General Assembly		Raised Bill No. 6933
January Session, 2015		LCO No. 4293
		*04293_______LAB*
Referred to Committee on LABOR AND PUBLIC EMPLOYEES
Introduced by:
(LAB)

AN ACT CONCERNING PREDICTABLE SCHEDULING FOR EMPLOYEES.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 31-76b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

As used in sections 31-76b to 31-76j, inclusive, and sections 2 and 3 of this act:

(1) The "regular rate" at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include (A) sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production or efficiency; (B) payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of the employer's interests and properly reimbursable by the employer; and other similar payments to an employee that are not made as compensation for the employee's hours of employment; (C) sums paid in recognition of services performed during a given period if either, (i) both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the employee to expect such payments regularly; (ii) the payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan, meeting the approval of the Labor Commissioner who shall give due regard, among other relevant factors, to the extent to which the amounts paid to the employee are determined with regard to hours of work, production or efficiency; (D) contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident or health insurance or similar benefits for employees; (E) extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek applicable to such employee under section 31-76c, as amended by this act, or in excess of the employee's normal working hours or regular working hours, as the case may be; (F) extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days; or (G) extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal or regular workday, not exceeding the maximum workweek applicable to such employee under section 31-76c, as amended by this act, where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek. For the purpose of calculating the overtime rate of compensation required to be paid to an employee who is (i) employed as a delivery driver or sales merchandiser, (ii) paid on a base salary and commission basis, and (iii) not exempt from the overtime requirements of this chapter, the employee's regular rate shall be one-fortieth of the employee's weekly remuneration;

(2) (A) "Hours worked" include all time during which an employee is required by the employer to be on the employer's premises or to be on duty, or to be at the prescribed work place, and all time during which an employee is employed or permitted to work, whether or not required to do so, provided time allowed for meals shall be excluded unless the employee is required or permitted to work. Such time includes, but shall not be limited to, the time when an employee is required to wait on the premises while no work is provided by the employer. (B) All time during which an employee is required to be on call for emergency service at a location designated by the employer shall be considered to be working time and shall be paid for as such, whether or not the employee is actually called upon to work. (C) When an employee is subject to call for emergency service but is not required to be at a location designated by the employer but is simply required to keep the employer informed as to the location at which he or she may be contacted, or when an employee is not specifically required by his or her employer to be subject to call but is contacted by his or her employer or on the employer's authorization directly or indirectly and assigned to duty, working time shall begin when the employee is notified of his or her assignment and shall end when the employee has completed his or her assignment. (D) Notwithstanding the provisions of this subdivision, when an individual employed by a third-party provider to provide "companionship services", as defined in the regulations of the federal Fair Labor Standards Act, is required to be present at a worksite for a period of not less than twenty-four consecutive hours, such individual and his or her employer may agree in writing to exclude a regularly scheduled sleeping period of not more than eight hours from hours worked, provided (i) adequate on-site sleeping facilities are furnished to such individual, and (ii) such individual receives at least five hours of sleep time. If the scheduled sleeping period is more than eight hours, only eight hours will be excluded. If the scheduled sleeping period is interrupted by an assignment to work, the interruption shall be counted as hours worked. If such individual does not receive at least five hours of sleep time during the scheduled sleeping period, the entire sleeping period shall be considered hours worked. The provisions of this subparagraph shall be effective on and after the effective date of the United States Department of Labor's Final Rule concerning the Application of the federal Fair Labor Standards Act to Domestic Service published in the Federal Register of October 1, 2013;

(3) "Employee" means employee, as defined in section 31-58; [.]

(4) "Employer" means employer as defined in section 31-58;

(5) "On-call hours" means any time that an employer requires an employee to (A) be available to work, or (B) contact the employer, or a designee of such employer, or wait to be contacted by such employer or designee, in order to determine whether the employee is required to report to work;

(6) "Predictability pay" means additional payments from an employer to an employee at a rate of not less than the regular rate of pay at which such employee is employed as compensation for certain work schedule changes;

(7) "Shift" means the consecutive hours an employer requires an employee to work or to be on call to work, provided that a break of one hour or less shall not be considered an interruption of consecutive hours; and

(8) "Work schedule" means a written notice of an employee's regular and on-call hours during a consecutive seven-day period.

Sec. 2. (NEW) (Effective October 1, 2015) (a) An employer shall provide a work schedule to each of the employer's employees not less than twenty-one days prior to the first day of such work schedule, except, in the case of a new employee, the employer shall provide such new employee with work schedules covering such employees' first twenty-one days of employment prior to the commencement of such employee's employment. The employer shall notify an employee of any change in the employee's work schedule prior to such change taking effect and shall provide the employee with a revised work schedule reflecting such changes not more than twenty-four hours after making such change.

