Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

CHRO Presents Leaders and Legends Awards

Posted in CHRO & EEOC

This afternoon, the CHRO will present its first annual Leaders and Legends Awards ceremony.  I’ll be there.

But more than that, I have the honor of presenting one of the six awards (you’ll just have to come to find out which one).

The Awards, which are dedicated to the late David S. Stowe, a civil rights advocate and activist who passed away this year, will be held from 3-5p at the State Capitol. The six awards are as follows:

  • The Alvin W. Penn Award for Excellence in Leadership – Senator Eric Coleman
  • The Katharine Hepburn Award for Using Media as a Platform for Social Change – The Artists Collective, Inc.
  • The Constance Baker Motley Award for Excellence in Business or Law – Karen DeMeola
  • The Maria Colon Sanchez Award for Community Activism – Michelle Duprey
  • The Edythe J. Gaines Award for Inclusive Education – Darryl Burke
  • The Mario and Janet Vigezzi Award for Social Justice – Eleanor Caplan

The event is free and open to the public and, even better, light refreshments will be served.  Unfortunately, I’ve learned that the event has reached its capacity!

Congratulations to all the award winners and I look forward to seeing you all then.

When Your Model Employee Isn’t Anymore

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Social Media

437px-BillCosbyI loved Bill Cosby.

When we first got cable TV as a kid, I must have watched his movie “Himself” a few dozen times after school. His “Chocolate Cake” routine was even something I showed my kids a few years ago.

And I don’t think I missed many episodes of his sitcom either.

When the accusations about him popped up, I did what many people did – just thought they couldn’t be true. I mean it’s BILL COSBY.

And now? I’m just so thoroughly and completely disgusted by him. Repulsed.  The New York magazine article with testimony from so many women is just sickening to read.  The pain that they have endured through the years and the courage they have now is hard to fathom.

But here’s the thing: I shouldn’t have been that surprised. Time and again, my colleagues and I will hear of clients with their own “Bill Cosby.”

I don’t mean it from the drugging women sense. That’s horrible in its own twisted way that hopefully isn’t repeated.  Thankfully that’s one story I haven’t heard in the workplace.

What I mean, though, is the teflon person. The person in your workplace that just couldn’t be what a rumor suggests perhaps they might.  That person who is the complete opposite of what you’re now suspecting.

And what might such a rumor look like? It might be that their resume doesn’t add up. Or those corporate expense account bills aren’t making sense anymore.  Or someone is looking at child pornography on your system, but it seems to linked to your top sales person.

That couldn’t be true. I mean it’s “Joanna!” or “Mike!”

But as I’ve seen and I’m sure other employment lawyers have seen, in our careers, there will be a time or two when it is true.

It’s a kick in the gut. It’s that sickening feeling that you’ve been duped.  You’ve been lied to in your face.

And then you have do the most important thing you can for your company: Instead of ignoring it or getting angry, you need to get your wits about you and investigate.  Get to the bottom of it. Sooner rather than later.

You probably won’t like the findings. But then comes the interesting part: You can decide what to do from there. In some instances, you’ll have to go to the police (in fact, the police may be brought in as part of the investigation even before then).  Or you can work out a deal with the employee. Perhaps allow them to resign with an agreement to repay funds. Or maybe it’s just a straight firing and lawsuit against them.

But the fact is you do have options.

Obviously, it should go without saying that bringing legal advice in to assist is critical. But that’s besides the point here.

May you be lucky to avoid a situation of a model employee who may not be what everyone thinks they are. If you do, though, remember that feeling many of us felt when we learned that even Bill Cosby isn’t who we thought he was.

A Vacation Perspective: The “Waterfall” Noise of Employment Law

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Wage & Hour

The first day back from vacation is always fun.

And by fun, I mean “not fun AT ALL.”

There’s the e-mails. And the voicemails. And the things that you should’ve gotten done before vacation that you really honestly tried to do, but well, you just couldn’t.

And then there’s the news and other “information” that you missed.

That’s what Monday morning is shaping up to be for me.

But here’s the thing: With technology, it’s too easy to keep up with your life. Looking at Twitter. Reading some articles.  Even when you’re out of the country, wifi is everywhere.

What I found out during my time “off” is that, more than ever, I seem to hear a lot more “noise” about employment law on social media, via e-mail newsletters, and newspapers.

