Wage and Hour Issue Articles
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.
Under the Department’s proposal, the salary test would not be satisfied unless the
employee earns $970 per week ($50,440/year) versus the current $455 ($23,660). Also, a
separate highly compensated employee exemption, which is not recognized in Connecticut, is
currently met if the employee earns at least $100,000, regardless of the duties performed. The
minimum earnings for the exemption would now increase to $122,148 per year. Both the highly
compensated rate and the salary test rate would then increase annually based on inflation.
The government estimates that some 5 million additional employees will become non-
exempt and eligible for overtime pay if the rule is implemented. This means that about 50% of
all current exempt employees would become overtime eligible, resulting in increased earnings of
about 1 to 1.2 billion dollars more each year for such workers.
A prime motivating force for the change is the lack of real wage growth for a generation
of employees. The current $23,660 rate places a family of four below the federal poverty level,
and this is one way to move more people out of poverty conditions.
Independent Contractors
Separately, the USDOL issued an interpretation, No. 2015-1, which makes it tougher for
employers to prove a worker is an independent contractor under the FLSA. Historically, the
default position has been that workers are employees, unless the employer can prove independent
contractor status. By classifying someone as an independent contractor the employer avoids the
FICA match, tax withholding, unemployment taxes, workers compensation coverage, and the
payment of minimum wages and overtime.
Traditionally, the courts have used the “economic realities test” to determine employment
status under the FLSA. The test focuses on whether the worker is economically dependent on
the employer, or is in business for himself. While the USDOL’s interpretation continues to
employ the economic realities test, it does so with an expansive reading of the FLSA’s definition
of “employ,” which means “to suffer or permit to work.” While the law’s definition of “employ”
has not changed, the USDOL has taken the position that the definition should be read very
broadly, and suggests that most independent contractors today are improperly classified.
Given the USDOL’s position, employers must now be able to prove:
1. The work done by the contractor is not an integral part of the employer’s business;
2. The contractor’s managerial skill impacts the possibility of not only profit, but also of loss.
For example, the contractor’s decision to hire others, purchase materials and equipment,
advertise, rent space, and manage time tables may reflect managerial skills that will affect the
opportunity for profit or loss. Merely working more time to get the job done is not considered a
managerial skill, but is more akin to a worker working overtime and would not be demonstrative
of contractor status;
3. The investment made by the contractor goes beyond the specific job being performed for the
employer, and should be in scale with that of the employer. In essence the contractor’s
investment should not be relatively minor compared to that of the employer.
4. The work requires special skill and initiative. Such skills must go beyond technical ability and
also encompass the exercise of business judgment and initiative.
5. The relationship is not one of permanency or indefiniteness. A person truly in business for
themselves normally does not work for a single customer on a continuous or repeated basis; and
6. That the contractor controls the meaningful aspects of the work and is viewed as conducting
his own business.
While these elements have been relied on in the past under the economic realities test, the
DOL’s new approach begins with the assumption that the FLSA’s definition of employment, “to
suffer or permit to work” must be broadly applied when analyzing each element of the economic
realities test to determine whether the worker is really in business for themselves, or is
economically dependent on the employer. Employers should assume that proving independent
contractor status will be more difficult in the future, and that the DOL will be much more
aggressive in enforcing the law. In fact DOL and the IRS will now work together in a more
coordinated effort, and DOL has requested $32 million additional dollars to hire 300 new
enforcement officers and support staff.
Aside from these new federal developments, Connecticut employers must still meet a
separate test, the ABC test, to pass muster under state law. The ABC test is comprised of three
elements. Aside from proving the worker is customarily engaged in an independently established
trade, occupation, profession or business of the same nature as the service being provided, the
employer must also show the worker is free from direction and control in the performance of the
service; and that the worker either performs services outside the usual course of the employer’s
business, or outside all of the employer’s places of business. Arguably, this is an even tougher
test to pass.
The bottom line is that employers should carefully review any independent contractor
relationships it has and verify it can pass both tests, or be prepared to face aggressive regulatory
action.
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.
Under the Department’s proposal, the salary test would not be satisfied unless the
employee earns $970 per week ($50,440/year) versus the current $455 ($23,660). Also, a
separate highly compensated employee exemption, which is not recognized in Connecticut, is
currently met if the employee earns at least $100,000, regardless of the duties performed. The
minimum earnings for the exemption would now increase to $122,148 per year. Both the highly
compensated rate and the salary test rate would then increase annually based on inflation.
The government estimates that some 5 million additional employees will become non-
exempt and eligible for overtime pay if the rule is implemented. This means that about 50% of
all current exempt employees would become overtime eligible, resulting in increased earnings of
about 1 to 1.2 billion dollars more each year for such workers.
A prime motivating force for the change is the lack of real wage growth for a generation
of employees. The current $23,660 rate places a family of four below the federal poverty level,
and this is one way to move more people out of poverty conditions.
Independent Contractors
Separately, the USDOL issued an interpretation, No. 2015-1, which makes it tougher for
employers to prove a worker is an independent contractor under the FLSA. Historically, the
default position has been that workers are employees, unless the employer can prove independent
contractor status. By classifying someone as an independent contractor the employer avoids the
FICA match, tax withholding, unemployment taxes, workers compensation coverage, and the
payment of minimum wages and overtime.
Traditionally, the courts have used the “economic realities test” to determine employment
status under the FLSA. The test focuses on whether the worker is economically dependent on
the employer, or is in business for himself. While the USDOL’s interpretation continues to
employ the economic realities test, it does so with an expansive reading of the FLSA’s definition
of “employ,” which means “to suffer or permit to work.” While the law’s definition of “employ”
has not changed, the USDOL has taken the position that the definition should be read very
broadly, and suggests that most independent contractors today are improperly classified.
Given the USDOL’s position, employers must now be able to prove:
1. The work done by the contractor is not an integral part of the employer’s business;
2. The contractor’s managerial skill impacts the possibility of not only profit, but also of loss.
For example, the contractor’s decision to hire others, purchase materials and equipment,
advertise, rent space, and manage time tables may reflect managerial skills that will affect the
opportunity for profit or loss. Merely working more time to get the job done is not considered a
managerial skill, but is more akin to a worker working overtime and would not be demonstrative
of contractor status;
3. The investment made by the contractor goes beyond the specific job being performed for the
employer, and should be in scale with that of the employer. In essence the contractor’s
investment should not be relatively minor compared to that of the employer.
4. The work requires special skill and initiative. Such skills must go beyond technical ability and
also encompass the exercise of business judgment and initiative.
5. The relationship is not one of permanency or indefiniteness. A person truly in business for
themselves normally does not work for a single customer on a continuous or repeated basis; and
6. That the contractor controls the meaningful aspects of the work and is viewed as conducting
his own business.
While these elements have been relied on in the past under the economic realities test, the
DOL’s new approach begins with the assumption that the FLSA’s definition of employment, “to
suffer or permit to work” must be broadly applied when analyzing each element of the economic
realities test to determine whether the worker is really in business for themselves, or is
economically dependent on the employer. Employers should assume that proving independent
contractor status will be more difficult in the future, and that the DOL will be much more
aggressive in enforcing the law. In fact DOL and the IRS will now work together in a more
coordinated effort, and DOL has requested $32 million additional dollars to hire 300 new
enforcement officers and support staff.
Aside from these new federal developments, Connecticut employers must still meet a
separate test, the ABC test, to pass muster under state law. The ABC test is comprised of three
elements. Aside from proving the worker is customarily engaged in an independently established
trade, occupation, profession or business of the same nature as the service being provided, the
employer must also show the worker is free from direction and control in the performance of the
service; and that the worker either performs services outside the usual course of the employer’s
business, or outside all of the employer’s places of business. Arguably, this is an even tougher
test to pass.
The bottom line is that employers should carefully review any independent contractor
relationships it has and verify it can pass both tests, or be prepared to face aggressive regulatory
action.
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, Inc. 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.
Under its new ruling, employees are protected from retaliation if they file oral or written
complaints to either a government agency or a supervisor. The complaint must, however, be
sufficiently clear and detailed for a reasonable employer to understand it, in light of both content
and context, as an assertion of rights protected by the statute and a call for protection. Mere
hallway grumblings are not enough.
In the instant case, the employee, a security guard, complained to his supervisor about a
series of non-payments, late payments, and unauthorized payroll deductions. The supervisor’s
response was that he would be paid when the supervisor felt like it. The supervisor then pointed
a gun at the employee, which the employee took as a sign that he was being discharged. The
employee then filed claims of non-payment and retaliation based on the discharge.
The Court’s ruling brings it in line with other Circuits ruling on the issue, as well as the
Department of Labor’s position. It also places FLSA complaints on equal footing with the law
regarding retaliation under federal discrimination law, which only requires an employee to
oppose discriminatory practices. Internal oral and written complaints are sufficient to show
opposition.
Given this ruling, employers should be prepared to respond to internal complaints
claiming violations of the wage laws, and take steps to guard against retaliation toward those
making them.
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, Inc. 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.
Under its new ruling, employees are protected from retaliation if they file oral or written
complaints to either a government agency or a supervisor. The complaint must, however, be
sufficiently clear and detailed for a reasonable employer to understand it, in light of both content
and context, as an assertion of rights protected by the statute and a call for protection. Mere
hallway grumblings are not enough.
In the instant case, the employee, a security guard, complained to his supervisor about a
series of non-payments, late payments, and unauthorized payroll deductions. The supervisor’s
response was that he would be paid when the supervisor felt like it. The supervisor then pointed
a gun at the employee, which the employee took as a sign that he was being discharged. The
employee then filed claims of non-payment and retaliation based on the discharge.
The Court’s ruling brings it in line with other Circuits ruling on the issue, as well as the
Department of Labor’s position. It also places FLSA complaints on equal footing with the law
regarding retaliation under federal discrimination law, which only requires an employee to
oppose discriminatory practices. Internal oral and written complaints are sufficient to show
opposition.
Given this ruling, employers should be prepared to respond to internal complaints
claiming violations of the wage laws, and take steps to guard against retaliation toward those
making them.
The U.S. Supreme Court recently ruled that time spent by employees waiting to undergo
workplace security screenings is not compensable. Integrity Staffing Solutions, Inc. 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.
In ruling against the employees, the Court reviewed the history of the Fair Labor
Standards Act and the subsequent Portal to Portal Act, which narrowed the definition of
compensable work time. While any time spent performing “principal activities” is compensable,
under the Portal to Portal Act, time spent on “preliminary” or “postliminary” activities, which are
those performed prior to or after an employee’s “principal activities,” is non-compensable. To
be considered a “principal activity” the work must be an “integral and indispensable” part of the
work the employee is hired to perform. Stated differently, to be considered paid time, the
activity must be necessary, and if eliminated would prevent the employee from performing the
job for which they were hired.
The Court went on to provide examples from prior cases to differentiate paid and unpaid
time. Found compensable was time spent by battery-plant employees showering and changing
clothes after their shift because they worked with toxic chemicals, and such showering was an
integral and indispensable part of the safe performance of their job. Also, time spent by
meatpackers sharpening their knives was a necessary activity, which if not performed would
prevent an employee from performing their central job of butchering animals.
By contrast, time spent clocking in or out, changing clothes or showering where such
activities were merely for the convenience of the employee, and waiting for paychecks to be
disbursed, has been found to be non-compensable.
Given this background, the Court found that the time spent waiting to undergo security
screenings in the instant case was non compensable because the screenings were not an integral
and indispensable element of the employees’ principal duties, which were to retrieve and
package products for shipment to customers. In essence, with or without the screenings, the
employees could still fully perform their principal warehouse tasks.
The Court specifically rejected the employees’ two main arguments. Just because the
screenings were required by the employer does not convert the time to paid time. As stated by
the Court, applying such a standard would “sweep into principal activities the very activities the
Portal to Portal Act was designed to address.” Further, even if the amount of time could have
been reduced by adding screeners or staggering shift times, doing so would not have changed the
fact that any time spent in the screening process was unrelated to the principal duties for which
the employees were hired.
This case illustrates the need to carefully analyze any non-compensable time spent by
employees at work in order to make sure such unpaid time meets the tests enunciated by the
Court.
workplace security screenings is not compensable. Integrity Staffing Solutions, Inc. 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.
In ruling against the employees, the Court reviewed the history of the Fair Labor
Standards Act and the subsequent Portal to Portal Act, which narrowed the definition of
compensable work time. While any time spent performing “principal activities” is compensable,
under the Portal to Portal Act, time spent on “preliminary” or “postliminary” activities, which are
those performed prior to or after an employee’s “principal activities,” is non-compensable. To
be considered a “principal activity” the work must be an “integral and indispensable” part of the
work the employee is hired to perform. Stated differently, to be considered paid time, the
activity must be necessary, and if eliminated would prevent the employee from performing the
job for which they were hired.
