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.

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.

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.

The snow may have stalled work in the state for a few days, but the Connecticut General Assembly is now in full swing with bills now being discussed and debated.

So far, the list of bills filed before the Labor & Public Employee Committee is small but that is expected to grow soon with bills on “Employee Privacy” for example, on the horizon.

Many of these bills will have a public hearing on Tuesday, February 18th, so if you have any objection, now is a good time to make them known to your local legislator.

And this is just in the first week.  The legislative session — in an election year, no less — is starting to move quickly and with purpose.  If employers aren’t paying attention yet, now would be a good time to do so.

One of the bills that passed the Connecticut General Assembly last year was a bill that would have limited the scope and use of noncompete agreements.

But as I noted in a post last summer, Governor Malloy vetoed that piece of legislation.

In his veto message, however, he signaled a willingness to agree to some future compromise on the bill noting that “additional protections for employees may be warranted to guarantee a reasonable period of time to review a written noncompete agreement before entering into an agreement in the first instance.”

He went on state that “it would begetter for both employers and employees to receive greater clarity from the General Assembly on this issue next session.”

Late last month, the Connecticut Law Tribune ran an editorial suggesting that a legislative solution may not the best path forward, even in light of what it viewed as employer’s over reliance on them.

Noncompetition agreements have a valid place in today’s economy, but their growing use to stifle healthy marketplace competition, their theoretical underpinnings as a strained corollary to the employment at-will rule and the disproportionate bargaining strength often used by employers to obtain them have infected these contracts with a taint of inherent unfairness and commercial impropriety. There is a need for reform—reform carried out through the process of common law evolution.

Why did the editorial board conclude that legislative remedies are “not the best answer”?Because they are often “drastic and short-sighted”.  The board instead proposed that change come about in “orderly judicial reconsideration and doctrinal evolution.”

The editorial goes on to discuss the issues with noncompete agreements in greater detail and it’s worth a read.  It notes that noncompete agreements “have a valid role to play in Connecticut’s economic mosaic” and that “legislative reform would doctrinally freeze them in time.”

It is advice well worth considering as the General Assembly takes up this task.  It may be best to have no bill, then a lousy one.

(For a look at how one state, Georgia, has tackled this issue with legislation, check out this presentation.)

For employers, now is the time to speak up to your local legislators that a bill on the subject may not be the best path to what they may want to achieve.

The short session of the Connecticut General Assembly is set to begin on February 5, 2014.

But the jockeying for items to get on the agenda is well under way. The Connecticut Commission on Human Rights and Opportunities is circulating a proposed bill that would followup on a failed bill from last year’s term.

I previously discussed this proposal in a post last May.

At the time, the proposed bill was thought to be close to passage, but time ran out in the session before it could be picked up.  Earlier versions the bill proved quite troublesome; this latest version still has issues that haven’t been addressed and it’s important for employers to speak up now before the changes are put into place.

So what are some of the changes this bill would bring?

Changes to “Mental Disability”

The bill expands the definition of a “mental disability” to not only “mental disorders, as defined in the most recent edition of the American Psychiatric Association’s ‘Diagnostic and Statistical Manual of Mental Disorders’”, but also to including having “a record of or regarding a person as having one or more such disorders”.

Put aside, for the moment whether including everything in the new DSM5 is worthwhile. The more troubling issue is that the proposed law would continue to cover “regarded as” claims for mental disabilities. The references to a “past history” of mental disability in existing law being removed by this bill are less significant because a “record” of disability would now be covered.

Why is that problematic? Becaues that the definition is inconsistent with how a “physical” disability is treated; where is the reference to being “regarded” as having a physical disability?

Rather than continue to treat mental and physical disabilities as distinct from each other, the legislature should take its cues from the ADA and match its definitions accordingly.  Otherwise, we’ll continue to have three different standards to analyze disability claims — one for ADA claims, and two for state disability-related claims.

Continue Reading Legislative Preview: Will the CHRO Bill Get Passed This Year?

The dust is still settling from the mad dash that is the end of the Connecticut General Assembly session. 

I’ll have more in the upcoming days as events warrant, but here’s a quick look at a few items that I’ve been tracking in recent weeks. 

  • A bill (HB 6658) restricting the use of non-compete agreements passed last night. But it is a watered-down version of the previous bill.    As summarized by the OLR: “This bill voids certain noncompete agreements between an employer and an employee made, renewed, or extended on or after October 1, 2013, unless before entering into the agreement, the employer provides the employee with (1) a written copy of the agreement and (2) at least seven days, and more if reasonable, to consider the merits of entering into the agreement.” 

