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.

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.

 

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.

If at first you succeed, try it again. 

Well, that may not be how the saying goes, but the first back-and-forth post between me and Nina Pirrotti, an employee-side attorney, was so well received that we’re back for another conversation. 

Today’s topic: What legislation are we both keeping our eyes out for at the Connecticut General Assembly?  

The Dialogue Begins

Dan Schwartz: So Nina, our first post was such a hit that I think we’re due for an encore.  Thanks for being up for this.

It has only bewn a few weeks, but it feels like we’re moving at warp speed on developments.  We could spend another post just on The Donald, sorry, Mr. President. Somehow I think we’re likely to talk about that again soon.

But let’s focus today on some of the legislative items we’re keeping an eye on, particularly in Connecticut. Each year, it seems like our General Assembly likes to roll out fresh employment law ideas.

Is there a particular bill that you’re keeping your eye on now from an employee-side perspective?

nina_t_pirrotti1-150x150Nina Pirrotti: I’m so glad you asked!   Yes, let me tell you about one bill that has been on my mind on the federal level (I am speaking about it at an ABA conference in sunny Puerto Vallarta really soon) and then I will give you a couple of highlights from our backyard.  

The federal bill that looms large for me right now (although concededly perhaps not as large as the prospect of sitting on the beach, tequila based beverage in hand) is the misleadingly named  Lawsuit Abuse Reduction Act (“LARA”) which would force judges to respond to Rule 11 motions in a particular manner. 

Rule 11 allows for the possibility of sanctions to be imposed on attorneys or parties who submit (or later advocate for) pleadings which have been filed for an improper purpose or which contain frivolous arguments or claims. 

While Rule 11 motions rear their ugly heads relatively rarely in litigation, a newly invigorated Republican majority in Congress has proposed LARA which would amend the sanctions provisions in Rule 11 to remove all judicial discretion – – regardless of the circumstances of the individual case- – in two critical respects. 

First it would require the court to sanction any attorney, law firm, or party who violates the rule.  Second it forces judges who find the rule has been violated to order the offending party to pay  the other party’s attorneys’ fees and costs.  Those in my world who oppose LARA say that there is no proof Rule 11 is not working in its current form, that the changes would burden the courts and that  its “once size fits all” mandatory sanctions would unfairly penalize employees in civil lawsuits.

Closer to home, two bills come to mind.  The first is a proposed modification of C.G.S.A. 31-51m, a statute which bars employers from retaliating against employees who report  employers’ unethical or legal wrongdoings to public bodies. 

The modification seeks to  protect employees who complain about such conduct internally or who refuse to participate in an activity they believe to be in violation of the law.   It also seeks to extend the timeline to bring an action under the law (employees now have only 90 days to file) and to provide for a greater array of damages if the employer violates the statute.

The second is a proposal to provide eligible employees with paid Family and Medical Leave Act leave.  The proposed legislation would require employees to contribute 1/2 of 1% of their wages to it (there would be no employer contribution) and employees cannot opt out it.   

We plaintiff employment lawyers would welcome both pieces of legislation as long overdue and reasonably tailored to protect Connecticut’s workforce.

What are your thoughts from the other side of the aisle, Dan?    Or is there other proposed legislation that has captured your attention?

Continue Reading The Dialogue: What Legislation We’re Keeping Our Eyes On

Here we go.

Last December, I talked about how a legislative proposal to bring paid family and medical leave to Connecticut was likely.

Turns out, not only was it likely, but that there would be a big public relations push on it as well.

The bill is still in its formative stages at the legislature, but the essence of the proposal is an employee-funded system with employers withholding a percentage of the employee’s pay.  The Hartford Courant reported on this push this week.

In yesterday’s CT News Junkie, Carolyn Treiss, the Executive Director of the Permanent Commission on the Status of Women, posted a notable piece on why the time is right for paid family & medical leave.

The Permanent Commission on the Status of Women (PCSW) and the Connecticut Women’s Education and Legal Fund (CWEALF), two organizations that worked on the original FMLA legislation, are teaming up in leading the charge on this expanded version of family and medical leave, because women are still the primary caregivers in times of need. To be sure, paid leave would benefit everyone, regardless of gender. But the reality is that too many women of childbearing age see their careers derailed just as they are taking off. Women in their mid-20s to early 40s are the demographic employers seek most often, and yet the biological clock has its own imperatives. And what of women at the prime of their careers who must increasingly act on behalf of aging parents, or who suddenly find themselves dealing with an illness of their own (or that of a spouse)? It’s hard to “lean in” when there’s no employer-sponsored provision to lean against.

The CBIA has previously issued a report noting that this type of program would be similar to an unemployment compensation scheme — and very expensive to implement.

I’ll be talking about this and more at a presentation tonight at the Connecticut Bar Association’s Labor & Employment Committee meeting. My talk — really more of a discussion — will be on three “hot” items in employment law for 2015.  Hope to see you there.

For the rest of you, keep a close eye on this important legislative development this year.

 

The dust is still settling from the mad dash that is the end of the Connecticut General Assembly session. 

I’ll have more in the upcoming days as events warrant, but here’s a quick look at a few items that I’ve been tracking in recent weeks. 

  • A bill (HB 6658) restricting the use of non-compete agreements passed last night. But it is a watered-down version of the previous bill.    As summarized by the OLR: “This bill voids certain noncompete agreements between an employer and an employee made, renewed, or extended on or after October 1, 2013, unless before entering into the agreement, the employer provides the employee with (1) a written copy of the agreement and (2) at least seven days, and more if reasonable, to consider the merits of entering into the agreement.” 

    The important caveat is that this applies only when “(1) an employer is acquired by or merges with another employer and (2) as a result of the acquisition or merger, an employee’s continued employment is conditioned on the employee entering into a noncompete agreement.”  

    The bill allows an employee to waive his or her right to have a noncompete agreement rendered void pursuant to the bill by signing a separate document that describes the right he or she is waiving before entering into the agreement.If signed by the governor, it would become effective October 1, 2013.  For employers with mergers or acquisitions, this should be added to any due diligence checklist and any list of closing documents to be considered. 

  •  Two bills — to amend the state’s CHRO-related statutes, and to amend the paid sick leave bill to “fix” certain items did not receive a final vote (here and here) before the session ended. Passage had been expected in recent days, but I’ve heard unconfirmed reports of illnesses and last-minute opposition that did in the bills. Regardless of the reasons, those bills did not pass in their native form. 
  • A bill that would restrict employers from asking for the social media passwords of their employees also did not receive a final vote
  • A bill (HB 6553) to study  the “feasibility of establishing an insurance program to provide short-term benefits to workers who are unable to work due to (1) pregnancy or the birth of a child, (2) a non-work-related illness or injury, or (3) the need to care for a seriously ill child, spouse or parent” did pass the General Assembly. I’ve recapped the bill previously
  • A bill that would have significantly expanded the free speech rights of private-sector employees failed to receive final passage before the session ended

Note: This is by no means a complete list of bills under consideration or that have passed; it’s just a preliminary run through of some of the bills I had been following.   Be sure to check with your local counsel or the CBIA if there is a particular bill that you have been following or concerned about.