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Last week’s column left you with a cliffhanger.
Alas, just seven days later, I can tell you how the cliffhanger has resolved. You may recall if you read last week’s scribbles that I told you about a case in New York state before a federal judge in Utica. The court was hearing a complaint for an injunction by a group of healthcare workers who argued that even where the state of New York was mandating vaccinations for all healthcare workers, it was still required to offer reasonable accommodations to those who refused the vaccine for religious reasons. New York, unlike Connecticut, specifically prohibited religious exemptions in its mandate, leading to the lawsuit. Earlier this year, when Andrew Cuomo was still governor, his mandate allowed for religious exceptions. But then Kathy Hochul came riding into town as Cuomo’s replacement and, like the good liberal she aims to be, immediately rescinded the religious exception from her own Hochul Mandate. In mid-September, the judge issued a temporary restraining order stopping the mandate’s prohibition on religious exemptions. Then, after a full evidentiary hearing, he issued his decision on an injunction last Tuesday morning. The judge decided in favor of the employees, ruling that federal law under Title VII requires employers to make reasonable accommodations for those who have a medical or religious reason for refusing the vaccination. The decision was important because if federal courts determined that Title VII did not allow for these exemptions, the floodgates would likely open, allowing employers to terminate employees who refused the vaccine on religious or medical grounds. As I have said many times, I believe that just about everybody should get the vaccine. I think it is the only way out of this mess. But I also believe in the law, and I think, like the federal judge in Utica, that the law as written requires that reasonable accommodations be made for religious objectors and for medical necessity. Unless the law changes, and I don’t think it should, those exceptions should be available. Governor Hochul, of course, intends to appeal the decision. In the meantime, the court’s decision goes along with the parameters that other states like Connecticut are following. That is, where an employee asserts a sincerely-held religious belief and seeks to be exempt from a vaccine mandate, the employer and employee must thereafter engage in a discussion about whether or not a reasonable accommodation can be provided by the employer without causing undue hardship. The obvious accommodation is what we have routinely seen throughout the pandemic. One would expect that, for those who refuse the vaccine for religious or medical reasons, mask-wearing, regular testing, and social distancing would be the appropriate reasonable accommodation. And because those precautions have been routinely used throughout society from the beginning of the pandemic, it is hard to see how those types of accommodations would lead to undue hardship for an employer. Of course, there will remain questions about who pays for the regular testing. If paying for the test results is an undue hardship to the employer, then I could see a court requiring the employee to pay for it. But if payment for the test can be borne by the employer as a regular cost of business – possibly covered by governmental COVID relief funding previously provided to the employer – then a good argument could be made for the employer to pay for the testing. As with all that is associated with this pandemic, the law will continue to evolve. I will continue to be fascinated by the questions.
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I have gotten calls over the past week from folks who are working under a newly-implemented vaccine mandate and are still hesitating about getting the shot. The day is fast approaching when folks who refuse the shot without an exemption will face termination from employment.