The Court went on to provide examples from prior cases to differentiate paid and unpaid
time. Found compensable was time spent by battery-plant employees showering and changing
clothes after their shift because they worked with toxic chemicals, and such showering was an
integral and indispensable part of the safe performance of their job. Also, time spent by
meatpackers sharpening their knives was a necessary activity, which if not performed would
prevent an employee from performing their central job of butchering animals.
By contrast, time spent clocking in or out, changing clothes or showering where such
activities were merely for the convenience of the employee, and waiting for paychecks to be
disbursed, has been found to be non-compensable.
Given this background, the Court found that the time spent waiting to undergo security
screenings in the instant case was non compensable because the screenings were not an integral
and indispensable element of the employees’ principal duties, which were to retrieve and
package products for shipment to customers. In essence, with or without the screenings, the
employees could still fully perform their principal warehouse tasks.
The Court specifically rejected the employees’ two main arguments. Just because the
screenings were required by the employer does not convert the time to paid time. As stated by
the Court, applying such a standard would “sweep into principal activities the very activities the
Portal to Portal Act was designed to address.” Further, even if the amount of time could have
been reduced by adding screeners or staggering shift times, doing so would not have changed the
fact that any time spent in the screening process was unrelated to the principal duties for which
the employees were hired.
This case illustrates the need to carefully analyze any non-compensable time spent by
employees at work in order to make sure such unpaid time meets the tests enunciated by the
Court.
Effective January 1, 2015 the Connecticut minimum wage will increase to $9.15 from the
current $8.70 per hour. Further increases will bring the rate to $9.60 on January 1, 2016, and to
$10.10 on January 1, 2017. Public Act 14-1. The Act also changes the tip credit for hotel and
wait staff to $5.78 for 2015, $6.07 for 2016, and $6.38 for 2017, from the current $5.69. For
bartenders, the tip credit will move to $7.46, $7.82, and $8.23 in each respective year from the
current $7.34. Therefore, hotel, wait staff, and bartenders will not see an increase in earnings
comparable to non-tipped employees, unless patrons increase their tipping habits.
Learners, beginners and people under 18 may be paid 85% of the minimum wage for the
first 200 hours of their employment, or $7.78, $8.16 and $8.59 in each respective year.
current $8.70 per hour. Further increases will bring the rate to $9.60 on January 1, 2016, and to
$10.10 on January 1, 2017. Public Act 14-1. The Act also changes the tip credit for hotel and
wait staff to $5.78 for 2015, $6.07 for 2016, and $6.38 for 2017, from the current $5.69. For
bartenders, the tip credit will move to $7.46, $7.82, and $8.23 in each respective year from the
current $7.34. Therefore, hotel, wait staff, and bartenders will not see an increase in earnings
comparable to non-tipped employees, unless patrons increase their tipping habits.
Learners, beginners and people under 18 may be paid 85% of the minimum wage for the
first 200 hours of their employment, or $7.78, $8.16 and $8.59 in each respective year.
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.
Home care workers are typically hired directly by the person in need or their family, or
through a third party home care agency that directly employs the worker. A different set of rules
now applies to each hiring arrangement.
Under the new rules, where the individual in need, or their family, directly hire the home
care worker, the worker need not be paid the minimum wage, or overtime for work in excess of
40 hours in a workweek. This is because these workers are covered by a special “domestic
service exemption” in the federal Fair Labor Standards Act, and under Connecticut law. The
special exemption is lost, however, if the employee spends more than 20% of their time
performing “care” duties during any workweek. Also, if the worker performs any household
work that primarily benefits other members in the household beyond the person needing help,
such as cooking for the entire family or doing their laundry, they must be paid the minimum
wage and overtime for that week. Likewise if the worker performs any “medically related
services” such as catheter care, turning and repositioning, ostomy care, tube feeding, or physical
therapy, they must be paid the minimum wage and overtime for that week.
When the worker is hired through a third party agency, the agency must now pay the
worker the minimum wage and overtime, even if the worker only provides “companionship
services.” In effect, agencies may no longer take advantage of the “domestic service
exemption.” That exemption now only applies to workers hired directly by the person in need of
care, or their family.
However, agency employers can now count certain hours as non-work time under
specific conditions. Provided the employee is performing “companionship services” and is
required to be present at the worksite for a period of not less than 24 consecutive hours, the
employee and employer may agree in writing to exclude a regularly scheduled sleeping period of
not more than 8 hours from hours worked. This exception is only permitted if there are adequate
on-site sleeping facilities for the employee, and the employee actually sleeps at least 5 hours. If
the sleep period is interrupted by an assignment of work, the interruption shall be counted as
work hours. If because of the interruption, the employee fails to get at least 5 hours sleep, the
entire 8 hour period must be counted as work time. Also, even if the employee’s sleep time
exceeds 8 hours, only 8 hours may be excluded from hours worked. Where the employee is on-
site for less than 24 hours, all hours must count as work time, even if the employee sleeps or
engages in non-work activities during the period they are on-site.
These changes are expected to affect about 2 million home care workers who will now
receive both the minimum wage, and overtime pay for all hours worked in excess of 40 in a
workweek.
Given the complexity of this topic, I’ve prepared a table summarizing the rules:
Type of
Employment
Individual Employer
(Employed by person needing care
or their family)
Third Party Employer
(Agency)
Home Care Worker -As long as worker only provides
“companionship services” there is no
obligation to pay the minimum wage
or overtime
-In any week where over 20% of the
time is spent providing “care,” the
minimum wage and overtime must be
paid in that week
-In any week in which any time is
spent providing “medically related
services,” the minimum wage and
overtime must be paid
-In any week in which any time is
spent performing household work
primarily benefiting other than the
person in need of care, the minimum
wage and overtime must be paid
-Must pay the worker the
minimum wage and overtime
even if they only provide
“companionship services”
-Can have a written
agreement deducting up to 8
hours from work time for
sleep each day, if the worker
is on site at least 24 hours,
and gets at least 5 hours of
actual sleep. Any time spent
providing services during the
8 hour sleep period must be
paid.
Domestic Live-In
(Housekeeper)
-Worker must be paid minimum
wage, but not overtime
-Can have written agreement
deducting a reasonable number of
hours for sleep and other personal
time
-Worker must be paid
minimum wage and overtime
-Can have written agreement
deducting a reasonable
number of hours for sleep and
other personal time
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.
Home care workers are typically hired directly by the person in need or their family, or
through a third party home care agency that directly employs the worker. A different set of rules
now applies to each hiring arrangement.
Under the new rules, where the individual in need, or their family, directly hire the home
care worker, the worker need not be paid the minimum wage, or overtime for work in excess of
40 hours in a workweek. This is because these workers are covered by a special “domestic
service exemption” in the federal Fair Labor Standards Act, and under Connecticut law. The
special exemption is lost, however, if the employee spends more than 20% of their time
performing “care” duties during any workweek. Also, if the worker performs any household
work that primarily benefits other members in the household beyond the person needing help,
such as cooking for the entire family or doing their laundry, they must be paid the minimum
wage and overtime for that week. Likewise if the worker performs any “medically related
services” such as catheter care, turning and repositioning, ostomy care, tube feeding, or physical
therapy, they must be paid the minimum wage and overtime for that week.
When the worker is hired through a third party agency, the agency must now pay the
worker the minimum wage and overtime, even if the worker only provides “companionship
services.” In effect, agencies may no longer take advantage of the “domestic service
exemption.” That exemption now only applies to workers hired directly by the person in need of
care, or their family.
However, agency employers can now count certain hours as non-work time under
specific conditions. Provided the employee is performing “companionship services” and is
required to be present at the worksite for a period of not less than 24 consecutive hours, the
employee and employer may agree in writing to exclude a regularly scheduled sleeping period of
not more than 8 hours from hours worked. This exception is only permitted if there are adequate
on-site sleeping facilities for the employee, and the employee actually sleeps at least 5 hours. If
the sleep period is interrupted by an assignment of work, the interruption shall be counted as
work hours. If because of the interruption, the employee fails to get at least 5 hours sleep, the
entire 8 hour period must be counted as work time. Also, even if the employee’s sleep time
exceeds 8 hours, only 8 hours may be excluded from hours worked. Where the employee is on-
site for less than 24 hours, all hours must count as work time, even if the employee sleeps or
engages in non-work activities during the period they are on-site.
These changes are expected to affect about 2 million home care workers who will now
receive both the minimum wage, and overtime pay for all hours worked in excess of 40 in a
workweek.
Given the complexity of this topic, I’ve prepared a table summarizing the rules:
Type of
Employment
Individual Employer
(Employed by person needing care
or their family)
Third Party Employer
(Agency)
Home Care Worker -As long as worker only provides
“companionship services” there is no
obligation to pay the minimum wage
or overtime
-In any week where over 20% of the
time is spent providing “care,” the
minimum wage and overtime must be
paid in that week
-In any week in which any time is
spent providing “medically related
services,” the minimum wage and
overtime must be paid
-In any week in which any time is
spent performing household work
primarily benefiting other than the
person in need of care, the minimum
wage and overtime must be paid
-Must pay the worker the
minimum wage and overtime
even if they only provide
“companionship services”
-Can have a written
agreement deducting up to 8
hours from work time for
sleep each day, if the worker
is on site at least 24 hours,
and gets at least 5 hours of
actual sleep. Any time spent
providing services during the
8 hour sleep period must be
paid.
Domestic Live-In
(Housekeeper)
-Worker must be paid minimum
wage, but not overtime
-Can have written agreement
deducting a reasonable number of
hours for sleep and other personal
time
-Worker must be paid
minimum wage and overtime
-Can have written agreement
deducting a reasonable
number of hours for sleep and
other personal time
Employment of Minors Generally
Connecticut law allows minors under the age of 18, who have graduated from high
school, to work in any occupation during the same hours as adults; however, such minors are not
exempt from federal employment prohibitions. Therefore, employers who are covered by both
state and federal law regulating the employment of minors must comply with the more stringent
provisions of the two sets of law.
Government Employees
Minors between the ages of 16 and 18 who are employees of the state or any political
subdivision thereof shall be paid not less than 85% of the minimum wage. Conn. Gen. Stat. §
31-58a.
Agricultural Employees
Minors between the ages of 14 and 18 who are agricultural employees shall be paid not
less than 85% of the minimum wage, except agricultural employees between the ages of 14 and
18 who are employed by employers who did not, during the preceding calendar year, employ 8
or more workers at the same time shall be paid not less than 70% of the minimum wage. Conn.
Gen. Stat. § 31-58a.
Other Employees
Minors under the age of 18 working in other industries may be paid 85% of the minimum
wage for the first 200 hours of employment, except for those working in institutional training
programs specifically exempted by the Connecticut Labor Commissioner. Conn. Gen. Stat. §
31-58(j) and Conn. Agencies Regs. §§ 31-60-6 to 8.
Proof of Age
Employers must retain the working papers/statements of age for each employee under the
age of 18 at the place of employment, unless the employer has written approval from the Labor
Commissioner. Conn. Gen. Stat. § 31-23(d).
Under 18
Prohibited Occupations
Under Connecticut law, anyone under the age of 18 is prohibited from working in the
following hazardous occupations, unless they have graduated from a secondary institution, or
written approval has been received by the employer from the Connecticut Labor Department.
These prohibitions do not apply to work study programs, apprentices in bona fide apprenticeship
courses, office workers and those not directly a part of, or in contact with, production operations
unless the occupations, as such, have been declared hazardous. Conn. Gen. Stat. §§ 31-23-25
and Conn. Agencies Regs. § 31-23-1.
Manufacturing and storage of explosives
Motor vehicle driving and outside helper
Mining
Logging and sawmilling
The use of electrical tools, circuits, or equipment (except double insulated hand tools)
Exposure to radioactive substances or ionization radiation
Power-driven hoisting apparatus
Power-driven metal-forming, punching or shearing machines
Slaughtering or meat packing, processing or rendering, including electric meat slicers.
