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.

trumpphotoEach election cycle, I hope that employment law issues will move front and center to the Presidential campaign.

And each cycle, I’m slightly disappointed that such issues only get short shrift.  Sigh.

But as I’ve done before, it would be nice to fantasize about employment law questions that could be posed to the candidates at the upcoming Presidential debates.

So, just in case Lester Holt or the other moderators are brainstorming ideas on the internet, here are three questions I’d like to see asked of Donald J. Trump.

(I’ll have a followup post for Hillary Clinton.)

  1. The U.S. Department of Labor has recent proposed raising the salary threshold requirements for employees to receive overtime. As a result, millions more workers may start to get overtime in December of this year.  But this week, various states and business groups have filed suit to block its implementation. You have previously said that you support a rollback of these new rules.  Why? What specific changes would you propose to the overtime rules if you were going to roll back the current proposal.  Be specific.
  2. You recently said you would advise your daughter Ivanka to “find another career or find another company” if she faced the same harassment as alleged in the sexual harassment lawsuit against former Fox chief Roger Ailes.  Can you explain why you think your daughter should leave a company if faced with harassment? Doesn’t the company bear some responsibility to its employees to stop the harassment and ensure a safe working environment for its employees?
    Followup question: Given the allegations against Roger Ailes and Fox’s payment of $20M to resolve allegations by one of its former employees of sexual harassment, how do you justify consulting with him and what message (if any) do you think it sends to your female workers on your staff?
  3. States like Connecticut have passed a version of Paid Sick Leave. Do you support such a law? As a followup, you recently said you would support a six-week paid maternity leave program.  Why are fathers excluded from your proposal? Do you think fathers should have any paid time off after the birth or adoption of a child?

 

 

USDOL Headquarters in DC
USDOL Headquarters in DC

Over the years in the employment law “blawgosphere” (isn’t there a better term by now?), I’ve had the pleasure of meeting with and conferring with several other attorneys who blog. One of those is Jeff Nowak, whose FMLA Insights blog has become a go-to place on all things FMLA.

So, it was no surprise yesterday that Jeff was one of the first to talk about a new FMLA notice that will be issued by the U.S. Department of Labor that can be used interchangeably with the existing notice. He also added this scoop:

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice. She confirmed that employers would be allowed to post either the current poster or the new version. In other words, employers will not be required to change the current poster. For those that want to use the new poster, I will post a link as soon as DOL releases it.

Jeff also linked to a new employer’s guide to the FMLA, a companion of sorts to a 2012 release by the DOL for employees.   This 71-page guide will be a good starting point for employers on the basics of the law but it leaves more complex issues about the law unanswered.  For more on it, see Jeff’s post and a followup post by Jon Hyman, of the Ohio Employer’s Law Blog this morning as well.

Connecticut employers though should exercise extreme caution about using this guide as a bible.  As most employers in Connecticut are aware, there are significant differences between Connecticut’s FMLA law and the federal counterpart.  And because employers with 75 or more employees in Connecticut are covered by both, there is a significant risk that employers using only the federal FMLA guide will get the law wrong.

Connecticut has historically posted a comparison of the two laws that is helpful, again as a starting point.  But that comparison is now 17 years old and doesn’t address many of the current issues or things such as a military exigency leave that have occurred through changes to the FMLA law over the years.

So what’s an employer in Connecticut to do? Ignore it? Read it?

Probably a little of both.

There are certainly items helpful in both guides but, in my view, they aren’t a substitute for talking with counsel about more complicated issues such as intermittent leave and FMLA’s interaction with the ADA and Connecticut’s Paid Sick Leave law.

If nothing else, be aware that when FMLA leaves do occur, there may be more to the solution than what is posted in the USDOL’s employer guide.

 

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!

Here we go.

Last December, I talked about how a legislative proposal to bring paid family and medical leave to Connecticut was likely.

Turns out, not only was it likely, but that there would be a big public relations push on it as well.