Everyone seems to be screaming with headlines about how things are going to “dramatically” change for employers. Or that employers “must” pay attention”. Or some other nonsense.

It’s a lot like a waterfall I visited on vacation. It just keeps coming with a constant stream of noise (and water, of course.)

Yes, I walked the bridge.

Yes, I walked the bridge.

For example, the EEOC released a ruling on sexual orientation that attempts to expand job protections nationwide for that protected class even though Congress has attempted (and failed) to pass a law that would do the same thing.

Except, it shouldn’t change much of anything in Connecticut because we have had those protections thankfully for many years already. But you wouldn’t know that from articles which gloss over that fact.

And after a few days on vacation, I just sort of checked out from all that noise.  Kind of liberating.

I read more on my Kindle and less and less on Twitter.   (Strongly recommend “Boys in the Boat” about a University of Washington Crew Team and the 1936 Olympics.)

Maybe that’s what we all need for a little while too.

In fact, you may have noticed a few less posts on here recently.  That’s somewhat purposeful. I think the trend from lawfirms is to publish posts on blogs on nearly everything nowadays whether it is “news” or not.

As a result, there seems to be a lot less perspective being shared and more scare tactics and more alerts than ever.

The fact is that as an employer in Connecticut some things have changed, but a lot hasn’t.  Yes, we need to be more alert on misclassification issues, but really, that isn’t new. You need to be worried about your interns, but again, that isn’t new either and their use should be limited anyways.

And for all the bluster on proposed changes to overtime rules, we’re still months off from any final rules and the only change is to the salary test — not even the duties test.

Sure, you need to be vigilant. But that isn’t new.

So, go on that vacation this summer. Unplug. And take some more deep breaths.  Things aren’t as crazy as headlines and alerts suggest.

Let’s all try for a little more perspective and a little less noise.

 

No Vacation for Employment Law: New “Interpretation” for Independent Contractors Issued by USDOL

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour
Time to find your happy place.

Time to find your happy place.

Whatever happened to summer vacation? You remember, that downtime, when nothing much happened?

First, there were new proposed OT rules. Then, word came out EARLY (I got an alert at 6a!) today that the U.S. Department of Labor issued new “guidance” that will try to limit the misclassification of employees as indpendent contractors.

The goal is nothing less than ensuring that most of these workers qualify as employees under the federal Fair Labor Standards Act.

Here’s the key quote:

In sum, most workers are employees under the FLSA’s broad definitions… The very broad definition of employment under the FLSA as ‘to suffer or permit to work’ and the act’s intended expansive coverage for workers must be considered when applying the economic realities factors to determine whether a worker is an employee or an independent contractor.

It states elsewhere:

This Administrator’s Interpretation first discusses the pertinent FLSA definitions and the breadth of employment relationships covered by the FLSA. When determining whether a worker is an employee or independent contractor, the application of the economic realities factors should be guided by the FLSA’s statutory directive that the scope of the employment relationship is very broad. This Administrator’s Interpretation then addresses each of the factors, providing citations to case law and examples. All of the factors must be considered in each case, and no one factor (particularly the control factor) is determinative of whether a worker is an employee. Moreover, the factors themselves should not be applied in a mechanical fashion, but with an understanding that the factors are indicators of the broader concept of economic dependence. Ultimately, the goal is not simply to tally which factors are met, but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor). The factors are a guide to make this ultimate determination of economic dependence or independence.

I’ve talked about the economic realities test before.  This not a new issue.

In fact, the USDOL had a fact sheet in 2014 stating almost the exact same thing.

But the USDOL’s new “interpretation” is certainly going to force employers to take a new look at their relationships to determine whether independent contractors should be better classified as employees.  And it’s going to raise some questions on enforcement as well.

So, to remind you, what are those factors under the “economic realities” test?

  1. Is the work an integral part of the employer’s business?
  2. Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?
  3. How does the worker’s relative investment compare to the employer’s investment?
  4. Does the work performed require special skill and initiative?
  5. Is the relationship between the worker and the employer permanent or indefinite?
  6. What is the nature and degree of the employer’s control?

But, and here’s where we all need to take a deep breath, this type of analysis isn’t all that new or surprising.  Courts have been using it for a while.  And it shouldn’t cause you to drop everything you’re doing today to look at this.

In fact, if you’re in Connecticut, I would actually suggest taking an even deeper breath because the issue is even more complicated than that.

There is a case now pending at the Connecticut Supreme Court — Standard Oil of Connecticut v. Administrator, Unemployment Compensation Act, that is examining whether certain contractors are “employees” under a different test — the ABC Test, and the proper application of that test under Connecticut’s own misclassification laws).

As explained by the CTDOL:

The ABC Test applies three factors (A, B, and C) for determining a worker’s employment status. To be considered an “independent contractor,” an individual must meet  all three of the following factors:
A. The individual must be free from direction and control (work independently) in  connection with the performance of the service, both under his or her contract of hire and in fact;
B. The individual’s service must be performed either outside the  usual course of business of the employer or outside all the employer’s places of business; and
C. The individual must be customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service performed

Yes, in addition to the USDOL’s “Economic Realities” test, the Connecticut Department of Labor uses a different test for unemployment compensation purposes named the “ABC” test.

And don’t even get me started on the IRS’s “20 factor” test.

Are you in your happy place yet?

Maybe it’s time for that vacation after all.

Or, if you’re an employer, just take this latest news in stride. If you have independent contractors, the guidance is really just another reminder that the use of these contractors continues to be heavily disfavored by government agencies.

But if you’ve been reading this blog (see this post, for example, from 2010), you’ve known that, right?

Connecticut to Tighten Data Privacy Requirements

Posted in Data Privacy, Highlight, Laws and Regulations, Legislative Developments

With news of yet another breach of personnel data of nearly 21 million Americans yesterday, I invited my colleague William Roberts, to chime in with an update on a new law in Connecticut that updates data privacy requirements in the state. Bill heads up our Privacy and Data Protection team here and works a lot with health care companies on compliance with various privacy laws.

My thanks to Bill for the update.

robertsOn June 1, 2015, the Connecticut Legislature passed S.B. 949, a comprehensive data privacy and security bill that tightens the state’s data breach response requirements and imposes new obligations on state contractors and the health insurance industry. While Connecticut Gov. Dannel Malloy signed the bill on June 30th. A copy of S.B. 949 is available here.

This post reviews the portions of the bill most pertinent to businesses operating in Connecticut or holding personal information of state residents.

Revisions to Breach Response Requirements

Current Connecticut law requires an entity that experiences a data breach to provide notice of such breach to the affected individuals and the Connecticut Attorney General’s Office “without unreasonable delay.” S.B. 949 amends this requirement by specifying that such notices must be provided no “later than [90] days after discovery of such breach, unless a shorter time is required under federal law.”

This amendment is striking in that it sets a maximum time period for notice that is much longer than the time periods set forth in other state or federal breach notification standards (e.g., the Health Insurance Portability and Accountability Act requires notice no later than 60 days following discovery of a breach).

Recognizing this apparent leniency, Connecticut Attorney General George Jepsen issued a press release that clarifies his office’s enforcement approach. Specifically, Jepsen clarifies that the 90-day reporting period is the “outside limit” for notifications and that “[t]here may be circumstances under which it is unreasonable to delay notification for 90 days.”

Jepsen makes clear that his office will “continue to scrutinize breaches and to take enforcement action against companies who unreasonably delay notification — even if notification is provided less than 90 days after discovery of the breach.” Thus, entities should continue to respond to breaches in a prompt manner and provide the necessary notices as soon as practicable.

In addition, S.B. 949 requires companies experiencing a breach involving Social Security numbers to provide affected individuals with free credit monitoring services and information on how such individuals may place a credit freeze on the individual’s credit file. The free credit monitoring services must be for a period of at least one (1) year.

While this new requirement has been considered by many to be a significant change in the law, it may have limited implications in practice because the state attorney general has long expected (or even required) companies to provide such services when Social Security numbers were involved.

Notably, S.B. 949 appears to set a shorter time period for free credit monitoring than what is typically expected by the state attorney general’s office. In many instances, the attorney general has insisted that companies offer no less than two years of free credit monitoring. Addressing this apparent lowering of expectations, Jepsen announced in his office’s press release that S.B. 949 “sets a floor for the duration of the protection” and that he retains the authority “to seek more than one year’s protection — and to seek broader kinds of protection — where circumstances warrant.”

Both of the modifications to Connecticut’s breach reporting requirements are effective Oct. 1, 2015.

State Contractor Obligations

Effective July 1, 2015, S.B. 949 imposes significant new requirements for state contracts that authorize a state agency to disclose “confidential information” to a contractor.

