Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

A few weeks back, I reported on the progress of a bill that would require retail establishments to open up their private employee restrooms for customers with some medical conditions. 

House Bill 6328 has now become Public Act 09-129 after the legislature approved the measure late last month.  Yesterday it was transmitted to the Secretary of State to become law effective October 1, 2009.

You can download the full text of the new law here.

What Does the New Law Require?

Any retail establishment (any business that is open to the general public to sell goods or services) that has employee-only restrooms must permit a customer to use that restroom during normal business hours if the restroom is maintained in a reasonably safe manner and four conditions are met:

1. Customer must have written evidence, by a licensed health care provider, that he/she suffers from an eligible medical condition (colitis, Crohn’s; IBS; IBD; celiac disease or “any other condition requiring use of ostomy device”)
    
2. A public restroom is not immediately accessible to the customer;
    
3. At the time that the request for access to the employee restroom is made, three or more employees of the retail establishment are working; and
    
4. The employee restroom is located in an area of the retail establishment that does not present an obvious risk to the health or safety of the customer or an obvious security risk to the retail establishment.

As I said before, this bill is well-intentioned. (Indeed for more information on the medical conditions, you can view this website.) But how employers are going to deal with the practical ramifications of it is another story.  

For example, can a bank refuse access to its restroom because of the "obvious security risk" of allowing a customer access to private parts of the bank?  Are employees supposed to make these decisions about who has an eligible medical condition and what documentation they will accept?  And how close does a public restroom need to be in order for it to be accessible? Next door? Down the street?

Nevertheless, retail establishments should review their restroom policies and procedures and notify employees of any changes to the restroom access, particularly after the law's effective date of October 1, 2009.  If restrictions are still necessary, be sure to document the reasons for such a decision.  Any violations of the law will be treated as an infraction -- most likely a small fine.

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Thank you to the several dozen of you who attended our very first labor and employment webinar on the newest Connecticut laws affecting employers. 

While we were still working out some of the technology on the fly (who knew that speaking, running a powerpoint, and managing a webinar is difficult even for a multi-tasker?), the feedback from the program has been terrific.  And we're using the experience to make an even more-polished program for the next go around.

You can download the audio/video for the webinar here (requires Windows media format); to download just the Powerpoint slides, you can find them here. My specific thanks to the Marketing Department at Pullman & Comley, LLC for their assistance in setting this up.

In the presentation today, participants said they were mainly interested in the new rules regarding personnel files act violations and the equal pay for equal work provisions.  Thus, we spent a good deal of time the actions steps employers can take to be prepared for the new provisions.

We also addressed new rules regarding military caregiver leave, prevailing wages and customer access to employee restrooms as well.  Specific action items were also set up for employers.

Look for details soon on our next webinar, set for July 8th. 

 

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Just a reminder that our free webinar series kicks off tomorrow (June 10th) at 10 a.m. with a session that I'll be presenting entitled "Connecticut Legislative Wrapup and What Employers Need to Know".

What's Covered?

In this session, participants will learn about::

• Changes to the state FMLA laws that require, among other things, military caregiver leave
• New requirements and penalties regarding personnel files
• Widespread revisions to gender discrimination laws, including compensation
• Other changes impacting employers just as prevailing wage issues and health insurance coverage

Participants will also learn about how these new laws interact with new federal laws and regulations on gender discrimination and FMLA.  We will also discuss two bills that are likely to brought up again, perhaps in a special session: a Paid Sick Leave bill and a bill banning so-called "captive audience" meetings.

Signup is as easy as going to this secure site.  Once registered, you'll receive an e-mail confirmation with further instructions on how to join in.  

And did I mention it was free?

Hope to "see you" at the webinar.

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I've often heard the complaint: It's just too difficult to get to one of your firm's breakfast briefings.

In response to that (and with the joys of modern technology), I think we've found a solution.

I'm pleased to announce the start of my firm's monthly webinar series on hot labor and employment law topics. On the second Wednesday of every month, you can tune in for 30-60 minutes of information that you can use in your business.  Best of all, it's free and all you need is a computer to listen.

The series kicks off on June 10th with a session that I'll be presenting entitled "Connecticut Legislative Wrapup and What Employers Need to Know".

What's Covered?

The 2009 regular legislative session of the Connecticut General Assembly just ended late last night. However, before time expired, the legislature passed several new and important laws that have a serious and direct impact on employers in the state.

In this session, participants will learn about::

• Changes to the state FMLA laws that require, among other things, military caregiver leave
• New requirements and penalties regarding personnel files
• Widespread revisions to gender discrimination laws, including compensation
• Other changes impacting employers just as prevailing wage issues and health insurance coverage

Participants will also learn about how these new laws interact with new federal laws and regulations on gender discrimination and FMLA.  We will also discuss two bills that are likely to brought up again, perhaps in a special session: a Paid Sick Leave bill and a bill banning so-called "captive audience" meetings.

Signup is as easy as going to this secure site.  Once registered, you'll receive an e-mail confirmation with further instructions on how to join in.  

And did I mention it was free?

Hope to "see you" at the webinar.

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Whether it's due to stall tactics by some Republicans last night, as they suggested in an article in the Courant this morning, or simply other things on the agenda, several bills that would have had a major impact on employers were not passed in the closing hours of the legislative session last night.

Among the bills that were pending and that expired when the session ended: Paid Sick Leave bill (H.B. 6187), the so-called Captive Audience prohibition bill, and a bill that would ban the use of credit reports for employment decisions.

Still, there were enough other bills that passed in the last few weeks that employers will need to update their policies and procedures, particularly as they pertain to state FMLA and to discrimination.

Once the dust settles, I'll provide a recap. And look for details coming a little bit later about a webinar next week on the legislative session too and what employers need to know. 

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For the second time in a month, the legislature has tucked an amendment into a bill that seemingly had no relationship to the original bill and that will have a significant impact on employers in the Connecticut.

Latest case in point: Senate Bill 80 (S.B. 80) which is titled "AN ACT CONCERNING ELECTRONIC UNEMPLOYMENT COMPENSATION PAYMENTS."  For a long while, that bill has just required all employers with at least 100 employees, rather than at least 250 (the current standard), who pay unemployment compensation taxes or make payments in lieu of such taxes to make the payments electronically.

As you might imagine, that bill seems fairly mundane and passed the Senate last week.

Yesterday, the House took up the bill and added an amendment which incorporates the provisions of House Bill 5521 (H.B. 5521), which I discussed previously here.  The amendment (as did the original house bill) prohibits the use of credit reports for employment decisions unless one of several exceptions applies. 

The OLR report and summary on the bill as amended is available here. 

Because the Senate had already approved of S.B. 80 in its original form, the House's passage of the same bill with a new amendment sends the bill back to the Senate for consideration. I will provide a further update on the final approval of this measure after the Senate has considered it.

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The Capitol Watch blog is reporting this Thursday evening that the proponents of the Paid Sick Leave bill (H.B. 6187) are still one vote shy of passage in the state Senate:

The latest vote count shows the measure tied at 18 to 18 in the 36-member Senate. Eight Democrats are currently opposed to the bill, while two Republicans are in favor.

"We're one vote short,'' said Sen. Edith Prague, a longtime labor supporter. "Those eight [Democrats] are pretty firm. All we need is one vote.'' ....

Lobbyists for CBIA, the state's largest business organization, have been working the hallways on a constant basis as the clock ticks toward the end of the session. 

With its passage still in question at least for another 24 hours and with multiple amendments proposed, I'm going to hold off on a full recap of the measure until we get a better idea of what the bill is going to pass and in what form.

Until then, I'll leave you with the Office Of Legislative Reports recap which states that the bill would be effective January 1, 2010 if passed and approved by the governor:

This bill requires most employers with 50 or more employees in the state to provide their employees with paid sick leave once the employee has worked 1,040 hours. Paid sick leave accrues at a rate of one hour for each 40 hours worked after the employee has worked 520 hours in 12 months. Current law does not require employers to provide sick leave, whether paid or unpaid.

Employees may accrue up to 32 hours of sick leave in 2010 [4 days] and up to 40 hours a year [5 days] in each following year. The leave can be used for an employee's or the employee's child's illness or injury, treatment of an illness or injury, diagnosis, and preventive medical care. It can also be used for reasons related to an employee who is a victim of family violence or sexual assault.

It exempts manufacturing employers that provide some form of paid leave at a rate equal to or greater than the bill requires. It includes all other private sector and public sector employers with 50 or more persons. It deems an employer to be in compliance with its requirements if the employer offers paid leave that can be used for the same purposes and in the same conditions. ...

*House Amendment “A” (1) changes the required number of hours an employee must work to be eligible for paid sick leave, (2) reduces the number of paid sick leave hours that can be accrued and used, (3) exempts employees under age 18 from its provisions, (4) exempts manufacturers that provide some form of paid leave at a rate equal to or greater than the bill requires, and (5) specifies it does not prohibit an employer from allowing employees to donate accrued sick leave to another employee.

 

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With the legislative session ending on Wednesday at midnight, there's a lot for employers to keep an eye out. Here's a quick summary of what's still alive and what's not, at the Connecticut General Assembly.

• Senate Bill 365 (S.B. 365) - A bill that would prohibit so-called captive audience meetings by employers (typically regarding a union campaign) passed the Senate on May 20th but is still awaiting a House vote. 
• Senate Bill 710 (S.B. 710) - A bill that instituted changes to the state FMLA laws was signed by the Governor on May 27th. It is effective immediately. 
• House Bill 5521 (H.B. 5521) - A bill that would prohibit employers from using credit reports as a basis for employment decisions is awaiting a possible senate vote after passage in the House on May 1th. 
• House Bill 6187 (H.B. 6187) - The so-called Paid Sick Leave bill passed on the House on May 28th and is still awaiting a vote in the Senate.  Time is running out for this bill.  There are 18 amendments that have been proposed for the Senate version of the bill and the CBIA released a statement this morning that said a vote could come at any time. 
• House Bill 6545 (H.B. 6545) - This bill is a late entry into the bills I've been watching regarding labor & employment law and just passed the House last night.  This bill provides collective bargaining rights to two groups of state employees who cannot collectively bargain under current law: (1) managers and (2) Legislative Branch employees of the State Capitol Police.

In addition to the above bills, I've previously covered House Bill 6185, which made changes to the state's personnel files laws and also changes to the gender discrimination law as well. 

Stay tuned....

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 Late last night, the Connecticut House approved House Bill 6187, better known as the Paid Sick Leave bill. The bill has some important changes from its original drafting including some tweaks to the definition of who is an employer and how many days an employee is entitled to.  

The text of the new bill (as amended) can be found here.

I will have a recap of the bill's new provisions and what it means for employers a bit later but suffice to say that employers in Connecticut need to play close attention to the bill's progress in the Senate.  

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The debate on the bill requiring employees to offer paid sick leave to employees continued into Thursday evening. But the first votes on various amendments to the bill (including one that now becomes the bill) seem to indicate that its passage is likely.

The operative bill under debate now is House Amendment A, which passed 82-59, and is a substitute for the entire bill.  

Republicans are now introducing various amendments to the bill which mainly remove various provisions. Many seem likely to fail given the strong majority that the Democrats have in the House.

I'll have a full recap of this landmark bill in the morning.  If passed later this evening, the bill would move to the Senate for a vote.  It's unclear whether the Governor would veto this measure.  In the interim, CT News Junkie has been providing other news updates as well.  

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Earlier this afternoon, the Connecticut House began debate on House Bill 6187 which would mandate that employers provide paid sick leave to employees .  You can watch the debate live at CT-N here.

I've previously discussed the bill at length in various posts here.  The basic measure would require every business of 50 employees or more to grant workers one hour of paid sick time for every 40 hours of work with a cap of 6.5 paid days per year. You can find the text of the underlying bill here.

Connecticut would be the first day to pass such a bill.

However, as of this afternoon, there were 26 amendments that were proposed to the bill so how the bill is finally structured is unknown. The bill's passage generally is expected, but various groups, including the CBIA have voiced their opposition to it, particularly given the economic climate.  The debate is expected to last for some time.

I'll recap the vote on the bill as events warrant and you can follow my twitter feed for further updates throughout this afternoon and evening @danielschwartz.

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On Wednesday, May 27th, National Labor Relations Board Chairman Wilma Liebman and General Counsel Ronald Meisburg announced the appointment of Jonathan B. Kreisberg as the Regional Director of the NLRB’s Regional Office in Hartford, CT (Region 34).

Mr. Kreisberg succeeds former Director Peter B. Hoffman, who retired in March 2009.

Employers and attorneys in Connecticut will no doubt be familiar with Mr. Kreisberg. He has been a career NLRB employee, and has served as Regional Attorney in the Hartford Regional Office since 1989. He is also a former chair of the Connecticut Bar Association's Labor & Employment Law Committee.

In a press release announcing the appointment, Chairman Liebman and General Counsel Meisburg stated:

Jonathan Kreisberg brings a wealth of experience and abilities to his new position. During his many years of service with the Agency, Jonathan’s excellent legal and organizational skills have resulted in the amicable resolution of many labor disputes and meaningful remedies for employees, unions and employers under the NLRA. We are confident that his considerable experience with the Agency and his active involvement with the labor-management community in Connecticut will enable him to continue the tradition of excellence in the Hartford Regional Office.

A native of Bayside, Queens, New York, Mr. Kreisberg earned his B.S. degree in 1974 from Cornell University’s School of Industrial and Labor Relations, and his J.D. degree in 1977 from American University’s Washington College of Law.

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If you should never judge a book by its cover, you can never judge a legislative bill from its title.

After all, you would think that a bill about "Penalties for Violations of Certain Personnel Files Statutes" (H.B. 6185) would actually be a bill about those violations.

While that may have been in the original bill, a Senate amendment to that bill -- which passed both chambers yesterday -- makes some of the most sweeping changes we have seen in some time to the state's laws banning employers from discriminating based solely on gender in the amount of compensation paid to employees. (The amendments' provisions are mainly lifted from Senate Bill 362 (S.B. 362).)

This bill -- which now moves on to the Governor for signing -- will be effective October 1, 2009 if and when signed.

Summary of Key Provisions

The key provisions of the measure:

• allow employees to go directly to court to file gender wage claims;
• expand possible employer defenses against gender wage claims;
• permit, rather than requires, a court to order awards when an employer is found to violate the law;
• extend the period to make a claim of discrimination (the statute of limitations) from one to two years following a violation (or in some cases, three years);
• expand the whistleblower protections to include those who testify or assist in a gender wage proceeding;
• permit possible compensatory and punitive damages for violations of the whistleblower protections; and

The Office of Legislative Research has a thorough summary here.  Among other provisions that employers may find interesting, the bill also allows employees to ask the court for legal or equitable relief, but the labor commissioner will not have that option. The bill allows employees to seek attorney's fees and costs (but eliminates the labor commissioner's ability to seek such fees.) 

Of course, there is still a provision in there about violating the personnel files act. Employers who violate the provisions of that act are subject to a $300 civil penalty for each violation. 

In some ways, the bill is a codification of some of the changes that were made at a federal level under the Ledbetter Fair Pay Act. For example, under this bill, the starting of a statute of limitations period would be relaxed.  It would occur::

when a discriminatory compensation decision or practice is adopted, when an individual is subject to a discriminatory compensation decision or practice, or when an individual is affected by application of a discriminatory compensation decision or practice, and shall be deemed to be a continuing violation each time wages, benefits or other compensation is paid, resulting in whole or in part from such a decision or practice.

What Does This Mean For Employers and What Defenses Are Available?

For employers, the bill is definitely a mixed bag. On the one hand, it greatly expands the type of claim and the time for bringing a claim for employees and adds a great deal more gravitas to the state's wage discrimination laws. On the other hand, it does provide some additional defenses for employers to use, which, in turn, allows employers to plan their business in a way that is in compliance with the law.

What are those defenses to a claim of wage discrimination? According to the bill, an employer must demonstrate that such differential in pay is made pursuant to "(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential system based upon a bona fide factor other than sex, such as education, training or experience."

The last category of a "bona fide factor defense" will only apply if the employer demonstrates that the factor  (A) is not based upon or derived from a sex-based differential in compensation, and (B) is job-related and consistent with business necessity.

And even then, the employee can overcome the "bona fide factor defense" if he or she can demonstrate that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.

I'll continue reviewing the bill (which was just passed in its current form last night) and will post  details on an upcoming program recapping this bill soon.

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Last week, the Connecticut House approved House Bill 5521 (H.B. 5521), which would bar Connecticut employers from using credit reports in their employment decisions such as hiring and firing. 

You can download the bill's text here. 

The bill's main provisions would prohibit employers from asking employees or prospective employee to consent to the creation of a credit report that contains information about that person's  credit score, credit account balances, payment history, savings or checking account balances or savings or checking account numbers as a condition of employment.

There are three exceptions, however. The employer can seek a report if (1) it is substantially related to the employee's current or potential job, (2) it is required by law, or (3) the employer reasonably believes that the employee has engaged in specific activity that constitutes a violation of the law.

Of course, the meaning of what "substantially related" is must also be looked at. The statute defines that fphrase to mean information contained in the credit report is related to the position for which the employee or prospective employee who is the subject of the report is being evaluated because the position (A) is a managerial position which involves setting the direction or control of the business, (B) involves access to customers', employees' or employer's personal or financial information other than information customarily provided in a retail transaction, (C) involves a fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, transfer money or enter into contracts, or (D) provides an expense account.

