As we move deeper into the 2019 legislative season, the Connecticut General Assembly is considering several proposed bills in the state House and Senate that—if enacted—would affect employers in significant ways. With a substantial Democratic majority in both the House and the Senate—and a newly elected Democratic governor—there is a good chance that several employee-friendly bills will pass this year, including a new paid family and medical leave program. Below is an overview of the more meaningful bills that were recently reported out of the Labor and Public Employees Committee for review and action by the full Connecticut House and Senate.
Paid Family and Medical Leave
Senate Bill No. 1: An Act Concerning Paid Family and Medical Leave and House Bill No. 5003: An Act Implementing a Paid Family and Medical Leave Program would create a comprehensive system of paid family and medical leave funded by employee contributions. This proposal for a statewide program is the latest in a string of attempts over the last few legislative sessions. The proposed scope of coverage is broad and would significantly affect employers of all sizes. The current version of the bills would apply to most employers with at least one employee (as opposed to the current minimum threshold of 75 employees), with eligible employees defined as those who have earned $2,325 in the highest-earning quarter within the five most recently completed calendar quarters. This proposal dramatically changes the eligibility standard for state FMLA leave, which requires that an employee work for 12 months and 1,000 hours. In addition to the family members currently identified under the Connecticut Family and Medical Leave Act (CT FMLA), siblings, grandparents and grandchildren would be included as family members for whom leave may be taken. Employees would also be able to 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.”
The Family and Medical Leave Insurance Program would offer up to 12 workweeks of 100% compensation replacement (capped at $1,000 per week) to covered employees in any 12-month period, with an additional two weeks of compensation for serious health conditions resulting in incapacitation that occur during a pregnancy. Currently, employees can use 16 weeks of leave over a period of two years. By July 1, 2020, employees would have to contribute a percentage of their weekly earnings (not to exceed one-half of one percent) to the Family and Medical Leave Insurance Trust Fund. It is contemplated that the Family and Medical Leave Insurance Program would begin paying benefits by July 1, 2021.
An employee who is denied compensation would be able to file a complaint with the Labor Commissioner, who would hold a hearing and award any appropriate relief, including any compensation or benefits to which the employee otherwise would have been eligible. An aggrieved party would also be entitled to appeal the decision to the Superior Court.
The proposed legislation would impose notice obligations on employers at the time of hiring and annually thereafter. Individuals who make false statements or omissions of material facts to obtain compensation would be barred from receiving compensation for one year.
The Paid Family and Medical Leave Program has significant momentum and is widely expected to pass in some form later this year. Employers should keep a close eye on this legislation, as passage will affect employers previously not subject to CT FMLA’s coverage and, even for those employers previously covered by CT FMLA, would require changes to administrative processes including payroll and employee notices.
Minimum Wage Increase
Senate Bill No. 2, House Bill No. 5502, and Governor’s Bill No. 71791, all entitled An Act Increasing the Minimum Fair Wage, would amend Section 31-58 of the Connecticut General Statutes to increase the current minimum wage of $10.10 per hour to $15.00 per hour incrementally over the next several years. Senate Bill No. 2 and House Bill No. 5502 propose the following increases:
- Effective January 1, 2020 $12.00
- Effective January 1, 2021 $13.50
- Effective January 1, 2022 $15.00
The legislation proposed by the Governor is more gradual:
- Effective January 1, 2020 $11.25
- Effective January 1, 2021 $12.50
- Effective January 1, 2022 $12.75
- Effective January 1, 2023 $15.00
After reaching $15.00 an hour, all three bills propose that Connecticut’s minimum wage shall be adjusted annually in accordance with the percentage change for the consumer price index as calculated by the United States Department of Labor’s Bureau of Labor Statistics.
