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General Assembly Substitute Bill No. 6859
January Session, 2023
AN ACT CONCERNING PREDICTABLE SCHEDULING.
Be it enacted by the Senate and House of Representatives in General
Assembly convened:
Section 1. (NEW) (Effective October 1, 2023) As used in this section and 1
sections 2 to 8, inclusive, of this act: 2
(1) "Employee" means any person (A) paid on an hourly basis, (B) not 3
exempt from the minimum wage and overtime compensation 4
requirements of the Fair Labor Standards Act of 1938 and the 5
regulations promulgated thereunder, as amended from time to time, (C) 6
suffered or permitted to work by an employer, and (D) employed in an 7
occupation in a retail establishment, food services establishment, a 8
hospitality occupation or a long-term health care services establishment 9
in an occupation defined by the federal Bureau of Labor Statistics 10
Standard Occupational Classification system or any successor system as 11
31-012 for nursing aides, orderlies and attendants. An alleged employer 12
bears the burden of proof that the individual is, under applicable law, 13
an independent contractor rather than an employee of the alleged 14
employer; 15
(2) "Employer" means a retail establishment, a food services 16
establishment, a hospitality establishment or a long-term health care 17
services establishment that is (A) an individual, partnership, 18
association, joint stock company, trust, firm, business, nonprofit agency, 19 Substitute Bill No. 6859
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corporation, limited liability company or any other entity employing 20
any person, including the state and any political subdivision thereof, 21
that employs not less than five hundred employees within the United 22
States or globally and, for an employer that is a restaurant where food 23
is prepared, served and consumed on the premises, such employer has 24
not less than thirty restaurant locations within the United States or 25
globally, or (B) a franchisee, that is a person to whom a franchise is 26
granted, including a distributor, wholesaler or jobber or retailer who is 27
granted the authority under a franchise to use a trademark, tradename, 28
service mark or other identifying symbol or name, if the network of 29
franchises within the United States or globally employs not less than five 30
hundred employees in the aggregate; 31
(3) "Food services establishment" means the fixed point of service 32
location for food services contractors, caterers, mobile food services, 33
drinking places, full service restaurants, limited service restaurants, 34
cafeterias, grill buffets and buffets and snack and nonalcoholic beverage 35
bars, as defined under Sector 722 of the 2022 North American Industry 36
Classification System, or other classification or subsequent edition of the 37
North American Industry Classification System designated pursuant to 38
regulations adopted by the Labor Commissioner; 39
(4) "Hospitality establishment" means hotel, motel or casino hotel, as 40
defined under Sectors 721110 and 721120 of the 2022 North American 41
Industry Classification System, or other classification or subsequent 42
edition of the North American Industry Classification System 43
designated pursuant to regulations adopted by the Labor 44
Commissioner; 45
(5) "Long-term health care services establishment" means a provider 46
of long-term health care services as defined under Sector 623110 of the 47
2022 North American Industry Classification System, or other 48
classification or subsequent edition of the North American Industry 49
Classification System designated pursuant to regulations adopted by 50
the Labor Commissioner; 51 Substitute Bill No. 6859
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(6) "Regular rate" has the same meaning as provided in section 31- 52
76b of the general statutes; 53
(7) "Retail establishment" means the fixed point of sale location for an 54
establishment as defined under Sectors 4410 through 4599, inclusive, of 55
the 2022 North American Industry Classification System, or other 56
classification or subsequent edition of the North American Industry 57
Classification System designated pursuant to regulations adopted by 58
the Labor Commissioner; 59
(8) "Scheduled work hours" means the hours an employee is 60
scheduled to work pursuant to a work schedule; 61
(9) "Shift" means the consecutive hours an employer schedules an 62
employee to work, or to be available to report to work at the request or 63
permission of the employer, except a break period of not more than one 64
hour is not considered an interruption of consecutive hours; 65
(10) "Work schedule" means a written notice of an employee's regular 66
and on-call hours, including specific start and end times for each shift, 67
during a consecutive seven-day period; 68
(11) "Work schedule change" means any employer -initiated 69
modification to the employee's work schedule, including (A) the 70