Brick, tile, and kindred products manufacturing
Wrecking, demolition, and shipbreaking
Roofing operations
Excavation operations
Automotive maintenance and repair, EXCEPT (the following are permitted):
o island work
o changing passenger car tires (no truck tires or working under cars or in pits)
o use of air hand tools
o use of properly grounded electrical hand tools (no drill over ¼” diameter)
o preparing cars for painting, limited to sanding and masking (no spray painting or
welding)
o hand cleaning and washing of motor vehicles (no flammable liquids)
o clerical or bench work
Beverage bottling
Soldering, welding, brazing, smelting, rolling, flame cutting, or any other types of metal
processing
Brick, clay or tile manufacturing
Coke and tar products processing/manufacturing
Dry cleaning/laundry operations
Processing of food products
Construction, EXCEPT the following:
o Landscaping (planting small trees, shrubs, etc.)
o General yard work/cleaning (no riding reel lawn mowers)
o Brush painting & window cleaning (no ladders over 6 feet, no flammable
cleaners/thinners, etc.)
o Clerical/shipping/stock work
Glazing/glass cutting operations
Heat treating operations or helper
Ice manufacturing
Installation/maintenance/repair of electrical machinery/equipment
Paper/paper products/paperboard manufacturing
Plastic/plastic products manufacturing
Pharmaceutical products manufacturing
Operation of foot, hand or power presses
Printing operations
Pressure testing
Synthetic fiber manufacturing
Rubber/synthetic rubber products manufacturing/processing
Spray painting and dipping
Stone cutting and processing
Leather products processing/tanning
Sewing machine operation using needles over 1/16 inch diameter
Tire recapping, vulcanizing or manufacturing
Textile machinery operations
Trash/cardboard compactor
For more detail see Conn. Agencies Regs. § 31-23-1.
Time and Hour Restrictions for 16 and 17 Year Olds
The following time and hour restrictions do not apply to minors under the age of 18 who
have graduated from high school.
Minors under the age of 18, who are enrolled in, but have not yet graduated from high school
may only work during the following hours:
Restaurants - During school weeks:
6 a.m. to 11 p.m. (midnight if school vacation/not prior to a school day/not attending
school)
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Restaurants - During non - school weeks:
8 hours per day/48 hours per week
6 days per week
Recreational, Amusement, and Theater - During school weeks:
6 a.m. to 11 p.m. (midnight if school vacation/not prior to a school day/not attending
school)
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Recreational, Amusement, and Theater - During non-school weeks:
8 hours per day/48 hours per week
6 days per week
Manufacturing and Mechanical - During school weeks:
6 a.m. to 10 p.m. (11 p.m. if school vacation/not prior to a school day/not attending
school)
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Manufacturing and Mechanical - During non-school weeks:
8 hours per day/48 hours per week
6 days per week
Retail/Mercantile - During school weeks:
6 a.m. to 10 p.m. (11 p.m. if school vacation/not prior to a school day/not attending
school/ 12:00 midnight in a supermarket, if 3500 square feet, when no school the next
day)
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Retail/Mercantile - During non-school weeks:
8 hours per day/48 hours per week
6 days per week
Hairdressing, Bowling Alley, Pool Hall, or Photography Gallery - During school weeks:
6 a.m. to 10 p.m.
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Hairdressing, Bowling Alley, Pool Hall, or Photography Gallery - During non-school weeks:
8 hours per day/48 hours per week
6 days per week
Minors under the age of 18 who are not enrolled in and have not graduated from high school
may only work the following hours.
Retail/Mercantile:
8 hours per day/48 hours per week
6 days per week
Restaurant, Manufacturing, Mechanical, Recreation, Amusement, and Theater:
9 hours per day/48 hours per week
6 days per week
For all occupations, work experience as part of an approved educational plan will not be counted
towards permitted hourly limits.
Conn. Gen. Stat. §§ 31-12, 31-13, 31-14, 31-16 and 31-18.
14 and 15 Year Olds
Permitted Occupations
Under Connecticut law, 14 and 15 year olds are permitted to work in the following occupations:
Agriculture
Street trades (newspaper delivery, shoe shining, baby-sitting, etc.)
Hospitals (no food service or laundry)
Convalescent homes (no food service or laundry)
Hotels and motels (no food service or laundry)
Banks
Insurance companies
Professional offices (lawyers, CPAs, etc.)
Municipalities (library attendants, recreation departments, etc.)
Golf caddies
Acting
Household chores for private homeowners (yard work, etc.)
Licensed summer camps
Mercantile/solicitation –Minor must be at least 15 years old and may then be employed in
any mercantile establishment as a bagger, cashier, or stock clerk
Prohibited Occupations
Under Connecticut law, minors under the age of 16 are prohibited from working in the following
occupations.
Restaurant/food service
Recreational establishments
Manufacturing industries
Mechanical/service industries
Mercantile/solicitation –However minors who are at least 15 years old may be employed
in any mercantile establishment as a bagger, cashier, or stock clerk
Theatrical industry
Barber shops
Any other business types not listed on the Permitted Occupation list.
Conn. Gen. Stat. § 31-23(a).
These prohibitions may be lifted where authorized by the Labor Commissioner for
minors aged 14 and 15 who are enrolled in (1) a public school in a work-study program, or (2) a
summer work-recreation program sponsored by a town, city or borough or by a human resources
development agency, or (3) a vocational probation pursuant to an order of the Superior Court, or
(4) a vocational parole program by the Commissioner of Children and Families. Conn. Gen.
Stat. § 31-23(a).
Hours of Work
Even when 14 & 15 year-old minors are permitted to work they may not be employed:
During school hours.
Before 7 a.m. or after 7 p.m., except from July 1 to Labor Day, when evening hours are
extended to 9 p.m.
More than 3 hours per day on school days, or 8 hours on non-school days.
More than 18 hours a week in school weeks, or 40 hours in non-school weeks.
Conn. Gen. Stat. § 31-23(b).
Connecticut law allows minors under the age of 18, who have graduated from high
school, to work in any occupation during the same hours as adults; however, such minors are not
exempt from federal employment prohibitions. Therefore, employers who are covered by both
state and federal law regulating the employment of minors must comply with the more stringent
provisions of the two sets of law.
Government Employees
Minors between the ages of 16 and 18 who are employees of the state or any political
subdivision thereof shall be paid not less than 85% of the minimum wage. Conn. Gen. Stat. §
31-58a.
Agricultural Employees
Minors between the ages of 14 and 18 who are agricultural employees shall be paid not
less than 85% of the minimum wage, except agricultural employees between the ages of 14 and
18 who are employed by employers who did not, during the preceding calendar year, employ 8
or more workers at the same time shall be paid not less than 70% of the minimum wage. Conn.
Gen. Stat. § 31-58a.
Other Employees
Minors under the age of 18 working in other industries may be paid 85% of the minimum
wage for the first 200 hours of employment, except for those working in institutional training
programs specifically exempted by the Connecticut Labor Commissioner. Conn. Gen. Stat. §
31-58(j) and Conn. Agencies Regs. §§ 31-60-6 to 8.
Proof of Age
Employers must retain the working papers/statements of age for each employee under the
age of 18 at the place of employment, unless the employer has written approval from the Labor
Commissioner. Conn. Gen. Stat. § 31-23(d).
Under 18
Prohibited Occupations
Under Connecticut law, anyone under the age of 18 is prohibited from working in the
following hazardous occupations, unless they have graduated from a secondary institution, or
written approval has been received by the employer from the Connecticut Labor Department.
These prohibitions do not apply to work study programs, apprentices in bona fide apprenticeship
courses, office workers and those not directly a part of, or in contact with, production operations
unless the occupations, as such, have been declared hazardous. Conn. Gen. Stat. §§ 31-23-25
and Conn. Agencies Regs. § 31-23-1.
Manufacturing and storage of explosives
Motor vehicle driving and outside helper
Mining
Logging and sawmilling
The use of electrical tools, circuits, or equipment (except double insulated hand tools)
Exposure to radioactive substances or ionization radiation
Power-driven hoisting apparatus
Power-driven metal-forming, punching or shearing machines
Slaughtering or meat packing, processing or rendering, including electric meat slicers.
Brick, tile, and kindred products manufacturing
Wrecking, demolition, and shipbreaking
Roofing operations
Excavation operations
Automotive maintenance and repair, EXCEPT (the following are permitted):
o island work
o changing passenger car tires (no truck tires or working under cars or in pits)
o use of air hand tools
o use of properly grounded electrical hand tools (no drill over ¼” diameter)
o preparing cars for painting, limited to sanding and masking (no spray painting or
welding)
o hand cleaning and washing of motor vehicles (no flammable liquids)
o clerical or bench work
Beverage bottling
Soldering, welding, brazing, smelting, rolling, flame cutting, or any other types of metal
processing
Brick, clay or tile manufacturing
Coke and tar products processing/manufacturing
Dry cleaning/laundry operations
Processing of food products
Construction, EXCEPT the following:
o Landscaping (planting small trees, shrubs, etc.)
o General yard work/cleaning (no riding reel lawn mowers)
o Brush painting & window cleaning (no ladders over 6 feet, no flammable
cleaners/thinners, etc.)
o Clerical/shipping/stock work
Glazing/glass cutting operations
Heat treating operations or helper
Ice manufacturing
Installation/maintenance/repair of electrical machinery/equipment
Paper/paper products/paperboard manufacturing
Plastic/plastic products manufacturing
Pharmaceutical products manufacturing
Operation of foot, hand or power presses
Printing operations
Pressure testing
Synthetic fiber manufacturing
Rubber/synthetic rubber products manufacturing/processing
Spray painting and dipping
Stone cutting and processing
Leather products processing/tanning
Sewing machine operation using needles over 1/16 inch diameter
Tire recapping, vulcanizing or manufacturing
Textile machinery operations
Trash/cardboard compactor
For more detail see Conn. Agencies Regs. § 31-23-1.
Time and Hour Restrictions for 16 and 17 Year Olds
The following time and hour restrictions do not apply to minors under the age of 18 who
have graduated from high school.
Minors under the age of 18, who are enrolled in, but have not yet graduated from high school
may only work during the following hours:
Restaurants - During school weeks:
6 a.m. to 11 p.m. (midnight if school vacation/not prior to a school day/not attending
school)
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Restaurants - During non - school weeks:
8 hours per day/48 hours per week
6 days per week
Recreational, Amusement, and Theater - During school weeks:
6 a.m. to 11 p.m. (midnight if school vacation/not prior to a school day/not attending
school)
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Recreational, Amusement, and Theater - During non-school weeks:
8 hours per day/48 hours per week
6 days per week
Manufacturing and Mechanical - During school weeks:
6 a.m. to 10 p.m. (11 p.m. if school vacation/not prior to a school day/not attending
school)
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Manufacturing and Mechanical - During non-school weeks:
8 hours per day/48 hours per week
6 days per week
Retail/Mercantile - During school weeks:
6 a.m. to 10 p.m. (11 p.m. if school vacation/not prior to a school day/not attending
school/ 12:00 midnight in a supermarket, if 3500 square feet, when no school the next
day)
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Retail/Mercantile - During non-school weeks:
8 hours per day/48 hours per week
6 days per week
Hairdressing, Bowling Alley, Pool Hall, or Photography Gallery - During school weeks:
6 a.m. to 10 p.m.
6 hours per day/32 hours per week
8 hours per day on Friday, Saturday, Sunday
Hairdressing, Bowling Alley, Pool Hall, or Photography Gallery - During non-school weeks:
8 hours per day/48 hours per week
6 days per week
Minors under the age of 18 who are not enrolled in and have not graduated from high school
may only work the following hours.
Retail/Mercantile:
8 hours per day/48 hours per week
6 days per week
Restaurant, Manufacturing, Mechanical, Recreation, Amusement, and Theater:
9 hours per day/48 hours per week
6 days per week
For all occupations, work experience as part of an approved educational plan will not be counted
towards permitted hourly limits.
Conn. Gen. Stat. §§ 31-12, 31-13, 31-14, 31-16 and 31-18.
14 and 15 Year Olds
Permitted Occupations
Under Connecticut law, 14 and 15 year olds are permitted to work in the following occupations:
Agriculture
Street trades (newspaper delivery, shoe shining, baby-sitting, etc.)
Hospitals (no food service or laundry)
Convalescent homes (no food service or laundry)
Hotels and motels (no food service or laundry)
Banks
Insurance companies
Professional offices (lawyers, CPAs, etc.)
Municipalities (library attendants, recreation departments, etc.)
Golf caddies
Acting
Household chores for private homeowners (yard work, etc.)
Licensed summer camps
Mercantile/solicitation –Minor must be at least 15 years old and may then be employed in
any mercantile establishment as a bagger, cashier, or stock clerk
Prohibited Occupations
Under Connecticut law, minors under the age of 16 are prohibited from working in the following
occupations.
Restaurant/food service
Recreational establishments
Manufacturing industries
Mechanical/service industries
Mercantile/solicitation –However minors who are at least 15 years old may be employed
in any mercantile establishment as a bagger, cashier, or stock clerk
Theatrical industry
Barber shops
Any other business types not listed on the Permitted Occupation list.
Conn. Gen. Stat. § 31-23(a).
