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If you read this column regularly, you know that employer retaliation against your exercising your civil rights in the workplace is illegal under federal or state anti-discrimination laws.
For example, if you testify on behalf of a fellow employee who has been targeted with racial epithets in the workplace, you are protected from retaliation for giving that testimony. Likewise, if you make a complaint against a supervisor for using sexually hostile language in the workplace, and the company then starts to overly-scrutinize your work, you will be protected from that kind of retaliation. This is so even if the hostile language that you were subjected to did not rise to the level of a sexually-hostile work environment. Our courts have generally been very expansive in holding employers accountable for retaliatory behavior. The reasoning is easy to understand: if our anti-discrimination laws are intended to eradicate discrimination in the workplace, then folks need to feel comfortable reporting discriminatory actions or even testifying about discrimination. If discriminators can shield themselves from facing the consequences of their discriminatory acts by retaliating against witnesses, then discrimination will proliferate. The law will be incapable of putting an end to it. We have pretty robust anti-retaliation laws for the workplace. They are even tougher than the anti-discrimination statutes. The EEOC, the federal agency empowered to stop discrimination and retaliation in the workplace, recently put out some new guidance on addressing retaliation issues related to COVID. COVID has changed everything about the workplace, including, apparently, how folks discriminate and retaliate. It has gotten so bad that the EEOC is now putting out guidance on how to deal with it. Under the specific guidance that the EEOC has sent out, the agency has written that, in an example where an Asian-American employee complains about a coworker making abusive comments accusing Asian people of spreading COVID-19, said employee would be protected from retaliation. The EEOC has also reminded employers that where an employee is harassed for refusing the COVID vaccine for religious reasons and reports the harassment, any subsequent retaliation against the employee for reporting the harassment would be illegal. While sexual harassment has routinely occurred in-person in the workplace, the EEOC is now reminding employers that harassment can also occur in virtual settings including in videoconferences or via messaging apps. Employers need to ensure that anti-harassment policies are expansive enough to include remote work. The guidance also reminds employers that anti-retaliation laws apply to protect most employees regardless of the employees’ citizenship or work authorization status. Anti-retaliation protections apply to former employees as well. Typically, this will be in the context of post-employment recommendations for former employees. Retaliation occurs when an employer’s response is such that it could deter a reasonable person from engaging in protected activity like filing a complaint or testifying on behalf of a coworker. Retaliation, by its nature, is designed to dissuade folks from speaking out against illegal activity. That is why the anti-retaliation provisions of state and federal law need to be robust. Without stiff penalties, the policy designed to eliminate discrimination would fail.
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I embraced the idea of remote work really early in the pandemic. I always believed that there was a more efficient way to get traditionally office-based work done rather than through commuting and remaining stationary at a desk from nine to five.
I have never been a supporter of meetings because I have believed that they are often too long, unfocused, and time-wasting. The pandemic has shown us that many workers and managers agree. The pandemic presented us all with an opportunity to redesign how work can be done. For those who had enough foresight to embrace the new model and refine it to their needs, the results have shown that employees are happier, more productive, and more efficient. Now, as the pandemic is slowly being brought to its knees, we are facing the question of how we are going to do our work moving forward. Are we going to simply view the pandemic as an earthquake from which we rebuild by returning back to the way things were? Or instead, are we going to recognize that the seismic changes in the workplace that were caused by the pandemic have refashioned the way work will be done in the coming decades? I am a believer in the second notion, but not everyone, including many in my line of work, agrees. The labor market has changed, and we are living through what is being termed the “great resignation.” Workers are using newfound leverage to help redesign the workplace in a way that is more satisfying to their needs and allows them to live the fuller lives they desire. The changes brought about by a nearly two-year pandemic have made workers aware of the lives they could and should be living. And workers are no longer accepting of the lives that have essentially been forced upon them by the demands of a now-outdated labor market. The facts are that talent is talent and antiquated rules are unnecessary to release that talent. An exceptional employee will be exceptional whether she is doing the work between 3 p.m. and 7 p.m. or 9 a.m. and 5 p.m. She will be exceptional whether she is doing it in a non-descript office building or while sitting by the pool in her backyard. Functional workers who can get their work done in three hours will no longer tolerate sitting at a desk for eight hours, commuting for another hour, and wolfing down their meals while passing through their homes and neighborhoods for the remainder of their waking hours. As these changes take hold and become foundational, the law will necessarily have to adapt. How will overtime hours be calculated? How much paid time off will be necessary? Will paid time off even be a consideration for workers? Will workers be expected to work even a few hours a day even when taking “time off.” Will workers object to checking in or handling occasional issues when otherwise traveling with families or friends? Will sick time be necessary for those dealing with a child’s illness or a parent’s convalescence? The workplace has changed forever. Soon it will be necessary for norms and laws to catch up. That day is coming fast. I got my COVID booster last week and a flu shot to boot. I feel like maybe I should get through the winter without even a cough. But we’ll see.
The 490 page federal vaccine mandate that came out last week doesn’t really affect me directly. But it will affect many of you directly. And of course there will be indirect effects like labor market impacts, supply bottlenecks, and hopefully (finally) a squashing of the virus to manageable levels. Not to say that it is not manageable in Connecticut yet, because it appears to be. Still, there are enough folks out there who remain extra vigilant against a virus that has, for the most part, been brought to its knees in Connecticut. That vigilance is impacting our ability to get the economy back to the full-blown roar it was at before the pandemic hit us. So now, as the eye of the storm heads out to sea, we are faced with a 490-page “temporary standard” issued by OSHA that mandates vaccinations for most private employees that work for employers with 100 or more workers. The mandate goes into effect on January 4 after being pushed back by a month. The standard requires covered employers to take a few important steps in order to comply with the mandate. First, employers have to put a written mandatory vaccination policy in place within 30 days. Smart and prepared employers will also be ready with forms to give to employees seeking either a religious or a medical accommodation. Those employers with union employees will have to be ready to discuss the impacts of the mandate on those bargaining units. The OSHA Emergency Temporary Standard (ETS) will require covered employers to provide employees with information about the ETS, including information about policies and procedures along with information about the safety and benefits associated with the vaccine. Further information includes notice about anti-discrimination and retaliation and notices regarding criminal penalties for providing false information. Employers are required by the ETS to determine the vaccination status of employees. The ETS provides employers with various ways of accomplishing this task. If an employee will require a vaccination, the employer will be required to grant the employee sufficient paid time off to get the vaccine. Under the ETS, four hours to obtain two shots is deemed reasonable. The employer cannot deduct this paid leave from other available leave time, like sick or vacation, that the employee has accrued. Paid sick leave must also be provided to employees to recover from the side effects associated with the vaccination. In order to comply with the requirement of paid leave time to recover from vaccine side effects, employers can require the employee to use their own personal sick, personal, or vacation leave for the purpose. OSHA has determined that two paid leave days for each shot is reasonable in order to allow a full recovery. Employers will also be required to provide records regarding the vaccination status of work staff within 24 hours of request. It will therefore be important for an employer to have that information regularly updated and available in swift fashion. According to recently-released data, more than 78 percent of Connecticut’s population has received at least one dose of a COVID-19 vaccination, and more than 70 percent of the population is considered “fully vaccinated.”
