On June 21, 2013, Governor Dannel P. Malloy signed Public Act No 13-176 (the Act) into law. The Act amends the Connecticut Personnel Files Law (the Personnel Files Law) and imposes new requirements on Connecticut employers with respect to (1) providing current and former employees with access to their personnel files; (2) notifying employees of discipline and termination documents; and (3) informing employees of their right to submit a rebuttal to any performance, disciplinary or termination documents. The Act also amends the civil penalties that the Connecticut Department of Labor may impose for violations of the Personnel Files Law. Employers must begin complying with the new amendments to the Personnel Files Law on October 1. Below is a summary of the amendments.
Employee Access to Personnel Files
Prior to the amendment, the Personnel Files Law required employers to provide a current or former employee an opportunity to inspect the employee's personnel file "within a reasonable time" after the employer's receipt of a written request from the employee. The Act makes this requirement much more specific by mandating that an employer provide a current employee with a right to inspect and copy his or her personnel file within seven days of the employer's receipt of such written request. The Act also provides that employers must provide a former employee with the right to inspect and copy his or her personnel file within 10 days of the employer's receipt of a written request from the former employee, provided the former employee has submitted such request within one year after the employee's separation.
The Act also modifies the requirement regarding the place of inspection and copying of personnel files. Prior to the amendment, inspection and copying of a personnel file would take place at the employer's place of business or a place reasonably near the employer's place of business. The Act, however, requires that employers permit a former employee to inspect and copy his or her personnel file at a "mutually agreed upon" location, and if no location can be agreed upon, the employer must mail a copy of the personnel file to the former employee within 10 days of receiving the written request to copy the personnel file.
Requirement to Provide Discipline and Termination Documents to Employees
The Act imposes a new requirement on employers to provide certain discipline and termination documents to employees. Specifically, the Act requires employers to provide an employee with a copy of "any documentation of any disciplinary action imposed on that employee" within one business day after the date the discipline is imposed. Such documentation presumably includes all written warnings, suspensions, demotions, salary reductions and any other disciplinary action. The Act also imposes a new requirement that an employer "immediately provide" an employee with a copy of "any documented notice of that employee's termination of employment."
Notice to Employee of Right to Submit Rebuttal
Prior to the amendment, the Personnel Files Law provided an employee with the right to ask an employer to remove or correct information in his or her personnel file. Under the Act, employers must now include in every documented disciplinary action, notice of termination and performance evaluation a statement in "clear and conspicuous language" that if the employee disagrees with any information in such documents, the employee may submit a written statement explaining his or her position. The employer must keep the employee's statement in the personnel file and include it whenever the file is transmitted or disclosed to a third party.
Changes to Civil Penalties Under the Personnel Files Law
Under the pre-amendment Personnel Files Law, the Connecticut Labor Commissioner could issue a $500 civil penalty for an employer's first violation of the Personnel Files Law against a particular employee and a $1,000 civil penalty for each subsequent violation related to the same employee. The Act allows the Labor Commissioner to issue a civil penalty of up to $500 for a first violation and up to $1,000 for subsequent violations regardless of whether such violations are related to the same or different employees.
When determining the amount of the civil penalty, the Act requires the Connecticut Labor Commissioner to consider (1) the penalty level needed to ensure immediate and continued compliance with the Personnel Files Law; (2) the violation's character and degree of impact; (3) any prior violations of the Personnel Files Law by the same employer; and (4) any other factor the Connecticut Labor Commissioner deems relevant.
Despite the change in the civil penalty provisions, the Act does not authorize a private right of action under the Personnel Files Law. As a result, an employee alleging a violation of the Personnel Files Law must pursue his complaint through the Connecticut Department of Labor rather than through a private lawsuit.
Awareness and Compliance
As noted above, the amendments go into effect on October 1, 2013. Accordingly, employers should promptly begin notifying their legal, human resources and supervisory personnel of the new requirements under the Act. In addition, because employees now will be provided copies of all disciplinary and termination documents, and will have an opportunity to submit rebuttals to such documents, employers have a heightened need to properly and carefully prepare such documents.
On January 17, John DeSimone and Heather Weine Brochin presented a discussion about employment agreements and negotiation strategies at the NYU School of Medicine.
On October 10, James Bowers will share his personal perspectives on the History of Slavery and Race in South Carolina at UConn School of Law.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
Dan Schwartz and James Leva wrote an article, "Where New Conn. Ban-The-Box Law May Be Headed," for Law360. The article outlines what employers need to know about Connecticut's recently enacted "ban-the-box" law, titled "An Act Concerning Fair Chance Employment."
Michael Furey was quoted in an article, "The Biggest New Jersey Cases of 2016," which was published in Law360.
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."
John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.