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

The focus for this term of the Connecticut General Assembly for employers and employees has been on the paid sick leave bill (still no action in the House as of May 3rd).

However, employers who have employees working on public works projects and manual labor on state or municipal building construction or repair contracts need to be aware of a bill that cleared both the Senate and House very early today (H.B. 5537).  The bill is expected to be signed into law shortly, will become effective January 1, 2009.  The vote tally in the Senate is available here.

Under current law, some of these employees must prove that they have completed a 10-hour construction safety and health course that meets federal OSHA Training Institute Standards. The new bill expands this training and expands the people who must receive training. 

The Office of Legislative Research has fairly detailed report available here:

First, it expands the construction safety training requirement to any public works project, which includes sewage and water treatment plants, site work, road and bridge work, parking lots, drainage systems, and other public projects.

Second, instead of applying the training requirement to all projects of $ 100,000 or more, the bill applies the existing prevailing wage project thresholds to the training requirement. This means the requirement kicks in for (1) repair and renovation projects of $ 100,000 or more and (2) new construction projects of $ 400,000 or more.

Furthermore, it removes the requirement that the proof of the training be sent to the labor commissioner. Presumably, the proof will be sent to the contracting agency paying for the prevailing wage project. ...

The bill also creates training requirement exceptions for employees of public service companies and commercial vehicle drivers who either pick up at or deliver cargo to public work projects.

It requires the labor commissioner to adopt implementing regulations by January 1, 2009. By law, regulations cannot take effect before the effective date of the act authorizing them.

A few notable items:

• The employees who must receive the training (which, under current law, is any employee "performing manual labor") is greater under the bill.  The bill states that a mechanic, laborer, or worker must complete the safety training course.
  
• Notably, according to the OLR, the safety training requirements "do not apply to employees of public service companies, which are defined in statute to include electric, electric distribution, gas, telephone, telegraph, pipeline, sewage, and water companies; cable franchise holders; and railroad companies."

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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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