S. Supreme Court, does that "taint" the original judge from hearing the case on remand?

I'm sure a lot of people will answer "no" to these questions. Take another example, the plaintiffs suggest that there was something improper about the judge attending oral argument in the case before the Supreme Court saying it was unusual. But even if that's the case, the question arises: What is wrong with that behavior? How does that mean that the judge will be impartial?

There is no timeframe yet on when the judge will rule on the recusal motion and the City of New Haven has 21 days to respond.

Supreme Court Hears Arguments on Title VII Test Case; Will It Be Significant For Employers Or Just Academics?

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 23 Feb 2010 12:44:23 GMT

There is a common misconception about the U.S. Supreme Court that all cases that it rules on are created equal.

They're not. Some take on more significance than others.

Case in point: Lewis v. City of Chicago, which was argued yesterday (transcript available here). I've previously discussed the case in an earlier post.

The SCOTUSBlog, as usual, has the details about what the case is about:

At issue is whether the 300-day statute of limitations restricting disparate impact challenges brought pursuant to Title VII of the Civil Rights Act of 1964 is triggered every time an employer makes an employment decision based on results from an impermissible employment examination or instead begins to run only when the test results are first announced.

Now, according to the WSJ Law Blog, it's possible that the court could expand its decision to address, what one attorney called "The flip side of Ricci [v. DeStefano" -- the firefighter discrimination case against the City of New Haven decided last year.

But a review of the transcript of yesterday's oral argument seems to suggest that a more narrow ruling on when certain disparate impact claims can be brought is likely to be the outcome. There's lots of discussion about the policy behind statute of limitations and the language of Title VII itself.

What would that mean for employers? Probably not much. An expanded statute of limitations would just create some more headaches more employers and more requirements for record-keeping. But I have a hard time thinking that the Court would be amenable to a open-ended time limitation. A more restricted reading of the statute wouldn't change much for employers either.

So, while the the U.S. Supreme Court considers the case (a decision is expected before June), let's wait and see whether this case will truly be of significance for employers. Or whether it just becomes the topic for academics to discuss in law journals.

Social Media Guidelines and Policies: Do Your Employees Know the Ground Rules Too?

dschwartz@pullcom.com (Daniel Schwartz) — Mon, 22 Feb 2010 19:02:52 GMT

Early on when writing the blog, I came across an issue that was so exciting to write about that I spent an evening crafting it up. It had links, pictures, and was well-sourced.

But then I discovered that the issue involved a client of the law firm. Uh-oh. It was then that I decided it was time to set up my own set of internal rules that I would try to run the blog by.

I summarized that process in an entry entitled -- "The Blog Post I Didn't Publish -- Will Your Employees Do the Same?" nearly 30 months ago.

In the past three years, I've worked hard to play by those parameters. Those include:

No discussions of cases I'm working on or that others from the firm are working on, without explicit client approval.
No references to clients, again, without approval from the client first
No use of confidential or "private" (i.e. not protected by privilege but still not public) information.

There are other informal guidelines that I also try to follow including the concepts outlined in IBM's Social Media policy about adding value and being respectful.

Why do I bring this up again now? Because there have been two stories that I've been asked to write about by some readers in recent weeks. They've made national headlines and it would be natural to write about those issues. But I've had to explain that those matters fall within the guidelines I've established for myself and, as a result, I would not be writing about it.

A few people seemed a bit surprised by that. As one said, "You have RULES for your blog?" Well, yes I do. Or try to.

Which leads me to this: Do your employees know the rules or guidelines that they are to play by when it comes to using Twitter, Facebook, or other types of social media? If you're not confident about the answer to that question, perhaps it's time to think about some guidelines to share with them. Otherwise, you leave it to their own discretion, which may -- or may not -- be the same as your level of discretion.

Need a place to start? Compliance Building has a wonderful list of 150+ guidelines for your consideration.

