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.

The first few days of the new Connecticut legislative session are, dare I say it, kind of fun from an outsider perspective. That is, if you know what you are looking at.

Why? Because it’s the time when legislators start submitting “proposed” bills. But these proposals are far from polished products. Sometimes, these proposals are done to satisfy constituents. Other times, they are submitted to get the issue discussed before a committee.

Either way, they can raise a few eyebrows.

Take Proposed Bill No. 5267. This proposal would require “the Labor Department to develop and promulgate an employers’ bill of rights”.  Why? It would “serve to protect employers from frivolous complaints and claims brought by employees.”

My friend, Jon Hyman — who actually wrote a book entitled “The Employer Bill of Rights” — ought to love this one. Unfortunately, the substance of the proposal is basically confined to the line I just mentioned. No specifics.  But here are some that Jon has suggested:

The Right to Hire on Qualifications;

The Right to Fire on Performance;

The Right to Control Operations:

Alas, I think the Connecticut proposal is the beginning and end of such an idea.

The opposite of the above proposal is Proposed Bill No. 5080. This proposal would amend state statutes to require retail stores to close on certain holidays unless it allows its employees to decline to work such holidays without penalty.  Call it the Kmart effect; Kmart opened before breakfast on Thanksgiving.

It’s still early though. These bills will be discussed at today’s legislative committee meeting.  There are lots more proposals coming down the road. Among the other items on the committee’s agency “an act concerning the use of credit histories in employment decisions” and  “an act concerning healthy workplaces”.

Pull up a chair. The next few months ought to be interesting.

 

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?

A lot of people have been writing about a recent court ruling that upheld significant portions of a new NLRB-promulgated poster that will get put up on a wall in some common area.

I’ve been reluctant to write about it because, as I mentioned back in the fall, things continue to change on this particular poster.  There is still another lawsuit about this poster out there and an appeal that is happening too.

So, where do things stand now?

Right now, the posting requirement is still scheduled to go into effect on April 30, 2012 with some minor modifications.  

What did the court’s latest order say? Labor Relations Today has a good recap:

In the order issued on Friday, March 2 in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), District Court Judge Amy Berman Jackson held both the NLRB had authority to issue a rule requiring private-sector employers to post notices informing employees of their rights under the Act, and that the NLRB could consider an employer’s “knowing and willful” failure to post the notice as evidence of an unlawful motive. However, she struck down the portions of the NLRB’s rule that would automatically deem an employer’s failure to post the notice an unfair labor practice and that would toll the statute of limitations for unfair labor practice charges filed against employers that failed to post the notice.

What else can an employer do? Russell Cawyer of the Texas Employment Law Update suggests that employers put up the NLRB poster but also put up a poster of their own that details the employer’s view on things. 

For more on the subject, check out these posts here, here, and here

From my perspective, the amount of focus on posting requirement is a bit overblown. In this age of technology, employees don’t need to rely on posters in the back of a lunch room for information on their rights anymore. (And really, how many times have you REALLY seen employees even look at these.)  They can use their smart phones to check out the NLRB website from anywhere

Yes, it is possible that the NLRB is overstepping its authority, but employers in Connecticut have long since had to deal with numerous posting requirements.  Employers should keep up to date on whether the notices are going to go into effect but ultimately, it’s just another one brick notice on the wall. 

This poster is not to be confused with other changes to the election procedures that are also going into effect on April 30, 2012. You can read more about those changes here.

The new legislative session at the Connecticut General Assemblybegan last week and the Labor & Public Employee Committee wasted no time setting an agenda for bills for discussion in this short legislative session.

2012 Legislative Session Begins

At a committee meeting last Thursday, the Committee discussed a variety of items to be discussed and proposed as bills. 

Among the notable items that received a favorable nod to drafting:

  • An Act Concerning Discriminatory Hiring Toward the Unemployed
  • An Act Concerning State Employees and Bullying in the Workplace
  • An Act Concerning Family and Medical Leave for Certain Municipal Employees
  • An Act Concerning a Study on Changes to the Pay Frequency Laws
  • Act Allowing Employers to Pay Wages Using Payroll Cards

You can follow the Committee’s progress here.  The CBIA also provides a weekly recap of the events at the legislature here.   

