It seems likely that some type of paid Family and Medical Leave (otherwise known as “Paid FMLA”) bill is going to pass the General Assembly.

CBIA recently posted about the pitfalls that await employers with passage with one CBIA staff testifying that “small businesses are terrified of this proposal.”  

But the “paid” aspect of the bill is only one part. I’m not going to cover that in this post, but there are plenty of resources already on what it might mean.

What hasn’t been widely reported is that the bill would allow nearly all employees at nearly all companies in Connecticut to take protected family and medical leave — a monumental shift from the limits that are currently in place.  But in another way, it would expand the ability of employees to take unpaid leave too.

A caveat – there are various versions of the bill floating around.  For purposes of clarity, Bill No. 1 – which has already passed the Labor & Public Employees Committee – is the one that I’m going to discuss.

Here are four areas to focus on:

  1. Eligible Employee: Currently, to be eligible for state FMLA leave, the employee had to work for 12 months and 1000 hours. The bill would change that to simply that the employee must have earned at least $2325 from one or more employers. Theoretically, you could start taking leave from Day 1 of a new job.
  2. Employers: Currently, only employers with 75 or more employees are covered. The bill would change that to one or more.
  3. Amount of Leave: Currently, employees get 16 weeks of leave over 2 years. The bill would change that to 12 weeks over one year (consistent with federal FMLA rules).  One caveat: Employees could take two additional weeks due to a “serious health condition during a pregnancy that results in incapacitation”.  No definition of incapacitation is given.
  4. Reason for Leave: Currently, eligible employees can take leave to care for spouses, children or parents with a serious health condition. The bill greatly expands that to siblings, grandparents, and grandchildren. It expands the definition of a parent to include in-laws and “individuals who stood in loco parentis to the eligible employee when the employee as a child”.  If that wasn’t broad enough, employees could also take leave to care for “any other individual related by blood or whose close relationship with the employee is the equivalent of a family member”.

What’s the Takeaway?

If you’re an employer that has less than 50 employees, you’ve likely never had to deal with FMLA claims at the federal or state level.  That may change very soon and dealing with the FMLA is not necessarily intuitive.

Suffice to say that this bill is a massive expansion of FMLA. Small employers are simply not equipped to deal with this and having employees out on leave — even from Day 1 — is going to present a significant challenge for employers, small ones in particular.

The bill is still being crafted and it’s quite possible that we’ll see changes as this progresses.  But Governor Lamont has indicated support for a bill of this kind.

For now, employers should talk with their legislators if this is something of interest to them and share their concerns.  And stay tuned. This is a bill that all businesses are going to want to follow closely.

The results are in: The General Assembly and the Governor’s office have been caught up in the Blue Wave in this state.  Instead of a split, the Democratic party will control a sizable majority in both houses and the Governor’s Office.

But with Governor-Elect Ned Lamont coming from a business-side perspective and touting the need to grow business in Connecticut, what are we likely to see in the next legislative session?

Already legislative leaders are talking about a push for a series of progressive-leaning bills that have been held up the last few years. The CT Mirror has this initial report:

A day after Connecticut experienced its own blue wave in the midterm elections, Senate and House Democratic leaders said addressing a minimum wage increase, tolls, and paid family medical leave will likely be among the top priorities the majority takes on in the upcoming legislative session.

Yes, two out of the three items cited are big employment law topics. Indeed, paid family leave has been talked about for several years.

Back in 2015, I noted what the contours of such a package might look like.  

Beyond minimum wage and paid family leave, what else should employers be on the watch for? A new bill on sexual harassment prevention training and perhaps even an expansion for claims of sexual harassment isn’t out of the question either.

The bill died on the floor earlier this year, but it’s hard not to think that with sexual harassment claims in the state on the rise, a bill on the topic isn’t far behind.

My early prediction? The 2019 legislative session is going to be a busy one.  Additional bills on strengthening unions may ultimately be on the table.

With a Blue Wave in the state, employers should be mindful that elections have consequences and those are going to be seen in 2019 at the General Assembly.

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.

 

The 2018 session of the General Assembly started last week and increasing workplace training is a top priority for passage.

Indeed, it is not surprising that we’re starting to see the first proposed legislation to address the number of harassment claims that have been making headlines the last six months.

