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Labor & Employment Law Alert: Employment Related Bills Pending in the Connecticut Legislature

May 1, 2013

Employment Related Bills Pending in the Connecticut Legislature

The Connecticut legislative session will end on June 5, subject to any special session. There are several pending bills we are monitoring that could have a significant adverse impact on employers. The bills involve changes to the personnel file statutes, non-compete agreements, employee speech in the workplace and the establishment of a task force to study the feasibility of implementing a paid FMLA insurance program.

Personnel Files: Senate Bill 910 would require employers to: (a) allow a current employee to inspect, or provide a copy of, the personnel file within seven business days after receipt of a written request from the employee; (b) allow a former employee to inspect, or provide a copy of, the personnel file within ten business days after receipt of a written request from the former employee, provided the request is made within one year after the termination of the former employee’s employment; (c) provide an employee with a copy of any documented disciplinary action, notice of termination, or performance evaluation within one business day after the date of imposing such action; and (d) include a clear and conspicuous statement in any documented disciplinary action, notice of termination, or performance evaluation advising the employee that, if he or she disagrees with any information contained in such

The Connecticut legislative session will end on June 5, subject to any special session. There are several pending bills we are monitoring that could have a significant adverse impact on employers. The bills involve changes to the personnel file statutes, non-compete agreements, employee speech in the workplace and the establishment of a task force to study the feasibility of implementing a paid FMLA insurance program.

Personnel Files: Senate Bill 910 would require employers to: (a) allow a current employee to inspect, or provide a copy of, the personnel file within seven business days after receipt of a written request from the employee; (b) allow a former employee to inspect, or provide a copy of, the personnel file within ten business days after receipt of a written request from the former employee, provided the request is made within one year after the termination of the former employee’s employment; (c) provide an employee with a copy of any documented disciplinary action, notice of termination, or performance evaluation within one business day after the date of imposing such action; and (d) include a clear and conspicuous statement in any documented disciplinary action, notice of termination, or performance evaluation advising the employee that, if he or she disagrees with any information contained in such statement, he or she may submit a written statement explaining his or her position.

Non-Compete Agreements: House Bill 6658 provides that an employer may require an employee to sign a non-compete agreement provided (1) the agreement is reasonable as to its duration, geographical area, and the type of employment or line of business, and (2) the employer provides the employee at least ten business days to seek legal advice before signing it. While the 10-day requirement imposes a new obligation on employers, the most significant and controversial language of the bill involves the damages that an employer could face if it violates the statute. The bill states that any person aggrieved by the statute may bring a civil action to recover court costs and reasonable attorney’s fees. Under current law, unless there is a fee-shifting provision in the non-compete agreement, an individual who successfully challenges the enforceability of a non-compete agreement is generally not entitled to recover costs and attorney’s fees. This proposed bill would change this, thereby significantly increasing the risk for employers seeking to enforce such agreements.

Free Speech: The United States Supreme Court held in a 2006 decision, Garcetti v. Ceballos, that a public employee’s speech on issues related to his or her job duties was not protected by the First Amendment. The Connecticut Supreme Court essentially applied the Garcetti holding to the private sector in a 2012 decision, Schumann v. Dianon Systems. House Bill 6667 would overturn this case law and, therefore, severely restrict an employer’s ability to discipline or discharge an employee for damaging and disruptive comments they make during the course of their employment.

Paid FMLA Benefits: House Bill 6553 would establish a Task Force to study the feasibility of establishing an insurance program to provide short-term benefit payments to employees who are unable to work due to (1) pregnancy or the birth of a child, (2) a non-work-related illness or injury, or (3) the need to care for a seriously ill child, spouse or parent. This bill passed the House on May 14 and will now be considered in the Senate.

D.C. Circuit Court Strikes Down NLRB Rule On Employee Rights Notice

On a positive note, the U.S. Court of Appeals for the District of Columbia Circuit recently issued an opinion striking down a regulation that the NLRB published on August 25, 2011. This regulation would have required all employers subject to the National Labor Relations Act, including those who are not unionized, to post a notice informing employees of their rights under the NLRA. We commented on this proposed regulation several times, including on May 18, 2012 and April 20, 2012. Based on the D.C. Circuit’s opinion, employers do not have to post the notice...at least for now.

If you have any questions, please contact any member of the Carmody & Torrance LLP Labor & Employment Practice Group for more information: