The COVID-19 pandemic and the governmental measures to address it have had a widespread and indelible impact on Connecticut workplaces. Employers have been forced to re-envision what it means to provide a safe and healthy working environment. Employers must now implement a wide range of safety measures that are addressed in 4.4 Workplace Safety.
Other significant impacts include how employers manage remote work options, leaves of absences, workplace accommodations, and business and personal travel to COVID-19 “hot spots”. Each of these complicated issues implicate overlapping laws and regulations such as the federal Americans with Disabilities Act (ADA), the federal and Connecticut Family and Medical Leave Acts (FMLA), the Connecticut Fair Employment Practices Act (CFEPA) and the federal Families First Coronavirus Response Act (FFCRA). Employers must strike a balance between providing a workplace where employees and customers feel safe with one that is productive and economically viable.
Remote Work Issues
On March 10, 2020, Connecticut Governor Ned Lamont declared public health and civil preparedness emergencies that gave him the authority to issue executive orders to address the pandemic. The Governor has issued over 65 executive orders, many of which directly impact employment practices.
On March 20, Governor Lamont issued Executive Order No 7H, directing all non-essential functions in Connecticut to suspend in-person operations. While the list of “essential” businesses that could remain open was long, many of those essential businesses also chose to close temporarily and/or allow their employees to work remotely. On May 20, 2020, the Governor began to implement a three-phased plan to allow businesses to reopen at a variety of different capacities.
As employers transitioned to full or partially remote work platforms, a number of issues have arisen concerning
Some Connecticut employers appear to have successfully implemented remote work options for their entire workforce and have indicated that they intend to maintain those working arrangements at least through December 31, 2020. Other employers have struggled with teleworking arrangements and/or the challenges associated with bringing employees back to work. A phased-in approach is generally recommended, whereby employees either initially follow a rotating schedule of in-person and remote work or where employees gradually return to work in phases by departments.
Another challenge concerns how to address employees who cannot or do not want to return work. Some employees have legitimate reasons for being unable to return to in-person work, such as underlying medical conditions that render them particularly vulnerable to the coronavirus. With respect to requests made by employees to work from home, employers should engage in the interactive process required by the ADA and CFEPA. Employers may ask employees to have healthcare professionals articulate the basis for the request and how the employee could be reasonably accommodated. While a reasonable accommodation could be something short of a work from home arrangement, employers will have to demonstrate why a work-from-home accommodation is not reasonable or may cause an undue hardship. By following the interactive process, employers will be able to identify employees who either have a generalized fear of returning to work or simply prefer working from home, and insist they return to work.
Issues confronting working parents also present a challenge for employers. The state required Connecticut schools to devise three return-to-school models that will be implemented at different times throughout the school year, depending on the current spread of coronavirus in Connecticut. Two of the models require at least some remote learning, and most public schools have announced they intend to begin the 2020-21 school year with a “hybrid” model involving part-time distance learning. Therefore, many working parents will likely seek alternative and flexible work arrangements during the times they need to be home with minor children. Employers will need to consider how they can accommodate these requests, and those covered by the FFCRA will be required to provide eligible employees with paid time off (PTO) for up to 12 weeks.
In sum, many Connecticut employers may need to continue to offer teleworking options in some form for the foreseeable future. Employers should consider adopting teleworking policies that address eligibility requirements, time-keeping, performance management, technology issues, and protecting proprietary and confidential information, to name a few.
Business and Personal Travel
Pursuant to Executive Order No 7III, as of July 24, 2020, individuals who have been in a state with high-COVID-19 levels for more than 24 hours are required to self-quarantine for 14 days upon their return to Connecticut. Only under limited circumstances may a person produce a negative test instead of the mandatory quarantine. The states that meet Connecticut’s criteria for “high COVID-19” levels are updated on a weekly basis.
This travel advisory has many implications for the Connecticut workplace.
First, an eligible employee who works for a FFCRA-covered employer and who is unable to work as a result of this Executive Order may be entitled to paid time off under FFCRA, whether the travel was for business or personal reasons.
Second, employers should consider suspending business travel to affected states or countries to protect their employees and prevent the further spread of the coronavirus. If employers cannot suspend such travel, they must recognize that the employee may need to quarantine as a result of such business travel.
Third, employers should consider requests by employees to refrain from certain travel that may put them at risk if the destination is a COVID-19 hot spot. An employer who requires an employee to travel to a COVID-19 hot spot risks liability if the employee contracts coronavirus.
Fourth, with respect to vacations and PTO, employers may consider implementing policies making it clear that, absent mitigating circumstances to be determined by the employer, the employer will not approve PTO requests for employees to travel to any COVID-19 hot spot, and that an employee who makes that travel and is unable to return to work will be subject to disciplinary action, up to and including termination of employment.
Employers Must Adapt to Changing Circumstances
The Governor’s declaration of public health and civil preparedness emergencies is scheduled to end on September 9, 2020. It is unclear whether any or all of the executive orders affecting employment practices will continue to be in effect after September 9, 2020. What is clear is that employers must continue to be flexible as circumstances evolve.
