Yesterday, I tackled the bills floating around the Senate-side of the Connecticut General Assembly,  In today’s post, let’s look at the House side to see what bills are under consideration there:

  • House Bill 5003 is the mirror-image bill of Senate Bill 1 on Paid Family & Medical Leave.  Yesterday’s post gave the highlights, which apply equally to this bill too.
  • Similarly, proposed House Bill 5004 would raise the minimum wage in the state. The details are still to be drafted, but the CBIA has been asking for the raise to $15/hour to be scheduled over multiple years.  Some version of this is very likely to happen; it’s just a matter of timing of increases from the current $10.10 rate.  $15 per hour seems to be the prevailing wisdom.
  • Proposed House Bill 5053 would create a task force to look for employment opportunities for persons recovering from substance abuse. The details are to be drafted by the Labor & Public Employees committee and the bill will be up for discussion at a public hearing on February 14, 2019.
  • Proposed House Bill 5271 would re-introduce requirements that would broaden sexual harassment prevention training for employers.  The details, again, are still lacking but at a press conference last week, several legislators reintroduced a so-called “Time’s Up Act”.  This is definitely going to be subject to negotiation and change. While the 2018 died in session, it seems likely we’ll see something coming up again later this spring.
  • Proposed House Bill 6111 would allow employers to require employees participate in a direct deposit program for paychecks.  This bill is up for a public hearing on February 14, 2019.
  • Proposed House Bill 6113 is one that I don’t think we’ve seen much before. It would prohibit asking about an applicant’s date of birth or date of graduation on employment applications to “reduce age discrimination”.   Many employers have already taken those questions off their job applications to avoid even the impression that age is a consideration in their decisions; this bill would make that more explicit.  A hearing on this bill is set for February 14, 2019 as well — looks to be a busy hearing.
  • Proposed House Bill 6913 would prohibit “certain employees” from being required to sign “unfair” non-compete agreements.  Who those employees are and what terms would be “unfair” is likely to be the subject of the public hearing on this proposed bill on February 14th as well.  Proposed House Bill 6914 would create a similar ban on non-compete agreements for employees below a certain salary threshold.
  • Proposed House Bill 6936 would take a look at deductions for union dues, seemingly in direct response to the Janus decision. The details are still TBD but this is one that still merits an eye on.
  • Proposed House Bill 7043 would dictate certain requirements for lactation rooms in the workplace.  Rooms should be private, should contain or be near a refrigerator, and include access to a power outlet.  The bill also would make employers provide “breastfeeding support” for up to three years after childbirth.  The details of this bill are still TBD and this bill will be up for discussion at the February 14th hearing.  

To be clear, these are only the list of bills coming out of the Labor & Public Employees committee.  Each year, bills from other committees (including Judiciary) also have a tendency to impact employers.  There is plenty for employers to keep an eye on this year.

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.

Earlier this week, it seemed that a bill requiring employers to conduct additional training on sexual harassment matters was a no-brainer to pass the General Assembly.

After all, Senate Bill 132 passed 31-5 in the state Senate and in this #metoo environment (not to mention local elections in the fall), the House looked to be a near certainty.

But a lot can happen in a few days, and some of the bill’s more controversial provisions were simply too much for the bill to overcome.

Thus, employers do not yet have to worry about the new training requirements and changes to the state’s anti-discrimination laws.

That said, employers still need to follow existing state law regarding training of supervisors (if applicable) and should still exercise caution in dealing with cases of harassment.

One bill that did receive passage late last night was Senate Bill 175, which I haven’t talked much about.

That bill makes a number of changes to government and quasi-public agencies. (In other words, these aren’t applicable to private employers).

