Latest Developments from the Connecticut General Assembly: The Labor and Public Employees Committee Speaks: March 2016

by Pullman & Comley - Labor, Employment and Employee Benefits Law
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The General Assembly’s Labor and Public Employees Committee was active before its March 17, 2016 deadline for approving bills, voting favorably and advancing many bills out of committee.

Consistent with the Governor’s numerous “second chance” initiatives, the Committee approved a bill that would prevent certain employers from a) requiring job applicants to disclose their criminal histories until after they have been made a conditional offer of employment, and b) refusing to hire applicants due to a “distant” record of a conviction.  Several of the bills make changes to our unemployment compensation system, including changes in the calculation of (and a three year freeze in) the maximum benefit.  Picking up where the General Assembly pointed last year, the Committee approved bills establishing a) a program for paid FMLA leave, and b) a state retirement plan for private sector workers.  The Committee approved a bill that expanded the reach of the “prevailing wage” statute to businesses that receive financial assistance from the state, while increasing the threshold amounts that trigger the prevailing wage requirement.  The Committee also approved a bill greatly expanding the coverage and benefits provided under the state’s FMLA; all employers with at least two employee would be covered by the FMLA.  Another bill of interest would expand workers’ compensation coverage so as to include police and firefighters who suffer from post-traumatic stress disorder linked to witnessing the death of another person.  In addition, the Committee approved a bill that would allow employers to pay employees via “payroll cards.”

The following is a listing (with a brief description) of all of the proposed bills that the Labor and Public Employees Committee voted favorably on and advanced out of committee:

H.B. No. 5074 (Raised) AN ACT CONCERNING EMPLOYEE WORKING CONDITIONS. This bill would require the Commissioner of Labor to establish a program to evaluate employee working conditions throughout the state.

H.B. No. 5075 (Substitute) AN ACT CONCERNING DISABILITY INSURANCE COVERAGE FOR UNIFORMED MEMBERS OF FIRE DEPARTMENTS WHO ARE OTHERWISE INELIGIBLE FOR WORKERS’ COMPENSATION BENEFITS FOR CERTAIN TYPES OF CANCER. This bill would require the State by January 1, 2017 to establish a firefighters’ cancer benefit program and procure a disability insurance policy to provide such benefits for municipal firefighters with certain types of cancer. The bill also includes various eligibility requirements for firefighters to receive such benefits (including a pre-employment physical examination).

H.B. No. 5237 (Substitute) AN ACT CONCERNING FAIR CHANCE EMPLOYMENT.  This bill would prevent employers from requiring certain types of employees or prospective employees to disclose any criminal history until the employer has made a conditional offer of employment to such employee or prospective employee. In addition, this bill would prohibit employers from refusing to hire (or otherwise discriminate against) an individual solely because of a prior arrest or because he or she was convicted of a (a) misdemeanor, if it has been at least five years since he or she was released from prison or (b) felony, if it has been at least 10 years since he or she was so released.  The bill contains exceptions for certain categories of employees.

H.B. No. 5238 (RAISED) AN ACT CONCERNING THE REMOVAL OF CERTAIN POSITIONS FROM THE ENUMERATED LIST OF POSITIONS THAT ARE EXEMPT FROM CLASSIFIED SERVICE. This bill would remove certain specified state positions from the list of positions that are exempt from the classified service requirements/protections.

H.B. No. 5261 (Substitute) AN ACT CONCERNING OPERATORS OF ATHLETIC ACTIVITIES, COACHES AND REFEREES AND THE EMPLOYER-EMPLOYEE RELATIONSHIP. This bill would provide that no employer-employee relationship shall be deemed to exist between any operator of any organized athletic activity (whether the operator is a municipality, non-profit entity, or a business) and any individual who is retained by such an operator as a coach or referee of such athletic activity, provided that the operator and individual may mutually agree (in writing) to enter into an employer-employee relationship.

H.B. No. 5262 (RAISED) AN ACT CONCERNING WORKERS’ COMPENSATION COVERAGE FOR CURRENT AND FORMER UNIFORMED MEMBERS OF PAID OR VOLUNTEER FIRE DEPARTMENTS. This bill would provide workers’ compensation for current and former uniformed members of a paid or volunteer fire department who suffer from certain diseases specified in the bill as a result of performing their jobs.

H.B. No. 5367 (Substitute) AN ACT CONCERNING THE TOTAL UNEMPLOYMENT BENEFIT RATE AND AN ONLINE EMPLOYMENT EXCHANGE. This bill would calculate an individual’s unemployment benefit rate using four quarters of earnings, freeze the maximum unemployment benefit rate for the next three benefit years, and require recipients of unemployment benefits to post their resumes online in order to continue to receive such benefits.

H.B. No. 5368 (RAISED) AN ACT CONCERNING HOMEMAKER SERVICES AND HOMEMAKER COMPANION AGENCIES. This bill would designate a homemaker-companion agency, registry or homemaker-home health agency as the employer of an individual providing certain companion and homemaker services to consumers for unemployment compensation, wage/hour, and workers’ compensation purposes. This bill would also remove liability for such individual’s personal injuries arising out of and in the course of employment from the consumer.