According to the Connecticut Commission on Human Rights and Opportunities (CHRO), discrimination based on race is the most common complaint the agency receives. Sex discrimination, including sexual harassment, is a close second. Recent social justice movements such as “Black Lives Matter” and “Me Too” will impact the employer/employee relationship by focusing attention on issues of racial and gender equity in the workplace.
Last year, Connecticut responded to the “Me Too” movement by passing the Time’s Up Act, which aimed to reduce sexual harassment and discrimination and increase gender equity in the workplace. The Act includes a mandate that all employers provide two hours of sexual harassment prevention training to supervisors, and employers with three or more employees provide training to all employees. Employers must satisfy these new training requirements by October 1, 2020 for all existing employees, and within six months for new hires and promotions to supervisory roles. With the COVID-19 pandemic making training difficult for employers, the CHRO is allowing employers to request a 90-day extension of this deadline for reasons related to the pandemic, provided the request is received on or before September 9, 2020.
The Act also modified existing state law to extend greater protections to employees claiming sexual harassment and other forms of workplace discrimination. Now, once an employee has made a claim of discrimination, an employer cannot make any change to the terms and conditions of an employee’s employment (such as work location or work schedule) without the employee’s written consent. The Act extended the time to file workplace discrimination complaints and expanded potential monetary damages available to complainants.
This year, Connecticut responded to the “Black Lives Matter” movement by passing the Police Accountability Act, which limits immunity for police officers and allows the public release of police personnel files and results of internal investigations into allegations of excessive use of force. While this Act does not directly impact non-municipal employers, lawsuits challenging the Act may impact private employers, including whether the legislature may supersede provisions of existing collective bargaining agreements.
This year also heralded a victory for the LGBTQ+ rights movement when the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an employee because the employee is gay, lesbian or transgender. This is a landmark decision as more than half the states did not recognize such protections. It has less of an impact in Connecticut where state law has protected employees from discrimination based on sexual orientation and gender identity or expression for many years.
These social justice movements will also require employers to continually evaluate their processes, procedures, strategic plans, and key leadership to make sure that all are responsive to the universal call to increase equity and inclusion and decrease the possibility of unintended bias in the workplace. To hire, retain and direct a productive workforce, employers should understand the impact these powerful social movements will have on the workplace, including several emerging best practices for employers operating in the USA, as described below.
Even if an organization has expressed its support for diversity, equity and inclusion (DEI), employees may look for concrete plans that put those values into action. That action can take any number of forms, including educating employees on issues such as cultural competency or implicit bias, beginning or supporting a job pipeline program for the organization’s industry, and donating to non-profit organizations that support DEI.
Workplace policies and procedures will face increasing scrutiny. Therefore, an evaluative mindset is necessary to make sure that there are no unintended barriers to diversity or equity lurking in such policies and procedures. For example, a dress code policy that restricts certain hairstyles, or headgear, may disproportionally affect black Americans or certain religious groups.
Authentic, Inclusive Leadership
Leaders who project a visible commitment to DEI, through their words, actions and ability to listen, will play a key role in shaping the sort of organization that can attract and retain the best talent in the era following “Me Too” and “Black Lives Matter”.
Mobility and Liveability
Global entities looking for a US base are typically drawn by Connecticut’s position between New York and Boston. Proximity to international and local airports facilitates international and domestic travel. Commuter rail along the coast makes hourly connections to New York City, and a new commuter rail connecting New Haven, Hartford and Springfield has increased worker mobility. Other considerations include:
“Opportunity zones” create tax and other incentives for companies to grow and to positively impact these communities through real estate development, business investment, and energy-related projects.
Connecticut’s manufacturing legacy continues in the form of (i) advanced and specialty manufacturing, which creates a demand for skilled labor and (ii) converted empty factories into data centers, co-working facilities, aqua-farms and hydroponic farms, and even a fuel cell energy park. The aerospace and defense industries continue to attract new technologies and skilled workers.
A more recent development is that insurance and finance industries, healthcare systems, and colleges and universities, often in partnership with state and local government, have fueled a provision of capital and space that has made Connecticut home to a number of incubators and accelerators that are attracting companies from every part of the world.
Connecticut is on the progressive end of consumer and employee protection. Common enforcement concerns include independent contractor status, worker misclassification, and violations of wage and hour laws. See 2.1 Defining and Understanding the Relationship, 6.3 Wage and Hour Claims and 6.7 Possible Relief.
In 2019, Connecticut passed one of the most generous paid family and medical leave laws in the USA. Paid leave benefits will be funded by a 0.5% tax paid by workers. Employers will begin withholding the 0.5% tax on January 1, 2021. Paid benefits will be available for eligible employees on January 1, 2022.
While protective of worker mobility, Connecticut laws also protect competition and innovation. The Computer Crimes Statute provides for civil prosecution of employee theft of company data, including attorney’s fees and treble damages. Non-compete agreements that are reasonable in time and scope are routinely enforced, except that non-competes with respect to a small number of professions are regulated by statute (eg, security guards, physicians, broadcast employees, and home caregivers). See 4.1 Restrictive Covenants.