These prohibitions may be lifted where authorized by the Labor Commissioner for
minors aged 14 and 15 who are enrolled in (1) a public school in a work-study program, or (2) a
summer work-recreation program sponsored by a town, city or borough or by a human resources
development agency, or (3) a vocational probation pursuant to an order of the Superior Court, or
(4) a vocational parole program by the Commissioner of Children and Families. Conn. Gen.
Stat. § 31-23(a).
Hours of Work
Even when 14 & 15 year-old minors are permitted to work they may not be employed:
During school hours.
Before 7 a.m. or after 7 p.m., except from July 1 to Labor Day, when evening hours are
extended to 9 p.m.
More than 3 hours per day on school days, or 8 hours on non-school days.
More than 18 hours a week in school weeks, or 40 hours in non-school weeks.
Conn. Gen. Stat. § 31-23(b).
Overview
The misclassification of employees as independent contractors has garnered a great deal
of regulatory interest in Connecticut. The Connecticut Department of Labor (“CTDOL”) has
recently taken a more aggressive approach toward misclassifications by visiting worksites and
conducting audits, without waiting for a complaint to be filed.
The CTDOL also signed an agreement on September 19, 2011 with the U.S. Department
of Labor, including its Wage and Hour Division, Occupational Safety and Health
Administration, and Employee Benefits Security Administration (collectively “DOL”) permitting
the two departments to work more closely together, cross-report violations, and coordinate
enforcement efforts.
Given the penalties involved, employers are strongly encouraged to make sure any person
treated as an independent contractor meets all the various federal and state tests used in making
such determinations.
ABC Test Used by the Connecticut Department of Labor
The CTDOL has jurisdiction over Connecticut’s wage and hour, and unemployment
compensation statutes. Employees are covered by these statutes while independent contractors
are not. Therefore, the first step in any investigation often requires the CTDOL to determine if a
worker is an “employee.” In doing so, the CTDOL uses the ABC Test. Conn. Gen. Stat. § 31-
222(a)(1)(B)(ii). See also, Tianti, v. Comm. Of Labor Rel., 231 Conn. 690 (1995) (ABC test
applies to wage statutes); and Latimer v. Admin., Unemployment Compensation Act, 216 Conn.
237 (1990) (ABC test applies to unemployment compensation claims). For a worker to be
considered an independent contractor, the worker must satisfy all three parts of the test; A, B and
C. See Connecticut ABC Test Analysis.
Under part A of the test, the worker must be free from direction and control in the
performance of the service, both under the contract of hire and in fact. This is essentially the
Darden common law right to control test, which is discussed more fully below. To measure
compliance with part A, the CTDOL relies on the same 20 factor analysis used by the IRS. See
the Federal section for more information on the IRS 20 factor test. These 20 factors are designed
as guides, and the degree of importance of each factor varies depending on the specific situation.
In some situations, certain factors may be irrelevant. Further guidance provided by CTDOL
states that part A will not be met if the person hiring the worker retains the right to exercise
direction and control, even if the right is not used.
In addition, to meeting part A, part B of the test states that an employer claiming the
worker is an independent contractor must prove EITHER the worker’s services are performed
outside the usual course of the employer’s business, OR outside all of the employer’s places of
business.
Finally, the employer must prove under part C of the test, that the worker is customarily
engaged in an independently established trade, occupation, profession or business of the same
nature as the service being provided. An individual who forms a business in response to an offer
of work as an independent contractor will not be considered to be customarily engaged or
independently established under Part C. According to additional guidance from the CTDOL,
factors that tend to favor independent contractor status under part C include, a business license,
business liability insurance, letterhead and cards, advertisements, client references, state sales tax
registration, and a federal ID number.
In essence, the ABC test combines the Darden common law right to control test,
measured by the IRS 20 factor test, with two additional elements, parts B and C, and is therefore
a more difficult test to pass. By passing the ABC test, the worker should automatically pass both
the Darden right to control test and the IRS 20 factor test; however, since different agencies will
assess compliance it is possible they may come to different conclusions with regard to passage of
each test.
Right to Control Test Used by the Connecticut Workers’ Compensation Commission
The Connecticut Workers Compensation Commission uses a right to control test when
determining worker status under the Connecticut Workers’ Compensation Act. Hanson v.
Transportation General, Inc., 245 Conn. 613 (1998). While similar to the Darden common law
right to control test discussed below, the criteria is stated somewhat differently. Specifically,
“[o]ne is an employee of another when he renders a service for the other and when what he
agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in
which the service is to be done and in the means to be employed in its accomplishment as well as
in the result to be attained.” Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629
(1961). An independent contractor, on the other hand, “is one who, exercising an independent
employment, contracts to do a piece of work according to his own methods and without being
subject to the control of his employer, except as to the result of his work.” Chute v. Mobil
Shipping & Transp. Co., 32 Conn. App. 16 (1993). The key factor in establishing employee
status is thus the employer’s right to control how and when the employee’s work is done. Carrier
v. Voisine, 2093 CRB-3-94-7 (decided Jan. 11, 1996).
IRS Twenty Factor Test Used by the Connecticut Department of Revenue Services
The Connecticut Department of Revenue Services, which oversees state tax matters,
including withholding issues, relies on the IRS 20 factor test in determining employment status.
Specifically, “the provisions of the Internal Revenue Code and its applicable regulations with
respect to the meaning of terms such as ‘employer,’ ‘employee,’ ‘payroll period,’ and ‘wages,’
have the same meaning for Connecticut income tax purposes, except as otherwise specifically
provided in Part IX, or where such federal definitions are clearly inconsistent with and
inapplicable to the provisions of such Part.” Conn. Agencies Regs. § 12-701(b)-1(12).
Darden Common Law Right to Control Test Used for Federal Discrimination Laws
The Second Circuit Court of Appeals, which has jurisdiction in Connecticut, has stated
that the Darden common law right to control test shall be used to determine whether a worker is
an independent contractor or employee for purposes of federal discrimination law. Frankel v.
Bally, Inc., 987 F.2d 86 (2d Cir. 1993). Employees are covered by those laws. Independent
contractors are not.
In reaching its decision, the Second Circuit relied on the U.S. Supreme Court’s decision
in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), which found the common
law right to control test governed the definition of “employee” in ERISA cases. Finding the
statutory language in ERISA similar to that in Title VII and ADEA, the Second Circuit held the
right to control test applies equally to those discrimination laws.
The test outlined in Darden states, “[i]n determining whether a hired party is an
employee under the general common law of agency, we consider the hiring party’s right to
control the manner and means by which the product is accomplished. Among the other factors
relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the parties; whether the hiring
party has the right to assign additional projects to the hired party; the extent of the hired party’s
discretion over when and how long to work; the method of payment; the hired party’s role in
hiring and paying assistants; whether the work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of employee benefits; and the tax treatment
of the hired party.”
Darden Common Law Right to Control Test Likely Used for State Discrimination Laws
The Connecticut Fair Employment Practices Act (“CFEPA”) defines “employee” as “any
person employed by an employer, but shall not include any individual employed by such
individual's parents, spouse or child, or in the domestic service of any person,” Conn. Gen. Stat.
§46a-51(9).
At the present time, there are no cases that provide guidance on which test to use to
determine employment status under CFEPA. In other instances, when left to interpret
ambiguous terms, like “employee,” without state judicial guidance, Connecticut courts have
generally followed the Second Circuit’s lead. Craine v. Trinity College, 259 Conn. 625, 637 n.6
(2002). Therefore, Connecticut employers should use the Darden common law right to control
test discussed above in determining employment status under CFEPA, until more definitive
direction is available.
The misclassification of employees as independent contractors has garnered a great deal
of regulatory interest in Connecticut. The Connecticut Department of Labor (“CTDOL”) has
recently taken a more aggressive approach toward misclassifications by visiting worksites and
conducting audits, without waiting for a complaint to be filed.
The CTDOL also signed an agreement on September 19, 2011 with the U.S. Department
of Labor, including its Wage and Hour Division, Occupational Safety and Health
Administration, and Employee Benefits Security Administration (collectively “DOL”) permitting
the two departments to work more closely together, cross-report violations, and coordinate
enforcement efforts.
Given the penalties involved, employers are strongly encouraged to make sure any person
treated as an independent contractor meets all the various federal and state tests used in making
such determinations.
ABC Test Used by the Connecticut Department of Labor
The CTDOL has jurisdiction over Connecticut’s wage and hour, and unemployment
compensation statutes. Employees are covered by these statutes while independent contractors
are not. Therefore, the first step in any investigation often requires the CTDOL to determine if a
worker is an “employee.” In doing so, the CTDOL uses the ABC Test. Conn. Gen. Stat. § 31-
222(a)(1)(B)(ii). See also, Tianti, v. Comm. Of Labor Rel., 231 Conn. 690 (1995) (ABC test
applies to wage statutes); and Latimer v. Admin., Unemployment Compensation Act, 216 Conn.
237 (1990) (ABC test applies to unemployment compensation claims). For a worker to be
considered an independent contractor, the worker must satisfy all three parts of the test; A, B and
C. See Connecticut ABC Test Analysis.
Under part A of the test, the worker must be free from direction and control in the
performance of the service, both under the contract of hire and in fact. This is essentially the
Darden common law right to control test, which is discussed more fully below. To measure
compliance with part A, the CTDOL relies on the same 20 factor analysis used by the IRS. See
the Federal section for more information on the IRS 20 factor test. These 20 factors are designed
as guides, and the degree of importance of each factor varies depending on the specific situation.
In some situations, certain factors may be irrelevant. Further guidance provided by CTDOL
states that part A will not be met if the person hiring the worker retains the right to exercise
direction and control, even if the right is not used.
In addition, to meeting part A, part B of the test states that an employer claiming the
worker is an independent contractor must prove EITHER the worker’s services are performed
outside the usual course of the employer’s business, OR outside all of the employer’s places of
business.
Finally, the employer must prove under part C of the test, that the worker is customarily
engaged in an independently established trade, occupation, profession or business of the same
nature as the service being provided. An individual who forms a business in response to an offer
of work as an independent contractor will not be considered to be customarily engaged or
independently established under Part C. According to additional guidance from the CTDOL,
factors that tend to favor independent contractor status under part C include, a business license,
business liability insurance, letterhead and cards, advertisements, client references, state sales tax
registration, and a federal ID number.
In essence, the ABC test combines the Darden common law right to control test,
measured by the IRS 20 factor test, with two additional elements, parts B and C, and is therefore
a more difficult test to pass. By passing the ABC test, the worker should automatically pass both
the Darden right to control test and the IRS 20 factor test; however, since different agencies will
assess compliance it is possible they may come to different conclusions with regard to passage of
each test.
Right to Control Test Used by the Connecticut Workers’ Compensation Commission
The Connecticut Workers Compensation Commission uses a right to control test when
determining worker status under the Connecticut Workers’ Compensation Act. Hanson v.
Transportation General, Inc., 245 Conn. 613 (1998). While similar to the Darden common law
right to control test discussed below, the criteria is stated somewhat differently. Specifically,
“[o]ne is an employee of another when he renders a service for the other and when what he
agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in
which the service is to be done and in the means to be employed in its accomplishment as well as
in the result to be attained.” Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629
(1961). An independent contractor, on the other hand, “is one who, exercising an independent
employment, contracts to do a piece of work according to his own methods and without being
subject to the control of his employer, except as to the result of his work.” Chute v. Mobil
Shipping & Transp. Co., 32 Conn. App. 16 (1993). The key factor in establishing employee
status is thus the employer’s right to control how and when the employee’s work is done. Carrier
v. Voisine, 2093 CRB-3-94-7 (decided Jan. 11, 1996).
IRS Twenty Factor Test Used by the Connecticut Department of Revenue Services
The Connecticut Department of Revenue Services, which oversees state tax matters,
including withholding issues, relies on the IRS 20 factor test in determining employment status.
Specifically, “the provisions of the Internal Revenue Code and its applicable regulations with
respect to the meaning of terms such as ‘employer,’ ‘employee,’ ‘payroll period,’ and ‘wages,’
have the same meaning for Connecticut income tax purposes, except as otherwise specifically
provided in Part IX, or where such federal definitions are clearly inconsistent with and
inapplicable to the provisions of such Part.” Conn. Agencies Regs. § 12-701(b)-1(12).
Darden Common Law Right to Control Test Used for Federal Discrimination Laws
The Second Circuit Court of Appeals, which has jurisdiction in Connecticut, has stated
that the Darden common law right to control test shall be used to determine whether a worker is
an independent contractor or employee for purposes of federal discrimination law. Frankel v.
Bally, Inc., 987 F.2d 86 (2d Cir. 1993). Employees are covered by those laws. Independent
contractors are not.
In reaching its decision, the Second Circuit relied on the U.S. Supreme Court’s decision
in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), which found the common
law right to control test governed the definition of “employee” in ERISA cases. Finding the
statutory language in ERISA similar to that in Title VII and ADEA, the Second Circuit held the
right to control test applies equally to those discrimination laws.
