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

A bill to provide mandatory paid sick leave to employees and a bill to provide greater protection to state whistleblowers were among the employment law-related bills that were not voted upon in the final day of the legislative session -- effectively killing them. 

The Paid Sick Leave bill, S.B. 217, had passed the Senate last week, but the House did not bring the measure up for a vote. As I indicated yesterday, nearly 25 amendments had been proposed on it -- a sign that the bill was going to be in for a long fight.  My earlier coverage of the bill is available here. CT News Junkie has a report on it as well.

The Whistleblower bill, S.B. 335, had also passed the Senate, but again, the House did not act on that provision either. My earlier coverage of the bill is available here.

Other bills that were not acted upon by the legislature include: a Workplace Bullying bill; a bill protecting child in the entertainment industry from child labor abuses; and a bill to allow workers to be paid by a pay or debit card.

One bill that did pass this week allows for the regulation of various professional service organizations and about employee misclassification (H.B. 5113).  I'll cover that in further detail in an upcoming post.

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Today is the final day of the General Assembly and the Paid Sick Leave proposal (S.B. 217) is expected to come before the House before the close of business.  But, perhaps in a sign that it is doomed to die a procedural death, it has drawn nearly 25 proposed amendments.  

One of the listed amendments is just a head scratcher.  Specifically, House Amendment 6092 (proposed by House Republican Leader Lawrence Cafero and Rep. Aman) would, in essence, allow employees to use paid sick leave for the first day of summer, the first day of fishing or hunting season, or, and I kid you not, the opening day of baseball season. 

Don't believe me? Here's the actual language:  

(e) No employer shall require documentation of an illness, injury or health condition, as described in subsection (b) of this section, if the employee uses a paid sick day on the twenty-first day of the month of June, the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes, or the opening day of the official Major League Baseball season. " 

Thus, under this amendment, an employee could take the day off to attend the Opening Day of baseball season, and the employer would just have to "take the employee's word" that the day was a paid sick leave day.  The Office of Fiscal Analysis even issued a one sentence report indicating that it would have no "fiscal impact" in the state.

Because the proposal comes from two Republican lawmakers (who, as a group, have expressed skepticism about the bill), I think it's fair to say that this proposal will go nowhere. Maybe it is just being used to make a point that the paid sick leave bill will be difficult to enforce. But, given the ramifications of the Paid Sick Leave act bill, as I've covered before, one has to wonder what they were thinking in taking the time to draft an actual amendment on this topic.

The General Assembly starts again this morning. Grab your popcorn. Should be a fun last day.

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Late Thursday night, the State Senate passed the Paid Sick Leave bill (S.B. 217) with various amendments including an exemption for some existing collective bargaining agreements.  The vote was a close one -- 20-16 -- and you can find the roll call here.

The bill would make Connecticut the first state to require employers of 50 or more, to allow workers to take 6½ paid sick days per year. It would also apply to municipalities.  One additional amendment that passed would limt the times when employee could use sick time for an illness of an employee or employee's child.

The bill now moves on to the House for further consideration, where nearly 40 legislators have publicly co-sponsored the bill already.  Some of the sponsors of the bill have predicted passage there, but its real future is unknown at this point, with the session winding down.  Debate in the Senate took two days and it is unclear if there is enough time left for the bill to pass. 

The Hartford Courant has a late report and reaction here:

[State Senator Edith] Prague called the bill a major boon to average working people, "especially single parents, like women, who have to go to work. They can't afford the luxury of staying home if they're sick. They need that day's pay to feed the kids ... and heat the house." ...

But opponents said the increasing business competition in a difficult economy is the reason that lawmakers should not approve the bill: It would put Connecticut at a disadvantage and cost the jobs of some of the very workers it is intended to help, they said.

The state's leading business lobbying group, the Connecticut Business and Industry Association, has said the bill "would cost employers in dollars and productivity — a tough one-two punch in this weakening economy."

Various political blogs have started to chime in, including My Left Nutmeg here.  My prior coverage of the bill can be found here.

UPDATE: You can also find the CT News Junkie coverage of the bill here.

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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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Senate Bill 217, the Paid Sick Leave bill, which I have reported on here and here, passed the Judiciary Committee of the Connecticut General Assembly late last week, setting the stage for a possible Senate vote in the next few weeks.  Various blogs and website have set the stage for a possible showdown at the legislature.