In general, the unionization rate in the USA is low and has been decreasing for years. According to the Bureau of Labor Statistics, the union membership rate (the percentage of wage and salary workers who were members of unions) has declined from 20.1% in 1983 to 10.3% in 2019. As of 2019, the union-membership rate of public-sector workers (33.6%) is more than five times higher than the rate of private-sector workers (6.2%). Connecticut’s unionization rate is relatively low at 16.5% as of 2019, but it is significantly higher than the national average.
It is uncertain and too early to predict what impact, if any, the COVID-19 pandemic has had and will have on unionization. As a general principle, workers are more likely to unionize if they perceive job insecurity, unfair wages and benefits, and poor/unsafe working conditions. The COVID-19 pandemic has unquestionably heightened these insecurities. For example, Amazon employees in New York, Chicago, and Minnesota walked out to demand that the company do more to protect them from the coronavirus.
Even before the pandemic, a poll conducted in September 2019 by the Pew Research Center found that 70% of Americans believe the US economic system unfairly favors the powerful. Many believe this discontentment gave rise to the progressive political movement. Therefore, it would be reasonable to predict, based on these factors, that the rate of unionization would likely increase, particularly in certain industries most directly impacted by the pandemic, such as healthcare workers, teachers, food service, hospitality, and manufacturing.
There are, however, countervailing factors that will make unionization more difficult, such as an increasing gig economy, an increase in service sector jobs and a corresponding decrease of jobs in traditionally strong union industries – for example, government and manufacturing – and an increase in state right-to-work laws.
The National Labor Relations Board (NLRB) is an independent federal agency that enforces the National Labor Relations Act (NLRA). The NLRA is a federal law that provides employees with the right to form or join unions; engage in protected, concerted activities to address or improve working conditions; and/or the right to refrain from engaging in these activities. The NLRB is headquartered in Washington DC and has regional offices across the country. The regional offices principally handle charges alleging illegal behavior, and process petitions seeking union representation.
The NLRB is viewed by many as being partisan, taking business-friendly positions when the majority of the Board is appointed by a Republican president and taking union-friendly positions when the majority consists of Democratic appointments. As such, the Board is notorious for overturning its own precedent based on its partisan make-up. Any global entity seeking to do business in the USA – especially an entity that has a unionized workforce – must understand the dynamics and make-up of the NLRB.
A global entity must carefully consider the structure and classification of its relationship with its workers in the USA. Typical classifications include employee, independent contractor, and paid or unpaid intern (unpaid volunteer arrangements are generally unlawful for private for-profit entities).
Employees enjoy significant protections under federal and state law, including:
In addition, employers are required to share in the cost of payroll taxes to fund statutory retirement and disability programs such as Social Security and Medicare.
There is a temptation to treat workers as independent contractors as a cost-saving measure. However, a worker’s status as an employee or independent contractor is determined strictly by law. Complicating matters, there is a patchwork of overlapping tests used by federal and state administrative agencies to determine employment status. From a regulatory standpoint, there has been increased scrutiny of worker classification. If an entity is found to have misclassified a worker, the entity may be liable for penalties and payment of unpaid taxes and back wages. While it is possible to have a legitimate contractor relationship with a worker, an entity considering this should consult with legal counsel to analyze and document the relationship appropriately.
It is similarly tempting to consider using unpaid or low-paid interns or students as alternatives to employees or contractors. However, if the intern or student is not the primary beneficiary of the relationship, the intern or student could be deemed an employee entitled to employee protections (eg, minimum wage and overtime). Connecticut law also extends protection from unlawful harassment and discrimination to non-employee interns.
An alternative to direct employment is to use a staffing agency. Typically, the staffing agency employs the worker and assigns him or her to the customer-entity. While this can ease administrative burdens and provide flexibility for the customer-entity, the overall cost of labor may be higher than if the customer-entity employed the individual directly. Also, there are circumstances where the customer-entity and the staffing agency can be deemed “joint-employers”, in which case both entities are responsible for compliance with employment laws for the worker. Recent federal regulations focus on the degree of actual control exercised over the worker.
In terms of political and socio-economic issues, COVID-19 has dominated the headlines. As a significant portion of the workforce continues to telework, it is important that an entity establish procedures for ensuring all hours worked are tracked and paid in accordance with law. In addition, as social justice issues have shared the headlines with COVID-19, there may be even more scrutiny on a business’s relationship with and treatment of its workers. See 1.2 "Black Lives Matter," "Me Too," and Other Movements and 4.4 Workplace Safety.
Immigration law is a dynamic, constantly changing area of the law that involves a myriad of federal agencies, legislation, regulations and presidential policy directives. This past year has been particularly active, with a string of executive actions pertaining to immigration that have created some confusion and uncertainty, both domestically and globally.
However, certain basic compliance obligations in employment have remained relatively constant since the implementation of the Immigration Reform and Control Act of 1986 (IRCA) and subsequent amendments to the Immigration and Nationality Act. For decades, federal law has prohibited US employers from hiring individuals not authorized to work in the USA and has imposed strict requirements on employers to verify the identity and employment authorization of individuals at the time of hire. As part of this process, newly hired employees are currently required to complete Form I-9, Employment Eligibility Verification, and present acceptable documents in person to their employer within three business days of starting work.
