Over the last week, the General Assembly passed two bills (Senate Bill 3 and 1111) that, when taken together, provide a series of reforms that will impact every Connecticut employer in one way or another. These bills are expected to be signed by Governor Lamont shortly and thus, these requirements will likely go into effect on October 1, 2019.
Here are the key provisions for private employers in the state.
Currently, employers with at least 50 employees are required to give their supervisors two hours of training on state and federal sexual harassment laws and remedies.
The new law will require that employers of any size provide sexual harassment prevention training to all supervisors. For employers with three or more employees, the training must also be given to all other employees. The training must be updated every ten years by employers. The initial training must be done by October 1, 2020 (any employee trained since October 1, 2018 is exempt from being “retrained”).
The bill requires the CHRO to develop a free online training video or other interactive method. If that is done on time, employers will be able to give the CHRO-provided training within six months of an employee’s start date. If employers do not provide training, it will now be a “discriminatory practice” that may allow employees to bring an action at the CHRO (or court). The fine for failing to provide training will be $750.
NOTICES TO EMPLOYEES
The new law will require employers of three or more employees to send a copy of a required poster regarding sexual harassment to employees via e-mail within three months of hire — as long as the employee has an e-mail address (company-provided or personal). The subject line should be titled “Sexual Harassment Policy” or words very similar to that effect. If the employer does not give employees an e-mail address, the information must be included on its website. If the CHRO develops something on its own, the employer can provide this link as an alternative. The fine for failing to do so will be $750 as well.
CORRECTIVE ACTION IN SEXUAL HARASSMENT CLAIMS
When an employer takes prompt remedial action in response to a claim of sexual harassment, the new law will mandate that the employer can only modify the victim’s condition of employment upon agreement in writing from the employee.
However, even if the employer did not obtain the written consent, the bill still allows the CHRO to find that the employer’s corrective action was reasonable and not “to the detriment” to the victim, based on the evidence.
TIMEFRAME FOR FILING DISCRIMINATION AND HARASSMENT CLAIMS
Current law requires employees to file state discrimination and harassment claims with the CHRO within 180 days of the adverse employment action. The new law will expand that deadline to 300 days. While that might seem odd, it is actually consistent with federal law under the regulations of the EEOC.
However, the 300 day timeframe only applies to allegations of discrimination that allegedly occurred on or after October 1, 2019.
REMEDIES AVAILABLE AT CHRO PUBLIC HEARING
Currently, a CHRO Human Rights Referee may only order reinstatement and back pay as forms of relief.
The new law will allow (though does not mandate) that a hearing officer determine the “amount of damages suffered by the complainant, including the actual costs incurred by the complainant” as well as “reasonable attorney’s fees and costs.” Back pay can be awarded up to two years before a complaint was filed as well.
PUNITIVE DAMAGES IN COURT
The Connecticut Supreme Court previously ruled that current law does not authorize courts to award punitive damages in cases of employment discrimination. The new law would expressly permit punitive damages.
MAGISTRATES AT PUBLIC HEARING
Currently, only Human Rights Referees can preside over CHRO hearings. The bill creates a process where magistrates — who exist in the judicial system by appointment of the Chief Court Administrator — can be appointed. Magistrates can only be appointed when there are more than 100 CHRO Complaints pending for public hearings.
CHRO ALLOWED TO ENTER INTO BUSINESSES FOR INSPECTION
The CHRO is now expressly authorized to enter an employer’s business during business hours to ensure compliance with the posting requirements and to review all records, policies, procedures and training materials maintained by the employer.
However, the CHRO’s authority is limited only to situations where the Executive Director of the CHRO “reasonably believes” the employer is in violation of certain legal provisions, or during the 12 month period following the date on which any complaint has been filed against an employer. In addition, if the place of business is a residential home, the homeowner must first give express permission.
CHRO ACTIONS IN THE “PUBLIC INTEREST”
The bill would also allow the CHRO to assign legal counsel to bring a legal action in court instead of just an administrative hearing when doing so would be in the public interest, and where all the parties agree.
When the CHRO has established a claim by “clear and convincing evidence,” a court is required to award the CHRO its fees and costs and award a civil penalty of up to $10,000.
DISCOVERY AT THE CHRO PUBLIC HEARING
A new provision states that parties must have the opportunity to “inspect and copy relevant and material records, papers and documents” of the other party and allows the presiding officer to order a production.
If a party does not comply, the hearing officer may issue nonmonetary orders including: (1) finding that the matters that are the subject of the order are established in accordance with the claim of the party requesting such order, (2) prohibiting the party who has failed to comply with such order from introducing designated matters into evidence, (3) limiting the participation of the noncomplying party with regard to issues or facts relating to the order, and (4) drawing an adverse inference against the noncomplying party.
These new provisions will impact employers of all sizes, particularly the new training requirements. Small employers in particular have never had to address this training head on; the new law makes such training unavoidable.
Shipman & Goodwin LLP will be providing updates to this law and will continue to provide training as we have done for employers in the past. We anticipate further updates to our programming later this summer in light of these new significant developments.