The Dialogue: What Legislation We’re Keeping Our Eyes On

Mar 14 2017

This text originally appeared on Connecticut Employment Law Blog

By Daniel Schwartz on

If at first you succeed, try it again. 

Well, that may not be how the saying goes, but the first back-and-forth post between me and Nina Pirrotti, an employee-side attorney, was so well received that we’re back for another conversation. 

Today’s topic: What legislation are we both keeping our eyes out for at the Connecticut General Assembly?  

The Dialogue Begins

Dan Schwartz: So Nina, our first post was such a hit that I think we’re due for an encore.  Thanks for being up for this.

It has only been a few weeks, but it feels like we’re moving at warp speed on developments.  We could spend another post just on The Donald, sorry, Mr. President. Somehow I think we’re likely to talk about that again soon.

But let’s focus today on some of the legislative items we’re keeping an eye on, particularly in Connecticut. Each year, it seems like our General Assembly likes to roll out fresh employment law ideas.

Is there a particular bill that you’re keeping your eye on now from an employee-side perspective?

Nina Pirrotti: I’m so glad you asked!   Yes, let me tell you about one bill that has been on my mind on the federal level (I am speaking about it at an ABA conference in sunny Puerto Vallarta really soon) and then I will give you a couple of highlights from our backyard.  The federal bill that looms large for me right now (although concededly perhaps not as large as the prospect of sitting on the beach, tequila based beverage in hand) is the misleadingly named  Lawsuit Abuse Reduction Act (“LARA”) which would force judges to respond to Rule 11 motions in a particular manner. 

Rule 11 allows for the possibility of sanctions to be imposed on attorneys or parties who submit (or later advocate for) pleadings which have been filed for an improper purpose or which contain frivolous arguments or claims. 

While Rule 11 motions rear their ugly heads relatively rarely in litigation, a newly invigorated Republican majority in Congress has proposed LARA which would amend the sanctions provisions in Rule 11 to remove all judicial discretion – regardless of the circumstances of the individual case- – in two critical respects. 

First it would require the court to sanction any attorney, law firm, or party who violates the rule.  Second it forces judges who find the rule has been violated to order the offending party to pay  the other party’s attorneys’ fees and costs.  Those in my world who oppose LARA say that there is no proof Rule 11 is not working in its current form, that the changes would burden the courts and that  its “once size fits all” mandatory sanctions would unfairly penalize employees in civil lawsuits.

Closer to home, two bills come to mind.  The first is a proposed modification of C.G.S.A. 31-51m, a statute which bars employers from retaliating against employees who report  employers’ unethical or legal wrongdoings to public bodies. 

The modification seeks to  protect employees who complain about such conduct internally or who refuse to participate in an activity they believe to be in violation of the law.   It also seeks to extend the timeline to bring an action under the law (employees now have only 90 days to file) and to provide for a greater array of damages if the employer violates the statute.

The second is a proposal to provide eligible employees with paid Family and Medical Leave Act leave.  The proposed legislation would require employees to contribute 1/2 of 1% of their wages to it (there would be no employer contribution) and employees cannot opt out it.   

We plaintiff employment lawyers would welcome both pieces of legislation as long overdue and reasonably tailored to protect Connecticut’s workforce.

What are your thoughts from the other side of the aisle, Dan?    Or is there other proposed legislation that has captured your attention?

Dan: With Connecticut dealing with a little, some, a bunch, ridiculous amounts of snow, I’m a bit jealous of your conference to Mexico.

First off, you know the rule in Washington — never believe the name of a bill.  I mean, how can you forget the one that was “Revoke Excessive Policies that Encroach on American Liberties Act”.  Know what it was about? Well, check the acronym. (I’ll wait.)

Anyhow, it always seems like politicians are pushing for solutions to things that aren’t quite broken.  I think we tend to see more meritless cases than you, but the tools are there for courts; judges just need to enforce the existing rules a bit more. But I can see both sides to that argument.

