capitoldasThe Connecticut General Assembly is back in session and with significant budget deficits looming, it’s not going to be an easy year for legislators.

From a labor and employment law session, once again it will be interesting to see what will be seriously considered.

A Bloomberg Law article late last week suggested that Democrats in several states, including Connecticut, are planning bills to try to replicate the federal overtime-pay overhaul that has been held up in federal court.   Without citing names, the article states:

Democrats in Rhode Island, Connecticut, Maryland, Wisconsin and Michigan said they plan to introduce bills modeled on Obama’s reform, which would have made millions more white-collar workers eligible for overtime.

A cursory look at the Bill Record book for the Labor & Public Employees committee fails to show such a bill yet, but it’s still early. At this point in the legislative cycle, only early “proposed” bills are officially on record. That, of course, doesn’t mean that other draft bills aren’t being floated out there.

So among the proposed bills, what else is out there being considered for 2017?

  • As expected, a paid family & medical leave bill is definitely on the table now, after being looked at for the last 18 months or so.  Indeed, it is titled “Proposed Senate Bill No. 1″ and is co-sponsored by several senators.  Having a bill marked as “One” indicates that this will be a priority in the current session.  The details, however, are still being worked on.
  • Another bill that already has garnered widespread support including from the House leadership is Proposed House Bill 5591.   While again, the details are still forthcoming, the bill would “require employers, including the state and political subdivisions, to provide equal pay to employees in the same workplace who perform comparable duties.”  What’s still unknown is why this is being sought, just 2 years after another pay equity bill titled “An Act on Pay Equity and Fairness” was passed. Time will tell, but expect to see more on this bill soon.
  • Another bill concerning “Various Pay Equity and Fairness Matters” (not to be confused with prior bills) has also been proposed by new Representative Derek Slap from West Hartford.  That bill would mirror some other states that have recently passed bills further limiting what prospective employers can ask applicants. Specifically, this Proposed House Bill 5210 would:

(1) Prohibit employers from asking a prospective employee’s wage and salary history before an employment offer with compensation has been negotiated, provided prospective employees may volunteer information on their wage and salary history,

(2) Prohibit employers from using an employee’s previous wage or salary history as a defense in an equal pay lawsuit,

(3) Permit an employer to have an affirmative defense in an equal pay lawsuit if it can demonstrate that, within three years prior to commencement of the lawsuit, the employer completed a good faith self-evaluation of its pay practices and can demonstrate that reasonable progress has been made towards eliminating gender-based wage differentials, and

(4) Protect seniority pay differentials from adverse adjustments for time spent on leave due to pregnancy-related conditions or protected parental, family and medical leave.

Other proposed bills can be found here including an increase in the minimum wage to $15 per hour.

One important note: The state Senate has now split 18-18 among Democrats and Republicans.  Thus, I think it’s fair to expect that there will be less laws that impact employers than in year’s past.  The CBIA has an update from a business perspective here.

GA2So last week I provided a recap of a few of the labor & employment law bills still being kicked around the legislature.  From talking with a few folks in on the process, here are some other bills to keep an eye on (whether in this original form or as an amendment to an existing bill).

  • House Bill 5367 would reform the unemployment compensation process a bit. It makes several changes to unemployment benefits and eligibility requirements for receiving them by 1) increasing from $15 to $50 the minimum amount of weekly unemployment benefits most claimants can receive; 2) increasing from $600 to $2,000 the minimum amount most claimants must earn during their base period (the first four of the last five calendar quarters) to be eligible for benefits; and, 3) requires most claimants’ benefits to be based on their average quarterly wages during all four quarters of their base period, instead of during their two highest earning quarters.  The reforms would make Connecticut more consistent with neighboring states. The CBIA has supported this bill.
  • House Bill 5237 — the so-called “ban the box” bill — is one I’ve touched on before.  It was recently referred to the Appropriations Committee. It’s being closely watched by business interests and should be a top item for employers to track.
  • House Bill 5591 would create a Connecticut Retirement Security Authority (“authority”) to establish a program for individual retirement accounts (IRAs) for eligible private-sector employees, who are automatically enrolled in the plan unless they opt out.  The bill would apply to all private sector employers that employ at least five people each of whom was paid at least $5,000 in wages in the preceding calendar year.  There is a significant administrative cost however to this bill and in light of the state’s fiscal crisis, it seems unlikely that it will be passed this year.
  • House Bill 5402 is still kicking around too.  It would greatly expand the state’s whistleblower protection laws by expanding protection to employees who (1) make reports to their supervisors or managers (either directly or through a third party) or (2) participate in the employer’s or a public body’s investigation or similar proceeding on request of a supervisor or manager or the public body. Not surprisingly, business interest groups have been opposing this bill because it greatly expands the scope of the protection and would change time deadlines as well.

Many other bills died in committee earlier this month so at least the scope of the potential changes out there is known. How much gets passed this year will depend, at least in part, on how the state can resolve its projected deficits.  Connecticut has been seen, of late, as being anti-business (see, e.g., GE) and the governor has made it clear that he’s not in favor of additional tax hikes on businesses.

So stay tuned!

The first few days of the new Connecticut legislative session are, dare I say it, kind of fun from an outsider perspective. That is, if you know what you are looking at.

Why? Because it’s the time when legislators start submitting “proposed” bills. But these proposals are far from polished products. Sometimes, these proposals are done to satisfy constituents. Other times, they are submitted to get the issue discussed before a committee.

Either way, they can raise a few eyebrows.

Take Proposed Bill No. 5267. This proposal would require “the Labor Department to develop and promulgate an employers’ bill of rights”.  Why? It would “serve to protect employers from frivolous complaints and claims brought by employees.”

My friend, Jon Hyman — who actually wrote a book entitled “The Employer Bill of Rights” — ought to love this one. Unfortunately, the substance of the proposal is basically confined to the line I just mentioned. No specifics.  But here are some that Jon has suggested:

The Right to Hire on Qualifications;

The Right to Fire on Performance;

The Right to Control Operations:

Alas, I think the Connecticut proposal is the beginning and end of such an idea.

The opposite of the above proposal is Proposed Bill No. 5080. This proposal would amend state statutes to require retail stores to close on certain holidays unless it allows its employees to decline to work such holidays without penalty.  Call it the Kmart effect; Kmart opened before breakfast on Thanksgiving.

It’s still early though. These bills will be discussed at today’s legislative committee meeting.  There are lots more proposals coming down the road. Among the other items on the committee’s agency “an act concerning the use of credit histories in employment decisions” and  “an act concerning healthy workplaces”.

Pull up a chair. The next few months ought to be interesting.

 

The Connecticut General Assembly’s Labor & Public Employee Committee today is considering drafting a proposed bill “to 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.”

I won’t mince words. Proposed Senate Bill 159 is a bad idea. 

It’s a solution in search of a non-exisitent problem and ultimately it would have serious ramifications for employers in Connecticut.

Ohio is currently considering the same type of bill and Jon Hyman, from the Ohio Employer’s Law Blog, neatly summarized the reasons why this remains a bad idea.  Here are two of them which are directly applicable to Connecticut:

  • It contains no exceptions for internal investigations. Suppose, for example, Jane Doe reports that a co-worker is sending her sexually explicit messages via Facebook. You have an absolute duty under both Title VII and [state] employment discrimination statute to investigate and take whatever remedial action is necessary to ensure that any misconduct ends. Yet, this bill would prohibit you from even asking the accused to provide access to his Facebook account as part of your investigation.
  • It contains no exceptions for regulated industries. For example, registered representatives have special rules that dictate what they can or cannot say to clients and prospective clients via social media. FINRA requires employers to track and maintain records of the communications between registered reps and the public. Yet, this bill would prohibit a securities firm from requiring its registered reps to turn over these communications. It would also prohibit the firm from even asking for access to a rep’s social media account to investigate a customer complaint or regulatory issue.

I’m not advocating employers ask their employees for their passwords on a routine basis.  It’s poor human resources practice.  But what Connecticut doesn’t need is another knee-jerk piece of legislation that will do much more harm than good.

The bill already received a preliminary thumbs up in the committee a few weeks ago.  The CBIA has opposed it and suggested very narrow language to address whatever concerns are there.

Let your local legislator know that this bill should go no further in its current format.

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.

After being reported out of the Joint Committee on Commerce earlier this month, Senate Bill 79 received a joint favorable vote from the Labor & Public Employee Committee earlier today meaning that bill stays alive in this legislative session.

Senate Bill 79, even as revised, would prohibit employers from discriminating against an individual because that person is unemployed.

The Commission on Human Rights & Opportunities has voiced its opposition to the bill because it would be the agency responsible for regulating such claims.

Putting aside the public policy arguments, the bill remains poorly drafted.  The bill never defines the most important piece of the bill itself — What does it mean to be “unemployed”?

Suppose someone is fired as a doctor from a hospital but is an independent contractor at local clinic: Is that person “unemployed” anymore? Does working on your own or part-time count?

What about people who remove themselves from the workforce for several years for various reasons and may not have the skills the employer is looking for. When they apply, they will be “unemployed”; is an employer barred from considering that as well?

We’ll see if politicians are using this bill for political reasons or whether they are serious about passage soon.

In the meantime,, that’s not the only bill still alive that may interest employers; bills regarding payroll cards and FMLA for municipal employees are still alive as well.  In this short session, stay tuned for lots of quick changes over the upcoming weeks.

The new legislative session at the Connecticut General Assemblybegan last week and the Labor & Public Employee Committee wasted no time setting an agenda for bills for discussion in this short legislative session.

2012 Legislative Session Begins

At a committee meeting last Thursday, the Committee discussed a variety of items to be discussed and proposed as bills. 

Among the notable items that received a favorable nod to drafting:

  • An Act Concerning Discriminatory Hiring Toward the Unemployed
  • An Act Concerning State Employees and Bullying in the Workplace
  • An Act Concerning Family and Medical Leave for Certain Municipal Employees
  • An Act Concerning a Study on Changes to the Pay Frequency Laws
  • Act Allowing Employers to Pay Wages Using Payroll Cards

You can follow the Committee’s progress here.  The CBIA also provides a weekly recap of the events at the legislature here.   

After last year’s battle over paid sick leave, this session is not expected to be as bruising but as noted above, there is still plenty of things the legislature can get involved with.  In a short session, we’ll have to wait and see how much really gets done. 

If the legislature wants to do something unusual, then perhaps it can revisit my list from July 2011 of outdated employment laws that could be considered for repeal.  Of course, it’s easier to add laws than to repeal them, but hope springs eternal.

The Connecticut General Assembly is heating up and a number of employment-related bills are still alive this legislative session.

The Labor & Public Employee Committee has voted a number of bills out, meaning that they’re up for consideration by either the House or Senate, or another committee.  These include:

  • HB 5460 (which would prohibit so-called “captive audience” meetings by employers)
  • HB 5464 (the so-called “workplace bullying” bill, which would mandate that the state keep track of “abusive conduct” by state employees at state agencies and mandate policies be developed to minimize abusive conduct)
  • HB 6176 (which would increase the penalties for employers that repeatedly fail to provide personnel file access upon request)
  • HB 6406 (which would require employers to give notice to employees of that employee’s entitlements and benefits and prohibit retaliation for the exercise of such rights)
  • HB 6407 (which would allow employers to mandate use of direct deposit or payroll cards — and legalize payroll cards — provided certain conditions are met)
  • SB 361 (which would prevent employers from using credit scores and other financial information in their hiring decisions, absent a limited exception)
  • SB 798 (which would modify state wage laws to require the imposition of double damages in wage/hour cases, instead of the discretionary language in the current law)
  • SB 984 (which would prohibit employers from conducting criminal background checks for prospective employees or require them to disclose their criminal background, unless otherwise required by law for the position)

Of course, whether these bills will go any further is still an open question. Nevertheless, the amount of bills still on the table means lots of legislative watching.

Besides the above bills, there are still several others also worth watching:

This legislative session is far from over. Yes, the budget battle will start dominating the headlines in the upcoming weeks, but keep your eye on a number of other bills which could have a significant impact on employers in Connecticut.

The oft-debated paid sick leave bill has made another appearance at the legislature. And as in the past, it has been voted out of the committee, this time by a narrow vote of 6-5 on Thursday, March 3rd.

None of this ought to come as any surprise. It’s been voted out of committee for the last four years. And as predicted last November, Governor Malloy’s support for the measure suggested that the bill would at least see some debate.

But it’s not as though there is smooth sailing ahead. The Hartford Courant ran an editorial on Thursday calling the bill bad for business. And even supporters believe at best it could pass after a Senate tie of 18-18 (which would be broken by Lt. Gov. Nancy Wyman).  That of course, assumes that both parties have the stomach to bring the measure to the floor for debate.

Senate Bill 913 (which can be viewed here) has a few notable points to it:

  • It would only apply to employers who have 50 or more employees;
  • Employees could accrue and use up to 40 hours of paid sick leave time each year (5 days worth);
  • Employees could carryover up to 40 hours each year, but could still only use the allotted amount;
  • An employer that already provides employees with vacation, personal days, or paid time off of at least 40 hours will be "deemed to be in compliance".
  • Employees would be able to take paid sick leave for various medical reasons or when the employee is a victim of family violence or sexual assault.

The CBIA has been lobbying hard against the measure; its issue sheet can be found here.   The complaints about the bill are that it ignores business needs, disregards economic realities, and misdirects efforts at an issue that is smaller than it thought.

It’s still unclear whether the votes will be there in the General Assembly, but one thing is for sure: We haven’t heard the last of paid sick leave.  

Tomorrow, I’ll be speaking as part of the CBIA Wage & Hour Rx program.  Full details are available here

The presentation will focus on the issues that can keep employers up at night and how employers can dig themselves out of some of the problems that they may face.

But in preparation for that presentation, I reviewed some laws that employer might easily overlook.

For example, under the child labor provisions, most people assume that the same rules apply across the board to all individuals under the age of 18. But state law provides an interesting exception — minors under the age of 18 who have graduated from high school are allowed to work at the same daily and weekly hours and times of day as adults.

In other words, minors who are high school graduates are exempt from Connecticut employment prohibited to minors, but there still may be federal employment prohibitions. (Conn. Gen. Stat. Sec. 31-12.

Another example of an overlooked provision is the requirement that employers with 25 or more employees to form a safety and health committee with employees. (Conn. Gen. Stat. Sec. 31-40v.)

What conclusions should employers draw?

There are many many employment laws out there.  It’s easy to just focus on the big ones, but don’t let the little ones trip you up either.  Be sure to self-audit not only what your policies state, but also how they are being implemented in practice. You might be surprised by what you find, but that should also lead to an opportunity to get into compliance sooner rather than later.