Earlier this week, it seemed that a bill requiring employers to conduct additional training on sexual harassment matters was a no-brainer to pass the General Assembly.

After all, Senate Bill 132 passed 31-5 in the state Senate and in this #metoo environment (not to mention local elections in the fall), the House looked to be a near certainty.

But a lot can happen in a few days, and some of the bill’s more controversial provisions were simply too much for the bill to overcome.

Thus, employers do not yet have to worry about the new training requirements and changes to the state’s anti-discrimination laws.

That said, employers still need to follow existing state law regarding training of supervisors (if applicable) and should still exercise caution in dealing with cases of harassment.

One bill that did receive passage late last night was Senate Bill 175, which I haven’t talked much about.

That bill makes a number of changes to government and quasi-public agencies. (In other words, these aren’t applicable to private employers).

Sections 8 and 501 are the key provisions in employment law and limit the use of non-disparagement and non-disclosure agreements.  According to the OLR report:

  • Beginning October 1, 2018, the bill generally prohibits state and quasi-public agencies from making a payment in excess of $50,000 to a departing employee in order to avoid litigation costs or as part of a non-disparagement agreement. Under the bill, “state agency” means executive branch agencies, boards, councils, commissions, and the constituent units of higher education.
  • For state agencies, the bill allows such a payment if (1) it is made under a settlement agreement that the attorney general enters into on the agency’s behalf or (2) the governor, upon the attorney general’s recommendation, authorized it in order to settle a disputed claim by or against the state.
  • It also specifies that, any settlement or non-disparagement agreement cannot prohibit a state agency employee from making a complaint or providing information in accordance with the whistleblower or false claims act.
  • Similarly, any settlement or non-disparagement agreement cannot prohibit a quasi-public agency employee from making a complaint or providing information under the whistleblower law.

For readers who work for the government, these particular provisions — namely seeking approval from the AG’s office — should be reviewed over the next few months.

Today is the last day of the General Assembly session and there are only so many hours to debate and pass bills.

And so, in a year when so many labor & employment law bills were up for consideration, it’s come down to a finish line where just one or two might pass.

The Pay Equity bill I highlighted earlier this week is on to the Governor’s desk, where he has indicated he will sign it.

But the bill making broad changes to the harassment and discrimination laws in the state now appears to be on life support. Perhaps even “mostly dead”.

You will recall from my post earlier this week that the bill passed the Senate with an overwhelming majority with language that seemed to have broad support.

According to a report in CT News Junkie, a deal has yet to be reached in the House and there may be too many issues with it to come to a deal today.

At issue has been the language eliminating the statute of limitations for some sex crimes.  It’s possible that a fix that revises the training requirements could perhaps see it’s way out of the mess but that is seeming increasingly unlikely according to news reports.

There are other bills still floating out there: Paid FMLA, changes to minimum wage, etc. None of them though seems to have enough steam at this stage to get over the finish line.

So stay tuned.  There’s a budget bill that is still up for grabs and the last day always has a way of surprising.

I’ll have a full legislative recap once the dust settles.

Yesterday, one of the measures floating around the Connecticut General Assembly regarding Paid Family Medical Leave passed a key committee vote.

The bill still has a ways to go.  Indeed, as first reported by CT News Junkie, even the speaker of the house described it as a “work in progress”.  But now that’s closer to passage, it’s time employers start focusing on some of the key aspects – as framed currently.

The bill (House Bill 5387) would require all private sector employees to contribute 0.5 percent of their paycheck to a fund that they could then use if they needed to take Family Medical Leave. The leave could last up to 12 weeks and the pay would be capped at up to $1,000 per week.

The bill would radically change existing Connecticut FMLA by changing the number of employees required to be eligible for FMLA leave from 75 employees to just two. It would also, however, change the leave calculation period to be on a 12 weeks per 12 months basis, instead of the 16 weeks over 24 months basis that has been a challenge to reconcile with federal FMLA.

The bill would also expand allowable leave under FMLA to caring for grandparents, grandchildren, siblings, all other blood relatives, or those with a “close association … the equivalent of a family member.” This is far in excess of just the relatives covered under current law.

And if you’re wondering, there is no definition as to what would be “equivalent” to a family member.

As to the prospects for the bill, the CBIA has been opposed to it, in part because it’s not applicable to the public sector — and raises costs for both the state and for private employers.  A similar bill in the Senate was rejected by the committee because it would have required the state to commit to $20M in bonding.

But again, employers should be mindful of this bill as the short legislative session begins to wind down in the next few weeks.

 

Last week, I posted about a proposed Governor’s bill that would expand the training requirements for some employers.

