As I said before, the notion that this might be a quiet year for employment law legislation at the Connecticut General Assembly has long since left the train station.
Indeed, we’ve appear to be swinging completely in the opposite direction. Anything and everything appears up discussion and possible passage this year — including items that really stood no chance in prior years.
One such bill, which appeared this week on the “GO” list (meaning its ready for considering by both houses) is House Bill 6850, titled “An Act on Pay Equity and Fairness”. Of course, you won’t find those words in the bill itself which is odd. There is nothing about pay equity in the bill; indeed, it is much much broader than that.
It stands in contrast to, say, the Lilly Ledbetter Fair Pay Act, which tried to tackle gender discrimination in pay directly.
This bill would make it illegal for employers to do three things. If passed, no employer (no matter how big or small) could:
- Prohibit an employee from disclosing, inquiring about or discussing the amount of his or her wages or the wages of another employee;
- Require an employee to sign a waiver or other document that purports to deny the employee his or her right to disclose, inquire 1about or discuss the amount of his or her wages or the wages of another employee; or
- Discharge, discipline, discriminate against, retaliate against or otherwise penalize any employee who discloses, inquires about or discusses the amount of his or her wages or the wages of another employee.
You might be wondering: Isn’t this first bill duplicative of federal law? And the answer is yes, and then it goes beyond it. Federal labor law (the National Labor Relations Act) already protects two or more employees discussing improving their pay as a “protected concerted activity”. It’s been on the books for nearly 80 years. So, as noted in an NPR article:
Under a nearly 80-year-old federal labor law, employees already can talk about their salaries at work, and employers are generally prohibited from imposing “pay secrecy” policies, whether or not they do business with the federal government.
This provision goes beyond that by making it improper for an employer to prohibit an employee from even disclosing another employee’s pay.
Under the second provision, an employee could not waive the right now granted in the first provision. And the third provision would make it illegal for employers to do anything about it.
Strangely, the law then says that an employer isn’t required to disclose what each employee makes. Which is all well and good, but nothing prohibits an employee from then accessing the employer’s pay information for his or her own benefit.
Put another way, suppose Alfred is in charge of payroll for Company X. Alfred downloads the pay information of everyone in the company into a spreadsheet. He then posts it on Facebook.
Is the employer powerless to take any action? Look at the third provision which would prohibit an employer from disciplining an employee who “discloses….the wages of another employee”. It would seem so.
Or suppose an HR employee, while helping defend a company from a wage lawsuit, discloses the results from a privileged investigation on pay to the other side. This bill suggests that the employee would be protected because he is just “disclosing” the pay information of another employee — even if it is otherwise in a privileged report.
And if that isn’t enough, if the employer did fire these employees, it could then be sued in Superior Court for that. Any violation of the lawsuit is subject to a lawsuit, not merely a fine by the Connecticut Department of Labor.
These issues get at another problem: this bill creates a private cause of action in court — and ostensibly class actions — for any violation. Thus, any violation of the statute — such as implementing a policy — would lead to class-action lawsuit against the company for its company-wide practice.
No doubt this will be a field day for employment lawyers in the state. Even the threat of litigation now is an expensive proposition for employers.
One argument from the proponents is that other states have passed “similar” laws. And while there are some other states that have passed so called “pay secrecy laws” all of them appear to differ significantly from this proposal.
California, for example, allows an employee to discuss or disclose his or her own wages and doesn’t permit disclosure of another employee’s wages.
Minnesota goes a little further but only allows disclosure of another employee’s wages when that other employee has disclosed it voluntarily. And it specifically bars an employee from disclosing proprietary or privileged information.
Connecticut’s proposal has none that nuance. And in the rush to pass bills this year, this is yet another proposal that employers should track closely.