Connecticut Becomes First State to Require Paid Sick Leave

Workers covered under the act include waiters, cashiers, cooks, hair stylists, security guards and nursing aides. Several types of workers are exempt, including manufacturing workers, salaried employees, temporary workers and workers at nationally chartered nonprofit organizations.

The law will allow employees to file complaints with the Connecticut Department of Labor, but does not permit private lawsuits.

Other States

Connecticut is the only state to have such a law, and city ordinances with such requirements are few and far between. According to advocacy groups, only two U.S. cities have paid sick leave ordinances in effect: Washington, DC, and San Francisco. Milwaukee voters passed an ordinance in 2008, but court battles and a new state law barring municipalities from making their own sick leave laws derailed implementation. According to a spokesman with the Seattle-based Economic Opportunity Institute, there are active campaigns for sick-leave ordinances in Denver and Seattle.

Attorneys Comment

Attorneys who represent employers say the law's anti-retaliation provision is too broad. They also say it is vague on key issues such as the definition of a temporary worker and how the law would apply to companies that offer a set amount of paid time off that a worker can use as vacation, sick time or other types of paid days off.

The state's labor department can slap companies with civil penalties of $500 for each violation of the anti-retaliation provision and “all appropriate relief,” which can include payment for used paid sick leave, reinstatement to the employee's previous job, back wages and employee benefits the worker would have been eligible for if the retaliation or discrimination did not occur. The law also allows for penalties against employers of up to $100 for each violation of other provisions.

The law defines a retaliatory personnel action to include termination, discharge, suspension, demotion, denial of promotion, unfavorable reassignment, disciplinary action, or any other adverse employment action. Its anti-retaliation provisions will create the biggest impact for clients, said George O'Brien, the managing partner of Littler Mendelson's New Haven, CT, office. Those provisions are not limited to the service workers as defined by the act, and they also apply to employers' paid sick leave policies, O'Brien said. “Employers are going to have to really think about this going forward,” he said. “It could set up some real barriers for people trying to enforce absenteeism rules against chronic abusers.”

The penalties and vague language open the door for workers who want to abuse the system, said Beverly Garofalo, the managing partner of the Hartford, CT, office of Jackson Lewis. “The drafting leaves something to be desired,” Garofalo said. “The potential penalties for noncompliance are pretty steep, and an immediate concern is that it seems to be kind of ripe for abuse because obviously there's a very broad scope of reasons employees can take this leave.”

The law does not require workers to take the leave in a minimum time increment, it allows leave for undefined preventative care, and it does not require employee documentation unless the leave exceeds three days, she said. It also defines temporary workers ' who are exempt ' as somebody hired for a finite period of time to work on a particular project, she said. The problem is “that's not really how it works” at most companies, Garofalo said. “A lot of companies have temp employees who work on a more indefinite open-ended basis.”

Companies that offer a chunk of unspecified paid time off at least as generous as that required by the law are not necessarily off the hook either, she said. That is because the law allows some sick time carryover, which many companies currently prohibit, Garofalo said. Also, companies want to know what happens if an employee has 40 hours per year, uses it for vacation and becomes sick later in the year, she said. “Companies need to look at their paid time off policies, attendance policies and their disciplinary policies,” Garofalo said.

Even Hartford labor lawyer Peter Goselin, who represents employees, said he is sure many employers will be frustrated by the new law. Goselin said it might make more sense for employers to welcome unions rather than deal with a variety of stopgap provisions designed to “deal with the wide variety of unfair situations that arise in the workplace.”

“Employers in Connecticut are going to want to ask themselves: Do they want to be in the position of having to deal with the compliance involved with a dozen different piecemeal laws, or would they rather sit across the table from a union and have a contract and have everything spelled out nice and neat and make a lot of those compliance issues easier?” Goselin said.

Employers have overreacted to the law, said another plaintiffs' employment lawyer, Richard Hayber of Hartford-based Hayber Law Firm. He said the new law is likely to affect very few employers because most of that size already provide at least five paid days that could be used for sick leave. “It can't be fairly understood to be some radical new burden on their ability to conduct business in the state of Connecticut,” Hayber said.

Hayber conceded that the law's anti-retaliation provisions are pretty broad. “To the extent that employers … learn about that, it will create a little bit more job security, I hope,” he said.

Sheri Qualters is a reporter for the National Law Journal, an ALM sister publication of this newsletter in which this article also ran.

Connecticut will became the first state to require paid sick leave when its new law takes effect Jan. 1, 2012. Gov. Dannel Malloy signed the law on July 1 and announced it on July 5. The new paid sick leave law for service workers could create a host of thorny compliance issues for employment lawyers.