However, that appears to be just a small part of a wider political battle that is about to be raised.

Yesterday, a group of Senate Democrats proposed, according to a handout, the “Largest Overhaul in Modern Connecticut History of Sexual Harassment Laws” that would significantly alter the landscape for nearly all Connecticut employers.

They’ve titled their proposal the “Time’s Up Act: Combating Sexual Harassment and Sexual Assault”.  

The bill has yet to be drafted, but the outlines are being shared by Senate Democrats and will be pursued first in the Judiciary Committee (not the Labor & Public Employee Committee as you might expect).

According to their handout, the proposed bill will contain the following relating to discrimination or harassment laws:

  • Require that any notice of sexual harassment remedies and policies by e-mailed to each employee at least once a year, in addition to the required posting.
  • Increase the fines that the CHRO can impose for failing to provide notice (currently at $250)
  • Require sexual harassment training to all employers with three or more employees (instead of the current 50 or more threshold)
  • Require training of all employees, not just supervisory employees with broader topics
  • “Give CHRO the resources it needs to go out into the community and conduct on-site trainings”
  • Increase the statute of limitations from 180 days to 2 years for not just harassment complaints, but all discrimination complaints
  • Eliminate the 90 day deadline after receiving a release from the CHRO to file a lawsuit but extend it to two years after a release from the CHRO.
  • Permit the CHRO to ask for injunctive relief for employers of 3 or more employees, not the current threshold of 50.
  • Allow for punitive damages in all discrimination and harassment complaints
  • Increase funding for the CHRO
  • Create a similar model to California in passing a Private Attorney General Act, which would allow litigants to, after giving notice to the CHRO, bring a claim for violations against himself or herself, but also against other employees as well.
  • Prohibit settlement agreements that prohibit a party from disclosing information regarding sexual harassment or sexual assault.

This is still in the early stages but expect to see a lot more about this in the weeks and months to come.  No doubt, the Connecticut Business and Industry Association will have something to say about this as well.

I’ll have more details as they become available.

capitoldas2Well, the Connecticut General Assembly ended earlier this week and, as predicted, it ended with a whimper and not a bang.  Many employment law proposals failed to receive votes, including those on minimum wage and Paid FMLA, leaving many employers (and the CBIA) breathing a bit of a sigh of relief.

I’ve previously recapped most of the bills here and here, so I’m only going to recap the session here in the interests of time.

  • The Governor is expected to sign a bill expanding the requirements for employers to provide reasonable accommodations to pregnant employees. Again, I’ve recapped the measure here but this is probably the most significant bill to come out of the session regarding employers.
  • There will be no minimum wage hike and the introduction of Paid FMLA failed to get enough votes this term.  There is little doubt that the split in the Senate along party lines slowed momentum down for what was going to be the Democrat party’s signature achievement this session.
  • Also not getting votes this session was a bill that would have prohibited many employers from running credit checks on prospective employees and a bill that would required employers to give advance notice to employees about their work shifts.
  • Another bill that would change whistleblower protections in Connecticut also failed to clear the House.

Some of the other technical changes, to workers compensation or unemployment compensation, offer up a mixed bag. I’ve covered them in a prior post.

A special session is still on the way and it’s possible that some measures will get plopped into an “implementer” bill for the budget like it did a few years ago.  But my gut tells me that the budget is unlike to be used this way given the significant financial issues in play.  Nonetheless, employers should continue to watch for any developments in this area until the special session is closed.

Well, it was bound to happen.  After nine years of writing the blog on a near daily schedule, some work and personal commitments interfered with my blog writing schedule. But never fear, more new posts from me are now right around the corner.

In the meantime, one of our summer associates, James Joyce, joins the blog today to give an update on a a law passed last year regarding pay secrecy. My thanks to James for his work on this.  James is finishing up his law degree at University of Connecticut.  

joyceLoyal readers may recall that about a year ago, Connecticut’s “Act Concerning Pay Equity and Fairness” Public Act 15-196, became law.   Dan has already blogged about the nuts and bolts of the “Pay Secrecy Bill” and its potential impact on employers.

And, as Dan highlighted, employers need to be mindful of this legislation because it created a private cause of action in court for any violation.  That is where today’s post comes into the picture.

One of the first lawsuits alleging violations of the “Pay Secrecy Bill” was recently filed in Superior Court in Stamford (the case has since been removed to Federal District Court).   The lawsuit raises other issues as well, but for today’s post, we’ll focus on the “Pay Secrecy” claim.

