The so-called “Time’s Up” bill that would make major changes to the sexual harassment and discrimination laws in the state — including adding new training requirements — went through final passage at the House on Saturday.  But don’t start changing your policies just yet.

Various news outlets are reporting that a “fix” bill — that is, a bill that will make changes to the original bill — is set to be released today (Monday).  The backers are trying to find another bill — a “vehicle” — where these fixes can be added on to.

What’s going to be changed? As of early Monday morning, it’s still unclear. 

However, if you want a recap of what’s already passed, see my prior post here.

Regardless, the bill that has already passed will require employers to give all employees at least two hours of sexual harassment prevention training; the CHRO will be tasked with coming up with a video program that employers will be able to make available for free to reduce the burden on employers.

In other legislative developments, Governor Lamont signed a bill that will make changes to the state’s minimum wage laws. Those changes start to happen later this year — forcing companies to make changes on the fly to their budget plans.

In addition, as I posted over the weekend, Paid FMLA passed as well and awaits the Governor’s signature. Although some minor changes are expected, none of the additional amendments are expected to change the underlying FMLA requirements that I recapped on Saturday.

The legislative session is winding down this week. Additional employment law-related bills are still floating out there. So stay tuned.

 

Late Friday, the House passed the Paid Family and Medical Leave Act bill that passed the Senate earlier in May.  Governor Lamont has indicated that he will sign the measure. As such, big changes are coming, though some of the biggest changes are are still a few years off.

You can review the bill here; and you can review the bill analysis here.  

A good portion of the (very long) bill concerns the set up and running of a new family leave insurance program that will provide wage replacement for employees who take leave.   I’m not going to recap that.

Similarly, there’s a lot on the benefit programs that can be established by employers and the state.  Generally, employees who take FMLA leave will get some type of wage replacement for up to 12 weeks (with two additional weeks of benefits for a serious health condition that results in incapacitation during pregnancy.)  Employers can also provide benefits through a private plan, which must provide their employees with at least the same level of benefits, under the same conditions and employee costs, as the new insurance program.

But for employers that have been running FMLA leaves in Connecticut (or, for that matter, NOT running FMLA leaves because it didn’t apply to them), the biggest set of changes is yet to come.

Starting January 1, 2022, FMLA will now apply to all private sector employers with at least one employee; currently, only employers with 75 or more employees are covered (though federal FMLA applies to employers with 50 or more employees).

Here are just some of the other major changes:

  • Currently, employees need at least 12 months and 1000 work hours to be eligible. Under the new measure, employees who have just three months of employment with no minimum requirement for hours worked will be eligible.
  • Currently, employees could receive a maximum of 16 weeks of leave over 24 months. Under the new bill, employees are eligible for 12 weeks of a leave over a 12 month period with an additional two weeks due to a serious health condition that results in incapacitation during pregnancy.
  • Currently, employers can require an employee taking leave to use employer-provided paid leave; the bill allows an employees to maintain at least two weeks of paid leave.
  • Currently, employees can only take FMLA leave to care for a serious health condition of a spouse, child, or parent. The new bill expands the family members to include the employee’s siblings, parent-in-laws, grandparents, grandchildren,  or “an individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships”.  The Department of Labor will be charged with coming up with regulations on that aspect.

Employers have some time to incorporate these provisions into their workplace. But there’s little doubt that this bill is going to be a brand new world for employers who have never had to manage FMLA claims.  Asking for health care certifications — and more — is going to be a monumental challenge for small employers.  While there’s over 30 months to get ready, my early guess is that there will still be loads of employers who are unprepared for this.

Between now and then, of course, we’ll have lots to share.  For now, employers should just be aware — Paid FMLA leave, and changes to FMLA leave, are coming.

 

 

 

Senate Bill 3, titled “Combatting Sexual Assault and Sexual Harassment” has been modified since first introduced and passed the Senate late last week.  Despite the title, the bill would impact every discrimination case filed in the state and would make significant changes to the sexual harassment prevention training requirements.

It is awaiting a vote in the House and now’s the time for employers to see the major changes being proposed.

Let’s wait to see what final passage looks like but as it stands right now, here are the key changes:

  • The bill expands sexual harassment prevention training to cover all employers who have supervisors and non-supervisors for employers with 3 or more employees.  The CHRO is to develop free, online training that employers can use.  Training must be updated every ten years by employers.
  • Employers will be required to send a copy of a Sexual Harassment Policy via e-mail to its employees or post on its website if employees don’t have e-mail.
  • If employers do not comply, it will now be a “discriminatory practice” that would allow employees to sue employers for failing to comply.
  • When an employer is taking prompt remedial action in response to a claim of harassment, the employer can only modify the target’s condition of employment upon agreement in writing from the employee.
  • The bill would change the time that an individual has to file a complaint of discrimination with the CHRO from 180 days to 300 days.
  • The bill would allow a CHRO Hearing Officer to allow attorney’s fees and costs to be awarded and also seeming allow compensatory damages too.   While it doesn’t state it explicitly, it does state that a Hearing Office may “determine the amount of damages suffered by the complainant, including the actual costs incurred by the complainant, as a result of the discriminatory employment practice”.  This would be a major change from existing practice.  
  • The bill would allow courts to award punitive damages in discrimination cases; previously the Connecticut Supreme Court did not allow it.  
  • The bill would also allow the CHRO to assign legal counsel to bring a legal action in court instead of just an administrative hearing when doing so would be in the public interest, and where all the parties agree.

As you can see from the above, the bill would make changes far beyond just sexual harassment cases and could fundamentally shift even more discrimination cases to state courts or CHRO public hearings (where we have already seen an increase).

Employers should watch this bill closely for further developments.

Earlier this morning (Friday, May 17th), the state Senate approved of a measure that will increase the state’s minimum wage to $15 per hour by 2023.

House Bill 5004 (as amended) can be downloaded here.

The bill had previously passed the House and now moves to the Governor’s office where he is expected to sign it.

There are several key components to the bill that are important for employers.

YEARLY INCREASES TO MINIMUM WAGE

The bill increases the minimum wage from the current level of $10.10 per hour as follows:

  • $11.00 on October 1, 2019
  • $12.00 on September 1, 2020
  • $13.00 on August 1, 2021
  • $14.00 on July 1, 2022
  • $15.00 on June 1, 2023

But perhaps even more importantly, beginning January 1, 2024, it indexes future annual minimum wage changes to the federal employment cost index for “wages and salaries for all civilian workers”.  (As of the March 2019 ECI, the compensation costs increased 2.8 percent, by way of example)

TRAINING WAGES

Starting October 1, 2019, the bill also changes the “training wage”.  It eliminates the training wage exceptions for “learners and beginners” and limits the training wage to only those under age 18 (and excluding emancipated minors too).  The training wage has to be the greater of $10.10 per hour or 85 percent of the minimum wage.  It also only allows for the training wage to be paid in the first 90 days of employment, rather than the first 200 hours.

In the following year (October 1, 2020), the bill bars employers from taking any action to displace an employee over 18 to hire people at the training wage.

TIP CREDIT

The bill freezes the employer’s share of the minimum wage requirement for hotel and restaurant staff who customarily receive tips.  The current levels will thus remain the same — $6.38 for hotel and restaurant staff, and $8.23 for bartenders.  In other words, so long as the employees’ tips make up the difference between the increasing minimum wage and the tip credit, employers can still rely on those tips to “pay” the employees.

POTENTIAL FOR FREEZES

Lastly, the bill does allow the Labor Commissioner to recommend that minimum wage increases be suspended after two consecutive quarters of negative growth to the state’s GDP.

CONCLUSIONS

Minimum wages will become a reality for employers in Connecticut.  Employers should review all employees at or near those levels to ensure compliance. With the first change coming later this year, employers will also have to reconfigure their budgets accordingly.

Continuing my never-ending series of short interviews with interesting people related to the employment law space, I recently sat down for breakfast with Eileen Springer, the CEO of Central Park Executive Coaching. After 25+ years in Human Resources, Eileen is now coaching C-suite executives and senior leaders in corporations and services firms, as well as early-in-career associates. Her Coaching assignments include on-boarding coaching, transition coaching, performance coaching and leadership coaching. 

Eileen was most recently the Senior Vice President of Talent Acquisition and Development at Compass Group, NA; the sixth largest employer in the world. And prior to that, she worked for Pitney Bowes and Citibank, where she held a variety of roles as Vice President of Human Resources.  She knows the business-world inside and out and I hope you enjoy reading the interview as much as I enjoyed the conversation.  My sincere thanks to Eileen for her time and wisdom.  

1.      So Eileen – what IS Executive Coaching nowadays?

Simply stated, executive coaching is coaching people to arrive at their own solutions so that they are committed to the outcome.  Executive coaches are contracted as needed to facilitate the success of employees who are preparing for their next role, who are part of a high-potential development program, who require performance coaching or need support as part of their on-boarding to a new role.  The needs vary, but it is most commonly an investment reserved for highly valued talent.

In my practice, I am seeing an increase in small to mid-size companies who partner with me to coach their newly promoted managers, who are managing people for the first time.  With the scarcity of talent in the workforce these days, high-growth companies cannot afford to wait to promote the best talent.  They are promoting the best talent to management quickly, and providing the support of a coach to ensure success with their leadership development.