The bill defines “confidential information” as: (1) a person’s name, date of birth or mother’s maiden name; (2) any of the following numbers: motor vehicle operator’s license, Social Security, employee identification, employer or taxpayer identification, alien registration, passport, health insurance identification, demand deposit or savings account, or credit or debit card; (3) unique biometric data such as fingerprint, voice print, retina or iris image, or other unique physical representation; (4) “personally identifiable information” and “protected health information,” as defined in federal education and patient data regulations, respectively (i.e., Family Educational Rights and Privacy Act and HIPAA); and (5) any information that a state contracting agency tells the contractor is confidential. Confidential information does not include information that may be lawfully obtained from public sources or federal, state or local government records lawfully made available to the public.

This definition is very broad and contractors should be cognizant that a large number of state contracts may be subject to the bill’s new requirements.

If a state contract involves the sharing of confidential information, the contractor will be required to undertake significant efforts to protect the privacy and security of such information.

Specifically, the contract must require the contractor to, at a minimum: (1) at its own expense, protect confidential information from being breached; (2) implement and maintain a comprehensive data security program to protect the confidential information; (3) limit access to the confidential information to the contractor’s authorized employees and agents for authorized purposes as necessary to complete the contracted services or provide contracted goods; (4) maintain all confidential information obtained from the state (a) in a secure server, (b) on secure drives, (c) behind firewall protections and monitored by intrusion detection software, (d) in a manner where access is restricted to authorized employees and agents and (e) as otherwise required under state and federal law; (5) implement, maintain and update security and breach investigation procedures that are appropriate given the nature of the information disclosed and reasonably designed to protect confidential information from unauthorized access, use, modification, disclosure, manipulation or destruction; and (6) specify how the cost of any notification about, or investigation into, a breach is to be apportioned.

The bill includes numerous detailed requirements a contractor must adhere to, particularly with respect to the development of a data security program and the reporting of breaches.

Compliance may be particularly burdensome for contractors in industries without a history of data privacy regulation or for small providers with limited financial or other resources. The bill includes a waiver provision which allows the Office of Policy and Management (“OPM”) to require additional protections or alternate security assurance measures for confidential information if the facts and circumstances warrant them after considering, among other factors, the type and amount of confidential information being shared, the purpose for which the confidential information is being shared, and the types of goods or services covered by the contract.

Notably, the bill does not include the size or resources of the state contractor as factors OPM may consider when altering data security requirements.

Insurance Industry Data Security Programs

In response to the recent Anthem Inc. data breach, S.B. 949 imposes new requirements on health insurers, pharmacy benefit managers, utilization review companies and third-party administrators licensed do to business in Connecticut with respect to these entities’ maintenance of comprehensive information security programs.

Specifically, each such entity must develop and implement a written security program no later than Oct. 1, 2017. The program must address a litany of administrative, physical and technical safeguards including, among others: (1) computer and Internet user authentication protocols; (2) access control measures; (3) risk assessments; (4) sanctions for employee violation of security policies or procedures; and (5) oversight of third parties that have access to personal information.

The extent of such safeguards must be appropriate in light of the scope and type of business, the amount of resources available, the amount of data compiled or maintained and the need for security of such data. The written security program must be updated at least annually.

While extensive, many of the affected companies will already be subject to very similar requirements imposed under HIPAA and thus will likely have most, if not all, of S.B. 949’s elements already addressed in current policy. Nevertheless, insurers and others subject to this new requirement should review existing policies and procedures to determine sufficiency in light of the new requirements.

Unemployment Taxes: CTDOL Argues There’s More to the Story

Posted in Laws and Regulations, Legislative Developments, Wage & Hour

After my post last week, I received a thoughtful response from the Connecticut Department of Labor that is worth consideration. Much of it has already been transmitted in a column by Dan Haar in the Courant, but I think in the interests in fairness, it’s worth reprising here.

In it, the CTDOL suggests that it decided not to opt for the “waiver” because it is “not in the best interest of our state’s employers.

Part of the debate on the issue is really a debate on how quickly the state should pay off loans on the trust fund.

As background, the state’s unemployment insurance Trust Fund became insolvent in October 2009 due to, what the CTDOL has termed, “the increased number of unemployment claimants as a result of the economic downturn.”

Just a few years later, state employers began paying back the outstanding federal loan balance through Federal Unemployment Tax increases, and also began paying interest on that loan through a special assessment.  At this point, though, $110 million is still owed to the federal government.