Sections 8 and 501 are the key provisions in employment law and limit the use of non-disparagement and non-disclosure agreements.  According to the OLR report:

  • Beginning October 1, 2018, the bill generally prohibits state and quasi-public agencies from making a payment in excess of $50,000 to a departing employee in order to avoid litigation costs or as part of a non-disparagement agreement. Under the bill, “state agency” means executive branch agencies, boards, councils, commissions, and the constituent units of higher education.
  • For state agencies, the bill allows such a payment if (1) it is made under a settlement agreement that the attorney general enters into on the agency’s behalf or (2) the governor, upon the attorney general’s recommendation, authorized it in order to settle a disputed claim by or against the state.
  • It also specifies that, any settlement or non-disparagement agreement cannot prohibit a state agency employee from making a complaint or providing information in accordance with the whistleblower or false claims act.
  • Similarly, any settlement or non-disparagement agreement cannot prohibit a quasi-public agency employee from making a complaint or providing information under the whistleblower law.

For readers who work for the government, these particular provisions — namely seeking approval from the AG’s office — should be reviewed over the next few months.

Update: A few days after this post, the General Assembly failed to give final approval to this measure, leaving it to die at the end of the legislative session on May 9, 2018.  

Early Friday morning, the state Senate approved a bill that would significant broaden the sexual harassment prevention training requirements and many other provisions in discrimination law.  A similar (but notably different) bill passed the House; now, this Senate bill on the House calendar for this week.

It’s not a done deal just yet, but here are the key provisions of Senate Bill 132 (as amended) as it seems probable this bill is close to final passage.  Thanks to the OLR for summarizing the key aspects of the bill of which I’ve borrowed heavily from.

TRAINING

  • The bill would change the training requirements for sexual harassment prevention.
    • It would require training for supervisory employees of all employers, regardless of size
    • For nonsupervisory employees of employers with 20 or more employees, it would also require training.
    • Overall, the training would need to take place by October 1, 2019 with some additional tweaks specified in the bill.
  • The bill requires CHRO to develop and make available to employers an online training and education video or other interactive method of training and education that fulfills the bill’s training requirements.
  • Under the bill, employers who are required to provide such training must, at least every ten years, provide supplemental training to update employees on the content of the training and education.

INFORMATION AND POSTING

  • Currently, employers must post a notice that (1) that sexual harassment is illegal and (2) of the remedies available to victims. Under the bill, this information must be sent to employees by email, within three months of hire, if the (1) employer has provided an email account to the employee or (2) employee has provided the employer with an email address. The email’s subject line must include “Sexual Harassment Policy” or something similar.

Continue Reading Revised Sexual Harassment Training Bill (And So Much More) Close To Final Passage

It was only a few years ago that the phrases “unconscious bias” or “implicit bias” started making the rounds in the legal community.

I can trace the discussion on this blog to a 2014 guest post from a former law professor of mine, Kim Norwood, who talked about it in the context of her own experiences here.  I also talked about it in the context of a 2014 study that showed that married men with stay-at-home wives had negative attitudes towards working women.  

Implicit bias has gained steam over the last several years. Indeed, Professor Norwood came to our firm in 2015 to give a presentation on The Mischief Biases Play in Law and the Legal Profession.  Suffice to say, it was well received and she was asked back again for a further presentation.

All of this is a precursor to what I think may be the biggest development thus far in the mainstreaming of the “implicit bias” theory and training.

Earlier this week, Starbucks announced that it will close all 8000+ of its stores next month to conduct anti-bias training for its 175,000 employees.  My guess is that it is one of the biggest single-day training events of its kind attempted in the United States.

The open question is: Will such training work? 

According to The New York Times article, the answer remains unknown.  Some studies show their effectiveness. But in some instances, it can have a negative effect as well.

Other academics and experts on bias caution that anti-bias training is a sensitive exercise that can be ineffective or even backfire if handled incorrectly. Any training that involves explicitly telling people to set aside their biases is especially likely to fail, said Seth Gershenson, an economist at American University who has also studied anti-bias training, because it requires so much mental energy it can exhaust people.

Even with training, some said, it is exceedingly easy to revert to the original biases. “In the moment of stress, we tend to forget our training,” said Mark Atkinson, the chief executive of Mursion, which provides a simulation platform for training workers in skills like interpersonal interactions.

