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.

abalelconfI admit it. Misleading headline.

It won’t be EVERYTHING else. But….there were a few other nuggets from the ABA Labor & Employment Annual Conference last week that are worth sharing. For prior posts on the subject, go here and here.

  • At one of the programs, an EEOC attorney suggested that no re-hire clauses in separation agreements may be unlawful. Philip Miles — who I co-presented with at one of the conference programs — has a full recap on his site but the gist is that such a position is unsupported. As Philip posted, “The EEOC attorney’s position was not well-received at the conference, and she acknowledged that zero case law supports the position. One audience member “politely” suggested that if they couldn’t find a single court to side with them in 50+ years, perhaps it was time to move on. The EEOC attorney responded that the agency often seeks to move the law and alter the status quo.”
  • At a program on wellness plans, the speakers highlighted a new development this month — proposed regulations from the EEOC to encompass such plans. As Jon Hyman recapped on his blog, “[T]he EEOC announced that it plans to amend its regulations to the Genetic Information Nondiscrimination Act to permit employees to provide health information about their spouses in exchange for certain financial and other incentives as part of employer wellness programs.”  Employers who use these plans should be particularly mindful that new regulations are on their way.
  • The Wall Street Journal finally got around to writing about the delays in overtime regulation revisions — days after I first reported it. NBC News also picked up on it and quoted me.
  • The EEOC is also in the news for its continuing press on systematic cases. EEOC Chair Jenny Yang said at the conference that the agency had been “transformed” with, as Bloomberg BNA reports, “markedly more agency investigations and litigation aimed at employer policies and practices that operate on a company-wide, industry-wide or nationwide basis.”
  • dinicsThe FMLA continues to be a challenge for employers to enforce properly. At one session, speaker Jeff Novak gave a helpful tip when you outsource FMLA to a 3rd party administrator. Look at their forms to ensure they comply with DOL regs.
  • And finally, Reading Terminal Market has to be one of the best food sites in the country. I would highly recommend getting the roast pork sandwich at DiNic’s. It may not be kosher, but it’s definitely a treat. Don’t forget to add some sharp provolone and broccoli rabe to it. Delish.
USDOL Solicitor Smith speaks at ABALEL conference
USDOL Solicitor Smith speaks at ABALEL conference

Over the next few days, I hope to provide a few updates from attending last week’s ABA Labor & Employment Law Annual Conference in Philadelphia.  There were many good, substantive programs there and lots to be gleaned for employers.

One of the sessions focused on the proposed revisions to the white collar overtime exemptions that were released for comment earlier this year.  The Department of Labor Solicitor Patricia Smith provided some insights in a panel discussion about where things were headed.

(For more background on these proposed revisions, see my prior post here.)

The solicitor indicated that the DOL received over 270,000 (!) comments to the proposed revisions and that more than 3,000 of those were “substantive” in nature. That unprecedented number of comments means that a good deal of time must be spent by the DOL to review those comments. She indicated the DOL was still reviewing the comments.

As a result, she indicated that the final version of these white collar revisions would not come out until sometime in 2016.

You might be asking: When exactly?

Well, she didn’t indicate that other than to say that she hint opaquely that it might be “late” in the year.

My own speculation (and let me be clear that it is just that) is that the final revisions may not come out until after the 2016 Presidential election.  If they are released beforehand, it is possible, and perhaps probable, that they will become a campaign issue.

In any event, when the final revisions come out, the DOL solicitor indicated that employers will have 60 days to comply.  Thus, at this point, the very earliest employers can expect to implement these revisions is March or April 2016 – and again, that’s not likely.

So what are employers to do now? The usual things: Keep up to date on what is going on; review your existing positions for compliance and with an eye towards the revisions; consider your salary range for people that are close to the $50k proposed threshold.

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?

On Saturday, the Connecticut General Assembly gave final approval of several revisions to the state’s Personnel Files Act law.  Governor Malloy is expected to approve of the measure.

Senate Bill 910 can be viewed here.  The Office of Legislative Research’s analysis of the bill can be found here.

Here are the key changes:

  • Under the bill, an employer will have seven business days (instead of a “reasonable time”) to permit a current employee to inspect AND, if requested, a copy of his or her personnel file.
  • For former employees, an employer has ten business days after receiving a written request to allow that person to inspect or get a copy of his or her personnel file. Such a request must come within one year of the date of termination of that former employee.  An employer can comply with this section by mailing a copy of the personnel file within the same time frame if the employer and former employee cannot agree “upon a location to conduct such inspection”.
  • Perhaps the most notable change for employers is that a copy of any documentation of any disciplinary action must be provided to the employee within one business day after imposing such action.  Note: It appears that if there is no such documentation in the first place, it need not be created, but query what should happen in instances of a “verbal warning”?
  • The bill also states that each employer shall “immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.”  Presumably, again, it does not require such documentation to be made; only that if there is such documentation, it needs to be given to the employee at the time of termination.
  • Another major change is that the employer must include”a statement in clear and conspicuous language in any documented disciplinary action, notice of termination of such employee’s employment or performance evaluation that the employee may, should the employee disagree with any of the information contained in such documented disciplinary action, notice of termination or performance evaluation, submit a written statement explaining his or her position.”  Any such employee statement must be included in any personnel file.
  • The law also allows the Connecticut Department of Labor to establish an appropriate fine (up to $500) for any first violation. In doing so, the DOL is to consider “all factors which the commissioner deems relevant” including the level necessary to achieve immediate compliance, the character and degree of the violation, and any prior history of the employer.
  • The measures would take effect October 1, 2013.

What’s the Takeaway for Connecticut Employers? 

Assuming that the Governor approves of the bill, this will require employers of all size to familiarize themselves with the provisions and inform the relevant office staff and HR professionals of the changes. New policies and procedures should be adopted to implement these provisions.

Most importantly, if an employer already documents any disciplinary action, it now must provide a copy of that discipline to employees directly.

What is a disciplinary action? That is left undefined by the bill.  Employers should consider contacting their local employment law counsel for additional specific guidance applicable to their business.

We’ll take a more in depth look at this bill in the months ahead, but in the meantime, employers in the state now have yet another administrative hassle to comply with.

A new revised bill (in the form of an amendment) to amend the state discrimination statutes and amend the CHRO procedures has been posted on the Connecticut General Assembly’s site this afternoon.  The amendment (8532) can be found in the information for S.B. 1164

A review of the language shows a few changes, including the removal of the “Schedule A” requirements that I had highlighted last week. 

According to several legislative sources, this revision follows some give-and-take between the agency, legislators and other outside groups to develop a bill that was not as controversial as the one that was proposed.  I shared my concerns with several individuals as well, after posting them first on the blog over the last few weeks. 

I applaud the agency for revising the CHRO bill to remove some of the more substantive changes until they can have an appropriate hearing and consideration. 

In the meantime, passage of this revision is now expected — if the legislature can work its way through the typical year-end mess it has created. 

After the bill passes, I hope to do a recap of some of the changes (I’ve touched on it in posts here and here).  If passed, the changes will become effective July 1, 2013.  In the interim, however, employers should familiarize themselves with the provisions.