The bill is still in its formative stages at the legislature, but the essence of the proposal is an employee-funded system with employers withholding a percentage of the employee’s pay.  The Hartford Courant reported on this push this week.

In yesterday’s CT News Junkie, Carolyn Treiss, the Executive Director of the Permanent Commission on the Status of Women, posted a notable piece on why the time is right for paid family & medical leave.

The Permanent Commission on the Status of Women (PCSW) and the Connecticut Women’s Education and Legal Fund (CWEALF), two organizations that worked on the original FMLA legislation, are teaming up in leading the charge on this expanded version of family and medical leave, because women are still the primary caregivers in times of need. To be sure, paid leave would benefit everyone, regardless of gender. But the reality is that too many women of childbearing age see their careers derailed just as they are taking off. Women in their mid-20s to early 40s are the demographic employers seek most often, and yet the biological clock has its own imperatives. And what of women at the prime of their careers who must increasingly act on behalf of aging parents, or who suddenly find themselves dealing with an illness of their own (or that of a spouse)? It’s hard to “lean in” when there’s no employer-sponsored provision to lean against.

The CBIA has previously issued a report noting that this type of program would be similar to an unemployment compensation scheme — and very expensive to implement.

I’ll be talking about this and more at a presentation tonight at the Connecticut Bar Association’s Labor & Employment Committee meeting. My talk — really more of a discussion — will be on three “hot” items in employment law for 2015.  Hope to see you there.

For the rest of you, keep a close eye on this important legislative development this year.

 

The title of the post is a bit misleading because the answer to the question is, at this point, unanswerable. 

In what ways do we measure success under Connecticut’s Paid Sick Leave law? The number of employees who have used it? The people who didn’t get sick as a result? The overall flu rate?

Of course, that hasn’t stopped some from trying. Last week, a survey released from the Employment Policies Institute claimed that businesses have taken “labor-saving steps to adapt to the law’s costs — with consequences for employers and employees both.”

Specifically, the survey claimed that some employers “scaled back employee hours, cut wages and canceled plans to expand as a result of the law.”

But even that survey should be taken with a grain of salt since, by its own terms, it may not be “representative” of all employers. 

Unfortunately, it may be some time before we understand the full impact of Paid Sick Leave.  Even now, 20 years after the passage of the FMLA, its benefits are still being debated by employers and the government

What’s an employer to do? In some ways, stop worrying about whether the law works and instead consider lobbying the legislature to tweak the law to make it easier to comply and reduce the administrative burdens associated with the law.

One such change that has been proposed is to allow employers to calculate paid sick leave on something other than a calendar year, much like the FMLA. 

That’s a good start, but there are other solutions as well. Groups like the Connecticut Restaurant Association are focused on this too.

In the meantime, if you need a refresher on Paid Sick Leave, you can check out some prior posts here and here.

Each year, the Connecticut General Assembly passes a number of laws. Rather than have them enacted immediately upon the governor’s signature, many of the bills become effective on October 1st of that respective year.

I followed several workplace bills earlier this year but most never made it very far. One bill did and it gives new workplace protections to family violence victims.  I previously did a full recap here, but here are the highlights:

  • The new law prohibits an employer from terminating, penalizing, threatening, or otherwise coercing an employee with respect to his or her employment because the employee (1) is a family violence victim or (2) attends or participates in a civil court proceeding related to a case in which he or she is a family violence victim. The bill doubles, from 90 to 180 days, the time an employee has to bring a civil action against an employer who takes any of these actions.
  • The new law requires employers to allow family violence victims to take paid or unpaid leave (including compensatory time, vacation time, personal days, or other time off) during any calendar year in which the leave is reasonably necessary for a variety of listed reasons. Employers may limit unpaid leave taken under the bill’s provisions to 12 days per calendar year but note that it has no effect on any other leave provided under state or federal law.  

    Employer can ask for notices and a written statement certifying the leave and ask that the leave be scheduled ahead of time as well.  But if the employer receives such notices, it must keep written statements confidential.  