(b) No employer shall require an employee to work shifts not included in the employee's work schedule without the employee's written consent.

(c) An employer shall post a written schedule at each worksite that includes the work schedule, including shifts, off time and leave, of all employees employed at such worksite. Such schedule shall be posted not less than twenty-one days prior to the commencement of the work schedule. Employers may comply with the provisions of this section by displaying such schedule in a conspicuous place, accessible to such employees, at the workplace.

(d) No employer shall change an employee's work schedule to begin on a different day of the week unless such employer provides written notice of such change to an employee not less than twenty-one days prior to the commencement of the work schedule in which the employer makes such change.

(e) No employer shall require an employee to search for or identify a replacement employee to cover any hours during which an employee is unable to work a scheduled shift.

Sec. 3. (NEW) (Effective October 1, 2015) (a) If an employer (1) adds hours to, (2) subtracts hours from, (3) cancels, or (4) changes the start time or end time of an employee's shift less than twenty-one days but more than twenty-four hours prior to the commencement of such shift, the employer shall pay the employee one hour of predictability pay, in addition to wages owed, for each shift that is changed pursuant to subdivisions (1) to (4), inclusive, of this subsection.

(b) (1) If an employer (A) adds hours to, or (B) changes the start time or end time of an employee's shift less than twenty-four hours prior to the commencement of such shift, the employer shall pay the employee four hours of predictability pay in addition to wages owed, for each shift that is changed pursuant to subparagraph (A) or (B) of this subdivision.

(2) If an employer (A) subtracts hours from, or (B) cancels an employee's shift less than twenty-four hours prior to the commencement of such shift, the employer shall pay the employee the lesser of four hours of predictability pay or an amount of predictability pay equal to (i) the number of hours such shift was reduced by, or (ii) the total number of hours in such shift, in addition to wages owed, for each shift that is changed pursuant to subparagraph (A) or (B) of this subdivision.

(c) No employer shall require an employee to work a shift, or any portion of such shift, that occurs eleven hours or fewer (1) after the end of a previous shift, or (2) following the end of a shift that began prior to midnight and ended after midnight on consecutive days. An employer shall compensate an employee who works such shift, or any portion of such shift, as specified in subdivision (1) or (2) of this subsection, at a rate not less than one and one-half times the regular rate at which he or she is employed for any shift so worked.

(d) The provisions of this section shall not apply to any shift changes made at the request of an employee, including requests to work shifts other than those scheduled by the employer or requests to use sick leave, vacation time, personal days or other leave policies offered by the employer, or as required by law.

(e) Nothing in this section shall be construed to prevent an employer from allowing an employee to work in place of another employee who has been scheduled to work a particular shift, provided the change in schedule is mutually agreed upon by such employees and the employer. An employer shall not be subject to the provisions of this section or section 2 of this act for such mutually agreed upon shift trades.

Sec. 4. (NEW) (Effective October 1, 2015) Any employee aggrieved by a violation of section 2 or 3 of this act may file a complaint with the Labor Commissioner alleging violation of the provisions of said sections. Upon receipt of any such complaint, the commissioner shall hold a hearing. After the hearing, the commissioner shall send each party a written copy of the commissioner's decision. The commissioner may award the employee all appropriate relief, including rehiring or reinstatement to the employee's previous job, payment of back wages or predictability pay, as defined in section 31-76b of the general statutes, as amended by this act, and reestablishment of employee benefits to which the employee otherwise would have been eligible if a violation of this subsection had not occurred. Any party aggrieved by the decision of the commissioner may appeal the decision to the Superior Court in accordance with the provisions of chapter 54 of the general statutes.

Sec. 5. (NEW) (Effective October 1, 2015) (a) Nothing in section 2 or 3 of this act shall be construed to prohibit an employer from adopting policies related to scheduling that are more beneficial to an employee than those required herein.

(b) Nothing in section 2 or 3 of this act shall be construed to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan or other agreement providing policies that are more beneficial to an employee than required herein.

(c) The provisions of sections 2 and 3 of this act are severable and, if any provision is determined to contravene state or federal law, the remainder of such provisions shall remain in full force and effect.

(d) The Labor Commissioner may adopt regulations, in accordance with chapter 54 of the general statutes, to carry out the provisions of sections 2 and 3 of this act.

Sec. 6. Section 31-13a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

With each wage payment each employer shall furnish to each employee in writing a record of hours worked, the gross earnings showing straight time and overtime as separate entries, itemized deductions, including the total number of hours of and the rate of predictability pay, as defined in section 31-76b, as amended by this act, and net earnings, except that the furnishing of a record of hours worked and the separation of straight time and overtime earnings shall not apply in the case of any employee with respect to whom the employer is specifically exempt from the keeping of time records and the payment of overtime under the Connecticut Minimum Wage Act or the Fair Labor Standards Act.