Under the bill's provisions, employees could complain to the Connecticut Department of Labor if they suspected a violation of the law.

The bill has had several amendments proposed to it and it was not on today's "go list", so it's unknown yet whether the measure will actually get voted on in the state senate before the term expires in a few weeks.  Until then, employers that use credit reports in their hiring process should continue to play close attention to this and speak out to their state senators about their views of the bill.

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Late last week, the Connecticut House approved Senate Bill 710 (S.B. 710) which makes some important changes to the state FMLA law to bring it more in line with the federal family and medical leave act rules as they relate to military caregiver leaves of absences.  

I've covered the bill in a post earlier this month and nothing has changed since the Senate passed it.  The bill now moves on to Governor Rell for her approval. 

Importantly, the provisions of this bill will be effective immediately upon the governor's signature.  

The core provision of the bill (you can download the text here) is the creation of a one-time leave related to injured armed forces members.

Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave. If there are any nuances between federal and state law, the more generous of the two benefits will apply. 

This measure will only apply to those employers who are already covered under state FMLA rules. (You can read my prior posts about state FMLA rules here.)

Employers should immediately start revising their FMLA policies to ensure compliance with this new state law.  This may require revising some forms as well to document the leave.  Note that this will not be that different from what has been implemented at the federal FMLA level, but because many employers in Connecticut are still unaware of those provisions, this new state law should serve as a wakeup call to get the policies updated now.

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The conventional wisdom lately is that the Employee Free Choice Act (EFCA or "Card Check" to others) will not pass in its current form.  (You can find my prior coverage of the EFCA here.) 

Over the last few days, however, various "compromises" have been floated. (H/T Shopfloor.) Of course, the very word "compromise" suggests some reasonable attempt to strike a middle ground, which is a debate in and of itself.

A Washington Post editorial over the weekend suggested that it is employer "intransigence" that is making such a compromise difficult.

WE HAVE SAID before that the Employee Free Choice Act is a flawed solution to a real problem: unfair barriers in the way of union organizing. We have been critical of the labor movement for its reluctance to consider alternatives that could level the playing field between labor and management. So we have, we hope, some standing to criticize a leading management group for its absolutist stance against not only the Employee Free Choice Act as written but also against compromise proposals. Instead of engaging in a good-faith effort to fix the problem, the group, the Coalition for a Democratic Workforce, chooses to deny that there is a problem.

Others, however, have a different view. Former NLRB Member Peter Kirasnow said the idea was "nonsense", going on to say that the idea that unions are in trouble because of the law was not supported by the evidence.

[T]he idea that the EFCA amendments presently being floated constitute a "compromise" is a peculiar usage of the term. As the editorial itself notes, EFCA opponents remain monolithically opposed to any form of the bill. The "compromise" is merely a recognition among Democrats that they can't muster the needed support for EFCA from within even their own ranks.

Recent government data shows that unions are far from the underdogs in all elections (winning 66.8 percent of all elections in 2008 -- the highest rate in over 50 years).  In fact, in 2008, the percentage of employees in unions went up. 

The White House has shown no desire to push this bill -- in any form -- right now with barely a mention of it on its website.  Whether some sort of bill is ultimately crafted that can garner enough votes for passage remains the question that everyone is still waiting on for an answer.

Employers should continue to track developments in this area but I wouldn't be expecting a bill anytime in the immediate future.

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Late last week, the Connecticut Senate approved a measure that would permit an employee to take up to 26 weeks of unpaid leave from work to care for family members who may have been injured in the line of military duty.  The bill (Senate Bill 710) is now on the House's calendar for a vote within the next few weeks; it is likely to be approved.

The bill mirrors many of the provisions that were implemented last year in revisions to the federal FMLA. 

The Office of Legislative Research has done a good job summarizing the measure's main provisions here. 

Notably, the measure has different provisions for private sector workers and state employees, so as the bill progresses, this distinction ought to be reviewed. 

The core provision of the bill, however, is the same for each -- a one-time leave for each armed forces member per serious injury or illness incurred in the line of duty.  Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave.  If there are any nuances between federal and state law, the more generous of the two benefits will apply.

In the meantime, employers should make sure their FMLA policies reflect the current state of the law and, if they do have any requests for leaves to care for injured servicemembers, employers should check back on the status of this bill -- if they are not already covered under federal law.

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A key legislative committee yesterday gave its approval to a bill which would mandate that certain employers give employees paid sick leave.  You can keep tabs on the bill status here. 

I've discussed the bill several times before and it appears that the basic structure of paid sick leave bill (H.B. 6187) has remained unchanged. The Judiciary Committee's passage of the bill suggests that the measure may now go to the House floor for a vote in the next few weeks.

The measure would require businesses of 50 or more employees to grant workers one hour of paid sick time for every 40 hours of work with a cap of 6.5 paid days per year.  You can find the text of the bill here. 

There are obviously valid arguments both for and against the bill. 

The CBIA, for example, has opposed the bill, contending that: it would make Connecticut the only state in the nation to mandate paid sick leave; increase labor costs significantly for any employer that currently provides anything less than the new sick-time mandate; block employers from crafting workplace personnel policies that best meet their employers' needs; and, immediately make Connecticut businesses less competitive particularly in a recession.  

In today's Hartford Courant, however, the director of Connecticut's Working Families Party (one of the groups supporting the measure) appeared to add a new reason for supporting the bill: swine flu.  According to the Courant, Jon Green, director of the Connecticut Working Families, stated:

It's an illustration why it's particularly important, and in everybody's interest, for employees to have some paid sick days....The advice given by the Centers for Disease Control ... is that people who have symptoms should stay home.

But in a difficult economy, people can't risk losing their jobs or even just a few days' pay because they have an illness.

Whether intentional or not, using the swine flu outbreak as a rationale for passing this bill would be mistake.  If the swine flu outbreak turns more serious, it will be up to everyone (not just businesses) to be responsible enough not to spread illnesses.  Indeed, it's not unreasonable to expect that during a flu pandemic many businesses will adopt short-term flexible work arrangements and telecommuting policies to keep the risks of affecting healthy workers to a minimum, thus eliminating the need for a mandatory paid sick leave bill. 

In addition, if the flu is serious enough, it may be a "serious health condition" entitling that employee to FMLA protection. 

Before the legislature passes the measure, it ought to consider and debate the long-term ramifications of paid sick leave on business and the economy, as well as overall public health.  History has shown that such outbreaks -- even serious ones -- come to an end.   

As I said before, there are some very valid reasons for passing the measure.  But using the swine flu outbreak to justify the measure isn't one of them.

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A bill which would allow individuals with certain medical conditions access to private employee restrooms in retail establishments was reported out of the Legislative Commissioner's Office and approved by various committees on Tuesday.

House Bill 6328 (download here) states that "Any retail establishment that has a restroom for employee use, which typically does not permit customer access to such employee restroom, shall permit a customer to use the employee restroom during normal business hours if the restroom is maintained in a reasonably safe manner."

But the bill also requires that four other conditions to be met too: 

(1) The customer requesting access to the employee restroom presents written evidence, issued by a licensed health care provider, that documents that the customer suffers from an eligible medical condition;

(2) A public restroom is not immediately accessible to the customer;

(3) At the time that the request for access to the employee restroom is made, three or more employees of the retail establishment are working; and

(4) The employee restroom is located in an area of the retail establishment that does not present an obvious risk to the health or safety of the customer or an obvious security risk to the retail establishment.

The bill moves on to the House floor where, according to the Associated Press, some legislators have expressed reservations about it.

The bill is obviously well-intentioned. Those with conditions like Crohn's disease may have the sudden onset of the need to use the restroom and its a serious and genuine condition.(You can view the Crohn's & Colitis Foundation of America website here, which has some very helpful information.  That organization even offers members the opportunity to print cards that state the person has a medical condition that requires you to use the bathroom urgently.) And for employers, being flexible in your bathroom access may win you a few more customers in the long-term. 

So, while this is one of those bills that pops up from time to time that may be very well meaning, it would create yet another series of regulations that employers would need to regulate.   All the exceptions of the bill only add to the disruptive nature of the bill.  Can you imagine an employer trying to figure out (with a customer standing there) whether the business meets various exceptions on the fly?  And you can imagine other issues that might come up such as what about allowing families with small kids the same sort of access?

2009 is shaping up to be among the busiest years in a decade for employers. This is just another bill to be on the lookout for as the session winds up in the next month or so.

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As background, everyone knows that Connecticut has a minimum wage law for employment (now at $8.00 per hour, going up to $8.25 for 2010). While there are some limited exceptions to that rule (most notably for servers and bartenders who get a tip and some apprentices), it is now viewed as a societal norm that everyone should get a minimum wage for work performed.

But Connecticut and the federal government have another exception that is not as widely known. 

For example, in Conn. Gen. Stat. Sec. 31-67,  the Department of Labor may issue "to any person whose earning capacity is impaired by age or physical or mental deficiency or injury, a special license authorizing employment at such wages less than the minimum fair wage and for such period of time as is fixed by the commissioner and stated in the license."

Federal law has something similar, the background of which can be found at the DOL's website here.  Employers that use such sub-minimum wage rates have special notice obligations as well.

In general terms, this provision basically ALLOWS employers to get government approval to pay employees with some disabilities less than minimum wage.  We can debate whether this law still servers a purpose in today's workplace where those with disabilities are to be treated equally. 

But there is no doubt that this program does impact those in Connecticut and is being used. For example, in the Hartford area, HARC helps people with an intellectual disability with various work programs at local companies.  HARC, which was founded in 1951, has placements at companies as varied as lawfirms to hospitals.

For employers, it is an example of how conventional wisdom about minimum wage may not hold up.  And perhaps it may open up an opportunity to a group of individuals who might not otherwise find employment.

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While everyone remains focused on the budget dilemma at the state legislature, other business -- slowly and quietly -- is still occurring. 

Late last month, the House unanimously passed H.B. 6185, a measure that would create civil penalties for employers that do not provide access to personnel files of their employees. 

Specifically, this bill subjects any employer, officer, agent, or other person who violates the provisions of the Personnel Files Act to a $300 civil penalty for each violation.

The Labor Department imposes the penalty and can ask the attorney general to initiate civil action to recover any unpaid penalties.

The bill now moves on to a Senate vote where, if it gets put on the calendar, its prospects seem strong.  Nevertheless, many bills never make it to a vote so its eventual passage is no sure thing.

For employers, compliance with the Personnel Files Act should be routine.  I've previously discussed the basics of personnel files in posts here and here. 

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Over the last few weeks or so, plenty of commentators have been hyperventilating over the Employee Free Choice Act -- a bill pending in Congress. I've resisted the urge to do so in the belief that we were still a long way from passage and that the concepts in the bill were going to go through a lot more refining. 

 

This belief was also grounded in the fact that the White House had barely bothered to mention it on the website. Even today, type in "Employee Free Choice Act" or "EFCA" to the White House site and you get virtually no entries, other than a passing reference in a videotaped speech to the AFL-CIO. 

So, for anyone that's been tracking votes, it came as little surprise to hear yesterday that Senator Arlen Specter of Pennsylvania signaled his opposition to the bill in its current form. 

In doing so, he proposed a number of alternatives for consideration to reform the National Labor Relations Act.  Among them:

• Speeding up elections;
• Broadening the scope of what an "unfair labor practice" is;
• Increasing the penalties for violations of labor laws.

The EFCA Report has a full list of the alternatives and you can read the Senator's prepared remarks on his website here.   You can also view his entire speech in the clip above.

By issuing a proposal (not exactly an "alternative" per se to the EFCA, but additional reforms), Senator Specter has indicated his willingness to pass SOME reforms of the nation's labor laws.  But it is now unlikely that the EFCA will pass in its current form.

For employers, the best path may simply be to ignore the hyperbole and continue to focus on ways to improve your relationship with your workforce.  A responsive management that listens to its workforce and treats its employees fairly has always been among the best tools that an employer to keep its workforce from organizing, if that's its desire.  

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With the budget issues looming large over this session of the General Assembly, it's tough to get a handle on what labor & employment law bills are still a possibility for this session. One way to do that is to check to see what bills have been reported out of the Labor & Public Employees committee because if the bill can't make out of committee, it's not likely to go anywhere.

So what's still alive in this session?

• HB 5521 would prohibit the use of credit reports as a basis for making employment decisions absent an exception.   Employers may use such reports when required by law, when it is "substantially related to the employee's current or potential job" or the employer has "reasonable cause to believe that the employee has engaged in a specific activity that constitutes a violation of law. One strange provision? The proposal doesn't use existing employer/employee definitions, which makes little sense.
• HB 6821 would institute civil penalties of up to $300 for failure to comply with various personnel files laws (such as providing employees with access to the law).  While the law presently requires access to personnel files, this bill would give additional power to the Department of Labor to enforce these provisions.
• HB 6187 is this year's Paid Sick Leave bill that would mandate employers provide their employees with days off for illness. I've previously discussed this bill extensively here. 
• HB 6188 is an attempt to introduce the concept of "workplace bullying" into the workforce; the present bill would not legislate away such conduct but would instead require a state agency to report on the level of "abusive conduct" in the workplace.
• HB 6189 would require every employer to include in its quarterly wage report the wages, gender, and job classification of each employee during the reporting period. Currently, employers must submit wage reports that include (1) employee names, (2) Social Security numbers, and (3) wages earned in the quarter.
• There are also several bills relating to labor matters, including SB 365 (which would prohibit captive audience meetings),  and HB 6534 (which would create a "card check" mechanism under the State Board of Labor Relations, similar to that being proposed at a federal level). 
• SB 710 would amend the state's FMLA laws to bring it more in line with the federal FMLA, regulations as well as add provisions for military servicemember care leave.

There's still a long way to go in the session, but the next few months promise to be busy with lots of employment law issues likely to be debated and pondered. For a full list of bills reported out of the Labor & Public Employees committee, you can click here.

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After months of nonstop speculation, the Employee Free Choice Act bill, which was introduced last year in Congress, is expected to be introduced later today by Rep. George Miller of California. 

But its passage this year is far from certain.  As the EFCA Report blog and others have stated, several senators, including Sen. Arlen Specter's (R-PA), Sen. Lincoln (D-AR) and Sen. Landrieu (D-LA) are in the publicly undecided camp, leaving the filibuster in the Senate firmly in play for now. 

For employers, one thing is certain: You can use this time when the bill is being debated to hone up on the EFCA and prepare your workplace, if necessary, for its possible passage. Even if the EFCA is not passed this year, it is likely to come up for debate again and again. 

Frank Roche, of the KnowHR blog, has an interesting take on this as well with the publicity videos that have been rolling out both in favor of and against the passage of the bill as well. As Frank preaches, there's no time like the present to get going on educating employees about the EFCA:

When is the best time to plant a tree? 10 years ago. And when is the best time to start communicating about EFCA? 10 months ago. If you didn’t already start, there’s no time like the present to get communicating about EFCA and its implications for your organization.

Update: 8:30 a.m.  Mike Allen's Politico column has some other interesting nuggets about the EFCA's introduction today:

• Intensifying its campaign to defeat the measure, the U.S. Chamber of Commerce launches print and radio ads today in Pennsylvania, Virginia, Louisiana and Nebraska (all with key senators.) This coincides with nearly 200 small business leaders and Chamber members descending on the Hill to lobby against the measure. Afterward, some will tape interviews that will later be used in TV spots.
• LINGO: The measure would allow unions to organize based on signed cards instead of secret ballots. Business calls it “card check.” Democrats, who hate the term “card check” as much as “the Democrat Party,” call it the “Employee Free Choice Act” or “EFCA.”

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Employment law is quite the hot topic among various blogs. So much so that it's time for the next installment of Quick Takes -- a quick summary of what's new and noteworthy.

• Don't miss the Ohio Employer's Law Blog's post on how NOT to fire an employee. In the post, Jon Hyman describes how an employer took an already difficult situation and made it worse.  Lesson from Jon: Do not do layoffs or firings via e-mail. Period.
   
• World of Work continues the focus on the new COBRA subsidies with a link to FAQ by the Department of Labor.  A new blog, Compliance Building, has information from the IRS also about the new COBRA subsidies. 
   
• The Employee Free Choice Act is expected to be introduced into Congress soon. For what its worth, one union leader is predicting passage by August, according to a post by the Pennsylvania Labor & Employment Blog.   And although the EFCA has been recapped extensively by this blog and others, the Labor & Employment Law Blog has one more here. 
   
• If there was really a remaining question about whether a plaintiff's Facebook postings were discoverable, a recent court finding out of Canada suggests the answer: Yes.  (Delaware Employment Law Blog)
   
• Richard Hayber, over at the Connecticut Employee Rights Blog points out a recent case by a federal appeals court that holds that releases of future claims in last chance agreements are invalid.   While the case isn't binding in Connecticut, Richard clearly believes that the same concepts could be applied by a Connecticut court.
   
• My former colleague, Richard Tuschman from the Florida Employment Law Blog, highlights a case in which a common question is raised: Does hiring an employee who has a non-compete agreement from a competitor constitute "tortious interference" (and subject that new employer to a claim)? The answer? Maybe not, but there are still other claims to worry about.

And on the lighter side, don't miss this fun post by the Delaware Employment Law Blog recapping the top 10 excuses for being late to work.

