The Aftermath: Developments from the 2022 Session of the Connecticut General Assembly Affecting Employers – JD Supra

The 2022 Regular Session of the Connecticut General Assembly concluded on May 4, 2022. While not as groundbreaking as the two last full legislative sessions, and while many far-reaching bills that emerged from committee were not passed by the legislature, important bills regarding employee free speech (i.e., the much vaunted captive audiences legislation) and employment protections with respect to domestic violence were enacted. (We consider it particularly noteworthy that efforts to significantly restrict the use of covenants not to compete by most Connecticut employers were unsuccessful.) The following are brief descriptions of some of these employment-related bills, all of which have been signed by the Governor.

EMPLOYEE FREE SPEECH AND CAPTIVE AUDIENCES

Public Act 22-24 (An Act Protecting Employee Freedom Of Speech And Conscience), which takes effect on July 1, 2022, prohibits employers from requiring employees to attend meetings (or listen to speech or view communications) sponsored by the employer, the primary purpose of which is to communicate the employer's opinion concerning religious or political matters. This Act does NOT prohibit: 1) Employers from communicating to their employees any information that the employer is required by law to communicate or is necessary for employees to perform their job duties; 2) institutions of higher education from meeting or communicating with employees as part of coursework, symposia, or an academic program at the institution; 3) casual conversations between employees (or a single employee) and an agent/representative of an employer, provided that participation in the conversations is not required; or 4) a requirement limited to an employer's managerial and supervisory employees. The Act also does not apply to a religious corporation, entity, association, educational institution, or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964 or the Connecticut Fair Employment Practices Act with respect to speech on religious matters to employees who perform work connected with such entities activities.

In addition to these so-called captive audience provisions, the Act amends the state statute protecting employees from discipline or discharge due to their exercise of free speech (Connecticut General Statutes 31-51q) by limiting the damages available under it to lost wages/compensation, and thus eliminates any right to punitive damages, although attorneys fees/costs remain available. However, the Act also broadens Conn. Gen. Stat. 31-51q so as to prohibit employers from even threatening to subject an employee to discipline or discharge due to their exercise of free speech rights.

NON-DISCRIMINATION/EMPLOYMENT & DOMESTIC VIOLENCE PROTECTIONS

Public Act 22-82 (An Act Concerning Online Dating Operators, The Creation Of A Grant Program To Reduce Occurrences Of Online Abuse And The Provision of Domestic Violence Training and Protections For Victims Of Domestic Violence), which takes effect on October 1. 2022, lowers the threshold of an employer covered under the Connecticut Fair Employment Practices Act (CFEPA) from three employees to one employee or more. The Act expands the definition of employee" under CFEPA to include any elected or appointed official of a municipality, board, commission, counsel or other governmental body.

The Act adds status as a domestic violence victim as a protected class under CFEPA (and prohibits discrimination against such persons). The Act amends CFEPA to prohibit employers from refusing to provide a reasonable accommodation (including a reasonable leave of absence) to an employee for the purpose of seeking attention to injuries caused by (or services relating to) domestic violence, unless the absence would cause an undue hardship to the employer. Employers can request certain specified supporting documentation from employees with respect to a request for such a leave of absence; however, employers must maintain the confidentiality of information (to the extent permitted by law) regarding ones status as a domestic violence victim.

The Act authorizes the Connecticut Commission on Human Rights and Opportunities (CHRO) to require employers with three or more employees to post in a prominent location information concerning domestic violence and the resources available to victims of domestic violence. The Act requires eachstate agency (but not private employers)to provide a minimum of one hour of training and education related to domestic violence and the resources available to victims of domestic violence 1) to all employees by July 1, 2023, and 2) to all employees hired on or after January 1, 2023, not later than six months after they start work. The Act sets forth the contents of such training, and these training requirements may be met by using the online training and education video (or other interactive method of training and education) to be developed by CHRO in conjunction with the Connecticut Coalition Against Domestic Violence (and made available at no cost to each state agency).