Sec. 7. Section 31-66 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

Each employer subject to the provisions of this part, unless exempted by regulation issued by the commissioner or as hereinafter provided, shall keep at the place of employment for a period of three years a true and accurate record of (1) the name, address and occupation of each employee, (2) the shifts, as defined in section 31-76b, as amended by this act, worked each day and each week by each employee, (3) each work schedule, as defined in section 31-76b, as amended by this act, and any revisions to such work schedule, (4) any predictability pay, as defined in section 31-76b, as amended by this act, paid by him or her to each employee, and (5) the hours worked by, and the wages paid by him or her to, each employee, as required by the applicable regulations issued by the Labor Commissioner, and shall furnish to the commissioner or [his] the commissioner's authorized representative, upon demand, a sworn statement of the same provided if the place of employment is designed primarily as an establishment for the housing and use of coin-operated service or vending machines, such records may be kept by the employer in some location approved by the commissioner other than at the place of employment. Such records shall be open to inspection by the commissioner or his or her authorized representative at any reasonable time. Each employer subject to the provisions of this part, unless exempted by regulation issued by the commissioner or as hereinafter provided, shall allow an employee to inspect the records kept under this section pertaining to such employee at a reasonable time and place. An employer who fails to keep true and accurate records or fails to furnish a record in a timely fashion, or who falsifies records required under this section, shall have violated this section and be punished by civil penalties as provided in section 31-69a. Each day there is a failure to keep a record or to furnish a record or other information required for the proper enforcement of this section shall constitute a separate violation under said section. Each employer subject to this part or to a minimum fair wage order shall keep a copy of such order and the regulations issued by the Labor Commissioner posted at the place of employment where it can be read easily by the employees. Employers shall be furnished copies of orders and regulations on request, without charge.

Sec. 8. Section 31-76c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

No employer, except as otherwise provided herein, shall employ any of his or her employees for a workweek longer than forty hours, unless such employee receives remuneration for his or her employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he or she is employed. No employer shall employ any of his or her employees during a workweek of seven consecutive calendar days for longer than fifty-five hours, unless such employee (1) receives remuneration for his or her employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he or she is employed, and (2) agrees in writing to work such hours.

Sec. 9. Section 31-76i of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

The provisions of sections 31-76b to 31-76j, inclusive, as amended by this act, and sections 2 and 3 of this act shall not apply with respect to (a) any driver or helper, excluding drivers or helpers employed by exempt employers, with respect to whom the Interstate Commerce Commission or its successor agency or the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of applicable federal law or regulation of any employee of a carrier by air subject to the Railway Labor Act or any employee of any employer subject to said Railway Labor Act; (b) any employee employed as a seaman; (c) any employee employed as an announcer, a news editor or chief engineer by a radio station or television station; (d) repealed by 1972, P.A. 116, S. 3, 6; (e) any person employed in a bona fide executive, administrative or professional capacity as defined in the regulations of the Labor Commissioner issued pursuant to section 31-60; (f) any person employed in the capacity of outside salesman as defined in the regulations of the Federal Fair Labor Standards Act; (g) any inside salesperson whose sole duty is to sell a product or service (1) whose regular rate of pay is in excess of two times the minimum hourly rate applicable to him or her under section 31-58, (2) more than half of whose compensation for a representative period, being not less than one month, represents commissions on goods or services, and (3) who does not work more than fifty-four hours during a [work week] workweek of seven consecutive calendar days. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee; (h) any person employed as a taxicab driver by any employer engaged in the business of operating a taxicab, if such driver is paid forty per cent or more of the fares recorded on the meter of the taxicab operated by him or her; (i) any person employed in the capacity of a household delivery route salesman engaged in delivering milk or bakery products to consumers and who is paid on a commission basis as defined in the regulations of the Labor Commissioner issued pursuant to section 31-60; (j) any [salesman] salesperson primarily engaged in selling automobiles. For the purposes of this subdivision, ["salesman"] "salesperson" includes any person employed by a licensed new car dealer (1) whose primary duty is to sell maintenance and repair services, (2) whose regular rate of pay is in excess of two times the minimum hourly rate applicable to him or her under the provisions of section 31-58, (3) more than half of whose compensation for a representative period, being not less than one month, represents commissions on goods or services, and (4) who does not work more than fifty-four hours during a [work week] workweek of seven consecutive calendar days. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee; (k) any person employed in agriculture; (l) any permanent paid members of the uniformed police force of municipalities and permanent paid members of the uniformed firefighters of municipalities; (m) any person employed as a firefighter by a private nonprofit corporation which on May 24, 1984, has a valid contract with any municipality to extinguish fires and protect its inhabitants from loss by fire; (n) any person, except a person paid on an hourly basis, employed as a beer delivery truck driver by a licensed distributor, as defined in section 12-433; (o) any person employed as a mechanic primarily engaged in the servicing of motor vehicles, as defined in section 14-1, or farm implements, as defined in section 14-1, by a nonmanufacturing employer primarily engaged in the business of selling such vehicles or implements to consumers, to the extent that such employees are exempt under the federal Wage-Hour and Equal Pay Act, 29 USC 201 et seq. and 29 USC 213(b)(10), provided such person's actual weekly earnings exceed an amount equal to the total of (1) such person's basic contractual hourly rate of pay times the number of hours such person has actually worked plus (2) such person's basic contractual hourly rate of pay times one-half the number of hours such person has actually worked in excess of forty hours in such week. For the purposes of this section, "basic contractual hourly rate" means the compensation payable to a person at an hourly rate separate from and exclusive of any flat rate, incentive rate or any other basis of calculation; or (p) any mortgage loan originator, as defined in section 36a-485, who is a highly compensated employee, as defined in 29 CFR 541.601, provided this subdivision shall not apply to an individual who performs the functions of a mortgage loan originator solely from the office of such mortgage loan originator's employer. For purposes of this subdivision, an office in the mortgage loan originator's home shall not be considered the office of such mortgage loan originator's employer. Beginning on October 1, 2012, the total annual compensation for purposes of Subsection (a) of 29 CFR 541.601 shall be increased annually, effective October first of each year, based on the percentage increase, from year to year, in the average of all workers' weekly earnings as determined by the Labor Commissioner pursuant to subdivision (1) of subsection (b) of section 31-309.