The axe has already started to drop in New York state; I have not heard from anyone who has lost their job in Connecticut, yet. I sympathize with those who continue to remain hesitant about getting the shot. Allowing a foreign substance to enter your body through coercion is frightening. The loss of control can be overwhelming. I get it — even though I remain a full supporter of the vaccine. I still believe it is the only way to efficiently save lives right now. But that doesn’t make it any easier for those who do not want the shot. I might think that getting the vaccine is the most rational step to take as we face off against this pandemic; but, for those who refuse, refusal seems like the only rational decision for them. For those folks who have a sincerely-held religious belief against getting this particular vaccination, there is hope that you can avoid the shot and keep your job. I have helped many do just that. But you need to have a sincerely-held religious belief to take advantage of the exemption. For now. In New York, where folks have started losing their jobs, a federal judge is currently considering a case about religious exemptions to the state mandate. In New York, the mandate applies to all folks working in hospitals and nursing homes and does not allow an opt-out through regular testing. The New York mandate does allow for medical exceptions, but not for religious exemptions. As a result, thousands of healthcare workers are now facing termination for refusing to get the shot. A number of them have filed suit in federal court alleging that requiring the shot despite a sincerely-held religious belief against the vaccination violates the workers’ constitutional rights to practice religion. Last month, a federal court judge in Utica, NY, issued a temporary restraining order prohibiting the state from issuing sanctions against a facility that allowed religious exemptions to the vaccine for its workers. The judge is set to issue a decision on the permanent injunction request by Tuesday. Folks seeking the exemption have claimed that their religious beliefs mandate that they honor their own bodily autonomy and reject certain medical interventions. Others have objected to the vaccine because of an alleged connection between development of the vaccine and the use of fetal cell lines. While the Catholic church supports the vaccine, the church’s position has no real effect upon the sincere religious beliefs of individual Catholics who refuse the vaccine. This all matters to folks living and working in the Nutmeg State because if federal courts determine that a religious exemption does not apply to vaccine mandates, it is possible that Governor Lamont may modify his vaccination order and require vaccines even for those who object on a religious basis. Each winter around the first week of February, the Connecticut General Assembly goes into action debating and passing laws through the spring. Those laws typically go into effect the following October 1st. This past Friday was October 1st, so new laws have gone into effect impacting the way folks work and run businesses.
The legislature has passed a fairly robust new wage discrimination law respecting gender differences in pay. Currently gender-based pay discrimination has been difficult to prove under Connecticut law and practically impossible under federal law. Under the current law, in order to be successful, a plaintiff must show that wage differences for “equal” work are not a result of differences in skill, effort, or responsibility required to do the job. The new law broadens the standard to apply to “comparable” work instead of “equal” work. “Equal” work is difficult to prove because there are often small differences in jobs that render them unequal, even though the jobs are comparable. Thus, under the new law, discrimination occurs if two employees perform “comparable” work requiring “comparable” levels of skill, effort, and responsibility under similar work conditions. That new definition makes me wonder whether custodians in a school and paraprofessionals in a school perform “comparable” work. The job descriptions are obviously different. But custodians and paras generally require the same amount of education to perform their duties. The effort in terms of performing the duties is comparable in terms of physical and mental demands. And the responsibilities in terms of maintaining a safe and secure learning environment for students are comparable. In terms of value brought to the school district and its students, custodians and paraprofessionals provide essentially equal value. However paraprofessionals, a job performed predominantly by women, are typically the lowest-paid employees in any school district. Meanwhile custodians, who have multiple overtime opportunities, are typically the highest paid non-certified (non-teaching) staff. It is no surprise that the job of custodian is predominantly staffed by men. So what, then, would explain the great disparity in pay, which can differ as much as thirty to forty percent in many instances? Education can’t be a factor. Value to the district is not a differentiator. Skill and responsibility would arguably fall in favor of paras because they have direct contact with a vulnerable student population while custodians have indirect, albeit very important, connection to the student population. I would argue that the most important differentiator – probably the sole differentiator – is the gender of the majority of the folks performing the jobs. There is a built-in societal bias to pay men more than women dating back to the well-known archetype that men are the breadwinners in any family. That may have been so in 1955 – almost 70 years ago. Not so today. They say we’ve come a long way, baby. I’m not so sure. So maybe the General Assembly is on to something by passing this new pay discrimination law. But I bet if you asked them they would take my example of custodians vs. paraprofessionals and say “that’s not what we meant.” And if you asked the judges, who will ultimately interpret the law, they might say the same thing. Because the archetype survives even though society has changed. Wages should be evaluated in terms of value brought to the mission. Looked at that way, it is high time that women get paid on par with men. Connecticut has taken a big step in that direction. Let’s see how it plays out. One of my guiding principles as a labor lawyer is that if a person works, he should get paid for his work. I don’t believe in unpaid internships; an unpaid internship is simply servitude by another name. I don’t believe in volunteering to help finish a job at work if extra pay is not involved.