2.      I realize companies may find utility in an executive coach. What about individuals? What are situations when an individual ought to consider one?

Career and executive coaching are becoming much more prevalent as an individual investment.  Professionals are turning to coaching in higher and higher numbers.   Career advancement often requires having a plan, especially at the more senior levels.  Often a professional will face a pivotal moment in their career when they realize that what they did to get to where they are, is not what is required to get to the next level.  It’s at that juncture when I typically receive a call.

Executives are operating in an increasingly complex environment, where they may rely heavily on experts in finance, legal, marketing, technology, etc., and need to balance many priorities in short periods of time.  Managing teams, boards, meeting deadlines and staying competitive can lead to stress and feelings of loss of control.  Pressures of corporate life, regardless of level, can impact people differently.  Some professionals thrive in fast-pace challenging environments, while others find it unsatisfying.  These are examples of when individuals look for executive coaches – they may want to reach important goals and advance, or they may want less stress and better balance.  Whatever the reason, when individuals are motivated to work toward change, they find support and a thought partner with a coach who is focused on their individual agenda.

Continue Reading Five Questions With … Central Park Executive Coaching CEO Eileen Springer

So like nearly all of America, my family saw Avengers: Endgame this weekend.

(Minor Spoiler Ahead!)

Of course, we laughed. We cried.  And it was definitely better than Cats.  

All the while thinking of the employment law issues that are just under the surface.

You can take the employment lawyer out of the office, but you can’t take the employment law out of an employment lawyer.  In fact, it was way back in 2012, that I first talked about the employment law issues with the Avengers.  (Seriously: If you don’t want to know ANYTHING, there’s a mild spoiler ahead but no major plot points are disclosed.)

So with that in mind, there were numerous employment issues that you might have missed in Avengers: Endgame.  Maybe you were under control of the Mind Stone by Loki.

Let’s start with an important issue: What Accommodations Do You Need to Provide to Professor Hulk?

Imagine having Bruce Banner on payroll as a professor at your university.

A brilliant — but unpredictable — genius, he has sometimes disappeared for days. He blames those days on his split personality and because you determined that his “personality disorder” was a disability, you’ve accommodated him. So far, so good.

Then one day, he says he’s going to have a “procedure” done. One that will combine his “personalities” — Banner and someone named “Hulk” — into one physical being.  He wants to be called Professor Hulk (as that character makes an appearance early on in Avengers: Endgame).  He says he’ll be hospitalized for a few days.

Is this a “serious health condition” requiring FMLA leave?

A serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care (defined as an overnight stay in a hospital, hospice or residential medical care facility; any overnight admission to such facilities is an automatic trigger for FMLA eligibility) or continuing treatment by a healthcare provider.

Either way, since you’re pretty sure that this would qualify you say sure – and grant him FMLA leave.   And then, he shows back up for work.

He’s now about 8 feet tall, green, and has the physical strength of, well, you’ve never seen anything like it.   He just wants to be treated as everyone else but he says he still might need some rest time during his teaching time for a bit to make sure things are “stable”.

What then?

It’s a bit more complicated than it might seem. (Actually, it seems really complicated, you say. But c’mon, this is the Marvel Cinematic Universe so pay attention.)

First off — does Professor Hulk (as he now requests you call him by) have a disability? A disability is defined as a physical or mental impairment that substantially limits a major life activity.  By all accounts, this new Professor Hulk has impairments that substantially increase a major life activity. His split personalities are gone.  In fact, he seems a bit superhero-ey to you.

Let’s go with maybe, maybe not. After all, you don’t want to make Professor Hulk angry.

But let’s just suppose he has a disability for the sake of argument, is the ability to take breaks a “reasonable” accommodation? Under some circumstances, for sure. AskJan is a helpful resource for employers and thankfully, some of the people who work on it weren’t “snapped” away by Thanos.  While not binding, AskJan advises:

Periodic rest breaks can allow an individual to move about, stretch, adjust their seating position, or modify how a task is completed. Breaks can be short in duration, depending on the individual’s needs. Time used for breaks can be taken from already provided break time, lunch, or made up so there is not an impact on productivity.

But something all gnaws at you. You recall something in the ADA referring to a “Direct Threat”.  You initially think – uh, doesn’t a “Hulk” figure represent a Direct Threat? How does that play into things?

The term ‘direct threat’ means a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”  The EEOC regulations spell out this a bit further:

“The determination that an individual poses a ‘‘direct threat’’ shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.”