PREVAILING WAGE ENFORCEMENT

Public Act 22-17 (An Act Concerning Wage Theft) authorizes (as of July 1, 2023) the Connecticut Commissioner of Labor to issue increased fines and citations (i.e., $5,000 per violation) to contractors and subcontractors who violate the state's prevailing wage laws. The Act requires the Commissioner to maintain a list of contractors/subcontractors that during the three preceding years violated the prevailing wage laws or entered into a settlement with the Commissioner to resolve such claims. For each contractor/subcontractor on this list, the Commissioner shall record: 1) The nature of the violation; 2) the total amount of wages and fringe benefits making up the violation or agreed upon in any settlement; and 3) the total amount of civil penalties and fines. The Commissioner shall review the list each year for the preceding rolling three-year period and may refer for debarment any contractor/subcontractor that committed a violation during this period. The Commissioner shall refer for debarment any contractor/subcontractor that entered into one or more settlement agreements where the total of all settlements within the period exceeds $50,000 in back wages or fringe benefits or civil penalties or fines. Any such contractor/subcontractor may request a hearing before the Commissioner to contest such a finding.

CANCER RELIEF BENEFITS

Public Act 22-139 (An Act Concerning Adoption Of The Recommendations Of The Task Force To Study Cancer Relief Benefits For Firefighters) requires (commencing on July 1, 2023) that each town make the following contributions to the firefighters cancer relief program account: 1) $10 per career/paid firefighter within the town, and 2) $5 per volunteer firefighter within the towns volunteer district(s). The Act requires CONN-OSHA to adopt 1) Lavender Ribbon Report Best Practices for Preventing Firefighter Cancer, and 2) a practice requiring that all firefighters be provided with at least two sets of turnout gear (to ensure clean gear is worn while contaminated gear is properly cleaned), except towns with populations of fewer than 50,000 are exempt if they are equipped with advanced cleaning washers/extractors. The Act requires the Workers Compensation Commission to 1) maintain a record of all firefighters workers compensation claims made due to a cancer diagnosis, and 2) report annually to the General Assembly regarding this record. The Act requires the Comptroller to conduct a feasibility study on providing pension benefits to firefighters in circumstances when the required pension service years are not met due to early retirement resulting from a qualifying cancer diagnosis. NOTE: A prior version of this bill, that would have created a rebuttable presumption for workers compensation benefits for certain cancer diagnoses, did not pass.

OCCUPATIONAL LICENCES AND PRIOR CRIMINAL RECORDS

Public Act 22-88 (An Act Concerning Collateral Consequences Of Criminal Convictions On Occupational Licensing), which takes effect on October 1, 2022, limits the ability of state licensing agencies to revoke, suspend, or deny certain occupational licenses on account of the commission of a felony to only those felonies that are reasonably related to the holder's ability to safely or competently perform their work. Among the practitioners affected by this revision would be licensed clinical and Masters degreed social workers, art therapists, dietician-nutritionists, architects, public accountants, certain tradespersons, estheticians, eyelash and nail technicians. The Act also extends the prohibition on the Department of Public Healths summarily taking action with respect to practitioners for conviction of a felony to cover licenses for embalmers and funeral directors.

UNEMPLOYMENT COMPENSATION

Special Act 22-13 (An Act Concerning Unemployment Compensation Experience Rates) requires the Connecticut Department of Labor to study businesses that had their experience rates increase despite last years passage of Public Act 21-5 (An Act Concerning The Removal Of COVID19 Related Layoffs From The Unemployment Compensation Experience Account), and to then submit a report with its findings and recommendations to the General Assemblys Labor and Public Employees Committee by January 1, 2023. The report will include identification of 1) employers that had increased experience rates, 2) how many people were impacted, and 3) the cost to both the state and the employer.

TECHNICAL AND MINOR CHANGES

The titles of Public Act 22-67 (An Act Concerning Technicaland Other Changes To The Labor Department Statutes) and Public Act 22-89 (An Act Concerning Minor And Technical Changes To The Workers' Compensation Act) largely speak for themselves.

