January 1st is typically a time for new laws to kick in and 2019 is no exception.

For employers, the biggest change is one that I discussed way back in May with amendments to Connecticut’s Pay Equity law.

The new law prohibits employers from asking a job applicant his or her wage and salary history. But the prohibition does not apply in two situations:

  • if the prospective employee voluntarily discloses his or her wage and salary history, or;
  • to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

While salary may not be inquired, the law DOES allow an employer to ask about the other elements of a prospective employee’s compensation structure (e.g., stock options), but the employer may not ask about their value.

The bill has a two year statute of limitations. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.  (This bill amends Conn. Gen. Stat. Sec. 31-40z if you’re looking for the pinpoint legal citations.)

Note that this ban on inquiries also applies to applications or other recruiting forms too. So, if your application asks for prior salary history, it’s time to eliminate that.  Employers should inform manager and other employees who conduct interviews about this requirement as well.

 

Over the weekend, the General Assembly approved a bill prohibiting employers, including the state and its political subdivisions, from asking, or directing a third-party to ask, about a prospective employee’s wage and salary history.

I have previously discussed the measure here.  There were a few versions floating around and it was House Bill 5386 that carried the day (as amended).

The prohibition does not apply in two situations:

  • if the prospective employee voluntarily discloses his or her wage and salary history, or;
  • to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

While salary may not be inquired, the bill DOES allow an employer to ask about the other elements of a prospective employee’s compensation structure (e.g., stock options), but the employer may not ask about their value.

The bill has a two year statute of limitations. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.  This bill amends Conn. Gen. Stat. Sec. 31-40z

As amended, the effective date of the bill is now January 1, 2019.

The final bill is different from a prior bill because it eliminates provisions that generally would have (1) allowed employers to ask about the value of a prospective employee’s stocks or equity, (2) allowed employers to seek a court order to disallow compensatory or punitive damages, and (3) required certain employers to count an employee’s time spent on protected family and medical leave towards the employee’s seniority.

For employers, upon signature from the governor, this bill will become law.  As such, employers should notify all of their hiring personnel of the new restrictions that are likely to go in place effective January 1, 2019. I’ll have more updates after the legislative session winds down this week.

With the final few working days of the General Assembly session, we’re starting to see the outlines on bills that are pretenders vs. contenders.

Yesterday, the House passed a contender on the subject of pay equity in a bi-partisan vote.  Unless the Senate decides not to bring up the matter (as it decided last year), employers should start preparing for its likely overall passage and implementation later this year.

Four other states (including Massachusetts) have a bill of this type on the books.

So what does House Bill 5386 say exactly?

Well, less than it originally said. At the vote yesterday, the House passed “Amendment A” that eliminated some of the more controversial provisions of House Bill 5386.

Ultimately, the bill would expand the prohibitions on pay secrecy now found in Conn. Gen. Stat. 31-40z, and prohibit an employer from:

Inquiring or directing a third party to inquire about a prospective employee’s wage and salary history unless a prospective employee has voluntarily disclosed such information, except that this subdivision shall not apply to any actions taken by an employer, employment agency or employee or agent thereof pursuant to any federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes. Nothing in this section shall prohibit an employer from inquiring about other elements of a prospective employee’s compensation structure, as long as such employer does not inquire about the value of the elements of such compensation structure.

So, while there is a general prohibition about asking applicants about their salary history, it does not apply (1) if the prospective employee voluntarily discloses his or her wage and salary history or (2) to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

The bill also allows an employer to ask about compensation structure, but the employer may not ask about the value of the compensation structure’s elements, except for the value of stocks or equity.

Ultimately, the compromise that was reached was applauded by business groups like the CBIA:

Approval today of legislation addressing gender-based pay inequity is the result of discussions and compromise between multiple parties, including the business community, Democratic and Republican legislative leadership, and the governor’s office, and we thank them for all their commitment to forge a consensus.