Suffice to say that Professor Hulk is unprecedented and there are people who worry that he’s a bit unhinged.  But ultimately, he assures you that his “Hulk” personality has mellowed and that he is really the best of both worlds — smart AND strong. He says that instead of his personalities fighting, they are now living in harmony.  Based on the most current medical knowledge, who are you to disagree?  After all, just your hunch that this might not work out isn’t enough to invoke the Direct Threat rule.

You think about it further. Professor Hulk seems to be a rock star. He’s taking selfies with students and his job performance is consistent. He even gives out autographs at restaurants.

Bottom line: If he needs a few rest breaks — give it to him.

What other employment issues are out there in Avengers: Endgame?

Late on Tuesday (April 23, 2019) the CHRO released new Legal Enforcement Guidance on “Pregnancy, Childbirth, or Related Conditions at Work”. 

Or you might call it a “Bluepaper” instead – as a “one-pager” on the subject called it.

That one-pager was prepared by the Worker & Immigrant Rights Advocacy Clinic at Yale Law School’s Jerome N. Frank Legal Services Organization seemingly with the blessing and approval of the CHRO which also posted it to its website late Tuesday.

So is it a Bluepaper or Guidance? Well, it’s titled “Guidance” so let’s go with that.  Indeed, the CHRO’s guidance here follows similar guidance released on other laws by the Connecticut Department of Labor such as this one on Paid Sick Leave.

What are the highlights of the guidance?  In a lot of ways, the guidance mimics (as it should) the current law on the subject. It also mirrors the language already present in the posters released by the CHRO back in 2017.  For example:

  • Workers are entitled to reasonable accommodations for pregnancy, childbirth, and related conditions.
  • Workers are entitled to reasonable leaves of absence due to disability resulting from pregnancy.
  • Workers are entitled to reasonable accommodations and reasonable leaves of absences for any pregnancy-related condition or symptom.
  • Workers are entitled to reasonable accommodations for lactation needs.

The guidance also clarifies that workers are entitled to confidentiality and that an “employee may choose to keep any medical diagnosis
confidential. Likewise, an employer should not directly contact the employee’s doctor without first obtaining the employee’s permission.”

Along with my firm, I’ll continue to review the guidance and provide an updated post with any notable findings in the next few days as well.

Employers, however, that have been following the new laws on pregnancy discrimination (see my post) should be well on their way to full compliance.

Until then, Happy Reading.

Earlier this month, the EEOC released its statistics regarding charges for 2018.  I love looking at these because there are certain trends that always pop out. (You can see some prior years here and here.)

Here are five big takeaways that employers in Connecticut can learn from these numbers.

  • Charges Continue to Go Down — a Lot.  For the seventh year in a row, the number of charges processed by the EEOC continued to go down.  In 2018, the EEOC handled 76,418 charges, a 9.3 percent drop from 2017.  This is down substantially from the high water mark in 2011 of 99,947 and the lowest total in general since 2006.
  • But, Some Claims are Way Up.  Perhaps not surprisingly given the attention that continues to be paid to the #metoo movement, sexual harassment claims are up. In 2018, the EEOC received 7,609 sexual harassment charges — a 13.6 percent increase from 2017.
  • Sex Harassment Claims are Also More Costly.  The EEOC received $56.6M in monetary benefits from sexual harassment claims in 2018 — up from $46.3M the prior year.  But interestingly, the number of EEOC-negotiated settlements for such cases is down.  That’s an interesting point — but why?
  • Retaliation Claims Continue their Climb.  20 years ago, retaliation claims of all types represented just 21.7 percent of all charges filed. in 2018, they represented 51.6 perfect of all claims filed. That means over half of all claims filed contain a retaliation charge. I have long said that retaliation claims are far more difficult for employers to defend against — and the rise in the number of claims no doubt represents the success that employees have had in bringing such claims. Success follows success.
  • First-Filed EEOC Claims in Connecticut are Down.  In Connecticut, most claims are first brought to the state agency. But there are some attorneys — and some individuals — who like to file first at the EEOC.  In 2018, there were 214 such claims — down from 264 in 2017. Interestingly, retaliation claims make up just 37 percent of all of these filed charges — less than the national numbers.

Does this mean that there is less discrimination occurring? While it’s tempting to draw that conclusion, statistics on charges are always impacted by the unemployment rate. When it’s easier to find another job, people are less inclined to file charges.

If April Showers bring May…Oh never mind. In Connecticut, April might as well mean that the General Assembly is getting serious about the bills under consideration.  All the proposals that make headlines in February mean nothing until committees start to vote on the bills and the bills start getting the spotlight on them.

Usually by now, we start to see a significant fall off between aspirational goals and practical bills.

