Personnel Files, Random Drug Tests and FMLA Issues Examined at Connecticut Automotive Retailers Association Seminar

LR-hands-over-laptopkeysOn October 29 and November 12, members of Pullman & Comley, LLC’s Labor, Employment Law and Employee Benefits Department presented an intensive seminar to the Connecticut Automotive Retailers Association.  Significant highlights included:

Personnel Files:  Under the recent amendments to the Connecticut’s Personnel Files Act, Public Act No. 13-176, all employers need to be aware that when you create a record of a disciplinary action, provide a notice of termination, or produce a written evaluation of an employee’s performance, you must advise the employee in writing that he/she has the right to submit a written response.  The Department of Labor has the discretion to penalize employers up $500 for each instance that it fails to comply with this new law.

Drug Testing:  Employers may randomly drug test employees if they fall within certain federal statutory guidelines (primarily interstate drivers and certain safety sensitive positions).  But Connecticut employers may also drug test certain safety sensitive and high risk employees, after receiving permission from the State Department of Labor to do so.  A list of the types of employees who the Department of Labor has said can be drug tested under state law can be found here.  Note that you may not randomly test employees even in these categories without first obtaining permission from the DoL.  Connecticut employers may not randomly drug test any other employees.

Accommodation of Disabled Employees:  If you have an employee or job applicant who claims to have a physical or mental disability, you must engage in an interactive process with that employee to determine whether the employee is qualified for the position, whether a reasonable accommodation must be offered to the employee, and whether that accommodation would be an undue hardship to your company.

FMLA Issues:  Make sure that if an employee is seeking time off for a medical condition, you provide him/her with an FMLA designation form, available here.  Also make sure that the employee and his/her physician fill out an FMLA medical certification form, which you can get here.   Before the employee attempts to return to work from FMLA leave make sure that you receive a report from his/her doctor clearing him/her for work and stating what, if any, medical restrictions he/she has.

Exempt Employees:  Make sure you compensate all FLSA-exempt employees on a salary basis (of no less than $475 per week) and not with an hourly wage.  Even if an employee is properly classified as exempt, if you pay that employee on an hourly basis rather than a salary, you will lose the exemption and may owe overtime.

Independent Contractors: Both the federal and Connecticut Departments of Labor are devoting significant resources to enforcing laws against misclassifying employees as independent contractors.  The costs of misclassification – including unemployment tax, workers compensation insurance premiums, penalties, minimum wage and/or overtime pay, and other tax consequences – can be very high.  Remember that the more control you exercise over a worker and the more he/she depends on you for his/her livelihood, the more likely it is that he/she should be classified as an employee.  A worksheet used by the Connecticut DoL to determine whether an individual is a contractor or an employee is available here .

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