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Connecticut's prospects of becoming the first state with a broad paid sick leave provision got a little closer on Tuesday as a legislative committee voted 8-3 (along party lines) to approve the measure.  While such a step was not unexpected (it passed committee last year), it is another indication that proponents of the measure are not willing to let this issue go away without a fight.

I've discussed the bill several times before and it appears that the basic structure of paid sick leave bill (H.B. 6187) has remained unchanged. 

The measure would  require every business of 50 employees or more to grant workers one hour of paid sick time for every 40 hours of work with a cap of 6.5 paid days per year.  You can find the text of the bill here. 

Last year, there was strong opposition to the bill, including the Connecticut Business and Industry Association.  You can find the CBIA's rationale for opposing the bill here.  That opposition was noted by the My Left Nutmeg bill, which captured the rationale in support of the bill. 

There is no indication that the CBIA's opposition is softening, but the Republican-American is reporting this morning that both "proponents and opponents" of the bill believe the bill will be passed this year.

 

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Across Connecticut on Monday, there were plenty of parents who woke up with one of the biggest headaches a parent faces -- a sick child.  (Attorneys are not immune to the colds and bugs that traverse the state.)

Finding emergency day care, or having to take an unscheduled vacation day are two issues that families have to confront. And the ramifications are large: employers are left to scramble for coverage and daily plans are scrapped.  In the wintertime, cold season just wreaks havoc at some point or another on virtually everyone in the workplace.

Against this backdrop, boosters of the paid sick leave bill (H.B. 6187) that has been introduced in the General Assembly held a press conference on Monday:

They want lawmakers to require every business of 50 employees or more to grant workers one hour of paid sick time for every 40 hours of work with a cap of 6.5 paid days per year.  You can find the text of the bill here.

Last year (as you can find in my previous posts), there was strong opposition to the bill, including the Connecticut Business and Industry Association.  You can find the CBIA's rationale for opposing the bill here.

There are valid arguments to be made for both opposing and favoring the bill. But ultimately, it's hard to see how much has changed. If anything, the difficult economic climate gives opponents of the bill further ammunition to support the claim that further regulation on Connecticut's employers at this time will place them at a serious disadvantage. 

In any event, with the Governor voicing her opposition to it and the budget issues dominating this session, don't expect to see any quick action on this bill. It still faces a significant uphill battle. 

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She warned the public on Monday that the cuts would be deep.  Today, we're finding out how deep.

Governor M. Jodi Rell today released her proposed budget for the two year period from 2009-2011.   (You can find the summary here and her budget address here.) Although there will be plenty to analyze over the next few weeks and months, the changes she proposes would eliminate several state agencies and commissions while cutting back on several others.

The proposal numbers in the hundreds of pages so this post is not intended to be an exhaustive summary, but here are a few of the highlights of the budget that are relevant to the labor and employment law arena.

• The Governor did not propose eliminating the Connecticut Commission on Human Rights and Opportunities (as a recent column in the Connecticut Law Tribune recommended). However, she has proposed closing the Norwich and Waterbury offices of the CHRO and transferring those cases to Hartford and Bridgeport.  The proposed budget would also eliminate 28 full time positions (out of 103) though several of those positions are vacant right now.  The closing of two offices is expected to save the government over $1.6M each year.
   
• The proposed budget also affects the Department of Labor which has seen an influx in unemployment claims over the last year.  Among the proposed cuts:
  • Elimination of the Youth Employment Program
  • Elimination of Occupational Health Clinics

The budget would also create a new Middle College program (designed to transition students from the technical high schools and community colleges to additional educational opportunities) and move some of the DOL's functions to this new program.

• The Office of Healthcare Advocate, which assists consumers to understanding their rights and responsibilities under various healthcare plans, would be eliminated and its functions transferred to the Insurance Department.  For employers, the OHA has been responsible for a poster that was the subject of some discussion last year.
   
• The Judicial Branch would also receive a share of the cuts, including the proposed closing of the Bristol and Meriden courthouses.  But notably, the Office of Attorney General is almost untouched by the budget with no losses of positions. 
   
• The proposed budget would also eliminate the Permanent Commission on the Status of Women resulting in the elimination of 10 positions.  Various other legislative commissions, such as the ones for Aging, Children, Latino and Puerto Rican Affairs, and African-American Affairs, have also been proposed for elimination. 

Various legislative members have already expressed skepticism and opposition to the Governor's plan (which is expected). Where the compromise ultimately ends up is a question that we probably won't know the answer to for some time. 

For employers that rely on various grants from the government or that deal with certain agencies on a frequent basis, the budget certainly indicates that it will not be business as usual in the future.  What that means exactly is simply too early to tell.

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There's a relatively new children's book out now entitled, "The Wolf Who Cried Boy". It's a humorous take on the old fable and I read it outloud one evening this week at home.  

I can't help but be reminded of both the classic and new story, reading all of the hyperbole and hype of the last 24 hours regarding the new Ledbetter Fair Pay Act and those who are quick to predict that the floodgates of employment litigation are now open. 

Let's clarify a few issues up front: 

• Is the Ledbetter Fair Pay Act important for employers to understand? Sure, just as all changes to employment laws are important. 
  .
• Does it dramatically change the law? Not really.  Before this law, employers still weren't allowed to engage in pay discrimination; it's just that the time frames for bringing suit under some pay discrimination claims had been defined narrowly by the U.S. Supreme Court in 2007.   This Act extends the time frame for bringing suit by treating each new paycheck as a basis for a discrimination lawsuit, rather than just the original decision to discriminate. 
   
• Will this lead to a dramatic upturn in pay discrimination lawsuits? The jury is definitely still out on this one.  

Here's the greater perspective.  Before the U.S. Supreme Court decision in 2007, women could bring pay discrimination lawsuits under both Title VII's overall scheme, or the Equal Pay Act.  For reasons that are still not fully known (though discussed by National Journal's Stuart Taylor here (H/T Point of Law)) , Ms. Ledbetter did not pursue her Equal Pay Act claim on appeal after it was dismissed on the merits (effectively forfeiting it).  The U.S. Supreme Court ruled only that for pay discrimination claims brought under Title VII, a 180-day statute of limitations applied to pay discrimination decisions.. 

Thus, after Ledbetter, if the employer's discriminatory pay decision occurred in 2007, the employee was out of luck now to sue under Title VII.  Each new paycheck was not an "act" of discrimination. 

The new law treats each paycheck as a new "act" of discrimination, effectively re-starting the statute of limitations each time a paycheck is issued.

But here's why the fuss about the new act is overblown. The employee still could sue under the Equal Pay Act. Indeed, employers should be much more concerned about the Equal Pay Act -- which was unaffected by the Fair Pay Act --  when it comes to pay discrimination claims.  

Unlike Title VII pay discrimination claims, employees do not need to file their Equal Pay Act claims with the EEOC, and claimants have two years in which to file their claim under the Act (three years if the violation is willful).

But here's the kicker for Equal Pay Act claims: The employee does not need to prove discriminatory intent, unlike Title VII.  In fact, the Equal Pay Act focuses on disparity in pay for substantially similar work; contrast that with Title VII which focuses on a discriminatory action that causes a disparity in pay.  So, when the employee is paid less than similarly situated employees of the opposite sex, an Equal Pay Act claim can arise without showing that the employer intended to discriminate. 

Does this mean that employers have no reason to be concerned about the Ledbetter Fair Pay Act? Of course not. The act has the potential of opening of employers to older claims of discrimination against managers and supervisors who have long since gone. But remember, employees will still need to show that the employer intended to discriminate -- a burden that is not insignificant.  And former employees are not going to be able to revive a claim of pay discrimination without a recent "paycheck" to go along with it. 

It's difficult to get exact numbers of pay discrimination claims and look at the numbers of claims filed both before and after the Ledbetter decision came out, but a cursory review of the statistics published by federal agencies under the No Fear Act doesn't seem to reflect a big downturn in the numbers of pay discrimination claims after Ledbetter.  In fact, the United States Postal Service reports more pay discrimination claims being made in 2008 (after Ledbetter), than 2007.  Thus, with Ledbetter effectively being overturned, it's hard to believe that the Act will impact the numbers of claims significantly. 

There is another bill that would change the underlying law that employers should follow closely -- the Paycheck Fairness Act (H.R. 12). The Paycheck Fairness Act would limit an employer’s ability to justify paying different salaries to workers based in different locations with different costs of living. The bill would lift the caps on compensatory or punitive damages for which employers would be liable, in addition to current liability for back pay. These damage penalties would apply to even unintentional pay disparities.

The House passed that bill as part of the Ledbetter Fair Pay Act bill, but the U.S. Senate did not take that up.  Backers of that bill, including Rep. Rosa DeLauro of Connecticut, will continue to press on. 

For employers, the Ledbetter Fair Pay Act should just be another reminder to be vigilant in the monitoring of your compensation practices.  The EEOC's Compliance Manual (H/T Moore) gives some suggestions on the issues that employers can review to determine their compliance with the applicable laws.  

There's little reason for employers to cry "wolf" or "boy" over this latest Act. Stay focused and use this current annual review season to ensure that your pay practices are supported by accurate data and are fair. 

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The Connecticut Labor & Public Employees Committee is now scheduled to hold a hearing on various labor bills of relevance and importance to employers in Connecticut. Some are re-hashes of bills raised last year, but others, including amendments to the state's FMLA laws are new.  The hearing is scheduled for February 5, at 2 p.m. at the Legislative Office Building, Room 2-E.

Here are some of the bills scheduled to be discussed (the full list is available here):

• Raised S.B. 710 is a bill that makes some significant changes to the state FMLA law. The changes -- at least most of them -- are not as dramatic as they would first seem; if passed, it would make Connecticut's FMLA more in line with the federal FMLA.  However, given the mess that now exists between CTFMLA and FMLA, it doesn't go far enough in ensuring a bit more consistency between both laws. But, with a bit of optimism, perhaps these differences -- which are outlined here -- can be fleshed out further at the public hearing.
• Raised H.B. 6188 brings workplace bullying -- the subject of a hearing and consideration last year -- back to the forefront. But this time, the bill is a bit more narrow and designed only to be applied to state workers.  Nevertheless, it'll be interesting to see if it goes very far again this year.
• Raised S.B. 715 would require employers to provide a reason for terminating their employees.  It would also require employers to keep these termination notices for ten years.  It'll be interesting to see if this bill goes anywhere.  Conceptually, it appears this bill could alter the at-will employment rule in Connecticut, which allows employers and employees to end an employment relationship for any reason or for no reason at all.  After all, if employers need to provide a reason, doesn't that mean that the employees are not "at-will"?
• Raised H.B. 6187 is this year's version of the paid sick leave bill.  It would require employers of 50 or more employees  to provide employees with six or more paid sick leave days.  

 

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While much of the press reports about the U.S. House of Representative's passage of the Economic Stimulus bill center on the size of it, there's a lot of details that haven't yet been explored.  Because the bill's prospects are looking (somewhat) favorable, it's time to look at some of the specifics that relate to employment law.

At the outset, it is interesting to note that there is a "buy American" provision in the bill that would mostly bar foreign steel and iron from infrastructure projects -- a clause that some are criticizing.  That provision could have a direct impact on work in the United States -- but could also increase the costs as well. 

 

You can find all the details of H.R. 1 here (and it should be noted that the Senate version has some differences). But there are a couple of other provisions in H.R. 1 that also relate to labor and employment law, including:

• Prevailing Wage Rates - While not much of a surprise, Sec. 1111 provides that all laborers and mechanics will be paid prevailing wage rates on any contracts funded directly or indirectly by government funds.
• E-Verify - Even with the delay in the E-Verify implementation until at least May 2009, the House version of the bill (Sec. 114) requires all entities that get a contract under this stimulus plan must participate in the government's E-Verify program.  This is not terribly surprising since other federal contractors need to comply with the new E-Verify rule, but it is made explicit in this bill. 
• DOL Funding -- The Bill (Title IX) calls for spending $4B to the Department of Labor, which can then provide grants for adult employment and training, youth summer jobs, training in high growth and emerging industry sectors. The Bill would also provide funds for community service employment for older Americans and to assist state unemployment insurance departments.  In addition, $300M will be allocated for construction and rehabilitation of various Job Corps Centers.
• Incentives to Hire Unemployed Veterans and "Disconnected Youth" - Section 1421 provides companies with tax incentives to hire recent veterans and "youth" between ages 16-25 who are not in school and not "readily employable" because of a lack of "basic skills". 
• COBRA Assistance - Sec. 3002 would provide for some assistance paying premiums under COBRA continuation coverage. COBRA typically applies to employees who have been laid off and are allowed to continue their insurance so long as they pay the premiums.  For employers, this bill provision should be followed because they may want to change their severance structure in light of the government's provision of additional benefits. 

With a bill this large, it is important for employers in all industries to stay on top of the specific provisions.  And President Obama has already signaled that the provisions in this bill will need be modified before final passage in the Senate (and committee).   The Senate is expected to start debate on its version of the bill early next week. 

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Another snow day.

The winter continues its white deliverance. But in the meantime, the employment law world never stops.  Here are some items to keep you up to speed on what's been happenning locally and nationally.

• The latest projections are that the Employee Free Choice Act will be brought up for debate in Congress sometime this summer. In the meantime, there's lots of analysis that is coming out in support of or against the bill  -- much of it filled with empty rhetoric. One of the more cogent ones, is a post by respected economist and federal appellate judge Richard Posner who has his doubts as to whether the bill will actually promote unionization.  (H/T California Labor & Employment Defense Blog).
• The Lilly Ledbetter Fair Pay Act is now due for signature by President Obama on January 29th.  
• It's Girl Scout Cookie season and, as the HR Capitalist now reminds us, this brings into focus non-solicitation policies that many companies have.  "I hate saying no to the sale of girl scout cookies, school sales, etc. I'm usually a "no-harm, no-foul" type of person, but every time I see one of these cases, it always perks up my sensitivity to solicitation in the workplace."  
• Word in this morning is that the E-Verify rules will now be delayed further to May 20th and will allow the Obama administration time to review the proposed rules.  
• Above the Law reports that the Government's job website was actually hacked over the weekend.  As if workers didn't have enough to worry about...
• Rush Nigut, who runs a terrific blog in Iowa, has a post about using Twitter in the workplace. If you don't know what Twitter is, now's the time to start.  
• John Phillips has a good article about why employees don't go to human resources. For HR professionals, it's worth reviewing because if you can get to the root of the problem, you have a better chance of solving it before it blows up into something larger.

And if the snow here gets you in the mood for a little Robert Frost, here's a link to his classic poem: Stopping by Woods on a Snowy Evening. 

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Earlier this evening, the U.S. Senate -- after hours of debate on various amendments this afternoon -- passed the Lilly Ledbetter Fair Pay Act of 2009 by a vote of 61-36.  Both Connecticut senators, Dodd and Lieberman, voted in favor of the measure.  You can read the full text of the bill here. 

President Obama has previously indicated that he will sign the bill; the only question now is "when".  On the new White House website, it states:

Fighting for Pay Equity: Despite decades of progress, women still make only 77 cents for every dollar a man makes. Throughout their careers, President Obama and Vice President Biden have championed the right of women to receive equal pay for equal work. In the Illinois State Senate, President Obama cosponsored and voted for the Illinois Equal Pay Act, which provided 330,000 more women protection from pay discrimination. In the U.S. Senate, Obama joined a bipartisan group of Senators to introduce the Fair Pay Restoration Act, a bill to overturn the Supreme Court's recent 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Company. The bill will restore the clear intent of Congress that workers must have a reasonable time to file a pay discrimination claim after they become victims of discriminatory compensation. The President was also a cosponsor of Senator Tom Harkin's (D-IA) Fair Pay Act, and President Obama will continue to promote paycheck equity and close the wage gap between men and women.

The details of the bill have been recounted numerous times, but there's a good new summary up by the Senate that is available here. 

There is one aspect, though, that hasn't received much press so far and that is the effective date of the Act. Section 6 indicates that it is effective retroactively to Mary 28, 2007 (the day before the U.S. Supreme Court decided the Ledbetter case) and would apply to all compensation discrimination claims pending on or after that date.

An obvious question now arises: What about all of those discrimination claims that have been dismissed between now and then -- what happens to those claims? And what happens to the Ledbetter claim itself? 

The answer to those questions will be the subject of a future post. For now, however, employers in Connecticut and nationwide should brush up on their compensation policies and procedures. And for human resources managers -- your life just got a lot more...interesting.

 

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The Connecticut General Assembly is in full swing with a wide assortment of labor & employment law bills and concepts being introduced this month -- many simply a rehash of bills that were introduced last year and never went anywhere.   You can find a full list of the bills before the Labor & Public Employees Committee here.

So what are some of the highlights and otherwise notable proposed bills?

• Proposed S.B. 221 would require Connecticut employers to use the new federal E-Verify system (that has been put on hold temporarily) to confirm employment eligibility of newly hired employees. 
• Proposed S.B. 362  would "require equal pay for equal work" and would create a parallel structure to federal laws on the same subject. 
• Proposed S.B. 114 would amend state law to "prevent large corporations from terminating workers with learning disabilities for taking long meal periods and losing track of time."  (If you're looking for more specifics, you're not going to find it in the bill; this is the verbatim text.)
• Proposed H.B. 5514 would require employers of  50 or more employees to provide up to six paid sick leave days per year.
• Proposed H.B. 5521 would prohibit employers from using credit reports in "making employment decisions, except when (1) the need is substantially job related, (2) required by law...." 

