Articles

Fairfield County Business Journal

June 6, 2013

Connecticut legislators continued to display their inclination to be at the forefront of pro-employee legislation during the 2013 legislative session.

In 2011, Connecticut passed the country’s first – and still only – state law providing mandatory paid sick leave for employees. Last year Connecticut took the lead in creating a health insurance marketplace to provide coverage to employees in light of the new federal mandates.

This year, the General Assembly passed a minimum wage hike that will eventually make the state’s minimum wage $9 per hour and passed a law that will expand employees’ access to their personnel files. Here, we’ll discuss those laws and some others.

Personnel file access

Currently, employers must provide current and former employees access to their personnel files within a “reasonable time” after a written request. The General Assembly passed a revision that limits this time period to seven days for current employees and 10 days for former employees.

But the legislation goes further. Now, employers will be obligated to provide employees copies of documentation of any disciplinary action within one business day of issuance and immediately provide a copy of any documented notice of termination. The legislation does not address whether quasi-disciplinary documents, such as a critical note to the employee’s file or documentation of verbal coaching qualify.

This law also, for the first time, forces employers to state on any disciplinary documentation, termination notice or performance evaluation that the employee has the right to submit a written statement disagreeing with the contents of the document. Any time the personnel file is disclosed to a third party, the employee’s statement must accompany it. Employees already have this right, but the new law requires employers to advise employees of this right or face penalties. We believe this right to notification is a first of its kind in the U.S.

Violations of the personnel file statute are punishable by fines. The proposed law changes the current mandatory fines into maximum fines. This is the only benefit for employers in the proposed law. Fortunately, employees still cannot sue for violations of these provisions. Unless Gov. Dannel P. Malloy vetoes the bill, which is unlikely, it will go into effect on Oct. 1, 2013.

Non-competes*

Connecticut employers continue to have the right to require employees to enter into covenants not to compete, also known as “non-competes.” Under existing case law, such restrictions must be reasonable as to duration, geographical area and scope of business restricted. Overbroad restrictions may be modified by the court to make them reasonable. On the last day of the legislative session, the General Assembly passed a bill that will codify these judge-made rules into a statute. The legislation will also require employers to provide at least ten business days for employees to seek legal advice before agreeing to the restriction.

The more controversial section of the bill will allow employees to sue for damages, court costs, and attorneys’ fees for a violation of this statute. It is not clear whether an employer who guessed wrong as to what constitutes a “reasonable” restriction would have been liable or only those who failed to allow the appropriate consideration period. The legislation does not define a “business day” when setting its minimum consideration time.  Therefore, if Washington’s Birthday or Good Friday (which are legal holidays in Connecticut) fall within the ten business days, must an extra day be added to the time for consideration?

Free speech

Connecticut already has one of the most pro-employee laws regarding workplace free speech by guaranteeing all employees the right to speak on matters of public concern without fear of retaliation. In most states, only public employees receive such protection.

Under existing law, employees may espouse their views on matters of public concern, provided it does not substantially interfere with job performance or working relationships. A key defense under that law is that the speech is work-related, and is not protected. The General Assembly considered, but had not passed as of press deadline, legislation that would have eliminated that defense.

If that law had passed, nearly any workplace dispute could have been turned into a matter of public concern. Many attorneys have noted the potential absurd results, asking, for example, whether a shoe store should be barred from firing a salesperson who tells every patron that the company pays overseas workers inadequately. This law would have created a disaster for employers.

Employers will need to adjust their practices in light of the minimum wage, personnel file and non-competes legislation. And they must not be complacent in light of the failure of the free speech bill. That bill could be reintroduced – potentially with more pro-employee provisions – in the 2014 legislative session. It is important for employers to be aware of the legislation under consideration and make their voices heard.

 

*A significantly modified version of this legislation passed after this article went to press and this description is no longer accurate.  An updated discussion of this law is available here.