Over the summer, Rhode Island enacted four new laws that will change the way employers operate.

Ban the Box

Beginning January 1, 2014, most public and private employers will no longer be permitted to ask applicants prior to their first interview, about their criminal convictions. In other words, employers may not ask applicants about their criminal history, including arrests, on the initial employment application or at any time before the initial interview. At any job interview, however, an employer can still ask about an applicant’s criminal convictions. The law applies to all employers with more than four employees.

The only employers exempt are law enforcement agencies, and employers (1) who are precluded by law from hiring persons with specified criminal records; or (2) in which a standard fidelity bond or an equivalent is required for the position, and one or more prior offenses would disqualify the applicant from obtaining such a bond. If the employer falls into one of these two exemptions, the pre-interview question must be narrowly tailored to the potentially disqualifying offenses.

Rhode Island is the fourth state to pass a so-called “Ban the Box” law, which refers to the box on employment applications that applicants are asked to check if they have a criminal history. Massachusetts, Hawaii, and Minnesota have already passed such a law, but Rhode Island’s legislature acted in the midst of a trend toward the implementation of these laws by cities across the country.

As a result of this law, employers must review their employment applications to ensure that all questions regarding criminal history are removed.

Paid Family Leave

On July 11, 2013, Rhode Island became the third state in the country to provide wage replacement for a qualifying family leave. The law expands the state’s Temporary Disability Insurance (“TDI”) program and calls for all Rhode Island employers to provide four weeks of yearly paid caregiver leave for employees that care for certain ill family members, bond with a newborn or adopted child, or fit into another statutorily defined qualifying event. The law will be financed by employee payroll deductions. Thus, Rhode Island employees, if they meet certain requirements, are eligible for disability benefits even though they themselves are not disabled.

Employers must be aware of how the now-expanded TDI benefits can interact with other leave periods available to employees. Unlike the Family and Medical Leave Act (“FMLA”), which is a federal statute, and Rhode Island’s Parental and Family Medical and Leave Act (“RIPFMLA”), Rhode Island’s expansion of available TDI benefits applies to all employers (whereas the FMLA and RIPFMLA apply only to employers with more than 50 employees). Moreover, the expansion provides for 4 weeks of yearly paid leave, as opposed to the 12 weeks of unpaid FMLA leave each year and the 13 weeks of unpaid RIPFMLA leave every 24 months. The leave time guaranteed by both the FMLA and RIPFMLA can run concurrently with the four weeks of paid leave now available, provided that all requirements under the laws are met. There can be situations where an employee qualifies for paid leave, but not for FMLA or RIPFMLA unpaid leave (e.g., FMLA requires that an employee work at least a year, among other requirements, in order to be eligible for leave). Thus, employers must be diligent in maintaining a record of an employee’s leave time.

Employers need to train their human resources personnel to comply with the requirements of this law. Employers must pay particular attention to the requirement that the employee not suffer retaliation for taking leave. Moreover, employers should be aware that unless unforeseen circumstances arise, an employee must apply for the now expanded TDI benefits at least 30 days prior to the leave’s starting. This law goes into effect at the beginning of the year, January 1, 2014.

Biweekly Pay Checks

As Rhode Island employers well know, state law requires that nonexempt private sector workers be issued weekly pay checks. However, beginning in 2014, certain Rhode Island employers will be able to pay employees biweekly, which may significantly decrease the cost of administering pay checks. Rhode Island was the last state in the country to require most private sector employers to pay their employees weekly.

However, an employer cannot simply start paying employees biweekly come January. An employer needs to first secure approval from the Department of Labor & Training. There are fewer conditions that must be met for those employers whose average payroll is at least 200% of the state minimum wage. For those employers, approval to issue biweekly paychecks will be given if (1) the employer issues paychecks on a pre-designated date no less than twice a month; (2) the employer provides proof of a surety bond, or other “sufficient demonstration of security,” in the amount of the highest biweekly payroll for the previous year for the employees at issue; and (3) the employer provides the written consent of the employees’ representative if they are subject to collective bargaining.

Even if an employer cannot meet the 200% threshold, that employer could still issue biweekly pay checks if it meets certain legal requirements. The employer must meet the three conditions listed above, and it must, among other things, demonstrate to the Department of Labor & Training that it has “no history of wage and hour violations” and that it is “in compliance with all other state labor laws.”

