generalassemblyPayroll cards are finally here.

The General Assembly finished their regular session last night with several employment law bills getting passed, including some that have been kicking around for years.

One of them is Senate Bill 211, which authorizes employers to use payroll cards — instead of checks or direct deposit — to pay their employees.

But there are a number of conditions that must be met before this happens and there are a number of restrictions as well.  The bill will become effective October 1, 2016 — assuming the governor signs the measure, which is expected.

The Office of Legislative Research has done a thorough recap, which I’ll liberally borrow from here.

In order to use the card, an employee must “voluntarily and expressly authorize, in writing or electronically, that he or she wishes to be paid with a card without any intimidation, coercion, or fear of discharge or reprisal from the employer. No employer can require payment through a card as a condition of employment or for receiving any benefits or other type of remuneration.”

In addition, as noted by the OLR report:

  1. employers must give employees the option to be paid by check or through direct deposit,
  2. the card must be associated with an ATM network that ensures the availability of a substantial number of in-network ATMs in the state,
  3. employees must be able to make at least three free withdrawals per pay period, and
  4. none of the employer’s costs for using payroll cards can be passed on to employees.

Under the bill, a “payroll card” is a stored value card (similar to a bank account debit card) or other device, but not a gift certificate, that allows an employee to access wages from a payroll card account. The employee can choose to redeem it at multiple unaffiliated merchants or service providers, bank branches, or ATMs. A “payroll card account” is a bank or credit union account (1) established through an employer to transfer an employee’s wages, salary, or other compensation (pay); (2) accessed through a payroll card; and (3) subject to federal consumer protection regulations on electronic fund transfers.

Another big change, according to the OLR report: The bill also allows employers, regardless of how they pay their employees, to provide them with an electronic record of their hours worked, gross earnings, deductions, and net earnings (i.e., pay stub). To do so, the (1) employee must explicitly consent; (2) employer must provide a way for the employee to access and print the record securely, privately, and conveniently; and (3) employer must incorporate reasonable safeguards to protect the confidentiality of the employee’s personal information.

Lastly, current law allows employers to pay employees through direct deposit only on an employee’s written request. The bill allows an employee’s request for direct deposit to also be an electronic request.

An amendment, which also passed, (1) changes the timeframe in which an employer must switch an employee from a payroll card to direct deposit or check; (2) specifies that the limit on fees or interest charged for the first two declined transactions each month applies to calendar months; and (3) requires the cards to be associated with ATM networks that ensure, rather than assure, the availability of in-network ATMs in the state.

Overall, this is a big boost for both employers and employees.  The CBIA had supported the measure and it had received “cautious” support from the AFL-CIO as well.

justiceLate last month, a federal court in Connecticut took another look at the prohibition of discrimination “because of sex” with a case that has all the elements of a “can you believe it” fact-pattern that will surely be used for harassment training going forward.

The case involves a male employee posed for Playgirl nearly two decades prior and who, according to the decision, faced harassment from male and female co-workers.

But what does that phrase “because of sex” mean in today’s workplace climate?  And should it be extended when we’re looking at issues of same-sex harassment?

The case, Sawka v. ADP, can be downloaded here, and I’ll talk about it a bit more below.

The EEOC has been pushing an expanded view of this language, particularly as efforts to prohibit employment discrimination on the basis of sexual orientation have been floundering at the federal level.

(It should be noted that Connecticut law explicitly prohibits sexual orientation discrimination but there are case of male on male, or female on female harassment that don’t involve sexual orientation — like this case.)

But this case touches on same-sex harassment unrelated to the employee’s sexual orientation.  The case came to my attention by David Wachtel in a detailed post that is worth a read.  In it, Wachtel notes that in cases of same-sex harassment, there have been limited theories for employees to pursue.

Based on Supreme Court precedent in the Oncale case, a plaintiff would have to show either that:

  1. The harasser was motivated by sexual desire;
  2. The harasser was expressing a general hostility tto the presence of one sex in the workplace;
  3. One sex was treated differently from the other;
  4. Defiance of a sexual stereotype.

Wachtel argues that there is another kind of motivation that should also be covered by the “because of sex” principle.  Likening it to the “Fifth Beatle”, he says that a court should focus on the employee’s sexual characteristics and that this case seems to expand on it.

For employers, though, the case is easier to understand without the legal theories, notwithstanding the complicated facts that involved, among other things, teasing by both male and female coworkers for nude photos that the employee has posed in Playgirl for nearly two decades ago.

Ultimately, the federal court said that there was sufficient evidence to send the case to a trial (thereby denying the employer’s motion for summary judgment at least partially).

For example, one woman referenced “the existence of pictures or searching for Mr. Sawka online” and said she saw “everything”.  Another said that everyone had seen the pictures and that he had a “beautiful c***” and she just wanted to “f*** the s*** out of you.”

The court said that these comments and behavior (and other) could be viewed by a jury as being motivated by sexual desire and thus “because of sex”.  And the comments by male co-workers about the “size and state of his genitals” could also be harassment “because of sex”.  Thus, the court said, the employee could proceed with his hostile work environment claims.

It’s not a full victory for the employee however. The employee resigned and claimed that he was “constructively discharged.”  The court rejected that claim because to proceed, the employee must produce “evidence of even more severe conditions” than those that create a question of fact on a hostile work environment claim.

Nevertheless, the case is a notable one that reinforces something that I talk about in sex harassment prevention training.  Sex-based jokes, comments, and teasing by EITHER gender can lead to liability for an employer if that behavior interferes with an employee’s ability to do his or her job.