My law partner, Gabe Jiran, talks today about whether it’s all that easy to change the terms of a collective bargaining agreement.  Is it just as easy as a vote? Or does it require something more? The answer has implications for all employers.  

With all of the talk about the financial difficulties faced by the government, I, and others in here, sometimes get the question of whether the State of Connecticut or other states might try to change the laws on collective bargaining or try to pass legislation to alter the terms of its existing collective bargaining agreements.

Other states have started down this road, but it is not that easy.

Recently, the Connecticut Attorney General was asked to opine on whether the General Assembly could statutorily change the contracts covering State employees to address the fiscal crisis.  A link to the opinion is here.

The short answer is that the State could do so, such as by passing a statute that wage increases be delayed or eliminated in State contracts.

However, the United States Constitution imposes a pretty heavy burden on the State to justify any such changes.

The relevant factors are:

  1. the severity of the fiscal crisis;
  2. the nature and duration of the contractual changes;
  3. the extent that the State has attempted to implement other alternatives in the past;
  4. the extent to which the State has studied and made findings about the feasibility of other alternatives;
  5. whether these alternatives would be a less dramatic option;
  6. the extent to which the fiscal crisis existed or was foreseeable when the State entered into the existing contract; and
  7. the State’s representations during negotiations for the existing contract.

Based on cases utilizing some or all of these factors, the State would face an uphill battle if it wanted to change an existing contract.

For example, a federal appeals court struck down the State of New York’s plan to delay wage increases for employees because New York had alternatives such as raising taxes or shifting money around in its budget.  In another New York case, the same court found that a $1 billion deficit was not a dire enough fiscal crisis to justify a delayed wage increase.

However, one case found that the City of Buffalo was able to impose a wage freeze when it was undeniable that Buffalo was in a fiscal emergency and that the wage freeze was a last resort after looking at other options.

In discussing the matters with others here, we expect that Connecticut and other states will continue to look for creative options to address their financial situations with employees.

However, it is doubtful that these options will involve changes to existing contracts without negotiation with the unions involved.  In addition, any State attempts to change contracts in the private sector would be almost certain to fail.

capitoldas2Well, the Connecticut General Assembly ended earlier this week and, as predicted, it ended with a whimper and not a bang.  Many employment law proposals failed to receive votes, including those on minimum wage and Paid FMLA, leaving many employers (and the CBIA) breathing a bit of a sigh of relief.

I’ve previously recapped most of the bills here and here, so I’m only going to recap the session here in the interests of time.

  • The Governor is expected to sign a bill expanding the requirements for employers to provide reasonable accommodations to pregnant employees. Again, I’ve recapped the measure here but this is probably the most significant bill to come out of the session regarding employers.
  • There will be no minimum wage hike and the introduction of Paid FMLA failed to get enough votes this term.  There is little doubt that the split in the Senate along party lines slowed momentum down for what was going to be the Democrat party’s signature achievement this session.
  • Also not getting votes this session was a bill that would have prohibited many employers from running credit checks on prospective employees and a bill that would required employers to give advance notice to employees about their work shifts.
  • Another bill that would change whistleblower protections in Connecticut also failed to clear the House.

Some of the other technical changes, to workers compensation or unemployment compensation, offer up a mixed bag. I’ve covered them in a prior post.

A special session is still on the way and it’s possible that some measures will get plopped into an “implementer” bill for the budget like it did a few years ago.  But my gut tells me that the budget is unlike to be used this way given the significant financial issues in play.  Nonetheless, employers should continue to watch for any developments in this area until the special session is closed.

GA2Today is the last day of the Connecticut General Assembly regular session.  So it’s a good time to take a look at some of the bills pending or passed.  Strangely, things seem pretty quiet on the employment law front.  But after the dust settles, I’ll have another update. Here is where we stand as of early this morning (Wednesday).