Minimum Wage Increase

For the second time in as many years, the minimum wage in Rhode Island will increase. Beginning January 1, 2014, the increase will be from $7.75 to $8 an hour. With the $8 minimum wage, Rhode Island’s wage is tied for the third highest in New England, behind Vermont’s wage of $8.60 and Connecticut’s $8.25 wage. Massachusetts also has an $8 an hour minimum wage. The federal minimum wage is $7.25 an hour.

CONNECTICUT

Connecticut recently passed several bills affecting employers and that took effect October 1, 2013. Most notable are the following.

Employee Personnel Files—Public Act 13-176

Public Act 13-176 defines when and how an employer must provide an employee with access to his or her personnel file. Although Connecticut has always required employers to provide employees with access to their personnel records upon request, the Act now places specific time limits on the employer’s compliance with such requests, imposes new requirements concerning documentation related to disciplinary actions, and provides guidance concerning penalties for noncompliance.

Specifically, an employer must comply with an employee’s written request for inspection and/or copying of his or her personnel file, within seven business days. The employer must also comply with a former employee’s written request for inspection and/or copying of his or her personnel file, within 10 business days. However, this law applies only if the former employee’s request is made within one year of the termination. The inspection must take place at a location mutually agreed upon by the employer and former employee. If the employer and former employee cannot agree upon a location, the employer may satisfy its obligations by mailing a copy of the personnel file to the former employee, within 10 business days.

With respect to disciplinary actions, employers are now required to provide employees with copies of any documentation within one business day for disciplinary actions and immediately for terminations. Additionally, all documented disciplinary actions, notices of termination, and performance evaluations must advise the employee that he or she has a right to submit a written statement if he or she disagrees with the employer’s position, and such submissions must be maintained as part of the employee’s personnel file.

Finally, the new law provides guidance to the Labor Commissioner for assessing civil penalties for violations of the law. In imposing a civil penalty not greater than $500 for the first violation and not greater than $1,000 for each subsequent violation for that same employee, the Labor Commissioner must now consider the following factors: (1) the level of assessment necessary to ensure immediate and continued compliance with the law; (2) the character and degree of impact of the violation; and (3) any prior violations of the law.

Minimum Wage Increase—Public Act 13-117

This Act increases the state’s minimum wage from $8.25 per hour to $8.70 per hour effective January 1, 2014, and to $9.00 per hour effective January 1, 2015.

An Act Concerning Unemployment Conformity—Public Act 13-66

This Act is designed to comply with federal law affecting the unemployment compensation system by imposing a financial penalty on unemployment claimants who fraudulently obtain unemployment benefits and by allowing for the withholding of the overpayment due to fraud, from the claimant’s state tax refund, and if necessary, federal tax refund. The Act also holds employers responsible for the entire overpayment if such overpayment was the result of the employer’s failure to respond to requests for information during the unemployment hearing process.

Specifically, Public Act 13-66 requires the imposition of monetary penalties on unemployment claimants who knowingly made “a false statement or representation  … or knowingly failed to disclose a material fact” in connection with the award of unemployment benefits that results in an overpayment. The law requires a penalty on the employee of 50% of the erroneous overpayment for a first offense, and up to 100% of the overpayment for subsequent offenses. More significant for employers, the Act also provides penalties for those who fail to answer Department of Labor unemployment claim requests for information. In those cases where the unemployment overpayment is the result of the employer’s failure to respond timely or adequately to requests for information, the employer will be responsible for the entire overpayment. This Act greatly increases the burden to employers who fail to timely respond to Department of Labor requests for information.

Finally, the Act allows all employers to participate in the shared work programs covered under unemployment compensation laws.

An Act Concerning Military Leave from Employment—Public Act 13-49

This Act extends those protections currently afforded under Connecticut law to members of the U.S. Reservists and National Guard, to employees who are members of the state armed services and take time off to perform ordered military duties.

Specifically, the Act requires employers to (1) grant leaves of absence to those state armed services members required to perform military drills, training exercises, and meetings during working hours, and (2) provide protection to those employees for any loss of vacation or other privileges, any reduction in hours, or any prejudice to promotion or continued employment because of the leave of absence.