So what’s in this lawsuit? Well, the plaintiff alleges that her former employer maintained a “Pay Secrecy Policy” forbidding employees from discussing their salaries despite the enactment of the “Pay Secrecy Bill” in July 2015.

Specifically, the allegations include a run-in with the human resources (HR) department due to comments the Plaintiff made about salaries and her former employer’s view that this was inappropriate and none of the plaintiff’s business.  The plaintiff received an “Employee Warning Notice” from HR and HR went on to tell the plaintiff she could not discuss her wages or her co-workers’ wages.

Additionally, in February 2016, it is alleged that a former co-worker of the plaintiff was reprimanded for a conversation she had with another employee about the company’s paid time off/holiday policy.  The former co-worker was allegedly told directly by the CEO and by HR that this conversation or any similar conversations violated the company’s policy prohibiting employees from discussing compensation with other employees

Obviously, whether or not these facts are true — or rise to a level of violating the law — will play out in court.  But these types of incidents are just the sort of things that employers need to be aware of to avoid “Pay Secrecy” violations.  The law prohibits employers from implementing policies that prevent employees from, or disciplining employees for, engaging in conversations about salary-related information.

Because this case was recently filed there is no way to predict how the court will rule.  Nevertheless, that does not mean this case should be ignored until it is decided.  Employers should remind their human resources staff and managers of this new Connecticut law.

The downside will be cases like this where the employer may have to spend time and money investigating and defending themselves against the alleged “Pay Secrecy” violations.  Employers also risk being found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper related to the alleged violations.

doctorContinuing my review of new employment-related bills is a measure that limits the use of non-compete agreements for doctors.

Anyone who tracks bills knows that the name on the bill sometimes doesn’t match the content. Senate Bill 351 entitled “AN ACT CONCERNING MATTERS AFFECTING PHYSICIANS AND HOSPITALS” is a good case in point.

Seems innocuous enough, right? But through various amendments and compromises, it actually contains specifics on what can or cannot be in a non-compete agreement for physicians.  (For limits in other professions, see prior posts here and here.)

In general, the bill sets up a one year and 15 mile limit for physician non-compete agreements for any agreement after July 1, 2016.

The bill does not specify what is to happen to existing agreements that may have broader restrictions; will courts find that they violate the new ‘public policy’ of Connecticut, as the attorneys at the Working Together blog suggest? That remains to be seen.

For employers that have yet to draw up agreements, arguably there is a 60-day window to do so but given that this may now become law, it might be too little too late.  (I have not heard whether the governor intends to veto this measure.)

For existing agreements, it appears that the review will attempt to mirror common law with three standards (note that the term “covenant not to compete” is actually defined as being applicable only to physicians).  These standards are:

A covenant not to compete is valid and enforceable only if it is: (A) Necessary to protect a legitimate business interest; (B) reasonably limited in time, geographic scope and practice restrictions as necessary to protect such business interest; and (C) otherwise consistent with the law and public policy.

The bill goes on to state that:

A covenant not to compete that is entered into, amended, extended or renewed on or after July 1, 2016, shall not: (A) Restrict the physician’s competitive activities (i) for a period of more than one year, and (ii) in a geographic region of more than fifteen miles from the primary site where such physician practices;

Simple enough, right? Well, not exactly, the agreement also shall not:

(B) be enforceable against a physician if

(i) such employment contract or agreement was not made in anticipation of, or as part of, a partnership or ownership agreement and such contract or agreement expires and is not renewed, unless, prior to such expiration, the employer makes a bona fide offer to renew the contract on the same or similar terms and conditions, or

(ii) the employment or contractual relationship is terminated by the employer, unless such employment or contractual relationship is terminated for cause.

That’s a lot of “ands” and “unlesses” if you’re keeping track at home.  But one thing I’m sure of is that a “for cause” termination allows for more flexibility.

But what is “for cause”? Can it be defined by the employer? Or is the legislature using another definition of “cause”? That, unfortunately, is a question for another day.

For now, physician groups, hospitals and other health care providers need to track signing of the measure and, if signed, review all existing agreements and form agreements for compliance with this new potential law.  The one-year/15 mile restriction should become the norm.

And if you have a strong opinion against this measure, now would be a good time to lobby the governor to veto it.

 

GA2It’s been a long-time coming but the General Assembly finally approved of a measure that would allow employers to pay employees on a bi-weekly basis without receiving prior CTDOL approval.

The provision, part of a set of “technical” revisions to various Department of Labor matters, is long overdue.

Several employers had moved to a bi-weekly payroll scheme without realizing that they needed approval from the CTDOL beforehand.  That approval won’t be required anymore (assuming this bill is approved by the governor).