If the state were to apply for a waiver from the Benefit Cost Ratio add-on, this would extend the length of the loan, which would require employers to pay more in the long run, according to the CTDOL.

By opting not to take the waiver, the CTDOL suggests that employers will be able to pay an additional $60M toward the loan. In doing this, the CTDOL estimates the federal loan will be paid off by September-November 2016.  And it is this timing that proves to be critical in an analysis.

As one CTDOL official is quoted as saying in Haar’s column: “It’s all based on projections….We have now a greater certainty … that this will be the last year we have this federal penalty.”

The CTDOL’s response has some appeal to it as well. But for employers, either argument (from the CBIA or the CTDOL) is really is a lose-lose proposition. Ultimately, the loan has been sticking around too long and employers are paying the price.  Pay now, or pay later.  Either way, it’s still a high price for a loan from back in 2009.

DOL’s Internship Test Rejected by Second Circuit Creating Conflict with New Connecticut Law

Posted in Class Actions, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations, Legislative Developments, Manager & HR Pro’s Resource Center, Wage & Hour

IMG_7496 (2)Did you enjoy the fireworks last week?

I’m not talking about the real Independence Day fireworks; rather, it’s a new Second Circuit decision that should have employment lawyers popping this morning.

For a while, we’ve been talking about interns.  Indeed, back in 2013, I talked about how a wage/hour case involving interns on the movie “Black Swan” had the potential to change how employers use interns.

In that case, a federal district court judge essentially adopted a six-factor test used by the U.S. Department of Labor to determine if an intern was really an employee.

Flash forward to last Thursday.  In somewhat of a surprise, the Second Circuit — which covers cases in Connecticut — reversed that federal district court court’s decision and rejected the DOL’s six-factor approach.

In its place, the court adopted what Jon Hyman properly termed, a “more flexible and nuanced primary-benefit test.”

[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship. The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.… Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.…

In the context of unpaid internships we think a non‐exhaustive set of considerations should include:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions.

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.…

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Employers to Pay More in Federal Unemployment Taxes

Posted in Laws and Regulations, Legislative Developments, Wage & Hour

It appears that for the second year in a row, Connecticut employers will not be able to take advantage of a cost-saving opportunity as a result of inaction by the Connecticut Department of Labor.

In two letters to the Connecticut Department of Labor by the CBIA and the Republican leadership, the details of the state’s failure to submit a waiver application for a Benefit Cost Rate (BCR) add-on have been outlined.  The deadline for doing so is July 1 and, according to various reports, the CTDOL has shown no interest in doing so.  As a result, Connecticut employers will pay higher federal unemployment taxes for every employee.

What will this mean in practical terms?

As stated by the CBIA, “Filing for the waiver from the BCR add-on will reduce the federal unemployment tax burden faced by Connecticut businesses, which was the highest in the nation last year. Businesses in a state with no federal debt (such as New York, Massachusetts and Rhode Island) pay federal taxes in the amount of $42 per employee. ”

The CBIA goes on to state:

If Connecticut does not apply for the waiver this year, businesses here will pay $196 per employee in federal unemployment taxes. However, if we apply for the waiver and are approved, businesses could instead by $147 per employee.”

The issue is that Connecticut’s Unemployment Compensation Trust Fund remains in debt and, according to the CBIA, requires that we “make the same benefit adjustments made by our neighboring states many years ago.”

Unemployment taxes remain a significant issue for employers in Connecticut and employers should continue to be vigilant on the various issues impacting them this year.

Details of New Overtime Regulations Released Monday Night

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Wage & Hour

DOLOn Monday night, details of the revised white-collar overtime regulations were released. But we’ll know more once the actual details get posted on the Department of Labor website on Tuesday. (Bloomberg was the first to report it Monday evening.)

(Update 6/30/15: The proposed regulations are now available online from the U.S. Department of Labor here.)

As you may know, in order to be exempt from overtime, typically two tests must be met: a “salary” test and a “duties” test. Employees who are paid below that threshold must be paid overtime even if the “duties” test is met.

But in recent years, the salary test has been very easy to meet. Enter the proposed changes to the regulations.