Governor’s Bill 5043 sets up the following changes:

  • First, it would increase the number of employers that need to provide anti-harassment training — resetting the number of employees needed to fall under the statute from 50 to 15.
  • Second, the bill would also require all employees (not just supervisors and managers) to undergo two hours of what it calls “awareness and anti-harassment compliance training” and have that training updated every five years.
  • The training that now is just focused on sexual harassment prevention in the workplace, but would also be expanded to include all types of harassment—including that based on race, color, religious creed, age, sex, gender identity or expression, marital status, and national origin.
  • The training would also be required to include information about the employer’s policy against harassment, examples of the types of conduct that constitute and do not constitute harassment, strategies to prevent harassment, bystander intervention training and a discussion of “workplace civility” that shall include what is acceptable and expected behavior in the workplace.
  • The bill would require employers of three or more employees to continue to post information regarding all types of harassment and, on an annual basis, to “directly communicate such information and remedies to employees on an annual basis”.

My best guess is that this item of legislation will go through some additional tweaks to satisfy various constituencies, particularly because of the increased costs involved.

For example, expanding the training to all employees would create a massive new industry for training and, as the CBIA has said, a costly mandate as well.

There is more legislation coming down the pike in the employment law area.  This is just one of the items being floated so stay tuned.

In years past, I’ve looked at my crystal ball, I’ve read the tea leaves and I’ve even examined my Magic 8-Ball sitting in my office.  (You never know when you need one.)

I’m out of prediction-making tools.

And indeed, since I started doing this, there are now national lawfirms that are offering up their predictions on employment laws. And everyone is pretty much saying the saying thing nationally:

More focus on sexual harassment claims; more on pay equity;  big changes at the NLRB; more on LGBT employment law protections and still more wage/hour lawsuits.

I’ll make it easy: I agree.

But what’s missing is a look at the local perspective for Connecticut employers. So here are some fearless predictions for 2018 applicable to employers in Connecticut.

  1. It’s (still) the economy, stupid. Where’s the recovery? As it turns out, Connecticut’s economy and budget are both in a bit of a mess. Unemployment has crept back up of late and the General Assembly looks to be coming back to deal with a growing budget deficit. Are we in a recession?There’s no end in sight for this mess for 2018; that said, is the federal tax cut going to trigger some activity?I’m guessing not. I think layoffs and more use of independent contractors may carry the day here. And with that, will we see more lawsuits and more charges of discrimination? Let’s check back in a year.
  2. Count on an interesting Connecticut Supreme Court case or two. Each year, the Connecticut Supreme Court releases an employment law decision or two. Some are important to employers; several others are only notable for employment lawyers.This year, there’s one or two cases pending that may be both.  Keep an eye out for MacDermid Inc. v. Leonetti, which was argued in November 2017.  In that case, an employee signed a separation agreement which included a release of a pending workers’ compensation claim for $70,000 or so.  But the employee pursued the workers compensation claim and the Commission (and the Connecticut Supreme Court) found that the agreement didn’t bar the claim. The employer then sought return of the severance and a jury agreed. Now the employee appeals.  My guess: A close call but comparable federal “tender back” rules suggest employee may not need to return the severance for an invalid release. That said, I’m hedging a bit because the case is complicated with lots of briefing so don’t be surprised if a limited exception for the employer here is found.   (I’ll have more on this case in an upcoming post.)And there’s a decision expected in whether religious institutions have immunity from employment discrimination suits under Connecticut law.  Stay tuned.
  3. Less action from the General Assembly than you might think. It’s an election year for Governor. Moreover, the Senate is evenly split.  And if you following polling, the Democrats in the state seem to have some vulnerability.  All that adds up to a legislature that may be less active than you might think.That said, there’s likely to be a discussion about the use of confidentiality provisions in settlements of sexual harassment claims.  And more attacks on the use of non-compete agreements. But like the pregnancy discrimination law that was passed in 2017, expect a compromise that makes any proposal much more palatable to business interests.

So, there you have it.  Three fearless predictions in Connecticut employment law.

In the meantime, I need another cup of coffee this morning. Best wishes for a happy and healthy 2018.

My law partner, Gabe Jiran, talks today about whether it’s all that easy to change the terms of a collective bargaining agreement.  Is it just as easy as a vote? Or does it require something more? The answer has implications for all employers.  

With all of the talk about the financial difficulties faced by the government, I, and others in here, sometimes get the question of whether the State of Connecticut or other states might try to change the laws on collective bargaining or try to pass legislation to alter the terms of its existing collective bargaining agreements.

Other states have started down this road, but it is not that easy.

Recently, the Connecticut Attorney General was asked to opine on whether the General Assembly could statutorily change the contracts covering State employees to address the fiscal crisis.  A link to the opinion is here.

The short answer is that the State could do so, such as by passing a statute that wage increases be delayed or eliminated in State contracts.

