Employers in Connecticut are now finding themselves on the cusp of having to navigate several challenges pertaining to new protections and benefits afforded to employees. Each of these changes comes thanks to a very active legislative session in 2019.
Here’s what you need to know about these recent changes:
All Connecticut employers with three or more employees are now subject to expanded notice and training requirements pertaining to sexual harassment prevention in the workplace. There will now also be longer time-frames provided for the filing of complaints and enhanced remedies for victims of employment discrimination, including sexual harassment.
Here is a summary of the changes effective as of October 1, 2019:
Expanded Training Requirements:
- Employers with three or more employees shall be required to provide two hours of sexual harassment training to all employees no later than October 1, 2020.
- All employees hired on or after October 1, 2019, must be trained within six months of hire.
- The Connecticut Commission on Human Rights and Opportunities (CHRO) has been assigned the task of creating video training materials and posting them on its website for employers to use to satisfy the training requirements.
- Employers that already had provided the requisite training to supervisory employees on or after October 1, 2018 do not need to repeat such training for the same supervisors, but are required to provide the training to all other employees by October 1, 2020.
- Employers shall be required to provide periodic supplemental training at least every 10 years.
- The fine for failing to provide training will be $750. Further, if employers don’t provide training, it will now be a “discriminatory practice” that may allow employees to bring an action at the CHRO (or court).
Expanded Notice and Posting Requirements:
- Employers in Connecticut with at least three employees already are required to post information about the unlawfulness of sexual harassment and the remedies available to victims of sexual harassment, which continues to be required under the new law. A copy of this required positing can be accessed on the CHRO’s website at: https://www.ct.gov/chro/lib/chro/Sexual_Harassment_Flyer.pdf
- In addition to the posting requirement, within three months of an employee’s start date, employers must provide this information to each employee by email with a subject line that includes the words “Sexual Harassment Policy” (or words of similar import). Employers may provide this information to employees using an employer-provided email account or the employee’s personal email address if he or she has provided it to the employer. If email is not an option and the employer maintains an internet website, the employer must post the information on that site. Employers may also comply with this notice requirement by providing employees (either by email, text or in writing) with the above-referenced link to the CHRO’s website concerning the unlawfulness of sexual harassment and the remedies available to victims of sexual harassment. The fine for failing to do so will be $750 as well.
Corrective Action Requirements:
- If an employer takes corrective action in response to an employee’s claim of sexual harassment, such corrective action shall not modify the conditions of employment of the employee making the claim of sexual harassment unless such employee agrees, in writing, to any modification in the conditions of employment. “Corrective action” taken by an employer, includes, but is not limited to, employee relocation, assigning an employee to a different work schedule or other substantive changes to an employee’s terms and conditions of employment.
- In the event that the employer fails to obtain the written consent of the employee to take any such corrective action which modifies their conditions of employment, the employer can still defend its action at the CHRO by proving that it was reasonable and not “to the detriment” of the employee.
Extended Time to File Discrimination Complaints and Increased Damages:
- The deadline for filing a charge of discrimination with the CHRO for events that allegedly occurred on or after October 1, 2019 shall be extended from 180 days to 300 days. Notably, this expanded deadline applies to any claim of discrimination or harassment, not just sexual harassment.
- The CHRO is now authorized to award reasonable attorney fees to complainants who prevail on their discrimination claims. The new law further clarifies that an award of lost wages can go back up to two years before a complaint was filed. Further, while the new law allows unemployment compensation or welfare assistance received by the employee to be deducted from any back pay award, the amount of deduction shall be paid back by the employer to the CHRO.
- In addition to the expanded damages available to complainants at the CHRO, the new law allows plaintiffs who prevail on their discrimination claims in court to recover punitive damages, which is a significant change from prior Connecticut law, which did not authorize such damages in employment discrimination or harassment cases.
- The CHRO is now authorized to assign legal counsel to bring a legal action in court instead of just in an administrative hearing when doing so would be in the public interest, and where all the parties agree. When the CHRO has established a claim by “clear and convincing evidence”, a court is required to award the CHRO its fees and costs and award a civil penalty of up to $10,000.
Workplace Inspections and Document Review
- The CHRO is now expressly authorized to enter an employer’s business during business hours to ensure compliance with the posting requirements and to review all records, policies, procedures and training materials maintained by the employer if the CHRO’s Executive Director “reasonably believes” the employer is in violation of certain legal provisions or such inspection is during the 12 month period following the date on which any complaint has been filed against the employer.