After last year’s battle over paid sick leave, this session is not expected to be as bruising but as noted above, there is still plenty of things the legislature can get involved with.  In a short session, we’ll have to wait and see how much really gets done. 

If the legislature wants to do something unusual, then perhaps it can revisit my list from July 2011 of outdated employment laws that could be considered for repeal.  Of course, it’s easier to add laws than to repeal them, but hope springs eternal.

The Department of Labor today proposed new regulations of the FMLA that would explain further the military family leave provisions and incorporate some special provisions for airline flight crews. 

The new proposed regulations are in response to the National Defense Authorization Act for Fiscal Year 2012 which amended the FMLA to extend the military caregiver leave entitlement to eligible family members of certain veterans and to extend the qualifying exigency leave entitlement to eligible family members of the Regular Armed Forces. 

You can find the DOL’s Notice of Proposed Rulemaking here.   You can download the actual proposal (213 pages) here.   The DOL’s Frequenly Asked Questions (FAQ) are available here.   

What’s changed? According to the DOL, the major provisions include:

  • the extension of military caregiver leave to eligible family members of covered veterans with a serious injury or illness;
  • a flexible, three part definition for serious injury or illness of a veteran;
  • the extension of military caregiver leave to cover serious injuries or illnesses that result from the aggravation during military service of a preexisting condition for both current servicemembers and veterans;
  • the extension of qualifying exigency leave to eligible family members of members of the Regular Armed Forces;
  • inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
  • the addition of a special hours of service eligibility requirement for airline flight crew employees; and
  • the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

Before employers get too wrapped up in this, understand that these are just proposed regulations.  The DOL is soliciting comments and may make further changes before final release.  Employers who have an interest in the subject can submit their comments to the government’s website here.

The Connecticut Commission on Human Rights and Opportunities (CHRO) has released proposed new regulations that would require state agencies and the like to create an Equal Employment Opportunity Plan.

These regulations would not apply to private employers so many of you can dispense with the worrying.

The proposed regulations will replace the current ones. The CHRO hasn’t amended the regulations in quite some time and according to one CHRO insider, it seemed to be a good time to look at them afresh. The changes are relatively modest, but for those that study these types of things, there are updates to definitions such as “good faith efforts” that should be reviewed.

You can download the full proposal here.

A public hearing on the proposal is set for February 8, 2012 at 10 a.m. The hearing will be held in Room 1A of the Legislative Office Building, 300 Capitol Avenue, Hartford, CT 06106.

If you’re interested in commenting on the proposal, you can do so in writing (either snail mail or e-mail) to: James O’Neill, Legislative Liaison, Commission on Human Rights and Opportunities, 25 Sigourney Street, Hartford, Connecticut 06106 or  james.j.oneill@ct.gov.

As expected, the United States Department of Labor today released its proposed changes to the companionship and live-in worker regulations under the Fair Labor Standards Act.  What was unknown was how significant the proposed changes would be.

The short answer: Pretty significant.  The regulations substantially limit the companionship exemption under wage & hour laws to companions employed only by the family or household using the services.  In other words, under the proposed regulations, third-party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.

The DOL has released a fact-sheet that summarizes the key changes here.  The key changes to the law are discussed here in a side-by-side comparison.  And FAQ to the exemption is available here.

Here is the DOL’s brief overview:

The proposed regulations limit a companion’s duties to fellowship and protection. Examples of activities that fall within fellowship and protection may include playing cards, watching television together, visiting with friends and neighbors, taking walks, or engaging in hobbies. The proposed regulations provide some allowance for certain incidental intimate personal care services, such as occasional dressing, grooming, and driving to appointments, if this work is performed in conjunction with the fellowship and protection of the individual, and does not exceed 20 percent of the total hours worked by the companion in the workweek.