H.B. No. 5369 (Substitute) AN ACT CONCERNING AN ADJUSTMENT TO THE METHOD FOR DETERMINING THE MAXIMUM WEEKLY UNEMPLOYMENT BENEFIT RATE. This bill would alter the method of determining the maximum weekly unemployment benefit rate. Instead of using the average production wages established by the U. S. Department of Labor’s Bureau of Labor Statistics, the rate would be based upon the average wage of workers in the state calculated pursuant to the Connecticut Quarterly Census of Employment and Wages (“or such other method that accurately reflects the average wage of workers in the state”).

H.B. No. 5371 (RAISED) AN ACT CONCERNING A MINIMUM WORKWEEK FOR PERSONS PERFORMING BUILDING MAINTENANCE SERVICES. This bill would institute a minimum workweek of 30 hours for persons who perform building maintenance service in (1) an office building having an area of not less than 1,000 square feet, (2) a private or public institution of higher education, or (3) a museum.

H.B. No. 5377 (RAISED) AN ACT CONCERNING THE PREVAILING WAGE. This bill would require business organizations that receive financial assistance from the state for construction projects to abide by the prevailing wage requirements. The bill also would raise the threshold amounts at which public works projects shall be subject to the prevailing wage requirements, with threshold for a) “new construction” being raised from $400,000 to $4,000,000, and b) any “remodeling, refinishing, refurbishing, rehabilitation, alteration or repair” being raised from $100,000 to $2,000,000.

H.B. No. 5378 (RAISED) AN ACT CONCERNING THE STANDARD RATE OF WAGES. This bill would make changes in the “standard wage” requirement applicable to certain state contractors so as to a) include security services in the definition of “building, property or equipment service”, b) classify housekeeping aides as light cleaners for the purposes of the standard wage, and c) index the standard wage rates to the consumer price index.

H.B. No. 5505 (RAISED) AN ACT CONCERNING LOCAL OR REGIONAL BOARDS OF EDUCATION, EXCLUSIVE BARGAINING REPRESENTATIVES AND MEMBERS OF THE TEACHING PROFESSION. This bill would “allow” local or regional boards of education to negotiate with their teachers’ or administrators’ unions over the issue of having the board of education pay the annual “service fee” for representation on behalf of the teachers or administrators. Currently, the union members pay this fee out of their own pockets.

H.B. No. 5506 (Substitute) AN ACT STUDYING THE LIABILITY OF EMPLOYERS FOR HOSPITAL SERVICES IN WORKERS’ COMPENSATION CASES. This bill would require the Labor Commissioner, in consultation with the chairman of the Workers’ Compensation Commission, to conduct a study regarding the liability of employers for hospital services in workers’ compensation cases.

H.B. No. 5507 (RAISED) AN ACT CONCERNING THE LABOR DEPARTMENT AND THE CERTIFICATION OF EMPLOYEES FOR PURPOSES OF THE UNEMPLOYMENT COMPENSATION SYSTEM. This bill would exempt individuals, sole proprietors and business partners who have no employees from the Department of Labor’s requirements that each business owner periodically certify the number of employees that it currently employs for the purposes of unemployment compensation.

H.B. No. 5591 (Substitute) AN ACT CREATING THE CONNECTICUT RETIREMENT SECURITY PROGRAM. This bill would establish the “Connecticut Retirement Security Program” for the purpose of providing retirement savings packages for private sector employees in the state.

S.B. No. 40 (Raised) AN ACT CONCERNING EMPLOYER INQUIRIES ABOUT AN EMPLOYEE’S OR PROSPECTIVE EMPLOYEE’S CREDIT HISTORY. This bill would further restrict the circumstances under which an employer may require an employee or job applicant to consent to a credit report.

S.B. No. 41 (Raised) AN ACT CONCERNING THE LABOR DEPARTMENT. This bill would require the Department of Labor to initiate a study to determine whether policy and procedural changes within the Department could increase the productivity of workers within the state.

S.B. No. 42  AN ACT CONCERNING EMPLOYEE WAGES. This bill would require the Labor Commissioner to establish a program to evaluate employee wages throughout the state.

S.B. No. 101 (RAISED) AN ACT CONCERNING WORKERS’ COMPENSATION INSURANCE AND SOLE PROPRIETORS.  This bill would allow certain sole proprietors who do not carry workers’ compensation insurance to be eligible to work on public works projects.

S.B. No. 134 (Substitute) AN ACT CONCERNING WORKERS’ COMPENSATION COVERAGE FOR POLICE OFFICERS AND FIREFIGHTERS WHO ARE DIAGNOSED WITH POST-TRAUMATIC STRESS DISORDER. This bill would expand workers’ compensation coverage to firefighters and police officers suffering from post-traumatic stress disorder as a direct result of witnessing the death of a human being (or immediate aftermath of death) while on duty.

