Connecticut Adds Burdensome Requirements to Personnel File Statutes

by Littler
Contact

Connecticut has added several burdensome obligations to state statutes that give employees the right to inspect, copy and rebut their personnel files.  At the urging of legal aid lawyers and other employee advocates, the legislature passed Public Act No. 13-176 (the Act) despite strong opposition from organizations representing businesses.  The Act amends Connecticut's Personnel Files Act,1 which has been in effect since 1980.  Governor Dannel P. Malloy signed the Act into law on June 21, 2013.  The new amendments will take effect on October 1, 2013.

Obligation to Provide a Copy of Disciplinary Action

The Act adds a new requirement to Connecticut law obligating employers to provide employees with copies of certain personnel documents on a "real time" basis.  Beginning October 1, 2013, an employer must provide an employee with a copy of "any documentation of any disciplinary action imposed on that employee" within one business day after the date the discipline is imposed.

There is ambiguity in the new law that should concern employers.  One interpretation would be that an employer will have to provide only copies of disciplinary documents that it chooses to create (such as a written warning or a suspension notice), with no obligation to create a record of counseling or an oral warning just for the purpose of giving it to the employee.  A more extreme interpretation that employee advocates may pursue, however, would be that the duty to provide "any documentation" of a disciplinary action means the employer must provide all documents relating to it, including investigation notes, witness statements and the like.  The latter approach could threaten to expose witnesses to harassment, spawn internal disputes about otherwise routine matters, and prejudice the employer in future grievances, arbitrations, administrative proceedings and litigation. 

Employees challenging discipline or discharge decisions may also argue that their employer should be foreclosed from introducing as evidence in any proceeding involving the discipline or discharge any document that the employer did not provide to the employee within a day of the action. There is no indication in the analysis of the bill prepared by Connecticut's Office of Legislative Research that the amendments were intended to have such a radical effect, but a legal aid lawyer who testified in favor of the Act asserted that it is designed to help employees "effectively advocate for unemployment compensation, respond to groundless discipline or a discharge notice, or withstand a challenge by employers to discrimination complaints."  Employers should monitor carefully how the Connecticut Department of Labor, which enforces the Personnel Files Act, will interpret this new obligation.

Obligation to Provide a Copy of Termination Notice   

The Act will also require that an employer "immediately provide" an employee with a copy of "any documented notice of that employee's termination of employment."  This new language does not expressly require preparation of a written notice of termination, and does not appear to have the same potential for ambiguous reading as the language about discipline decisions.

Obligation to Provide Notice of Right to Submit Rebuttal

Since 1980, the Personnel Files Act has provided employees with the right to ask for removal or correction of information in their personnel files and, if the employer refuses the request, to submit a written statement explaining the employee's position.  The employer must maintain the statement in the employee's personnel file and include it in "any transmittal or disclosure from the personnel file to a third party."  Proponents of the bill told the legislative committee that workers often have no knowledge of this right.  The Act will now require employers to include in every documented disciplinary action, notice of termination and performance evaluation a statement in "clear and conspicuous language" that if the employee disagrees with any of the information in the document, the employee may submit a written statement explaining his or her position.

Time Limits for Inspection and Copying

Since its enactment, the Personnel Files Act has required employers to permit a current or former employee to inspect the employee's personnel file "within a reasonable time" after receipt of a written request.  The Act modifies this obligation by providing current employees with a right to inspect within seven business days of their request and an accompanying right to copy the file at the time of the inspection.  Former employees will have a right to inspect within 10 business days of their written request, provided that the employer receives the request within one year of the employee's departure. 

Place of Inspection 

The Personnel Files Act already requires that inspection and copying by current employees take place at or reasonably near the employer's place of employment.  The Act adds a new twist in requiring that inspection by former employees take place at a "mutually agreed upon" location.  If the employer and former employee "cannot agree" on a location, the employer is to mail a copy of the personnel file to the former employee within 10 days of receiving the written request.  This may ultimately provide a means through which a former employee, by refusing to agree on a place for inspection, can obtain a free copy of the personnel file despite another provision of the Personnel Files Act that allows an employer to charge a reasonable fee for copies.

Penalties Adjusted 

The Act provides the Connecticut Labor Department with some flexibility and discretion when imposing civil penalties for violations of the Personnel Files Act, as amended.  The law currently makes an employer, officer, agent or other person who violates the Act subject to a civil penalty of $500 for the first violation "related to an individual employee" and $1,000 for each subsequent violation related to such individual employee." The Act amends this provision to empower the Labor Department to impose civil penalties up to $500 for a first violation and up to $1,000 for subsequent violations.  In setting the amount of civil penalties, the Labor Commissioner is to consider all factors the Commissioner deems relevant, including "the level of assessment necessary to insure [sic] immediate and continued compliance," "the character and degree of impact of the violation" and any prior violations by the employer.  These civil penalties will apply with equal force to all violations of the Personnel Files Act, as amended, including the new requirements to provide copies of disciplinary documents and termination notices and to include a notice of rebuttal rights in all disciplinary, termination and performance evaluation documents.


1 Conn. Gen. Stat. §§31-128a to 31-128h.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!