I’m eager to see how Starbucks continues to develop this. Its response to an earlier incident may be used as a role model to other companies who have had to deal with these types of issues. We should all be hoping its succeeds.

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 trying to eliminate sexual harassment in the workplace, how do we go beyond just training?

That is, in essence, the question that my colleagues (Jarad Lucan and Ashley Marshall) and I have been talking about recently.

And, fortunately for you, a topic of a free CLE webinar we are putting on a few weeks.  It’s set for February 13th at 12 p.m.

What we are really looking at is how do you get your company culture and actions in line to try to reduce and eradicate sexual harassment from your workplace?

It does not, obviously, happen overnight.  Perhaps it’s revising your policies. Perhaps it’s adding an ombudsman program if you’re large enough.

Or perhaps it involves encouragement of employee complaints so that you can tackle the issue more directly.

There is no one size fits all to this but it’s an important enough topic (naturally) that we wanted to devote a CLE webinar just to this.

Hope you can join us for this timely topic.

After a break for the holidays, my long-running discussion with Nina Pirrotti, an employee-side attorney , returns. Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association, a current member of the Executive Board of NELA, and a frequent presenter on employment law topics.

In one of our prior discussions last year, we talked about whether we were seeing the beginning of a trend of sexual harassment matters after the Fox News scandals.  Now, after the last few months, we revisit the topic further to see where we are.  Let us know what you think about posts like this in the comments below.    

Nina: A warm hello to my management lawyer friend!  I could not think of a more opportune time to re-kindle our dialogue about sexual harassment.  For me, having Time Magazine name its Person(s) of the Year as the Silence Breakers has been the gratifying culmination to a year of sea change on this vital topic.

I got to tell you Dan (and in so doing will undoubtedly reveal to our readers that I lead an embarrassingly sheltered life), that before Taylor Swift exhibited the courage to subject herself to countersue David Muellerman (the man who sexually assaulted her and brought an unsuccessful lawsuit against her for defamation when she outed him)  I did not even know who she was.   She is my new hero.  She sued him for a symbolic $1 and she did it, she said, because she wanted to empower other women who have been sexually harassed and assaulted to come forward.

Well, I don’t need to tell you that they are coming forward in droves.  It is as if a switch has been flipped.  The paradigm has shifted and women who once felt that they had to suck it up in order to feed their families and save their careers are beginning to have hope that they no longer have to make that Hobson’s choice.  And just as gratifying as this loosening of fear in victims of sexual harassment and assault about coming forward has been the employers’ swift responses in holding the predator (no matter how lofty his perch) accountable.    Hallelujah!

Is this the beginning of the end to sexual harassment as we know it?  I wish.  Did you notice that cropped elbow that is in the photograph of the otherwise well-known faces on the front cover of Time’s Person of the Year issue?  The elbow symbolizes the millions of women who endure sexual harassment and assault and do not come forward for fear that their careers, their reputations, their families, and/or their personal safety are at stake if they do.

While I am gratified by the swift and appropriately severe responses to sexual harassment and assault committed by powerful men in the public eye, most of the sexual harassment and assault victims I represent do not have that leverage that comes with an outed perpetrator who has a public persona.  In such cases, too often, unless the employer fears public exposure, I find it does not have that same sense of urgency to take action.

What about you, Dan?  What does this surge in reporting indicate to you?  Are you finding more clients who are interested in taking preventative measures?  What are their concerns?

Dan: Happy New Year to you Nina! So, it’s been quite an interesting few months.  Everyone seems more busy.  Before I talk about that, it’s worth emphasizing that lost in all this reporting is that the incidents of misconduct that are making headlines are really varied in scope.  You have incidents of outright sexual assault being tossed together with conduct that may (or may not even) be classified as sexual harassment.    

