Over the weekend, the General Assembly approved a bill prohibiting employers, including the state and its political subdivisions, from asking, or directing a third-party to ask, about a prospective employee’s wage and salary history.

I have previously discussed the measure here.  There were a few versions floating around and it was House Bill 5386 that carried the day (as amended).

The prohibition does not apply in two situations:

  • if the prospective employee voluntarily discloses his or her wage and salary history, or;
  • to any actions taken by an employer, employment agency, or its employees or agents under a federal or state law that specifically authorizes the disclosure or verification of salary history for employment purposes.

While salary may not be inquired, the bill DOES allow an employer to ask about the other elements of a prospective employee’s compensation structure (e.g., stock options), but the employer may not ask about their value.

The bill has a two year statute of limitations. Employers can be found liable for compensatory damages, attorney’s fees and costs, punitive damages, and any legal and equitable relief the court deems just and proper.  This bill amends Conn. Gen. Stat. Sec. 31-40z

As amended, the effective date of the bill is now January 1, 2019.

The final bill is different from a prior bill because it eliminates provisions that generally would have (1) allowed employers to ask about the value of a prospective employee’s stocks or equity, (2) allowed employers to seek a court order to disallow compensatory or punitive damages, and (3) required certain employers to count an employee’s time spent on protected family and medical leave towards the employee’s seniority.

For employers, upon signature from the governor, this bill will become law.  As such, employers should notify all of their hiring personnel of the new restrictions that are likely to go in place effective January 1, 2019. I’ll have more updates after the legislative session winds down this week.

Recently, I had the opportunity to see Rags, a new revival now running at the classic Goodspeed Opera House.

I don’t often do theater reviews on this site, but I give it a thumbs up.

The musical tells the story of Jewish immigrants coming to the Lower East Side just after the turn of the century.

They experience outright discrimination and difficult working conditions.

So much so, that they end up even participating in a labor strike asking for better working conditions.

Of course, as an employment lawyer, I’m always looking for a good story to relate.

The musical obviously has undertones of today’s political environment, where refugees are facing barriers to entry from certain countries.

Workplace laws actually limit what employers should be asking in the interview process about immigration status.  And even when a Form I-9 is being process, an employer cannot reject valid documents or insist on additional documentation too.

And it can’t target certain people either.

The EEOC recaps it here:

For example, an employer cannot require only those who the employer perceives as “foreign” to produce specific documents, such as Permanent Resident (“green”) cards or Employment Authorization Documents. Employees are allowed to choose which documents to show for employment eligibility verification from the Form I-9 Lists of Acceptable Documents. Employers should accept any unexpired document from the Lists of Acceptable Documents so long as the document appears reasonably genuine on its face and relates to the employee.

Federal law also prohibits employers from conducting the Form I-9 and E-Verify processes before the employee has accepted an offer of employment.

According to the EEOC, “applicants may be informed of these requirements in the pre-employment setting by adding the following statement on the employment application”:

In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification form upon hire.”

I’ve always been a fan of learning from history. With a musical like Rags, you can get many employment law lessons in one.

Probably not the endorsement you will see from other theater critics, but you work with what you have.

Yankee Stadium will never be the same

On the surface, the premise of this column would seem to be a thinly-veiled attempt to work in the retirement of the greatest closer that ever played baseball — Mariano Rivera — into a post.

But I’ve actually had a few discussions about the topic of retirement in recent days and the two themes seem to work very well together.

If you watched the Yankees game last night, you also saw how to handle an employee’s retirement with class — which boosts morale for the entire organization.  It’s inspiring. After all, if that’s how you treat people are leaving, that must say a lot about you.

But most organizations don’t have a Mariano Rivera retiring this weekend.

Instead, suppose you had a 35 year employee, who you believe is near retirement, but you’re not sure.  You want to make some budget arrangements and you also want to be sure there is an employee who is trained who can take over for that employee when he or she retirees.  Can you, as an employer, ask the employee about his or her retirement plans?

A HR.com article from back in 2004 tackles this question head-on: “Although the Age Discrimination in Employment Act (ADEA) prevents employers from forcing older workers to retire, it does not prevent them from making inquiries that are non-coercive. This helps to avoid misunderstandings and, hopefully, age bias lawsuits.”

A more recent HRE Online article provides some additional case cites and support for the idea that you can ask employees about their retirement plans.  But it also stresses that you ought to be pretty careful when doing so as that remark can be misconstrued and distorted later on.

Once an employee has set his or her plan in motion, try to work with that employee and consider what you can do to thank the employee for their years of service. Whether that is a gift, or some contribution to a party, remember that it is the small stuff that matter.

As for Mariano Rivera, the Yankees let him set his own schedule for retirement.  He left Yankee Stadium with tears in his eyes. And ours.  This is one retirement that seems like it should be illegal.