The test outlined in Darden states, “[i]n determining whether a hired party is an
employee under the general common law of agency, we consider the hiring party’s right to
control the manner and means by which the product is accomplished. Among the other factors
relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the parties; whether the hiring
party has the right to assign additional projects to the hired party; the extent of the hired party’s
discretion over when and how long to work; the method of payment; the hired party’s role in
hiring and paying assistants; whether the work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of employee benefits; and the tax treatment
of the hired party.”
Darden Common Law Right to Control Test Likely Used for State Discrimination Laws
The Connecticut Fair Employment Practices Act (“CFEPA”) defines “employee” as “any
person employed by an employer, but shall not include any individual employed by such
individual's parents, spouse or child, or in the domestic service of any person,” Conn. Gen. Stat.
§46a-51(9).
At the present time, there are no cases that provide guidance on which test to use to
determine employment status under CFEPA. In other instances, when left to interpret
ambiguous terms, like “employee,” without state judicial guidance, Connecticut courts have
generally followed the Second Circuit’s lead. Craine v. Trinity College, 259 Conn. 625, 637 n.6
(2002). Therefore, Connecticut employers should use the Darden common law right to control
test discussed above in determining employment status under CFEPA, until more definitive
direction is available.
The Connecticut minimum wage statute requires covered employees to be paid no less
than the federal minimum wage, plus one-half of one percent rounded to the nearest whole cent,
or the amount stated by statute, whichever is greater. Under this definition, the current minimum
wage in Connecticut is $8.25 per hour. Conn. Gen. Stat. § 31-58(j).
When an employee is compensated solely at piece rates, the employee must be paid an
average rate of at least the minimum wage for each hour worked in any week, and the wage paid
to such employee shall not be less than the minimum wage for each hour worked.
When an employee is compensated at piece rates for certain hours of work in a week and
at an hourly rate for other hours, the employee’s hourly rate shall be at least the minimum wage
and his earnings from piece rates shall average at least the minimum wage for each hour worked
on piece rate for that work week, and the wage paid to such employee shall not be less than the
minimum wage for each hour worked.
When an employee is employed at a combination of an hourly rate and a piece rate for
the same hours of work (i.e., an incentive pay plan superimposed upon an hourly rate, or a piece
rate coupled with a minimum hourly guarantee), the employee shall receive an average rate of at
least the minimum wage for each hour worked in any week and the wage paid to such employee
shall be not less than the minimum wage for each hour worked.
When an employee is compensated solely on a commission basis, the employee shall be
paid weekly an average of at least the minimum wage per hour for each hour worked.
When an employee is paid in accordance with a plan providing for a base rate plus commission,
the wage paid weekly to the employee from these combined sources shall equal at least the
minimum wage for each hour worked in any work week. All commissions shall be settled at least
once each month in full. When earnings are derived in whole or in part on the basis of an
incentive plan other than those defined herein, the employee shall receive weekly at least the
minimum wage for each hour worked in the work week, and the balance earned shall be settled
at least once monthly. Conn. Agencies Regs. § 31-60-1.
Employees engaged to work as a mechanic, laborer or worker on the construction,
remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works
project by the state or any of its agents, or by any political subdivision of the state or any of its
agents shall be paid the prevailing wage and employee welfare fund contribution for the same
work in the same trade or occupation in the town in which the public works project is being
constructed. Conn. Gen. Stat. § 31-53(a).
Special Wage Orders
All industries, except those covered by special wage orders, are subject to the general
minimum wage statute. Special wage orders cover beauty shops, laundry trades, cleaning and
dyeing operations, mercantile trades, and restaurant and hotel restaurant occupations. The
following information summarizes the major variations between the general minimum wage
statute requirements and those found in the specific wage orders. As each wage order is
extremely detailed, covered employers are strongly encouraged to review the full wage order
relevant to their specific industry. See Conn. Agencies Regs. §§ 31-62-A1 through 31-62-E12.
Beauty Shops
In no event shall tips be counted as part of the minimum wage for employees covered by
this wage order. Conn. Agencies Regs. § 31-62-A5.
Employees who by request, or by permission of the employer, report to duty shall be
compensated for a minimum of 4 hours’ earnings at the employee’s regular rate. Conn.
Agencies Regs. § 31-62-A2(b).
The employer shall furnish employees cosmetics and supplies including, but not limited
to, emery boards, orange wood sticks, combs, hairbrushes, nets, permanent wave rods and
protectors, and curlers and linens. The employee shall furnish the implements including
nippers, scissors, files, buffers, tweezers and marcel irons, except such as are part of the
shop equipment.
Charges for uniforms and their maintenance may equal, but not exceed, the actual cost
charged to employers for uniforms or for laundry. In no case may the charge to
employees for uniforms, for uniform maintenance or for sharpening of instruments bring
the wage paid below the minimum. When charges are made in the form of deductions
from the wage, the wage paid, minus the charge, shall be equal to or in excess of the
appropriate minimum wage.
No charge shall be made to any employee for beauty service rendered in the place of
employment or for material used therefore. Conn. Agencies Regs. § 31-62-A8.
Laundry Trades
Any female or minor employee employed in the laundry occupation and any adult male
employee engaged in production work in the laundry occupation, including piece
workers, regularly reporting for work, unless given adequate notice the day before to the
contrary, or called for work in any day, shall be assured a minimum of four hours'
earnings and shall be paid the minimum rate or his regular rate, whichever is higher, if
the employee is able and willing to work for that length of time. Payments shall be made
even though no work is provided by the employer, except when the plant's regular
working day on Saturday is less than four hours, in which case payment shall he made as
above for a minimum of three hours. Conn. Agencies Regs. § 31-62-B2(c).
Cleaning and Dyeing Trades
Any employee regularly reporting or called for work in any day shall be assured a
minimum of four hours' earnings and shall be paid the minimum rate or his regular rate,
whichever is higher, if the employee is able and willing to work for that length of time.
Payment shall be made even though no work is provided by the employer, except when
there is a suspension of operations due to breakdown or an act of God. Conn. Agencies
Regs. § 31-62-C2(c).
Where a person is engaged in operations incidental to cleaning and dyeing and is also
engaged in duties other than cleaning and dyeing and when the work time records are not
separated, the higher rate shall prevail. Conn. Agencies Regs. § 31-62-C2(d).
Each employee who is paid on a piece work, commission or other basis shall receive not
less than the minimum wage for the first forty hours worked each week and not less than
one and one-half times the minimum rate, or one and one-half times the regular hourly
rate, whichever is higher for all hours worked in excess of forty per week. Regular hourly
rate is computed by adding together the employee’s total weekly earnings from piece
rates or commissions and all other incentive wage allowances and any sums paid for
waiting time or other hours worked and then dividing this sum by the number of hours in
the week for which compensation was paid to yield the pieceworkers’ or commission
workers’ “regular rate” for that week. Conn. Agencies Regs. § 31-62-C2(f).
Mercantile Trade
This wage order generally applies to those engaged in the wholesale or retail selling of
commodities. Conn. Agencies Regs. § 31-62-D1(c).
An employee who, by request or permission of the employer, reports for duty on any day
whether or not assigned to actual work shall be compensated for a minimum of four
hours’ earnings at the employee’s regular rate. In instances of regularly scheduled
employment of less than four hours, as mutually agreed in writing between the employer
and employee, and approved by the labor department, this provision may be waived,
provided the minimum daily pay in every instance shall be at least twice the applicable
minimum hourly rate. Conn. Agencies Regs. § 31-62-D2(d).
The cost of uniforms or other facilities required by the employer as a condition of
employment, and the reasonable cost of their maintenance, may not be charged to the
employee if such expense would result in the payment of a wage less than the minimum
prescribed in this order. Conn. Agencies Regs. § 31-62-D11.
Restaurant and Hotel Restaurant Occupations
This order permits employers to take a tip credit of 31% for service employees whose
sole duties relate to the serving of food and or beverages to patrons seated at tables or
booths, commonly known as waiters or waitresses. When such employees perform non-
service duties such as cleaning, preparing food, washing dishes, hosting, or waiting on
take-out customers, they must be paid the full minimum wage, without any tip credit
deduction. A bartender tip credit of 11% is permitted while the employee is engaged in
bartending duties. Conn. Agencies Regs. § 31-62-E3.
The current minimum wage for waitpersons is $5.69 per hour, and $7.34 for bartenders,
however each such employee must be paid at least the normal minimum wage, currently
$8.25 per hour, when tips are included.
If an employee performs both service and non-service duties, and the time spent on each
is definitely segregated and so recorded, the allowance for gratuities may be applied to
the hours worked in the service category. If an employee performs both service and non-
service duties and the time spent on each cannot be definitely segregated and so recorded,
or is not definitely segregated and so recorded, no allowances for gratuities may be
applied as part of the minimum wage. Conn. Agencies Regs. § 31-62-E4.
Any employee regularly reporting for work, unless given adequate notice the day before
to the contrary, or any employee called for work in any day shall be assured a minimum
of two hours' earnings at not less than the minimum rate if the employee is able and
willing to work for the length of time. If the employee is either unwilling or unable to
work the number of hours necessary to insure the two-hour guarantee, a statement signed
by the employee in support of this situation must be on file as part of the employer's
records. Conn. Agencies Regs. § 31-62-E1(b).
Not less than one and one-half times the minimum rate must be paid for all time worked
on the seventh consecutive day. Conn. Agencies Regs. § 31-62-E1(c).
Deductions Below the Minimum Wage
Credit for Tipped Employees
Tipped employees working in industries other than restaurants or hotel restaurants, where
gratuities have, prior to July 1, 1967, customarily and usually been part of an employee’s
remuneration, are subject to the following rules. Gratuities may be recognized as part of the
minimum wage for such tipped employees only when the 3 following conditions are met:
1. The employee must be engaged in employment in which gratuities are customarily and
usually recognized as a part of wages;
2. The amount of tips received for which a credit is claimed must be recorded on a weekly
basis as a separate item in the wage record, even though payment is made more
frequently; and
3. The tips must be received and retained by the employee for whom the credit is claimed.
Such employees may be paid a minimum wage of up to 35 cents per hour less than the
regular minimum wage of $8.25. However, the wage paid, plus gratuities, must be at least equal
to the minimum wage for each hour worked. Conn. Agencies Regs. § 31-60-2.
Taxes
Employers are required to deduct and withhold tax from the wages of employees and file
a withholding return as prescribed by the Commissioner of Revenue Services. Conn. Gen. Stat.
§ 12-707. Taxes must be withheld even if the withholding reduces net pay below the minimum
wage.
Wage Garnishment and Other Court-Ordered Deductions
Creditors are normally permitted to garnish an employee’s earnings after receiving a
judgment against the employee. All wages earned during the pay period in which the
garnishment is received are subject to garnishment, depending on allowable exemptions. Conn.
Gen. Stat. § 52-362.
Voluntary Assignments to Third Parties
Connecticut law forbids voluntary assignment by an employee of future wages to secure
a debt. The statute does not apply to union dues and initiation fees, or to payment of amounts due
for support in public welfare cases, or payments pursuant to a family support judgment. Conn.
Gen. Stat. § 52-361(a)(i).
Board, Lodging and Other Facilities
Wages paid to any employee may include the reasonable value of board and/or lodging
and may be considered as part of the minimum wage if such a condition is made known
to and accepted by the employee at the time of hiring or change of classification as a
usual condition of employment. In accordance with the foregoing: An allowance or
deduction of not more than eighty-five cents for a full meal and forty-five cents for a light
meal will be permitted as part payment of the minimum wage, provided such allowance
or deduction shall be made in accordance with the hiring agreement which provides for
such an allowance or deduction. Conn. Agencies Regs. § 31-60-3(b).
No allowances or deductions in excess of $2.55 a day for full meals as supplied, or in
excess of ninety cents for light meals, as supplied, will be permitted as part payment of
the minimum wage. In any case where full meals are made available to the employee by
the employer, the allowance of eighty-five cents for a full meal as defined will be
permitted as part payment of the minimum wage. In such a case the employee may not
elect the light meal in lieu of the full meal. Allowances or deductions may be made only
for meals consistent with the employee’s work shift when the employee is on duty, and
only for meals consistent with a regular meal schedule when the employee is off duty.
Conn. Agencies Regs. § 31-60-3(e).
