capitoldas2Well, the Connecticut General Assembly ended earlier this week and, as predicted, it ended with a whimper and not a bang.  Many employment law proposals failed to receive votes, including those on minimum wage and Paid FMLA, leaving many employers (and the CBIA) breathing a bit of a sigh of relief.

I’ve previously recapped most of the bills here and here, so I’m only going to recap the session here in the interests of time.

  • The Governor is expected to sign a bill expanding the requirements for employers to provide reasonable accommodations to pregnant employees. Again, I’ve recapped the measure here but this is probably the most significant bill to come out of the session regarding employers.
  • There will be no minimum wage hike and the introduction of Paid FMLA failed to get enough votes this term.  There is little doubt that the split in the Senate along party lines slowed momentum down for what was going to be the Democrat party’s signature achievement this session.
  • Also not getting votes this session was a bill that would have prohibited many employers from running credit checks on prospective employees and a bill that would required employers to give advance notice to employees about their work shifts.
  • Another bill that would change whistleblower protections in Connecticut also failed to clear the House.

Some of the other technical changes, to workers compensation or unemployment compensation, offer up a mixed bag. I’ve covered them in a prior post.

A special session is still on the way and it’s possible that some measures will get plopped into an “implementer” bill for the budget like it did a few years ago.  But my gut tells me that the budget is unlike to be used this way given the significant financial issues in play.  Nonetheless, employers should continue to watch for any developments in this area until the special session is closed.

soccer1This morning came word that members of the U.S. National Women’s Soccer Team are filing a discrimination complaint against the U.S. Soccer Federation on the grounds that they are paid less than their male counterparts.

According to press reports, “the filing, citing figures from the USSF’s 2015 financial report, says that despite the women’s team generating nearly $20 million more revenue last year than the US men’s team, the women are paid almost four times less.”

U.S. Soccer issued its own release arguing: “While we have not seen this complaint and can’t comment on the specifics of it, we are disappointed about this action. We have been a world leader in women’s soccer and are proud of the commitment we have made to building the women’s game in the United States over the past 30 years.”

This is not the first time this argument has been raised. But it continues the forceful arguments of female athletes arguing that the pay disparity is at a minimum, unfair, or in other cases, illegal.

For example, Connecticut attorney Kelly Burns Gallagher has been talking about the disparities in the triathlon world for a while.  The 50 Women to Kona movement notes that “At the World Championships for the Ironman Triathlon in Kona, Hawaii, the professional men have 50 qualifying spots and the professional women have only 35.  We are asking you to help stop this unequal allocation by sending a message to the World Triathlon Corporation and its CEO, Andrew Messick.”

And recently in tennis, a tennis tournament directly resigned after suggesting that women tennis players owe their success to their male counterparts.

There is no doubt that the argument of equal pay for female athletes has strong appeal. I’ve watched the women’s World Cup, for example, with the same enthusiasm as I do the men’s World Cup (and written about my love of U.S. Soccer too).  Tennis has, for the most part, adopted the laudable position that tournament payouts should be the same for men and women.

But the lawyer in me recognizes that the legal issues aren’t neat and tidy. We’ve seen it come up in golf where LPGA golfer Stacy Lewis recently argued that LPGA players should be paid the same as their male counterparts on the PGA.

In that case, however, there are arguments that each tour has different endorsement deals, different sponsors and different viewer audiences.

The Equal Pay Act (which may or may not get the soccer players to victory, depending on the legal arguments raised) mandates that that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal.  Title VII can also be raised; it does not require that the job of the person claiming discrimination be substantially equal to that of a higher paid person of the other sex, but unlike the EPA, Title VII requires proof of intent to discriminate on the basis of sex.

So how does one make a claim under the EPA? Simply stated, by showing that the jobs require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment defined as follows (and as noted by the Workplace Fairness site):

  • Skill: measured by factors such as the experience, ability, education, and training required to perform the job.
  • Effort: the amount of physical or mental exertion needed to perform the job.
  • Responsibility: the degree of accountability required in performing the job.
  • Working conditions: encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.

It is this argument that the soccer players will likely try to advance. But as noted by The New York Times, there are likely to be several arguments that U.S. Soccer will respond with including that the law allows for different payments on factors other than gender:

U.S. Soccer could counter that the players’ pay is collectively bargained, and that the players agreed to all issues, including compensation and working conditions like whether the team must play on artificial turf on not. (The federation and the women’s players’ union are continuing discussions on compensation in a new collective bargaining agreement amid the current action.)

U.S. Soccer also receives substantially higher payouts from FIFA, world soccer’s governing body, for participation in the men’s World Cup. But the women’s complaint seems to take aim at a bigger share of domestic revenue, like sponsorships and television contracts.

Who will win? My guess is that we won’t know because ultimately U.S. Soccer and the soccer players will reach an agreement, perhaps as part of a new bargaining agreement.  But the arguments about pay disparity between male and female athletes and coaches will live on.

Welcome to the party, Connecticut.

For years, I’ve highlighted outdated employment laws and regulations in Connecticut that should be written off the books.  As I’ve noted time and again (and again), it’s very easy for laws to get put on the books. But it’s very hard for them to get taken off.

Now comes word that the Connecticut Department of Labor is finally reviewing some of its regulations after being “stunned” that some of them were still on the books.  According to a story in today’s Hartford Courant:

State labor commissioner Sharon Palmer could hardly believe it when her staff generated a list of state regulations that should be eliminated. They had been acting under a directive from Gov. Dannel P. Malloy to search for obsolete regulations that could be wiped off the state books.

One of the regulations they found – still on the books today – says that no woman can work alone between 1 a.m. and 6 a.m.

“Is that funny or what?’’ Palmer said Thursday as she burst out laughing. “We’re not sure how old it is. It could be 50 or 60 years old. We’re not sure. Very, very old. … I think it could go back to the turn of the century.’’

I appreciate Commissioner Palmer’s sense of humor.  However, why stop at just a few of these regulations that aren’t enforced? It’s time that the state review all of the employment laws that are still, well, actual laws that are outdated too.

How about the law restricting telegraph services at night particularly since there are NO MORE TELEGRAPH SERVICES around?

And what about the law on “Home Workers” law that still refers to “women and children” in its coverage.  Yep, still on the books.

And don’t forget that “No laundry work shall be done in any public laundry in a room used as a sleeping or living room.”  Whatever that means.

There are plenty more and a while back I put together a few for starters.  Take a look and let’s get this done, Connecticut.