S.B. No. 210 (RAISED) AN ACT CONCERNING WORKERS’ COMPENSATION LIABILITY FOR INDIVIDUALS RECEIVING SERVICES FROM PERSONAL CARE ATTENDANTS.  This bill would shift workers’ compensation liability for personal care attendants from the consumer to the State of Connecticut by considering such personal care attendants to be “state employees” for the purposes of the Workers Compensation Act.

S.B. No. 211 (Substitute) AN ACT ALLOWING EMPLOYERS TO PAY WAGES USING PAYROLL CARDS. This bill would allow employers to pay wages to employees via “payroll cards”, provided that the employee voluntarily consents to such a payment mechanism. A “payroll card” is defined as a stored value card used by an employee to access wages from a payroll card account established at a financial institution by an employer and that is redeemable (at the employee’s election) at merchants or service providers, bank branches or automated teller machines.  A “payroll card” does not include a gift certificate.

S.B. No. 220 (Substitute) AN ACT CONCERNING UNEMPLOYMENT COMPENSATION APPEALS AND HEARINGS AND MINOR AND TECHNICAL REVISIONS TO THE GENERAL STATUTES RELATING TO THE LABOR DEPARTMENT. This bill would make various procedural changes to the unemployment compensation appeals and hearings process, including expressly allowing for the filing of appeals electronically, and would make various “minor” and technical revisions to the general statutes affecting the Department of Labor.

S.B. No. 221 (Substitute) AN ACT CONCERNING PAID FAMILY AND MEDICAL LEAVE. This bill would create a “Family and Medical Leave Compensation Program” that shall offer up to 12 workweeks of family and medical leave compensation to covered employees during any 12 month period. The Program will be funded by employee contributions to the Family and Medical Leave Compensation Trust Fund, and would begin to provide compensation to employees on and after March 1, 2018.  This bill also a) extends the applicability of the state’s Family Medical Leave Act [“FMLA”] to the state, municipalities, school districts, private schools, and all employers with at least two employees, b) aligns the maximum amount of leave for the state FMLA with the federal FMLA requirement (i.e., 12 weeks of leave during any 12 month period), c) adds to the family members for whom an employee can take FMLA leave to include the employee’s siblings, grandparents, and grandchildren, and d) eliminates an employer’s ability to require an employee taking FMLA leave to use his or her employer-provided paid leave

S.B. No. 222 (RAISED) AN ACT CONCERNING THE REPEAL OF OBSOLETE REPORTS AND PROGRAMS INVOLVING THE LABOR DEPARTMENT. The bill would repeal various reports currently statutorily required of the Department of Labor that are deemed to be either obsolete or duplicative.

S.B. No. 223 (RAISED) AN ACT CONCERNING LIENS FOR UNPAID EMPLOYEE WAGES AND DISCIPLINARY SUSPENSIONS FOR HARASSMENT OR WORKPLACE VIOLENCE. The bill creates a lien on the property of an employer for failure to pay wages (via the Department of Labor). This bill would also specifically provide that whenever an executive, administrative or professional employee (i.e., an “exempt employee”) is absent from work as a result of a disciplinary suspension for violating a written workplace conduct rule prohibiting harassment or workplace violence, the employer may deduct from the wages of such employee an amount equal to the wages that would have been paid for the number of days such employee is absent.  Such a measure is already permitted under federal law.

S.B. No. 225 (Substitute) AN ACT AUGMENTING THE FEE SCHEDULE FOR RADIOLOGY SERVICES UNDER THE WORKERS’ COMPENSATION STATUTES. This bill would require the chairperson of the Workers’ Compensation Commission to augment the fee schedule for radiological services under the Workers’ Compensation Act by 15%.

S.B. No. 314 (RAISED) AN ACT CONCERNING THE TEMPORARY FAMILY ASSISTANCE PROGRAM AND THE PENALTY FOR THE FRAUDULENT RECEIPT OF UNEMPLOYMENT COMPENSATION BENEFITS. This bill would allow families who earn not more than 150% of the federal poverty level to continue to receive temporary family assistance even after reemployment, and would also allow for a one-time benefit of $1,000 to be paid to individuals who have exhausted temporary family assistance but have subsequently secured employment Furthermore, this bill would reduce the penalty for unemployment compensation fraud cases (regardless of the amount of fraud at issue) from a class D felony to a class A misdemeanor.

S.B. No. 393 (RAISED) AN ACT CONCERNING DOMESTIC WORKERS. This bill would provide certain legal protections and benefits to individuals performing domestic work in a private dwelling, such as advance notice of termination, protection against retaliation for whistle blowing, and paid leave.

Bills affecting labor and employment issues may also emerge from other committees (such as the Judiciary Committee).  The 2016 session of the General Assembly is scheduled to adjourn on May 3, 2016, so stay tuned to see if these bills will be passed.

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.

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