Do you remember when the Target store data breach made news? This was not that long ago, and yet, five years later we’ve arguably become immune to the news.

Take Facebook’s latest snafu — 50 million accounts compromised.  And yet, it hardly made headlines for a 24 hour period.

Heck, even the U.S. State Department has had personal information about its employees breached in the last month — though “only” one percent may have been affected – so…yawn.

Have we become that immune to such breaches at this point?  Perhaps.

But that doesn’t mean that employers can let their guard down. Indeed, I would argue that new laws and regulations (including one in California) are making the job of employers even more challenging.

I’ll be talking about all of this at my firm’s upcoming Labor & Employment Seminar later this month with my colleague Ashley Marshall.  It’s scheduled for October 25th at the Hartford Marriott.

Here’s the formal program:

If You Collect It, You Must Protect It: Dealing with Employee Data Privacy Issues
Presenters: Daniel A. Schwartz and Ashley L. Marshall

Cyberattacks are on the rise and employers must take the necessary steps to protect employee data.  This session will address data protection worries of human resources and review state and federal laws and regulations pertaining to workplace privacy, including the Personnel Files Act, GDPR, California statutes, and HIPAA complaint releases. 

We’ve got several other topics being tackled too.  We are probably only a few days away from selling out so be sure to sign up for this complimentary seminar today.

Like most of America, I spent a few hours this weekend seeing the new Avengers movie.

(Don’t worry – no spoilers here in this post.)

But it’s amazing how much the Marvel Universe has permeated our pop culture the last few years.

So, it is with tongue firmly in cheek, when I use this post to talk about a presentation I’m doing tomorrow with my colleagues that plays off one such segment of these movies.

Entitled, “Guardian of Your Own Galaxy: Making Informed Decisions on Hiring (Legally) and Sharing Information (When Appropriate)”, we’re going to talk a lot about how the hiring decisions of Tony Stark (i.e. Iron Man), Pepper Potts and how Stark Enterprises is run.

Ok, one spoiler alert: No Tony Stark.

Instead, we’re going to talk all things related to the hiring process: Background checks, interview questions, school-related employment history checks, registry checks, credit checks, ban the box, etc.

We’re also going to talk about personnel files and how FOIA requests should be addressed in the context of information about personnel.

All of this is part of my firm’s Labor & Employment Spring Seminar: 2018 Public Sector Legal Update tomorrow.

Star-Lord and Drax will not be there but we hope to see you there.

On October 1, the rollout of major changes to the state’s Personnel Files Act becomes official.

If I had to hazard a guess, however, I’d say that many small to mid-size companies remain unprepared for the breadth and scope of the changes.  If you haven’t focused on it yet, you’ve got a weekend to catch up.  (I’ve covered it in prior posts like this one before.)

Here are the key things you need to know now about the new law:

  • Under the new law, an employer will now have seven business days (instead of a “reasonable time”) to permit a current employee to inspect AND, if requested, a copy of his or her personnel file.
  • For former employees, an employer will now have ten business days after receiving a written request to allow that person to inspect or get a copy of his or her personnel file. Such a request must come within one year of the date of termination of that former employee. An employer can comply with this section by mailing a copy of the personnel file within the same time frame if the employer and former employee cannot agree “upon a location to conduct such inspection”.
  • A copy of any documentation of any disciplinary action must be provided to the employee within one business day after imposing such action. (If there is no such documentation to begin with, it remains unclear if anything needs to be created, but certainly if you document your “verbal warnings”, a copy of that will likely need to be provided to the employee.)
  • When an employee’s employment is terminated, the employer now has to “immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.” Presumably, again, it does not require such documentation to be made (the language here isn’t as ambiguous); only that if there is such documentation, it needs to be given to the employee at the time of termination.
  • In addition, a statement in clear and conspicuous language in any documented disciplinary action, notice of termination of such employee’s employment or performance evaluation that the employee may, if he or she disagrees with it, submit a written statement explaining his or her position. That statement must be included in any personnel file.

As I’ve said before, each company may have their own take on what a “disciplinary action” means in the context of each workplace, so employers should consider consulting their preferred legal counsel for additional advice on how to comply with this law.  Of course, the law doesn’t completely override other aspects of the law too which you should familiarize yourself with. 

If you’ve been putting off this issue until you had a firm deadline, that deadline is now upon us.

Time to get to work.

As you’ve no doubt noticed, I’ve taken a few days off from the blog to attend to the logistics that a new job entails and also attend the ABA Annual Meeting earlier this week.  There have been some interesting developments in both the FLSA and FMLA the last few days so look for posts on those topics and the ABA meeting soon.

In the meantime, I’ve had several discussions with people lately about the implications that Connecticut’s revised Personnel Files Act will have on their companies on October 1st — the law’s effective date.

I’ve previously summarized the law in a prior post here so I won’t repeat all I said there.

The most frustrating provision is the new Sec. 31-128b(c) which states as follows:

Each employer shall provide an employee with a copy of any documentation of any disciplinary action imposed on that employee not more than one business day after the date of imposing such action. Each employer shall immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.

