Working Together

We have written about the General Assembly’s Labor and Public Employees Committee’s final flurry of activity of approving and advancing bills out of committee.  In addition to the bills that we have already summarized, here is a brief summary of bills relating to wage issues and state employee matters approved by the Committee (and which now await action by the full General Assembly). 

WAGES ISSUES

CONSTRUCTION CONTRACTS AND “WAGE THEFT”:  H.B. No. 5439 (“An Act Concerning Wage Theft Responsibility”) would provide that any contractor involved in a construction contract executed on or after October 1, 2022 shall assume liability for any debt resulting from an action brought under the state’s unpaid wage statute for wages owed to an employee and incurred by a subcontractor at any tier acting under, by or for the contractor or its subcontractors, for the employee's performance of labor.  In such an action brought against a subcontractor, the contractor shall be considered jointly and severally liable for any unpaid wages, benefits, wage supplements and any other remedies. The bill provides that any agreement, executed on or after October 1, 2022, to waive or release liability assigned to a contractor under this bill would not be valid, but a contractor would retain the right to maintain an action against a subcontractor for the amount of owed wages that are paid by a contractor.  The bill would empower contractors to request from subcontractors certified payroll records to ensure compliance with the bill provisions; the bill provides that a subcontractor’s failure to comply with a request for such records/information shall be cause for a contractor to withhold payments owed to a subcontractor.

PREVAILING WAGE PROJECTS AND “WAGE THEFT”: S.B. No. 418 (“An Act Concerning Wage Theft”) would empower the Labor Commissioner to issue increased fines and citations to contractors and subcontractors who violate the state's “prevailing wage” laws; the fine would be set at $5,000 per violation (subject to the right of the contractor to request a hearing to contest the citation/fine).  The bill would also permit the Attorney General to commence a civil action against (and debar for up to five years) a contractor or subcontractor who repeatedly (i.e., more than one in a five-year span) violates the “prevailing wage” laws.

CALCULATION OF “STANDARD WAGE”: S.B. No. 421 (“An Act Concerning Standard Wages”) would mandate that paid leave (defined as vacation, holiday and personal leave, other than leave provided by federal, state or local law) be included in the calculation of the “standard wage” for certain state contractors.  Covered employers would still have to provide such leave mandated by law (in addition to paying the standard wage).

STATE EMPLOYEES

STATE STAFFING LEVELS: Much had been written about the “silver tsunami” and exodus from the state workforce.   H.B. No. 5441 (“An Act Adopting The Recommendations Of The Task Force To Study The State Workforce And Retiring Employees”), among other things, would require each state agency to fill all open positions to levels appropriated in the 2022-2023 biennial budget.  Each agency shall also adopt continuous recruitment practices to fill critical shortage positions, as appropriated in the biennial budget for the 2022-23 and 2023-24 fiscal years. Such positions shall not require approval from the Department of Administrative Services or the Office of Policy and Management in order to be filled.  In addition, H.B. No. 5445 (“An Act Concerning State Staffing Levels”) would require the commissioners of each state agency and the superintendent of the technical high school system to automatically refill all vacant positions (including, but not limited to, vacancies that are caused by retirements occurring during 2021-2022 and 2022-2023 fiscal years).  The bill would also require these agencies to submit a plan for filling all vacancies to the General Assembly within 30 days from the date of passage of this bill and quarterly thereafter.  Finally, the bill requires the Commissioner of Administrative Services, the superintendent of the technical high school system and the human resources department of each state agency to keep open requests for applications for all job classifications, and mandates that hiring shall take place continuously for all vacant positions.

CAREER DEVELOPMENT OF STATE EMPLOYEES: S.B. No. 419 (“An Act Establishing A State Training Account For State Service Career Development”) would establish the "state employee training account" to provide funds for career development of state employees.  An amount equal to 2% of the state payroll shall be deposited into this non-lapsing state employee training account.  The moneys in this account may be used for funding:  1) The cost of obtaining certifications or education necessary for promotional opportunities; 2) the cost of trainings, seminars or conferences that will assist employees in promotional opportunities; 3) programs to assist employees who do not otherwise qualify for federal or state job training programs to overcome promotional barriers; and 4) any other costs that are deemed instrumental to the promotional opportunities of an employee.  All state employees shall be eligible to apply for funds.  The account would be administered through a joint labor management committee  consisting of equal members of labor and management, appointed by the State Employees Bargaining Agent Coalition and by employers who bargain with the State Employees Bargaining Agent Coalition covered bargaining units.

MORE PROTECTIONS AGAINST DISCRIMINATION AND RETALIATION IN THE WORKPLACE: S.B. No. 420 (“An Act Concerning The State Workforce And Discrimination And Retaliation In The Workplace”) would require each state agency to adopt a zero-tolerance policy for using managerial authority for discrimination or retaliation against those who complain of discrimination.  Such policy shall: 1) specifically forbid any manager from retaliating or discriminating against an employee who complains of discrimination; 2) include performance and other sanctions against managers who dissuade or seek to dissuade employees from filing such  complaints; and 3) include performance and other sanctions against managers who fail to objectively and fully investigate such complaints consistent with identified procedures following an incident, including, but not limited to, notifications to the complainant regarding the status and outcome of the investigation.  Any covered employer who takes action against an employee in violation of this bill’s provision shall be deemed to have committed a “discriminatory employment practice” and be in violation of the state’s whistleblower statutes. Termination of any employee in violation of this bill’s provisions shall be conclusively presumed to create irreparable harm for purposes of a temporary or permanent injunction action brought to redress such violation, as it will be “irrebuttably presumed” that there is no adequate remedy at law.  In addition, the bill provides that the doctrine of exhaustion of administrative remedies shall not apply in any action to redress such termination.

STATE EMPLOYEES AND HOLIDAYS: H.B. No. 5440 (“An Act Concerning State Employees And Equitable Holidays”) would require the Department of Administrative Services to study the benefits, implications and feasibility of establishing “an equitable holiday policy” whereby full-time state employees are able to substitute at least two current state holidays for religious observances of their choosing, and to submit a report with findings and recommendations to the General Assembly’s Labor and Public Employees Committee by January 1, 2023.

Stay tuned for more.