On July 13, 2021, Connecticut Governor Ned Lamont signed into law Substitute Senate Bill No. 658, An Act Requiring Employers to Recall Certain Laid-Off Workers in Order of Seniority (Act).  The Act imposes stringent recall and retention obligations on hotels, lodging houses, food service contractors, and building services enterprises that have 15 or more employees in Connecticut, regardless of whether the employees are covered by a collective bargaining agreement.  These new requirements are effective immediately.

This legislation is the latest in a wave of “right of recall” laws that have been enacted since the start of the pandemic.  Similar recall laws have been enacted by California, Nevada, and municipalities including Baltimore, Minneapolis, New York City, Philadelphia, Washington, D.C. and a number of cities in California.¹  Here in Connecticut, in December 2020 the City of New Haven enacted an ordinance imposing recall requirements on hospitality employers that are similar to those in the Act.²  A month later, the bill that became the new law was introduced in the Connecticut legislature by State Senator Martin Looney (D), who represents New Haven and two of its surrounding towns.

While there are differences between the Act and recall laws enacted in other jurisdictions, all these laws share a common theme.  Each enactment imposes traditional labor law concepts such as seniority rights and restrictions on at-will employment, which are generally associated with unionized employment and civil service, on private, non-unionized employers.

Covered Employers

The Act broadly defines an “employer” as “any person, including a corporate officer or executive” who “conducts an enterprise and employs or exercises control over the wages, hours or working conditions of any employee.”  This definition extends to anyone who conducts an enterprise directly, indirectly, “or through an agent or any other person,” including through the services of a temporary service or staffing agency or similar entity.  An “enterprise” is defined as a hotel, lodging house, food service contractor or building services enterprise, including such a business located at a highway service plaza, that has 15 or more employees.  A food service contractor is an enterprise that provides on-site preparation, service and cleanup of food and beverages pursuant to a contract for such services for a period of at least six months.  A building services enterprise is a business that provides janitorial, building maintenance or security services under contract to office, retail or other commercial or state buildings.

Similar to California’s recall law, the Connecticut law makes clear that its requirements apply even if the form of organization of the employer changed after March 10, 2020, or if substantially all of the employer’s assets were acquired by another entity that conducts the same or similar operations using substantially the same assets.  The new law’s requirements also apply if the site where a laid-off employee had worked prior to March 10, 2020 has been relocated to another site within 25 miles.

Laid-Off Employees

The Act extends recall rights to “laid-off employees” of covered employers.  A laid-off employee is defined as an employee:

• who was employed by a covered employer for at least 6 out of the 12 months preceding March 10, 2020; and

• whose most recent separation from active service, or whose failure to be scheduled for customary seasonal work by the employer, occurred between March 10, 2020 and May 1, 2022 and was due to a lack of business, reduction in force, or furlough due to the COVID-19 pandemic.

Under the new law, a covered employer that has an available job opening must first offer the position to its laid-off employees who are “qualified” for the position.  A laid-off employee is qualified for a position if the employee held the same or a similar position at the enterprise at the time of the employee’s most recent separation from active service with the employer (as provided in California’s and Nevada’s laws) or could become qualified through the same training that would be provided to a new hire (as is provided in Philadelphia’s ordinance).

Recall and Notification Requirements

Within five days after a position becomes available, the employer must send written notification about the opening to each of its laid-off employees who are qualified for the position.  The notification must be sent to each laid-off employee’s last known physical address or email address, whichever is the employer’s “usual and customary means” of sending notices to employees.  If the employer has cell phone numbers for laid-off employees, it must notify them by text message as well.

The offered employment must be at “substantially the same” employment site where the laid-off employee worked previously, unless that site has moved to another location more than 25 miles away.  If the offered position is the same or similar to the laid-off employee’s previous position, 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 prior to March 10, 2020—requirements not included in California or Nevada’s right-to-recall laws. 