This year, in response to widespread need for businesses to operate remotely due to the COVID-19 pandemic, U.S. Immigration and Customs Enforcement (ICE) has temporarily relaxed the requirement for employers to perform in-person inspections of new hires’ Form I-9 documents within three business days of hire. In March 2020, ICE announced that it would allow employers to inspect Form I-9 documents remotely, if they also promptly obtained copies of the documents and performed the normally required in-person inspection of acceptable documents once a business’s normal operations resumed. ICE has extended this temporary policy of relaxed I-9 compliance several times in 2020, and it is yet to be seen whether, and for how long, this will continue.
Despite this year’s temporary relaxation in the new hire process, US companies that rely on highly skilled foreign national workers have encountered significant challenges filling gaps in the labor market of qualified US workers, following Presidential Proclamation 10052 which banned the entry of H1B, J-1 and L-1 visa applicants seeking entry into the USA from abroad, with limited exceptions, until December 31, 2020. Corporate entities who sponsor foreign national employees for non-immigrant visa categories subject to the Proclamation have had to delay the hiring of highly skilled foreign national workers.
While there are limited carve-out exceptions for healthcare workers and others deemed essential to economic recovery, it has proven difficult for individuals to qualify for such exceptions. Even foreign national physicians seeking to travel to the USA to treat hospitalized COVID-19 patients have faced obstacles establishing that they qualify for the national interest exception in order to obtain H-1B visa stamps. In addition, closures of certain US embassies have delayed or prevented some visa applicants from scheduling emergency visa interviews.
The percentage of private-sector employees in the USA represented by labor unions has been steadily declining for decades. In Connecticut, the percentage of workers represented by a union continues to be among the highest in the nation. See 1.4 Decline in Union Membership?
The federal National Labor Relations Act (NLRA) generally governs private sector labor issues, including the union representations, collective bargaining and workers’ right to engage in certain concerted activity. The law is enforced by the federal National Labor Relations Board (NLRB). See 1.5 National Labor Relations Board.
As a result of the COVID-19 pandemic, the NLRB has conducted significantly fewer representation elections in the first half of 2020 (only 432 elections through July 31, 2020, a decrease of 26% from the 583 elections conducted through July 31, 2019).
The winning percentage for unions in representation elections also decreased through July 31, 2020, declining from 76.7% in 2019 to 72.9% in 2020. Factors that are suspected to have influenced these numbers include increased teleworking and social distancing (which likely decreased opportunities for concerted activity and union solicitation) and recent changes in the union election process. The Trump-NLRB-promulgated election rules seeking to reverse the “quickie election” rules promulgated by the Obama-NLRB. Although portions of the new rules are enjoined, much of the rule went into effect on May 31, 2020 and have lengthened the election process. The conventional wisdom is that a compressed election process benefits the union and a longer election process benefits the employer.
On the union side, issues triggering union organization campaigns during the pandemic include pervasive job insecurity following COVID-19-related layoffs and furloughs, health and safety concerns, the rise of social justice issues and the perceived stagnation of wages and eroding of benefits in low-income occupations.
On the management side, a key issue facing unionized employers during the pandemic involves the “duty to bargain” – particularly when employers have been forced to make urgent decisions on layoffs, furloughs and wage and benefit cuts in response to COVID-19. Under the recently refined “contract coverage standard”, a unionized employer may act unilaterally to change the terms and conditions of employment if doing so falls within the scope of its rights under the collective bargaining agreement (CBA). But even when an employer has the right to act unilaterally, it may have a duty to bargain over the impact of its unilateral action.
If a CBA does not give the employer the right to act unilaterally on an issue that is subject to bargaining, the employer may act unilaterally if it demonstrates that “economic exigencies” compel “prompt action”. This is a difficult standard to meet and may not relieve the employer from its obligation to provide the union with advance notice.
In response to the pandemic experience, many unionized employers are focusing on strengthening their management rights and proposing force majeure provisions as part of CBA negotiations.
Global entities must be aware that states, including Connecticut, have been aggressive in passing laws that impose greater restrictions on questions and areas of inquiry that employers are permitted to ask applicants during the hiring process. This is especially true before an employer extends a bona fide offer of employment. The trend has been to prohibit inquires that do not directly relate to the job requirements and the individual’s qualifications, skills and work experiences.
This trend among the states adds to legal restrictions already existing under federal law. For example, it has been illegal for many years for an employer to ask any question about a protected characteristic, such as race, age, pregnancy, national origin, and religion. It is also illegal under the Americans With Disabilities Act to make any disability-related inquiries or require any medical examination, even if they are job-related, before a bona fide offer of employment is made.
The federal Fair Credit Report Act requires employers that engage third parties to conduct background checks to strictly adhere to certain specific notice and authorization requirements. Some of these requirements are technical in nature and there has been an increase in class action lawsuits against employers who do not strictly follow the law’s specific requirements.