    The important caveat is that this applies only when “(1) an employer is acquired by or merges with another employer and (2) as a result of the acquisition or merger, an employee’s continued employment is conditioned on the employee entering into a noncompete agreement.”  

    The bill allows an employee to waive his or her right to have a noncompete agreement rendered void pursuant to the bill by signing a separate document that describes the right he or she is waiving before entering into the agreement.If signed by the governor, it would become effective October 1, 2013.  For employers with mergers or acquisitions, this should be added to any due diligence checklist and any list of closing documents to be considered. 

  •  Two bills — to amend the state’s CHRO-related statutes, and to amend the paid sick leave bill to “fix” certain items did not receive a final vote (here and here) before the session ended. Passage had been expected in recent days, but I’ve heard unconfirmed reports of illnesses and last-minute opposition that did in the bills. Regardless of the reasons, those bills did not pass in their native form. 
  • A bill that would restrict employers from asking for the social media passwords of their employees also did not receive a final vote
  • A bill (HB 6553) to study  the “feasibility of establishing an insurance program to provide short-term benefits to workers who are unable to work due to (1) pregnancy or the birth of a child, (2) a non-work-related illness or injury, or (3) the need to care for a seriously ill child, spouse or parent” did pass the General Assembly. I’ve recapped the bill previously
  • A bill that would have significantly expanded the free speech rights of private-sector employees failed to receive final passage before the session ended

Note: This is by no means a complete list of bills under consideration or that have passed; it’s just a preliminary run through of some of the bills I had been following.   Be sure to check with your local counsel or the CBIA if there is a particular bill that you have been following or concerned about.

Since the publication of my post last week on House Bill 6667 on free speech in the workplace, there’s been a lot of followup press coverage.  Two that I would highlight include this Patch.com article, and this blog post by Mara Lee at the Hartford Courant

The CBIA also highlighted the post on its website as well. 

Today, a new substitute of the bill was released that erased any pretense about the stealth nature of the bill.  It deleted all of the first 16 sections of the bill, and merely left the last section on employee free speech.   The report from the Office of Legislative Research is being compiled now and should be released any day now. 

Last week I discussed a lot of issues with the bill, but today’s post focuses on three in particular.

1.  First, the new substitute would do something remarkable.  It would amend Conn. Gen. Stat. Sec. 31-51q to delete public employers from its scope.  In other words, if passed, it would apply the free speech protections merely to employees of private-sector companies

Of course, for public employees, that distinction won’t matter as much because public employees would still have First Amendment protection.

But its a strange thing to happen nonetheless because it was only through a judicial decision, Cotto v. United Technologies Corp. in 1999, that 31-51q was applied to private sector employees. 

By eliminating this distinction, the law (if passed) would put a concern outlined by Justice Zarella in his recent concurrence into the spotlight again — namely that it would place the “employee’s statutorily created free speech right in potential conflict with the employer’s constitutional free speech right”. 

In other words, the employer’s right to free speech is protected by the Constitution while the employee’s right is statutorily created.  The proposed law says that the employer will not have a “defense” to a claim to say that the employee’s speech was job related.

But if the employer’s right to free speech is protected by the Constitution, there are then serious questions about whether this bill — even if it were a good idea — would withstand Constitutional muster.  After all, a statute cannot overturn the Constitution. 

As the Connecticut Supreme Court concluded, limiting the protection of speech in the workplace to non-work related speech, “keeps courts from the constitutionally untenable task of, in essence, having to choose sides in a work-related viewpoint dispute between two private actors.”

The proposed bill would create a conflict of exactly the type that the unanimous court worked so hard to prevent and create constitutional issues, the likes of which we haven’t seen in a long time. 

2. This goes, of course, to the second issue with the bill.  A careful reading of the Court’s decision in Schumann — for which this bill is in response to — shows that the court did not create a “defense” for employers to use in free speech cases.  Rather, it held that job related speech was not protected speech in the first place. 

What would the language in the bill then do? That’s a good question that — putting the Constititonal issues aside — would also be the subject of years of litigation.  

Perhaps that’s the point.

3. Another issue with the bill is the strange result it is trying to achieve.   In my brief research, I could find no court decision or state statute that would give private-sector employees more free speech protection than their public-sector counterparts. 