LAST, BUT NOT LEAST, THE BUDGET IMPLEMENTER

On May 7, 2022, Governor Lamont signed, Public Act 22-118 (An Act Adjusting The State Budget For The Biennium Ending June 30, 2023, Concerning Provisions Related To Revenue, School Construction And Other Items To Implement The State Budget And Authorizing And Adjusting Bonds Of The State), which, as it title suggests, contains provisions ostensibly intended to implement the state budget. Not surprisingly, this 739-page legislation contains numerous provisions that are not necessarily budget-related. Here are some of the Acts employment-related provisions.

Connecticut Retirement Security Program

-The Act eliminates the Connecticut Retirement Security Authority (CRSA) and makes the Office of the State Comptroller its successor for administering the retirement program. The Act converts CRSAs board of directors to an advisory board and renames the program the Connecticut Retirement Security Program (as opposed to the former Connecticut Retirement Security Exchange title).

State and Non-Unionized Employee Wage/Benefits

-The Act increases judicial salaries by about 5%.

-The Act requires each state agency to apply to its nonunion state employees the following terms from the agreement between the state and the State Employee Bargaining Agent Coalition (SEBAC): 1) for 2021-22, a $2,500 lump sum payment and 2.5% base annual salary increase; 2) for 2022-23, a 2.5% increase plus step increases, annual increments, or their equivalents, and a $1,000 lump sum payment); and 3) for 2023-24, a 2.5% increase plus step increases, annual increments, or their equivalents.

-The Act requires health insurance coverage for children, stepchildren, or other dependent children of state or nonstate public employees via the State Partnership Plan to continue until at least the end of the calendar year after the earlier of when they 1) obtained coverage through their own employment, or 2) turn age 26.

Teacher Retirement System

-The Act excludes school business administrators who hold a certificate with an administration endorsement from the Teacher Retirement System (TRS).

-The Act limits TRS eligibility for professional employees of the State Education Resource Center (SERC) to only those hired before July 1, 2022.

-The Act explicitly includes Connecticut Technical and Career System professional employees within the TRS.

-The Act increases from $220 to $440 per person the monthly health insurance subsidy under the TRS for eligible retired teachers (and their spouses or surviving spouses or disabled dependents) who receive health insurance coverage from the retirees last employing board of education.

Connecticut Paid Family and Medical Leave

-Similar to non-paid FMLA leave statutes, this Act makes it a violation of Connecticuts paid family and medical leave law (PFML) for an employer to: 1) interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided by the PFML, or 2) discharge or cause to be discharged, or otherwise discriminate against someone for opposing any practice made unlawful by the PFML or exercising the rights afforded under the PFML.

Unemployment Compensation

-For 2022-2023, the Act reduces the unemployment tax rate that new employers must pay by 0.2% (from 1.4% to 1.2%).

Premium/Pandemic Pay

-The Act establishes a Premium Pay Program that will be administered by the Comptroller to pay out of state funds to private sector employees deemed eligible to receive a COVID-19 vaccination in phases 1a or 1b of the vaccination program and who were employed during the period of the COVID-19 state of emergency, lump sums of $200 to $1,000 using available appropriations, on a first come, first-served basis. In order to be eligible for these benefits, employees must apply by October 1, 2022. The Act further sets forth the process & criteria for applying for such pay.

-The Act also provides that no employer shall: 1) Discharge or in any manner discipline or discriminate against any employee because the employee has filed an application for pandemic pay, or 2) deliberately misinform or dissuade an employee from filing an application for payment from the Connecticut program. The Act provides a private cause of action for those alleging a violation of this provision.

Homemaker-Companion Agency and No-Hire Clauses

-The Act prohibits (as against public policy) contracts between a homemaker-companion agency or home health agency and a client from including a no-hire clause that, should the client directly hire an agency employee: 1) imposes a financial penalty; 2) assesses any charges or fees, including legal fees; or (3) contains any language that can create grounds for a breach of contract assertion or a claim for damages or injunctive relief. (NOTE that current law already largely bars covenants not to compete in employment contracts for homemaker, companion, or home health services.)

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The Aftermath: Developments from the 2022 Session of the Connecticut General Assembly Affecting Employers - JD Supra