One protection extended to qualifying individuals with a debilitating medical condition arises in the context of employment. Under the proposed law, employers are prohibited from refusing to hire a prospective employee or from discharging, penalizing, or threatening an employee solely because of that individual’s status as a qualifying patient or primary caregiver of such an individual.

The term “employer” is defined very broadly to include any “person engaged in business who has one or more employees.” With such a broad definition, the proposed law will apply to virtually every business within the state of Connecticut.

As noted above, qualifying individuals are protected under the law when acquiring, distributing, transferring, possessing, and using marijuana or marijuana-related paraphernalia; however, most employment policies prohibit employees from engaging in such activities at least at work.

How will this law impact you?
Does this now mean that employers cannot impose disciplinary action against employees who come within the parameters of this law? The good news is that the law does not restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or otherwise restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.

While not officially a law yet, the Governor is expected to sign this bill later in the month. The portion of the law applying to employers is slated to take effect on October 1, 2012. To read the text of the proposed law, click here.

Access for More Employers, but Access to Less Information

All employers may obtain criminal record information to evaluate applicants, current employees (full- and part-time), interns, and volunteers via a new, secure, web-based service called iCORI, which requires annual registration. All employers will have “standard access,” which will allow employers to obtain criminal record information about pending criminal charges, misdemeanor convictions from the past five yers (previously ten years), felony convictions from the past ten years (previously fifteen years), and convictions for murder, voluntary manslaughter, involuntary manslaughter, and sex offenses.

Acknowledgment Forms

Prior to submitting a CORI request, employers must obtain a signed Acknowledgment Form from the applicant or employee.

Data Storage, Retention, and Destruction

Employers must store hard copies of CORI data in locked and secured locations. Electronically stored CORI data must be password protected and encrypted. Employers cannot retain a terminated employee’s CORI information for more than seven years from the last day of employment. Similarly, employers cannot retain an applicant’s information for more than seven years from the date of the decision not to hire. Employers must destroy hard and electronic copies after seven years.

Dissemination Requirements and Restrictions

Employers must provide applicants or employees with a copy of their criminal record information before questioning them about their criminal history. Employers may share CORI information only with people in the organization that have a need to know and the authorization to review the contents of the CORI for the purpose of evaluating an individual’s application for employment.

Written Policy Requirements

Employers that submit five or more CORI requests annually must maintain a written CORI policy.

Use in Employment Decisions

Before making an adverse employment decision based on an applicant’s CORI, employers must (1) provide the applicant a copy of their criminal record information; (2) provide the applicant a copy of the employer’s CORI policy, if applicable; (3) identify the information in the CORI that is the basis for the adverse action; (4) provide the applicant the opportunity to dispute the accuracy of the information contained in the CORI; and (5) provide the applicant information regarding the process for correcting criminal record information. Employers must document all steps taken to comply with these requirements.

In light of these new regulations, employers must carefully review their existing practices and procedures to ensure compliance with these new regulations.

Please consult our previous post on August 25, 2011 for more information on the rule. And keep reading this blog for further updates.

Currently, litigants claiming age discrimination must prove that, “but for” their age, they would not have been or subjected to an adverse employment action (i.e. termination or demotion). This “but for” rule, derived from the text of the ADEA, was established by the U.S. Supreme Court in the 2009 case of Gross v. FBL Financial Services.

Senate bill S2189 would reverse the Supreme Court’s opinion in Gross and make an employment decision unlawful if age was a “motivating factor” in the decision. This would make age discrimination claims under the ADEA similar to unlawful discrimination claims under Title VII of the Civil Rights Act of 1964. Under this more permissive test, an employer would be liable for discrimination if it subjects an employee to an adverse employment action based both on the employee’s age, as well as legitimate business reasons (so-called “mixed motives” cases).

S2189 would make it much easier for plaintiffs to prevail in age discrimination lawsuits. Instead of having to prove that they would not have been fired/demoted “but for” their age, employees will only have to prove that age was a “motivating factor” in the decision.

It is unclear what the fate of the current bill will be; however, similar bills proposed in 2009 did not garner enough support to reach a vote. Whatever the result of the bill, it is a reminder to employers that employment decisions may be afforded intense scrutiny if an employee/former employee files a lawsuit. Therefore, it is important to document and convey the legitimate reasons motivating any employment decision to protect yourself against future claims.

Nine employees of the Tukwila School District in Seattle, Washington recently filed an EEOC complaint alleging that their school superintendent subjected them to racially discriminatory comments. These alleged comments include statements such as “you have to stop being a big, black man scaring our white drivers” and, to an employee who had recently hired several minorities, “[you're] making the district look too black.” All of the complaining employees, as well as the superintendent, are black. Additionally, the Tukwila School District is well known as a racially diverse district: more than two-thirds of students are non-white.

This is not the first claim of harassment between members of the same racial group. While these claims have generally been unsuccessful, it’s possible that employers could be liable for such conduct since racial comments, no matter who makes them, could constitute differential treatment based on race. However, even if an agency or court refused to recognize the validity of this kind of discrimination, an administrative complaint or lawsuit could open up your organization to unwanted scrutiny. A governmental agency’s or disgruntled employee’s complaint might result in a wide-sweeping investigation that could cost time, money, and resources.

Therefore, it’s important to always be on the lookout for potential workplace harassment. And if you suspect or discover any harassing conduct, you must investigate it immediately. This will lessen the odds that your business will be the next Tukwila School District.

