So in a post earlier on Friday, I recapped most of the employment law legislation that passed — except one. That bill, Senate Bill 446, was titled “AN ACT CONCERNING THE DEFINITION OF THE TERM “DOMESTIC WORKER”.
Innocuous enough, right?
But as it turns out, that bill was used as a cover to pass through significant changes to the CHRO process.
You will see that many of the changes are ones that I had tipped you all on earlier this year. Then back in April, we were told that the bill was “mostly dead”.
But like the Princess Bride, “Miracle Max” worked some magic and the bill came back from the dead during the session’s last week.
And there are so many changes that a separate blog post seemed like the best way to get through it all.
So let’s get to it, shall we?
Overall, the OLR summary of the bill recaps four main areas of change to the CHRO. It:
- shortens certain time frames for CHRO’s processing of complaints;
- allows the respondent (i.e., the alleged wrongdoer) to elect to participate in pre-answer conciliation;
- prohibits the same person from being assigned to conduct the mandatory mediation conference and investigate the complaint;
- transfers certain responsibilities from the CHRO executive director to the CHRO legal counsel.
But it also makes a significant change to the definition of who is an employee:
The bill also brings domestic workers who work for employers with at least three employees under the employment-related anti-discrimination laws administered by CHRO. Among other things, this provides them with (1) protections against employment-related discrimination based on their race, color, religion, age, sex, gender identity, marital status, national origin, ancestry, and mental or physical disability; (2) a right to a reasonable leave of absence for a disability resulting from a pregnancy and other pregnancy-related protections; and (3) protections against sexual harassment. By law, employees covered under the CHRO statutes can enforce their rights by filing a complaint with the commission.
If signed by the governor, the CHRO provisions will go into effect October 1, 2015, while the provisions on domestic workers will become effective January 1, 2016.
In more detail, the bill makes several changes to the CHRO process.
Responding to the Complaint
- The CHRO will now have 15 days (instead of 20) after a complaint is filed to provide the respondent (typically the employer) with a copy of the complaint and notice about its procedural rights.
- The respondent, upon receipt, will allow an employer to enter into a new “pre-answer conciliation” by making such a request within 10 days of receiving this complaint. This will, in essence, stay the obligation to answer the complaint.
- Upon such a request, the CHRO will be required to conduct a pre-answer conciliation within 30 days after receiving the respondent’s request.
- If conciliation is unsuccessful, the respondent will have 30 days to respond to the complaint — subject to a 15 day extension of time (the same as it has presently). Note, this procedure applies to employment discrimination complaints, not housing discrimination.
- One other change: a complaint sent by first class mail will now be considered “received” two days after it was mailed, unless the respondent can prove otherwise.
Changes to “Merit” Assessment Review
The next set of changes involve the “Merit Assessment” review which happens after the employer files its answer. Currently, the CHRO has 90 days to conduct a review.
Under the bill, the CHRO will now have 60 days to conduct this review.
And Merit Assessment Review is no longer. Now it will be called “Case Assessment Review”.
Another changes is that the CHRO will now be requested to issue a release of jurisdiction after a case is dismissed after the case assessment review.
(Presently, if a case is dismissed, the complainant has 15 days to request a release or CHRO legal counsel will conduct a legal review of the case. That procedure is no more.)
Mandatory Mediation Gets More Neutral
As I’ve talked about before, all complaints retained for investigation first go through mandatory mediation. The bill makes several changes to this.
First, it allows, but doesn’t require mediation of there was already a pre-answer conciliation conference.
The second change is one that I’ve asked for before. It now makes sure that the investigator assigned to the case is NOT the same person who is in charge of mediation. This allows both sides to be more candid in discussions regarding the case.
In doing so, the bill eliminates the option to hold the mediation on the same date as the fact-finding conference.
Finally the bill now gets rid of the option that a party had to request additional mediation conferences if the first one failed.
Early Legal Invention Changes
Under existing law, a party can request early legal intervention. The bill now makes it plain that such a request is to occur after the mediation conference.
The bill also states that CHRO legal counsel — not the Executive Director — will now determine whether the case should proceed or be released from CHRO jurisdiction. (It will be interesting to see if that change moves the needle on the current caseload.)
(The bill makes a minor change to the assignment of the investigator that isn’t meaningful for employers.)
Changes to the Requests for Reconsideration
As noted earlier, several of the changes give CHRO legal counsel more authority. Another area of change is that the bill gives CHRO legal counsel “authority to grant or reject a complainant’s request for reconsideration if (1) there was a finding of no reasonable cause that discrimination occurred or (2) the complaint was dismissed for other specified reasons”, as summarized by OLR.
One subtle change is that the bill allows the investigator to review the case by “any lawful means”. That is broader than the language presently. It then specifies that in doing so, the CHRO can issue subpoenas requiring the production of records and other documents. That process has been little used in the past. Will that change? We will have to wait and see.
But the bill allows the use of subpoenas to compel attendance of witnesses. That change could be significant has employers often try to reduce the numbers of people needed at fact-finding conferences and bring the witnesses with them voluntarily. Will the subpoena change that?
It’ll also be interesting to see if the CHRO will make fact-finding conferences more “optional” and try to resolve complaints with witness interviews instead.
Dismissals of Complaints
The bill revises the current law and adds a new section to make it clearer the situations where the CHRO can dismiss a complaint for the Complainants failures to appear or participate in the investigation. Specifically,
The executive director or the executive director’s designee may enter an order of dismissal against a complainant who (1) after notice and without good cause, fails to attend a fact-finding conference; (2) after notice and without good cause, fails to attend a mandatory mediation conference; or (3) refuses to accept an offer of settlement where the respondent has eliminated the discriminatory practice complained of, taken steps to prevent a like occurrence in the future and offered full relief to the complainant.“
So, lots to ponder and think about for now. It shouldn’t truly change how employers deal with employees on a day to day level, but it could impact how cases are processed at the CHRO. For that, time will tell.