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.

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.

A federal bill banning workplace discrimination (known as the Employment Non-Discrimination Act “ENDA) on the basis of sexual orientation cleared a key procedural hurdle last night as the Senate voted to begin debate on the measure, 61-30.   Passage by the Senate is now expected later this week.   (You can find my prior coverage of ENDA beginning here.)

It’s a significant step for sure. But the prospects for ENDA in the House of Representatives look grim. 

A spokesperson for Speaker John Boehner said the Speaker would not support the bill.  “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”

Connecticut’s experience with its own workplace ban on sexual orientation discrimination does not support the Speaker’s arguments.

According to the statistics from the Connecticut Commission on Human Rights and Opportunities, in 2009-2010 (the last readily accessible statistics) there were only 53 employment claims statewide claiming sexual orientation discrimination.  There were nearly 10 times the number of race discrimination claims that were filed over the same period. 

That’s not to say that some of those complaints aren’t frivolous. Indeed, there were several claims that same year that were readily dismissed by the CHRO without further investigation. 

But that hardly justifies allowing a company to purposely discriminate against someone because of his or her sexual orientation or gender identity.  Apple’s CEO Tim Cook nailed it in a recent op-ed in the Wall St. Journal. 

Our good friend, Jon Hyman, posted about this yesterday:

Anti-discrimination laws that exclude sexual orientation and gender identity suggest that these forms of discrimination are permissible. Additionally, while I look forward to embracing the day that all forms of discrimination cease to exist, I would not argue for the abolition of all anti-discrimination laws if that were to occur. Instead, I would argue that the laws are working, and are needed as a deterrent to maintain the status quo.

For employers in Connecticut, there will be less impact from ENDA then in many other states. But for employers that still think its ok to treat your employees differently because of their sexual orientation, your time is thankfully running short.

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.

Over the last few days, I’ve had the great fortune of attending the American Bar Association’s Midyear Meeting, where I serve as a delegate from Connecticut in the House of Delegates — the organization’s main policy-making branch.   

(You can see all my tweets from the meeting at twitter.com/danielschwartz). 

Earlier this morning, Representative John Lewis (D-GA) gave the invocation at the HOD assembly and issued his prepared remarks. On Tuesday, he will receive the Presidential Medal of Freedom — the nation’s highest civilian award. 

If you are unfamiliar with his background, a short bio is here.  His work with the civil rights movement is legendary.

He reminded all of us that it was not that long ago when the rule of law took over to allow African-Americans and others true opportunities:

“When people say nothing has changed, I say come and walk in my shoes.  We have witnessed a non-violent revolution under the rule of law….

“As a young child, I tasted the bitter fruits of racial discrimination. My parents would say that’s the way it is, don’t get in trouble,"  But when he heard the words of Martin Luther King Jr. about non-violent protest on the radio, “I felt he was talking directly to me.”

“If it hadn’t been for lawyers and judges, we wouldn’t be where we are today,” Lewis said. “I went to jail 40 times, and it was members of the bar who got me out of jail, and I want to thank you.”

It’s easy to complain that sometimes enforcing our employment laws is onerous. And at times, it is.  Certainly, the myriad of workplace rules as they stand today place a tremendous unfair burden on businesses — particularly small ones who have to spend countless hours navigating through various state and federal laws.  Sadly, you sometimes need a lawyer now just to figure out what all the laws mean.  

But hearing the words of John Lewis, you can also be reminded of why at least some laws were needed in the first place.  It’s easy to dismiss the laws as a dated relic; Rep. Lewis reminds us that it still was not that long ago when it was legal to fire someone just because of their skin color. Whether the laws are functioning now as they were originally intended is an issue for another day.  

(Photo taken at the ABA Meeting; Rep. Lewis is greeting delegates (center)). 

Back in July, the proposed Paycheck Fairness Act, whose lead sponsor is Connecticut’s own Rep. Rosa DeLauro, was still just being tossed around. At the time, I noted that there was criticism of the statistics being used to justify the law.

Now, numerous outlets are suggesting that the bill is close to passage (here, here and here.) Jon Hyman, of the Ohio Employer’s Law Blog, has previously provided this excellent recap of the five significant changes that employers should be aware of in this bill.  They include modifications to the defenses can use, enhanced damages, new non-retaliation provisions, changes from an opt-in to an opt-out class action status, and new reporting obligations. 

