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.

Last night, after many hours of debate, the Connecticut House passed the so-called "captive audience" bill that would prohibit employers from requiring their workers to attend meetings concerning views on politics and religion.

But the truth is the bill (H.B. 5460) is really about one thing: prohibiting employers from talking about unions when a vote on union-representation is about to take place.  It is something that federal law has allowed for 60 years.  The OLR Analysis hints at this but does little to clarify the potential impact of the bill.

If the bill is passed, it may be that the same federal law (National Labor Relations Act) is the bill’s downfall.

Why do I make such a prediction? Well, Wisconsin passed a similar measure last year that was struck down on constitutional grounds.  The Labor Relations Today blog has the details here. 

According to the Labor Relations Counsel blog, the new law was challenged and ultimately thrown out on the grounds that the Supremacy Clause of the Constitution forced the application of the NLRA to the exclusion of any state law to the contrary. 

The suit was filed on September 3, 2010 by the Wisonsin Manufacturers & Commerce and others against the State of Wisconsin saying that the law was preempted by the NLRA and violated the free speech rights employers enjoy under the First and Fourteenth Amendments.

The State quickly backpedaled from the law and entered into a stipulation in early November.  You can download that stipulation here.  And by mid-November, the Chief U.S. District Judge Charles N. Clevert, Jr. entered a Judgment and Order in favor of WMC on the NLRA preemption claim. (You can view the court’s order here.

Will the Connecticut bill (if passed) survive scrutiny? That remains to be seen.  The OLR Bill Analysis fails to mention the possible infirmities of the bill or analyze the cases cited in the Wisconsin stipulation.  

The CBIA has declared their opposition to the measure; the bill moves on to the Senate for a possible vote.  No word yet on whether a similar constitutional challenge would be raised here. 

For employers, this is an important bill to follow. If passed, this could have significant ramifications in both the unionized and non-unionized workplace.

Back in July, the proposed Paycheck Fairness Act, whose lead sponsor is Connecticut’s own Rep. Rosa DeLauro, was still just being tossed around. At the time, I noted that there was criticism of the statistics being used to justify the law.

Now, numerous outlets are suggesting that the bill is close to passage (here, here and here.) Jon Hyman, of the Ohio Employer’s Law Blog, has previously provided this excellent recap of the five significant changes that employers should be aware of in this bill.  They include modifications to the defenses can use, enhanced damages, new non-retaliation provisions, changes from an opt-in to an opt-out class action status, and new reporting obligations. 

The topic is one that is of interest to our current Connecticut senators. In March 2010, Sen. Dodd held a hearing on the subject here.  For more background, you can see all of my posts related to the subject here. 

In the meantime, employers should keep tabs on this new legislative initiative.

Regardless of your political affiliation, you have to appreciate the magnitude of the moment.

Sweeping health care insurance legislation has passed Congress. (The Senate will still take up  the "reconciliation" part of the bill which will make some additional modifications because the House only approved of the Senate version.)

So, now’s the time to ask: What does this mean for employers?

No one really knows. Oh, you’ve been hearing lots of commentators talk about how lots of jobs will be lost (or saved) as a result of this.  Or they will talk about what this means for our country.   But in truth, it’s much like looking at a crystal ball — you’re much more likely to get a distorted picture than a real one.

So rather than guess about what will happen for employers in the future (or speculate about future changes that may or may not be made), let’s talk about what we know.   

Employers are not, technically, required to provide health insurance to their workers under the bill that passed.  But if employers with 50 or more employees do not provide health insurance, they will be required to pay a fine of $2000 per worker each year if any worker receives federal subsidies to purchase health insurance. Fines will be applied to entire number of employees minus some allowances (under the formula — at least in the reconciliation bill — the first 30 employees are probably not going to be counted).

But again, here’s the most important part: If you are an employer will less than 50 employees, you will not be impacted directly from this bill because you will not be penalized if you don’t offer health insurance.  

For those employers that do offer coverage, you’re not out of the woods just yet. Under the passed bill, if the employee finds the insurance too expensive because it would represent too much a percentage of their income, the employee may purchase insurance on the open market (or at least the marketplace of exchanges that the measure also establishes).  The employer would then be required to provide a voucher to the employee on the percentage that the employer would have kicked in had the employee chose to continue with the employer-sponsored plan.

There is an additional provision for employers of 200 or more employees: If you, as an employer, do offer health insurance to your employees, then you will have to automatically enroll those employees in the plan.  

So, you might be wondering, should I start planning for this? Well, unlike some of the COBRA-subsidy provisions that have gone into effect immediately, this law has a great deal of buffer built in.  In fact, many of these provisions do not start until January 1, 2014 — or nearly four years from now.

But there are others that go into effect more quickly, including a provision to require employers to extend coverage to include adult children (up to age 26) of employees. 

As you might expect from a 2000 page bill, there are certainly other provisions that might affect employers. Various blogs and publications have begun summarizing some of those provisions including Business Insurance and Washington Employment Law Update.  I expect we’ll hear more this week too as everyone starts to analyze it in more detail.

For employers that have low-cost workers, there is no doubt that this measure will have some impact because of the penalties that may be applied if health insurance is not offered. But how much of an impact that will be will have to be determined by each company on a case-by-case basis.