- During the public hearing process at the CHRO, parties shall have the opportunity to “inspect and copy relevant and material records, papers and documents” of the other party and the hearing officer may order any such production. If a party does not comply, the hearing officer may issue non-monetary orders including: (1) finding that the matters that are the subject of the order are established in accordance with the claim of the party requesting such order, (2) prohibiting the party who has failed to comply with such order from introducing designated matters into evidence, (3) limiting the participation of the noncomplying party with regard to issues or facts relating to the order, and (4) drawing an adverse inference against the noncomplying party.
PAID FAMILY MEDICAL LEAVE
Connecticut has now enacted the most-generous paid-family-leave bill in the nation. This new law makes sweeping changes to the existing Connecticut Family and Medical Leave Act (CTFMLA), which changes are summarized as follows (and subject to further clarification when the Connecticut Department of Labor issues new regulations by Jan. 1, 2020):
Eligibility, Benefits and Contributions
- Starting January 1, 2022, CTFMLA will now apply to all private sector employers with at least one employee; currently, only employers with 75 or more employees are covered (though federal FMLA applies to employers with 50 or more employees).
- Connecticut employers who have one or more employees will be required to provide employees with up to 12 weeks of paid leave in a 12-month period to care for their own serious health condition or that of family members—including a spouse, parents, in-laws, children, siblings, grandparents, grandchildren, and anyone else whose close association, whether by blood or affinity, is the equivalent of a family member. Any employee incapacitated by pregnancy is eligible for an additional two weeks of paid FMLA, for a maximum of 14 weeks.
- Employees will be allowed to use up to two weeks of any employer-provided paid sick leave time to care for themselves and any of the family members listed above. Additionally, the new law shall limit the extent to which an employer may require an employee to use their accrued paid personal, sick or vacation time during an FMLA absence, by allowing employees to retain at least two weeks of their employer-provided time.
- Employees will be allowed to use this new paid 12-week benefit when taking leave for the birth, adoption or foster care placement of a child; to serve as an organ or bone marrow donor; and because of a qualifying exigency due to military call-ups. Employees shall further be allowed to take a one-time benefit of up to 26 weeks of unpaid leave when certain family members or any “next of kin” as designated by the employee in the armed forces undergoes treatment for an injury or illness incurred in the line of duty (i.e., military caregiver leave).
- State government employees who belong to unions are exempt. However, a public-sector municipal employer with “covered employees” will also be required to provide paid FMLA. “Covered employees” are defined, in part, as any municipal or Board of Education employees whose collective bargaining agreement agent negotiates inclusion in the paid FMLA program. But the law further states that once a municipal employer or Board of Education negotiates inclusion in the program for members of one of its bargaining units, any of the municipality’s or Board of Education’s employees who are not part of a collective bargaining agreement also become covered employees (and, therefore, eligible for paid FMLA).
- Employees will be eligible for leave under the new law if they have worked for their employer for at least three months immediately preceding their request for leave with no minimum requirement for hours worked. This is in sharp contrast to existing CTFMLA, which required employees to have worked for the employer for at least 12 months and 1000 work hours to be eligible.
- Commencing January 2021, each and every employee will have to fund the paid-family-leave program by contributing 0.5 percent of their income via a mandatory payroll tax to a state FMLA trust fund (which will be overseen by a 13-member quasi-public agency).
- Wages subject to the paid-leave tax will be tied to the amount of annual earnings subject to Social Security taxes, currently $132,900. Annual costs for Connecticut workers will range from $156 for minimum-wage workers to a maximum of $664.50 for those with six-figure incomes.
- A worker earning $600 a week will receive benefits equal to 95 percent of wages, or $570. Replacement wages at other weekly income levels will be at a lower percentage for higher earners (e.g., 80 percent for someone making $1,040; 70 percent for $1,280; 61 percent for $1,480; and 56 percent for $1,600). Total weekly compensation shall not exceed 60 times the minimum wage. If the program is determined to be underfunded, the state shall be required to reduce benefits paid.
- The new law will permit employers to apply to the Paid Family and Medical Leave Insurance Authority (“Authority”) for permission to provide benefits through a private plan option, which must provide employees with at least the same level of benefits under the same conditions and costs as the state program. Employees covered by a private plan shall be exempt from contributing to the state program.
Notice and Documentation
- Starting July 1, 2022, employers will have to notify their employees at the time of hire and annually thereafter about their entitlement to paid family and medical leave (and family violence leave) and their right to file a benefits claim. In this notice, employers will further be required to inform employees that retaliation against an employee for requesting or using family medical leave is prohibited and to advise employees of their right to file a complaint with the state labor commissioner to seek redress for any violation.