Sec. 10. Section 31-68 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2015):

(a) If any employee is paid by his or her employer less than the minimum fair wage or overtime wage to which he or she is entitled under sections 31-58, 31-59 and 31-60, or by virtue of a minimum fair wage order, [he may] or is not paid predictability pay to which he or she is entitled under section 3 of this act, he or she shall recover, in a civil action, [twice] three times the full amount of such minimum wage less any amount actually paid to him or her by the employer, with costs and such reasonable attorney's fees as may be allowed by the court, and any agreement between [him and his] the employee and employer to work for less than such minimum fair wage or overtime wage or to not receive predictability pay to which he or she is entitled under section 3 of this act shall be no defense to such action. The commissioner [may] shall collect the full amount of unpaid minimum fair wages, [or] unpaid overtime wages or unpaid predictability pay to which an employee is entitled under said sections or order, as well as interest calculated in accordance with the provisions of section 31-265 from the date the wages or predictability pay should have been received, had they been paid in a timely manner. In addition, the commissioner [may] shall bring any legal action necessary to recover [twice] three times the full amount of the unpaid minimum fair wages or unpaid overtime wages or unpaid predictability pay to which the employee is entitled under said sections or under an order, and the employer shall be required to pay the costs and such reasonable attorney's fees as may be allowed by the court. [The] Upon collecting three times the full amount of unpaid wages or predictability pay, the commissioner shall distribute half of the recovered amount to the employee and retain the remaining half for the purposes of administering this section and sections 2 and 3 of this act. The commissioner shall distribute any wages or interest collected pursuant to this section to the employee or in accordance with the provisions of subsection (b) of this section.

(b) All wages and other payments collected by the commissioner for an employee whose whereabouts are unknown to the commissioner shall be held by the commissioner for three months and thereafter the commissioner may, in [his] the commissioner's discretion, pay the same, on application, to the husband or wife or, if none, to the next of kin of such employee. As a condition of such payment, the commissioner or [his] the commissioner's authorized representative shall require proof of the relationship of the claimant and the execution of a bond of indemnity and a receipt for such payment. Notwithstanding the provisions of section 3-60b, any such wages and payments held by the commissioner for two years without being claimed shall escheat to the state, subject to the provisions of sections 3-66a to 3-71a, inclusive.

This act shall take effect as follows and shall amend the following sections:
Section 1	October 1, 2015	31-76b
Sec. 2	October 1, 2015	New section
Sec. 3	October 1, 2015	New section
Sec. 4	October 1, 2015	New section
Sec. 5	October 1, 2015	New section
Sec. 6	October 1, 2015	31-13a
Sec. 7	October 1, 2015	31-66
Sec. 8	October 1, 2015	31-76c
Sec. 9	October 1, 2015	31-76i
Sec. 10	October 1, 2015	31-68

Statement of Purpose:

To provide stability to workers in the state by requiring employers to publish work schedules twenty-one days in advance and to compensate their employees if the employer amends such schedules.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]