  • Last night, the Senate approved of the measure (House Bill 6668) expanding protections in the workplace for workers who are pregnant.  It was previously passed by the House.   I’ve covered the bill in depth before but it now goes on to the Governor for his signature.  The bill, if signed, would become effective October 1, 2017.
  • The House also passed a measure last night (H.B. 6907) that exempts certain professional drivers from coverage under the state’s unemployment law.. The exemption applies to drivers under a contract with another party if the driver meets certain conditions. The measure moves to the Senate but given the backlog of bills today, final passage is definitely unclear.
  • The Senate last night passed a measure (H.B. 7132) that streamlines procedures for filing workers compensation claims.  Currently, the law generally requires private-sector employees seeking workers’ compensation benefits to submit a written notice of claim for compensation to either a workers’ compensation commissioner or their employer’s last known residence or place of business. This bill requires private-sector employees who mail the notice to their employer to do so by certified mail. It also allows employers, except the state and municipalities, to post a copy of where employees must send the notice (presumably a specific address). The posting must be in a workplace location where other labor law posters required by the labor department are prominently displayed.  Under the bill, employers who opt to post such an address must also forward it to the Workers’ Compensation Commission, which must post the address on its website. Employers are responsible for verifying that the information posted at the workplace location is consistent with the information posted on the commission’s website.By law, within 28 days after receiving an employee’s written notice of claim, an employer must either (1) file a notice contesting liability with the compensation commissioner or (2) begin paying workers’ compensation benefits to the injured employee (and retain the ability to contest the claim for up to a year). Employers who do neither of these within 28 days of receiving the notice are conclusively presumed to have accepted the claim’s compensability. Under the bill, if an employer posts an address where employees must send a notice of claim, the countdown to the 28-day deadline begins on the date that the employer receives the notice at the posted address.The bill now moves to the Governor for his review and approval.
  • The General Assembly is also continuing to review a possible Paid Family and Medical Leave insurance scheme.  This bill (S.B. 1) is definitely one to watch over the next day and over any special session as well.
  • Senate Bill 929 would expand whistleblower protections under 31-51m. It has passed the Senate and is awaiting a vote in the House.  Existing law prohibits employers from discharging, disciplining, or otherwise penalizing an employee for certain whistleblowing activities, including reporting suspected illegal conduct to a public body.  This bill additionally prohibits employers from taking such actions against an employee for objecting or refusing to participate in an activity that the employee reasonably believes is illegal. Specifically, it applies to such beliefs about violations or suspected violations of state or federal laws or regulations, municipal ordinances or regulations, or court orders. The bill also (1) extends the time an employee has to file such a lawsuit and (2) adds to the possible remedies available to employees, including punitive damages in certain circumstances.

That seems to be it so far. A lot can change though today and employers should continue to be mindful of the shifting landscape. Even bills that appear “mostly dead” sometimes come back to life at the end — and particularly in special session as well. So stay tuned.

capitoldasThe Connecticut General Assembly is back in session and with significant budget deficits looming, it’s not going to be an easy year for legislators.

From a labor and employment law session, once again it will be interesting to see what will be seriously considered.

A Bloomberg Law article late last week suggested that Democrats in several states, including Connecticut, are planning bills to try to replicate the federal overtime-pay overhaul that has been held up in federal court.   Without citing names, the article states:

Democrats in Rhode Island, Connecticut, Maryland, Wisconsin and Michigan said they plan to introduce bills modeled on Obama’s reform, which would have made millions more white-collar workers eligible for overtime.

A cursory look at the Bill Record book for the Labor & Public Employees committee fails to show such a bill yet, but it’s still early. At this point in the legislative cycle, only early “proposed” bills are officially on record. That, of course, doesn’t mean that other draft bills aren’t being floated out there.

So among the proposed bills, what else is out there being considered for 2017?

  • As expected, a paid family & medical leave bill is definitely on the table now, after being looked at for the last 18 months or so.  Indeed, it is titled “Proposed Senate Bill No. 1″ and is co-sponsored by several senators.  Having a bill marked as “One” indicates that this will be a priority in the current session.  The details, however, are still being worked on.
  • Another bill that already has garnered widespread support including from the House leadership is Proposed House Bill 5591.   While again, the details are still forthcoming, the bill would “require employers, including the state and political subdivisions, to provide equal pay to employees in the same workplace who perform comparable duties.”  What’s still unknown is why this is being sought, just 2 years after another pay equity bill titled “An Act on Pay Equity and Fairness” was passed. Time will tell, but expect to see more on this bill soon.
  • Another bill concerning “Various Pay Equity and Fairness Matters” (not to be confused with prior bills) has also been proposed by new Representative Derek Slap from West Hartford.  That bill would mirror some other states that have recently passed bills further limiting what prospective employers can ask applicants. Specifically, this Proposed House Bill 5210 would:

(1) Prohibit employers from asking a prospective employee’s wage and salary history before an employment offer with compensation has been negotiated, provided prospective employees may volunteer information on their wage and salary history,

(2) Prohibit employers from using an employee’s previous wage or salary history as a defense in an equal pay lawsuit,

(3) Permit an employer to have an affirmative defense in an equal pay lawsuit if it can demonstrate that, within three years prior to commencement of the lawsuit, the employer completed a good faith self-evaluation of its pay practices and can demonstrate that reasonable progress has been made towards eliminating gender-based wage differentials, and

(4) Protect seniority pay differentials from adverse adjustments for time spent on leave due to pregnancy-related conditions or protected parental, family and medical leave.

Other proposed bills can be found here including an increase in the minimum wage to $15 per hour.