Connecticut legislators sometimes are doing the same. I think the proposed changes to Sec. 31-51m are expanding the law to fix something that has seemed to work ok. In doing so, it would allow an employee to commit insubordination and refuse to comply with an employer’s orders, if that employee alone believes that it MIGHT violate the law.

This could cause a huge disruption to a workplace and would elevate an employee’s judgment over all others.  And our courts have really drawn the line at insurbordination when it impedes an employee’s performance of his or her duties or interferes with the proper functioning of the workplace.

And what type of “suspected violations” would be enough?  There’s lots of things that could violate the law (see A Crime a Day), so is an employee’s belief of some violation (even if they’re wrong) a place we want to go?

I’m keeping an eye on proposed House Bill 5210, which is another bill that focuses pay equity issues. That bill would prohibit employers from asking job applicants about his or her wage and salary history before an offer of employment with the employer has been made.

I think the goal is laudable — making sure men and women are paid equally for the same work — but it’s another set of rules for Connecticut employers to have to follow when hiring.  Are existing laws enough? Are there other ways to accomplish the same goal? And aren’t there valid times when salary history should be asked? I don’t know the answers, but that’s what never gets asked.

What do you think the odds are on this getting passed? What else is bubbling at the Connecticut legislature?

Nina: I am with you on the need for enforcement but I think it is never a good idea to strip judges of all discretion to take individual circumstances into account.

The flip side of your insubordination argument under the proposed revisions to 31-51m is that as it is now constructed, it only protects from retaliation those employees who report to a public body. 

As such it provides zero incentive for employees to go to their employers first as such a route provides them with no protection. 

Wouldn’t employers prefer that their employees first report their concerns internally so that employers have an opportunity to investigate and act upon any issues before a public body gets involved?  Just saying!

I too am on the look-out for developments in proposed House Bill 5210.  And Dan, forgive me but I have to get on my soapbox for a minute because this issue – – the need to strive for ways to root out entrenched salary disparities between the sexes – – is near and dear to my heart.  

In 2012, women earned on average  77¢ for every dollar their male counterparts earned.  Women’s salaries are, on average, lower than men’s even in occupations predominantly held by women. Why in the world is this still happening?

Connecticut is one of several states around the country proposing bills which would bar employers from inquiring into a prospective employee’s salary history. 

Proponents (including yours truly) argue that if the employee’s prior salary was itself a product of a sex-based disparity, a future employer who learns that information and predicates a salary offer upon it may — even unwittingly — perpetuate that disparity. 

There is no question that barring an employer from inquiring about a new employee’s salary history presents its share of challenges in setting an appropriate salary.

However, such a move would encourage employers to focus on objective criteria, rather than a particular employee’s previous negotiating success (or lack thereof).  I humbly submit that that scenario is a win-win for both the employer and the employee.

One of the most comprehensive pay equity bills to date is The Act to Establish Pay Equity, enacted by Massachusetts in 2016 with an effective date in 2018. 

Like many of its counterparts in other states (including Connecticut), the Act bans “pay secrecy” practices which prohibit employees from discussing their wages and makes it unlawful for employers to retaliate against an employee who has inquired about another employee’s compensation. 

The Act is among the most comprehensive in the country, however, as it also includes significant changes as to how an employer may use salary history in the hiring process.

Like proposed House Bill 5210, the Act provides that employers may not seek a prospective employee’s salary history from prospective employees or their current or former employers.  Unlike proposed House Bill 5210, the Act also explicitly provides that employees may proceed on behalf of themselves and other “similarly situated” employees, opening the door for class actions.

Needless to say, I am a fan!

And now, as I gingerly step off that soap box and settle back onto terra firma, I am wondering what you think of the proposed bill which would require employers to provide for paid Family Medical Leave Act leave?   And are there any other issues de jure that are particularly sticking in your craw?  