If passed by the Senate and signed into law, the bill would take effect January 1, 2019.

An applicant for a job posting in education lists his most recent relevant experience as occurring in 1973.  You don’t bring him in for an interview.

Is it gender discrimination?

Beyond that, if he says that he is the most qualified candidate — do you have to hire him?

And if you don’t hire the most qualified person, is that evidence of gender discrimination?

No to all three, says one recent federal court decision.

The decision by the court was quietly released late last month and might otherwise go unnoticed, but it underscores an important point for employers.

In the matter, the Plaintiff argued that the employer discriminated against him because of his gender by denying him the opportunity for a job interview.   The employer chose four female and two male candidates for interviews.

The Plaintiff argued that he was more qualified than the female candidates who were interviewed and ultimately hired by the employer.

The court said, however, that the mere fact that the employer hired people of a different gender does not suggest that it failed to hire the Plaintiff “on account of his gender”.

Indeed, the employer had various reasons as to why the Plaintiff was not interviewed:

  • he hadn’t filled out the entire job application and didn’t answer whether he had any criminal offenses in the last ten years.
  • his resume was “perceived to be outdated, as the most recent job listing in education was from 1973.”

So, you might not think much of the case.

But the court’s decision is notable because it contains language that will be helpful in other cases for employers.  Says the court: “[T]here is no legal requirement that the most qualified candidate be hired.”

In doing so, the quote revisits a quote from an 1980 decision.

Title VII does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory. When a decision to hire, promote, or grant tenure to one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn. Indeed, to infer discrimination from a comparison among candidates is to risk a serious infringement of first amendment values. A university’s prerogative to determine for itself on academic grounds who may teach is an important part of our long tradition of academic freedom.

All that being said, employers should have SOME rational basis for their decisions. Even if the candidate is “more qualified”, the employer may determine that there are other reasons why the employee should not be hired; maybe the employee’s qualifications cannot overcome a bad job interview, etc.

Keeping bias out of your decision-making process is central to employers.  But it’s nice to know that employers don’t have to be perfect in its determinations of qualifications either.

urinals2Connecticut’s drug testing statutes applicable to employers have always been a bit tricky to follow.  I covered the basics of these laws back in 2010 (you’ve been reading that long, right?).

For job applicants, employers must follow certain rules. Once an applicant becomes an employee, a new set of more stringent rules apply.

But to what?

In a case earlier this year, a Connecticut Superior Court had to address that issue and more. In the case (Schofield v. Loureiro Engineering Associates), the plaintiff was forced to undergo drug testing of his hair by his employer, two weeks after starting. He was fired as a result of the test.

The employee claimed that the restrictive drug testing rules of Connecticut law should apply. However, the Superior Court said otherwise.  It found that the rules regulate urine-based drug testing only, not any OTHER form of drug testing.

[The drug testing statutes in question apply only to urinalysis testing and do not cover an employee who is subjected to other forms of drug testing. . . . While the logic of plaintiff’s position is readily understood and the seemingly irrational inconsistency which flows from the disparate protections made evident in this opinion are undeniable, “the task of changing the law lies with the legislature and not with the judiciary.”

So, does this mean that employers are free to engage in all sorts of drug testing? Well, perhaps not. While disallowing any claim under the state’s drug testing laws, the Court did allow a “wrongful discharge” claim to proceed.

Thus, what the court giveth, it also taketh away.

For employers, drug testing of current employees in particular is fraught with challenges. Be sure your program meets all legal requirements (both state and federal) and use this case as a warning sign. Things aren’t always what they seem.

In various posts, I’ve talked about how there is a slow but increasing trend to encourage employers to “ban the box” when it comes to job applications. That catchy (yet non-descriptive phrase) refers to a checkbox that is often found on job applications that asks applicants if they have any criminal convictions.

The news this week on that issue is that Target is the latest big employer to adopt such a  practice.    This is also in response to the EEOC’s guidance from 2012 strongly encouraging employers to eliminate the practice. 