Testimony from groups like the Connecticut Employment Lawyers Association and the Connecticut Trial Lawyers Association, suggested that the bill merely ensures that whistleblowers at private companies would have enough protection.

But the Schumann case was quite clear that the whistleblower protections under Conn. Gen. Stat. 31-51m are unaffected by the decision. 

As the court stated in footnote 21, “[O]ur opinion in this case does not affect the whistle-blower protections afforded statutorily by General Statutes § 31-51m, which are not at issue in this case.”

Indeed, the language would directly contradict decades of well-established precedent in courts that have held that their role is “to prevent unlawful [employment] practices, not to act as a `super personnel department’ that second guesses employers’ business judgments.”

Creating free speech protections for job-related speech by private employees would inevitably force the courts to second-guess employers’ business judgments — something that just doesn’t happen in employment law.

Once again, the bill is a solution in search of a problem and should be rejected by the legislature.

The Connecticut General Assembly’s Labor & Public Employee Committee today is considering drafting a proposed bill “to prevent current or potential employers from requesting or requiring that employees or potential employees provide passwords to their personal accounts as a condition of their employment.”

I won’t mince words. Proposed Senate Bill 159 is a bad idea. 

It’s a solution in search of a non-exisitent problem and ultimately it would have serious ramifications for employers in Connecticut.

Ohio is currently considering the same type of bill and Jon Hyman, from the Ohio Employer’s Law Blog, neatly summarized the reasons why this remains a bad idea.  Here are two of them which are directly applicable to Connecticut:

  • It contains no exceptions for internal investigations. Suppose, for example, Jane Doe reports that a co-worker is sending her sexually explicit messages via Facebook. You have an absolute duty under both Title VII and [state] employment discrimination statute to investigate and take whatever remedial action is necessary to ensure that any misconduct ends. Yet, this bill would prohibit you from even asking the accused to provide access to his Facebook account as part of your investigation.
  • It contains no exceptions for regulated industries. For example, registered representatives have special rules that dictate what they can or cannot say to clients and prospective clients via social media. FINRA requires employers to track and maintain records of the communications between registered reps and the public. Yet, this bill would prohibit a securities firm from requiring its registered reps to turn over these communications. It would also prohibit the firm from even asking for access to a rep’s social media account to investigate a customer complaint or regulatory issue.

I’m not advocating employers ask their employees for their passwords on a routine basis.  It’s poor human resources practice.  But what Connecticut doesn’t need is another knee-jerk piece of legislation that will do much more harm than good.

The bill already received a preliminary thumbs up in the committee a few weeks ago.  The CBIA has opposed it and suggested very narrow language to address whatever concerns are there.

Let your local legislator know that this bill should go no further in its current format.

The Connecticut General Assembly is back at work so it’s time to take a quick peek to see what’s percolating.

2013 Legislative Session Begins

The Connecticut Business and Industry Association highlighted the “captive audience” bill as bill that is resurfacing, even though the Attorney General has previously raised doubts about the constitutionality of it.  The bill would restrict communications by the employer in general workplace meetings.  The CBIA highlighted the bill’s flaws:

The proposal usually shuts down much of what an employer can talk about with their employees in regular workplace meetings. For example, the last captive audience proposal restricted “political” discussions—with “politics” so broadly defined that almost any topic would have been considered off-limits. This would include issues critical to the effective management and operation of a business.

And under the threat of severe legal and financial penalties, an employer’s ability to communicate—particularly in opposition to the potential unionization of the workforce–would be effectively silenced.

Before this flawed concept goes any further, lawmakers should heed the attorney general’s warnings.

The Labor & Public Employee Committee at the legislature maintains a bill record bill that lists potential bills up for consideration.  As the session progresses, this list gets more refined.

Among the early “Proposed Senate Bills” under consideration:

  • Proposed Senate Bill 56, which would increase minimum wage by 75 cents in January 2014 and another 75 cents in January 2015;
  • Bills that would either eliminate or expand paid sick leave (Proposed Senate Bills 179 and 198);
  • Proposed Senate Bill 159, which would “prevent current or potential employers from requesting or requiring that employees or potential employees provide passwords to their personal accounts as a condition of their employment.”

On the House side, a few “Proposed House Bills” are starting to surface too including:

The next meeting of the Committee is set for January 29th, where these concepts — and others, including teaching about the history of the labor movement — will be discussed.  No public hearings have yet been posted publicly.