As I said last year, much of what gets proposed in the General Assembly stands no likelihood of passage. Sometimes bills are proposed so that a politician make a certain statement or show support for a constituent. So, for example, I suspect that the bill prohibiting "large corporations" from terminating learning disabled employees for taking long meal breaks and losing track of time will die quietly in committee.

But others, particularly the paid sick leave bill, stand a much greater likelihood of at least getting out of committee.  The details have yet to flushed out on some of these so stay tuned for further developments.

(H/T Inside the Capitol)

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With the change in the administration, the official White House website is now up. It's still a little sparse now but has such nifty features as an official White House blog. 

Of more relevance to employers and businesses, however, is the detailed list of the new adminstration's agenda.  While much of it is not terribly "new" (portions were up during the campaign and transition), it still feels more "official now".

You can view the civil rights agenda here, with other areas affecting employers such as disabilities, and paid sick leave and equal pay also detailed.

But what is missing as of early Tuesday afternoon is any reference to the Employee Free Choice Act (EFCA), a sweeping bill that is designed by its proponents to strengthen unions.

Under the Transition site (Change.gov), it was plainly listed under the Economy agenda.  A look at the same page in the official White House site contains a discussion of the Recovery and Reinvestment Plan with no reference to EFCA. 

Even stranger, when you type "EFCA" into the search term, you get no results.  And a search for "Employee Free Choice Act" shows no direct hits either. (Shortly after drafting this post and running the search, the White House site has temporarily gone offline -- presumably due to high traffic). 

It's very early into this new term and perhaps this was merely an oversight, but for those looking for a sign -- any sign -- that the new President will not make EFCA a top priority, perhaps -- just perhaps -- this might be it.

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To the surprise of absolutely no one, the U.S. House of Representative overwhelmingly passed two employment law bills addressing compensation issues.  

The Lilly Ledbetter Fair Pay Act, HR 11, pretty much split among party lines 247-171. The Paycheck Fairness Act, HR 12, passed 256-163.  

The bills now move on to the Senate, where the vote is expected to be closer.  

 

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The Wall St. Journal is reporting this morning that the Employee Free Choice Act bill is not likely to be among the pieces of legislation to be considered in the new administration's first 100 days:

Unions likely won't see action soon on legislation that would make it easier to organize workers, but Democrats are moving to back a pair of less-controversial bills that would facilitate filing discrimination suits against employers.

Labor had hoped the Obama administration would take up the Employee Free Choice Act within its first 100 days. The bill would let unions register members by collecting signatures on cards rather than through elections. But enactment now appears doubtful.

The bill is opposed by business. Mark McKinnon, a spokesman for the Workforce Fairness Institute, a business-backed group that opposes the measure, said support for it is weakening and the business lobby expects to have enough votes to block it with a filibuster, as it did in 2007.

In light of the expected opposition to EFCA, as I reported yesterday, it appears unions and other groups are advocating for the "low-hanging fruit", and seeking passage of the Paycheck Fairness Act and Lilly Ledbetter bill quickly.  The new bill (which combines both aspects of the two prior bills into one) is expected to be considered by the House as early as Thursday.

I've discussed the pros and cons of the EFCA in various posts before. Regardless of the immediate prospects for passage of the EFCA, now is certainly the time for employers to educate themselves about it.  The issue is most assuredly not going away. 

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This is shaping up to be an interesting year for the Connecticut General Assembly.  The budget forecasts are projecting massive deficits.  As a result, I would not be surprised to see the budget debates dominating the agenda of the Connecticut legislature.

Nevertheless, other bills will still be proposed, debated, and certainly  passed during the several months that the Connecticut legislature is in session.  Advocates for a transgender anti-discrimination bill believe this is finally the year for passage of such a bill. 

According to this morning's Courant:

Transgender activists believe this is the year they will gain equal protection under the state's anti-discrimination laws.

"We feel good," said Jerimarie Liesegang, who leads the Connecticut TransAdvocacy Coalition. "We've done the groundwork, we've done the education and we know we have the votes."

A proposal, to be introduced in the legislative session that begins Wednesday, would prevent people who in any way blur gender lines from being discriminated against in the workplace or while seeking housing or obtaining credit. More than a dozen states, including California, Illinois, Maine, Massachusetts, Oregon and Rhode Island, have enacted similar laws.

Bills that bar discrimination based on gender identity or expression have come up several times over the past few years, but failed to win passage. In 2007, both the judiciary committee and the Senate approved such a bill, but it died in the House of Representatives.
 

I've previously discussed this proposal in various posts here.  Although same-sex marriages were legalized last year by the Connecticut Supreme Court, the legislature didn't pass the concept earlier.  Thus, I think the transgender/gender identity bill still faces some more hurdles because the concept remains foreign to many people.  (You can educate yourself with some useful materials from the Connecticut TransAdvocacy Coalition) Some raise issues of who gets to use the restroom in the workplace (and when), but these probably can be worked out if people spent some time addressing it.

Because the bill died in the House of Representative last year and with the legislative facing huge issues of how to fix the budget, I have a tough time believing that legislative leaders will want to use political capital pushing this bill, no matter how noble they believe the cause is.  The votes may be there, but the energy may not.

For employers in Connecticut that have an gender identity-related issue arise in their employment, seek some legal counsel. Just because it may not be illegal to discriminate, doesn't mean the employer can't work out a sensible solution to some issues (or that other legal issues may not be implicated).  Indeed, some employers in Connecticut have their own anti-discrimination pledges that cover gender identity as a protected class. 

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One of the more interesting television shows out there now is the Emmy award-winning  "The Amazing Race". At the start of the show, the host shouts, "Ready, Set, Go!" and off the contestants go on a race around the world places as yet unknown.

That, in essence, is what 2009 is shaping up to be in employment law: a race to change things as fast as you can with the final destination (and pitstops) as yet unknown.

This week, for example, two employment-law bills are on the fast-track for passage in the U.S. House, but it's being done so quickly that you may have a tough time catching up. 

Several Washington, D.C.- based blogs (including the Washington Labor & Employment Wire) are reporting this site that two pay-related bills are on the fast-track for consideration by Congress, perhaps in an effort to get them on to President-Elect Obama's desk by the time inauguration rolls around.

From the Washington D.C. Employment Law Update:

...House Majority Leader Steny Hoyer (D-Md.) announced that two employment-related bills will reach the House floor later this week. Both the Paycheck Fairness Act (H.R. 1338) and the Lilly Ledbetter Fair Pay Act (H.R. 2831) were introduced and easily passed the House during the last Congress, but stalled in the Senate due primarily to Republican opposition and a presidential veto threat. It is noteworthy that both bills are being sent directly to the House floor instead of being vetted through the committee process....

The Paycheck Fairness Act [version that]... will reach the House floor this week aims to do the following:

• Amend the Fair Labor Standards Act (FLSA) to allow victims of pay discrimination to potentially recover more remedies than those currently provided in the FLSA

• Enforce a new concept of “equal pay for comparable work”

• Prohibit employers from reducing other employees’ wages to achieve pay equity

• Require employers to disclose job categories and pay scales as needed to enforce the law

• Prevent employers from relying on the “factor other than sex” affirmative defense in wage discrimination cases; instead, employers must additionally prove that such factor is “job related” and serves a “legitimate business purpose.” An employee could rebut this claim by showing that an “alternative employment practice” exists that could achieve the same business purpose

• Entitle employees to unlimited punitive and compensatory damages, regardless of whether the wage discrimination was intentional.

You can view some of my earlier posts about the Paycheck Fairness Act starting here.  As I said then, this bill will re-emphasize to employers the importance of documenting pay decisions. 

On the Lilly Ledbetter bill, I summarized it and discussed the issues related to it in posts such as this one.   My comments then are fairly relevant to today as well:

The issue in Ledbetter case was, in many ways, a technical question of how far back an employee should be able to go to challenge past pay practices -- in other words, about deadlines and "statute of limitations". The Supreme Court said that the 180-day deadline found in the statute should apply. Should the statute of limitations remain at 180 days? 1 year? 2 years? 5 years? 20 years? I don't suggest to know what the right answer is. Ultimately, the answer to that question will help shape the Paycheck Fairness Act bill's final outcome and it should be the one that the politicians focus on.   Employers would certainly like shorter statute of limitations and have good arguments that because supervisors leave, short statute of limitations prevent stale claims from being brought. But employees have decent arguments that a longer statute of limitations should apply because discriminatory pay practices are often learned of only after they occur.
 

For employers, the debate over the Paycheck Fairness Act is one worth paying attention to because the real-world consequence of the bill's passage (whether now or next year) will be to increase the importance of documenting pay practices and to give employers another reason to preserve such documents for future litigation.

Hopefully, as the bill progresses, we'll see more debate on the pros and cons on having longer deadlines to file suits.

With the bills on the fast-track, i doubt we'll see much substantive debate on the bills, which is unfortunate. In the election, the concept of "change" was thrown about. This week is the first real sign that, for employment law issues, change is here.

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One of the great pleasures of writing a blog is the opportunity to interact with other labor and employment lawyers from not only Connecticut, but across the country as well.  Over the Thanksgiving weekend, I had two articles written by and forwarded to me by Robert B. Fitzpatrick, a well-recognized employment lawyer from the Washington, D.C. area. 

I've been reading Robert's work for many years -- long before starting this blog -- including his papers on settlements (which I'll leave for another post on another day).

Robert doesn't need a big firm to back him up, either. He's got the real-world  experience, some of which is summarized here:  

Robert is the principal in the law firm of Robert B. Fitzpatrick, PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over thirty-five years and has been described by the National Law Journal as being among the top employment lawyers in the country and by Washingtonian Magazine as "tops in employment law" in the Washington, D.C. area. He was also included in the 2006 edition of The Best Lawyers in America.

Robert will be speaking at the ALI-ABA Course of Study this weekend in Washington, DC.  I enjoyed them so much that I asked for his permission to reprint them here because I believe that you will find it helpful too.

• The first article summarizes new federal labor and employment legislation, including the ADA Amendments Act of 2008; the Consumer Product Safety Improvement Act of 2008; the Emergency Economic Stabilization Act of 2008; the E-Verify Extension; the Fair Minimum Wage Act of 2007; and the Genetic Information Nondiscrimination Act (GINA). He also provides links to key sources on this (including this blog). 
• The second article discusses proposed federal employment and labor legislation, including the Arbitration Fairness Act of 2007, the Civil Rights Act of 2008, and the Employee Free Choice Act.

Both are excellent sources of information for the upcoming term and I thank Robert for sharing them.  Be sure to check out Robert's website as well which has a number of other helpful publications as well.

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Looking to make a change? Or curious about what the new Obama administration will have on its agenda?

Then the new administration website, Change.gov, is for you. It's now up (but as of 2 p.m., barely running -- likely due to the massive traffic the site is facing so give it a little time).   Parts of the site are also still under construction, including a fascinating "America Serves" section.

You can sign up for information, get information about seeking a position in the new administration or get detailed information on the agenda that the new administration is setting in a variety of areas. 

Lest you think that Obama will shift course, the agenda is identical to what he had on his campaign site, but it's important to revisit it in light of all the ink that's been spilled on where his priorities will be.  A look at the Economy area lists his "labor" agenda as follows: 

• Obama and Biden will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama and Biden will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama and Biden will also increase the minimum wage and index it to inflation to ensure it rises every year.
• Ensure Freedom to Unionize: Obama and Biden believe that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
• Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
• Protect Striking Workers: Obama and Biden support the right of workers to bargain collectively and strike if necessary. They will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
• Raise the Minimum Wage: Barack Obama and Joe Biden will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.

In the "Work/Family" arena, he lists the following as his top priorities:

• Obama and Biden will double funding for after-school programs, expand the Family Medical Leave Act, provide low-income families with a refundable tax credit to help with their child-care expenses, and encourage flexible work schedules.
• Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama and Biden will expand it to cover businesses with 25 or more employees. They will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children's academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
• Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama and Biden will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers. ...
• Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama and Biden will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
• Expand Flexible Work Arrangements: Obama and Biden will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama and Biden will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

Before employers and employees get too worked up about all of the above, remember that we are in the midst of the worst recession in at least a generation.  The problems weren't created overnight and it's unrealisitc to expect all of the above to be passed in the first 100 days -- and probably not the first 500 days. 

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There's been a lot happening over the last few days, both election and non-elected related -- too much to keep up with. In fact, with the election dominating the news, some other interesting items have felt overlooked.  So it seemed an appropriate time for a post recapping some of the most interesting and noteworthy items that I've come across the last few days:

Obama and The New Administration:

• John Phillips, over at The Word on Employment Law, has a terrific piece up this morning about what the election has meant to him, as an employment lawyer. 
• PointofLaw.com picks up on a WSJ article that suggests that the Employee Free Choice Act may end up being put on the backburner for the time being.
• VentureBeat.com has a post about how technology may play a major role in the Obama administration and the implications for businesses (along with a hint that Change.gov is coming soon)
• A good recap of the changes to the Connecticut legislature (now, overwhelmingly Democratic) can be found at CT News Junkie. 
• WSJ Law Blog has an interview with an employment lawyer who predicts of softening of the stance against unions.
• Workplace Prof has a wide-ranging post that foresees perhaps great changes to the workplace that will allow the United States to be "the envy of the world insofar as how it treats its working men and women."  Nothing like setting the expectations low...
• Lastly, my friend and former law school professor, Kimberly Norwood, has an inspiring piece up on Blackprof.com this morning about how the election can reshape a generation of kids. 

Other Employment Law Items:

• The Laconic Law Blog recaps the Mental Health Parity bill that got lost in the discussion of the financial rescue plan.
• The Second Circuit, which has been strangely quiet the last few months, rules that being "smacked around" (in the words of the Wait A Second! blog) is not an adverse employment action.  The case, Mathirampuzha v. Potter (download here), also strictly enforces the administrative exhaustion requirements found in Title VII. 
• Studs Terkel, a prolific author who wrote some memorable books on workers, died last week. This post recaps the impact he had on the workplace. One of my high school teachers loved him and made us read "Working"; the images of the workers he described in that book still remain with me today.
• Law.com had a notable piece of what to do when a witness is a former employee.  For employers, it has some good tips including one that should be obvious: Talk with that person because the other side certainly will when they find out about him or her.
• Michael Moore (and probably not the one you're thinking of) asks the provocative question of whether the ADA Amendments will open the door to nicotine-addiction claims.
• For employers who conduct drug testing under Department of Transportation guidelines, the changes effective this month are recapped by the Employer Law Report.
• World of Work reports on the issuance of a final supplemental "No-Match" Rule by the Department of Homeland Security.  (A "no match" letter indicates that the social security number provided by an employee at the time of hire may be invalid.)
• Ohio Employer's Law Blog reminds us that cost-cutting does not necessarily equate to age discrimination.  It's another example of the importance of understanding the role statistics can play in reviewing reductions in force.
• Although this post suggests that garden leave policies are an "increasing trend" among employers, these types of clauses have been around awhile. Caution should be used though in Connecticut to make sure that the clauses comply with theories on restrictive covenants in the workplace.

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Today is election day and in the pre-dawn hours, I'll be at the polls supporting local politicians.  As this blog has attempted to remain apolitical, I'll follow the New York Times columnist tradition and not endorse any politicians here. I've run a series of posts about election day and you can find them all here.

But if you are still trying to educate yourself on some employment law issues, Michael Fox has a terrific post up with his predictions about what will happen with various legislative proposals.  (It was building off an original post by John Phillips here.) 

Notably, both seem to believe that the Employment Non-Discrimination Act may be among the most likely of employment-law bills to pass first. It won't have that much of an impact on a state like Connecticut that already covers sexual orientation as a protected category for employment law claims.  It seems a likely scenario if the Democrats do not get a filibuster proof majority in the Senate.

Regardless of your politics, I want to close with a personal note about a conversation I had last night with some bright elementary school kids which perhaps can bring some perspective.  

They asked me, "Why do you like [Candidate A]?"  After thinking about it for a minute, I responded, "Because I think he has good ideas to help lots of people."

They then asked, "Does [Candidate B] have bad ideas?"  I replied, "No, he wants to help people too. I just think that [Candidate A's] ideas are better. Anything else you want to know?"

Without much pause, they said, "Not really.  Can we just read "Duck for President" tonight and go with you tomorrow to vote?" 

Easiest question to answer all night (and for those who are curious, the book is below -- from the same authors of Click, Clack, Moo which I posted about early this year.) 

It also seems appropriate to close out the very long political season with that note.

Regardless of your political affiliations, get out and vote today.  

 

 

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So what's going to happen after the election with various employment law proposals? Well, you'll have to wait for the election to really see what happen at a federal level.  After all, part of it still depends on who is elected to the White House and how many seats the Democrats control in Congress. 

(If you're really curious, I'll be putting on a breakfast roundtable at my firm with my partners Peg Sheahan and Bob Mitchell on November 11, 2008 at our offices. More information about the program is available here.)

But in Connecticut, there are several issues that made an appearance in the General Assembly that are likely to be revisited.  This will be particularly true if the Democrats can pick up a few seats and push their majorities to "veto-proof" levels, meaning they can override any veto by Governor Rell.