addition or reduction of hours, (B) cancellation of a work shift or portion 71
of a work shift, (C) a change in the date, time or location of a work shift, 72
or (D) scheduling of an employee for an on-call work shift for which the 73
employee does not need to report to work; and 74
(12) "Whistleblower" means a person, or a representative of such 75
person, with knowledge of an alleged violation of sections 2 to 8, 76
inclusive, of this act regardless of whether such person is aggrieved by 77
the violation. "Whistleblower" does not include the state or its 78
representatives. 79
Sec. 2. (NEW) (Effective October 1, 2023) (a) Upon the hiring of an 80
employee, an employer shall: 81 Substitute Bill No. 6859
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(1) Obtain a written statement from the employee of such employee's 82
(A) desired number of weekly work hours, and (B) the days and times 83
such employee is available to work, and inform such employee that such 84
written statement may be modified by the employee at any time; and 85
(2) Provide such employee with a written estimate of the employee's 86
anticipated work hours that contains (A) the average number of work 87
hours the employee can expect to work each week, (B) the minimum 88
and maximum numbers of work hours the employee can expect to work 89
each week, (C) the minimum length of shifts that the employee can 90
expect to work, (D) the number of days, the amount of time and the 91
number of shifts that the employee can expect to work, and (E) the days 92
of the week and times or shifts on which the employee will not be 93
scheduled to work. Any estimate made without a basis in good faith 94
shall be a violation of this subsection. An employer shall revise the 95
written estimate of the employee's work schedule if there is a significant 96
change to such employee's work schedule due to changes in the 97
employee's availability or to the employer's business needs. 98
(b) An employer shall not be in violation of any provision of this 99
section if an employee's average weekly work hours significantly exceed 100
the number provided in the written estimate if the employer makes 101
every effort to schedule the employee for the employee's desired 102
number of weekly work hours. 103
Sec. 3. (NEW) (Effective October 1, 2023) (a) Not later than the date of 104
an employee's first shift, an employer shall provide such employee with 105
the employee's work schedule for the period commencing on the date 106
of the employee's first shift and ending on the last date of the seven-day 107
period covered by the work schedule posted by the employer pursuant 108
to subsection (b) of this section. Thereafter, the employer shall notify the 109
employee of the employee's work schedule in accordance with the 110
provisions of subsection (b) of this section. 111
(b) Not later than fourteen days prior to the first date of the seven-112
day period of any work schedule, an employer shall post the work 113 Substitute Bill No. 6859
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schedule in a conspicuous place at the workplace and shall distribute 114
such schedule to each employee. Such distribution may be electronic if 115
electronic means are regularly used to communicate scheduling 116
information to such employer's employees. The work schedule shall 117
identify all employees currently employed by the employer, whether or 118
not such employees are scheduled to work any hours or shifts in such 119
work schedule. 120
(c) (1) An employer shall provide an employee with written notice of 121
any change to such employee's work schedule as soon as possible and 122
prior to such change taking effect. Such employer shall revise the posted 123
work schedule to reflect such change not later than twenty-four hours 124
after making such change to the work schedule. 125
(2) An employee may decline to work any hours not included in the 126
original or any subsequent versions of the posted work schedule. If such 127
employee voluntarily consents to work such hours, such consent shall 128
be recorded in writing. 129
(d) An employee may decline to work any shift that begins less than 130
eleven hours after the end of such employee's previous day's shift or 131
during the eleven-hour period following the end of a shift that spanned 132
more than one day. If an employee consents to work such shift, such 133
consent shall be in writing and such employee shall be compensated at 134
one and one-half times the employee's regular rate of pay for any hours 135
worked during the shift for which such employee consented. 136
(e) (1) An employee may request adjustments or changes to such 137
employee's work schedule, including, but not limited to, requests not to 138
be scheduled for work shifts during certain days or times or at certain 139
locations, for certain hours, days or locations of work, for more or fewer 140
work hours and to be scheduled consistently for a specified or minimum 141
number of weekly work hours. 142