Not this year.

Right now, however, it feels like there is still so much in play.  Things are changing rapidly so it doesn’t make a lot of sense to look at each bill individually.  But beyond the Paid FMLA and the Minimum Wage bills that have gotten the most press, there are still several others that are worth following.

  • SHB 6913 would make massive changes to the state’s non-compete laws. The current version would limit non-competes to one year unless special circumstances would apply. Non-competes would also be unenforceable if the employer terminated the employment of the employee. And despite the fact that Connecticut is an at-will employment state, an employee could resign for “good cause” (which is undefined) and the non-compete would be unenforceable then as well.  It’s been favorably reported out of committee.  This is a bill to keep an eye on.  
  • Senate Bills 64 and 440 would restrict employers from being able to speak on certain political or religious matters, including during union organizing campaigns.  This bill has also been favorably reported out of committee and would likely be the subject of a court challenge, if passed. 
  • Senate Bill 358 would require employers to provide employees with a minimum of four hours off for each regular and special election held “to fill a vacancy in a state, district or municipal office.”  That is a remarkable amount of time off on certain days.  That bill has also been reported favorably out of committee.
  • Senate Bill 3 — reflecting legislative priorities — is also one to keep an eye on because it too has been has been reported out of committee.  The bill would mandate two hours of training on sexual harassment prevention to all employees who work at employers with 3 or more employees. The bill would also allow employers to have these employees watch a 2 hour training video online that is to be created by the CHRO.  The bill would also allow for punitive damages in cases of discrimination.

For more on these bills, you can follow the CBIA’s posts on the subject.  

Suffice to say — if you haven’t been paying attention yet to the legislative session, it’s not too late. Things are just getting interesting.  Who knows what May will really bring.

The Connecticut Appellate Court has an interesting case coming out officially early next week about an employer’s obligations to provide leave as a “reasonable accommodation”. You can download Barbabosa v. Board of Education here.

In it, the Court concludes that when attendance is an essential function of the job (as it will be for most jobs), an employee’s request for intermittent extended leave — that is, more days off — is not a reasonable accommodation under the state’s anti-discrimination laws.

The decision provides some much needed guidance to an area that has been increasingly litigated — namely whether a medical leave, above and beyond FMLA leave, is required as a reasonable accommodation under anti-discrimination laws. The court here finds that there are definite limits.

The facts of the case are pretty straightforward:

  • Plaintiff was a full-time one-on-one, and then classroom paraprofessional for a school system.
  • Throughout her employment, she had “long-standing and well documented issues with absenteeism and tardiness.”
  • By November 2012, a meeting was held to discuss her continued absences and the “negative impact” her attendance was having on students.  She was warned that further violations or unapproved absences could result in suspension.
  • By the end of 2013, she was given another verbal warning and another meeting was held about her absences.
  • In early January 2014, she filed a request for intermittent leave for the entire 2014 calendar year because of a serious health condition.  The request was denied because she had not met the hours requirement under the FMLA.
  • Eventually she was suspended for 30 days without pay in 2014 and yet still her employment was not terminated.
  • The Plaintiff filed a claim under state law alleging that she was discriminated against and suspended because of her disability and that her employer had failed to provide her with a reasonable accommodation. The lower court granted summary judgment to the employer.
  • On appeal, the Plaintiff argued that her generally positive performance reviews created an issue of fact as to whether she was “qualified” for her position. She also argued that her request for intermittent leave constituted a reasonable accommodation that did not eliminate the essential function of her job.
  • The Appellate Court rejects both arguments.

The court starts off by stating that both this court and other federal courts “have recognized that attendance at work is a necessary job function.”  And the court finds that there is no dispute that “Plaintiff failed to perform this essential function in the years leading up to her suspension. ”

The fact that she received generally positive performance reviews is of no concern to the court because the evaluations make repeated references to her attendance being an issue. Of the 13 reviews submitted by both parties, 10 contain a concern about her attendance or punctuality.

As to the request for intermittent leave, the court finds that because attendance is essential, it also shows that “plaintiff’s proposal for intermittent extended leave was not a reasonable accommodation, as a matter of law, because that proposal would eliminate the very essential job function it purports to address.”

The court continues: “Put another way, we fail to see how it is possible to perform the essential function of attending work through an accommodation that provides for even more absences from work”.

What are the takeaways from this case? Two things stand out.

First, the court was impressed by the patience showed by the employer and documentation provided at each step.  Don’t try to do shortcuts.

Second, employees who are continually absent will receive little protection from the courts — assuming employers can show that attendance is critical to the job. Make sure to highlight that in job descriptions if there is going to be some question about that.