Dan:  I think we both agree that sex discrimination – particularly in pay – is wrong. I too want to see women, and ultimately my daughters, paid fairly just like the male employees.

But I can’t let that 77 cents statistic just go by. The Washington Post debunked that pretty well last year. While there is some remaining gap (and again, I’m in agreement we need to find ways to eliminate that), it’s not nearly as large as you state, and the reasons behind the gap are far more complicated.

As the article stated, “Unless women stop getting married and having children, and start abandoning careers in childhood education for aerospace engineering, the gap in wages will almost certainly persist. Democrats thus can keep bringing it up every year. But Democrats must begin to acknowledge that “79 cents” does not begin to capture what is actually happening in the workforce and society….So it’s long past time for politicians to stop repeating the “79 cent” factoid without the proper context — especially if they are giving speeches or airing ads on Equal Pay Day. ”

And so, getting back to the proposed bill: Is that going to help solve the issue? I don’t know the answer, but I’m not sure the legislators know the answer either.

Anyways, as for Paid FMLA, I can’t get too excited about that one way or the other. I know business and industry groups aren’t big fans, but I’m not sure from an employment law perspective things will change all that much.

Another bill that is on my radar screen is the so-called “predictability pay” bill, Senate Bill 747.  That bill would require employers to post employee work schedules 21 days in advance. If employers make any change to the schedule within 24 hours of the start of the shift, the employee would get one hour of wages; if less than 24 hours notice, the employer must pay the employee equivalent to four hours pay.

There is no doubt that there are a few employers who abuse on-call shift scheduling which can make it inconvenient to employees.  But there are those employees and employers alike who may prefer this arrangement. A one-size fits solution isn’t great.  And making a civil action out of it seems a bit of an overkill too.  Do you think this a big problem for employees?

Ultimately, while I think employers are concerned about keeping overhead costs down, I think the most important thing to most employers is clarity and consistency. The changes that come about each legislative cycle can be hard to implement.

I just had one employer that hadn’t heard about the pay secrecy bill even though it’s been out for a while now, for example.  Smaller employers just aren’t built for these types of changes each year.

Anyways, as we wrap this up again, anything else I’m missing?

Nina:  Ouch!  Dan, I think this may be our most contentious exchange yet!  I am happy to give up that 79 cents sound bite and agree with you that the reasons pay disparities exist are multi-faceted but I think the Washington Post quote is far too glib.   Readers should view this NY Times article as a powerful counterpoint to the one in the Post.      

The most telling quote for me in the article is from an NYU sociology professor who has studied and written about this phenomenon in depth.:  “Once women start doing a job, “It just doesn’t look like it’s as important to the bottom line or requires as much skill . . . Gender bias sneaks into those decisions.” 

How else could you explain the significant pay gap noted by the Center for American Progress between male and female surgeons and, at the other end of the spectrum, male and female secretaries?  And don’t  even get me started on the far more striking disparities in pay between men and women of color!

You know, if you had waited to send me your rejoinder until I was in Puerto Vallarta where my biggest stressor (while swaying in my beach side hammock) will be whether to order the shrimp tacos or keep it lighter with a papaya and guava smoothie (doesn’t that sound good?!) , you could have gotten a much more conciliatory response from me!

But I am a big believer in seeking common ground and there is so much of it between the two of us, including the fact that both of us actually care about doing the right thing by our clients. 

And in that spirit of finding common ground, I agree with you that a once-size fits all arrangement is seldom ideal (hence my pushback on the Lawsuit Abuse Reduction Act) and have no strong feelings about the “Predictability Pay Bill.” 

Maybe that is also because I do feel strongly that we need to pick our battles and have far more important ones to fight.

Dan: Agreed.  Now, go enjoy the sun and beach conference rooms of Puerto Vallarta and determine the answer to our next big battle: fish tacos or shrimp tacos? I’m see you’re a fan of the shrimp ones, but I’ll take one of those fish tacos any day.  Go do some testing. For research, of course.

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