The Connecticut General Assembly is back at work so it’s time to take a quick peek to see what’s percolating.

2013 Legislative Session Begins

The Connecticut Business and Industry Association highlighted the “captive audience” bill as bill that is resurfacing, even though the Attorney General has previously raised doubts about the constitutionality of it.  The bill would restrict communications by the employer in general workplace meetings.  The CBIA highlighted the bill’s flaws:

The proposal usually shuts down much of what an employer can talk about with their employees in regular workplace meetings. For example, the last captive audience proposal restricted “political” discussions—with “politics” so broadly defined that almost any topic would have been considered off-limits. This would include issues critical to the effective management and operation of a business.

And under the threat of severe legal and financial penalties, an employer’s ability to communicate—particularly in opposition to the potential unionization of the workforce–would be effectively silenced.

Before this flawed concept goes any further, lawmakers should heed the attorney general’s warnings.

The Labor & Public Employee Committee at the legislature maintains a bill record bill that lists potential bills up for consideration.  As the session progresses, this list gets more refined.

Among the early “Proposed Senate Bills” under consideration:

  • Proposed Senate Bill 56, which would increase minimum wage by 75 cents in January 2014 and another 75 cents in January 2015;
  • Bills that would either eliminate or expand paid sick leave (Proposed Senate Bills 179 and 198);
  • Proposed Senate Bill 159, which would “prevent current or potential employers from requesting or requiring that employees or potential employees provide passwords to their personal accounts as a condition of their employment.”

On the House side, a few “Proposed House Bills” are starting to surface too including:

The next meeting of the Committee is set for January 29th, where these concepts — and others, including teaching about the history of the labor movement — will be discussed.  No public hearings have yet been posted publicly.

What a difference a few weeks can bring.

Back on May 5th, Attorney General George Jepsen issued a letter to legislators expressing his support of the so-called "captive-audience" bill.  That letter was used in the debate by Connecticut House members as proof that the bill would pass a legal challenge.  Indeed, on May 11th, the bill passed the House.

In a May 12th post, however,  l expressed serious reservations about whether the bill, if passed, would be preempted by federal law. 

It seems that Attorney General Jepsen’s office has now come to the same conclusion, according to a report in The CT Mirror.  Because of that opinion, legislators have decided not to pursue it further.

Legislators said Friday that Attorney General George Jepsen, a staunch ally of labor, effectively has killed a legislative priority of the Connecticut AFL-CIO by advising them that federal labor law appears to pre-empt the state from passing a "captive audience" bill.

The House of Representatives passed the controversial bill two weeks ago, 78 to 65, after an 11-hour debate in which the key sponsor, Rep. Zeke Zalaski, D-Southington, relied on a letter from Jepsen assuring him that the bill was legally sound.

An unhappy Zalaski said that Jepsen visited him earlier this week to inform him that additional legal research by his staff concluded that the state cannot bar employers from requiring employees to attend a meeting called to discuss religious or political matters.

The CBIA had also come to the same conclusion and had an opinion from from Clinton-era NLRB appointee to back it up.  

But for now, it appears that the "captive audience" bill is dead in this year’s General Assembly.

Last night, after many hours of debate, the Connecticut House passed the so-called "captive audience" bill that would prohibit employers from requiring their workers to attend meetings concerning views on politics and religion.

But the truth is the bill (H.B. 5460) is really about one thing: prohibiting employers from talking about unions when a vote on union-representation is about to take place.  It is something that federal law has allowed for 60 years.  The OLR Analysis hints at this but does little to clarify the potential impact of the bill.

If the bill is passed, it may be that the same federal law (National Labor Relations Act) is the bill’s downfall.

Why do I make such a prediction? Well, Wisconsin passed a similar measure last year that was struck down on constitutional grounds.  The Labor Relations Today blog has the details here. 

According to the Labor Relations Counsel blog, the new law was challenged and ultimately thrown out on the grounds that the Supremacy Clause of the Constitution forced the application of the NLRA to the exclusion of any state law to the contrary. 

The suit was filed on September 3, 2010 by the Wisonsin Manufacturers & Commerce and others against the State of Wisconsin saying that the law was preempted by the NLRA and violated the free speech rights employers enjoy under the First and Fourteenth Amendments.

The State quickly backpedaled from the law and entered into a stipulation in early November.  You can download that stipulation here.  And by mid-November, the Chief U.S. District Judge Charles N. Clevert, Jr. entered a Judgment and Order in favor of WMC on the NLRA preemption claim. (You can view the court’s order here.

Will the Connecticut bill (if passed) survive scrutiny? That remains to be seen.  The OLR Bill Analysis fails to mention the possible infirmities of the bill or analyze the cases cited in the Wisconsin stipulation.  

The CBIA has declared their opposition to the measure; the bill moves on to the Senate for a possible vote.  No word yet on whether a similar constitutional challenge would be raised here. 

For employers, this is an important bill to follow. If passed, this could have significant ramifications in both the unionized and non-unionized workplace.

The Connecticut General Assembly is in full swing with the budget dominating the discussion. But expect to hear of several high-profile bills continuing to make their way through the legislature. 

Here is a brief update on a few of them:

  • Last week, the House unanimously passed H.B. 5174 which deals with workplace violence in the publc employee ranks. Specifically, the bill requires all state employees to be trained on workplace violence awareness, prevention and preparedness.  The bill now moves on to the Senate for a vote.  H.B. 5464, which is still is on the "Go" list (meaning it’s cleared committees and is ready for a vote), would take that further and require that reports of workplace bullying by public employees be tracked and reported. 
     
  • H.B. 6347 would provide an enforcement mechanism for state employees to exercise their rights under state FMLA laws. That bill is also awaiting a vote before the legislature.
     
  • The so-called "Captive Audience" bill cleared the Judiciary committee last week is is also on the "Go" list now.  The bill would prohibit employers from requiring that employees attend meetings where the primary purpose is to discuss "religious or political matters".

    But what this bill is really designed to prevent is meetings by the employer in advance of a union representation vote, where the employer discusses why  voting for a union may not be in the employees’ best interest.  You can continue to track the status of the bill here
     

  • The bill mandating paid sick leave to all employees (of employers of 50 or more employees) is still winding its way through the General Assembly.  Senate Bill 913 now set for the Senate calendar where the votes are exceedingly close by all indications. 
     
  • News on Senate Bill 984 has been quiet for several weeks now. This is one worth following though as it would prohibit employers from looking at the criminal records of any temporary employees unless a background check is required by law for that position. 
     
  • If you like that bill though, you’ll love H.B. 6641 which would prohibit all employers from seeking credit reports on applicants, absent limiting conditions applying.  That bill is also ready for a vote in the General Assembly. 

The next four weeks promise to be busy ones. Stay tuned for more details. We’ll be providing an update at our May 20th free seminar as well. if you haven’t signed up yet, there is limited availability now so if you’ve been on the fence, be sure to do so. 

Whether it’s due to stall tactics by some Republicans last night, as they suggested in an article in the Courant this morning, or simply other things on the agenda, several bills that would have had a major impact on employers were not passed in the closing hours of the legislative session last night.

Among the bills that were pending and that expired when the session ended: Paid Sick Leave bill (H.B. 6187), the so-called Captive Audience prohibition bill, and a bill that would ban the use of credit reports for employment decisions.

Still, there were enough other bills that passed in the last few weeks that employers will need to update their policies and procedures, particularly as they pertain to state FMLA and to discrimination.

Once the dust settles, I’ll provide a recap. And look for details coming a little bit later about a webinar next week on the legislative session too and what employers need to know. 

With the legislative session ending on Wednesday at midnight, there’s a lot for employers to keep an eye out. Here’s a quick summary of what’s still alive and what’s not, at the Connecticut General Assembly.

  • Senate Bill 365 (S.B. 365) – A bill that would prohibit so-called captive audience meetings by employers (typically regarding a union campaign) passed the Senate on May 20th but is still awaiting a House vote. 
  • Senate Bill 710 (S.B. 710) – A bill that instituted changes to the state FMLA laws was signed by the Governor on May 27th. It is effective immediately. 
  • House Bill 5521 (H.B. 5521) – A bill that would prohibit employers from using credit reports as a basis for employment decisions is awaiting a possible senate vote after passage in the House on May 1th. 
  • House Bill 6187 (H.B. 6187) – The so-called Paid Sick Leave bill passed on the House on May 28th and is still awaiting a vote in the Senate.  Time is running out for this bill.  There are 18 amendments that have been proposed for the Senate version of the bill and the CBIA released a statement this morning that said a vote could come at any time
  • House Bill 6545 (H.B. 6545) – This bill is a late entry into the bills I’ve been watching regarding labor & employment law and just passed the House last night.  This bill provides collective bargaining rights to two groups of state employees who cannot collectively bargain under current law: (1) managers and (2) Legislative Branch employees of the State Capitol Police.

In addition to the above bills, I’ve previously covered House Bill 6185, which made changes to the state’s personnel files laws and also changes to the gender discrimination law as well. 

Stay tuned….