The specific changes are briefly outlined below:

Greater Hearing Officer Discretion: Pre-Election Hearings. The rules explicitly state that the sole goal of a pre-election hearing is to determine whether a question of representation exists and give the hearing officer discretion to limit the topics discussed at the hearing.

Greater Hearing Officer Discretion: Post-Hearing Briefs. Hearing officers will have the discretion to control the filing, subject matter, and timing of any post-hearing briefs.

Consolidation of Pre-Election and Post-Election Appeals. Currently, parties may file separate pre-election and post-election appeals. The new rule consolidates the two appeals into a single post-election procedure.

No 25-Day Waiting Period. Currently, an election may not be scheduled sooner than 25 days after a regional director has issued a pre-election decision. Since the new rules consolidate the pre-election and post-election appeals into a single post-election procedure, the 25 day waiting period will be eliminated.

High burden for Interlocutory Appeals. Appeals of any issues that arise during the election (such as what evidence may, or may not, be permitted) will only be considered under “extraordinary circumstances where it appears that the issue will otherwise evade review.”

Greater Discretion Regarding Post-Election Procedures. Regional directors may resolve challenges and objections to elections without a formal hearing if “there are no substantial or material factual issues in dispute.” Additionally, the NLRB would have the discretion to decline to review regional directors’ decisions.

The new rules will not make it easier for a union to engage in organizing efforts, nor will it affect those employers who already have unions. However, once the election machinery has begun to run, elections will occur quicker than ever before. Organizations looking to avoid a union should start engaging in union avoidance efforts now. If you have any questions about the new rules or would like to learn more about how to build a positive, productive, and union-free work environment, please contact any of our attorneys.

The proposal would only apply to employers with contracts of $50,000 or more who employ 50 or more employees. Those employers would have to ensure that at least 7% of their workforce consists of individuals with disabilities. The requirement would be more than simply numerical: employers would also be required to employ individuals with disabilities in several different positions/departments (the OFCCP’s theory is that individuals with disabilities might be disproportionately represented in a handful of low-paying, low-talent positions). Failing to meet the 7% figure would not result in a finding of discrimination; however, it could result in the cancellation of the federal contract or have a detrimental effect on the contract’s renewal.

The rule would also encourage employees to identify themselves as individuals with disabilities. As employers know, it is ordinarily impermissible to make disability-related inquiries to employees under state and federal discrimination laws. The new rule, however, would get around this by encouraging applicants to self-identify as individuals with disabilities. It would also require that contractors distribute annual, anonymous surveys encouraging employees to voluntarily identify whether or not they have a disability.

Other significant proposals included in the rule are: (1) a requirement that federal contractors develop written procedures for processing reasonable accommodation requests; and (2) a requirement that employers engage in certain outreach/posting procedures to encourage individuals with disabilities to apply for open positions.

The public comment for the rule has ended, and the OFCCP is now considering those comments before issuing a final rule. These proposals are significant and would result in greatly increased obligations for certain federal contractors.

Employers with less than 6 employees: 40 hours unpaid sick time
Employers with 6-10 employees: 40 hours paid sick time
Employers with more than 10 employees: 56 hours paid sick time

The bill is currently before the Joint Committee on Labor and Workforce Development and, if approved, would go to several other committees before facing a final vote.

While the language of the bill has changed several times and is likely to change again, the latest bill allows employees to utilize their sick time in hourly increments, or the smallest increment that the employer’s payroll system utilizes for absences. Also, an employer would be allowed to request documentation for illnesses lasting longer than 24 hours. The rule would be enforced by the Attorney General, and employers would be prohibited from discriminating against employees who utilized their accrued sick time. Finally, employers who offer 20 or more days of paid time off would, under most circumstances, not have to assume any obligations under the new law.

As written, the bill is substantially broader than Connecticut’s recent paid sick time law (see our post here). Connecticut’s law only requires employers with 50 or more employees to offer up to 40 paid sick leave to “service workers.” As noted above, the proposed Massachusetts bill would apply to all employers and all employees, regardless of whether or not they are service workers.

Several employers and industry associations, including the Associated Industries of Massachusetts, have opposed the bill, predicting that it will have a negative effect on employers’ flexibility in designing and offering vacation policies.

If enacted, this bill could have significant effect on Massachusetts employers. Stay tuned to this blog for further developments.

Gaining an extra hour of sunlight also means we lose an hour of sleep. Employers should also be aware that there is an increase of workplace injuries that occur on the Monday following the beginning of daylight savings time.

Employers and employees alike need to remember to turn the clocks ahead one hour before going to bed (or work) on March 11. Employers must also remember that when we “spring forward” there are FLSA implications and safety concerns to consider.

Senate Committee Bill 1 is a variation on a federal bill introduced several months ago (see our post here) that would make it a discriminatory practice for employers or employment agencies “to refuse to consider [an applicant] for employment . . . on the basis that such individual is unemployed.” There would be an exception when one’s “employment in a similar or related job . . . is a bona fide occupational qualification reasonably necessary to successful performance of the job.” It is unclear when an employment-related requirement would be considered “reasonably necessary” for a position, and this issue would presumably have to be resolved on a case-by-case basis.

Bill No. 5291 would increase the penalties for failing to pay employees minimum wage and/or overtime from two to three times the amount of the violation. Additionally, the bill provides for periodic increases of the minimum wage over the next few years: the current amount of $8.25 would rise to $9.00 on July 1, 2012 and to $9.75 on July 1, 2013 (“or one-half of one per cent rounded to the nearest whole cent more than the highest federal minimum wage, whichever is greater . . .”).

Stay tuned to this blog for further developments on these proposals.