If your labor is involved and a benefit is received by another party, that other party should pay you for the work you did. It is a simple proposition, and quite American, too. My interest is always aroused when the issue of paying NCAA “professional” athletes arises. I think any kid who plays a sport that generates value for his school should receive a percentage of every dollar of value generated by his performance. Notice I wrote “dollar of value generated” not “dollar of revenue.” That is because the value of an athlete’s performance to a school is not always adequately measured by the revenue generated from his participation in the sport. I am using the male pronoun here. I remain well aware that female athletes, particularly in this state, generate millions of dollars of value for their schools. Ever heard of Paige Bueckers? Feel free to substitute “she” for “he” throughout this column. The principle remains the same. I address this topic today because, once again, college athletes are chipping away at the “amateur” defense used by the college sports plutocracy to justify the billions earned through the talents of their indentured world-class athletes. Last week a federal judge in the Eastern District of Pennsylvania (not exactly a bastion of liberal thought) ruled against the NCAA and a number of its schools seeking to dismiss a lawsuit brought by college athletes who claim that they are “employees” entitled to wages under the Fair Labor Standards Act. This decision comes on the heels of the Supreme Court’s decision last June determining that college athletes could not be prohibited from selling their names, images, and likenesses for profit. One of the claims in the lawsuit alleges that the failure by the defendant institutions to pay the athletes violates Connecticut’s Minimum Wage Act. One of the plaintiffs is a former tennis player at Sacred Heart University in Fairfield. Under NCAA rules athletes are prohibited from being paid for participation in their athletic activities. However, member schools mandate that these so-called “student athletes,” as the NCAA prefers to refer to them, must prioritize participation in athletic activities over academic requirements. Schools can discipline “student-athletes” for scheduling classes that are prerequisites to obtaining an academic degree if those classes conflict with a mandatory practice schedule. Athletes are also required to fill out time sheets and participate in mandatory fundraising and community activities which use time sheets to track actual participation. Football players at large programs frequently spend more than 40 hours per week in mandatory athletic endeavors. That sounds like a full-time job to me. As a result of performing their jobs, these athletes generated one billion, 64 million dollars in total revenue for their schools in 2018. One Billion! The NCAA and the participating schools claim that they do not have to pay the athletes because the athletes gain the “intangible benefits of ‘discipline, work ethic, strategic thinking, time management, leadership, goal setting, and teamwork.’” The judge out in Pennsylvania coal country wasn’t buying that load of manure. He declined to dismiss the case. It is likely headed to trial by next fall. I’ll keep you updated. I was reading last week about the collapse (again) of my Mets. It is an annual saga interrupted by moments of unimaginable joy (1969, 1986, 2015). And despite the inevitable October demise, I still find myself checking the box score every morning and chatting with my fellow Mets fans every evening about strategy, players, and the future.
But as the fall playoffs approach, absent the team from Queens, there is a possibility that waiting for next year might take longer than usual. The “Basic Agreement” between Major League’s baseball owners and its Players Association is set to expire on December 1. Until a new agreement is reached between the owners and the union, there will not be any Major League baseball. The sticking point in these labor negotiations is over how much time a player must put in on a major league roster before becoming eligible for free agency. There has been a major shift in player salaries over the last decade as teams have turned to computer analytics to better determine player value. Whereas during the first forty years of free agency a player’s value was determined based on past performance, these days a player’s value is determined based on projected future performance. Computer statistical analysis gives baseball’s owners and executives a crystal ball that allows them to project future value. And a majority of players are discovering that by the time they hit free agency six years into their careers, their best years are behind them. The labor negotiations are going to be structured on how soon players will be able to hit the free market, thus allowing competing teams to bid for their services. Under the current system, a player remains the property of his current team for his first six years of major league service, meaning that no matter how good he is, no other team can bid for his services. Because there is no competition for his services, his value is substantially lowered and he must wait for a big payday. This type of artificial cap on salary does not happen in most other industries. When I got out of law school, I was able to take a job wherever I wanted and go to the best bidder. And if I was not happy after six months, I could move to a different bidder. That is how the world of labor services work. It is basic economics. Employees hit the market, take their skills to the best bidder, and continue to work there until a better offer comes along. The idea that an employee is stuck working for the same employer for the first six years of his career is nonsensical in just about every industry, but is the standard in professional sports. And because so many of baseball’s biggest stars also happen to be its youngest players with the least amount of service time, baseball’s owners are getting a huge artificial discount on labor costs and they are able to exploit that artificially low cost to their benefit. The players union caught on to the change in the game wrought by analytics too late and has been left with a union of players that are not being adequately compensated compared to their value. And that is why, when the Basic Agreement ends in December, it may take some time before we see major leaguers back on the field in the spring. President Biden dropped a bombshell on Thursday. Those of us who do what I do for a living are still trying to figure out the real-life impacts of his vaccine mandate issued by Presidential fiat.