Employer's Affirmative Defense in Sexual Harassment Cases Gets a Trimming by Second Circuit

dschwartz@pullcom.com (Daniel Schwartz) — Mon, 22 Feb 2010 12:28:03 GMT

In sexual harassment cases, the U.S. Supreme Court (in what's known as the Faragher/Ellerth cases) over a decade ago laid out the rules for when an employer could use an "affirmative defense" -- in Monopoly terms, a "Get Out of Jail" free card.

This defense can be used by employers in hostile work environment cases. In order to win, an employer must show two elements: " that (1) 'the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior,' and (2) 'the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'”

But what happens when the victim of alleged harassment just reports it to her supervisor -- who happens to be the alleged harasser? Can the employer claim that the employee should've reported it to other people too?

The Second Circuit, in a decision (Gorzynski v. JetBlue Airways Corp.) released last Friday, concluded that the employer does not automatically get to use the affirmative defense saying that it will depend on a case-by-case basis whether it was unreasonable for the employee to have to complained to others. The fact that a sexual harassment policy is written to allow for other is not a sure-fire defense; it depends on the facts and circumstances of the matter.

The Wait a Second blog does a terrific job (as usual) outlining this case further. (Note: The allegations are fairly graphic as these types of cases go). It hits the nail on the head here by getting the key takeaway from the court's decision:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints. There is no requirement that a plaintiff exhaust all possible avenues made available where circumstances warrant the belief that some or all of those avenues would be ineffective or antagonistic. Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser. Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In some instances, it may be unreasonable for a victim of harassment to complain only to the harasser because, as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open. But, in other cases, there may be reasons why the plaintiff failed to complain to those other than the harasser, who are listed as available. And in such cases, a genuine issue of fact may be raised as to whether it was reasonable not to pursue other options.

What does this mean for employers in Connecticut (the Second Circuit, as a reminder, covers New York, Connecticut and Vermont)?

From this case, it appears that having a well-drafted sexual harassment prevention policy is not enough to escape liability in every sexual harassment cases. Rather, employers must make sure that the individuals who are designated as receiving such complaints are viewed as receptive to complaints and responsible enough to follow up. Employers should take the time periodically to re-publicize the policy and ensure that front-line supervisors and human resources administrators know how to handle such complaints. Additional training may be needed in some instances as well.

Do You Know the Muffin Man? Bimbo Prevents Him From Switching Jobs

dschwartz@pullcom.com (Daniel Schwartz) — Thu, 18 Feb 2010 13:11:58 GMT

What's the recipe for a successful enforcement of a restrictive covenant case? Well, if you missed our webinar yesterday, there's a case out of Pennsylvania that takes that discussion out of the kitchen and into the real world.

Ever eat Thomas' English Muffins and wondered how they make all those "nooks and crannies"? Well, the first thing you should know is that Mr. "Thomas" isn't the owner of the english muffins anymore; a company called Bimbo Bakeries is. And Bimbo got stirred up quickly when it found out that its secret might be let out of the oven.

Allegedly, former Bimbo Bakeries executive Chris Botticella knew the key to making the nooks and the crannies. And, although he allegedly told his employer that he planned to retire, he planned to work for Hostess (makes of such classics such as Twinkies and Ding Dongs). Bimbo thought that was a half-baked idea, and asked a court for an injunction claiming that it was "inevitable" that he would disclose those secrets to Hostess.

According to published reports, Botticella is one of only seven people in the world who knows all the secrets on how to manufacture those muffins.

The judge gobbled up Bimbo's arguments and found that even though Botticella had not yet disclosed the secrets, it was inevitable that he would. Through his attorney, the "muffin man" has said he will appeal.

The doctrine of "inevitable disclosure" in Connecticut has been applied in some cases, though it is by no means a blue-ribbon argument. Employers who seek to use that argument, should grill their attorneys about the limits of such a doctrine and realize that the doctrine should be sparingly used.