The Department’s proposal makes clear that employees performing services that do not fall within the revised definition of companionship services are not considered exempt from the minimum wage and overtime requirements:

  • The proposal would clarify that “companionship services” do not include the performance of medically-related tasks for which training is typically a prerequisite. The current regulations specifically identify trained personnel such as nurses as outside the scope of the exemption, and this clarification more clearly identifies what constitutes medically-related services.
  • Under the proposed rule, any work benefiting other members of the household, such as preparing meals or performing housekeeping or laundry for other members of the household, does not fall within the allowable incidental duties of an exempt companion.
  • The Department proposes to revise the third party regulation to apply the companionship and live-in domestic worker exemptions only to workers employed by the individual, family or household using the worker’s services. Under the proposed rule, the minimum wage and overtime exemptions would not be available to third party employers, such as home health care agencies, even if the household itself may claim the exemption (such as in a joint employment relationship).
  • The proposed regulations would revise the recordkeeping requirements for live-in domestic workers. Under the proposal, employers would be required to maintain an accurate record of hours worked by such workers, just as other covered employees must keep such records.

Notably, the proposed regulations have not been officially published yet. When they are, the public will have a comment period at the Regulations.Gov website.

For all those in the industry, this starts what will undoubtedly be a tense process because the proposed changes — if implemented — will redefine how work gets done for many companies.  Watch for more on the subject in the months ahead.

This morning, I appeared on Ray Dunaway’s show on WTIC radio (1080 AM) to discuss the NLRB’s new proposed rules on union representation elections.  (A link will be available when it is posted online.)

Photo courtesy Library of Congress (1947)

Of course, in 5 minutes, there wasn’t much time to explain everything about it (here’s a summary of the proposals from the NLRB itself), so here’s a bit more:

  • First, these are only proposed rules now; the NLRB is taking public comment for the next 60 days and will then decide whether or not to revise them and whether to release them in final form.
  • NLRB member Brian Hayes dissented from the proposal and said that these proposal essential adopt organized labor’s goals:

[B]y administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.

  • Among the changes that are proposed a to reduce the time for an initial hearing from 14 days to 7.   Employers will be required to submit a list of issues by that time. That is an extraordinary short amount of time for an employer to mount any kind of serious opposition or even research into issues that may arise.
  • Under the new rules, an employer would be required to submit to the union a final list of eligible votes two days after an election has been scheduled (down from 7).  The list must also include the employee’s phone number and e-mail address.  Query whether the employee has a legitimate privacy interest in having this information kept confidential.
  • There are plenty of summaries of other proposed changes available, including an update from Labor Relations Today, which was one of the first to analyze it.

No doubt that one of the questions that employers will ask is why are these rules necessary?  The median time to hold an election is 38 days now, and unions win over 67% of elections.  Surely that number will go higher if these proposals are adopted.   The NLRB believes these rules can improve the election system further:

[T]he current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices. It is worth asking, again, whether the Board can now do a better job, and can better serve the employees, employers, and unions that participate in the election process.

Anyone can submit public comments about the proposed rules. For more information, see the NLRB’s website.

With winter’s fierce grip on us continuing, there’s nothing like a warm dish to make the outside chill melt away.  Certainly, there will be a few of us having some chili this weekend to watch football. 

So, a few weeks into the new legislative session, it’s time to see what’s cooking at the Connecticut General Assembly.

A look at the Labor & Public Employee’s Record Book, shows a lot of familiar proposed bills make reappearances.  Proposed Prohibitions of Captive Audience Meetings (PSB-129)   Proposed Changes to the Prevailing Wage Laws (PHB-5088-5095). Proposed Bans on the Use of Credit Reports in Making Employment Decisions (PHB-5284).  Paid Sick Leave. (PHB-5466) These were all referred to the Labor committee earlier today.

A bill addressing bullying is the state workplace also makes a repeat appearance in another bill (PHB-5494), sponsored by Rep. Gary Holder-Winfield, who has been moving up the leadership ranks. 

But there are also a few bills that have been proposed that are also worth a mention.  One proposed bill (PHB-5461) wants to provide more protection to mothers who breastfeed in the workplace, but it fails to describe how the current state law (which already provides such protection) is ineffective.  Another proposal (PHB-5112) would extend the hours that minors can work in retail establishments to 11 p.m.

However, so far there are only 2 substantive bills that have been raised in the house — relating to Captive Audience meetings and and providing family and medical leave to municipal employees.  But even those have not made much progress in recent years.

The projected budget deficit is looming large over this session, so it’ll be worth watching to see how these bills get considered in the upcoming weeks and months.  Go draw a cup of hot chocolate, put some logs in the fireplace, and stay tuned