However, the United States Constitution imposes a pretty heavy burden on the State to justify any such changes.

The relevant factors are:

  1. the severity of the fiscal crisis;
  2. the nature and duration of the contractual changes;
  3. the extent that the State has attempted to implement other alternatives in the past;
  4. the extent to which the State has studied and made findings about the feasibility of other alternatives;
  5. whether these alternatives would be a less dramatic option;
  6. the extent to which the fiscal crisis existed or was foreseeable when the State entered into the existing contract; and
  7. the State’s representations during negotiations for the existing contract.

Based on cases utilizing some or all of these factors, the State would face an uphill battle if it wanted to change an existing contract.

For example, a federal appeals court struck down the State of New York’s plan to delay wage increases for employees because New York had alternatives such as raising taxes or shifting money around in its budget.  In another New York case, the same court found that a $1 billion deficit was not a dire enough fiscal crisis to justify a delayed wage increase.

However, one case found that the City of Buffalo was able to impose a wage freeze when it was undeniable that Buffalo was in a fiscal emergency and that the wage freeze was a last resort after looking at other options.

In discussing the matters with others here, we expect that Connecticut and other states will continue to look for creative options to address their financial situations with employees.

However, it is doubtful that these options will involve changes to existing contracts without negotiation with the unions involved.  In addition, any State attempts to change contracts in the private sector would be almost certain to fail.

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.

GA2Today is the last day of the Connecticut General Assembly regular session.  So it’s a good time to take a look at some of the bills pending or passed.  Strangely, things seem pretty quiet on the employment law front.  But after the dust settles, I’ll have another update. Here is where we stand as of early this morning (Wednesday).

  • Last night, the Senate approved of the measure (House Bill 6668) expanding protections in the workplace for workers who are pregnant.  It was previously passed by the House.   I’ve covered the bill in depth before but it now goes on to the Governor for his signature.  The bill, if signed, would become effective October 1, 2017.
  • The House also passed a measure last night (H.B. 6907) that exempts certain professional drivers from coverage under the state’s unemployment law.. The exemption applies to drivers under a contract with another party if the driver meets certain conditions. The measure moves to the Senate but given the backlog of bills today, final passage is definitely unclear.
  • The Senate last night passed a measure (H.B. 7132) that streamlines procedures for filing workers compensation claims.  Currently, the law generally requires private-sector employees seeking workers’ compensation benefits to submit a written notice of claim for compensation to either a workers’ compensation commissioner or their employer’s last known residence or place of business. This bill requires private-sector employees who mail the notice to their employer to do so by certified mail. It also allows employers, except the state and municipalities, to post a copy of where employees must send the notice (presumably a specific address). The posting must be in a workplace location where other labor law posters required by the labor department are prominently displayed.  Under the bill, employers who opt to post such an address must also forward it to the Workers’ Compensation Commission, which must post the address on its website. Employers are responsible for verifying that the information posted at the workplace location is consistent with the information posted on the commission’s website.By law, within 28 days after receiving an employee’s written notice of claim, an employer must either (1) file a notice contesting liability with the compensation commissioner or (2) begin paying workers’ compensation benefits to the injured employee (and retain the ability to contest the claim for up to a year). Employers who do neither of these within 28 days of receiving the notice are conclusively presumed to have accepted the claim’s compensability. Under the bill, if an employer posts an address where employees must send a notice of claim, the countdown to the 28-day deadline begins on the date that the employer receives the notice at the posted address.The bill now moves to the Governor for his review and approval.
  • The General Assembly is also continuing to review a possible Paid Family and Medical Leave insurance scheme.  This bill (S.B. 1) is definitely one to watch over the next day and over any special session as well.
  • Senate Bill 929 would expand whistleblower protections under 31-51m. It has passed the Senate and is awaiting a vote in the House.  Existing law prohibits employers from discharging, disciplining, or otherwise penalizing an employee for certain whistleblowing activities, including reporting suspected illegal conduct to a public body.  This bill additionally prohibits employers from taking such actions against an employee for objecting or refusing to participate in an activity that the employee reasonably believes is illegal. Specifically, it applies to such beliefs about violations or suspected violations of state or federal laws or regulations, municipal ordinances or regulations, or court orders. The bill also (1) extends the time an employee has to file such a lawsuit and (2) adds to the possible remedies available to employees, including punitive damages in certain circumstances.

That seems to be it so far. A lot can change though today and employers should continue to be mindful of the shifting landscape. Even bills that appear “mostly dead” sometimes come back to life at the end — and particularly in special session as well. So stay tuned.

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.