Don’t get me wrong; I am a believer in the vaccines. The vaccine has allowed me to get back to a normal life without any real worry. And I certainly do not know what the long-term effects of the vaccine might be — they could be deadly. But I took a leap of faith and got the jab, and in the process I not only protected myself but also protected the folks who come in contact with me whether they are vaccinated or not. And because I do not know what the long-term effects of the vaccine might be, and I know that there is a slight chance that those effects could make my life worse on some distant day, I consider that I have made a personal sacrifice for those in the world around me. I have risked my personal well-being for the good of others. I am ok with that. I can’t quite understand why others who have had a chance to live are unwilling to make the same sacrifice. But I can be spared the talk about personal liberty and freedom and choice, particularly from those who in many other instances are not huge fans of choice. So President Biden on Thursday, who apparently thinks about these matters the same way I do, announced that he has lost patience with those who refuse the vaccine out of selfish interest. Right on. I heard a guy yesterday complaining about the order saying that his doctor told him to wait a year and see what happens before getting the vaccine. He wants me and those of you who have gotten the jab to take on the risk before he does his part and gets the jab. They are giving rewards now to folks in order to get the shot. They should be giving rewards to those of us who got it in the spring for making this corner of the country a whole lot safer while the plague rages in the south and in the plains. In any event, despite my feelings about the vaccine mandate, I still remain a believer in the law. I believe that the law should be followed, because if we don’t follow the law, anarchy comes. Law really is all that we have separating us from societal breakdown. So the obvious question is: can the President mandate vaccines? I think he has the Constitutional authority to do so in order to protect the health and safety of the population, as well as the commercial interests of our nation. As he has a rational basis for issuing his order, then I think he has the authority. Still, I think that the mandate must remain limited by religious and medical exceptions. And I still think that the impacts of the mandate must be negotiated with those workers represented by a union. But in the end, I think that the mandate is going to survive, and I believe that ultimately it will help finally bring an end to the disease that has plagued us for more than eighteen months. Because it is about time that we put this damn disease behind us. I was down in Texas and Oklahoma last week. It’s a different country down there. People seem friendlier. They’re no nonsense, too. We have a different vibe up here in the Northeast; we’re all business up here. That’s my impression, anyway.