•  First and foremost, the Paid Sick Leave bill raised earlier this year will no doubt be back.  It died on the Senate floor last year and was not voted on.  If the Democrats pick up enough seats to "veto-proof" a possible veto by Governor Rell, this might have a greater shot at passage.
• Another bill that was not brought up for a vote was the Whistleblower Protection bill.  The bill would have made it easier for state workers to claim that a change in their employment status was "retaliatory".  (The state already affords a good deal of protection to state whistleblowers.)  The bill was spearheaded by Attorney General Blumenthal.  If he announces a run for Governor after this election, could this bill be the type of bill he pushes to support his stance? Perhaps, but there also does not seem to be any particular type of group actively supporting this, unlike the paid sick leave bill.
• Two other bills -- one that would have prohibited Workplace Bullying and another that would have permitted employers to pay their employees by debit card -- may also see another review. 
• In light of the Supreme Court's ruling approving of same-sex marriages, it will also be interested to see how far bill to expand the state's anti-discrimination laws to cover gender identity.  My preview of the bill from last year is available here. 

I've also heard that a proposal to move some of the states' hearing officers or human rights referees under a central "administrative hearing officer" umbrella may get a look at.  The CHRO also has an agenda of items that it will seek legislative approval of. Its' recap from 2008 is available here. 

With all of the focus that the media has on the Presidential race, It's easy to forget that the elections next month will be critical to setting legislative agendas in Connecticut that may have a far greater impact on Connecticut businesses than the national races. 

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One of Connecticut's many nicknames is the "Constitution State", so named for the state's adoption of the first state Constitution. (Delaware holds the distiction of the first state to ratify the U.S. Constitution for those history buffs).

But on the ballot in two weeks is a question asking if the state should hold its first Constitutional convention in over 40 years.   For employers and others, serious consideration should be given to the question and I suggest the Ct Votes No website for information on the reasons why voting "no" is a good idea.

Among the possible changes that could come about at a Constitutional convention -- a voter referendum/ballot initiative law or elimination of same-sex marriages.  But perhaps most troubling, constitutional convention delegates can propose anything without citizens or even our legislators having a vote in the final outcome.  And when Constitutional Guru Wes Horton opposes it, you know something is troubling with the referendum.

The Connecticut Law Tribune's Advisory Board (subscription required) has this editorial telling voters to vote no:

 There is no similar circumstance in Connecticut in 2008. Without some overwhelming need for a constitutional convention, such a convention could easily be dominated by single-issue special interest groups. If zealous groups do not get what they want from the legislature or the governor or the courts, they could put the issue to the convention. ....

 

Stability and tradition and established rules must occasionally yield when a major upheaval in society creates a need for a new or radically reordered system. ... The constitution currently in effect was created by the Constitutional Convention of 1965, called because the traditional legislative election system in Connecticut was clearly out of compliance with the federal one-person, one-vote requirement.

 

Representative democracy is messy, it can be slow, and it can be vulnerable to special interests, but it is not accidental that this country is a beacon in the world today in part because of the strength and stability of its political and judicial institutions. But a constitutional convention can trump all that. This is why such a convention should be called only when a crisis requires it. No crisis requires it, so voters should vote “No.”•

There have been several Connecticut and legal-related blogs discussing this including A Public Defender (here) and (here), the New Haven Independent with a great report (here).

For employers, this issue -- on its face -- may seem wholly unrelated to them. It's not.  One of the most likely outcomes of a Constitutional convention is a ballot initiative/voter referendum that again -- on its face -- seems innocuous as well. But a look at the issues on the ballots in other states shows that voters are being asked.  For example, Colorado had various constitutional amendments on its ballot (later withdrawn) that would have, for example, protected all employees from termination except for "just cause".

For full information on how this upcoming election can affect state businesses, the CBIA's website -- www.ctbizvotes.com -- is a great place to start.  (For prior posts on election day issues for employers, see here and here.) 

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With the election just two weeks away, employers can start to draw a sharper focus on the national issues at stake in the upcoming Presidential election. That said, much of what will happen will also depend on what happens with various Congressional races.  In other words, even if Senator McCain is elected President, we're still likely to see various issues raised in the next session of Congress.

Michael Moore has a terrific piece this week outlining the various bills that are likely to get debated after the election.  I'll be discussing some of them in upcoming posts (as well as issues relating to Connecticut's races), but Michael's post provides a good roadmap to the bills.

Among them:

Employee Free Choice Act (H.R. 800 and S. 1041)

Summary:  The EFCA amends the NLRA to change the procedures for union certification and first contract negotiation.

Employment Non-Discrimination Act (H.R. 3685/ no Senate Bill)

Summary:  ENDA adds sexual orientation to the protected classes under Title VII for all employers except religious organizations.

 Ledbetter Fair Pay Act (H.R. 2831/ S. 1843)

Summary:  FPA overturns the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co. effectively eliminating the 180 or 300-day statute of limitations for filing a wage-related discrimination claim.

 

Paycheck Fairness Act (H.R. 1338/ S. 766)

Summary:  PFA changes the burden of proof in gender based pay claims requiring the employer to affirmatively demonstrate that any pay differential is not based on sex.

 

RESPECT ACT (H.R. 1644/ S. 969)

Summary:  The so-called Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act would change the NLRA definition of “supervisor” to exclude “working supervisors” who do not spend a majority of their worktime in strictly managerial duties excluding the tradition duties of assigning work and directing the activities of others.

The post also discusses the impact that each bill would have on existing law and the candidates' respective positions. 

(For another take, see The Word on Employment Law's collection of posts on the issues here.)

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As expected, President Bush a little earlier today signed the ADA Amendments Act of 2008 into law.  The Act becomes effective January 1, 2009. The Associated Press has the early details and noted that the bill was signed without public comment or fanfare:

With his father looking on, President Bush on Thursday signed legislation expanding the protections afforded by the landmark Americans with Disabilities Act to those who can use medication or other devices to treat impairments.

I've previously summarized the law in a post last week which can be found here.

Various groups have issued press releases touting the bill again. (As you might imagine, each time something happens on the bill, there's a flurry of press releases that all pretty much say the same thing.) You can read the American Diabetes Association's release here.  NAM's blog post on the subject last week is more than sufficient to get the management reaction to the bill.

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This afternoon, the U.S. House of Representatives approved by voice vote, the ADA Amendments Act of 2008 (S.3406), with the amendments made by the U.S. Senate last week.  I've recapped the details before in prior posts.  Reuters has the details of today's House action in.

Numerous groups and politicians released press releases this afternoon praising the bill's strengths:

• The American Diabetes Association encouraged the President to sign the bill and said that if signed into law, the bill "will take critical steps toward restoring the 1990 law to its original intent to protect such individuals from discrimination." 
• House Majority Leader Steny Hoyer said:  “By passing this bill, we have ensured that the definition of “disability” will be construed fairly and broadly. And we have brought millions of our fellow-citizens, who were previously shut out, back where they belong, and back where we need them: under the ADA’s protection.  Together, we have made up a coalition as broad and deep as the one that passed the ADA 18 years ago. We are members of the disability community, struggling for fair and equal treatment; business groups, eager for new pools of talent; and leaders of both parties.

Numerous other blogs also continue to post on this as well, including a post today by George's Employment Blawg. 

Overall, for employers in Connecticut, this new law is going to raise a whole host of issues because Connecticut's anti-discrimination is structured very differently.  How these two laws are going to interact, particularly in light of the Connecticut Supreme Court's decision  in Curry v. Allan S. Goodman, earlier this year, is something I'll take up in some upcoming posts.

At this point, Connecticut employers should act cautiously and look at each disability decision on a case by case basis.  In some instances, one could envision Connecticut's anti-discrimination laws might have different application than federal law. 

One thing's for certain: Employment lawyers who represent employers (like myself) are sure to get more than a few phone calls asking to sort all this out. 

(H/T World of Work)

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Late last week, the Senate finally passed the compromise version of the ADA Amendments Act, (S.3406, which is available here) which I’ve covered before. The bill needs to be reconciled with the House version, but final passage and approval by President Bush is now expected this month.

Other blogs have very adeptly recapped the significant changes such as World of Work, and Manpower Employment Blog . And there is this ABA Journal article recap too.

As Workplace Horizons recapped:

The bill, set to become effective January 1, 2009, if enacted, would define the term "disability" as "a physical or mental impairment, a record of such impairment, or being regarded as having such impairment." It would provide that employees are protected against discrimination because of a disability. It would provide, however, that while an individual regarded as having a disability is protected against discrimination, the "regarded as" provision would not apply to an individual with a condition that is minor, or that is a "transitory" condition lasting or expected to last six months or less.

Some have lamented the changes as far-reaching and I’m sure others think that they don’t go far enough.

 

But at the ABA Labor & Employment Conference in Denver on Friday, EEOC Associate General Counsel Peggy Mastroianni shared her thoughts on the compromise bill in the midst of a presentation on leaves of absences. 

 

Mastroianni said that both management-side representative and plaintiff and union groups worked hard with senators to “craft something that both sides could live with."

 

She added, “You know that when U.S. Chamber of Commerce and the American Diabetes Association agree on a bill, it’s a good compromise."

 

Mastroianni predicted that one consequence of the ADA Amendments Act will be more analysis of the actual disability and condition that persons have. As she remarked, this analysis will “go to the heart” of the ADA, something that she believed had been lacking in recent years.

 

Lastly, Mastroianni emphasized the usefulness of the guidance released last week on addressing performance-related issues under the ADA. In an upcoming post, I’ll discuss a specific provision that some may overlooked in their initial review of the guidance. 

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The McCain campaign last night was trying to make much of a comment that Sen. Obama made on the campaign trail on Tuesday about the concept of Sen. McCain bringing about change.  "You know, you can put lipstick on a pig," Obama said, "but it's still a pig."  In fact, Sen. McCain made similar comments last year referring to Sen. Clinton's health care plan. 

But in employment law arenas, we're often confronted with "stray remarks" used to prove discrimination.  I was fascinated to know if this phrase had come up in the legal context before (particularly employment law), since I'm sure we'll hear something more about it during the next media cycle.

My quick search found just a few notable finds, mainly by courts or legislative branches that used the phrase to discuss a topic, but not as a stray remark:

• In 2005, various Democrats issued a minority report on the Job Training Improvement Act of 2005, the full version of which can be found here.  But at the end, of the report, several representative add their views on employment discrimination (which can be found here).  They state:
  
  Employment discrimination is ugly. You can put lipstick on a pig, but you can't pass it off as a beauty queen. And you cannot dress up `We don't hire Catholics, Jews, and Hindus' with poll-tested semantics and euphemisms and pass it off as anything other than ugly discrimination.
   
• Of federal court decisions, a First Circuit case in 2005 addressing civil rights had this to say on an issue of using a person's prior bad acts to show that they had a propensity to commit current acts:
  
  Using the plaintiff's prior bad act to show that the defendant did not mistakenly or accidentally identify the plaintiff as one of his attackers is nothing more than a ham-fisted attempt to put lipstick on the propensity pig.
  
  
• And then there was a judge who was cited for "poor taste" earlier this year by using a dressed up pig picture in a written ruling "commenting on an attorney for a school district that was being sued for allegedly discriminating in employment."  According to a report from June 2008 from Rocky Mountain News, the Colorado district court judge "in a written ruling, included a picture of a pig wearing pearls, lipstick and sunglasses, saying the attorney's argument was 'no more availing than' the pig."

If you know of any other good "lipstick on a pig" references in court decisions, particularly related to employment law, feel free to submit comments about it.

And for employers, I would avoid using the phrase for the foreseeable future. Given the connotations this phrase is likely to have for a little while, no good can come of it -- even if it is fairly harmless in nature.

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For employers in Connecticut, this isn't exactly the best of times. But it isn't the worst of times either. That seemed to be the message of a variety of economists at a conference I attended yesterday sponsored by the Connecticut Business & Industry Association.

In fact, a CBIA survey released yesterday (and sponsored by Blum Shapiro) found that a slight majority of Connecticut businesses responding expect growth over the next year but that executives were neither "overly positive nor negative about business conditions for their companies".  Several economists pointed out at the conference that Connecticut has fared better than the rest of the nation over the last year and that the state is much better off than the recession of the early 90s when nearly 160,000 jobs were lost in the state.

The mixed messages were discussed both at the conference and can be found in the survey too.  For every number that was raised as a positive, another number could be found as a negative.  For example, 67% of employers added new jobs last year, but 61% of employers are also coping with workforce shortages.  

As a result, the survey concludes that "to stay productive and competitive, employers may need to try new approaches to recruiting employees and developing and retaining incumbents."

A representative from AT&T at the meeting suggested that one option may be telecommuting and he relayed the fact that AT&T is going to have nearly 2000 employees off the roads soon with telecommuting.  But for other employers, other solutions are going to need to be explored.  Working with legal counsel can ensure that these options don't create more problems than they solve (such as overtime issues, etc) but these types of issues are also going to require more than just legal advice.   As always, the businesses that can adapt quickly to these changes are the ones that are most likely to succeed in the long run.

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With Alaska Governor Sarah Palin's speech last night, it makes sense to try to learn a little more about each of the vice presidential candidates and how each of them have impacted the state that they represent.

For that reason, I wanted to suggest a few blogs that cover their states pretty well.

• Alaska Employment Law Blog has been around for a while and covers the ins and outs of that state.   Long before the media started focusing on Alaska, this blog has been covering some of the happenings in the state. For a smattering of articles referring to Gov. Palin at the site, you can click here.
• While the Delaware Employment Law Blog hasn't been around as long, the writers there have been prolific in keeping up to date on issues relating to Delware employers and to employers in general.  Their most recent post about Sen. Biden's position on work-life issues is worth a read and is available here.

And finally, while not an employment blog per se, the Delaware Corporate and Commercial Litigation blog has long been a favorite read of mine.  The blog recently had a very enlightening post about the impact Senator Biden has had on corporate law as well. 

Regardless of your political affiliation, learning about the respective backgrounds of each of the candidates can help each of us make an informed decision. 

For more information about Connecticut candidates, you can also check out a site I heard about today sponsored by the CBIA, called CTBizVotes.com.  There are links to each of the major political parties and information about issues that matter to both employers and employees. 

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With lots of little things going up, it's time to followup on a few topics we've covered in the last few days and some other notable posts from around the web.

• First up, my post on the WWE Wrestlers was picked up by Above The Law editors yesterday. Today, the American Lawyer does a little story of their own on the lawsuit with a quote from K&L Gates attorney who notes that his strategy will be revealed later this week in a motion to dismiss.
   
• Today, my guest blogging at Overlawyered continues with a post on one individual's lawsuit against Amtrak for jumping from a train. You can read the court decision related to it here. 
   
• California Labor & Employment Blog discusses whether social networking site are good or bad for the workplace. As I've said before, policies should be tailored to the workplace.
   
• The Greater Hartford Real Estate Blog asks a question that lots of employers in the Hartford, Connecticut area ask: Can we attract young professionals to the area? The answer to that question dictates how well the whole area does.  Interesting how much "power" Generation Y is going to have on the economy and local area.
   
• And lastly, with the Democratic National Convention going on this week, the Workplace Prof blog reminds us to catch up with the "Plum Book" -- your list of jobs potentially available in a new presidential administration.

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Earlier this month, I provided a legislative update on the Paycheck Fairness Act bill, which passed the U.S. House of Representatives. Long-time Congresswoman Rosa DeLauro (D-Conn, 3rd) has been a leading sponsor of the bill and she has a long and distinguished career in the House. 

Yesterday, Rep. DeLauro issued a column in the Huffington Post about the bill.  Front and center in her discussion is the case of Lilly Ledbetter and her lawsuit against Goodyear Tire & Rubber Company that went before the U.S. Supreme Court.  

As a result, Rep. DeLauro says that the bill would close the "loopholes" in the law.

On Thursday July 31st, the House of Representatives took the next step to correct this injustice by passing H.R. 1338, the Paycheck Fairness Act by a vote of 247-178. This vote was about ensuring that women who work hard and productively and carry a full range of family responsibilities are paid at a rate they are entitled. So many employers and companies do the right thing as a matter of course, but passing this bill says that this is now a matter of right and wrong, that discrimination is unacceptable anywhere and we are all diminished when we fall short. We have the chance to make all men and women whole and contribute to the richness of America. 

What's fascinating is the fact that the Ledbetter case has gotten intertwined in the political arena (in fact, Ms. Ledbetter will be a featured speaker at the Democratic National Convention on Tuesday).  The issue in Ledbetter case was, in many ways, a technical question of how far back an employee should be able to go to challenge past pay practices -- in other words, about deadlines and "statute of limitations".  The Supreme Court said that the 180-day deadline found in the statute should apply. 

Should the statute of limitations remain at 180 days? 1 year? 2 years? 5 years? 20 years?  I don't suggest to know what the right answer is.  Ultimately, the answer to that question will help shape the Paycheck Fairness Act bill's final outcome and it should be the one that the politicians focus on. 

Employers would certainly like shorter statute of limitations and have good arguments that because supervisors leave, short statute of limitations prevent stale claims from being brought. But employees have decent arguments that a longer statute of limitations should apply because discriminatory pay practices are often learned of only after they occur. 

For employers, the debate over the Paycheck Fairness Act is one worth paying attention to because the real-world consequence of the bill's passage (whether now or next year) will be to increase the importance of documenting pay practices and to give employers another reason to preserve such documents for future litigation.   