The topic is one that is of interest to our current Connecticut senators. In March 2010, Sen. Dodd held a hearing on the subject here.  For more background, you can see all of my posts related to the subject here. 

In the meantime, employers should keep tabs on this new legislative initiative.

UPDATED

The health care bill debate seems all consuming. At least in terms of press coverage.

But yesterday, the House of Representatives passed a defense spending bill (H.R. 3326) that, according to the DC Employment Law Update:  "prevents most defense contractors and subcontractors from forcing their employees or independent contractors to sign, as a condition of employment, agreements to arbitrate certain employment-related claims. The Senate approved this provision … in October."

The arbitration provision conditions the receipt of a federal defense contract worth more than $1 million on two agreements by the company. Details of the provision can be found here and here. 

The bill would also extend the COBRA premium subsidy offered by ARRA from nine to 15 months. In addition, the job lost eligibility date would be revised to February 28, 2010.   The bill will now need to be reconciled with the Senate version and back for another vote before going on to the President for signature.

Similar provisions are being introduced in another bill so it seems more likely now that such a measure is going to be a reality before year’s end in one way or another.

For now, employers should sit tight on their COBRA documentation. We’re likely to see a year end scramble in the next week or so as Congress wraps this up for the year.

UPDATE: On December 17, 2009, the House also passed a jobs bill that contains further extensions to COBRA.  It now goes on to the Senate for further debate

The Capitol Watch blog is reporting this Thursday evening that the proponents of the Paid Sick Leave bill (H.B. 6187) are still one vote shy of passage in the state Senate:

The latest vote count shows the measure tied at 18 to 18 in the 36-member Senate. Eight Democrats are currently opposed to the bill, while two Republicans are in favor.

"We’re one vote short,” said Sen. Edith Prague, a longtime labor supporter. "Those eight [Democrats] are pretty firm. All we need is one vote.” ….

Lobbyists for CBIA, the state’s largest business organization, have been working the hallways on a constant basis as the clock ticks toward the end of the session. 

With its passage still in question at least for another 24 hours and with multiple amendments proposed, I’m going to hold off on a full recap of the measure until we get a better idea of what the bill is going to pass and in what form.

Until then, I’ll leave you with the Office Of Legislative Reports recap which states that the bill would be effective January 1, 2010 if passed and approved by the governor:

This bill requires most employers with 50 or more employees in the state to provide their employees with paid sick leave once the employee has worked 1,040 hours. Paid sick leave accrues at a rate of one hour for each 40 hours worked after the employee has worked 520 hours in 12 months. Current law does not require employers to provide sick leave, whether paid or unpaid.

Employees may accrue up to 32 hours of sick leave in 2010 [4 days] and up to 40 hours a year [5 days] in each following year. The leave can be used for an employee’s or the employee’s child’s illness or injury, treatment of an illness or injury, diagnosis, and preventive medical care. It can also be used for reasons related to an employee who is a victim of family violence or sexual assault.

It exempts manufacturing employers that provide some form of paid leave at a rate equal to or greater than the bill requires. It includes all other private sector and public sector employers with 50 or more persons. It deems an employer to be in compliance with its requirements if the employer offers paid leave that can be used for the same purposes and in the same conditions. …

*House Amendment “A” (1) changes the required number of hours an employee must work to be eligible for paid sick leave, (2) reduces the number of paid sick leave hours that can be accrued and used, (3) exempts employees under age 18 from its provisions, (4) exempts manufacturers that provide some form of paid leave at a rate equal to or greater than the bill requires, and (5) specifies it does not prohibit an employer from allowing employees to donate accrued sick leave to another employee.

 

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….

The debate on the bill requiring employees to offer paid sick leave to employees continued into Thursday evening. But the first votes on various amendments to the bill (including one that now becomes the bill) seem to indicate that its passage is likely.

The operative bill under debate now is House Amendment A, which passed 82-59, and is a substitute for the entire bill.  

Republicans are now introducing various amendments to the bill which mainly remove various provisions. Many seem likely to fail given the strong majority that the Democrats have in the House.

I’ll have a full recap of this landmark bill in the morning.  If passed later this evening, the bill would move to the Senate for a vote.  It’s unclear whether the Governor would veto this measure.  In the interim, CT News Junkie has been providing other news updates as well.