Listen to this post

It’s March and things are heating up at the General Assembly so let’s get right at the bills that employers should be aware of.

Senate Bill 4 — which is deemed to be a Senate caucus priority bill, and thus something employers should pay attention to — redefines discrimination in a way that has never been done before and attacks non-disclosure agreements in doing so. A public hearing is scheduled for March 20th.

The bill would create a new cause of action in court for the following “discriminatory practice”

For an employer, by the employer or the employer’s agent to: (A) Refuse to hire or employ, discriminate in compensation or in terms, conditions or privileges of employment, or bar or discharge from employment, any employee or independent contractor because such person disclosed conduct the person reasonably believes to be a discriminatory employment practice, or because such person disparaged the employer for engaging in conduct the person reasonably believes to be a discriminatory employment practice, or (B) require or request a prospective, current or former employee or independent contractor to enter into an agreement containing a provision that is void pursuant to subsection (e) of this section, or for an employer to attempt to enforce such provision. An employer who violates the provisions of this subdivision shall be liable to an employee or independent contractor for actual or statutory damages of ten thousand dollars,
whichever is more, as well as other remedies provided under law. The provisions of this subdivision and subsection (e) of this section shall be liberally construed so as to effectuate their remedial purpose and such provisions shall extend to an intern, who is paid or unpaid, and any volunteer engaged in service to an employer in this state in the business of the employer.

And for good measure, the bill adds section (e) which states as follows:

Any provision in an agreement between an employer and a prospective, current or former employee or independent contractor shall be void as against public policy if such provision prohibits disparagement or disclosure relating to conduct the employee or independent contractor reasonably believes to be a discriminatory employment practice.

There’s a lot to unpack here.

Let’s start at the end first. The bill would bar “any provision” that would prohibit “disparagement or disclosure related to conduct” that the employee or independent contractor reasonably believes to be “a discriminatory employment practice”. Never mind whether there’s actually discrimination that has occurred; so long as the employee “reasonably believes” it, then any provision that bars the employee from talking about it is prohibited.

As a practical matter, this will continue to have a chilling effect on settlement agreements (and even separation agreements) between an employee and employer. Typically, employers are willing to proffer some money for a settlement; in exchange, it expects the employee to drop all claims and keep quiet about the settlement.

But employees and employers would be barred from including it, even if both sides agreed to it.

The bill also does not define how a court is supposed to determine if the employee “reasonably believes” that discrimination occurred. What happens if a claim is dismissed; can the employee still “reasonably believe” that discrimination occurred? Apparently so since there’s no definition and no requirement that the employee actually prove such discrimination occurred. And it would also prohibit employers from punishing employees who make unfounded harassment claims so long as the employee “reasonably believes” that harassment occurred.

The bill also goes much further than anything we’ve seen by making it a discriminatory conduct for an employer to require or even request that an employee agree to such a provision. An employer that violates this would be subject to a minimum statutory remedy of $10,000 per violation — no matter if the employee has actually be damaged by such a request. This would be a dramatic departure from all other types of discrimination claims which require proof of damages.

Beyond that, the bill would also prohibit employers from refusing to hire applicants who filed lawsuits against their former employers or those who disparaged their former employers, so long as the employee “reasonably believes” in such allegations against their former employers.

This would again be a monumental shift in employment law in the state. Currently, employers can check dockets to see if applicants have brought suit against their former employers. They may choose to avoid hiring such applicants because, in some instances at least, they think the claims are dubious or specious. But this bill would prohibit employers from considering that factor merely because the applicant raised a claim of discrimination (whether publicly or privately).

And again, employers would be subject to a minimum $10,000 in statutory damages for any violation.

The bill would also ban including non-disparagement provisions into any employment agreement as well.

There are unrelated provisions in this bill that may merit consideration. For example, Section 1 would increase funding for the Right to Counsel Program for Temporary Restraining Orders (RTC-TRO) in domestic violence cases. That can and should be considered separately.

But these employment law provisions go far beyond that initial topic and would represent among the most expansive laws in the country attacking non-disclosure agreements and protecting employees who have brought discrimination claims, no matter their merit.

There’s also a similar bill (Senate Bill 361) that has some provisions but it appears for now that Senate Bill 4 will be the primary vehicle for pursuing these claims.

Employers who wish to submit testimony at the public hearing can do so. The Connecticut Business and Industry Association has also indicated some concern for the bill so stay tuned for more.