As small businesses juggle the many challenges and changes brought on by the pandemic, we wanted to make sure to bring this to your attention in case you missed it.
Please take time to consider the information presented below, as non-compliance with this new law may result in legal action from laid-off employees. If you are uncertain about your compliance with this law, please seek the advice of an attorney.
On July 13, 2021, Governor Lamont signed into law an act that requires hotels, lodging houses, food service contractors, and building services businesses with 15 or more employees to recall and retain their workers, regardless of whether a collective bargaining agreement covers the employees.
The Act (Bill No. 658: “An Act Requiring Employers to Recall Certain Laid-Off Workers in order of Seniority”) went into effect immediately, and here’s what you need to know:
Which Employers Are Covered by This Law?
- Those impacted by the law include all employers, whether employing personnel directly or through a staffing agency, in enterprises defined as hotels, lodging houses, food service contractors, and building services, including highway service plazas, with 15 or more employees.
- Food service contractors are defined as enterprises providing on-site preparation, service, and cleanup of food and beverages according to a contract for their services for a period of at least six months.
- Building service enterprises are defined as those providing janitorial, building maintenance, or security services under contract to office, retail, or other commercial or state buildings.
- The requirements apply even if the form of the organization changed after March 10, 2020, or if the business was acquired by another using substantially the same assets. The law also applies if the site where a laid-off employee had worked before March 10, 2020, relocated to another location within 25 miles.
Which Employees Are Covered?
The recall rights are extended to “laid-off employees” of the covered employers mentioned above. The Act defines laid-off employees as:
- Those employed by a covered employer for at least 6 out of the 12 months before March 10, 2020;
- Those who were laid-off from their regular work or not scheduled to work for customary seasonal work by the employer between March 10, 2020, and May 1, 2022, due to a lack of business, reduction in the workforce, or furloughed due to the COVID-19 pandemic.
What Do Employers Have to Do?
- If you are a covered employer, as you recover from the pandemic and start hiring again, you must first offer the job opening to your laid-off employees who are “qualified” for the position. These would be employees who held the same or a similar position at your business at the time of separation or could become qualified for the job by receiving the same training a new hire would be given.
- Within five days of a position becoming available, you (the employer) must send a written notification about the opening to each of your laid-off employees who are qualified for the job. You must so at their last known physical or e-mail address based on how you have most often communicated with employees. If you have the cell phone number of these laid-off employees, you must notify them by text message as well.
- The offer must be at the same or similar location (unless your business moved more than 25 miles away). If the position you are offering is the same or similar to the one the laid-off employee had before, the offer must be in the same classification or job title and have substantially the same duties, compensation, benefits, and working conditions that applied to the employee immediately before March 10, 2020. (For example, if you have a 30-day wait period for new employees for health insurance, this period will not apply to employees you are recalling).
- An important note here – if more than one laid-off employee is qualified for an open position, you must offer the job first to the one who has the most seniority in terms of length of service at your business. Once you notify the most senior laid-off employee via the methods mentioned above, you have to give them five days to accept or reject the rehire offer. If the laid-off employee with the most seniority rejects the offer, or does not respond within those five days, you can then extend the offer to the employee with the second most seniority, and so on. Suppose a laid-off employee declines the offer due to underlying conditions related to contracting COVID-19 diagnosed on or before May 1, 2021. In that case, that employee retains the right to accept an available position for which they are qualified.
- If you decline to rehire a laid-off employee due to that person’s lack of qualifications, and instead hire someone that is NOT a laid-off employee, you must provide the laid-off employee with a written notification that explains the reasons for your decision within 30 days. In addition, a covered employer that lays off any rehire employee prior to May 1, 2020, must submit an affidavit to the Connecticut Department of Labor within 30 days of the layoff, stating reasons.
- It is critical here to keep good Human Resources records. The law states that a laid-off employee who has been rehired based on the Act cannot be discharged during the first 30 working days after being rehired except for just cause. If you terminate, refuse to reemploy, or take any other adverse action against a laid-off employee, you must (at or before taking action) provide the employee with a detailed written statement of the reasons for the action, including all facts known to you that support or contradict your reasons. Before taking any adverse action, you have to make sure that you have all the facts and consider them carefully to determine your decision.
- If your employees are represented by a union or covered by a collective bargaining agreement, they are still protected under this law. However, these protections can be waived if there is an explicit, clear, and unambiguous provision in a duly executed bargaining agreement. The law also clarifies that employers can follow the order of recall preference of an existing collective bargaining agreement if one is in place, even if that order differs from what is stated in the law.
Make sure any employees involved in hiring or recruiting in your business are trained and aware of this law.
Can My Business Get Sued for Non-Compliance?
There are strong provisions in the law that prohibit a covered employer from terminating, refusing to employ, reducing compensation, or taking any other adverse action against anyone for asserting their rights under the Act, for opposing violations of the Act, or participating in proceedings related to the law’s requirements.
An employee who is impacted by any violation of the recall Act can bring civil action in superior court. The Act expressly authorized the court to award various remedies, including reinstatement or rehiring, back pay, and reasonable attorney’s fees and costs. The court may also award compensatory and punitive damages if it finds the employer acted maliciously or with reckless indifference to the requirements under the law.