By now, Connecticut employers should have reviewed their existing policies and procedures to understand the impact of this new law. Moreover, employers may want to consider amending their leave policies to cover this new type of leave.

Of course, it remains to be seen whether employees will avail themselves of this leave or whether this law will have only very limited impacts on employers.  But regardless, employers should be aware of this new leave should any requests by employees be made.

While the legislative session was a relatively quiet one, a few provisions found in a comprehensive domestic violence bill do have some direct implications for employers in Connecticut and create a new leave provision that will require some attention from human resources personnel.  Many employers will be unaffected by the provisions, but those who have employees caught up in family violence will be affected.    

Unlike the Connecticut FMLA and federal FMLA, this bill is much broader because these provisions will apply to all employers with three or more employees.

The full text of H.B. 5497 is available here.  The key provisions are Sections 14 and 15.  Although the bill has yet to be signed by the Governor, such approval is expected.  When signed the provisions become effective October 1, 2010.

First, the bill amends Conn. Gen. Stat. 54-85b which already provided the crime victims or witnesses could take time off to comply with a subpoena or police investigation or otherwise participate in a court proceeding.  

The new law prohibits an employer from terminating, penalizing, threatening, or otherwise coercing an employee with respect to his or her employment because the employee (1) is a family violence victim or (2) attends or participates in a civil court proceeding related to a case in which he or she is a family violence victim. The bill doubles, from 90 to 180 days, the time an employee has to bring a civil action against an employer who takes any of these actions.

Second, the bill requires employers to allow family violence victims to take paid or unpaid leave (including compensatory time, vacation time, personal days, or other time off) during any calendar year in which the leave is reasonably necessary for the following reasons:

  1. seek medical care or counseling for physical or psychological injury or disability,
  2. obtain services from a victim services organization,
  3. relocate due to the family violence, or
  4. participate in any civil or criminal proceeding related to or resulting from such family violence.

The bill allows an employer to limit unpaid leave taken under the bill’s provisions to 12 days per calendar year. However, it specifies that this leave does not affect any other leave provided under state or federal law.

It allows employers to require no more than seven days notice when the need to use leave is foreseeable and notice as soon as practicable when it is not.

The bill requires an employee who takes this leave, on request, to provide the employer with a signed written statement certifying that the leave is for a purpose authorized under the bill.

The bill allows an employer to request from the employee a (1) police or court record related to the family violence or (2) signed written statement that the employee is a victim of family violence from the employee or an agent of a victim services organization, an attorney, an employee of the Judicial Branch’s Office of Victim Services or the Office of the Victim Advocate, licensed medical professional, or other licensed professional from whom the employee has sought assistance with respect to the family violence. The bill requires the employer to keep any written statement or police or court record provided confidential. The employer cannot further disclose the information except as required by law or as necessary to protect the employee’s safety in the workplace, but in these situations the employee must be given notice before the disclosure.

Additionally, the bill specifies that it cannot be construed to require an employer to provide paid leave if (1) the employee is not entitled to paid leave pursuant to the terms and conditions of the employee’s employment or (2) the paid leave exceeds the maximum amount of leave due the employee during any calendar year. However, the bill requires the employer to provide unpaid leave if paid leave is exhausted or not provided.

The bill imposes the same penalty for violations as exists for violations of the laws protecting crime victims. That is, the employee has 180 days from the occurrence to bring a civil action for damages and for an order requiring the employee’s reinstatement or otherwise rescinding such action. If the employee prevails, the employee must be allowed a reasonable attorney’s fee that is fixed by the court.

A comprehensive summary (from which some of these provisions are lifted) of the entire bill is available here.  

What should employers do now? You will certainly need to amend your policies and procedures at some point later this year to address this new law.  How that provision will be crafted remains to be seen, but certain some human resource organizations and law firms may develop some model drafts that will be circulated. Stay current on these developments over the summer.

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….

 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.