If you’re a Connecticut employer, new requirements regarding training and posting — as well as changes to the underlying anti-discrimination law — should be a must-read.
On Tuesday, June 4, 2019, the General Assembly passed a series of revisions to Senate Bill 3, which itself passed over the weekend. Together, these series of changes (S.B. 1111 and S.B. 3) will impact employers of all sizes and cases at the CHRO.
In essence, you had a bill that was amended after it already passed. Rather than get into what was in the original bill vs. final bill, I thought it might be helpful just to recap what is in the final version of the bills, as combined.
Governor Lamont is expected to sign these bills in the next week or so.
To be clear, this recap should not be a substitute for legal advice and this recap only addresses some of the most relevant private employer provisions; there’s some provisions in there regarding EEO officers for state agencies that are beyond the scope of this recap. Credit should also be given to the state’s OLR Bill Analysis as well.
Currently, employers with at least 50 employees are required to give their supervisors two hours of training on state and federal sexual harassment laws and remedies.
The new law will require employers of all sizes to give training to supervisors by October 1, 2020 (or within six months of their assumption of supervisory duties, after that time).
For employers with 3 or more employees, the training must also be given to all other employees also by October 1, 2020 (or within six months of hire, after that time.)
In both instances, the training must be updated every ten years by employers, though it doesn’t seem to be the same two hours — just a “supplemental” update. Also, any employee (including supervisor) trained since October 1, 2018 is exempt from being “retrained” a second time.
The bill requires CHRO to develop a free online training video or other interactive method. If that’s done on time, employers will have to give the training within six months of an employee’s start date.
If employers don’t provide training, it will now be a “discriminatory practice” that may allow employees to bring an action in the CHRO (or court). The fine for failing to provide training will be $750.
NOTICES TO EMPLOYEES
The new law (piggybacking on existing law which requires a notice be posted regarding sexual harassment) will require employers of three or more employees to send a copy of this to employees via e-mail within 3 months of hire — so long as the employee has an e-mail address (company-provided or personal). The subject line should be titled “Sexual Harassment Policy” or words very similar to that effect. If the employer doesn’t give employees an e-mail address, the information must be included on its website. If the CHRO develops something on their own, the employer can just provide this link.
The fine for failing to do so will be $750 as well.
CORRECTIVE ACTION IN SEXUAL HARASSMENT CLAIMS
When an employer takes prompt remedial action in response to a claim of sexual harassment, the new law requires that the employer can only modify the target’s condition of employment upon agreement in writing from the employee. That means, transferring an employee to a different department can only be done upon written consent.
BUT, even if the employer did not obtain the written consent, the bill still allows the CHRO to find that the employer’s corrective action was reasonable and not “to the detriment” to the complainant, based on the evidence.
TIMEFRAME FOR FILING DISCRIMINATION AND HARASSMENT CLAIMS
Current law requires employees to file state discrimination and harassment claims with the CHRO within 180 days of the adverse employment action. The new law will expand that to 300 days. While that might seem odd, it’s actually consistent with federal law because the EEOC in states like Connecticut has previously permitted complaints under federal law to be filed within 300 days. The new deadline may result in more claims staying at the CHRO.
BUT the 300-day deadline only applies to allegations of discrimination that allegedly occur on or after October 1, 2019.
REMEDIES AVAILABLE AT CHRO PUBLIC HEARING
Currently, a CHRO Human Rights Referee may only order reinstatement and back pay as forms of relief.
The new law will allow (though does not mandate) that a hearing officer determine the “amount of damages suffered by the complainant, including the actual costs incurred by the complainant” as well as “reasonable attorney’s fees and costs”. Back pay can go back up to two years before a complaint was filed as well.
While unemployment compensation or welfare assistance received by the employee shall be deducted from back pay, the “amount of deduction” shall be paid back by the employer to the CHRO.
End result: Much greater damages are now available at the CHRO Public Hearing stage — even though the Connecticut Supreme Court previously disallowed it.
PUNITIVE DAMAGES IN COURT
The Connecticut Supreme Court previously ruled that current law does not authorize courts to award punitive damages in cases of employment discrimination. The new law would expressly permit this.
MAGISTRATES AT PUBLIC HEARING
Currently, only human rights referees can preside over CHRO hearings. The bill creates a process where magistrates — who exist in the judicial system by appointment of the Chief Court Administrator — can be appointed. Magistrates can only be appointed when there are more than 100 CHRO Complaints pending for public hearings. Last fiscal year, 53 cases were certified to public hearing — joining the cases already pending.
CHRO ALLOWED TO ENTER INTO BUSINESSES FOR INSPECTION
The CHRO is now expressly authorized to enter an employer’s business during business hours to ensure compliance with the posting requirements and to review all records, policies, procedures and training materials maintained by the employer.
BUT, the Executive Director’s authority is limited to only situations where the director “reasonably believes” the employer is in violation of certain legal provisions or it is during the 12 month period following the date on which any complaint has been filed against an employer. Also, if the place of business is a residential home, the homeowner must first give express permission. (Seemingly, a homeowner can reject such a request for any reason.)
Whether these visits will occur or not, may depend on the fiscal resources available to the CHRO.
CHRO ACTIONS IN THE “PUBLIC INTEREST”
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.
When the CHRO has established a claim by “clear and convincing evidence”, a court is required to award the CHRO its fees and costs and award a civil penalty of up to $10,000.
DISCOVERY AT THE CHRO PUBLIC HEARING
A new provision states that parties must have the opportunity to “inspect and copy relevant and material records, papers and documents” of the other party and allows the presiding officer to order a production.
If a party does not comply, the hearing officer may issue non-monetary orders including: (1) finding that the matters that are the subject of the order are established in accordance with the claim of the party requesting such order, (2) prohibiting the party who has failed to comply with such order from introducing designated matters into evidence, (3) limiting the participation of the noncomplying party with regard to issues or facts relating to the order, and (4) drawing an adverse inference against the noncomplying party.
Taken together, this series of revisions to the state’s anti-discrimination laws will impact every employer in the state with the training and notice requirements. Moreover, changes to the CHRO Public Hearing process will no doubt result in more claims being potentially kept in the CHRO, rather than withdrawn to court.
Most of these changes go into effect October 1, 2019, so employers have the summer to play catch up.