When more than one laid-off employee is qualified for an open position, the job must be offered first to the one who has the most seniority in terms of length of service at the employment site. Seniority is a theme among right-to-recall laws nationwide. The employer must give a laid-off employee at least five days to accept or reject an offer of rehire.  If the laid-off employee who has the most seniority rejects the offer or fails to respond within that timeframe, the employer can extend the offer to the qualified, laid-off employee who has the second most seniority.  If that person rejects or fails to respond to the offer, the employer can extend it to the qualified, laid-off employee with the third most seniority, and so on.  However, if a laid-off employee declines an offer of rehire due to underlying conditions related to contracting COVID-19 diagnosed on or before May 1, 2021, the employee will retain the right to accept an available position for which that person is qualified.

If a covered employer declines to rehire a laid-off employee due to that person’s lack of qualifications, and instead hires someone other than a laid-off employee, the employer must provide the laid-off employee with a written notification stating the reasons for its decision within 30 days.  In addition, a covered employer that lays off any rehired employee prior to May 1, 2022 must state its reasons in an affidavit submitted to the Connecticut Department of Labor within 30 days after the layoff.

Diverging again from California’s and Nevada’s laws, under Connecticut’s law, a laid-off employee who has been rehired pursuant to the Act cannot be discharged during the first 30 working days after that employee’s rehire, except for just cause.  Moreover, if a covered employer terminates, refuses to reemploy, or takes any other adverse action against a laid-off employee, the employer must—at or before the time of the action—provide the employee with a detailed written statement of the reasons for the action, including all facts known to the employer that either support or contradict its reasons.  Therefore, in deciding whether to terminate, decline to rehire, or take other action against a laid-off employee, a covered employer should carefully consider all of the available facts to determine whether they support or contradict the reasons for the employer’s decision.

While the new law’s protections extend to laid-off employees regardless of whether they are represented by a union or covered by a collective bargaining agreement, these protections can be waived by an explicit, clear and unambiguous provision in a duly executed collective bargaining agreement.  In addition, the law clarifies that it is not a violation for an employer to follow a collective bargaining agreement that has a different order of recall preference from the one in the statute.

Anti-Retaliation and Private Right of Action

The new law has strong non-retaliation provisions that prohibit a covered employer from terminating, refusing to reemploy, reducing compensation, or taking any other adverse action against anyone for asserting rights under the Act, for opposing violations of the Act, or for participating in proceedings related to the law’s requirements.  An employee who is aggrieved by any violation of Connecticut’s recall law can bring a civil action in superior court.  This is in contrast to the recall laws enacted by some jurisdictions, such as California and the cities of Minneapolis and Baltimore, which do not explicitly authorize a private right of action.  Connecticut’s recall law expressly authorizes the court to award an array of remedies, including reinstatement or rehiring, back pay and reasonable attorney’s fees and costs.  In addition, the court may award compensatory and punitive damages if it finds that an employer acted maliciously or with reckless indifference to the law’s requirements.  Notably, Connecticut’s law does not contain the “right to cure” provisions found in the Los Angeles and Long Beach ordinances, where an employee must notify the employer of an alleged violation in writing and give the employer the opportunity to cure the violation before going to court.

Takeaways

The new Connecticut recall law injects labor law concepts such as seniority and just cause, which are generally associated with unionized employment and civil service, into private, non-unionized workplaces. These new obligations became effective immediately.  Therefore, covered employers would be well-advised to consult with employment counsel to determine whether and how the Act applies, and to develop procedures to comply with the new law as well as related obligations that might exist under other state and federal laws, such as the federal Worker Adjustment and Retraining Notification Act (WARN).  In deciding whether to terminate, decline to rehire, or take other action against a laid-off employee, a covered employer should carefully consider all of the available facts to determine whether they support or contradict the reasons for the employer’s decision.  In addition, employees who are involved in hiring or recruiting for an enterprise covered by the Act should be trained on the new law’s requirements.