In recent years, Connecticut has joined other states in passing a “ban the box” law that restricts an employer’s ability to inquire about an applicant’s criminal record. Connecticut also joined other states in trying to remedy equal pay issues based on gender by passing a law that prohibits employers from asking an applicant about their salary history.
The patchwork of federal and state laws makes the hiring process especially challenging for global entities that operate in different states. These entities must devise hiring policies that are not only consistent throughout the organization and manageable but are also compliant with constantly changing state laws.
The pandemic further complicates the hiring process. From a practical perspective, employers now conduct interviews and new employee orientation by video conference. Also, employers who strongly prefer to have employees work on-site during the pandemic may be tempted to ask questions about an employee’s health and/or age, both inquiries that are prohibited under federal and Connecticut law.
In Connecticut, restrictive covenants, such as non-disclosure, non-solicitation and non-competition agreements, are generally permissible so long as they are not overbroad. Some restrictive covenants are unenforceable or significantly limited in other states (eg, California, Massachusetts).
Connecticut courts will generally permit a restrictive covenant if the agreement meets each factor in a five-prong test. The five factors considered by the courts are if the restriction is reasonable in:
Consideration must be provided in exchange for an employee’s agreement to a restrictive covenant, and consideration may include an offer of employment. However, for current employees, an employer may need to provide additional consideration such as a one-time bonus or wage increase.
In Connecticut, non-competition agreements are specifically prohibited for the following occupations:
Connecticut law also limits enforceability of non-competition agreements for physicians. Under C.G.S. §20-14p, physician non-compete agreements must be:
The statute requires that physician non-competition agreements not be longer than one year and not encompass a radius of more than 15 miles from the physician’s primary practice. Such agreements are not enforceable if the employer dismisses the physician without cause or if the covenant was not made in anticipation of a partnership or ownership agreement.
Sector-Based Privacy Regulation, Federal and State
There is a conceptual challenge for global companies entering the US market that are accustomed to comprehensive privacy and data protection laws, such as the EU General Data Protection Regulation (GDPR), which provides broad individual rights, regardless of the company’s location or industry. US privacy laws are sector-based, meaning that compliance obligations are driven by industry, location, or the types of data processed (eg, medical, financial, credit card and education information).
All 50 states have data breach notification laws; however, each law may carry its own distinct provisions for “personal information”, individual rights and disclosure requirements, breach notification deadlines and procedures, methods for assessing and demonstrating compliance, and so forth.
Adding to the complexity are rules governing privacy of employee information. State and federal agencies regulate employment information such as:
Companies entering the US employment market should consult local legal counsel to review and tailor applicable policies and practices.
Impact of COVID-19
As with most individual rights, employee privacy rights are often not universal. They are balanced against public interests, including public health and workplace safety during a pandemic.
The Americans with Disabilities Act (ADA) protects against disability-related questions or mandated medical exams, except where necessary for the job or where there is a direct threat to health or safety. Pandemic-related guidance from the U.S. Equal Employment Opportunity Commission (EEOC) states that:
Companies should focus on updated guidance from public health authorities and government agencies.
Connecticut is often at the forefront of enacting progressive workplace protections for employees. Connecticut’s anti-discrimination statutes are set forth primarily in the Connecticut Fair Employment Practices Act (CFEPA). CFEPA is among the oldest anti-discrimination statutes in the country and applies to employers with three or more employees.
Connecticut’s anti-discrimination laws are generally broader than similar federal laws including, for example, having broader definitions of physical and mental disabilities. Under CFEPA, individuals also may be personally liable for aiding, abetting or compelling discriminatory employment practices. Connecticut law also prohibits employers from discriminating against a job applicant or employee solely on the basis of his or her status as a “qualifying patient” or “primary caregiver” under Connecticut’s medical marijuana law.
Employment Policies, Training and Other Considerations
As discussed in 1.2 "Black Lives Matter," "Me Too," and Other Movements, the Time’s Up Act went into effect on October 1, 2019 and requires robust sexual harassment training requirements for Connecticut employers. The Act also requires employer to distribute anti-harassment policies to all employees. These policies should specifically identify examples of prohibited conduct, the method by which violations of the policy may be reported and the fact that retaliation for reporting policy violation is strictly prohibited. Also, employers should consider offering training that involves raising employee awareness of implicit biases and how that affects decision-making and interactions in the workplace. Policies should be regularly assessed and updated to ensure that they do not unintentionally result in a disparate or unfair impact on certain protected classes.
While Connecticut is an at-will employment state, it is important for employers to carefully document employment decisions that are made throughout the employment relationship. The preparation of such documentation forces employers to thoroughly and properly consider the basis for their decision. If applicable, employers should carefully review and cite relevant policies in such documentation to ensure that the decision is based on a rationale or policy that is uniformly applied to the workforce.
The COVID-19 pandemic has transformed the ways in which employers think about workplace safety. Employers throughout the USA must comply with the federal Occupational Safety and Health Act (OSHA) by providing a workplace free from serious hazards. Although OSHA typically impacts higher-risk industries such as manufacturing, construction and those involving industrial and hazardous materials, COVID-19 has in many ways become a serious hazard that impacts all employers.