One important note: The state Senate has now split 18-18 among Democrats and Republicans.  Thus, I think it’s fair to expect that there will be less laws that impact employers than in year’s past.  The CBIA has an update from a business perspective here.

chro99Last week, the Legislative Program Review and Investigations Committee released a 129-page report on the Commission on Human Rights and Opportunities, with a focus on Discrimination Complaint Processing.  You can download it here.

The report is worth a deep dive at another time, and a final report from the Committee is due in January 2017.

Fortunately, for those of us that prefer the “Executive Summary” there is also a key staff findings sheet that recaps the main findings.

Many of these are not a real surprise given my observations and others on the CHRO over this past year.

But still, there are a number of items worth consideration:

  • Additional data collection and reporting are needed — noting that information to fully track performance is lacking in some instances and the CHRO has not fulfilled its reporting requirements in recent years.
  • Budget and staffing resources have generally decreased — noting that investigative staff within regions was at a six-year low as of July 1, 2016.
  • Written policies and procedures are outdated — noting that the manual for processing complaints was developed in the 1990s.
  • The workload of all units processing cases is not fully accounted for in overall performance — noting that the commission’s Legal Division is not required to report in its entire performance.

As a result, staff has listed several recommendations:

  • Address data limitations
  • Begin reporting on the performance of all units for greater accountability
  • Focus on meeting statutory case processing timeframes
  • Develop uniform case processing procedures
  • Make technical changes to the housing statutes to separate out the housing discrimination complaint process from the non-housing process

There are additional recommendations as well.  Overall, the report is another useful tool to help update the CHRO, as I discussed in a post earlier this month.  I’ll try to take a deeper look into the report in an upcoming report, but the report itself is worth a read for those who deal with the agency on a frequent basis.

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.

GA2So last week I provided a recap of a few of the labor & employment law bills still being kicked around the legislature.  From talking with a few folks in on the process, here are some other bills to keep an eye on (whether in this original form or as an amendment to an existing bill).

  • House Bill 5367 would reform the unemployment compensation process a bit. It makes several changes to unemployment benefits and eligibility requirements for receiving them by 1) increasing from $15 to $50 the minimum amount of weekly unemployment benefits most claimants can receive; 2) increasing from $600 to $2,000 the minimum amount most claimants must earn during their base period (the first four of the last five calendar quarters) to be eligible for benefits; and, 3) requires most claimants’ benefits to be based on their average quarterly wages during all four quarters of their base period, instead of during their two highest earning quarters.  The reforms would make Connecticut more consistent with neighboring states. The CBIA has supported this bill.
  • House Bill 5237 — the so-called “ban the box” bill — is one I’ve touched on before.  It was recently referred to the Appropriations Committee. It’s being closely watched by business interests and should be a top item for employers to track.
  • House Bill 5591 would create a Connecticut Retirement Security Authority (“authority”) to establish a program for individual retirement accounts (IRAs) for eligible private-sector employees, who are automatically enrolled in the plan unless they opt out.  The bill would apply to all private sector employers that employ at least five people each of whom was paid at least $5,000 in wages in the preceding calendar year.  There is a significant administrative cost however to this bill and in light of the state’s fiscal crisis, it seems unlikely that it will be passed this year.
  • House Bill 5402 is still kicking around too.  It would greatly expand the state’s whistleblower protection laws by expanding protection to employees who (1) make reports to their supervisors or managers (either directly or through a third party) or (2) participate in the employer’s or a public body’s investigation or similar proceeding on request of a supervisor or manager or the public body. Not surprisingly, business interest groups have been opposing this bill because it greatly expands the scope of the protection and would change time deadlines as well.

Many other bills died in committee earlier this month so at least the scope of the potential changes out there is known. How much gets passed this year will depend, at least in part, on how the state can resolve its projected deficits.  Connecticut has been seen, of late, as being anti-business (see, e.g., GE) and the governor has made it clear that he’s not in favor of additional tax hikes on businesses.

So stay tuned!

generalassemblyThe 2016 Connecticut General Assembly is about one month from ending its term so it’s a good opportunity to see what bills are still floating out there.

I’ll do a bigger recap when we get close to the end of the session but if you have any interest in the bills (and, if you’re an employer, you should), you should contact your local representative as soon as possible.

