Latest Developments from the Connecticut General Assembly: The Labor and Public Employees Committee Begins to Speak
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At its March 10, 2022 meeting, the General Assembly’s Labor and Public Employees Committee began the process of approving bills.  The following is a brief summary of the bills that the Committee voted favorably on and advanced out of committee for further consideration.   

COVENANTS NOT TO COMPETE: Similar to bills approved by the Committee in previous years,  H.B. No. 5249 (An Act Concerning Noncompete Agreements”) would mandate that a covenant not to compete entered into, renewed or extended is permissible only if: 1) it does not restrict the employee's competitive activities for a period of more than one year following the employee’s termination; 2) it is necessary to protect a legitimate business interest of the employer; 3) it is reasonably limited in time, geographic scope and employment restrictions as necessary to protect such business interest; 4) the employee entering into the covenant receives compensation at an hourly rate of more than three times the minimum wage; 5) the covenant does not require the employee to submit to an  adjudication outside of the state; and 6) the covenant is 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 of 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 solely because its duration is more than one year but not longer than two years following the termination, provided that  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 at least 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 of 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 by this bill would remain in full force and effect. 

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

LAYOFFS, RECALLS, AND SENIORITY RULES:  Last year, the General Assembly passed Public Act 21-189 (“An Act Requiring Employers To Recall Certain Laid-Off Workers In Order Of Seniority), which provided those employed by hotels, lodging houses, food service contractors, and building service enterprises who were laid-off between March 10, 2020 and May 1, 2022 with certain recall and seniority rights.  H.B. No. 5246 (“An Act Extending Recall Rights Of Certain Laid-Off Employees”) would extend that Act’s provisions so as to cover layoffs occurring up to May 1, 2023.  In addition, the bill would extend Public Act 21-189’s provision permitting such laid-off employees to decline a job offer from their prior employers due to underlying health conditions related to contracting COVID-19 prior to May 1, 2021 (while still granting them the right to accept the position until the end of the COVID-19 based state of emergency) to cover those diagnosed with and contracting COVID prior to May 1, 2022

WORKERS’ COMPENSATION AND PENSION BENEFITS: S.B. No. 212 (“An Act Concerning Permanent Partial Disability and Pension Offsets”) would prohibit any municipality or special taxing district with a pension and retirement system from diminishing or eliminating any rights or benefits due to a retiree’s receipt of “permanent partial disability” workers’ compensation benefits. The bill provides that it shall not be construed to interfere with or diminish the provisions of any previously negotiated collective bargaining agreement.

WORKERS’ COMPENSATION AND PRESCRIPTION MEDICINES:  S.B. No. 222 (“An Act Requiring Notice Of Discontinuing Prescription Medicine Under A Workers' Compensation Claim) would require employers (or insurers acting on behalf of employers) to provide notice to the employee and the Workers Compensation Commission and obtain approval from a Workers Compensation Commissioner before discontinuing (or reducing) payment for prescription medicines provided under a workers’ compensation claim.  The bill sets forth the form for such notice, and the employee would have the right to request a hearing on the proposed discontinuance or reduction.

WORKERS’ COMPENSATION AND DISPATCHERS: H.B. No. 5251 (An Act Concerning Workers' Compensation For Dispatchers) would provide dispatchers with portal-to-portal workers' compensation coverage (similar to police officers and firefighters).

VOLUNTEER FIRE DEPARTMENTS/AMBULANCE COMPANIES AND CT OSHA:  H.B. No. 5247 (An Act Concerning Volunteer Fire Departments And Ambulance Companies And The Definition Of Employer Under The State Occupational Safety And Health Act”) would clarify the definition of “employer” under the State Occupational Safety and Health Act so as to cover volunteer fire departments and ambulance companies to the extent they are regulated by the federal Occupational Safety and Health Act.  However, the bill provides that with respect to a first violation that is determined not to be of a serious nature, the volunteer fire department or ambulance company would only be issued a written warning.

“PUBLIC ENFORCEMENT ACTIONS” AND “FORCED ARBITRATION AGREEMENTS: H.B. No. 5245 (An Act Concerning Forced Arbitration Agreements And Allowing Certain Court Actions To Be Brought On Behalf Of The State) 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 laws), wages (including minimum wage and overtime laws), and discriminatory employment practices. The bill provides that the right to bring a public enforcement action shall not be impaired by any private agreement (for example, “forced” arbitration).

EXPANSION OF COLLECTIVE BARGAINING RIGHTS OF PROBATE COURT EMPLOYEES:  S.B. No. 209 (“An Act Concerning The Status of Probate Court System Employees”) would allow Probate Court employees to be considered State employees for the purpose of collective bargaining.  

TECHNICAL AND MINOR CHANGES:  S.B. No. 210 (“An Act Concerning Technical and Other Changes To The Labor Department Statutes”) and   H.B. No. 5250 (“An Act Concerning Minor And Technical Changes To The Workers' Compensation Act”). The titles of these bills largely speak for themselves.  

REGULATIONS AND “STUDIES”: S.B. No. 221 (“An Act Concerning Working Conditions”) would require the Commissioner of Labor to adopt regulations regarding safe and equitable working conditions for all employees in the state.  H.B. No. 5252 (“An Act Concerning Employees”) would require the Commissioner of Labor to conduct a study of employees in this state and submit a report with findings and recommendations to the General Assembly’s Labor and Public Employees Committee by January 1, 2023.  Both of these bills could be placeholders for more significant legislation that may emerge during this session.

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Some of these bills (for example, the one concerning covenants not to compete) have been considered in prior legislative sessions but never came to fruition.    

The deadline for the Labor and Public Employees Committee to approve bills and advance them out of committee is March 29, 2022.  Bills affecting labor and employment issues may also emerge from other committees (such as the Judiciary Committee and the Planning and Development Committee).  The 2022 session of the General Assembly is scheduled to adjourn on May 4, 2022, so stay tuned to see if any of these bills are eventually enacted.

Please contact any of Pullman & Comley's Labor and Employment Law attorneys if you have any questions.

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