And, if you're wondering, the lawsuit does not say that Botticella lives on Drury Lane -- only that he lives in California. If you've forgotten the words, you can find those lyrics and the song below. (You'll thank me when you are still humming the tune hours later.)

Free Webinar on Restrictive Covenants and What Employers Need to Know Now

dschwartz@pullcom.com (Daniel Schwartz) — Wed, 17 Feb 2010 12:51:22 GMT

Have you taken steps to prevent your business from walking out the door? That issue -- and the overall use of restrictive covenants will be the subject of today's free webinar at noon. You can sign up here.

Our monthly webinar series (after taking the holiday period off) runs on the second Wednesday of each month.

In our past webinars, attendees have asked if we could post the presentation materials ahead of time. You can view those materials here.

Five Questions with... Mathew Krukoski, CPA on Employee Benefit Plan Audits

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 16 Feb 2010 13:52:10 GMT

Continuing our occasional series of interviews with people of interest to human resource professionals in Connecticut, today we talk with Mathew Krukoski, CPA of J.H. Cohn's Glastonbury, CT offices. Matthew is a Senior Manager there and we had the opportunity to talk about the importance of having auditors review employee benefit plans, particularly as that employer grows.

We'll have some more of these types of interviews over the next few weeks as well.

1. You've been doing a lot more audits lately. For a company that is growing, at what point do they need to start bringing in an auditor to review their employee benefit plans?

A compliance review can be performed at any time. However, generally speaking, the Department of Labor requires an audit when a Company's employee benefit plan exceeds 100 eligible participants at the beginning of the plan year. For growing companies with an existing plan, the filing requirements contain a provision, known as the "80-120 Participant Rule", that allow a plan sponsor to elect a deferral of the audit requirement until participation has exceeded 120 eligible participants at the beginning of the plan year. Once participation in a plan reaches 121 eligible participants or more, an audit will be required.

2. What types of tasks do you perform during an employee benefit plan audit?

An audit of a plan is not only for compliance with accounting principles generally accepted in the United States of America but also requires a review of its operations for compliance with Department of Labor and Internal Revenue Service laws and regulations. Procedures typically include a review of the plan's internal control environment, testing of pertinent plan transactions (i.e., contributions, distributions, participant loans, etc…) and to ensure consistent application of the plan's provisions. A sample of plan transactions are reviewed and tested at the plan level as well as for individual plan participants. The end product of an audit is a complete set of financial statements and auditor's opinion that are required to be attached to the plan's Form 5500 filing.

3. What are some common issues that you see when doing an audit?

Our audit compliance testing have revealed errors related to the calculation of participant contributions, the calculation of employer matching or profit-sharing contributions, the distribution of appropriate vested account balances and the utilization of a plan's stated definition of compensation. However, for contributory defined contribution plans, the most common deficiency relates to the timely remittance of employee contributions.

4. A big topic of discussion lately has been the new 403(b) Plan Requirements. Can you talk about that a bit and what employers ought to be considering with respect to these plans?

In the past, sponsors of 403(b) plans had very limited reporting requirements. Beginning with the 2009 Form 5500 filings, the reporting requirements of these plans will become more in line with that of traditional 401(k) plans, including the Department of Labor's audit requirement. Obviously, employers of large plans will need to engage an independent qualified public accountant to perform the audit of their 403(b) plan. However, the first item that a plan sponsor should focus on is the preparation of their plan records. This may involve talking with their ERISA attorney to clarify the need for an audit, talking with their service provider for the timing and availability of the plan's financial information and potentially engaging the services of a third-party administrator to coordinate the recordkeeping and other compliance aspects of plan administration. Plan sponsors of 403(b) plans will need to allocate a significant amount of time and resources this year to understand and comply with the new reporting requirements.