How to Provide a Safe and Healthy Working Environment
Connecticut employers should refer to the Connecticut Department of Economic and Community Development’s (CDECD) Safe Workplace Rules for Essential Employers and the state’s Reopen Connecticut Plan, which provide numerous requirements and guidelines for employers to follow during the pandemic. For example, employees are required to wear a face mask, except when the employee is able to work alone in a segregated space or is using break time to eat or drink. CDECD’s Safe Workplace Rules require essential employers to provide face masks to its employees. Employees who cannot wear a mask due to a medical condition must provide documentation. Employers should direct employees with symptoms of COVID-19 or who have been exposed to COVID-19 not to come to work. Employers should also assess whether their paid time off (PTO) policies are appropriate considering the pandemic.
Also, employers must develop and implement practices for social distancing such as limiting the number of people using conference or community rooms or entering rest rooms or elevators at the same time. Employers should ensure vigorous cleaning including frequent cleaning of touch points and should have hand washing or sanitizing capabilities available upon entry into the facility.
Employers are encouraged to interview visitors to their facilities about their travel history and current health condition as it relates to COVID-19. Connecticut businesses have the right to refuse service to an individual not wearing a mask.
Connecticut businesses must develop a plan if an employee is diagnosed with COVID-19. Such plans should involve (i) whether certain portions of, or an entire facility, must be evacuated to allow for vigorous cleaning and (ii) how individuals who came in contact with the affected employee will be notified. Employers should maintain daily sign-in logs to keep track of employees so that COVID-19 contact-tracing may be properly conducted. It is also important to remember that federal and state privacy laws, such as the Connecticut Personnel File Act and HIPAA, include significant restrictions on the disclosure of employees’ personnel and private health information.
The Connecticut Workers’ Compensation Act
The Connecticut Workers Compensation Act provides an exclusive remedy for employees who suffer work-related injury, illness or death. The Act grants benefits to injured employees without regard to fault or negligence. On July 24, 2020, Governor Ned Lamont issued Executive Order 7JJJ, which creates a rebuttable presumption that certain employees who missed a day or more of work between March 10, 2020 and May 20, 2020 due to a diagnosis of COVID-19 had contracted the virus at work. Employers may rebut the presumption by demonstrating, by a preponderance of the evidence, that the employee did not contract COVID-19 at work.
E.O. 7JJJ also provides that any workers’ compensation benefits paid must be reduced by any amount paid under the Families First Coronavirus Relief Act (FFCRA). However, the U.S. Department of Labor has taken the position that FFCRA benefits are not available if the employee is receiving workers’ compensation benefits. Therefore, the availability of retroactive pay under E.O. 7JJJ calls into question whether an employer will be required to seek repayment made to an employee under FFCRA and address any tax credit taken when retroactive workers’ compensation benefits are awarded. While the Governor’s Executive Orders are currently set to expire on September 9, 2020, the state legislature indicated that it may codify certain provisions of E.O. 7JJJ.
A global entity seeking to establish a presence in the USA should consider whether the state in which it seeks to establish a presence is “business-friendly”. Some states – and even cities within those states – pass numerous laws that highly regulate the employment relationship and are aggressive in enforcing those laws. This can increase the cost of doing business in those states and raises concerns about legal compliance.
During the pandemic, a global entity should also evaluate whether it is necessary for it to be in a city with generally higher occupancy costs, or whether a rural location would be appropriate. This analysis will be largely influenced by the degree to which key employees can effectively perform their job duties remotely or whether they must be located on site. If the former is possible, then a rural, and less expensive, location may be preferable. Employers must also consider whether it will be able to recruit individuals to work on site. This pandemic has given employees the opportunity to work remotely, and many individuals place a value on doing so.
Other benefit terms that are important to employees during this pandemic include whether the organization has flexible, family-friendly work policies and schedules, sick leave, the degree to which travel is required for the position, and the level of healthcare benefits.
Connecticut is an at-will employment state. As such, either party generally has the right to terminate the employment relationship at any time, with or without notice or cause. However, the at-will doctrine has been limited over time through numerous statutory and judicial exceptions, including terminations based on an employee’s protected class (such as race, gender, age), as well as those that are based on an employees’ participation in protected activity.
Connecticut courts have held that at-will employees may sue for wrongful discharge if they are terminated for complaining about, or refusing to participate in, the employers’ alleged violation of public policy. Another exception to the at-will employment doctrine arises where the employer and employee entered an express or implied contract concerning the nature of the employment relationship. See 6.1 Contractual Claims.
Before discharging an employee, employers should review the documents that were used to form the employment relationship, such as offer letters, and any employment agreement. Employers should also assess the employee’s performance history and the documentation that reflects that performance, the employment policies that may be at issue, the application of those policies to other employees, and the thoroughness of any investigations that have been conducted. The lack of documentation to support a termination or the inconsistent application of policies and rules to employees may create questions about the legality of the termination. Moreover, these issues are particularly important as employers are forced to make difficult decisions about laying off and/or furloughing employees because of the COVID-19 pandemic.