(2) An employer shall engage in an interactive process to discuss any 143
employee request for an adjustment or change to such employee's work 144 Substitute Bill No. 6859
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schedule, and may grant or deny the request for any bona fide business 145
reason that is not unlawful. 146
Sec. 4. (NEW) (Effective October 1, 2023) (a) Except as otherwise 147
provided in subsection (b) of this section, an employer shall pay an 148
employee: 149
(1) One hour of pay at the employee's regular rate for each instance 150
that such employer (A) adds one or more hours of work, or (B) changes 151
the date, time or location of a work shift, without a reduction of hours 152
less than seven days prior to the commencement of scheduled work 153
hours; and 154
(2) One-half of the employee's regular rate for any scheduled work 155
hours the employee does not work due to such employer cancelling or 156
reducing the employee's scheduled work hours (A) after the employee 157
reports to work for such scheduled work hours, or (B) less than seven 158
days prior to the commencement of such scheduled work hours. 159
(b) The provisions of subsection (a) of this section shall not apply if 160
the employee's scheduled work hours are changed due to: 161
(1) An employee's written request, including, but not limited to, a 162
request to use sick leave, vacation leave or other leave pursuant to the 163
employer's policy; 164
(2) A mutually agreed-upon shift trade or coverage arrangement 165
between employees, subject to an existing employer policy regarding 166
such shift trade or coverage arrangement; or 167
(3) The inability of an employer's operations to begin or continue due 168
to (A) the failure of a public utility, (B) the shutdown of public 169
transportation, (C) fire, flood or other natural disaster, or (D) an 170
emergency declaration issued by the President of the United States or 171
the Governor. 172
Sec. 5. (NEW) (Effective October 1, 2023) (a) (1) Prior to hiring a new 173 Substitute Bill No. 6859
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employee from an external applicant pool or through a contractor, 174
including a temporary help service or an employment agency, as 175
defined in section 31-129 of the general statutes, an employer shall make 176
every effort to schedule existing employees for such existing employees' 177
desired number of weekly work hours identified in the written 178
statements provided pursuant to section 2 of this act, provided the 179
employer may hire a new employee if existing employees lack, and 180
cannot obtain with reasonable training, the qualifications necessary to 181
perform the duties of the position being filled. 182
(2) If an employer fails to offer existing employees opportunities to 183
work such existing employees' desired number of weekly work hours 184
before hiring a new employee, such employer shall compensate the 185
existing employees at such employees' regular hourly rate for hours 186
worked by a newly hired employee that occurred within the existing 187
employees' written availability. 188
(b) Nothing in this section shall be construed to require any employer 189
to schedule employees to work hours required to be paid at an overtime 190
rate under state or federal law. 191
Sec. 6. (NEW) (Effective October 1, 2023) (a) Each employer, subject to 192
the provisions of sections 2 to 5, inclusive, of this act, shall, unless 193
exempted by regulations adopted by the Labor Commissioner pursuant 194
to section 7 of this act, keep a true and accurate record for not less than 195
three years of (1) the shifts worked each day and each week by each of 196
its employees, (2) each employee's work schedule, and (3) any revisions 197
to such work schedule. 198
(b) Nothing in this section shall be construed to prohibit an employer 199
from adopting policies related to employee scheduling that are more 200
favorable to an employee than those required by sections 2 to 5, 201
inclusive, of this act. 202
Sec. 7. (NEW) (Effective October 1, 2023) The Labor Commissioner may 203
adopt regulations, in accordance with the provisions of chapter 54 of the 204 Substitute Bill No. 6859
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general statutes, to implement and enforce the provisions of sections 2 205
to 6, inclusive, of this act, including, but not limited to, a process for the 206
commissioner to address complaints relating to violations of said 207
sections. 208
Sec. 8. (NEW) (Effective October 1, 2023) (a) Any person aggrieved by 209
a violation of any of the provisions of sections 2 to 6, inclusive, of this 210
act, the Labor Commissioner, the Attorney General or any entity, a 211
member of which is aggrieved by a violation of said sections, may bring 212
a civil action in the Superior Court to recover damages, civil penalties 213
and such equitable and injunctive relief as the court deems appropriate. 214
Any individual who prevails in such civil action shall be awarded 215