Hopefully, as the bill progresses, we'll see more debate on the pros and cons on having longer deadlines to file suits.

Lastly, employers should not lose sight of other potential claims that can still arise, regardless of what happens with the Paycheck Fairness Act legislation. Indeed, the irony of the Ledbetter case is that there already exists a law that would have permitted Ledbetter to sue. The Equal Pay Act specifically addresses pay disparity and has a longer statute of limitations. But for some reason, Ledbetter's attorney chose to sue under the all-purpose anti-discrimination law, Title VII, thus dooming her claims.

(H/T: Rep. DeLauro cross-posted her statement at My Left Nutmeg)

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Buried deep, deep, deep within revisions to the federal Consumer Product Safety Commission Act ("CPSCA") is a new cause of action designed to protect whistleblowers of product safety (available here).

This new law, entitled The Consumer Product Safety Improvement Act of 2008,  will afford protection to both public and private employees in retail and manufacturing sectors to those employees who disclose perceived violations of CPSCA (or related acts) to a State Attorney General, a regulatory agency or their employer. 

The Laconic Law Blog has the details of the bill which was signed by President Bush on August 14, 2008.

For employers in the manufacturing and retail area, many states, including Connecticut already afforded employees who complained about some of these issues state law protection.  But this new bill will allow employees to bring claims under federal law through a new administrative procedure; it does not allow the employees to bring their claims directly in court. 

It's yet another reminder to treat complaints by employees of wrongdoing with appropriate seriousness and notify supervisors that adverse employment decisions should not be based on the complaints.

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In the waning hours late last week before Congress took its summer vacation, Congress was busy debating (or in some cases, not debating) some key employment bills.  These all still require approval from the one side of Congress or the other, but these bills are getting closer to becoming law.  (For a refresher on how a bill becomes a law, you can always click here.)

Paycheck Fairness Act

Long-time Representative Rosa DeLauro, from the Third Congressional District in Connecticut, must be a happy camper this week after the Paycheck Fairness Act she sponsored passed the House of Representatives on July 31st by a 247-148 vote.  The bill would limit the defenses employers have to an Equal Pay Act claim and amend the FLSA to add claims for compensatory damages and punitive damages.  (H/T Workplace Prof)

The bill now goes on to the Senate for a voice where its prospects are far from clear. Groups like the Heritage Foundation claim the act would "give[] a windfall to trial lawyers, exposing employers to unlimited punitive damages for unintentional mistakes."  On the other hand, others, like the National Women's Law Center, claim the bill would merely close the "gender gap" that still exists.  It should be noted that this bill differs from the "Fair Pay Act".

ADA Amendments Act (f/k/a ADA Restoration Act)

After passing the House earlier this year, the ADA Amendments Act of 2008 has stalled at the Senate.  However, late last week, Senator Tom Harkin and Senator Orrin Hatch introduced a new bill (S. 3406) that makes two significant changes to the House bill.  You can download the text of the bill here.   With 64 co-sponsors, these changes are getting close enough to win over support of the business community (and ward off a veto threat).  If passed, this new bill would need to be reconciled with the bill passed by the House earlier this year.   

What are the two changes?

• First, the bill eliminates a definition for "substantially limits", which was in the House bill.  The new bill would advise courts to simply consider impairments that are of central importance of people's day-to-day activities.
• The other change will only affect the education-related portion of the bill.  That change now says that reasonable modifications to educational policies are not mandated if the modifications would fundamentally change the program. 

E-Verify Extension

Florida Employment Law Blog reports that the House of Representatives has approved a bill that would extend E-Verify, the federal government's electronic employment verification system, by five years.  The bill, HR 6633 or the Employee Verification Act of 2008, passed by a 407-2.

The bill now moves to the Senate for a vote; however, the Senate is in recess for the next five weeks.

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Earlier this week, I discussed the state's telecommuting practices amid requests from some politicians to expand the state's telecommuting programs.  In perhaps a slow week for news, the Hartford Courant has continued to followup on its articles and expanded its coverage into discussing the possibility of four-day work weeks -- something Utah is implementing.

But both ideas -- widespread telecommuting and four-day work weeks -- for state workers appear long shots right now with bi-partisan (but not unanimous) support for maintaining the current system. 

Republican Governor M. Jodi Rell discussed the idea of four-day work-weeks for state workers:

I talk about state employees as public servants, and that's exactly what they are.  And the public expects them to be there five days a week, whether you're getting a fishing license or you're getting a permit for a storm-water system in a town. You can't do those things from home. You have to be there physically to greet the person and take the information. Some things can be done by telecommuting, but certainly most all of public service is a five-day-a-week job.

And earlier this week, a spokesman for Senate President Pro Tem Donald Williams, the highest-ranking senator and Democrat, chimed in on a plan to have some staffers for House Republicans telecommute.

"We always knew the Republicans were phoning it in; now they want to make it official policy," said Derek Slap, spokesman for Senate President Pro Tem Donald Williams, D-Brooklyn. "The reality is that the GOP plan would not save taxpayers any money and would not ease congestion. In fact, the only people the plan would help would be Republican caucus staff members."

As I mentioned earlier this week, all of this runs counter to the trend in the corporate work towards these flexible options.  Bank of America, for example, launched a telecommuting program earlier this month to great fanfare, hoping to boost the numbers of employees that telecommute. 

Will the state start taking more cues from the corporate world? That seems unlikely for now.  But as more corporations consider these options, it'll be fascinating to watch how their experiences shape policy discussions going forwards. 

For those that are curious about employment laws on the subject, there's nothing about our state or federal employment laws that prohibit either telecommuting or four-day work weeks (we don't for example have a "daily" overtime rule, like Nevada).  So it boils down to a policy argument about the benefits of four-day work weeks and telecommuting. Right now, the status quo is winning.

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Nearly eight months ago, I asked the question: Will the Americans with Disabilities Act Be Amended?  

At that point, I indicated that an ADA Restoration Act Bill of 2007 was not yet a "hot topic" but as election season heated up, we could see some action on some proposed amendments.  There have been some followup posts both in January and again earlier this month.

Now, the answer my prior question, I think the answer is likely "yes". 

Within the last few weeks, a compromise bill (now titled the ADA Amendments Act of 2008) has been fashioned and on Wednesday, it passed the U.S. House of Representatives overwhelmingly (402-17).   All Connecticut representatives voted in favor of it.   The bill (H.R. 3195), can be downloaded here,  

The Workplace Horizons blog and the Ohio Employer's Law Blog have some initial feedback and reaction to the bill, as well as Disability Law 2.0. The New York Times had this mainstream report.  For additional blogs from advocacy groups, see the American Association of People with Disabilities blog and the NAM (National Association of Manufacturers) blog. 

So, what would the ADA Amendment Acts do?

On its face, it strives to overturn various U.S. Supreme Court cases that the bill's sponsors believe narrowed the ADA too much.  Thus, the bill broadens definitions of various terms.  For example, it defines the phrase "substantially limits" to mean "materially restricts".  It also features some aspects seen as "for employers" such as limiting "regarded as" claims as impairs that last or are expected to last for more than six months.

As Jon Hyman notes:

The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
• Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

There is no date yet for a vote in the Senate.  As the term continues and it becomes more likely that the bill is going to pass, I'll provide an update with additional details about the proposed provisions.

For now, employers should stay tuned for future legislative developments and take an opportunity now to understand the scope of the ADA. If it is passed, the bill may make it more difficult for employers to get "summary judgment" in ADA cases and is sure to raise a whole new set of issues related to the definition of "disability".  For employers in Connecticut, ADA amendments could be particularly tricky because of the risk that courts in Connecticut (which tend to follow the ADA lead) will use the amendments to interpret our state disability discrimination law, which has developed somewhat differently.

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This week, I've highlighted some new state laws that affect the employment law arena. This next one (Public Act 08-156) creates a new joint commission and new advisory board in Connecticut to deal with the issue of employee misclassification. 

For employers, this new structure means that it is more likely that enforcement of misclassification laws (in other words, whether employees are classified properly as exempt or non-exempt from wage/hour, tax and workers' compensation laws) will occur.  As noted below, there appears to be a particular emphasis on employers in the construction industry, so that particular category of employer ought to be aware of this new law.

What's the new structure?

First, effective July 1, 2008, a joint commission will be established made up of representatives of the Department of Labor, the Commission on Revenue Services, the Workers' Compensation Commission, the Attorney General's Office, and the Chief State's Attorneys office.

What will be their role?

They are to meet at least four times a year (probably in conference rooms not very different from the one pictured). 

Their main goals will be to:

• review the problem of employee misclassification by employers for the purposes of avoiding their obligations under state and federal labor, employment, workers' compensation and tax laws;
• coordinate the civil prosecution of violations of state and federal laws relating to employee misclassification, and 
• report any suspected violation of state criminal statutes to the Chief State's Attorney.

What else is required of the Commission?

By February 1, 2010 (and each year after that) the Commission will report on the commission's actions for the preceding calendar year and include any recommendations for administrative or legislative action.

The new law also creates a companion "Employee Misclassification Advisory Board" to advise the commission on misclassification specifically in the construction industry.  The Board will be made up of six members, each representing differing interests in the construction industry. 

A summary of the new law by the legislature is also available here. And interestingly, the General Assembly passed identical portions of this law in another public act (P.A. 08-105) as well.  Apparently, you can never have enough joint commissions (though obviously, they will be combined here). 

What steps can an employer consider in response to this law?

This new law emphasizes the fact that issues regarding employee misclassification are not going to disappear anytime soon. Because of this, employers can take this opportunity to audit themselves and determine if they continue to have an exposure under wage and hour laws.  If necessary, correcting issues regarding classification of workers ought to be considered; taking such steps before a problem occurs may allow the employer to escape the broad enforcement capabilities now presented in this new law.

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UPDATED 12/8/08 to correct cap on penalty amount to $500,000

With all the focus this year on minimum wage, 15-year-olds in the workplace, and the like, other less-publicized bills in Connecticut still haven't received much attention. In an earlier post, I noted that I would update readers on them when the dust settles. 

One of them, is Public Act 08-167 (called "An Act Concerning the Confidentiality of Social Security Numbers"), which goes into effect October 1, 2008.  You can download the text of this very broad new law here.  This new state law requires all businesses that "collect Social Security numbers in the course of business" to safeguard social security numbers, dispose of them properly and create a policy regarding such information.  It also requires all "persons" who get "personal information" on one person, to safeguard such information as well.  The legislature has summarized the new law here.

As an initial comment, the new law, as drafted, is extremely broad since the "persons" who must safeguard personal information appears to include both companies and individuals.  Thus, on its face, it could potentially cover situations in which your neighbor buys items at a tag sale from you and hands you a check with an account number on it. In such a case, the person receiving the check  may be responsible for safeguarding the account information.  Businesses that collect social security numbers will have additional obligations as well.  Because of the broad reach of this statute, employers should also consider the implications of this statute not only on their workforce, but on their customer base as well.  

How does this impact employers, in particular?
 

Because basically all private employers in Connecticut collect social security numbers "in the course of their business", either for insurance purposes or employee verification, this new law appears to apply to them.  While the legislative history and Governor Rell's press release signing the new law doesn't discuss employers specifically,  the broad language of the law covers employers.   Until and unless the scope is clarified (to limit the application, for example, to social security numbers collected from customers, rather than employees), employers should pay heed to this law.  

So what does the new law require and dictate?

 

• Create a "Privacy Protection Policy"

This policy must 1) ensure confidentiality of Social Security numbers, 2) prohibit their unlawful disclosure, and, 3)  limit access to them.

• Publish or Post the Privacy Policy

While the new law indicates that it should be published or "publicly displayed" including posting on an Internet web page, it seems that in the workplace, this will be satisfied by following the same standards that employers typically follow. Thus, the information can be included in a bulletin board posting, an company intranet, and/or an employee handbook.  Distribution to each employee via e-mail or in person may also be appropriate. 

• Protect "Personal Information"

The act requires businesses (and thus, employers) who have "personal information" about a person (including their employees) to safeguard the data and computer files and documents so that it isn't misused by third parties.  Employers must also destroy, erase, or make unreadable any document, computer file, or data before disposing of it.

What is considered "Personal Information"?  The Act defines it has "information capable of being associated with a particular individual through one or more identifiers". 
What are some examples? Social Security number, driver's license number, state identification card number, account numbers, credit or debit card number, passport number, alien registration number, or health insurance identification number.  Presumably, this could also include an employers own internal system for identifying employees.   Nothing in the new law prohibits employers from gathering and using this information, however.
What is not "Personal Information"? Any publicly available information lawfully made available from federal, state, or local government records or widely distributed media.

What are the penalties for non-compliance?
 

At the outset, it is important to note that there is no private right of action; in other words, if an employer violates the statute, they cannot be sued by the individual whose information is released at least under this statute. This does not preclude the employee from raising other contractual or tort claims (such as negligence) that may exist.

The Department of Consumer Protection (and, in some instances, other departments with limited jurisdiction) has the power to enforce the statute. But only intentional violations can result in a civil penalty of $500 per violation, with a $500,000 cap on a single event.  Notably, this penalty provision only applies to intentional violations; unintentional violations are specifically excluded.

What can employers and businesses do now?
 

While there are still several months before the law becomes effective, employers (and all businesses in the state) should start formulating comprehensive data protection policies and procedures to safeguard such information. Many businesses (such as those in the health care field) have started to implement these policies, but the reach of this Act will mean that many others will need to comply. 

Workplace Privacy Counsel blog has some additional suggestions on the policy as well.  Although the Privacy blog implies (unintentionally) that the law speaks directly about private employers, the law is written much more generally and in broader terms; it applies to all businesses that collect information from consumers as well.

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The Connecticut Senate voted late today to override the veto of the minimum wage bill that was sent to Gov. Rell last month.   The vote was 25-9 in the Senate.   The vote completes the override process of the minimum wage bill that I discussed here earlier today.

Thus, effective January 1, 2009, the minimum wage in Connecticut will increase to $8.00/hour and on January 1, 2010, the minimum wage will increase to $8.25/hour.  The bill language can be found here. 

Notably (and not widely reported), the General Assembly has also voted to override the veto of the tip credit bill applicable to people such as waiters and bartenders.  Changes to the tip credit are also effective January 1, 2009 and you can read the changes in the bill here. Essentially, the gratuity allowance for service employees in the restaurant industry will increase to $2.48/hour, up from current levels of $2.24/hour.  A history of those increases can be found here.   The rate for bartenders will also change as well.  The DOL has a website page devoted to restaurants here.

Gov. Rell today was quick to criticize the legislature in a statement she released:

This is a seriously short-sighted decision that - even if well-intentioned - will have long-lasting negative consequences for employers and employees alike all over Connecticut. An increase in the minimum wage will bring an increase in the costs of goods and services, the loss of jobs and unrecognized costs to employers in the form of higher Social Security, unemployment tax and workers compensation payments.

CT Newsjunkie has this additional report on the vote. 

For employers, the override means a few things and it's worth clarifying a few points as well:

1. Not only will wages needs to increase for the lowest paid workers in January, but workplace posters will need to be updated as well.
   
2. As I've said before, although federal law provides a different minimum wage, Connecticut will apply to employees in Connecticut. Thus, regardless of what an employer may hear now, it will need to apply this law starting in January.
   
3. Even though the General Assembly has overriden the veto, and the law becomes "effective" October 1, 2008, it will not apply to employers until January 1, 2009. While employers may certain increase wages beforehand, there is no legal requirement to do so.  Until then, the minimum wage in Connecticut remains at $7.65/hour. 

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One down, one to go.

The Connecticut House voted this afternoon to override Gov. Rell's veto of the minimum wage bill.  

The bill now moves to the Senate this afternoon for immediate consideration. 

For a text of the bill under the consideration, you can view the bill here. 

As I've noted in earlier posts, if the veto is overriden, the minimum wage in Connecticut would increase to $8.00/hour effective January 1, 2009 and $8.25/hour effective January 1, 2010.

Update 3:10 p.m.: The Hartford Courant reports that the vote was razor-thin as expected: 102-39, one more than needed. 

24 votes are now needed to pass the Senate and the original bill passed with 25 votes, with 2 Republicans voting along with all 23 Senate Democrats.  The Courant now predicts passage.

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Today, the Connecticut General Assembly goes back for a special session today to try to override Gov. Rell's veto of a bill that would raise the minimum wage to $8.00/hour, effective January 1, 2009.

The Hartford Courant has a prediction on what will happen: "It depends on who shows up."  With vacation season in full force, some legislators were apparently flying back in for the vote. If they show up, the votes may be there. But that's a big "if".

My prior posts on the minimum wage bill, including the text of it and the razor-thin vote when it passed the General Assembly last month, can be found here.

The General Assembly is expected to reconvene at 10 a.m. but expect things to go later.  As noted above, leaders may wait to see if everyone shows up and if they have enough votes, before actually calling the vote.

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Just time enough for some short updates on various posts from the last few weeks.

• You may recall a few weeks ago that the Governor vetoed a bill which would have increased the minimum wage in Connecticut to $8/hour in January 2009.  While there has been talk of a possible override session, it's difficult to get the numbers to believe that the legislature has the votes to override the veto. Nevertheless, it appears that June 23, 2008 is a possible date for a veto override vote.    As I've mentioned before, this is most decidedly not a political blog, so if you've like to see what some of them have to say, check out the My Left Nutmeg blog post here.
  
