🔒CT employers face host of new employment law challenges

Connecticut has seen sweeping legislative changes in labor and employment law in the past few years.

The trend is likely to continue in 2023.

Last year, as employers regrouped from COVID restrictions and a challenging economy, they also adjusted to added workplace protections for victims of domestic violence, broad changes to Connecticut’s Family and Medical Leave Act (FMLA) laws, and protections for recreational marijuana users.

Here are examples of some of those changes:

1. Connecticut’s employment non-discrimination law added protected classification for domestic violence victims. Employers must now provide reasonable leaves of absence for victims to seek treatment, relocate or obtain other services, and they must post notices for employees about rights and available resources for victims of domestic violence.

2. While Connecticut expanded its FMLA provisions in 2019, including the addition of a paid leave component, those changes were not effective until January 1, 2022. Several months later, the Department of Labor issued final regulations to help address the lack of clarity regarding several key provisions.

3. Although Connecticut became the 19th state to legalize recreational marijuana in July 2021, separate employment provisions did not go into effect until a year later. Covered employers are not permitted to take action against employees based solely on a positive drug test unless the employer has a written policy prohibiting use of recreational marijuana outside the workplace. A policy is not required where there is reasonable suspicion to believe the employee is impaired at work.

4. Connecticut’s hourly minimum wage increased to $14 effective July 1, 2022, and will rise to $15 June 30, 2023. Beginning January 1, 2024, increases will be tied to the Employment Cost Index rather than a fixed rate, thereby reflecting economic indicators.

Issues to watch in 2023

These legislative changes, coupled with the impacts of the pandemic, have resulted in new litigation against employers involving such issues as COVID-19 leaves of absence, vaccine and mask mandates, paid family leave, work-from-home accommodations, drug testing, and wage and hour issues, and such litigation will surely continue into 2023.

As we move into 2023, employers should anticipate more legislative changes impacting the workplace from Gov. Ned Lamont and a Democrat-led General Assembly.

Some measures that were unsuccessful last year will assuredly resurface in 2023.

For example, limitations on arbitration and non-compete agreements have seen myriad proposals at both the state and federal levels for the past several years.

Connecticut employers should expect to see these proposals again, especially given the traction gained in Washington with the recent passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act in February 2022, and the Speak Out Act.

Predictive scheduling and expansion of paid sick leave — perennially favorites — will also likely be on the legislative agenda for the coming session, reflecting growing calls by employees, especially those in the service industries, for required prior notice of any schedule changes.

On the labor front, Connecticut employers continue to face re-energized organizing efforts and a pro-union agenda advanced by the Connecticut General Assembly and National Labor Relations Board. Notably, the NLRB reported a 53% increase in union representation petitions filed with its regional offices in FY 2022 over those filed in FY 2021 — the highest number since FY 2016.

Unfair labor practice charges increased by 19% in the same period.

Much focus has been on the government’s efforts to ban employers from holding group meetings to articulate their position concerning union organizing. Organized labor achieved a long-sought political objective in Connecticut with the passage of Senate Bill 163, “An Act Protecting Employee Freedom of Speech and Conscience.”

Effective July 1, 2022, this legislation prohibits mandatory employer-sponsored meetings, often referred to by unions as “captive audience” meetings, which unions argue are major deterrents to organizing.

The U.S. Chamber of Commerce, joined by the Connecticut Business & Industry Association and other trade groups, has filed suit challenging the legislation on the grounds it is preempted by federal law and an unconstitutional violation of an employer’s free speech and equal protection rights.

In light of the unresolved questions about the legality of Senate Bill 163, employers may want to strategize now as to how they will operate under its ban on employer-sponsored meetings.

Lori Alexander, Jason Stanevich and Paula Anthony are shareholders in law firm Littler Mendelson’s New Haven office.