As you’ve no doubt noticed, I’ve taken a few days off from the blog to attend to the logistics that a new job entails and also attend the ABA Annual Meeting earlier this week. There have been some interesting developments in both the FLSA and FMLA the last few days so look for posts on those topics and the ABA meeting soon.
In the meantime, I’ve had several discussions with people lately about the implications that Connecticut’s revised Personnel Files Act will have on their companies on October 1st — the law’s effective date.
I’ve previously summarized the law in a prior post here so I won’t repeat all I said there.
The most frustrating provision is the new Sec. 31-128b(c) which states as follows:
Each employer shall provide an employee with a copy of any documentation of any disciplinary action imposed on that employee not more than one business day after the date of imposing such action. Each employer shall immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.
There are a few issues that come out of this:
- First, the requirement to provide a copy of any documentation of any disciplinary action is a new one. More than that, it needs to be done ”not more than one business day” after imposing the action. Is that the date that the decision is made or told to employee? What about a suspension that takes place the following week; is it the date the suspension first occurs or some other date?
- But then suppose the employee is out of the office on suspension, will mailing a copy of the notice suffice? If so, when is the notice effective? The date of mailing or date of receipt? What about e-mail? These questions are left unanswered though you have to think from an enforcement perspective that the CTDOL will adopt some type of reasonableness standard along with this. (Remember too that any violations of the Act are to be handled by the department itself.)
- But the issues go on: look at the phrase “any documentation of any disciplinary action imposed on that employee”. What is exactly the scope of ”any documentation”? Just the notice of the discipline itself? Or everything leading up to it too, including an investigation? The reasonable interpretation would seem to suggest just the actual discipline itself, but will the CTDOL take a similar position for enforcement purposes?
- Next up, when an employee’s employment is terminated, the employer must “immediately” provide a copy of any documented notice. What about a notification over the phone with a followup letter? Does that satisfy the purposes of the statute? After all, in some instances, it may be impractical to bring an employee who has been suspended back to the workplace just to fire him or her. Again, the new law leaves this bit confusing too.
There are, of course, other issues to deal with on this new law. Employers have about 6 weeks left to update their policies and figure out how to deal with requests for personnel files too. Time is ticking so be sure to consult with your local employment counsel if you are unsure how to proceed.