5. What are the other hot topics that you've been discussing with your clients?

Having a large concentration of clients in this specialized audit area, we make every effort to look beyond the compliance aspects of an engagement in order to provide plan sponsors with constructive, value-added comments and suggestions. Compliance is very important, but we also remind plan sponsors of their fiduciary responsibilities as well. This may include understanding the terms of their plan, the appropriate selection and monitoring of service providers, timely contributions to fund benefits and avoiding prohibited transactions. One of the most important aspects of being a fiduciary is the appropriate monitoring of the plan's investment performance, which includes an understanding and analysis of plan fees and expenses. With market performance as volatile as ever, plan fiduciaries should understand that it is their responsibility to provide participants with the best possible investment alternatives.

Connecticut Legislature Consider Proposals to Allow Employees to Circumvent CHRO

dschwartz@pullcom.com (Daniel Schwartz) — Fri, 12 Feb 2010 13:51:45 GMT

The Connecticut General Assembly is back in session and that means that proposals affecting employers are being considered in their earliest stages.

For example, at yesterday's meeting of the Labor & Public Employees Committee several concepts were under consideration, including providing employees the option of not having to first file their employment discrimination claim with the CHRO, but instead proceeding directly to court. As part of this proposal, the employee would have a two year statute of limitation to bring such claims (up from 180 days under the current law). That proposal has yet to be introduced as a formal measure yet.

But the work of the committee moves forward and the Committee has now scheduled a public hearing on various other proposals as well. That hearing is scheduled for February 18, 2010 at 3 p.m. The full agenda is listed here. Among the proposals being floated is a bill that would ban the use of credit reports by employers, and another that would allow the use of debit cards to pay payroll.

It's much too early to make any predictions about this legislative session. Several proposals will never go beyond the committee and many are raised as favors to constituents. Of course, we're likely to see the paid sick leave bill be discussed yet again, but only time will tell whether the legislature will want to tackle that in a difficult budget year.

You can track the status of many of the labor-related bills here.

Connecticut Legislature Considers Proposals to Allow Employees to Circumvent CHRO

dschwartz@pullcom.com (Daniel Schwartz) — Fri, 12 Feb 2010 13:51:45 GMT

The Connecticut General Assembly is back in session and that means that proposals affecting employers are being considered in their earliest stages.

You can track the status of many of the labor-related bills here.

CBA Labor & Employment Law Committee Meeting with New CHRO Executive Director

dschwartz@pullcom.com (Daniel Schwartz) — Thu, 11 Feb 2010 16:25:36 GMT

Kudos to Robert Brothers, the new Executive Director of the CHRO, for agreeing to meet with the Connecticut Bar Association's Labor & Employment Law Committee. It is now set for February 25, 2010 at 6 p.m. at the Crowne Plaza in Cromwell, Connecticut. Full details are available here as well as instructions on how you can RSVP to the dinner.

Attorney Brothers will take questions, comments and suggestions for improving the CHRO. In particular, he would like to hear from attorneys about the potential for e-filing, streamlining CHRO services and how the CHRO can best serve its constituents within its current budget and with proposed cuts to its budget next year.

Mr. Brothers has made it known in various press accounts that he is taking his new role seriously. And as I said last month, meeting with the CBA would be a terrific step towards rebuilding the agency's reputation among practitioners. So, you have to applaud him for his willingness to do so.

If you're unable to make last this month, what questions do you have for Mr. Brothers? Feel free to use the comment section below and I'll try to pass them along for consideration at the February 25th event.

(It's) Snow Joke: Weather Plays Games with Employers -- A Recap

dschwartz@pullcom.com (Daniel Schwartz) — Wed, 10 Feb 2010 19:55:32 GMT

While the DC and Baltimore areas continue to struggle with snow, hardy New Englanders are supposed to be battle-tested for snow storms. And, for the most part we are. Roads are quickly cleared overall and we realize the importance of parking bans to get streets in passable condition.

Except today, the meteorologists won. Many employers closed or closed early. Schools across the state closed. And even by this afternoon, it seemed as though that was a premature call. (I know, hindsight is 20/20). Certainly, it is from the "dogsled"-type conditions that was forecasted.