I’ve previously discussed the requirement so now employers who have been wary about seeking such approval, can just move ahead on their own.

Senate Bill 220 also makes lots of technical changes to the unemployment compensation scheme and even to drug testing (getting rid of the suggesting that the DOL develop some regulations in this area).  These probably won’t be of interest to most employers, but it’s worth a look through the bill summary to see if something else touches on your industry.

The measure will become effective when the Governor signs the overall bill.  (Other provisions in the bill go into effect October 1, 2016.)

cgaOver the next week or so, I’ll be providing updates on various bills to pass (or fail) at the state general assembly.  They’re coming in fast and furious so patience is the order of the day.

But as we review various bills, there are employment-related aspects in places that you might not think. The first of these is in a human trafficking bill (House Bill 5621).  After passage in the House last month, this bill passed the state Senate last night. It now moves to the Governor’s office for his signature.

Section 5 of the bill sets forth new requirements for hotel (and similar lodging) operators to train and educate their employees.

Specifically, it requires that the employees receive training at the time of hire on the “(1) recognition of potential victims of human trafficking, and (2) activities commonly associated with human trafficking.”

But in addition to training, the hotel operator shall also conduct “ongoing awareness campaigns” for employees on the “activities commonly associated with human trafficking.”

Of course, the legislation is silent as to what exactly are the “activities commonly associated with human trafficking”, though prostitution is obviously mentioned in one aspect of the legislation.  It is unclear how detailed this training and the awareness campaign must be.

Beyond that, on or before October 1, 2017, and annually thereafter, hotel operators must “certify that each employee of any such establishment has received the training prescribed by this section in each employee’s personnel file.”

But again, it does not appear that this training needs to occur yearly — only at the time of hire — and only that the hotel operator certify that the training happened at the time of hire.  So the bill has a gap; current employees do not appear to need to be trained in this. And the employer must only conduct “awareness campaigns” which perhaps can be as simple as an email reminder or inclusion in employee handbooks.

In any event, hotel operators should consider updating their hiring packages to include this aspect and should update their employee handbooks to have a provision in there.

Upon signature from the Governor (which is expected), this provision becomes effective October 1, 2016.

Lastly, I would be remiss if I did not mention the efforts of both the Connecticut Bar and the American Bar Associations on raising awareness and seeking legislation on this important issue.   Members of the CBA testified at the legislature on this bill and its passage last night was an end product of their efforts.

generalassemblyThe 2016 Connecticut General Assembly is about one month from ending its term so it’s a good opportunity to see what bills are still floating out there.

I’ll do a bigger recap when we get close to the end of the session but if you have any interest in the bills (and, if you’re an employer, you should), you should contact your local representative as soon as possible.

  • House Bill 5261 is an interesting one and comes in response to a crackdown by the CTDOL on the employment relationship local sports leagues have with coaches and referees — namely, by saying that such leagues are responsible for unemployment compensation.  This bill exempts coaches and referees who work for private or public athletic programs, other than public school districts, from employer-employee rules for purposes of unemployment taxes and compensation.
    Under the bill, according to the Office of Legislative Research, “as of October 1, 2016 no employer-employee relationship is deemed to exist between certain operators of organized athletic activities and certain individuals employed as coaches or referees of those organized athletic activities, except such operators and individuals can mutually agree, in writing, to enter into an employer-employee relationship.”
    The bill has made it out of the Labor Committee and is still awaiting a vote out of the Finance Committee.  For more on the bill, see this recap from the CBIA.
  • Senate Bill 40 would limit the circumstances in which most employers can check the credit of job applicants and employees. But it also broadens the circumstances in which employers can require checks of people applying for or working in positions that would give them access to museum and library collections or prescription drugs and other pharmaceuticals. The bill was voted out of the General Law Committee on April 5th and should be watched carefully.
  • Senate Bill 211 is one of those bills we’ve seen before; this would allow employers to pay employees by payroll cards, instead of by check, which could help reduce the use of predatory “paycheck loans” out there.    It too has made it out of committee and is awaiting a vote on the floor.
  • Senate Bill 221 would implement a paid family and medical leave program in the state.  It’s a complex bill but considering the publicity of such efforts in other states, this is worth a close follow.   But beyond that, this bill goes much further than has been previously reported as it would expand the existing FMLA law to cover all employers of two or more employees (down from 75) and would prohibit employers from requiring employees to use any paid time off as part of their FMLA leave.  Not surprisingly, business groups like the CBIA oppose the measure while other interest groups have showed strong support.

What else is going on? I’ll have more in an upcoming post.