But man, it is hot down there in North Texas and Oklahoma. Ninety-five degrees is a cold front this time of year. I was down there to see my son graduate from Army Basic Training at Fort Sill in Lawton, Oklahoma. We were by no means a military family before, but we are now, like the flip of a switch. If you’ve never been to a boot camp graduation, it is a pretty cool ceremony to see. First of all, you see Americans from every background at an Army ceremony. You don’t just see soldiers, you see their families, too. You see grandparents and infants, toddlers and wives, husbands and cousins. Name a race or ethnicity, and you will see it at Army boot camp graduation. And what was really compelling is that nobody cared about skin color or background or where you were from or what you did for a living. We were all proud of our soldiers. And we all had skin in the game suddenly. It changed my perspective. I always had a detached admiration for the military. I never gave much thought to the sacrifices or pride of the families that the soldiers came from, but there it was last week on full display. My son is an Army soldier. Military folks are part of my family now. So I was happy when I got a phone call from a soon-to-be Marine after I returned from sweltering Oklahoma. The gentleman had gotten his orders to report to his Marine post in mid-September down in Virginia. His wife is three months pregnant with their first child, and he has a lot of work to do to get ready for the move down to Virginia. If you have ever been pregnant or gone through a pregnancy with a loved one, you know that the first three months can be a bit difficult. Planning a move, getting affairs in order, and getting physically and mentally fit for what awaits at training is a lot on any person’s plate. The new Marine was trying to coordinate with his current employer to help make the move easier. Under a federal law known as USERRA, employers are required to hold a job for a member of the military for up to five years while he or she serves. USERRA guarantees a job once military leave ends and the soldier, airman, sailor, or marine returns from duty. But the new Marine that I was assisting needed time off to get his affairs in order before heading off to his post. His employer was giving him a hard time about getting time off, and he was concerned that without adequate time, he would be unable to get to Virginia and be ready to go when he got there. He needed to know what he could do. It turns out that USERRA allows military members to take unpaid military leave from their current employment to prepare for an assignment. The amount of time off depends on the place of deployment, the length of deployment, and the time necessary to get affairs in order. After I spoke with the employer, we came to an agreement on time off. In a few weeks, we’ll have a new member of the Marine Corps ready to go. That’s something to be thankful for. I make my living pursuing claims of discrimination, retaliation, and hostile work environments on behalf of my clients. The Connecticut General Assembly and our courts have acted aggressively to stamp out discrimination and hostility in the workplace and to limit the effects of this type of behavior that can have generational impacts.
Folks like me and those who defend the cases on behalf of the accused take our jobs seriously. We play an important role in making sure the laws are enforced, and justice is served fairly and equitably. It is really important that we have faith in our justice system so it can do the work of ensuring our American values, codified in our statutes and laws, are enforced equitably. And if we have faith in our justice system, then that should be enough to ensure that when a person acts in violation of the law, the system will act to correct the violation. But these days it seems like we have a belief that justice served by our court system is not sufficient to satisfy our need to right the various wrongs that come before the court. I am not an apologist for harassers or discriminators. Their behavior has social consequences that go beyond the actors and their victims. It erodes our society as a whole. Whatever must be done through our system of laws to stop the behavior is fine with me. But it is the judicial system and the legislature that have been empowered by us to take action. People who freely give their opinions on Twitter do not speak for all of us. Talking heads on the news channels don’t get to mete out justice. Still, they increasingly are the most listened-to voices, and the penalties that are assessed exceed those that our system of justice could ever reasonably hand out. In fact, the penalties are frequently so swift and unforgiving that the matters never even make it into court. After the public issues its verdict without hearing all the evidence, the cases, if they are ever even brought into court, quickly settle. I was reading the obituary of a man named Chuck Close last week. I’m embarrassed to say that I had never heard of him before. He was a brilliant portrait painter. In 1988 he was left partially paralyzed, but he continued to paint some of his best works well into this century. Four years ago, several women, including many who had posed for him as models, accused the artist of sexually harassing them between 2005 and 2013. He acknowledged making crude and candid commentary to the women as he evaluated them as subjects. Don’t misunderstand: I am not making excuses for the man. If he harassed the women, he should have been sued, and, if liable, he should have paid damages. But no lawsuits came. Instead, just a number of allegations were made. And a neurologist attributed the artist’s comments to a diagnosis of dementia that the artist had received. However, once the allegations were made, galleries that were scheduled to show Mr. Close’s art cancelled or postponed his shows. But what was the correlation? Why should the world be deprived of his priceless art because of allegations, that even if true, could be properly handled through the court system. Should the bad behavior have completely nullified his artistic accomplishments? And should the behavior have deprived the public of viewing the artwork of one of the great portrait artists in a generation? I’m not so sure. I prefer to let the courts decide these issues and issue the appropriate penalties. For those of you who read this column fairly regularly, you know that I have taken to working from home like a fish to water. I love everything about my new work life: working in my casual clothes, having my Zoom uniform of shirt and tie hanging next to me as needed, getting ready for a meeting five minutes before it happens, and being home thirty seconds after it is over.