For now, each employer should consider appointing a small group of employees (including those from human resources and finance areas) to figure out what health care reform will mean to that employer.  And stay tuned, I don’t expect we’ve heard about this for the last time.  

Regardless of your political leanings, Senator Chris Dodd — who announced on Wednesday that he will not seek re-election this November — may long be remembered by employers as the Senator instrumental in the passage of the federal Family and Medical Leave Act.  

Indeed, in 1993, he authored the FMLA bill that was later signed by President Clinton early in his term.  Fifteen years later, he pushed for an expansion of that bill to paid leave, which has yet to receive serious consideration in the Senate.

Sure, the FMLA — while laudable in concept — still has some issues. It remains too susceptible to abuse by a few, and remains time-consuming and loaded with paperwork for employers to follow and keep track of.

Yet, despite dire predictions, employers have adapted very well to the law. 90 percent of employers told the Department of Labor that the law had a neutral or positive impact on profits. Through training and education, companies have figured out solutions to some vexing issues and have been able to manage their workforce even with substantial absences.   It now is embedded in the fabric of companies and it’s hard to imagine the workplace without that law. 

Let’s also not forget the impact it is has had on the millions of men and women who have been able to care for a loved one or themselves in times of difficulty. Indeed, since its passage over 50 million Americans were able to take some sort of leave.  And with the amendments passed recently, families of armed servicemembers can also take protected leave if need be.

Again, let the political partisans debate whether Senator Dodd was "good" or "bad"; that characterization minimizes to his contributions to public service. Employers should simply remember him as the Senator who profoundly changed the way we think about the workplace and absences.  

You can watch his gracious speech here:

  

 

Earlier today, President Obama welcomed Lilly Ledbetter to the White House and signed the Lilly Ledbetter Fair Pay Act.  You can find the text of the act here and even leave your comments on it. You can read the President’s remarks here. And you can find the White House blog entry on the subject here.

In signing the bill, the President said:

So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it’s not just unfair and illegal, it’s bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn’t about some abstract legal theory, or footnote in a casebook. It’s about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

Ultimately, equal pay isn’t just an economic issue for millions of Americans and their families, it’s a question of who we are — and whether we’re truly living up to our fundamental ideals; whether we’ll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something — to breathe new life into them with a more enlightened understanding that is appropriate for our time.

I’ve covered the bill extensively in prior posts, which you can find here, but some final remarks on this new law for now are worth mentioning:

The new law, because it would apply to cases still pending that were filed the day before the Court’s ruling, or thereafter, it has the specific effect of overturning the Ledbetter decision. It cannot alter any case that has been finally decided, however. Congress had the authority to overturn the Ledbetter ruling because that was based only on the Court’s reading of a statute, and not a constitutional provision.

  • The bill’s main purpose is to extend statute of limitations on compensation decisions. But the effect of the bill will be to allow for a potential look back on compensation decisions for several years — and perhaps much, longer.

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 postsReuters 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)

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.

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. courtesy creative commons flckr ynse photostream
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. 

Several months ago, I posted on legislation pending before Congress called the ADA Restoration Act of 2007.  Today seems a particularly apt time for an update.

The U.S. House’s Committee on Education and Labor is holding a hearing today on H.R. 3195.  The hearing is being webcast on its website here.  Several witnesses are slated to testify. 

Both SHRM and the American Association of People with Disabilities are portraying this time period as critical for consideration of the bill.  A vote on the bill could come up to the house, according to these advocates, sometime in February.  Whether the bill will pass appears up in the air as the bill lacks a sufficient number of co-sponsors to assure its passage in both houses.

George Lenard of the Employment Blawg shared his view on the Act as well.  It’s worth checking out in full.  Here’s a portion:

There have been some cases in which the definition of “disability” has been construed too narrowly, preventing individuals with quite substantial impairments from having their day in court.

But the definition as it now stands is a sound one, and the Supreme Court cases were correctly decided under this definition.

The problem has largely been one of bad lawyering. It has taken too long for lawyers representing plaintiffs in disability cases to learn that the threshold issue of meeting the definition of “disability” is absolutely critical, and requires extensive factual development, often with multiple expert witnesses.

SHRM’s position is excessively alarmist — although I agree the proposed law is unnecessary and I oppose it without qualification.

As I stated before, I’m not sure I agree with the use of the term "restoration".  Indeed, it’s a dangerous road to go down by attempting look back to where we were 17 years ago in employment law and say the law isn’t what we intended it to be.  The law — as with all laws — has evolved over time as "real-life" cases get interpreted. For example, does someone with MRSA qualify as a disability? Since MRSA wasn’t even an issue 15 years ago, the law has to be interpreted to address this question. 

I would rather the backers of the bill engage in an intellectually honest debate of whether amendments to the ADA should be made rather than claim that they are merely "restoring" it.  The use of that type of loaded terminology (see, for example, "No Child Left Behind") does not add to the debate of whether the proposed amendments are a good or bad idea.

Indeed, an interesting article by The New York Times last week also asked whether some disabled people might actually be worse off with the passage of the ADA.  

Lastly, for those who are interested in more on the subject, the ReunifyGally Blog has been constant in its updates.