• You may recall a few weeks ago the post about the attorney who allegedly submitted an anonymous letter purporting to be a janitor.  The Courant reported over the weekend that the attorney is now the subject of an investigation by the Statewide Grievance Committee.  No public comment has been given on the subject to it is unknown the extent of the Committee's investigation. 
  
• Last week, I reported on a $225M employment lawsuit filed against NASCAR.  Since my last update, two supervisors who were mentioned in the complaint were suspended and NASCAR defended itself from the allegations, in a report here. Unless particularly noteworthy, I'm not going to post any further updates on this case since it's outside Connecticut, but suffice to say that the employment law world and sports world create interesting enough cases that I wouldn't be surprised to see this one make a few more headlines before it's done.
  
• Lastly, following up on my post about the OWBPA and separation agreements, the Ohio Employer's Law Blog has done a good followup article on deciding the proper "decisional unit" for reductions in force.  As I've said before, with "disparate impact" claims and class action possibilities inherent in a reduction in force, getting solid legal advice on how to handle this subject matter is crucial to reducing exposure to lawsuits later on. 

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Is the fight over the Paid Sick Leave bill still on? That's the tantalizing question raised by the CT News Junkie on Tuesday, due in part to various rallies being held.  The answer seems a little clearer, but I'll get to that in a moment....

Let me back up.. As you may recall, the General Assembly failed to act on the bill before its regular session ended last month. But today, the General Assembly is being called into special session ostensibly to deal with a real estate conveyance tax. 

And once the General Assembly is back in session, lots of groups want to see their pet bill brought back from the dead.

Which brings me back to the Paid Sick Leave bill:

Rep. Kevin Ryan, D-Oakdale, said time ran out during the regular legislative session and while the House wanted to take it up, it was afraid the debate on the bill would get cut short on the last day of the session as the legislature tried to finish as much business as possible.

Jon Green, executive director of the Working Families Party, said they were promised that it would be added to the special session agenda, if it wasn’t passed during the regular session.

But Democratic leadership in both the House and the Senate have said Paid Sick Days is not part of their game plan Wednesday.

So, while anything can happen, it appears that the Paid Sick Leave bill will not be brought up again this year.

Just wait until next year...unless Congress gets there first.

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It's been over four months since my last update on the ADA Restoration Act.

Now word comes that a possible compromise bill is in the works that could make the first substantial legislative changes to the ADA in over 15 years.  Human Resource Executive Online has the latest details (H/T Workplace Horizons):

According to the report, the proposed modified bill:

• States that mitigating measures should not be considered when determining whether an impairment materially restricts an individual's major life activity, including medical devices, assistive technology, behavior adaptations, reasonable accommodation or auxiliary aids. This would reverse the ruling in the Sutton vs. United Airlines decision by the U.S. Supreme Court that "mitigating measures" should be taken into account when determining whether a plaintiff is disabled.
• Excludes minor impairments and impairments with an actual or expected duration of six months or less as disabilities.
• States that employers would not need to provide reasonable accommodations to employees they regard as disabled.
• Includes a section with examples of major life activities such as caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The high court, in Toyota vs. Williams, ruled a disability must "substantially limit [an individual's] daily life activities," not just abilities at work. The case involved the inability of an assembly worker with carpal tunnel syndrome to do her job.
  

What will happen? Stay tuned.

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At long last, Governor Rell has signed a bill this week that I've reported on lots before that allows 15-year-olds to once again work in grocery stores and some other limited capacity roles.  The law, which is effective immediately, also retroactively makes legal any 15-year-olds that have been working in the stores since the previous law expired last year.

The law, which is now codified at Conn. Gen. Stat. 31-23 does a little more than you might originally think: Specifically:

• 14 year olds can work as a  a caddie or in a pro shop at any municipal or private golf course
• 15 year olds can work in any mercantile establishment, as a bagger, cashier or stock clerk.

There are restrictions however on the work such as the time of day and the length of the workday.   Golf courses and stores should review the law carefully and set forth proper policies regarding employment of 14 and 15-year-olds.

Other blogs have picked up on the law this including the New Haven Independent.

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In a bit of a surprise (and in a busy day for employment law in Connecticut), Governor Rell vetoed a bill which would have increased the minimum wage to $8/hour starting Jan. 1, 2009 (and $8.25/hour in 2010).  The veto to House Bill 5105 (H.B. 5105) also effectively kills Senate Bill 55 (S.B. 55) which dealt with an increase in tip credit.  Gov. Rell had approved of an increase two years ago so it was not unreasonable to expect her to follow suit here.

She released a press release, available here which stated, in part:

“There is no doubt that families, particularly low income families, have been hurt by our strained economy,” Governor Rell said. “We all feel the pinch when buying groceries, filling up the gas tank and heating our homes. Yet we must also realize that Connecticut employers face these same financial pressures and are having an extremely difficult time making ends meet.

“We cannot take a chance on hurting families or employers by signing another minimum wage increase into law at this time,” the Governor said. “Businesses have told me that they would not be hiring if the wage hike went into effect. Employers that are now operating on the margin may be forced to close or leave Connecticut to more business-affordable states, resulting in job losses that will undermine the already fragile foundation of financial security for thousands of families.”

I noted earlier this month that the minimum wage bill passed both the House and Senate in overwhelming majorities. The bill passed the House, 106-45, and the Senate, 25-11.  An override needs 101 votes in the House and 24 votes in the Senate.  Thus, it is possible that the General Assembly will reconsider this bill in a special session and overrule the veto.  Indeed, the Hartford Courant is reporting this afternoon that legislators are already clamoring for one.

House Majority Leader Christopher G. Donovan, D-Meriden, said Democrats may attempt an override.

"We had good, strong votes in both chambers," Donovan said. ...

"I'm disappointed Gov. Rell would deny a modest increase to our lowest-paid workers in tough economic times," he said. Donovan said he could not recall the last time a Connecticut governor vetoed a minimum-wage increase.

Thus, until and unless the General Assembly overrides the veto, minimum wage in Connecticut will remain at $7.65/hour. 

(H/T: Hartford Business Journal)

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One of my new favorite "undiscovered gems" on the Internet, is Connecticut Judicial Branch Law Libraries' Newslog.  It is a site maintained by the librarians with daily entries to help people stay informed about "recent legal developments, legal practice tools, and law library resources". It's another example of how librarians are adapting to new technology and providing a helpful resource. 

And best of all, they have added RSS feeds to allow readers to "subscribe" to it.  (If you don't know what a "feed" is, see my easy-to-read post on the subject here.)

One of the entries that caught my eye recently was a research memo prepared by the Office of Legislative Research that discussed what the Connecticut laws are regarding employers who hire illegal immigrants.  The issue arises out of a law that Arizona passed last year that provides for extreme penalties to employers who hire illegal immigrants. 

So what does Connecticut say on the subject? Well, the memo points to Conn. Gen. Stat. 31-51k, which has been on the books for 35 years, as the applicable law:

Since 1972, Connecticut law has penalized employers who knowingly employ aliens not entitled to lawful residence. A first offense is punishable by a fine of $ 200 to $ 500. Any subsequent offense is a class A misdemeanor, punishable by a fine of $ 2,000, imprisonment for up to one year, or both.

But not so fast. 

As the OLR memo goes on to state, that law is likely preempted by the 1986 Federal Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” 8 U.S.C. 1324a(h)(2).  Thus, even with a Connecticut law on the books, it probably has no real effect anymore because of the federal law "preempting" it. (Why have the state law then still on the books? That's a good question for another day.)

The memo concludes by stating that the Arizona law is different because that state statute deals with a business license, which is exempted from preemption. 

With no action on any immigration-related bills in Connecticut this session, Connecticut employers should continue to educate themselves on the requirements of IRCA in dealing with illegal aliens. The Department of Labor's website is a good place to start and there are additional materials located here. But the enforcement of laws relating to the hiring of illegal aliens has also been picked up by the Department of Homeland Security and even Connecticut has its own Alien Labor Certification Unit. It is an area filled with risk and employers should continue to tread carefully.

Lastly, on a lighter note, what post on alien workers, would be complete without a link to the classic Genesis song "Illegal Alien". So, on this Friday, a link to the deliciously tacky video is below:

 

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A bill to provide mandatory paid sick leave to employees and a bill to provide greater protection to state whistleblowers were among the employment law-related bills that were not voted upon in the final day of the legislative session -- effectively killing them. 

The Paid Sick Leave bill, S.B. 217, had passed the Senate last week, but the House did not bring the measure up for a vote. As I indicated yesterday, nearly 25 amendments had been proposed on it -- a sign that the bill was going to be in for a long fight.  My earlier coverage of the bill is available here. CT News Junkie has a report on it as well.

The Whistleblower bill, S.B. 335, had also passed the Senate, but again, the House did not act on that provision either. My earlier coverage of the bill is available here.

Other bills that were not acted upon by the legislature include: a Workplace Bullying bill; a bill protecting child in the entertainment industry from child labor abuses; and a bill to allow workers to be paid by a pay or debit card.

One bill that did pass this week allows for the regulation of various professional service organizations and about employee misclassification (H.B. 5113).  I'll cover that in further detail in an upcoming post.

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Today is the final day of the General Assembly and the Paid Sick Leave proposal (S.B. 217) is expected to come before the House before the close of business.  But, perhaps in a sign that it is doomed to die a procedural death, it has drawn nearly 25 proposed amendments.  

One of the listed amendments is just a head scratcher.  Specifically, House Amendment 6092 (proposed by House Republican Leader Lawrence Cafero and Rep. Aman) would, in essence, allow employees to use paid sick leave for the first day of summer, the first day of fishing or hunting season, or, and I kid you not, the opening day of baseball season. 

Don't believe me? Here's the actual language:  

(e) No employer shall require documentation of an illness, injury or health condition, as described in subsection (b) of this section, if the employee uses a paid sick day on the twenty-first day of the month of June, the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes, or the opening day of the official Major League Baseball season. " 

Thus, under this amendment, an employee could take the day off to attend the Opening Day of baseball season, and the employer would just have to "take the employee's word" that the day was a paid sick leave day.  The Office of Fiscal Analysis even issued a one sentence report indicating that it would have no "fiscal impact" in the state.

Because the proposal comes from two Republican lawmakers (who, as a group, have expressed skepticism about the bill), I think it's fair to say that this proposal will go nowhere. Maybe it is just being used to make a point that the paid sick leave bill will be difficult to enforce. But, given the ramifications of the Paid Sick Leave act bill, as I've covered before, one has to wonder what they were thinking in taking the time to draft an actual amendment on this topic.

The General Assembly starts again this morning. Grab your popcorn. Should be a fun last day.

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I realize this blog has been a little top heavy of late with legislative developments, but it always seems that a whole year's worth of developments occur within a 2-3 week period at the end of the short General Assembly session. With this year's session scheduled to close at the end of the day on Wednesday, the developments are fast and furious. The court updates will return in force soon.

In the meantime, here's the brief recap of some of the developments from the last day or two (more to follow if and when necessary):

15-Year-Old Workers

The House late today passed a bill today that reinstates the labor law permitting 15-year-olds to work in grocery stores and similar positions. I expect the Governor to sign it shortly.  I've covered the bill in detail, most recently yesterday.  The bill, S.B. 216, can be downloaded here.  It will become effective immediately upon signature by Gov. Rell.  It amends Conn. Gen. Stat. Sec. 31-23. 

Jury Duty

The provision on jury duty were amended in a few subtle ways through a bill passed by the House on Monday and expected to be signed by the Governor.

First, House Bill 5918 (download text here) allows persons who have served on jury duty in the last three years to request the opportunity to serve again even though they would otherwise be excused.  (It amends Conn. Gen. Stat. 51-217a(a) in doing so.) 

Second, the bill also provides additional protection to workers on jury duty.  Specifically, it makes it clear that "any juror-employee who has served eight hours of jury duty in any one day shall be deemed to have worked a legal day's work as that term is used in section 31-21...and an employer shall not require the juror employee to work in excess of eight hours." 

What does this mean? In practical terms, it means that jurors cannot be required to work while they are also serving full days on jury duty.  Employees can, it appears, voluntarily work -- after hours, for example -- since the language prohibits requiring the employee to do so.  Because Connecticut does not have a daily overtime rule, the employee may not even be entitled to overtime for simply working in addition to jury duty.

This jury duty law will go into effect on October 1, 2008, assuming Gov. Rell signs the bill.

Child Performer Protection

The House has yet to address House Bill 5677, which would institute a whole new range of protections for children who act (or "perform").  You can download the bill here, but the lack of action on the bill so far indicates that time may run out on this provision. 

Whistleblower Protection

S.B. 335, which expands the protection of state whistleblowers has yet to be considered by the House. I looked at Senate Bill 335 in an earlier post. 

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The State Senate late yesterday approved a bill that would increase the minimum wage in 2009 and 2010.  The bill (H.B. 5105), had previously passed the House and now moves to Governor Rell for her signature.

CT News Junkie reports that Gov. Rell has some reservations about the bill:

Gov. M. Jodi Rell is still uncertain about whether she would sign it. Rell’s spokesman Adam Liegeot said in an emailed statement, “While the governor understands the needs of minimum wage workers, she does not want to take any action that will negatively impact businesses and jobs in Connecticut, especially during this troubled economy. Governor Rell will take her time and review this bill closely before deciding what action to take.”

The bill, if signed, will increase in the minimum wage from $7.65 an hour to $8 an hour starting in January 2009 and $8.25 an hour in January 2010.  Assuming a 40-hour-work week, the average wage increase for those making minimum wage will be a little over $700 annually.

For most employers in the state, the bill will not have any impact because many workers receive more than the minimum wage.  For others who rely on workers at minimum wage, the bill could have a real impact; $700 or so per worker per year could affect those with thin profit margins.  However, others will certainly be able to afford the modest increase.

Although the bill did not have full bipartisan support, it did pass the General Assembly overwhelmingly. I would expect the Governor to sign the bill because a veto would likely be overturned by the General Assembly.

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With just a few days to go, the list of pending bills in both the state Senate and House continues to grow. 

But it is worth updating readers on one uncontroversial employment law bill that passed the Senate over a month ago that remains pending. 

Specifically, Senate Bill 216 would renew a labor law that permitted 15-year-olds to work in grocery stores as baggers, shelf stockers and cashiers.  As readers will recall, this law expired last fall "apparently because lawmakers forgot to renew it."

The law has been on the books for 20 years, but had an automatic sunset provision in it that lawmakers overlooked when the session ended last year.

The new bill, which would also grant amnesty to those employers who have continued to employ 15-year-olds during the last six months or so, passed the Senate last month on the consent calendar and looked to have swift passage in the House. 

And perhaps it will pass in the closing days. But given the full agenda of the House, it would be a shame if the General Assembly overlooked this important law again.  House members would be wise to make sure this bill is put on the consent calendar again in the closing days.  It's passage will ensure valuable jobs for teenagers are open for years to come.

UPDATE 12 p.m.: The bill appears on the "Go List" for today, which is available here.  There are two amendments that may potentially be raised today regarding home-schooled teens and apprenticeships. While both topics are interesting, the bill ought to be passed in its original form; otherwise, it will need to be returned to the Senate for further consideration.

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The focus for this term of the Connecticut General Assembly for employers and employees has been on the paid sick leave bill (still no action in the House as of May 3rd).

However, employers who have employees working on public works projects and manual labor on state or municipal building construction or repair contracts need to be aware of a bill that cleared both the Senate and House very early today (H.B. 5537).  The bill is expected to be signed into law shortly, will become effective January 1, 2009.  The vote tally in the Senate is available here.

Under current law, some of these employees must prove that they have completed a 10-hour construction safety and health course that meets federal OSHA Training Institute Standards. The new bill expands this training and expands the people who must receive training. 

The Office of Legislative Research has fairly detailed report available here:

First, it expands the construction safety training requirement to any public works project, which includes sewage and water treatment plants, site work, road and bridge work, parking lots, drainage systems, and other public projects.

Second, instead of applying the training requirement to all projects of $ 100,000 or more, the bill applies the existing prevailing wage project thresholds to the training requirement. This means the requirement kicks in for (1) repair and renovation projects of $ 100,000 or more and (2) new construction projects of $ 400,000 or more.

Furthermore, it removes the requirement that the proof of the training be sent to the labor commissioner. Presumably, the proof will be sent to the contracting agency paying for the prevailing wage project. ...

The bill also creates training requirement exceptions for employees of public service companies and commercial vehicle drivers who either pick up at or deliver cargo to public work projects.

It requires the labor commissioner to adopt implementing regulations by January 1, 2009. By law, regulations cannot take effect before the effective date of the act authorizing them.

A few notable items:

• The employees who must receive the training (which, under current law, is any employee "performing manual labor") is greater under the bill.  The bill states that a mechanic, laborer, or worker must complete the safety training course.
  
• Notably, according to the OLR, the safety training requirements "do not apply to employees of public service companies, which are defined in statute to include electric, electric distribution, gas, telephone, telegraph, pipeline, sewage, and water companies; cable franchise holders; and railroad companies."

With all the training requirements that exist for employers, employers should add this to their list if they are in the business of doing construction or repair work for the State of Connecticut. 