Sexual Harassment Prevention Training and Elimination of Certain Affirmative Defenses
With unanimous support, House Bill No. 5271 – An Act Increasing Sexual Harassment Training Prevention Training – moves out of Committee to the full House and Senate for review and potential action. Currently, Section 46-54 of the Connecticut General Statutes requires an employer with 50 or more employees to provide two hours of sexual harassment training to all supervisory employees within six months of their assumption of a supervisory position. House Bill No. 5271, however, would drastically expand that obligation by requiring employers with 50 or more employees to provide four hours of sexual harassment and education training to all supervisors each calendar year. The training and education, at a minimum, must cover (1) information on the federal and state statutory provisions about sexual harassment and remedies available to victims of sexual harassment; (2) the employer’s policy regarding sexual harassment; and (3) examples of the types of conduct that constitute sexual harassment, including, but not limited to, the spectrum of different behaviors that constitute harassment, ranging from verbal harassment to sexual assault.
House Bill No. 7044 – An Act Concerning Sexual Harassment in the Workplace – also moved out committee, albeit with dissenting votes. In addition to proposing the same training obligations as outlined in House Bill No. 5271, the companion legislation proposes to eliminate long-standing affirmative defenses related to sexual harassment complaints filed with the Commission on Human Rights and Opportunities (CHRO). Under the proposed legislation, it would not be a defense for an employer to contend that: (1) the complaint was properly investigated, immediate corrective action was taken, and no act of sexual harassment subsequently occurred; (2) the complaint was not reported to the employer prior to the complaint being filed with the CHRO; or (3) the employer has a policy prohibiting sexual harassment or recently provided training on the meaning and effect of sexual harassment. While these affirmative defenses would be eliminated, employers could submit such evidence on the question of damages. In addition, if the employer takes immediate corrective action in response to a sexual harassment complaint (e.g., relocation, reassignment, different work schedule), it must obtain written agreement from the employee before changing the employee’s terms and/or conditions of employment. Last, House Bill No. 5271 would provide the CHRO with the authority to award attorneys’ fees and costs, which it currently does not have.
Nondisclosure Agreements Related to Sexual Harassment
Senate Bill No. 697 – An Act Concerning Nondisclosure Agreements in the Workplace – would make it unlawful for an employer to negotiate an employment contract with an employee or prospective employee if the contract includes a nondisclosure clause, nondisparagement clause, or another provision with the purpose or effect of preventing the employee from disclosing or discussing sexual harassment or sexual assault occurring in the workplace or at a work-related event. The proposed legislation would provide employees with a private right of action, and employers could be held liable for compensatory damages, attorneys’ fees and costs, and punitive damages.
On-Call Shift Scheduling
Senate Bill No. 764 – An Act Prohibiting “On-Call Shift” Scheduling and House Bill No. 6924 – An Act Limiting “On-Call” Shift Scheduling – seek to drastically limit certain scheduling practices by employers in the mercantile trade, restaurant, hospitality and residential care industries by imposing burdensome notice, pay, and record-keeping requirements. The legislation would apply to employers with 25 or more employees, regardless of location.
An employer would have to pay employees half of their regular rate for any scheduled work hours they do not work due to the employer cancelling or reducing the employees’ work hours where: (1) the employees have already reported to work their scheduled hours; or (2) there is less than 72 hours prior to the start of the employees’ next scheduled shift.
Likewise, an employee could decline to work a shift that begins less than 11 hours after the end of the employee’s previous day’s shift or during the 11-hour period following the end of the employee’s shift that spanned two days. Further, if the employee consents to work such a shift, the consent would need to be obtained by the employer in writing and the employee would need to be compensated at one and one-half times the employee’s regular rate of pay for any hours worked during the shift.
In addition, voluntary written consent would be needed if an employer wishes to schedule an employee with less than 72 hours’ notice. Moreover, House Bill No. 6924 states that an employer shall not require an employee to sign a prospective agreement covering future shift changes prior to or during the employee’s employment.
Finally, the measure proposes that covered employers keep records for not less than three years showing: (1) the shifts worked each day and each week by each employee; (2) each employee’s work schedule; and (3) any revisions to such work schedules.
The proposed legislation would be effective October 1, 2019. Notably, there is no exception for employees covered by a collective bargaining agreement.