Connecticut also requires employers to provide employees with copies of any documentation of disciplinary action and written notice of termination, if created, as well as notice of the employee’s right to respond to such discipline or termination.
Employees who voluntarily terminate their employment must be paid their wages in full not later than the next regular pay day. Employees who are involuntarily terminated must be paid their wages in full not later than the next business day after discharge.
Connecticut is an at-will employment state, allowing either the employer or the employee to terminate the employment relationship at any time with or without notice or cause. See 5.1 Addressing Issues of Possible Termination of the Relationship.
An employer and employee, however, may choose to enter into a contractual employment relationship (such contracts may be written or implied). Typical employment contracts include a specified period of employment, reasons for early termination and other terms and conditions of employment.
An employer that terminates employment in violation of a contract may be liable for damages, including lost wages that would have been earned through the term of employment and future lost wages, less wages earned by the employee elsewhere. Connecticut courts have also awarded specific performance as a remedy to an employer’s breach of contract. Connecticut courts typically do not award punitive damages in contractual relationships. However, in rare circumstances, courts have awarded punitive damages for breach of employment contract where the breach was due to tortious conduct.
Employees who breach the contractual relationship with their employer may be subject to the Connecticut courts’ equitable powers. The equitable powers have previously permitted a Connecticut court to compensate an employer for loss by requiring the breaching employee to forfeit compensation paid by an employer during the period of breach and disgorge himself or herself of amounts received from third parties in connection with the breach.
COVID-19 has shifted the way that many industries typically conduct business. Some industries in Connecticut have been unable to re-open or have been allowed to re-open only with reduced capacities. These impacts may cause contractual disputes if a business is unable to re-open or operate at full capacity and is, therefore, unable to meet its contractual obligations. Employers are increasingly considering the use of force majeure and similar provisions in employment contracts.
Employees who seek redress for alleged discrimination, harassment and retaliation under the Connecticut Fair Employment Practices Act (CFEPA) must first file a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). After a prescribed period of time, the employee has the choice of continuing to seek redress at the CHRO or sue in court.
In the wake of the COVID-19 pandemic and the “Me Too” and “Black Lives Matter” movements, it is likely that there will be an uptick in employment discrimination claims generally, and in sexual harassment and race-based claims specifically. The CHRO’s annual report from the 2019 financial year revealed that sexual harassment claims brought before the CHRO were at their highest in 20 years. This trend is likely to continue, particularly as employers are required to make tough employment decisions due to the economic realities of the COVID-19 pandemic.
If an employee prevails on his or her employment discrimination, harassment and/or retaliation claims, he or she may recover several categories of damages including, back pay, front pay, emotional distress awards, attorneys fees and costs and, if the claim is in court, punitive damages. Equitable relief such as reinstatement is also possible. For further information on potential remedies, see 6.7 Possible Relief.
Wage and hour claims may arise from disputes over the payment of:
These types of claims are governed both by the Connecticut wage laws (C.G.S. §§31-58, et seq.) and the federal Fair Labor Standards Act. Connecticut’s wage laws are typically more stringent than federal law – for example, Connecticut’s minimum wage is higher than the federal minimum wage.
Connecticut allows the payment of a lower minimum wage for employees in the hotel and restaurant industries who regularly receive gratuities so long as the tip amount makes up the difference between the tipped minimum wage and the regular minimum wage. Disputes arose as to whether that rule should apply for the time employees spend performing untipped work, such as cleaning or setting tables. This required employers to track the amounts of time each employee spent performing tipped versus untipped work.
The Connecticut Department of Labor has the authority to pursue wage and hour violations and can seek both recoupment of unpaid wages as well as civil penalties. Connecticut statutes provide for enforcement of wage and hour violations in the form of civil penalties and imprisonment. The law provides that employers are subject to these penalties. The term employer is defined broadly to include officers or agents of the employer who authorize the payment of less than a minimum wage.
Civil actions may also be pursued by the individual employee, who may recover up to twice the unpaid wage plus attorney’s fees in such actions.
Federal law protects a relatively narrow range of whistleblower activities in the employment context, primarily surrounding financial misconduct, occupational safety and discrimination against several federally protected classes of employees. Connecticut has enacted broader whistleblower protections. Below are a few of the most frequently encountered whistleblower/retaliation laws in Connecticut.
Connecticut Whistleblower Statute
Connecticut’s employee whistleblower statute, C.G.S. §31-51m, prohibits employers from disciplining, discharging or otherwise penalizing any employee for reporting, verbally or in writing, a violation or suspected violation of state, federal or local laws or regulations to a public body. This statute also protects an employee who is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action.
Connecticut Fair Employment Practices Act (CFEPA)
The Connecticut Fair Employment Practices Act (CFEPA) prohibits retaliation against an employee for opposing any discriminatory employment practice or for filing a complaint, testifying or assisting in any related proceeding.