It’s quite likely that the Connecticut General Assembly will also revisit the issue in the upcoming 2014 legislative session.

For employers, it’s important to note that banning the “box” does not mean that employers shouldn’t consider past convictions at all in determining an employee’s eligibility for employment.  Rather, like many background checks, the employer in those instances will wait until the applicant reaches the interview stage or gets a conditional job offer to ask about those convictions.

Right now though, EEOC guidance notwithstanding, private employers still remain free (mostly) to use those convictions as they see fit in the hiring process.

Public employers have some additional restrictions, so if you’re using criminal convictions to make decisions about who to hire, make sure you understand all of the limitations, which cannot be fully summarized in a single blog post.

Footnote: In an earlier post last July, I criticized the Office of Legislative Research for a report that I thought did not accurately state the status of the law in the area. I’m pleased to report that the OLR has updated their report to better reflect the status and I strongly recommend it as further background on this important subject.

At a Sentencing Commssion hearing last week, former state lawmaker Ernie Newton — who was convicted in 2006 on corruption charges — urged commission members to address hiring discrimination against ex-felons, reports CT News Junkie.  There is no indication yet that they will do so, but his comments raised some eyebrows in the press.

Newton’s comments aren’t the first time, though, that the issue of hiring discrimination against felons has surfaced as a legislative proposal.  Back in 2010, the legislature overrode Governor Rell’s veto of a bill that restricts the use of background checks for state job applicants. 

Despite that, private employers are still free to make hiring decisions based on a criminal conviction. 

The topic is not going away any time soon.  In April, the EEOC released new guidance that suggested that employers use arrest and criminal records in their decision-making process with care.  The agency suggested that under some circumstances, there may a violation of Title VII if used improperly. 

With the state budget again dominating discussions, it is unclear yet whether the General Assembly has any desire to take up legislation on this topic any time soon.  The “long’ year begins on January 9, 2013 and runs to June 5, 2013.

UPDATED June 9, 2011 – The House approved the measure late last night, June 8th. For additional details, see this updated post.

In the closing hours of the General Assembly’s term, the Connecticut Senate has passed a bill yesterday that would ban the use of credit reports by employers in many situations.

Senate Bill 361 passed along party lines and can be viewed here. It now goes to the House for a possible vote by the end of the term.

Will Employers Be Banned From Using Credit Score Numbers?

The bill, in its present form bans employers from requiring employees or prospective employees to consent to a request for a  report that contains information about the employee’s or prospective employee’s credit score, credit account balances, payment history, savings or checking account balances or savings or checking account numbers.

There are several exceptions, however:

  • Employers that are “financial institutions” as defined by the statute;
  • The report is otherwise required by law;
  • The employer reasonably believes that the employee has engaged in specific activity that constitutes a violation of the law related to the employee’s employment,
  • The report is substantially related to the employee’s current or potential job or the employer has a bona fide purpose for requesting or using information in the credit report that is substantially job-related and is disclosed in writing to the employee or applicant.

And what does “substantially related to the job” mean? Well, the bill also contains a definition for that as well.  According to the bill, it means that the position:

  • Is a managerial position which involves setting the direction or control of a business, division, unit or an agency of a business;
  • Involves access to customers’, employees’ or the employer’s personal or financial information other than information customarily provided in a retail transaction;
  • Involves a fiduciary responsibility to the employer, including, but not limited to, the authority to issue payments, collect debts, transfer money or enter into contracts;
  • Provides an expense account or corporate debit or credit card;
  • Provides access to (i) confidential or proprietary business information, or (ii) information, including a formula, pattern, compilation, program, device, method, technique, process or trade secrets; or
  • Involves access to the employer’s nonfinancial assets valued at two thousand five dollars or more, including, but not limited to, museum and library collections and to prescription drugs and other pharmaceuticals.