By next week, children aged between five and eleven years old will be eligible for a vaccination. Connecticut’s numbers put the state well above the national average where just 57.6 percent of the national population is fully vaccinated. Many of those folks who have yet to be vaccinated are unlikely to ever voluntarily get the jab, despite the fact that many of those same people face job loss for defying vaccine mandates by their employers or the government itself. Many of those who have legally avoided vaccinations to date have done so as a result of a religious objection to the vaccine. But just this week the EEOC has passed new guidelines designed to make it more difficult for religious objectors to avoid employment consequences for refusing the vaccine. Title VII of the federal civil rights law requires employers to accommodate employees who object to getting a vaccine based on a “sincerely-held religious belief.” To date, employers have been counseled to avoid challenging the sincerity of an employee’s religious belief except in exceptional circumstances. As a result, most claims of a religious objection by employees have resulted in accommodations allowing the employees to avoid getting a vaccine. The EEOC still maintains that employers should “generally assume an employee’s religious belief is sincerely held unless there is a basis to question it, in which case the employer may make limited inquiries and seek additional supporting information.” However even where an employee can support a sincerely-held religious belief, the EEOC’s new guidance is giving employers more leeway on determining whether or not a reasonable accommodation can be provided without causing “undue hardship” to the employer. If a proposed accommodation would cause “undue hardship” to the employer, then the employer need not provide the objecting employee with an exemption from the vaccine mandate. Under the new guidance, the EEOC is advising employers that they can define “undue hardship” more broadly than previously counseled. Where a religious accommodation is sought, an undue hardship will be considered one that causes simply more than a de minimis cost. Further, the EEOC now says that employers can consider various common and relevant impacts of an accommodation including whether the employee works outdoors or indoors; whether the employee works in a solitary or group work setting; and whether the employee has close contact with other employees, members of the public, or medically-vulnerable individuals. Additionally, the employer can take into account the total number of employees who are seeking an accommodation for similar reasons. In other words, the employer can consider the cumulative burden upon it when assessing each individual request for an accommodation. The result of the EEOC’s new guidance could be that fewer religious exceptions to mandate requirements are granted by employers. Still, it is hard to imagine that employers will be willing or able to take disciplinary action against an employee that refuses a vaccine for religious reasons, not only because it could lead to a lawsuit, but also because the workers could be very difficult to replace, and therefore negatively impact the bottom line. I had a new issue arise this week regarding vaccines. We are fully involved in vaccine mandates now, but the new issue is whether or not employers can mandate vaccine booster shots.
Over the last several weeks, the FDA has approved COVID vaccine booster shots for varied demographic groups. According to the FDA Commissioner the available data suggests “waning immunity in some populations who are fully vaccinated.” Therefore, the FDA issued “emergency use authorizations” for the Moderna and Johnson and Johnson vaccines. Those folks who originally received the Pfizer vaccine have been eligible to receive Pfizer boosters since September. Folks who received the Moderna vaccine will be eligible to get a booster six months after their second shot, while those who received the J&J vaccine can get a booster two months after their only shot. In addition, the FDA has approved mix and match vaccinations on the booster, meaning, for example, that if you got J&J the first time, you can get Pfizer for a booster. This is called heterologous boosting. Currently, boosters for those who received the Pfizer and Moderna vaccines will only be available for people aged 65 and older or for those aged 18 to 64 with health conditions that put them at high risk of severe illness from COVID. This group includes healthcare workers, teachers, and those working or living in homeless shelters or prisons. For those who received the J&J vaccine, boosters are recommended regardless of age or health factors. On Friday, the CDC director said that given the new authorizations for boosters, the U.S. may alter or update its definition of “fully vaccinated.” This is where the issue of mandating boosters comes in. Under the Connecticut vaccine mandate issued by Governor Lamont in Executive Order 13G, “fully vaccinated” is defined as meaning that “at least 14 days have elapsed since a person has received the final dose of a vaccine approved for use against COVID-19 by the U.S. Food and Drug Administration, or as otherwise defined by the Centers for Disease Control.” The mandate currently requires covered workers to be “fully vaccinated” by September 27, 2021, or to “have received the first dose and have either received a second dose or have an appointment for the second dose in a two-dose series vaccination, such as Pfizer or Moderna vaccines. . . .” But if the FDA and the CDC are now saying that boosters are recommended for those who have otherwise been considered “fully vaccinated,” then it is likely to occur that in order to continue to comply with the mandate, workers will be required to get a third vaccine dose, or a second dose if originally in receipt of the J&J vaccine. Notwithstanding any governmental vaccine mandate applying to covered workers, some private employers not covered by the governmental mandate may also decide to mandate a booster vaccine for their workers. Under the law as it currently stands, employers in Connecticut may do so in order to ensure the health of their employees and their customers and vendors. This means that given the recommendations of the FDA and the CDC we are likely to begin seeing booster mandates from employers. The same analysis that has applied to the original one or two-shot vaccines will also apply when it comes to booster mandates. 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. 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. |
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