Employee Protections for Exercising First Amendment Rights
Connecticut law is unique in that it extends job protection to private sector employees for the exercise of their constitutional rights under the First Amendment and similar rights under the State Constitution. C.G.S. §31-51q. Such rights are not absolute, and §31-51q specifically excludes protection for any acts by employees that substantially or materially interfere with the employee’s bona fide job performance, or the working relationship between the employee and the employer.
As with federal First Amendment issues, C.G.S. §31-51q creates a difficult tension between rights (of employees) and powers (of employers). This tension has become particularly relevant during 2020, as sensitive political and social issues have jumped to the forefront of many workplace conversations and employees’ social media accounts. Employers should proceed carefully, with the focus of any discipline on the potential harm the speech may cause the employment relationship and not the speech itself.
Connecticut’s workers’ compensation law prohibits an employer from retaliating against an employee for claiming workers’ compensation benefits. On July 24, 2020, Governor Ned Lamont issued Executive Order No 7JJJ, which created a rebuttable presumption that, for workers’ compensation purposes, certain employees diagnosed with COVID-19 contracted the virus in the course of their employment. See Section 4.4. E.O. 7JJJ also prohibits employers from deliberately misinforming or dissuading an employee from filing a claim for workers’ compensation benefits.
The influence of the “Black Lives Matter” and “Me Too” movements produced a heightened awareness of and focus on perceived bias in the workplace. As described in 1.2 "Black Lives Matter," "Me Too," and Other Movements, Connecticut employers must provide two-hours of sexual harassment training to their employees. Employers will also be called upon to continually evaluate their processes, procedures, strategic plans, and key leadership to make sure that all are responsive to the universal call to increase equity and inclusion and decrease the possibility of unintended bias in the workplace hard return.
While explicit or conscious bias is relatively easy to identify, research shows that despite our best intentions, humans cannot escape implicit or unconscious biases. When implicit bias takes over, individuals may resort to relying on assumptions or stereotypes as a “mental shortcut”, which results in less thoughtful and deliberate decisions.
There are a variety of simple, proven techniques that reduce the effects of implicit bias in the employment context, all of which are premised upon understanding one’s own unconscious bias and how these biases operate. Management-level employees would benefit from training aimed at recognizing and setting aside implicit bias.
Leaders who implement any internal dispute resolution processes, or who represent the organization in any external ones, would be well served to have implicit bias training and to seek out mediators or other dispute resolution facilitators who have received implicit bias training, and who implement bias-reduction strategies as part of their regular practice.
Class action employment cases are sparse but not unheard of in Connecticut. For example, in April 2020, the Connecticut Superior Court certified a class of almost 300 limousine drivers asserting violations of wage and hour laws.
Class actions are permitted under Connecticut law and the standards for assessing whether a class action is appropriate are substantially the same as those under the Federal Rules of Civil Procedure. Recent Connecticut cases have reaffirmed that the presence of individualized damages does not prevent the finding of commonality necessary to certify a class action. Rather, the determining factor is whether there are individualized questions going to liability or if the same evidence and determinations can establish liability across the class.
Many employers utilize arbitration provisions to direct employment disputes away from the Connecticut courts. The U.S. Supreme Court recently held that these arbitration agreements may permissibly contain class action waivers, thereby compelling employees to arbitrate their claims individually rather than together as a class.
In Connecticut, employers may be exposed to a variety of damages, depending on the claim type. Claims against employers may be pursuant to a breach of contract claim, discrimination complaint or wage and hour complaint.
In 2019, the Connecticut legislature made sweeping changes to employment law. One change increased the scope of damages that may be issued by the Commission on Human Rights and Opportunities (CHRO). All discrimination claims in Connecticut are initially filed with the CHRO, which mediates, investigates, and may ultimately decide the claim. If the CHRO determines there is cause, it may assess damages against violating employers.
When finding in favor of the employee, the CHRO is authorized to award backpay and reinstatement of the employee, as well as order immediate injunctive relief to prevent the discriminatory practices from continuing. Under the 2019 changes, the CHRO may now also make the complainant whole and award actual costs incurred including attorney’s fees.
The CHRO may now also bring an action in the civil courts on behalf of the complainant. In such a case, the courts have the authority to assess a civil penalty against violating employers of up to USD10,000, paid to the CHRO, and may also award the CHRO its legal fees and costs. Additionally, Connecticut courts are now authorized to levy punitive damages against violating employers, which were not allowed before the 2019 changes.
Wage and hour claims are handled by the Connecticut Department of Labor (CTDOL). If the CTDOL determines that an employer failed to pay an employee correct wages, it may fine the employer between USD2,500 and USD5,000 or even subject the employer to jail time. The CTDOL may also levy a civil penalty on violating employers of up to USD300 for each individual violation. Employers who knowingly fail to pay accurate minimum wage or overtime wage may be subject to paying twice the full amount of the unpaid wages in addition to interest, attorney’s fees, and costs. If the violation was in good faith, the employer will not be required to pay double but will be required to pay the unpaid wages, interest and the attorney’s fees and costs.
Damages relating to breach of contract claims are discussed in 6.1 Contractual Claims.