As you can see, these exceptions are numerous. Of course, what is a “managerial” position in this context? The bill is silent.

And even if an employer falls within an exception, the employers still has to comply with the Fair Credit Reporting Act.

As for the scope of the bill, all employers (those that have 1 or more employees) would be covered by this bill.  If approved by the House (and signed by the Governor), it would become effective October 1, 2011.

 

While some matters get all the headlines, the work of the state and federal courts move on.  One such case came out earlier this week and I highlight it because it touches on a point that employers sometimes lose sight of — the ability to still make subjective decisions and have that decision supported by a court later on.

The case, Spell v. State of Connecticut (D. Conn., March 17, 2009)(Thompson, J.) (download here), relates to an applicant’s claim that he was not hired for a position with the Chief State’s Attorney’s office because he was African-American. He claimed he was “more qualified than any of the Caucasian applicants selected to fill the … positions.”  He also claimed that he was more mature and has more education than the Hispanic applicant who was ultimately hired for the position and that he had more experience than that person as well. 

The court granted the State’s motion for summary judgment, effectively dismissing the applicant’s claims on multiple grounds.  Part of the court’s decision focused on the theory that courts will not circumvent the judgment of the employer and that even subjective criteria are allowed in some circumstances:

Although Spell alleges that he was “more qualified than any of the Caucasian applicants selected to fill the … positions,” this allegation is insufficient to support a conclusion that the Chief State’s Attorney’s enumerated reasons were pretextual in this case…. Employers may base their hiring decisions on some subjective criteria.  Title VII only requires that a hiring decision not be based on a discriminatory reason; it “does not require that the candidate whom a court considers most qualified for a particular position be awarded that position.” Thus, it was not improper for the Chief State’s Attorney to base its decision to internally promote [one person], rather than accept a new hire, on its subjective impressions of his work.

What’s the Take Away for Employers From This Case?

Employers have to make difficult hiring and hiring decisions all the time.  Every attempt should be made at the time to base the decisions on supportable items.  Objective criteria (this person has a certificaion that another applicant doesn’t) always help, but that does not mean that you should disregard subjective criteria (this person was more enthusiastic at the job interview) entirely. Courts willl support employer decisions in those cases but, as is the case above, the employer had some pretty good explanations for the court to rest its analysis on.

It’s been a little while since I’ve discussed quirky statutes that are often overlooked or misunderstood when talking about employment laws in Connecticut. Certainly, the drug testing laws in Connecticut may not be overlooked, but portions of it are often misunderstood.

Indeed, I suspect that many employers (and lawyers) are unaware that an "employee" as defined in the drug testing laws might include people who are not current employees of the company. This has important implications about who and under what circumstances an employer can test individuals for drugs.  Let me explain:

One of the lessons I can vividly recall from law school is the admonition of a law professor to always look at the definitions of words in particular laws. The cautionary tale that he told was that just because you think a word has a simple definition doesn’t mean the legislature has conferred the same commonly understood definition.

The drug testing statute is a perfect example of this. 

In Conn. Gen. Stat. 31-51t(1), an employee is defined  as "any individual currently employed or formerly employed and currently being rehired by the same employer within twelve months of terminating his employment, and includes any individual in a managerial position".  (Compare this with the definition of "employee" for purposes of paying wages.) This means that persons protected under the statute from certain types of screening may also include some types of former employees as well.

Connecticut rules provide employers with flexibility to drug screen job applicants, but prohibit various forms of testing on current employees (with notable exceptions for certain positions or if the employer has a "reasonable suspicion" of drug use).  The effect of this statute, therefore, is that employers who rehire people who worked for the company in the last year cannot typically test them for drugs — even though they might use that same procedure on other job applicants. 

Employers who would like to implement and administer a drug testing program in Connecticut need to remain vigilant to these types of quirks and ensure that their policy and procedures are aligned with how the drug testing laws in Connecticut are set up.