What It Entails

The law applies to companies with 50 or more employees that do not already offer at least five paid days off for full-time workers. It defines service workers as individuals employed in dozens of specific occupations defined by the federal Bureau of Labor Statistics Standard Occupational Classification system, who are paid on an hourly basis and are not exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act of 1938. It requires companies to give full-time workers covered by the law 40 hours of paid sick leave per year, accrued on a weekly basis.

Workers covered under the act include waiters, cashiers, cooks, hair stylists, security guards and nursing aides. Several types of workers are exempt, including manufacturing workers, salaried employees, temporary workers and workers at nationally chartered nonprofit organizations.

The law will allow employees to file complaints with the Connecticut Department of Labor, but does not permit private lawsuits.

Other States

Connecticut is the only state to have such a law, and city ordinances with such requirements are few and far between. According to advocacy groups, only two U.S. cities have paid sick leave ordinances in effect: Washington, DC, and San Francisco. Milwaukee voters passed an ordinance in 2008, but court battles and a new state law barring municipalities from making their own sick leave laws derailed implementation. According to a spokesman with the Seattle-based Economic Opportunity Institute, there are active campaigns for sick-leave ordinances in Denver and Seattle.

Attorneys Comment

Attorneys who represent employers say the law's anti-retaliation provision is too broad. They also say it is vague on key issues such as the definition of a temporary worker and how the law would apply to companies that offer a set amount of paid time off that a worker can use as vacation, sick time or other types of paid days off.

The state's labor department can slap companies with civil penalties of $500 for each violation of the anti-retaliation provision and “all appropriate relief,” which can include payment for used paid sick leave, reinstatement to the employee's previous job, back wages and employee benefits the worker would have been eligible for if the retaliation or discrimination did not occur. The law also allows for penalties against employers of up to $100 for each violation of other provisions.

The law defines a retaliatory personnel action to include termination, discharge, suspension, demotion, denial of promotion, unfavorable reassignment, disciplinary action, or any other adverse employment action. Its anti-retaliation provisions will create the biggest impact for clients, said George O'Brien, the managing partner of Littler Mendelson's New Haven, CT, office. Those provisions are not limited to the service workers as defined by the act, and they also apply to employers' paid sick leave policies, O'Brien said. “Employers are going to have to really think about this going forward,” he said. “It could set up some real barriers for people trying to enforce absenteeism rules against chronic abusers.”

The penalties and vague language open the door for workers who want to abuse the system, said Beverly Garofalo, the managing partner of the Hartford, CT, office of Jackson Lewis. “The drafting leaves something to be desired,” Garofalo said. “The potential penalties for noncompliance are pretty steep, and an immediate concern is that it seems to be kind of ripe for abuse because obviously there's a very broad scope of reasons employees can take this leave.”

The law does not require workers to take the leave in a minimum time increment, it allows leave for undefined preventative care, and it does not require employee documentation unless the leave exceeds three days, she said. It also defines temporary workers ' who are exempt ' as somebody hired for a finite period of time to work on a particular project, she said. The problem is “that's not really how it works” at most companies, Garofalo said. “A lot of companies have temp employees who work on a more indefinite open-ended basis.”

Companies that offer a chunk of unspecified paid time off at least as generous as that required by the law are not necessarily off the hook either, she said. That is because the law allows some sick time carryover, which many companies currently prohibit, Garofalo said. Also, companies want to know what happens if an employee has 40 hours per year, uses it for vacation and becomes sick later in the year, she said. “Companies need to look at their paid time off policies, attendance policies and their disciplinary policies,” Garofalo said.

Even Hartford labor lawyer Peter Goselin, who represents employees, said he is sure many employers will be frustrated by the new law. Goselin said it might make more sense for employers to welcome unions rather than deal with a variety of stopgap provisions designed to “deal with the wide variety of unfair situations that arise in the workplace.”

“Employers in Connecticut are going to want to ask themselves: Do they want to be in the position of having to deal with the compliance involved with a dozen different piecemeal laws, or would they rather sit across the table from a union and have a contract and have everything spelled out nice and neat and make a lot of those compliance issues easier?” Goselin said.

Employers have overreacted to the law, said another plaintiffs' employment lawyer, Richard Hayber of Hartford-based Hayber Law Firm. He said the new law is likely to affect very few employers because most of that size already provide at least five paid days that could be used for sick leave. “It can't be fairly understood to be some radical new burden on their ability to conduct business in the state of Connecticut,” Hayber said.

Hayber conceded that the law's anti-retaliation provisions are pretty broad. “To the extent that employers … learn about that, it will create a little bit more job security, I hope,” he said.

Sheri Qualters is a reporter for the National Law Journal, an ALM sister publication of this newsletter in which this article also ran.