- Employees will be required to provide notice of the need for benefits to the Authority and, if required by the Authority, the employer shall certify the employee’s current compensation level and confirm the need for leave.
Penalties and Complaints:
- The Authority shall be authorized to seek repayment of benefits that were paid in error, due to willful misrepresentation or prior to the rejection of a claim. The Authority shall further be empowered to waive repayments and/or related penalties.
- Any individuals who willfully make a false statement or misrepresentation or who omit a material fact in order to obtain compensation under the program are barred from receiving benefits for two years and may be subject to a fine of 50 percent of the benefits paid. Anyone who assists in making such a claim, including an employer, will be liable for the same penalty.
- Claim denials and penalty assessments shall be appealed to and determined by the Connecticut labor commissioner.
Connecticut’s minimum wage shall be increased in steps as follows:
- $11 per hour on October 1, 2019;
- $12 per hour on September 1, 2020;
- $13 per hour on August 1, 2021;
- $14 per hour on July 1, 2022;
- $15 per hour on June 1, 2023; and
- Automatic increases beginning on January 1, 2024, tied to the federal employment cost index for “wages and salaries for all civilian workers.”
Further, the United States Department of Labor has recently proposed new rules regarding the overtime exemptions under the Fair Labor Standards Act. While such rules are still awaiting final review of public comments and it remains unclear when they may be adopted, if adopted in their current form these new rules would, among other things:
- Increase the minimum salary required for an employee to qualify for the executive, administrative and professional overtime exemptions from the currently-enforced federal level of $455 (or $475 under Connecticut law) to $679 per week (equivalent to $35,308 per year);
- Commit to periodic review for any update to the salary threshold (but not to have any automatic adjustments to the salary threshold);
- Allow employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10 percent of the standard salary level
- Include no changes to the job duties test for exempt employees. Accordingly, to qualify for exemption, employees will still need to perform as their “primary duty,” duties identified as exempt under the executive, administrative, or professional exemptions; and
- Include no changes to the mechanics of the “salary basis test.” Thus, subject to limited exceptions, in each pay period, the employee must still receive at least the minimum salary, which cannot be subject to reduction because of variations in the quality or quantity of work performed.
The state’s whistleblower protection laws have been expanded to cover entities that receive state financial assistance under the commerce and economic and community development laws (“financial aid recipients”). It does so by making them “large state contractors” under the law.
- In general, the whistleblower law allows anyone to report specific kinds of misconduct by state agencies or large state contractors to the state auditors of public accounts for investigation. Large state contractors are precluded from taking, or threatening to take, any personnel action against an employee (i.e., whistleblower) for disclosing information to: (1) the state auditors; or (2) a state employee of the contracting state agency about information involving the contract for state aid. The ban on retaliation also applies to an employee who may testify or provide assistance in a proceeding allowed under the whistleblower law.
- Whistleblowers who believe they are being retaliated against may, among other actions, file a complaint with the CHRO, or, after exhausting all available administrative remedies, in a civil action in court. In addition, if the personnel action occurred within two years after the whistleblower informed the state auditors, the law creates a rebuttable presumption that the action was taken in retaliation.
NON-COMPETE AGREEMENTS (HOME HEALTH WORKERS)
A new law applicable to individuals who provide homemaker, companion or home health services precludes them from being subject to non-compete agreements.
- This new law states in its entirety that any covenant not to compete (which is defined as “any contract or agreement that restricts the right of an individual to provide homemaker, companion or home health services in any geographic area of the state for any period of time or to any specific individual”) is against public policy and shall be void and unenforceable.
- As of now, there is no further explanation or analysis of the terms used in this new law. For example, the law does not define what “homemaker, companion or home health services” are. Also, the law states that it is barred as to any “specific individual”, leaving open the question of whether an individual includes a company or just actual persons. Also, it is unclear whether the new law will ban such restrictions on any contracts entered into after its passage or in pre-existing contracts. And the new law does not say whether the use of a restrictive covenant like a non-solicitation provision of other clients/employees is still permissible. As a result, it is likely that this new law will only be clarified either through further legislative action or court decisions.
If you’re an employer and have questions about labor and employment law, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys has over 20 years of experience in employment and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please call us if we can help you.
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 It is further noted that employers who also have employees based in the surrounding states of Massachusetts, New Jersey, New York and Rhode Island (among others) shall be subject to recently enacted state-specific paid family medical leave laws there as well.