So a few months ago, I got a call from a CTDOL employee asking if I knew about a certain bill that had passed the legislature. I was still reviewing the bills but decided to take a deeper look.
As it turned out, a deal had been struck to insert language in the last few hours into an otherwise procedural bill that gave restaurants some needed protection from very costly wage & hour lawsuits that have been filed. And I posted about it.
I reached out to a few people before clicking publish but was told to go ahead — nothing to worry about or “see”.
Except, of course, there was plenty to see because this was a bill that no one was supposed to see before it was signed by the Governor.
I later discovered that the Governor’s office had not been involved in the deal and my blog post was news to the them. I even got a call from another attorney representing a restaurant who wanted me to take my blog post down. (Which is, of course, kinda crazy since it was about a bill that had already PASSED the General Assembly. Unanimously. Even if only a select few knew what was actually in it.)
The rest, as it is often said, is history. The Governor vetoed the bill. The legislature didn’t have the votes to override but pledged to work out things in a special session. That hasn’t happened yet.
The Governor recently outlined a new proposal being floated as a “middle ground” but it seems that all the stakeholders have yet to agree. [Though, just after publishing this, a hearing on a draft bill is set for Thursday, October 10, 2019.]
The parameters of one possible deal is this: Eliminate the double damages employees can recover if an employer can show that it acted in good faith, but allow employees to recover attorneys’ fees.
Having had an apparent hand in creating this mess, let me suggest that legislators take a page from the practical approach by the Connecticut Department of Labor.
Employers that are investigated by the Connecticut Department of Labor are often subject to punishment that is far less severe than if they are sued by an employee. If investigated, the CTDOL will often resolve matters by allowing employers to pay backpay plus, perhaps, some interest and modest penalties. But double damages and attorneys’ fees are not sought in most cases. (If the CTDOL has to go to court, though, watch out.)
So, how about this for a modest proposal: Give employers, who have relied on the CTDOL advice in the past, a better opportunity to make things right.
How? Offer a limited amnesty program.
This isn’t actually as crazy as it might initially sound. There’s even precedent for this – the federal DOL rolled out an amnesty program for misclassification of workers in 2018 to mixed success; it didn’t work entirely because a federal disclosure could still subject the employer to state law violations. A Connecticut amnesty program wouldn’t have the same issue because federal law seems to permit what restaurants are otherwise doing.
What might a state amnesty look like? Give employers one year to self-disclose to the CTDOL any failure to pay employees minimum wage for non-service work as a good faith defense. The CTDOL will have to accept the disclosure but once it does so, the employer could be forced to pay full back pay, plus — perhaps — interest and a modest penalty to get some form of amnesty, but this would mirror what the CTDOL does now for its investigations.
In exchange, the employer could not be sued by an employee just to recover attorneys’ fees and no double damages too.
This might not solve the issue of what to do with pending lawsuits, but at least it would give other restaurants an opportunity to get into compliance without a worry that an expensive lawsuit would follow.
And employees would obviously benefit too.
Despite the headaches that have developed from this whole process, hopefully all sides will see this for what it should be — an opportunity for a larger deal that helps restaurants and ensures the laws are used as a shield to protect employees, not a sword to punish employers.