reasonable attorney's fees and costs to be taxed by the court. 216
(b) In the case of a civil action under this section, the Superior Court 217
may grant, in addition to, or as an alternative to, any other remedies 218
provided by law, the following relief to an employee, or former 219
employee, for a violation of any provision of sections 2 to 6, inclusive, 220
of this act: 221
(1) All compensatory damages and other relief required to make the 222
employee or former employee whole; 223
(2) For each violation of the provisions of section 2 of this act, (A) two 224
hundred dollars, and (B) an order directing compliance with said 225
section; 226
(3) For each violation of the provisions of subsections (a) to (c), 227
inclusive, of section 3 of this act, (A) two hundred dollars, and (B) an 228
order directing compliance with said subsections; 229
(4) For each violation of the provisions of section 4 of this act, (A) 230
payment of compensation withheld in violation of said section, (B) three 231
hundred dollars, and (C) an order directing compliance with said 232
section; 233
(5) For each violation of the provisions of section 5 of this act, (A) the 234 Substitute Bill No. 6859
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greater of five hundred dollars or such employee's actual damages, and 235
(B) an order directing compliance with said section; and 236
(6) An order directing the employer to comply with the 237
recordkeeping requirements of subsection (a) of section 6 of this act. 238
(c) The relief authorized pursuant to subsection (b) of this section 239
shall be imposed on a per-employee and per-instance basis for each 240
violation. 241
(d) An employer that violates a provision of subsections (a) and (b) of 242
section 2 of this act, subsections (a) to (c), inclusive, of section 3 of this 243
act or section 4 or 5 of this act, shall pay a civil penalty of two hundred 244
dollars to the Labor Commissioner for each employee affected by the 245
violation during each pay period the violation occurred. 246
Sec. 9. (NEW) (Effective October 1, 2023) (a) (1) A whistleblower may, 247
on behalf of the state, bring a civil action in the Superior Court against 248
an employer who violates any provision of sections 2 to 6, inclusive, of 249
this act to seek equitable remedies or penalties described in subsection 250
(d) of section 8 of this act. 251
(2) The state may intervene in an action brought under this section at 252
any time from the commencement of the action until thirty days after 253
the commencement of the action. After thirty days, the state may 254
intervene with permission from the court. 255
(b) (1) Not less than thirty days before the action is filed, the 256
whistleblower shall give written notice to the Labor Commissioner of 257
the specific provisions of sections 2 to 6, inclusive, of this act that such 258
whistleblower alleges an employer violated. 259
(2) The commissioner may prosecute an action brought under this 260
section in the name of the Labor Department or allow the whistleblower 261
to proceed on behalf of the state. 262
(c) (1) The proceeds of any judgment entered in favor of a 263 Substitute Bill No. 6859
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whistleblower pursuant to this section shall be distributed as follows: 264
(A) Seventy-five per cent to the department for enforcement of this 265
section, and (B) twenty-five per cent to the first whistleblower who filed 266
the action. 267
(2) In addition to the amount described in subdivision (1) of this 268
subsection, the court shall award reasonable attorney's fees to a 269
whistleblower who prevails in an action brought pursuant to said 270
subdivision. 271
(d) The court shall review and approve any settlement of civil action 272
filed pursuant to this chapter upon determining that such settlement is 273
fair, adequate, reasonable and in the public interest. 274
(e) No private contract shall impair the right to bring an action under 275
this section. 276
(f) An action under this section shall be tried promptly and without 277
regard to concurrent adjudication of private claims. 278
(g) If any part of a whistleblower's claim under this section is ordered 279
or submitted to arbitration or is resolved by way of final judgment, 280
settlement or arbitration in favor of the employee, the employee 281
whistleblower retains standing to recover penalties for violations 282
suffered by the other employees in any forum having jurisdiction over 283
the claim. 284
This act shall take effect as follows and shall amend the following
sections:
Section 1 October 1, 2023 New section
Sec. 2 October 1, 2023 New section
Sec. 3 October 1, 2023 New section
Sec. 4 October 1, 2023 New section
Sec. 5 October 1, 2023 New section
Sec. 6 October 1, 2023 New section
Sec. 7 October 1, 2023 New section
Sec. 8 October 1, 2023 New section Substitute Bill No. 6859
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Sec. 9 October 1, 2023 New section
LAB Joint Favorable Subst. -LCO
APP Joint Favorable