Working Together

In addition to what we have written about previously; the General Assembly’s Labor and Public Employees Committee also approved and advanced out of committee a plethora of bills that would expand workers’ rights and protections, including some (restrictions on the use of an employee’s prior criminal history, non-compete clauses, and scheduling changes) that have been adopted in other states. Here is a summary of these bills (which now await action by the full General Assembly).

RELIANCE UPON PRIOR CRIMINAL RECORDS BY EMPLOYERS: H.B. No. 6474 (“An Act Concerning Collateral Employment Consequences Of A Criminal Record”) would, among other things, prohibit all employers from denying employment on the basis of the person's criminal history record, unless, after conducting an individualized assessment, the employer determines in good faith that denial is consistent with business necessity because: 1) there is  substantial nexus between the circumstances of the person's criminal  history record information and the employment the person is seeking or has, taking into account the specific facts of the criminal history record information and the essential functions and specific circumstances of the job; 2) there is substantial evidence that the person has not been  rehabilitated; and 3) insufficient time has elapsed since the acts underlying the criminal history record information.  The bill further would prohibit employers and employment agencies from advertising employment opportunities in such a manner as to restrict such employment for applicants with criminal history record information (except in positions for which the law specifically disqualifies a person from employment because of the person's criminal history record information).  The bill provides that if criminal history record information is used as a basis for rejection of an applicant, such rejection shall be in writing and specifically state the evidence presented and reasons for rejection and shall be sent by registered mail to the applicant. The bill appears to treat violations as discriminatory employment practices and give the Commission on Human Rights and Opportunities the authority to address claims stemming from such violations.      

COVENANTS NOT TO COMPETE:  S.B. No. 906 (“An Act Concerning Covenants Not To Compete”) would mandate that a covenant not to compete entered into, renewed or extended is permissible only if it is 1) not restrictive of the employee's competitive activities for a period of more than one year following the employee’s termination; 2) necessary to protect a legitimate business interest of the employer; 3) reasonably limited in time, geographic scope and employment restrictions as necessary to protect such business interest; 4) entered into by an employee who receives compensation at an hourly rate of more than three times the minimum wage; 5) not requiring the employee to submit to an  adjudication outside of the state; and 6) otherwise consistent with the law of this state “and public policy.”  

The bill provides that the party seeking to enforce a covenant not to compete would  have the burden of proof in any proceeding. Even if all the above conditions are met, a noncompete agreement is presumed unenforceable if it applies to 1) geographic areas in which the employee neither provided services nor had a material presence or influence within the last two years of employment, or 2) types of work that the employee did not perform during the last two years of employment. The bill provides that a covenant not to compete that otherwise conforms in all respects to these new requirements shall not be invalid based upon its duration of more than one year but not longer than two years following the termination if it is a part of an employment agreement or a separation agreement under which the employer agrees to continue to compensate the employee with the employee's base salary and benefits for a period of not less than one year following the termination. 

The bill provides that each covenant not to compete shall 1) be provided to the employee not less than ten business days prior to the date of signing; 2) contain a statement of the employee’s rights (including the right to consult with counsel prior to signing); 3) be supported by sufficient consideration independent from continuation of the employment or contractor relationship, if the agreement is added to an existing employment or independent contractor relationship; and 4) be signed by the employee and the employer. The remaining provisions of any contract or agreement that includes a covenant not to compete that is rendered void and unenforceable would remain in full force and effect, including provisions requiring the payment of damages resulting from any injury suffered by reason of termination of such contract or agreement. 

The bill excluded from the definition of covered non-compete agreements certain non-solicitation agreements, non-disclosure/confidentiality agreements, agreements not to reapply with the same employer, and any agreement made in anticipation of a sale of the goodwill of a business or all of the seller’s ownership interest in a business or as part of a partnership or ownership agreement.

WORKPLACE CANNABIS POLICIES: H.B. No. 6377 (“An Act Concerning Labor Peace Agreements And A Modern And Equitable Cannabis Workforce”) would, among other things, limit the ability of employers to have policies prohibiting possession, use or consumption of cannabis by an employee in the course of employment unless such policies are in in writing, equally applicable to each employee, made available to each employee prior to enactment, and “directly related to a clear business necessity.”  The bill would prohibit employers from requiring employees as a condition of employment to refrain from using cannabis outside the course of their employment or otherwise discriminating against any employee for so using cannabis (or for being involved in “lawful cannabis commerce”).  This bill would not apply to any position or condition of employment governed by federal law or regulation that clearly preempts any of these provisions.

SHIFT SCHEDULING CHANGES: S.B. No. 668 (“An Act Concerning A Fair Work Week Schedule”) would require (with limited exceptions) any covered employer who employs at least 250 employees to pay an employee one-half of the employee's regular rate for any scheduled work hours the employee does not work due to the employer cancelling or reducing the employee's scheduled work hours 1) after the employee reports to work such scheduled work hours, or 2) less than 14 days in advance.  The bill also provides that any covered employee may decline to work a shift that begins less than 11 hours after the end of the employee's previous day's shift (or during the 11 hour period following the end of the employee's shift that spanned two days); if an employee consents to work such a shift, 1) such consent shall be in writing, and 2) the employee who works such a shift shall be compensated at one and one-half times the employee's regular rate of pay.  This bill would require covered employers to keep records for not less than three years of: 1) The shifts worked each day and each week by each employee; 2) each employee's work schedule; and 3) any revisions to such work schedule. The provisions of this bill would generally apply to many mercantile and service industry employers, including those in wholesale, retail, or restaurant occupations, and certain occupations in hotels or residential care facilities.  The bill applies to employees who are paid by the hour and are not exempt from minimum wage or overtime rules.

PUBLIC SECTOR UNIONS: S.B. No. 908 (“An Act Concerning The Right Of A Public Employee To Join Or Support A Union”) would, among other things, require public sector employers to provide public employee unions with: 1) specified information about new and current employees; 2) access to new employee orientations; and 3) access to their employees and government buildings and facilities to conduct meetings with bargaining unit members. With respect to payroll deductions for dues paid to public employee unions, the bill would require 1) public employers to rely on a union’s certification that it has and will maintain the deduction authorizations signed by the individuals from whose pay the deductions will be made; 2) unions to indemnify public employers for any employee claims about deductions that relied on that certification; and 3) public employers to direct employee requests to cancel or change their deductions to the union rather than the employer. The bill would explicitly prohibit public employers from (and makes it a “prohibited labor practice” for such employers to) deterring or discouraging public employees or job applicants from becoming or remaining members of a public employee union.  Indeed, the bill would prohibit an employer from allowing any entity to use the employer’s email system to discourage membership in a public employee organization or authorization of payroll deductions for the organization’s dues.

“PUBLIC ENFORCEMENT ACTIONS”: H.B. No. 6475 (“An Act Concerning Public Enforcement Actions”) would create a method for a whistleblower (whether a current or former employee, contractor, subcontractor, or contractor or subcontractor employee) or a representative organization to initiate a “public enforcement action” in the Superior Court on behalf of, and in the name of, the State. A “public enforcement action” is defined as a civil action brought to enforce employee protections regarding employment regulation (including prevailing wage and paid family and medical leave), wages (including minimum wage and overtime), and discriminatory employment practices.

Stay tuned for more.