There are a few issues that come out of this:

  • First, the requirement to provide a copy of any documentation of any disciplinary action is a new one. More than that, it needs to be done “not more than one business day” after imposing the action.  Is that the date that the decision is made or told to employee? What about a suspension that takes place the following week; is it the date the suspension first occurs or some other date?
  • But then suppose the employee is out of the office on suspension, will mailing a copy of the notice suffice? If so, when is the notice effective? The date of mailing or date of receipt? What about e-mail? These questions are left unanswered though you have to think from an enforcement perspective that the CTDOL will adopt some type of reasonableness standard along with this.  (Remember too that any violations of the Act are to be handled by the department itself.)
  • But the issues go on: look at the phrase “any documentation of any disciplinary action imposed on that employee”.  What is exactly the scope of “any documentation”? Just the notice of the discipline itself? Or everything leading up to it too, including an investigation? The reasonable interpretation would seem to suggest just the actual discipline itself, but will the CTDOL take a similar position for enforcement purposes?
  • Next up, when an employee’s employment is terminated, the employer must “immediately” provide a copy of any documented notice.  What about a notification over the phone with a followup letter? Does that satisfy the purposes of the statute? After all, in some instances, it may be impractical to bring an employee who has been suspended back to the workplace just to fire him or her.  Again, the new law leaves this bit confusing too.

There are, of course, other issues to deal with on this new law.  Employers have about 6 weeks left to update their policies and figure out how to deal with requests for personnel files too.  Time is ticking so be sure to consult with your local employment counsel if you are unsure how to proceed.

The General Assembly finished its business for 2012 last night and although there was a last minute flurry of legislation, several bills that had been tracked by many employers came up short.

A bill affecting construction (or project) labor agreements did pass earlier this week. The Hartford Business Journal recaps it here:
Connecticut lawmakers approved legislation that allows government agencies to negotiate labor agreements on construction projects, The Associated Press reports.
The House on Monday voted 109-37 to approve the measure, following Senate approval last week. It now goes to Gov. Dannel P. Malloy, who has promised to sign it.
Malloy emphasized parts of the legislation that give the state transportation commissioner more flexibility in directing how high construction and maintenance projects are contracted. The governor says the legislation will make Connecticut more competitive in applying for critical federal money.
The legislation allows government to negotiate so-called project labor agreements that establish a dispute resolution process between contractors and unions.

The dust is still settling this morning, but in contrast to 2011, it looks like employers won’t have as much to worry about this year.

As the legislative session winds down, there’s one big issue still alive that has been passing mostly under the radar of the mainstream press.  (To the CBIA’s credit, they’ve been tracking this bill for a while.)

Under current law, an employee has the right to inspect and receive a copy of his or her personnel file.  House Bill 5235 would amend this statute in several important and significant ways.

Changes to Personnel Files Act?

First, it would speed up the the time an employer has to provide a current or former employee with access to his or her file.  Second, it would require employers to provide employees with copies of documentation of any disciplinary action or termination.  Third, it would require employers to notify employees that they can include a written statement in their personnel file disagreeing with the employer’s discipline, evaluation, or termination of the employee.

These proposed changes do not come in the middle of any “crisis” with the current law in Connecticut. Indeed, I’m not aware of any notable case pending at the Connecticut Department of Labor brought by an employee who complained that the current system was unfair or that his or her employer was not complying with the law.  Connecticut is one of the few states with laws on the books to begin with. 

Yet, these proposed changes could have a substantial impact on the way employers manage their workforce.

As noted above, an employer would be required to provide an employee with a copy of “any documentation of any disciplinary action imposed on that employee” not more than one business day after the date of imposing such action. Each employer shall immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.

But there are two important questions left unaddressed by this.

First, many times employers just provide a “verbal” warning to an employee.  This is done in many instances for the employee’s benefit; after all, if an employee is late for work, employers don’t want to turn that incident into a big deal. Thus many employers simply use a:  “Hey, Sue, I’m just warning you, let’s try not to be late again. Next time, I’m going to have to write you up.”  Does this now need to be in writing?

Which leads to the second question: What is a “disciplinary action”?  Is it an actual penalty? A meeting with the employee? A verbal warning described above? Is it similar to an “adverse employment action” as that term is used in discrimination cases?

I understand from several sources at the legislature that the portion of the bill regarding “disciplinary action” is being strongly opposed by several groups so it remains to be seen whether this bill will be considered in its current form or even considered at all.  An amendment is being floated around so you can keep track of the bill here.

The General Assembly is always full of surprises.    It’s the busy season for the Connecticut legislature and a number of employment-law related proposals are still “alive”. 

(I use “alive” in the generic sense because the bills have merely passed committee; whether they will end up getting voted on is an entirely different question. For further updates from a business-perspective, the CBIA has been providing weekly updates.) 

So what are some bills to keep an eye on?

The legislative session ends on May 9, 2012.  Expect the unexpected over the next few weeks.

While everyone remains focused on the bcourtesy morgue fileudget dilemma at the state legislature, other business — slowly and quietly — is still occurring. 

Late last month, the House unanimously passed H.B. 6185, a measure that would create civil penalties for employers that do not provide access to personnel files of their employees. 

Specifically, this bill subjects any employer, officer, agent, or other person who violates the provisions of the Personnel Files Act to a $300 civil penalty for each violation.

The Labor Department imposes the penalty and can ask the attorney general to initiate civil action to recover any unpaid penalties.

The bill now moves on to a Senate vote where, if it gets put on the calendar, its prospects seem strong.  Nevertheless, many bills never make it to a vote so its eventual passage is no sure thing.

For employers, compliance with the Personnel Files Act should be routine.  I’ve previously discussed the basics of personnel files in posts here and here.