An allowance or deduction of not more than $4.00 a week for a private room, or of not
more than $3.00 a week for a room shared with others, will be permitted as part payment
of the minimum wage, provided the allowance or deduction shall be made in accordance
with a hiring agreement which provides for such an allowance or deduction. An
allowance or deduction for lodging will be permitted as part payment of the minimum
wage only when the facility supplied conforms to reasonable specifications with respect
to size, privacy, sanitation, heat, light and ventilation. All such facilities shall be open to
inspection by an authorized representative of the labor commissioner at any reasonable
time. When housing consisting of more than one room is provided for the employee and
such circumstances are established in the hiring agreement, the labor commissioner shall
establish a reasonable allowance for such housing. No allowances or deductions will be
permitted as part payment of the minimum wage when an employee is required to share a
bed. Conn. Agencies Regs. § 31-60-3(f).
Apparel
An allowance (deduction) not to exceed $1.50 per week or the actual cost, whichever is
lower, may be permitted to apply as part of the minimum wage for the maintenance of wearing
apparel or for the laundering and cleaning of such apparel when the service has been performed.
When protective garments such as gloves, boots or aprons are necessary to safeguard the worker
or prevent injury to an employee or are required in the interest of sanitation, such garments shall
be provided and paid for and maintained by the employer without charge upon the employee.
“Apparel” means uniforms or other clothing supplied by the employer for use in the course of
employment but does not include articles of clothing purchased by the employee or clothing
usually required for health, comfort or convenience of the employee. Conn. Agencies Regs. § 31-
60-9.
Subminimum Wages
Minors in government
Minors between the ages of 16 and 18 who are employees of the state or any political
subdivision thereof shall be paid a minimum wage of not less than 85% of the state minimum
wage. Conn. Gen. Stat. § 31-58a.
Minors in agricultural employment
Minors between the ages of 14 and 18 who are agricultural employees shall be paid a
minimum wage of not less than 85% of the state minimum wage. However, such employees who
are employed by employers, who during the preceding calendar year did not employ 8 or more
workers at the same time, shall be paid a minimum wage of not less than 70% of the state
minimum wage. Conn. Gen. Stat. § 31-58a.
Minors under the age of 18
Minors at least 16 years of age, but not over 18 years of age, may be employed at a rate
not less than 85% of the minimum wage for the first 200 hours of employment. When a minor has
had an aggregate of two hundred hours of employment, he may not be employed by the same or
any other employer at less than the minimum wage. Conn. Agencies Regs. § 31-60-6(a).
Workers with Disabilities
Employers may seek a special license from the Connecticut Department of Labor to pay a
person whose earning capacity is impaired by age, physical or mental deficiency, or injury, a
wage less than the minimum wage for a period of time fixed by the Department and stated in the
license. Conn. Gen. Stat. § 31-67.
Apprentices
Apprentices duly registered by the Connecticut State Apprenticeship Council of the
Labor Department may not be employed at less than the minimum wage unless permission has
been received from the Labor Commissioner through an application process. Conn. Agencies
Regs. § 31-60-8.
than the federal minimum wage, plus one-half of one percent rounded to the nearest whole cent,
or the amount stated by statute, whichever is greater. Under this definition, the current minimum
wage in Connecticut is $8.25 per hour. Conn. Gen. Stat. § 31-58(j).
When an employee is compensated solely at piece rates, the employee must be paid an
average rate of at least the minimum wage for each hour worked in any week, and the wage paid
to such employee shall not be less than the minimum wage for each hour worked.
When an employee is compensated at piece rates for certain hours of work in a week and
at an hourly rate for other hours, the employee’s hourly rate shall be at least the minimum wage
and his earnings from piece rates shall average at least the minimum wage for each hour worked
on piece rate for that work week, and the wage paid to such employee shall not be less than the
minimum wage for each hour worked.
When an employee is employed at a combination of an hourly rate and a piece rate for
the same hours of work (i.e., an incentive pay plan superimposed upon an hourly rate, or a piece
rate coupled with a minimum hourly guarantee), the employee shall receive an average rate of at
least the minimum wage for each hour worked in any week and the wage paid to such employee
shall be not less than the minimum wage for each hour worked.
When an employee is compensated solely on a commission basis, the employee shall be
paid weekly an average of at least the minimum wage per hour for each hour worked.
When an employee is paid in accordance with a plan providing for a base rate plus commission,
the wage paid weekly to the employee from these combined sources shall equal at least the
minimum wage for each hour worked in any work week. All commissions shall be settled at least
once each month in full. When earnings are derived in whole or in part on the basis of an
incentive plan other than those defined herein, the employee shall receive weekly at least the
minimum wage for each hour worked in the work week, and the balance earned shall be settled
at least once monthly. Conn. Agencies Regs. § 31-60-1.
Employees engaged to work as a mechanic, laborer or worker on the construction,
remodeling, refinishing, refurbishing, rehabilitation, alteration or repair of any public works
project by the state or any of its agents, or by any political subdivision of the state or any of its
agents shall be paid the prevailing wage and employee welfare fund contribution for the same
work in the same trade or occupation in the town in which the public works project is being
constructed. Conn. Gen. Stat. § 31-53(a).
Special Wage Orders
All industries, except those covered by special wage orders, are subject to the general
minimum wage statute. Special wage orders cover beauty shops, laundry trades, cleaning and
dyeing operations, mercantile trades, and restaurant and hotel restaurant occupations. The
following information summarizes the major variations between the general minimum wage
statute requirements and those found in the specific wage orders. As each wage order is
extremely detailed, covered employers are strongly encouraged to review the full wage order
relevant to their specific industry. See Conn. Agencies Regs. §§ 31-62-A1 through 31-62-E12.
Beauty Shops
In no event shall tips be counted as part of the minimum wage for employees covered by
this wage order. Conn. Agencies Regs. § 31-62-A5.
Employees who by request, or by permission of the employer, report to duty shall be
compensated for a minimum of 4 hours’ earnings at the employee’s regular rate. Conn.
Agencies Regs. § 31-62-A2(b).
The employer shall furnish employees cosmetics and supplies including, but not limited
to, emery boards, orange wood sticks, combs, hairbrushes, nets, permanent wave rods and
protectors, and curlers and linens. The employee shall furnish the implements including
nippers, scissors, files, buffers, tweezers and marcel irons, except such as are part of the
shop equipment.
Charges for uniforms and their maintenance may equal, but not exceed, the actual cost
charged to employers for uniforms or for laundry. In no case may the charge to
employees for uniforms, for uniform maintenance or for sharpening of instruments bring
the wage paid below the minimum. When charges are made in the form of deductions
from the wage, the wage paid, minus the charge, shall be equal to or in excess of the
appropriate minimum wage.
No charge shall be made to any employee for beauty service rendered in the place of
employment or for material used therefore. Conn. Agencies Regs. § 31-62-A8.
Laundry Trades
Any female or minor employee employed in the laundry occupation and any adult male
employee engaged in production work in the laundry occupation, including piece
workers, regularly reporting for work, unless given adequate notice the day before to the
contrary, or called for work in any day, shall be assured a minimum of four hours'
earnings and shall be paid the minimum rate or his regular rate, whichever is higher, if
the employee is able and willing to work for that length of time. Payments shall be made
even though no work is provided by the employer, except when the plant's regular
working day on Saturday is less than four hours, in which case payment shall he made as
above for a minimum of three hours. Conn. Agencies Regs. § 31-62-B2(c).
Cleaning and Dyeing Trades
Any employee regularly reporting or called for work in any day shall be assured a
minimum of four hours' earnings and shall be paid the minimum rate or his regular rate,
whichever is higher, if the employee is able and willing to work for that length of time.
Payment shall be made even though no work is provided by the employer, except when
there is a suspension of operations due to breakdown or an act of God. Conn. Agencies
Regs. § 31-62-C2(c).
Where a person is engaged in operations incidental to cleaning and dyeing and is also
engaged in duties other than cleaning and dyeing and when the work time records are not
separated, the higher rate shall prevail. Conn. Agencies Regs. § 31-62-C2(d).
Each employee who is paid on a piece work, commission or other basis shall receive not
less than the minimum wage for the first forty hours worked each week and not less than
one and one-half times the minimum rate, or one and one-half times the regular hourly
rate, whichever is higher for all hours worked in excess of forty per week. Regular hourly
rate is computed by adding together the employee’s total weekly earnings from piece
rates or commissions and all other incentive wage allowances and any sums paid for
waiting time or other hours worked and then dividing this sum by the number of hours in
the week for which compensation was paid to yield the pieceworkers’ or commission
workers’ “regular rate” for that week. Conn. Agencies Regs. § 31-62-C2(f).
Mercantile Trade
This wage order generally applies to those engaged in the wholesale or retail selling of
commodities. Conn. Agencies Regs. § 31-62-D1(c).
An employee who, by request or permission of the employer, reports for duty on any day
whether or not assigned to actual work shall be compensated for a minimum of four
hours’ earnings at the employee’s regular rate. In instances of regularly scheduled
employment of less than four hours, as mutually agreed in writing between the employer
and employee, and approved by the labor department, this provision may be waived,
provided the minimum daily pay in every instance shall be at least twice the applicable
minimum hourly rate. Conn. Agencies Regs. § 31-62-D2(d).
The cost of uniforms or other facilities required by the employer as a condition of
employment, and the reasonable cost of their maintenance, may not be charged to the
employee if such expense would result in the payment of a wage less than the minimum
prescribed in this order. Conn. Agencies Regs. § 31-62-D11.
Restaurant and Hotel Restaurant Occupations
This order permits employers to take a tip credit of 31% for service employees whose
sole duties relate to the serving of food and or beverages to patrons seated at tables or
booths, commonly known as waiters or waitresses. When such employees perform non-
service duties such as cleaning, preparing food, washing dishes, hosting, or waiting on
take-out customers, they must be paid the full minimum wage, without any tip credit
deduction. A bartender tip credit of 11% is permitted while the employee is engaged in
bartending duties. Conn. Agencies Regs. § 31-62-E3.
The current minimum wage for waitpersons is $5.69 per hour, and $7.34 for bartenders,
however each such employee must be paid at least the normal minimum wage, currently
$8.25 per hour, when tips are included.
If an employee performs both service and non-service duties, and the time spent on each
is definitely segregated and so recorded, the allowance for gratuities may be applied to
the hours worked in the service category. If an employee performs both service and non-
service duties and the time spent on each cannot be definitely segregated and so recorded,
or is not definitely segregated and so recorded, no allowances for gratuities may be
applied as part of the minimum wage. Conn. Agencies Regs. § 31-62-E4.
Any employee regularly reporting for work, unless given adequate notice the day before
to the contrary, or any employee called for work in any day shall be assured a minimum
of two hours' earnings at not less than the minimum rate if the employee is able and
willing to work for the length of time. If the employee is either unwilling or unable to
work the number of hours necessary to insure the two-hour guarantee, a statement signed
by the employee in support of this situation must be on file as part of the employer's
records. Conn. Agencies Regs. § 31-62-E1(b).
Not less than one and one-half times the minimum rate must be paid for all time worked
on the seventh consecutive day. Conn. Agencies Regs. § 31-62-E1(c).
Deductions Below the Minimum Wage
Credit for Tipped Employees
Tipped employees working in industries other than restaurants or hotel restaurants, where
gratuities have, prior to July 1, 1967, customarily and usually been part of an employee’s
remuneration, are subject to the following rules. Gratuities may be recognized as part of the
minimum wage for such tipped employees only when the 3 following conditions are met:
1. The employee must be engaged in employment in which gratuities are customarily and
usually recognized as a part of wages;
2. The amount of tips received for which a credit is claimed must be recorded on a weekly
basis as a separate item in the wage record, even though payment is made more
frequently; and
3. The tips must be received and retained by the employee for whom the credit is claimed.
Such employees may be paid a minimum wage of up to 35 cents per hour less than the
regular minimum wage of $8.25. However, the wage paid, plus gratuities, must be at least equal
to the minimum wage for each hour worked. Conn. Agencies Regs. § 31-60-2.
Taxes
Employers are required to deduct and withhold tax from the wages of employees and file
a withholding return as prescribed by the Commissioner of Revenue Services. Conn. Gen. Stat.
§ 12-707. Taxes must be withheld even if the withholding reduces net pay below the minimum
wage.
Wage Garnishment and Other Court-Ordered Deductions
Creditors are normally permitted to garnish an employee’s earnings after receiving a
judgment against the employee. All wages earned during the pay period in which the
garnishment is received are subject to garnishment, depending on allowable exemptions. Conn.
Gen. Stat. § 52-362.
Voluntary Assignments to Third Parties
Connecticut law forbids voluntary assignment by an employee of future wages to secure
a debt. The statute does not apply to union dues and initiation fees, or to payment of amounts due
for support in public welfare cases, or payments pursuant to a family support judgment. Conn.
Gen. Stat. § 52-361(a)(i).