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Late Thursday night, the State Senate passed the Paid Sick Leave bill (S.B. 217) with various amendments including an exemption for some existing collective bargaining agreements.  The vote was a close one -- 20-16 -- and you can find the roll call here.

The bill would make Connecticut the first state to require employers of 50 or more, to allow workers to take 6½ paid sick days per year. It would also apply to municipalities.  One additional amendment that passed would limt the times when employee could use sick time for an illness of an employee or employee's child.

The bill now moves on to the House for further consideration, where nearly 40 legislators have publicly co-sponsored the bill already.  Some of the sponsors of the bill have predicted passage there, but its real future is unknown at this point, with the session winding down.  Debate in the Senate took two days and it is unclear if there is enough time left for the bill to pass. 

The Hartford Courant has a late report and reaction here:

[State Senator Edith] Prague called the bill a major boon to average working people, "especially single parents, like women, who have to go to work. They can't afford the luxury of staying home if they're sick. They need that day's pay to feed the kids ... and heat the house." ...

But opponents said the increasing business competition in a difficult economy is the reason that lawmakers should not approve the bill: It would put Connecticut at a disadvantage and cost the jobs of some of the very workers it is intended to help, they said.

The state's leading business lobbying group, the Connecticut Business and Industry Association, has said the bill "would cost employers in dollars and productivity — a tough one-two punch in this weakening economy."

Various political blogs have started to chime in, including My Left Nutmeg here.  My prior coverage of the bill can be found here.

UPDATE: You can also find the CT News Junkie coverage of the bill here.

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The U.S. House of Representatives, as expected, passed the Genetic Information Nondiscrimination Act this afternoon.  The bill, which had already been approved by the Senate, now moves on to the White House, where the President is expected to sign the bill.  The bill's summary and status can be found here.The roll call vote at 12:40 p.m. can be found here.   It passed overwhelmingly.  (Guess which Representative opposed it.)

The New York Times, through an AP report, has the immediate coverage:

Companies would no longer be able to use genetic information like a person's predisposition for breast cancer, sickle cell or diabetes to make insurance or job decisions under a bill passed by Congress on Thursday.

The House voted 414-1 for the legislation a week after it passed the Senate on a 95-0 vote. The bill would bar health insurance companies from using genetic information to set premiums or determine enrollment eligibility. Similarly, employers could not use genetic information in hiring, firing or promotion decisions.

As I noted earlier this week, this bill is not expected to have a significant impact in Connecticut where there is already legislation on the books prohibiting discrmination based on genetic information.

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With the legislative session coming to a close next week, developments are heating up at a fast and furious pace.  I'll do some quick updating and then provide a more through review when time permits.

First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements.  The Senate has been working off of some amendments as well, which can be located here.

The Hartford Courant has coverage here.   The CT News Junkie blog has a report earlier this week about it as well.

Second, the State Senate also passed amendments to the state's whistleblower law.  You can find my previous coverage here and you can view the Courant's coverage today of it here.

The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases.  The bill now moves on to the House for a vote. 

As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling.  The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.  As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?

Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward.  Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.

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While the headlines have been focusing on criminal justice reform and now the state's projected deficit, a new "hate crime" bill  (S.B. 604) got passed and became a public act (P.A. 08-49) yesterday.  You can download it here.

The Act, which is effective October 1, 2008 is not found in Connecticut's penal code per se, but is found with Connecticut's discrimination statutes.  It amends Conn. Gen. Stat. 46a-58 to add new subparagraph (d). This paragraph makes it a "discriminatory practice", punishable as either a misdemeanor or class D felony, to display nooses or simulation of nooses. 

In relevant part, the revisions to the statutes are underlined:

(a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability.

(d) Any person who places a noose or a simulation thereof on any public property, or on any private property without the written consent of the owner, and with intent to intimidate or harass any other person on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability, shall be in violation of subsection (a) of this section.

Why nooses? The Judiciary Committee's report indicates that it would strengthen Connecticut's hate crime laws. And indeed, in light of the Jena 6 incident last year, there seemed to be a greater recognition that nooses are particularly offensive to those in the African-American community, which is also noted in the report.  Indeed, the new law would, in essence, equate noose displays with cross-burning.

But the new act raises questions remains unanswered: Why include other categories that have nothing to do with race, including sexual orientation or blindness or physical disability (and why exclude mental disabilities?)   Isn't the point of nooses is that it has some relation to the historic symbol of racial lynching?

And are there really any incidents were people are using nooses to intimidate people based on their gender? I believe the answer is essentially no. Indeed, even back in 2000, the EEOC noted that workplace noose incidents were related to racial harassment cases, not gender cases. What is also striking about the new law is that it contrasts with the cross-burning section which has no reference to protected categories.

Regardless, I'm sure it also won't be too long before the statute is also used in employment discrimination cases to show Connecticut's strong "public policy" against nooses -- whether in the workplace or otherwise.  

And one point should continue to be emphasized for employers -- these types of incidents should not be tolerated in the workplace.  If an employer in Connecticut does have an incident where a noose is displayed, the employer should seek prompt legal advice as to how to address the situation.

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Last week, while I was out on vacation, Congress acted on a bill that may have some interest in Connecticut. However, because Connecticut already has a similar bill already on the books, it will probably have a minor impact on employers.

The U.S. Senate approved of legislation that would prohibit genetic discrimination in the workplace.   As reported by the Manpower Employment Law Blog, The Genetic Information Nondiscrimination Act (GINA) sailed through the Senate on a 95-0 vote.  A House vote is expected shortly; you can check on the bill status of H.R. 493 here. 
Among other things, GINA would:

• prohibit discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
• prohibit employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions (e.g., monitoring the effects of hazardous workplace exposures);
• prohibit health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
• impose strict workplace confidentiality/disclosure rules on all genetic information.

Senator Christopher Dodd expressed his strong support for the bill and posted his comments to his website, which you can find here. 

However, for employers in Connecticut, this should be old news. Connecticut already has a law that prohibits discrimination based on genetic information so I don't anticipate that GINA, if passed, will a significant impact in Connecticut.  Conn. Gen. Stat. 46a-60(a)(11) states that it is illegal:

     (11) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to discharge, expel or otherwise discriminate against any person on the basis of genetic information. For the purpose of this subdivision, "genetic information" means the information about genes, gene products or inherited characteristics that may derive from an individual or a family member.

To be sure, GINA has some additional provisions that will need to be looked at by employers in Connecticut.  But none of it is all that dramatic; Connecticut employers may want to await final passage of GINA before updating their policies on this issue. 

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Senate Bill 217, the Paid Sick Leave bill, which I have reported on here and here, passed the Judiciary Committee of the Connecticut General Assembly late last week, setting the stage for a possible Senate vote in the next few weeks.  Various blogs and website have set the stage for a possible showdown at the legislature.

The My Left Nutmeg blog shares its views on the bill and suggests that people can send an Apple Gram to their legislators to tell them to pass it. 

Four out of ten working people in Connecticut don't have a single paid sick day available to them all year. Workers who feel compelled to show up work slower and get others sick, increasing costs for employers. Those who can't make it to work lose income. About one in four parents with a child under one does not have any paid sick time. All of the top twenty most competitive economies in the world - except the U.S. - guarantee paid sick days for workers.

In Connecticut, a network of organizations coordinated by Working Families has launched the Everybody Benefits campaign, which backs Senate Bill 217, designed to guarantee that workers in medium to large companies can earn a few days of sick time each year. Last year, the bill passed the Senate, but never got a vote in the House. This week it passed the Judiciary Committee and moves to the Senate.

The Connecticut Business and Industry Association (CBIA) released a press release of their own saying that many businesses oppose the bill:

Connecticut businesses are urging state legislators to oppose SB-217 which mandates paid sick leave, because it would significantly increase business costs, make Connecticut companies less competitive, cause workplace disruptions and hurt our employees, not help them. The bill would hit small businesses and those that rely on part-time and seasonal help the hardest. ....

"This bill would require employers to provide paid sick leave to all hourly employees with indefinite carryover to future years, further increasing costs and seriously harming businesses in Connecticut as well as the state's economy,” said Bonnie Stewart, CBIA vice president of government affairs. “The bill targets smaller, service industry employers and seasonal companies — the ones that can least afford it.”

According to a recent Connecticut Business & Industry Association survey, the majority of employers (69 percent) offer paid sick leave to their employees. Stewart added that this bill is a one-size-fits-all approach that doesn't allow businesses the flexibility to deal with the needs of their employees.

Both sides in this debate appear to be loading up for a battle.  Just a few weeks left to see who prevails in this legislative tussle.

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With one month to go in the shortened legislative session, there hasn't been a lot of action on various labor & employment bills.  Many of the bills I highlighted in the last two months haven't seen a lot of action or are still awaiting further votes.  This post will briefly summarize where some of the bills are based on the Bill Record Book. 

• The Workplace Bullying bill, Senate Bill 60, which I addressed here, appears to be going nowhere. There has been no committee action on it, unlike several others.  In my opinion, there are just too many issues that would need to be resolved and addressed to make the proposed bill a workable law. 
  
• Similarly, Senate Bill 61, which provides additional protections to whistleblowers hasn't gone anywhere yet either.  There has yet to be a hearing on it and no action appears to have been taken on it.  Some of my prior coverage is available here.
  
• On a different note, the bill to allow 15 year olds back into grocery stores, Senate Bill 216, passed the Senate last week.  This one seems like a sure thing to get House approval. For more background on this bill, click here for my prior coverage. 
  
• The Paid Sick Leave Bill, Senate Bill 217, is far from sick. I covered the bill's origins here.  Indeed, the Labor & Public Employee Committee has favorably voted the bill out to the Judiciary Committee on April 3, 2008.  

No significant bills relating to labor & employment law have been passed by both houses yet so I'll keep providing updates for the remainder of the session.

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After a brief hiatus, Workplace Horizons blog is back with some interesting thoughts on the "Paid Sick Leave" bills pending nationwide and a new website related to the subject that I highlighted last week.  According to Richard, "It’s a pretty slick web site designed to promote the Healthy Families Act."

According to Workplace Horizons:

The Act, introduced in both the House and Senate in 2007, has not yet been voted on by either house of Congress. It would require employers with 15 or more employees to provide 7 days of paid sick leave for employees working 30 or more hours per week. Additionally, it would require a pro-rated number of days or hours of paid sick leave for employees who work less than 30 hours per week (or less than 1,500 hours per year) and allow employees to take leave for their own medical condition, doctor appointments, or preventative or diagnostic treatment. Employees could also use the leave to care for a family member with comparable needs. Leave would be calculated on an hourly basis or in the smallest increment that the employer’s payroll system uses.

Workplace Horizons was also kind enough to post on the workplace bullying legislation I discussed last week. 

It's nice to have Workplace Horizons back for its perspective after its long Foxwoods proceedings. 

On that same note, this blog is going to get a big sparse for the next few weeks.  I've got a trial upcoming in state court in another week or so that will preclude much posting for most of March.   (Need to pay the bills somehow.)  But rest assured that I'll post when I can and will certainly be back in full force after the trial.

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On Tuesday, I noted that the Paid Sick Leave Bill had been re-introduced this year and that it was "the one to watch" this year.

On Wednesday, February 27th, State Senator Edith Prague -- and others -- held a news conference to push for its passage. Christine Stuart, at CT News Junkie, has the details:

For the second year in a row, state Sen. Edith Prague, D-Columbia, a dozen other Democratic legislators, along with the Working Families Party, are trying to pass legislation that forces companies with more than 25 employees to give their workers a chance to earn up to 6.5 sick days a year.

“We need to treat people like they’re human beings,” Prague said at an afternoon press conference. State Rep. Steve Fontana, D-North Haven, said, “I think this is legislation whose time has come.” Last year the bill passed the state Senate by a vote of 23 to 13, however, it never came to a vote in the House.

The Working Families Party has created a website devoted to this issue at www.everybodybenefits.org.  What's interesting is that this group presents this also as a public health issue, not only a worker fairness issue (though they do not cite in any obvious way, where their numbers are from).  The problem, according to the website, is:

Around 40% of working people in Connecticut don't get a single paid sick day all year long. Among low wage workers, that figure rises to more than 75%.  Only 20% of food service worker. Childcare, retail, and nursing workers are also less likely to have paid sick days.

Presenteeism - the phenomenon of employees coming in to work sick, but working less productively and possibly spreading illness - costs employers an estimated $255 per employee per year. That's more than the cost of guaranteeing paid sick days.

A hearing on the bill is scheduled for Thursday; details are provided in my prior post. 

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The General Assembly's Labor & Public Employee Hearing on various labor bills went forward as scheduled on Tuesday.  Among the topics --  the workplace bullying bill that I first reported on on Monday.

Senate Bill 60 would create a private cause of action for workplace bullying. However, even if the bill passes the labor committee, it would still need to pass muster with the judiciary committee, according to state Senator Edith Prague.

The Hartford Courant had a report in Wednesday's editions:

The bill, which has the support of committee chair state Sen. Edith Prague, D-Columbia, is actually a revised version of a similar bill that failed to reach a full vote of the assembly last year because of concerns about how it might affect businesses. In particular, opponents worried that the bill, which would allow workplace bullying victims to sue their tormentors, could expose employers to potential damages even if they had consistently tried to create a safe environment for workers.

The new legislation aims to protect employers who have acted in good faith by making them exempt from liability if they can show they took steps to prevent bullying behavior on the part of individual employees or supervisors.

Last week, The Word on Employment Law discussed the possibility that these types of bills were being introduced across the United States.  Earlier this month, Ohio Employer's Law Blog touched the subject as well.  But for a more in-depth look at the subject, the ABA Journal did a nice piece earlier this month. The article quotes from a Tennessee case that perhaps touches on the problem with workplace bullying laws and perhaps over-legislating the workplace. 

The fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive, does not violate civil rights statutes...

It'll be interesting to see what happens with this bill in the upcoming months. And for the record, i don't think hiring bodyguards for the workplace, as the movie poster suggests, is a good idea.  Stay tuned.

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As I posted yesterday, the Connecticut General Assembly is back in session. The Labor & Public Employees Committee is busy holding hearings this week on various bills now pending before the General Assembly.

One batch of bills is up for consideration this afternoon. A second batch is up for a hearing this Thursday at 2:30 p.m.  The February 28th Hearing agenda can be found here.  The hearing is at 2:30 in Room 2D of the Legislative Office Building.  The main topics of the February 28th hearing  purport to be public employees and unemployment compensation.

Among the notable bills being considered:

• Senate Bill 217 (Employers with 25+ employees would be required to provide up to 52 hours of paid sick leave to employees);
• Senate Bill 38 (which would provide paid vacation time, sick leave and personal leave for Connecticut State's attorneys);
• Senate Bill 56 (which would create a task force to address misclassification of workers such as the distinctions between exempt/non-exempt or employee/independent contractor).

For employers, Senate Bill 217 is the one to watch.  Proposals for paid sick leave have been making the rounds in various states with only modest success thus far.  It'll be interesting to see how far this bill actually gets this year.

We'll look at some of these bills more in-depth over the upcoming weeks and months as debate on the bills begins.  But given the General Assembly is in a short session, it's still an open question as to what will actually get passed this year.

I should also note that other committees also consider bills that look at the employer/employee relationship. For example, the Judiciary Committee has a bill (Senate Bill 328) that would increase jury duty pay and require employers to be more involved in the system.  As significant developments arise, I will try to keep tabs on them throughout the legislative session.

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With the Connecticut General Assembly back in session this month for its short session, the Labor & Public Employees Committee has scheduled two hearings this week -- February 26th at 2 p.m. and February 28th at 2:30 p.m. -- to consider a variety of bills now being proposed.  The agendas for each can be found here and here. 

The February 26th Hearing overall, will be hearing bills related to minimum wage, the Department of Labor, unemployment compensation and prevailing wages.  Among the more notable of the bills being discussed is Senate Bill 216 which would fix a law that expired last fall that allows 15-year-olds to work in grocery stores as baggers, cashiers and shelf stockers. As I reported last fall, lawmakers simply forgot to renew it.  The bill would also grant immunity to employers who kept those 15-year-olds employed from last fall until present because of the legislative slipup.

Other notable bills being considered:

• House Bill 5105 (which would increase minimum wage to $8.00 per hour effective January 1, 2009);
• Senate Bill 60 (which would create a new private cause of action for bullying in the workplace);
• House Bill  5113 (which would regulate "professional service organizations" , or situations where there is a "coemployment relationship in which all or a majority of the employees providing services to a client or to a division or work unit of a client are covered employee");
• House Bill 5114 (which would allow employers to pay its employees via a debit card, instead of a check).

The sleeper bill of these, in my view, is House Bill 5114.  This would be a huge benefit to the thousands of workers who do not have their own checking account.  Many of these people pay large check cashing fees.  The debit card might allow these employees to use the card directly like a VISA or Mastercard.  Employers are allowed to use these for items such as Health Savings Accounts, so why not paychecks (so long as it remains the choice of the employee)?

I should also note that Senate Bill 216 should be a no-brainer as well.  Having sunset provisions, like the one in the prior statute (Conn. Gen. Stat. Sec. 31-23) are of no use, if no one at the General Assembly keeps track of them. 

The February 26th Hearing begins at 2 p.m. in Room 2D of the Legislative Office Building and is open to the public.

I'll summarize the February 28th Hearing in an upcoming post.