Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

With the legislative session coming to a close next week, developments are heating up at a fast and furious pace.  I'll do some quick updating and then provide a more through review when time permits.

First, the State Senate debated the Paid Sick Leave bill (S.B. 217) yesterday for about an hour, when the debate apparently raised questions on its impact on collective bargaining agreements.  The Senate has been working off of some amendments as well, which can be located here.

The Hartford Courant has coverage here.   The CT News Junkie blog has a report earlier this week about it as well.

Second, the State Senate also passed amendments to the state's whistleblower law.  You can find my previous coverage here and you can view the Courant's coverage today of it here.

The bill, which is now listed at S.B. 335, is similar to a prior version proposed back in February and allows the Attorney General to intervene in some whistleblower cases.  The bill now moves on to the House for a vote. 

As I noted before, while the goals of the bill are laudable, the path that it takes to get there is troubling.  The bill creates a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.

This proposal ignores what courts have been concluding over the years: that it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.  As the U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:

The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.

Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two, what is the rationale behind the proposed legislation that assumes such a connection up to 36 months later?

Unfortunately, the rationale is not likely to be explained or even debated as the bill moves forward.  Legislators will try to show that they are "protecting" whistleblowers, but in doing so, they are likely to create a mess that the courts will be left to clean up.

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With one month to go in the shortened legislative session, there hasn't been a lot of action on various labor & employment bills.  Many of the bills I highlighted in the last two months haven't seen a lot of action or are still awaiting further votes.  This post will briefly summarize where some of the bills are based on the Bill Record Book. 

• The Workplace Bullying bill, Senate Bill 60, which I addressed here, appears to be going nowhere. There has been no committee action on it, unlike several others.  In my opinion, there are just too many issues that would need to be resolved and addressed to make the proposed bill a workable law. 
  
• Similarly, Senate Bill 61, which provides additional protections to whistleblowers hasn't gone anywhere yet either.  There has yet to be a hearing on it and no action appears to have been taken on it.  Some of my prior coverage is available here.
  
• On a different note, the bill to allow 15 year olds back into grocery stores, Senate Bill 216, passed the Senate last week.  This one seems like a sure thing to get House approval. For more background on this bill, click here for my prior coverage. 
  
• The Paid Sick Leave Bill, Senate Bill 217, is far from sick. I covered the bill's origins here.  Indeed, the Labor & Public Employee Committee has favorably voted the bill out to the Judiciary Committee on April 3, 2008.  

No significant bills relating to labor & employment law have been passed by both houses yet so I'll keep providing updates for the remainder of the session.

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On Tuesday, I noted that the Paid Sick Leave Bill had been re-introduced this year and that it was "the one to watch" this year.

On Wednesday, February 27th, State Senator Edith Prague -- and others -- held a news conference to push for its passage. Christine Stuart, at CT News Junkie, has the details:

For the second year in a row, state Sen. Edith Prague, D-Columbia, a dozen other Democratic legislators, along with the Working Families Party, are trying to pass legislation that forces companies with more than 25 employees to give their workers a chance to earn up to 6.5 sick days a year.

“We need to treat people like they’re human beings,” Prague said at an afternoon press conference. State Rep. Steve Fontana, D-North Haven, said, “I think this is legislation whose time has come.” Last year the bill passed the state Senate by a vote of 23 to 13, however, it never came to a vote in the House.

The Working Families Party has created a website devoted to this issue at www.everybodybenefits.org.  What's interesting is that this group presents this also as a public health issue, not only a worker fairness issue (though they do not cite in any obvious way, where their numbers are from).  The problem, according to the website, is:

Around 40% of working people in Connecticut don't get a single paid sick day all year long. Among low wage workers, that figure rises to more than 75%.  Only 20% of food service worker. Childcare, retail, and nursing workers are also less likely to have paid sick days.

Presenteeism - the phenomenon of employees coming in to work sick, but working less productively and possibly spreading illness - costs employers an estimated $255 per employee per year. That's more than the cost of guaranteeing paid sick days.

A hearing on the bill is scheduled for Thursday; details are provided in my prior post. 

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As I posted yesterday, the Connecticut General Assembly is back in session. The Labor & Public Employees Committee is busy holding hearings this week on various bills now pending before the General Assembly.

One batch of bills is up for consideration this afternoon. A second batch is up for a hearing this Thursday at 2:30 p.m.  The February 28th Hearing agenda can be found here.  The hearing is at 2:30 in Room 2D of the Legislative Office Building.  The main topics of the February 28th hearing  purport to be public employees and unemployment compensation.

Among the notable bills being considered:

• Senate Bill 217 (Employers with 25+ employees would be required to provide up to 52 hours of paid sick leave to employees);
• Senate Bill 38 (which would provide paid vacation time, sick leave and personal leave for Connecticut State's attorneys);
• Senate Bill 56 (which would create a task force to address misclassification of workers such as the distinctions between exempt/non-exempt or employee/independent contractor).

For employers, Senate Bill 217 is the one to watch.  Proposals for paid sick leave have been making the rounds in various states with only modest success thus far.  It'll be interesting to see how far this bill actually gets this year.

We'll look at some of these bills more in-depth over the upcoming weeks and months as debate on the bills begins.  But given the General Assembly is in a short session, it's still an open question as to what will actually get passed this year.

I should also note that other committees also consider bills that look at the employer/employee relationship. For example, the Judiciary Committee has a bill (Senate Bill 328) that would increase jury duty pay and require employers to be more involved in the system.  As significant developments arise, I will try to keep tabs on them throughout the legislative session.

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With the Connecticut General Assembly back in session this month for its short session, the Labor & Public Employees Committee has scheduled two hearings this week -- February 26th at 2 p.m. and February 28th at 2:30 p.m. -- to consider a variety of bills now being proposed.  The agendas for each can be found here and here. 

The February 26th Hearing overall, will be hearing bills related to minimum wage, the Department of Labor, unemployment compensation and prevailing wages.  Among the more notable of the bills being discussed is Senate Bill 216 which would fix a law that expired last fall that allows 15-year-olds to work in grocery stores as baggers, cashiers and shelf stockers. As I reported last fall, lawmakers simply forgot to renew it.  The bill would also grant immunity to employers who kept those 15-year-olds employed from last fall until present because of the legislative slipup.

Other notable bills being considered:

• House Bill 5105 (which would increase minimum wage to $8.00 per hour effective January 1, 2009);
• Senate Bill 60 (which would create a new private cause of action for bullying in the workplace);
• House Bill  5113 (which would regulate "professional service organizations" , or situations where there is a "coemployment relationship in which all or a majority of the employees providing services to a client or to a division or work unit of a client are covered employee");
• House Bill 5114 (which would allow employers to pay its employees via a debit card, instead of a check).

The sleeper bill of these, in my view, is House Bill 5114.  This would be a huge benefit to the thousands of workers who do not have their own checking account.  Many of these people pay large check cashing fees.  The debit card might allow these employees to use the card directly like a VISA or Mastercard.  Employers are allowed to use these for items such as Health Savings Accounts, so why not paychecks (so long as it remains the choice of the employee)?

I should also note that Senate Bill 216 should be a no-brainer as well.  Having sunset provisions, like the one in the prior statute (Conn. Gen. Stat. Sec. 31-23) are of no use, if no one at the General Assembly keeps track of them. 

The February 26th Hearing begins at 2 p.m. in Room 2D of the Legislative Office Building and is open to the public.

I'll summarize the February 28th Hearing in an upcoming post. 

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