Board, Lodging and Other Facilities
Wages paid to any employee may include the reasonable value of board and/or lodging
and may be considered as part of the minimum wage if such a condition is made known
to and accepted by the employee at the time of hiring or change of classification as a
usual condition of employment. In accordance with the foregoing: An allowance or
deduction of not more than eighty-five cents for a full meal and forty-five cents for a light
meal will be permitted as part payment of the minimum wage, provided such allowance
or deduction shall be made in accordance with the hiring agreement which provides for
such an allowance or deduction. Conn. Agencies Regs. § 31-60-3(b).
No allowances or deductions in excess of $2.55 a day for full meals as supplied, or in
excess of ninety cents for light meals, as supplied, will be permitted as part payment of
the minimum wage. In any case where full meals are made available to the employee by
the employer, the allowance of eighty-five cents for a full meal as defined will be
permitted as part payment of the minimum wage. In such a case the employee may not
elect the light meal in lieu of the full meal. Allowances or deductions may be made only
for meals consistent with the employee’s work shift when the employee is on duty, and
only for meals consistent with a regular meal schedule when the employee is off duty.
Conn. Agencies Regs. § 31-60-3(e).
An allowance or deduction of not more than $4.00 a week for a private room, or of not
more than $3.00 a week for a room shared with others, will be permitted as part payment
of the minimum wage, provided the allowance or deduction shall be made in accordance
with a hiring agreement which provides for such an allowance or deduction. An
allowance or deduction for lodging will be permitted as part payment of the minimum
wage only when the facility supplied conforms to reasonable specifications with respect
to size, privacy, sanitation, heat, light and ventilation. All such facilities shall be open to
inspection by an authorized representative of the labor commissioner at any reasonable
time. When housing consisting of more than one room is provided for the employee and
such circumstances are established in the hiring agreement, the labor commissioner shall
establish a reasonable allowance for such housing. No allowances or deductions will be
permitted as part payment of the minimum wage when an employee is required to share a
bed. Conn. Agencies Regs. § 31-60-3(f).
Apparel
An allowance (deduction) not to exceed $1.50 per week or the actual cost, whichever is
lower, may be permitted to apply as part of the minimum wage for the maintenance of wearing
apparel or for the laundering and cleaning of such apparel when the service has been performed.
When protective garments such as gloves, boots or aprons are necessary to safeguard the worker
or prevent injury to an employee or are required in the interest of sanitation, such garments shall
be provided and paid for and maintained by the employer without charge upon the employee.
“Apparel” means uniforms or other clothing supplied by the employer for use in the course of
employment but does not include articles of clothing purchased by the employee or clothing
usually required for health, comfort or convenience of the employee. Conn. Agencies Regs. § 31-
60-9.
Subminimum Wages
Minors in government
Minors between the ages of 16 and 18 who are employees of the state or any political
subdivision thereof shall be paid a minimum wage of not less than 85% of the state minimum
wage. Conn. Gen. Stat. § 31-58a.
Minors in agricultural employment
Minors between the ages of 14 and 18 who are agricultural employees shall be paid a
minimum wage of not less than 85% of the state minimum wage. However, such employees who
are employed by employers, who during the preceding calendar year did not employ 8 or more
workers at the same time, shall be paid a minimum wage of not less than 70% of the state
minimum wage. Conn. Gen. Stat. § 31-58a.
Minors under the age of 18
Minors at least 16 years of age, but not over 18 years of age, may be employed at a rate
not less than 85% of the minimum wage for the first 200 hours of employment. When a minor has
had an aggregate of two hundred hours of employment, he may not be employed by the same or
any other employer at less than the minimum wage. Conn. Agencies Regs. § 31-60-6(a).
Workers with Disabilities
Employers may seek a special license from the Connecticut Department of Labor to pay a
person whose earning capacity is impaired by age, physical or mental deficiency, or injury, a
wage less than the minimum wage for a period of time fixed by the Department and stated in the
license. Conn. Gen. Stat. § 31-67.
Apprentices
Apprentices duly registered by the Connecticut State Apprenticeship Council of the
Labor Department may not be employed at less than the minimum wage unless permission has
been received from the Labor Commissioner through an application process. Conn. Agencies
Regs. § 31-60-8.
The Regular Rate of Pay
Under Connecticut law the “regular rate,” which is used to calculate the overtime rate,
shall include all remuneration for employment paid to, or on behalf of, the employee, but shall
not include:
-Gifts, including payments at Christmas time or on other special occasions;
-Rewards for service, which are not measured by or dependent on hours worked, production,
or efficiency;
-Payments made for occasional periods when no work is performed due to vacation, holiday,
illness, failure of the employer to provide sufficient work, or other similar cause;
-Payments for traveling expenses, or other expenses, incurred by an employee in the
furtherance of the employer's interests and properly reimbursable by the employer;
-Other payments that are not made as compensation for the employee's hours of employment;
-Sums paid in recognition of services performed during a given period if; (i) the employer
retains complete discretion over whether the payment will be made, and the amount of any
such payment, and the decision is made at or near the end of the period, and is not made
pursuant to any prior contract, agreement or promise causing the employee to expect such
payments regularly; or (ii) the payments are made pursuant to a bona fide profit-sharing plan,
or trust, or bona fide thrift or savings plan, meeting the approval of the Labor Commissioner.
Further clarifying this aspect of the law, the Connecticut Supreme Court held that for a bonus
to be considered “wages” it must be non-discretionary in nature, and must be linked solely to
the ascertainable efforts of the particular employee. Conversely, when a payment is
discretionary, or based on factors other than the particular employee’s efforts, such as a
general profit sharing plan, it falls outside the law’s “wage” definition. Weems v. Citigroup,
289 Conn. 769 (2008);
-Contributions irrevocably made by an employer to a trustee or third person pursuant to a
bona fide plan for providing old-age, retirement, life, accident or health insurance, or similar
benefits for employees;
-Extra compensation provided by a premium rate paid for certain hours worked by the
employee in any day or workweek because such hours are hours worked in excess of eight in
a day, or 40 in a week, or in excess of the employee's normal working hours or regular
working hours;
-Extra compensation provided by a premium rate paid for work by the employee on
Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the
workweek, where such premium rate is not less than one and one-half times the rate
established for like work performed in non-overtime hours on other days; or
-Extra compensation provided by a premium rate paid to the employee, in pursuance of an
applicable employment contract or collective-bargaining agreement, for work outside of the
hours established by the contract or agreement as the basic, normal or regular workday.
Conn. Gen. Stat. § 31-76b(1).
Occupations not Eligible for Overtime under Connecticut Law
Aside from the exceptions created by federal law and covered in the federal section of
these materials, the following occupations are specifically excluded from the Connecticut
overtime requirements. However, employers must pay overtime to these classifications if
otherwise required by federal law.
-Any inside salesperson whose sole duty is to sell a product or service (1) whose regular rate
of pay is in excess of two times the minimum hourly rate; and (2) more than half of the
employee’s total compensation for a representative period, being not less than one month,
represents commissions on goods or services; and (3) who does not work more than fifty-four
hours during a work week of seven consecutive calendar days. In determining the proportion
of compensation representing commissions, all earnings resulting from the application of a
bona fide commission rate shall be deemed commissions on goods or services without regard
to whether the computed commissions exceed the draw or guarantee;
-Any person employed as a taxicab driver by any employer engaged in the business of
operating a taxicab, if such driver is paid forty per cent or more of the fares recorded on the
meter of the taxicab operated by him;
-Any person employed in the capacity of a household delivery route salesman engaged in
delivering milk or bakery products to consumers, and who is paid on a commission basis;
-Any salesman primarily engaged in selling automobiles. For the purposes of this subsection,
"salesman" includes any person employed by a licensed new car dealer (1) whose primary
duty is to sell maintenance and repair services, (2) whose regular rate of pay is in excess of
two times the minimum hourly rate, (3) more than half of whose compensation for a
representative period, being not less than one month, represents commissions on goods or
services, and (4) who does not work more than fifty-four hours during a work week of seven
consecutive days. In determining the proportion of compensation representing commissions,
all earnings resulting from the application of a bona fide commission rate shall be deemed
commissions on goods or services without regard to whether the computed commissions
exceed the draw or guarantee;
-Any person employed in agriculture;
-Any permanent paid members of the uniformed police force of municipalities and
permanent paid members of the uniformed firefighters of municipalities;
-Any person employed as a firefighter by a private nonprofit corporation which on May 24,
1984, had a valid contract with any municipality to extinguish fires and protect its inhabitants
from loss by fire;
-Any person, except a person paid on an hourly basis, employed as a beer delivery truck
driver by a licensed distributor, as defined by section 12-433; or
-Any mortgage loan originator, who is a highly compensated employee, provided this
exception shall not apply to an individual who performs the functions of a mortgage loan
originator solely from the office of such mortgage loan originator's employer. For purposes
of this subsection, an office in the mortgage loan originator's home shall not be considered
the office of such mortgage loan originator's employer.
Conn. Gen. Stat. § 31-76i.
Computing overtime
Employers must pay covered employees time and one-half the employee’s regular rate
for all hours worked in excess of forty (40) in any workweek. Conn. Gen. Stat. § 31-76c.
The employer may not average the employee’s hours over two or more weeks, except for
hospital employees, under the following conditions:
-For hospital employees covered by an agreement or understanding arrived at between
the employer and the employee before the performance of the work, a work period of
fourteen (14) consecutive days is accepted in lieu of the workweek of seven (7)
consecutive days for purposes of overtime computation, if the employee is paid time and
one-half their regular rate for all time worked in excess of eight (8) hours in any workday
and in excess of eighty (80) hours in such fourteen (14) day period. Conn. Gen. Stat. §
31-76h.
Special Rule for Delivery Drivers and Sales Merchandisers
The overtime rate for non-exempt delivery drivers or sales merchandisers who are paid
on a base salary and commission basis is one-fortieth (1/40) of the employee’s weekly pay.
Conn. Gen. Stat. § 31-76b(1).
Fluctuating Workweek
In lieu of paying one and one-half times an employee’s regular rate for all hours worked
in excess of forty (40) in a workweek, an employer can use the fluctuating workweek method, if
the following conditions are met.
-The employee is employed pursuant to a bona fide individual contract, or pursuant to an
agreement made as a result of collective bargaining by representatives of employees;
-The duties of such employee necessitates irregular hours of work;
-The contract or agreement specifies a regular rate of pay of not less than the minimum
hourly rate, and compensation of not less than one and one-half times such rate for all hours
worked in excess of 40 hours per workweek; and
-The contract or agreement provides a weekly guaranty of pay for not more than sixty hours
based on the rates agreed to.
Conn. Gen. Stat. § 31-76e.
Practical Example:
If the employee is paid $800/week regardless of the number of hours worked he would earn a
regular rate of
-$40/hr if he works 20 hours
-$20/hr if he works 40 hours
-$16/hr if he works 50 hours
-$13.33/hr if he works 60 hours
Under these scenarios he would be paid $800 for working 20 hours and 40 hours
At 50 hours he would get $800 plus another $8 times 10 hours or $880 for working 50 hours
At 60 hours he would get $800 plus another $6.67 times 20 hours or $933.40 for working 60
hours
In effect the OT premium decreases as the number of hours over 40 increases, and the pay per
hour decreases as the number of hours worked increases.
Because the Connecticut Supreme Court has held there is a rebuttable presumption that
the fixed-salary method of calculating overtime applies, Connecticut employers using the
fluctuating workweek method have the burden of showing all elements required for its use have
been satisfied. Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 481 (2008).
Piece rates
Employers may enter into an agreement with a piece work employee, prior to the
performance of the work, which permits the employer to pay overtime by computing the
overtime rate at one and one-half times the straight time piece rate, provided the straight time
rate is at least equal to the established minimum wage, and overtime is paid based on all forms of
remuneration includable in the overtime calculation. Conn. Gen. Stat. § 31-76f.
Two or more kinds of work
In the case of an employee performing two or more kinds of work for which different
hourly or piece rates have been established, overtime must be computed at rates not less than one
and one-half times the straight time rate applicable to the same work when performed during
non-overtime hours, provided the straight time rate is at least equal to the established minimum
wage, and overtime is paid based on all forms of remuneration includable in the overtime
calculation. Conn. Gen. Stat. § 31-76f.
Premium Pay
When an employee has already received premium payments in the instances listed below,
the employer need not count the premium pay in calculating the regular rate, and may count the
premium pay against any overtime pay obligation:
-Extra compensation provided by a premium rate paid for certain hours worked by the
employee in any day or workweek because such hours are hours worked in excess of eight in
a day, or 40 in a week, or in excess of the employee's normal working hours, or regular
working hours;
-Extra compensation provided by a premium rate paid for work by the employee on
Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the
workweek, where such premium rate is not less than one and one-half times the rate
established for like work performed in non-overtime hours on other days; or
-Extra compensation provided by a premium rate paid to the employee, in pursuance of an
applicable employment contract or collective-bargaining agreement, for work outside of the
hours established by the contract or agreement as the basic, normal, or regular workday.
