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.

 

When I was away last week, one of the headlines from my alma mater caught my attention.  The University of Pennsylvania Health System announced that effective July 1st, they will refuse to hire anyone who smokes or uses tobacco.

Smokers’ Rights Continue

No doubt some of you are either lauding this step, or shaking your head in disgust.

Could an employer in Connecticut consider taking such a step? Surprisingly no.

For of all the steps taken to promote healthy workplaces, Connecticut still prohibits employers from making decisions based on an employee or applicant’s outside smoking activities. 

Conn. Gen. Stat. Sec. 31-40s states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.

Note that the restrictions also apply to compensation or other “privileges” of employment.  Thus, employers in Connecticut that want to get on the “wellness” bandwagon and start restricting employees from smoking outside the workplace or provide rewards to employees that do not smoke, ought to think twice and conform any programs with the legal requirements on the state.

And don’t look for any changes in the immediate horizon. A quick review of the Labor & Public Employee Committee book shows nary a reference to changing this law and no proposed bills on the subject have been introduced this year. 

 

 

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.

Last week, the General Assembly approved of reduced penalties for people caught with relatively small amounts of marijuana in their possession.  Notice the use in the title of the word “decriminalize”; that is a different term than “legalize”.

Employers Can Still Ban Usage

This raises the obvious question: Can employers in Connecticut still regulate and ban employee usage of marijuana? The answer appears to be plainly yes.

First, consider that alcohol is, in essence, a legalized drug.  Employers still have the right to ban employees from using it on the job. That suggests that employers can still do the same with marijuana (which still isn’t legal).

Also remember that marijuana usage is still prohibited under federal law and employment laws like the ADA do not require an employer to accommodate or accept current drug usage by employees.

And also still, nothing in the new law changes existing law. In other words, the bill does not, for example, say that employers are prohibited from considering marijuana usage in making employment decisions.

But a more important indicator are recent court cases from states that not only have decriminalized marijuana usage, but legalized it for medical purposes.  In those states, employers are still allowed to regulate drug usage by employees.

As reported in a recent WSJ Law Blog post:

It turns out that smoking weed legally for medical purposes can still be illegal.

Washington state’s Supreme Court upheld a Colorado company’s decision to fire a woman for failing a required drug test due to pot use, even though she had a valid medical marijuana prescription…..

The employee – who sued under the pseudonym Jane Roe – worked for TeleTech Customer Care and was fired in October of 2006 after a week of training. TeleTech, which performs the customer service for Sprint, had a contract with the telecommunications company that required drug testing of all employees, with no exception for medical marijuana use.

The 8-1 decision issued Thursday declared that the state medical marijuana law did not necessarily require employers to accommodate use of the drug outside the work environment….

That’s not to say that all states treat this equally. In fact, Delaware recently passed a law that prohibits employers from discriminating against users of medical marijuana, as reported by the Delaware Employment Law Blog.

What’s the Takeaway for Employers?

Don’t be distracted by recent headlines. Employers in Connecticut can still regulate drug usage by employees. 

In the last flurry of action, the Connecticut House last night approved Senate Bill 361, which bans the use of credit reports in hiring and promotions, in certain situations by certain employers.  The bill had previously been approved by the state Senate.

I recapped the bill in detail a few days ago.  There are a number of exceptions to the ban, so it is important for employers to review the bill and determine what portions of the bill will apply to you. As always, seek appropriate legal counsel if you need further clarification.

The measure will apply to all employers (those with one or more employees).

The bill now goes on to the Governor, who is expected to sign the measure. When signed, the bill will become effective October 1, 2011.

This week, word came down that several Hartford-area companies were implementing a ban on smoking anywhere on company premises. This means outside areas on the campuses of these businesses, and the parking lots as well.  Previously, employees could smoke in designated areas outside various buildings. 

Yesterday, Bristol started considering implementing a ban on smoking on public streets as well. The Hartford Courant reported on the story here this morning (which includes a short quote from me at the end of the article.  courtesy morgue file "smoking" NOT public domain

Clearly, the trend in Connecticut is to expand the existing restrictions on smoking to areas that have not previously been restricted.

But what is the law on smoking in the workplace?

Back in July, I covered much of this and discussed the fact that while an employer could ban smoking on company premises, it could not prohibit smoking by an employee "outside the course of employment".  For practical purposes, that means that the truck driver can’t smoke while working, but is free to do so at home.

This so-called "smoker’s rights" law is spelled out in  Conn. Gen. Stat. 31-40s and specifies that employers are prohibited from banning smoking outside work hours (though banning smoking on company premises IS allowed, even if the employee isn’t working.) Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect  to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.   Employers, however, have broad authority to ban smoking at the workplaces and on their premises entirely, which is the step that several area businesses have now implemented under Conn. Gen. Stat. 31-40q. 

As more and more employers are devising ways to ensure that their employees are healthy, it would be wise for the legislature to review this law again. Perhaps the scope is just right, perhaps not. But until this rule is reviewed and eliminated, employers and local communities may be restricted in what further steps they can take to implement wellness programs and other restrictions.