I like to cook, and I love making my breakfast and lunch each day. I love saving money on gas and food. I enjoy taking a mid-morning walk with my dog. I even enjoy indulging in an occasional cigar on my new office balcony. I don’t miss the commute. I don’t miss waiting on people to show up. I don’t miss small talk, crowds, or noise. I am glad that I have employees who can work on their own schedule and produce quality work at their own pace. I am grateful that when my employees need time to take care of personal or family things, they can just go and do it without having to feel like they are shirking a work responsibility. I like giving my employees freedom to work and live on their own terms. And finally, I like knowing that my business continues to grow. Despite all this good stuff, a friend of mine got me thinking about the dark side of all of this newfound “freedom” that I am experiencing. She recently left her job and is looking for new opportunities. But she raised a red flag that I have not been completely aware of in my work. She says that in her corporate job, our new virtual workplaces have created a “modern-day sweatshop” as she calls it. Some companies that have sent their employees home to work have come to expect their employees to be available all the time. There are no longer set work hours. It is as if the trade off for being able to work from home is always being ready and able to work. Of course, that is unreasonable and unsustainable. It goes without saying that if employers can get more work out of their current workforces, regardless of where those employees work from, then the employer is going to become more profitable. And the beast will continually need to be fed as the hunger for profits is insatiable. Suddenly, since home has become the workplace, home has stopped being home and is instead always the workplace. As I said, that is an unsustainable model. So how can this be stopped? You know me. I come from a union background. I am not one of those union people who subscribe to the theory that unions are a cure-all for everything that ails the workplace. I know that unions can occasionally serve as impediments to progress. But in a scenario where an employer expects more from its employees and blurs the boundary between work and leisure, I think that discussions need to take place to set firm boundaries. Employees acting alone have limited power to create the boundaries. But acting together, a clear line between work life and home life can be established. While unions can clear the way to force the conversation, employees who are hesitant to go that far still need to think about finding a way to have a discussion with the employer to establish clear boundaries. I continue to receive calls from workers about whether their employers can require them to get vaccinated.
Over the last several weeks more public and private employers have begun to implement vaccine mandates for their employees, resulting in a large number of calls to folks like me as employees try to understand their rights. I have been doing a lot of reading and thinking on the matter as I try to keep up with the changing landscape. It appears to me that the pendulum is beginning to swing in favor of mandates as more and more folks come to terms with the idea that the most effective way of preventing the spread of the virus is by vaccinating as many people as possible. The Delta variant is reportedly creating havoc in parts of the country that have low vaccination rates. And while we continue to hear about breakthrough infections, authorities are vague on what factors are important in leading to breakthrough infections. But this past week we learned that while there was great hand-wringing about the Lollapalooza music festival being a super-spreader event in Chicago a few weeks back, it did not happen. The high amount of vaccinated party-goers was credited with keeping the infection rate low. Over and over again reports keep coming out that the Delta havoc is being powered by the unvaccinated. So it makes sense then that policy-makers and business leaders are pushing for more vaccines in order to drop infection rates. More and more the debate about vaccinations is becoming one about whether getting a vaccination is a personal choice or a public health obligation. And more and more folks seem to be taking the view that a vaccination is less personal choice and more public health obligation. Still, there are plenty of folks out there who remain hesitant about getting the vaccine, and they are not all dummies despite what some commentators would have you believe. So what can be done if you still object? Well, if you have a religious objection that is personal and sincerely held, your employer should probably provide you with a vaccine exception. But that exception does not come without strings attached. Employers should be taking all steps necessary to maintain the health and safety of their workers and their customers. This should therefore include mandatory masking for unvaccinated workers without exception, and regular testing at least twice a week. These two steps taken in conjunction with each other seem to be acceptable alternatives to a vaccination mandate by many authorities. However, there remains no requirement for an employer to provide its employees with vaccine exceptions where there are no religious objections or disability concerns for the employee. Still employers face the risk of losing valuable workers if they take the step of terminating vaccine-hesitant workers. That is why it seems important to me that employers find alternatives to mandates that can still satisfy the goal of maintaining the health and safety of all employees and customers. As always, clear communication will be the most important tool that employers and employees have in trying to navigate this vaccination minefield. |
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