I've often covered the subject of snow days on this blog (most recently in December) and it remains a popular topic. Several other blogs have tapped into area in the last few days. Jon Hyman suggested that any severe weather policy be communicated early and that issues such as an employee's exempt status be examined closely.

Kris Dunn, of the HR Capitalist blog, tackles the subject from a motivational question noting how the weather continually drains productivity with the constant question: "Are the offices going to be open tomorrow?"

One of my favorite blogs, the Delaware Employment Law Blog, looks at the exempt classification issue as it relates to snow days.

Snow days were much more fun as kids. There's hot chocolate, snow angels, and the prospect of daytime television. For employers and human resources professionals, it makes a tough day just a bit tougher.

Paycheck Fairness Act - Coming Soon?

dschwartz@pullcom.com (Daniel Schwartz) — Tue, 09 Feb 2010 03:47:06 GMT

As those who have been following my tweets know, I have been at the American Bar Association's House of Delegates and midyear meetings. There's lots of substance to these meetings and you can certainly follow along with the ABA Journal.

Among the topics discussed today, was the Paycheck Fairness Act now pending in Congress. If you are not familiar with it, you should be because by all accounts, it's moving front and center this year as an important piece of legislation for the Obama Administration and others. Rep. Rosa DeLauro of Connecticut is the primary sponsor of the bill in the House of Representatives.

John Phillips reported on this recently. As a result, employers should take stock of their compliance programs and certainly begin a review (if it is not done regularly) of your current compensation procedures.

What does the bill do? John has a good summary but some of the key changes would be to revise the remedies for sex discrimination in the payment of wages by permitting uncapped punitive and compensatory damages and limit employers’ ability to defend against EPA claims. The bill would also prohibit an employer from retaliating against an employee who inquires about, discusses, or discloses his/her own wage or that of another employee unless the disclosing employee has access to that wage information as part of his/her essential job function.

Do You Really Want To Take on the 350 Million Pound Gorilla in the Room?

dschwartz@pullcom.com (Daniel Schwartz) — Wed, 03 Feb 2010 17:50:49 GMT

So, you're an employer and you've just been sued for disability discrimination. Allegedly, you fired an employee who was out of work without a legitimate reason. You had heard grumblings that the worker had actually taken a four-day weekend in Vail but never had definitive proof, so you just relied on the no-call/no-show policy to say the employee abandoned his job.

But what now? You think "I know where I'll look -- Facebook! (After all, Facebook as 350 million users now!)" Surely, you think, there must be pictures, or a wall post, or a status update, or SOMETHING that can prove that the employee was really just having fun.

You write a nice letter to Facebook first asking for information about the individual. No response.

You then ask opposing counsel for copies of the Facebook page, but they refuse citing relevancy and privacy considerations.

So, you say, we're going to subpoena Facebook. Problem solved.

Not so fast. You're likely to get a response from Facebook that can be summarized with three simple words: Stored Communications Act. And you're not likely to get the information you want as a result. Facebook takes the position that the content of users on their site is protected by this law.

Is it right? That's still unclear, but what is clear is that Facebook is willing to fight about its response if forced. So spoke Facebook Deputy General Counsel Mark "Howie" Howitson in an entertaining keynote speech at yesterday's Legal Tech conference. (A full recap is here.)

So how to avoid this fight while still getting the information you desire?

Review your own computer systems. Very likely, you've told employees that you monitor their computers and that the computers remain the property of the company. If so, there may be e-mails that you can track down in the system that might contain that information that do not violate the SCA.
Some employees might carry company smart phones to access Facebook. Howitson said it was unclear if that type of usage was covered under the SCA.
And finally, you can always access this information if you get the person's "lawful consent". But what happens if the court "orders" the former employee to "consent" to the release of information? That's a gray area as well.

What's the takeaway for employers? Before you want to go peeking behind Facebook's privacy curtain, understand the rules that apply and be prepared for a fight. And learn about the Stored communications Act.