And that is what I’m concerned about now.  A tasteless joke in the workplace is clearly NOT the same as some of the incidents that, say, Harvey Weinstein is accused of. (You can look it up; this is a safe for work blog, after all.)  And so, yes, we’re hearing more incidents reported. But that doesn’t necessarily translate to more credible claims.  I’ve heard from other attorneys representing employees that they’re seeing twice as many cases come in to them but they aren’t taking a lot more cases. 

And as we know, we’re still months away from seeing new lawsuits arising from these claims too.  What happens by then?

It’s too early to predict that the #MeToo movement won’t have the same impact six months from now (I happen to think that it will) but even since the holidays it seems the press is starting to move on a bit (Golden Globes, notwithstanding).  It’s hard to keep up the pressure that the end of 2017 had.

For employers, it’s important to not get caught up in assuming the worst and thinking that everything they’ve been doing has been a failure.  Much HAS changed over the last 20 years.  I do think, though, it’s an opportunity for employers to re-evaluate their training. They can also take a look at their culture: Are there any expense reports revealing something more nefarious (a Gentleman’s Club visit perhaps?)? Is it time to institute a “no-dating” policy for supervisors/subordinates? And where are your weak spots? Continue Reading The Dialogue: The Shifts That #MeToo Are Creating in the Workplace

In yesterday’s post, I talked about the basics of what is and is not “sexual harassment”.

Continuing the theme of going back to the basics, employers in the Constitution State have certain posting and training requirements that must be followed.

These requirements are found in the administrative regulations set up by the CHRO regarding sexual harassment prevention.

I first detailed these in a post WAY back in October 2007 (!) but they remain just as important today as ten years ago.

For posting: All employers who have 3 or more employees must provide notices that say sexual harassment is illegal and address what the remedies are for such harassment.

But here’s a free shortcut: The CHRO has prepared a model poster that complies with the statute and is free to download.  You can do so here. 

It’s a good time to remind employers too that employers should also update their “Discrimination is Illegal” poster also offered by the CHRO.  The poster was updated in October and again, is free to download here.  

For training: The training requirements only apply to employers who have 50 or more employees and apply only to supervisory employees.

Of course, this does not mean that employers who have less than 50 should NOT provide the training; indeed, offering the training can assist with a defense of a potential sexual harassment training.

Specifically, within 6 months of a new supervisor being hired or an employee being promoted to a supervisory position, the employee must receive at least two hours of training.

The format of the training should be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers.

The CHRO has indicated, in an informal opinion, that some e-learning training may satisfy this requirement.  Regardless, the training must also include discussion of six discrete topics such as what the state and federal laws say, what types of conduct could be considered sexual harassment, and discussing strategies for preventing such harassment.

Those topics are:

  • (A) Describing all federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply, including, but not limited to, the Connecticut discriminatory employment practices statute (section 46a-60 of the Connecticut General Statutes) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section 2000e, and following sections)
  • (B) Defining sexual harassment as explicitly set forth in subdivision (8) of subsection (a) of section 46a-60 of the Connecticut General Statutes and as distinguished from other forms of illegal harassment prohibited by subsection (a) of section 46a-60 of the Connecticut General Statutes and section 3 of Public Act 91-58;
  • (C) Discussing the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving persons of the same or opposite sex;
  • (D) Describing the remedies available in sexual harassment cases, including, but not limited to, cease and desist orders; hiring, promotion or reinstatement; compensatory damages and back pay;
  • (E) Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
  • (F) Discussing strategies to prevent sexual harassment in the work place.

Here the kicker: The regulations suggest (but do not mandate) that such training be updated for ALL supervisory employees every three years.

What does this mean? It means that if an employer wants to project an image that it has a strong policy against sexual harassment, it should consider following this advisory regulation to show that it is doing above and beyond what is required.

The regulations also suggest (but do not mandate) that records be kept of the training.

Again, it is a wise course of action to follow.

If you haven’t taken a look at your posting and training materials at your company, now is a good time to do so.

With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.