Among the details released tonight:

  • The regulations will raise the salary threshold from $23,660 per year to $50,440 – nearly $1000 a week ($970 a week if you’re really particular).
  • This threshold will not be linked to inflation but, according to Politico, will be tied to the 40 percentile of income (meaning, in essence, that 40 percent of the working population should be eligible for overtime pay)
  • Importantly, the regulations will NOT include changes to the duties test. Instead, it “solicits questions from the public about how best to alter it. As in the past, the new threshold will not affect teachers, lawyers, doctors and judges, who are all automatically exempt from overtime.”

What this means practically is that employers who have employees making less than $50k, need to review their practices now to see who may be impacted by these new regulations.

But don’t go revising all your policies yet. According to The New York Times, the new rules wouldn’t be implemented until at least 2016 — giving employers many more months to understand the changes.’

Taking advantage of new media, the President released his own op-ed on the subject on the Huffington Post Monday night.

This week, I’ll head to Wisconsin to discuss my plan to extend overtime protections to nearly 5 million workers in 2016, covering all salaried workers making up to about $50,400 next year. That’s good for workers who want fair pay, and it’s good for business owners who are already paying their employees what they deserve — since those who are doing right by their employees are undercut by competitors who aren’t.

That’s how America should do business. In this country, a hard day’s work deserves a fair day’s pay. That’s at the heart of what it means to be middle class in America.

Interestingly, some anticipate that employer will respond to these rules by actually lowering salaries:

Assuming the rule is put in place, economists believe that many employers will most likely reduce workers’ hours so as to save on overtime pay. Even so, the White House believes the rule could affect nearly five million workers in the short term. Meanwhile, any attempt to scale back hours could increase hiring.

Over the longer term, the effect of the rule could diminish substantially as employers offer new hires a lower base wage. This could make their overall pay, including the higher overtime wage, equivalent to what comparable employees make today in the absence of the overtime rule.

Again, we’re anticipating more details when the proposed regulations are now released as early as Tuesday morning.

 

Paid Family & Medical Leave Program and CHRO Changes Get Revived in Budget Implementer

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Wage & Hour

GA2The Connecticut General Assembly is finalizing its budget implementation bill today and suffice to say that there are more than a few surprises in there. (CT News Junkie first highlighted it in a tweet, it should be noted.)

For employers, buried deep in the bill is Section 422 entitled: “PAID FAMILY AND MEDICAL LEAVE IMPLEMENTATION”.  This seems to revive a paid family and medical leave program that was thought to be shot down earlier this session.

What does it do? It starts a framework for paid leave to be implemented similar to other payroll deduction services.

According to the summary of the legislation:

The bill requires the labor commissioner, in consultation with the state treasurer, state comptroller, and commissioner of administrative services, to establish the procedures needed to implement a paid family and medical leave (FML) program.

The labor commissioner must contract with a consultant to create an implementation plan for the program by October 1, 2015. At minimum, the plan must:

1. include a process to evaluate and establish mechanisms, through consultation with the above officials and the Department of Revenue Services, by which employees must contribute a portion of their salary or wages to a paid FML program by possibly using existing technology and payroll deduction systems;

2. identify mechanisms for timely claim acceptance; claims processing; fraud prevention; and any staffing, infrastructure and capital needs associated with administering the program;

3. identify mechanisms for timely distributing employee compensation and any associated staffing, infrastructure, and capital needs; and

4. identify funding opportunities to assist with start-up costs and program administration, including federal funds.
The bill also requires the labor commissioner, by October 1, 2015 and in consultation with the treasurer, to contract with a consultant to perform an actuarial analysis and report on the employee contribution level needed to ensure sustainable funding and administration for a paid FML compensation program.

The labor commissioner must submit a report on the implementation plan and actuarial analysis to the Labor and Appropriations committees by February 1, 2016.

But wait! There’s more. There’s a whole series of changes to the CHRO that are added in as well in Sections 71-87.

As for those changes, indeed, several are technical, but some are not. For example, under this legislation, a commission legal counsel could intervene in a public hearing or appeal without consent of the parties.   It would also limit the avenues for Complainants to reopen complaints that have been pending over two years.

The bill also creates a “Low Wage Employer Advisory Board” in Section 497 which would review the impact on employees of paying “low wages”.

My cursory review of the bills shows other provisions relating to “labor peace agerements” for certain state projects, and a minimum $15/hour wage on certain contracts.  For employers, this is definitely a bill to review today.

Given that this bill was released at the last minute and contains all sorts of compromises, I think its unlikely that it will be amended at this late stage, but stay tuned over the next 36 hours to see what’s next!