Anti-Employer Lawsuits to Climb with Labor Committee Bills
Two proposals in the Labor Committee will drum up more business for legal groups but give employers and human resource professionals more headaches.
SB 908 allows an employee who was terminated, or a prospective employee that was not hired, to bring a lawsuit against an employer if they believe the sole reason for the employee’s termination or failure to get the job is because the employer relied on an erased criminal history.
State law already prohibits employers from using an individual’s erased criminal history. Enforced by the Department of Labor, the law protects employees and job candidates—and it prevents disgruntled former employees and people and people angry they were not hired from bringing frivolous lawsuits against employers engaged in good faith hiring practices.
Creating the private right of action through SB 908 could lead to expensive lawsuits with innocent businesses being forced to defend themselves against meritless legal claims. With the cost of litigation so high, employers suffer financial loss even when they win the case.
SB 910 attempts to reform the personnel file statute and calls for strict–and very short–deadlines for employers to comply with an employee’s or former employee’s request to inspect and be provided a copy of his or her personnel file.
Under the bill, employers would have to comply within three days of an employee’s request, and within 10 days for a former employee’s request. The problem with imposing timelines in this statute is that it makes the rest of the law problematic. Here’s why:
- An employer would violate the law if they do not allow for inspection and copying of personnel files within three or 10 days from the day they received a written request by an employee or former employee—but there’s no way to establish when the employer actually “received” the written request.
- Nor is there a way to identify who should be receiving the request—it could be delivered onto the desk of someone unaware of the case or the deadlines.
- In many cases, employee documents are stored in off-site facilities that are prohibited from accessing the documents.
- Small businesses also don’t have dedicated HR staff, which makes complying with requests in a short timeframe difficult.
In addition, the bill requires employers to provide copies of any documented “disciplinary action”–a term not defined–to the employee and notify the employee they have the opportunity to provide a response in writing.
The term disciplinary action is too subjective and the requirement too ambiguous that it will create even more administrative burdens.
Representatives of legal aid testifying at the public hearing in favor of the bill said they needed immediate access to personnel files because their client only receives five days notice of when their unemployment compensation appeal hearing is scheduled.
However, they later acknowledged that they actually do have a great deal more time to prepare their client’s cases for their hearings; the five days’ notice is just for the actual hearing date.
This law, which is enforced by the Labor Department, has been adequately protecting employees in regards to their personnel files since 1980.
CBIA urges the Labor Committee to reject the changes proposed in SB 910 because it creates more problems in the law than it fixes, and puts requirements on the business community that are impossible to comply with.
For more information, contact CBIA’s Eric Gjede at 860.244.1931 or firstname.lastname@example.org.
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