Conn. Gen. Stat. § 31-76b(1).
Compensatory Time in Lieu of Overtime Payments
Any municipality may by contract agree with municipal employees to provide overtime
compensation in the form of compensatory time, in lieu of overtime pay, at a rate not less than
one and one-half hours of compensatory time for each hour worked in excess of forty (40) hours
in a workweek. A municipality providing compensatory time shall comply with all applicable
provisions of the Fair Labor Standards Act. Conn. Gen. Stat. § 7-460c.
Under Connecticut law the “regular rate,” which is used to calculate the overtime rate,
shall include all remuneration for employment paid to, or on behalf of, the employee, but shall
not include:
-Gifts, including payments at Christmas time or on other special occasions;
-Rewards for service, which are not measured by or dependent on hours worked, production,
or efficiency;
-Payments made for occasional periods when no work is performed due to vacation, holiday,
illness, failure of the employer to provide sufficient work, or other similar cause;
-Payments for traveling expenses, or other expenses, incurred by an employee in the
furtherance of the employer's interests and properly reimbursable by the employer;
-Other payments that are not made as compensation for the employee's hours of employment;
-Sums paid in recognition of services performed during a given period if; (i) the employer
retains complete discretion over whether the payment will be made, and the amount of any
such payment, and the decision is made at or near the end of the period, and is not made
pursuant to any prior contract, agreement or promise causing the employee to expect such
payments regularly; or (ii) the payments are made pursuant to a bona fide profit-sharing plan,
or trust, or bona fide thrift or savings plan, meeting the approval of the Labor Commissioner.
Further clarifying this aspect of the law, the Connecticut Supreme Court held that for a bonus
to be considered “wages” it must be non-discretionary in nature, and must be linked solely to
the ascertainable efforts of the particular employee. Conversely, when a payment is
discretionary, or based on factors other than the particular employee’s efforts, such as a
general profit sharing plan, it falls outside the law’s “wage” definition. Weems v. Citigroup,
289 Conn. 769 (2008);
-Contributions irrevocably made by an employer to a trustee or third person pursuant to a
bona fide plan for providing old-age, retirement, life, accident or health insurance, or similar
benefits for employees;
-Extra compensation provided by a premium rate paid for certain hours worked by the
employee in any day or workweek because such hours are hours worked in excess of eight in
a day, or 40 in a week, or in excess of the employee's normal working hours or regular
working hours;
-Extra compensation provided by a premium rate paid for work by the employee on
Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the
workweek, where such premium rate is not less than one and one-half times the rate
established for like work performed in non-overtime hours on other days; or
-Extra compensation provided by a premium rate paid to the employee, in pursuance of an
applicable employment contract or collective-bargaining agreement, for work outside of the
hours established by the contract or agreement as the basic, normal or regular workday.
Conn. Gen. Stat. § 31-76b(1).
Occupations not Eligible for Overtime under Connecticut Law
Aside from the exceptions created by federal law and covered in the federal section of
these materials, the following occupations are specifically excluded from the Connecticut
overtime requirements. However, employers must pay overtime to these classifications if
otherwise required by federal law.
-Any inside salesperson whose sole duty is to sell a product or service (1) whose regular rate
of pay is in excess of two times the minimum hourly rate; and (2) more than half of the
employee’s total compensation for a representative period, being not less than one month,
represents commissions on goods or services; and (3) who does not work more than fifty-four
hours during a work week of seven consecutive calendar days. In determining the proportion
of compensation representing commissions, all earnings resulting from the application of a
bona fide commission rate shall be deemed commissions on goods or services without regard
to whether the computed commissions exceed the draw or guarantee;
-Any person employed as a taxicab driver by any employer engaged in the business of
operating a taxicab, if such driver is paid forty per cent or more of the fares recorded on the
meter of the taxicab operated by him;
-Any person employed in the capacity of a household delivery route salesman engaged in
delivering milk or bakery products to consumers, and who is paid on a commission basis;
-Any salesman primarily engaged in selling automobiles. For the purposes of this subsection,
"salesman" includes any person employed by a licensed new car dealer (1) whose primary
duty is to sell maintenance and repair services, (2) whose regular rate of pay is in excess of
two times the minimum hourly rate, (3) more than half of whose compensation for a
representative period, being not less than one month, represents commissions on goods or
services, and (4) who does not work more than fifty-four hours during a work week of seven
consecutive days. In determining the proportion of compensation representing commissions,
all earnings resulting from the application of a bona fide commission rate shall be deemed
commissions on goods or services without regard to whether the computed commissions
exceed the draw or guarantee;
-Any person employed in agriculture;
-Any permanent paid members of the uniformed police force of municipalities and
permanent paid members of the uniformed firefighters of municipalities;
-Any person employed as a firefighter by a private nonprofit corporation which on May 24,
1984, had a valid contract with any municipality to extinguish fires and protect its inhabitants
from loss by fire;
-Any person, except a person paid on an hourly basis, employed as a beer delivery truck
driver by a licensed distributor, as defined by section 12-433; or
-Any mortgage loan originator, who is a highly compensated employee, provided this
exception shall not apply to an individual who performs the functions of a mortgage loan
originator solely from the office of such mortgage loan originator's employer. For purposes
of this subsection, an office in the mortgage loan originator's home shall not be considered
the office of such mortgage loan originator's employer.
Conn. Gen. Stat. § 31-76i.
Computing overtime
Employers must pay covered employees time and one-half the employee’s regular rate
for all hours worked in excess of forty (40) in any workweek. Conn. Gen. Stat. § 31-76c.
The employer may not average the employee’s hours over two or more weeks, except for
hospital employees, under the following conditions:
-For hospital employees covered by an agreement or understanding arrived at between
the employer and the employee before the performance of the work, a work period of
fourteen (14) consecutive days is accepted in lieu of the workweek of seven (7)
consecutive days for purposes of overtime computation, if the employee is paid time and
one-half their regular rate for all time worked in excess of eight (8) hours in any workday
and in excess of eighty (80) hours in such fourteen (14) day period. Conn. Gen. Stat. §
31-76h.
Special Rule for Delivery Drivers and Sales Merchandisers
The overtime rate for non-exempt delivery drivers or sales merchandisers who are paid
on a base salary and commission basis is one-fortieth (1/40) of the employee’s weekly pay.
Conn. Gen. Stat. § 31-76b(1).
Fluctuating Workweek
In lieu of paying one and one-half times an employee’s regular rate for all hours worked
in excess of forty (40) in a workweek, an employer can use the fluctuating workweek method, if
the following conditions are met.
-The employee is employed pursuant to a bona fide individual contract, or pursuant to an
agreement made as a result of collective bargaining by representatives of employees;
-The duties of such employee necessitates irregular hours of work;
-The contract or agreement specifies a regular rate of pay of not less than the minimum
hourly rate, and compensation of not less than one and one-half times such rate for all hours
worked in excess of 40 hours per workweek; and
-The contract or agreement provides a weekly guaranty of pay for not more than sixty hours
based on the rates agreed to.
Conn. Gen. Stat. § 31-76e.
Practical Example:
If the employee is paid $800/week regardless of the number of hours worked he would earn a
regular rate of
-$40/hr if he works 20 hours
-$20/hr if he works 40 hours
-$16/hr if he works 50 hours
-$13.33/hr if he works 60 hours
Under these scenarios he would be paid $800 for working 20 hours and 40 hours
At 50 hours he would get $800 plus another $8 times 10 hours or $880 for working 50 hours
At 60 hours he would get $800 plus another $6.67 times 20 hours or $933.40 for working 60
hours
In effect the OT premium decreases as the number of hours over 40 increases, and the pay per
hour decreases as the number of hours worked increases.
Because the Connecticut Supreme Court has held there is a rebuttable presumption that
the fixed-salary method of calculating overtime applies, Connecticut employers using the
fluctuating workweek method have the burden of showing all elements required for its use have
been satisfied. Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 481 (2008).
Piece rates
Employers may enter into an agreement with a piece work employee, prior to the
performance of the work, which permits the employer to pay overtime by computing the
overtime rate at one and one-half times the straight time piece rate, provided the straight time
rate is at least equal to the established minimum wage, and overtime is paid based on all forms of
remuneration includable in the overtime calculation. Conn. Gen. Stat. § 31-76f.
Two or more kinds of work
In the case of an employee performing two or more kinds of work for which different
hourly or piece rates have been established, overtime must be computed at rates not less than one
and one-half times the straight time rate applicable to the same work when performed during
non-overtime hours, provided the straight time rate is at least equal to the established minimum
wage, and overtime is paid based on all forms of remuneration includable in the overtime
calculation. Conn. Gen. Stat. § 31-76f.
Premium Pay
When an employee has already received premium payments in the instances listed below,
the employer need not count the premium pay in calculating the regular rate, and may count the
premium pay against any overtime pay obligation:
-Extra compensation provided by a premium rate paid for certain hours worked by the
employee in any day or workweek because such hours are hours worked in excess of eight in
a day, or 40 in a week, or in excess of the employee's normal working hours, or regular
working hours;
-Extra compensation provided by a premium rate paid for work by the employee on
Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the
workweek, where such premium rate is not less than one and one-half times the rate
established for like work performed in non-overtime hours on other days; or
-Extra compensation provided by a premium rate paid to the employee, in pursuance of an
applicable employment contract or collective-bargaining agreement, for work outside of the
hours established by the contract or agreement as the basic, normal, or regular workday.
Conn. Gen. Stat. § 31-76b(1).
Compensatory Time in Lieu of Overtime Payments
Any municipality may by contract agree with municipal employees to provide overtime
compensation in the form of compensatory time, in lieu of overtime pay, at a rate not less than
one and one-half hours of compensatory time for each hour worked in excess of forty (40) hours
in a workweek. A municipality providing compensatory time shall comply with all applicable
provisions of the Fair Labor Standards Act. Conn. Gen. Stat. § 7-460c.
Miami-Dade became the first county in the nation to adopt a countywide wage theft law.
The ordinance, effective on March 1, 2010, applies to private sector employers, prohibits wage
theft, and provides administrative procedures and private causes of action. An employer found to
be in violation of the ordinance will be required to pay the actual administrative processing and
hearing costs as well as restitution to the employee, which would include back wages owed as
well as liquidated damages of double that amount, and possibly treble damages.
Now, Miami-Dade employers who misclassify employees as exempt, or as independent
contractors, can be charged with wage theft as well as a violation of the Fair Labor Standards
Act. Prompting the new law was a perception that requiring employees to opt-in to FLSA class
action lawsuits hampered their ability to seek remedial action in court. A wage theft claim can
be brought whenever an employer fails to pay any portion of wages within a reasonable time
from the date on which the employee performed the work. A “reasonable time” is defined as no
later than 14 calendar days from the date the work was performed; however, this time may be
modified to no longer than 30 days by an express agreement between the employer and
employee that has been reduced to writing and signed by the employee.
Once an employee brings a timely claim, the accused employer will have to defend itself
before a county-appointed hearing examiner in a trial like procedure. The employee, however,
can choose at any time to stop the proceedings and file a civil action in State or Federal Court.
Given this new liability, employers in Miami-Dade County need to carefully review their
employee classifications and have systems in place to promptly pay for all work performed.
The ordinance, effective on March 1, 2010, applies to private sector employers, prohibits wage
theft, and provides administrative procedures and private causes of action. An employer found to
be in violation of the ordinance will be required to pay the actual administrative processing and
hearing costs as well as restitution to the employee, which would include back wages owed as
well as liquidated damages of double that amount, and possibly treble damages.
Now, Miami-Dade employers who misclassify employees as exempt, or as independent
contractors, can be charged with wage theft as well as a violation of the Fair Labor Standards
Act. Prompting the new law was a perception that requiring employees to opt-in to FLSA class
action lawsuits hampered their ability to seek remedial action in court. A wage theft claim can
be brought whenever an employer fails to pay any portion of wages within a reasonable time
from the date on which the employee performed the work. A “reasonable time” is defined as no
later than 14 calendar days from the date the work was performed; however, this time may be
modified to no longer than 30 days by an express agreement between the employer and
employee that has been reduced to writing and signed by the employee.
Once an employee brings a timely claim, the accused employer will have to defend itself
before a county-appointed hearing examiner in a trial like procedure. The employee, however,
can choose at any time to stop the proceedings and file a civil action in State or Federal Court.
Given this new liability, employers in Miami-Dade County need to carefully review their
employee classifications and have systems in place to promptly pay for all work performed.