Paid Sick Leave
House Bill No. 6929 – An Act Concerning Temporary Employment Agencies and Paid Sick Leave – would amend Section 31-57r of the Connecticut General Statutes to extend statutory paid sick leave benefits to workers employed by employment agencies or temporary help services.
Breastfeeding in the Workplace
House Bill No. 7043 – An Act Concerning Breastfeeding in the Workplace – would require employers to make reasonable efforts to provide a lactation room in the workplace. The proposed bill also specifies that the lactation room be private, free from intrusion and shielded from the public, include or be near a refrigerator where an employee can store expressed breast milk, and include access to an electrical outlet.
Captive Audience Meetings
Senate Bill No. 64 – An Act Concerning Captive Audience Meetings – is intended to prohibit an employer from coercing employees into attending or participating in meetings sponsored by the employer concerning the employer’s views on political or religious matters. “Political matters” is defined to include the decision “to join or support any . . . labor organization.” The proposed bill also makes it unlawful for an employer to discharge, discipline or otherwise penalize an employee or a person acting on behalf of the employee of a suspected violation concerning captive audience meetings. Employees would be able to sue for such violations no later than 90 days after the date of the alleged violation, and, if a violation is found, the court could order all appropriate relief, including reinstatement, treble damages, and attorneys’ fees and costs.
Notably, former Connecticut Attorney General George Jepsen issued a formal opinion on similar legislation in April 2018. The Attorney General concluded that if faced with the issue, a court would conclude that the legislation’s provision prohibiting employers from requiring employees to attend employer-sponsored meetings to communicate the employer’s opinion concerning joining or supporting a union is preempted by the National Labor Relations Act (NLRA). Section 8(c) of the NLRA sets forth an explicit “free speech” exemption for employees and employers alike, which provides that “the expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any provisions of [the Act], if such expression contains no threat of reprisal or force or promise of benefit.” Current Attorney General William Tong has not publicly opined on Senate Bill No. 64.
Time Off to Vote
House Bill No. 358 – An Act Concerning Employee Voting Opportunities – requires employers to allow employees to have not less than four hours off to vote on the day of an election. The proposed legislation does not state whether an employer must compensate an employee for the time away from work and/or whether the employee could use accrued leave.
House Bill No. 6913 – An Act Concerning Covenants Not To Compete – would significantly limit the situations in which a Connecticut employer may use an enforceable covenant not to compete, defined as “a contract, provision or agreement that restrains an employee from engaging in any lawful profession, occupation, trade, calling or business of any kind in any geographic area of the state for any period of time after the termination of employment.” Under existing Connecticut case law, such covenants are generally enforceable provided they are reasonable in terms of duration, geographic scope, degree to which they protect the employer’s legitimate business interest, degree to which they restrict the employee, and impact of the public interest.
House Bill No. 6913 would essentially codify those requirements, and would also prohibit an employer from obtaining a noncompete from any employee whose base pay and benefits total less than twice the applicable minimum wage. In addition, under the proposed legislation a noncompetition agreement would be enforceable only if the agreement is signed by both parties, allows the employee at least 10 business days to review the agreement before signing it, and expressly states that the employee has a right to consult with counsel prior to signing it. While noncompetition agreements are currently enforceable against Connecticut employees who are discharged as well as employees who voluntarily quit, the proposed legislation would allow enforcement only when the employee has voluntarily left the employment without “good cause attributable to the employer.” Additionally, the proposed limitation would restrict the duration of noncompetition agreements to one year, except that a noncompete with a duration of more than one year but no more than two years may be enforceable if it provides for continuation of the employee’s base pay and benefits for at least one year following the termination of employment. The proposed legislation is not expected to have much of an impact on less-restrictive agreements that are designed to protect employers’ legitimate business interests, such as confidentiality and non-disclosure agreements, as well as anti-solicitation and anti-sales agreements.
Senate Bill No. 377 – An Act Prohibiting the Use of Noncompete Clauses in Physician Employment Contracts – would prohibit the use of noncompete clauses in physician employment contracts entered into on or after July 1, 2019. Physician noncompetition agreements are currently enforceable in Connecticut under limited circumstances.
To date, none of these bills has become law.