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September 6, 2021 FOCUS: Law

New seniority rehire law creates hurdles for companies looking to rebound from pandemic

PHOTO | CONTRIBUTED State Sen. Julie Kushner (D-Danbury) co-chairs the legislature’s Labor and Public Employees Committee.

“Extraordinary” and “kind of incredible” is how some labor lawyers are describing a new state law aimed at giving certain workers laid off because of COVID-19 first crack at their old jobs when their former employers rehire.

“If you told me a year ago that this would be a law in Connecticut, I would have been shocked,” said attorney Abby Warren, a partner at law firm Robinson+Cole.

The statute requires restaurants, food service companies and hotels with 15 or more workers to contact any employees they laid off because of COVID-19 when they rehire and offer them their former positions. It includes numerous provisions and empowers workers to sue if their former employers fail to comply.

Glenn Dowd, a longtime labor attorney and partner at Day Pitney, said the law effectively sets aside at-will employment that is standard throughout the United States, meaning workers and businesses can terminate employment at any time for any reason. In its place, the law imposes a series of rules normally associated with union contracts, he said.

“I’ve never seen anything like it,” Dowd said. “Every single large hotel chain or restaurant chain already reeling from the effects of COVID and that had to lay off employees is looking at these draconian rehire provisions.”

Both Dowd and Warren said they think most affected employers are unaware of the law, which was signed by Gov. Ned Lamont with little fanfare last month. Both noted the law went into effect upon passage, so there is no grace period for businesses to prepare.

“It’s so new, I’m not sure it’s come onto the radar,” Dowd said.

He warned the law may backfire by creating a strong disincentive to hire. With so many hoops to jump through, businesses may decide it’s easier to stick with the staffs they have, he said.

Temporary, targeted response

State Sen. Julie Kushner (D-Danbury), co-chair of the legislature’s Labor and Public Employees Committee, strongly defended the law, saying legislators needed to help laid off workers, especially those earning low wages.

She cited concerns that businesses like fast-food chains would replace more senior laid-off employees with new hires who earn less. The law is necessary to ensure employers do the right thing, she said.

“The layoffs were no fault of their own,” Kushner said. “It’s solely because of the pandemic. We’re going through an extraordinary time where protecting workers’ rights is critically important.”

The law is a temporary, targeted response to the pandemic, not the start of an effort to change or do away with at-will employment, Kushner said. She dismissed concerns it would discourage hiring.

“This may be a little harder on [employers], but this will be a good outcome,” she said.

Labor union concepts

The law requires employers to notify workers laid off between March of last year and May 2022 because of COVID-19 if they are filling their old jobs, and give them priority in order of seniority. Workers must be rehired at their pre-pandemic wages, benefits and working conditions.

The employee has five days to accept the position. If he or she accepts, they may not be let go for 30 days except for just cause. If the business hires someone else because the employee is not qualified, it must provide the laid-off employee a written explanation within 30 days.

“It’s interesting because it does impart many labor union concepts into the private sector,” said attorney Peter Murphy, a partner at Hartford law firm Shipman & Goodwin. “For example, it talks about recall rights, seniority-based decisions, and just cause termination, all of which are normally not associated with the private sector in a non-union environment.”

Murphy and Warren said complying with the law will likely be a challenge for businesses not used to dealing with union contracts. They may not have kept certain records needed to comply or fully understand the provisions, they said. Given all the requirements and accompanying paperwork, Murphy questioned whether the law is practical.

Warren and Murphy also expressed surprise that the statute allows workers to go straight to court, noting that labor laws usually have enforcement steps before someone can sue. Kushner said lawmakers wanted a strong and fast enforcement provision to give businesses an incentive to comply.

The new law may have failed to get much attention in part because lawmakers passed a plethora of new labor statutes in the most recent legislative session, Warren said. She cited laws requiring companies to reveal wage ranges when workers are offered jobs and to inform job applicants facing drug tests if marijuana use is a bar to employment.

Kushner agreed her labor committee was busy this year. She also cited new laws giving frontline workers suffering PTSD due to COVID-19 added rights and access to benefits.

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