  • House Bill 5261 is an interesting one and comes in response to a crackdown by the CTDOL on the employment relationship local sports leagues have with coaches and referees — namely, by saying that such leagues are responsible for unemployment compensation.  This bill exempts coaches and referees who work for private or public athletic programs, other than public school districts, from employer-employee rules for purposes of unemployment taxes and compensation.
    Under the bill, according to the Office of Legislative Research, “as of October 1, 2016 no employer-employee relationship is deemed to exist between certain operators of organized athletic activities and certain individuals employed as coaches or referees of those organized athletic activities, except such operators and individuals can mutually agree, in writing, to enter into an employer-employee relationship.”
    The bill has made it out of the Labor Committee and is still awaiting a vote out of the Finance Committee.  For more on the bill, see this recap from the CBIA.
  • Senate Bill 40 would limit the circumstances in which most employers can check the credit of job applicants and employees. But it also broadens the circumstances in which employers can require checks of people applying for or working in positions that would give them access to museum and library collections or prescription drugs and other pharmaceuticals. The bill was voted out of the General Law Committee on April 5th and should be watched carefully.
  • Senate Bill 211 is one of those bills we’ve seen before; this would allow employers to pay employees by payroll cards, instead of by check, which could help reduce the use of predatory “paycheck loans” out there.    It too has made it out of committee and is awaiting a vote on the floor.
  • Senate Bill 221 would implement a paid family and medical leave program in the state.  It’s a complex bill but considering the publicity of such efforts in other states, this is worth a close follow.   But beyond that, this bill goes much further than has been previously reported as it would expand the existing FMLA law to cover all employers of two or more employees (down from 75) and would prohibit employers from requiring employees to use any paid time off as part of their FMLA leave.  Not surprisingly, business groups like the CBIA oppose the measure while other interest groups have showed strong support.

What else is going on? I’ll have more in an upcoming post.

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

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

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

According to the summary of the legislation:

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

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

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

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

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

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

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

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

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

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

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

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

generalassemblyThe dust has finally settled from the close of the Connecticut General Assembly on Wednesday.  And it’s time to take a look at the last few days to see what employment law bills passed.

(I’ll tackle the changes that have been made to the CHRO in a post later today.)

As I’ve noted in prior posts (here, here and here), several employment law-related bills had already passed including: a bill regarding online privacy rights of employees (signed by Governor); a bill allowing double damages in wage/hour cases awaiting Governor’s signature); a bill protecting interns from discrimination and harassment (same); and a bill introducing labor history into school curriculum (same).

In the last days, however, a closely-watched bill that prohibits employers from enacting rules that prevent employees from sharing information about their wages, passed. It also awaits the Governor’s signature.

The bill has been amended since it was first introduced but still places additional restrictions on employers. As a result, employers should consider updating their policies and revisiting their approach to salary discussions.

As recapped by the General Assembly, the bill accomplishes the following:

This bill prohibits employers, including the state and municipalities, from taking certain steps to limit their employees’ ability to share information about their wages. Under the bill, such sharing consists of employees under the same employer (1) disclosing or discussing the amount of their own wages or other employees’ voluntarily disclosed wages or (2) asking about other employees’ wages. Specifically, the bill bans employers from (1) prohibiting their employees from such sharing; (2) requiring employees to sign a waiver or document that denies their right to such sharing; and (3) discharging, disciplining, discriminating or retaliating against, or otherwise penalizing employees for such sharing.

The bill allows employees to bring a lawsuit to redress a violation of its provisions in any court of competent jurisdiction. The suit must be brought within two years after an alleged violation. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.

The amendment to the bill that was passed limits an employee’s sharing of another employee’s wage information to information that (1) is about another of the employer’s employees and (2) was voluntarily disclosed by the other employee.

I’ve noted before that I think many of the provisions are duplicative of federal law and a concern that there isn’t a big public policy need to create a new cause of action here.

But it’s a bit too late for that. The Governor proposed this bill so he is very likely to sign it.  The provisions go into effect on July 1, 2015.  (Contrast that with other bills that go into effect on October 1, 2015.)

Another bill that passed in the closing days was House Bill 6707 which allows employers to fire employees for failing some off-duty drug tests without impacting their unemployment rating.  It awaits the Governor’s signature.  As recapped by the General Assembly:

This bill expands the circumstances under which a private-sector employer can discharge or suspend an employee without affecting the employer’s unemployment taxes. It creates a “non-charge” against an employer’s experience rate for employees discharged or suspended because they failed a drug or alcohol test while off duty and subsequently lost a driver’s license needed to perform the work for which they had been hired. (The law disqualifies a person from operating a commercial motor vehicle for one year if he or she is convicted of driving under the influence (DUI.)) In effect, this allows the discharged or suspended employee to collect unemployment benefits without increasing the employer’s unemployment taxes.

Several other bills failed in the final days including a low wage penalty, paid family & medical leave, a minimum work week for janitors, limits on criminal background checks and on credit reports,

Overall, it was a busy year for the legislature. For employers, the next few months should keep you busy with a review of your existing policies and procedures to ensure compliance with these new laws.