The My Left Nutmeg blog shares its views on the bill and suggests that people can send an Apple Gram to their legislators to tell them to pass it. 

Four out of ten working people in Connecticut don't have a single paid sick day available to them all year. Workers who feel compelled to show up work slower and get others sick, increasing costs for employers. Those who can't make it to work lose income. About one in four parents with a child under one does not have any paid sick time. All of the top twenty most competitive economies in the world - except the U.S. - guarantee paid sick days for workers.

In Connecticut, a network of organizations coordinated by Working Families has launched the Everybody Benefits campaign, which backs Senate Bill 217, designed to guarantee that workers in medium to large companies can earn a few days of sick time each year. Last year, the bill passed the Senate, but never got a vote in the House. This week it passed the Judiciary Committee and moves to the Senate.

The Connecticut Business and Industry Association (CBIA) released a press release of their own saying that many businesses oppose the bill:

Connecticut businesses are urging state legislators to oppose SB-217 which mandates paid sick leave, because it would significantly increase business costs, make Connecticut companies less competitive, cause workplace disruptions and hurt our employees, not help them. The bill would hit small businesses and those that rely on part-time and seasonal help the hardest. ....

"This bill would require employers to provide paid sick leave to all hourly employees with indefinite carryover to future years, further increasing costs and seriously harming businesses in Connecticut as well as the state's economy,” said Bonnie Stewart, CBIA vice president of government affairs. “The bill targets smaller, service industry employers and seasonal companies — the ones that can least afford it.”

According to a recent Connecticut Business & Industry Association survey, the majority of employers (69 percent) offer paid sick leave to their employees. Stewart added that this bill is a one-size-fits-all approach that doesn't allow businesses the flexibility to deal with the needs of their employees.

Both sides in this debate appear to be loading up for a battle.  Just a few weeks left to see who prevails in this legislative tussle.

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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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We've had an illness in the family recently and it reminded me of a topic that most employers (and I would dare say attorneys) are probably unfamiliar with in Connecticut.  Specifically, Connecticut's FMLA laws allow an employee to use sick days not simply for themselves, but to care for a family member in certain circumstances.  The law also allows for the use of sick days for the birth or adoption of a child.

This is unique to Connecticut -- no comparable federal law exists -- but this law is so underpublicized or misunderstood that I would guess that many employers simply don't follow it.  After all, sick days are normally viewed as days to take when the employee is sick, not for someone else.  This provision is also fairly recent (having passed just a few years ago) so that may add to the misunderstanding.

So where is this provision found (or buried, depending on your perspective)?  Conn. Gen. Stat. Sec. 31-51pp(c)(1). That section reads as follows:

(c) (1) It shall be a violation of sections 31-51kk to 31-51qq, inclusive, for any employer to deny an employee the right to use up to two weeks of accumulated sick leave ... to attend to a serious health condition of a son or daughter, spouse or parent of the employee, or for the birth or adoption of a son or daughter of the employee. For purposes of this subsection, "sick leave" means an absence from work for which compensation is provided through an employer's bona fide written policy providing compensation for loss of wages occasioned by illness, but does not include absences from work for which compensation is provided through an employer's plan, including, but not limited to, a short or long-term disability plan, whether or not such plan is self-insured.

So, a few key points arise from this section:

• The employee may take up to two weeks paid sick leave -- if they have accumulated it.  If the employees don't have the time to begin with, the employer is under no obligation to give the paid sick leave.
• The sick leave is not applicable to take care of family members with ordinary illnesses such as colds, etc. Rather, it is only for a "serious health condition" as defined by the FMLA. 
  
• The employees still need to abide by the other requirements of FMLA for such leave, including providing documentation that the family member does indeed have a serious health condition.
• If the employer does not have a written policy of sick days but only, for example, gives employees vacation days, then this provision would appear not to apply.  However, if the policy states that vacation days can be used for an employee's illness, then the employer is open to an argument that this provision may apply.
• The sick leave can also be taken for the birth or adoption of a child.
• Although Sec. 31-51pp(c)(2) doesn't implicitly state this, this provision is related to the Connecticut FMLA. Thus, if the employee does not qualify for FMLA in the first place, this provision would not appear to apply.

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