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Over the last fifteen months, as I drive around New England and other parts of the East Coast, I see these nice signs with hearts on them giving thanks to the workers who kept this country going during the pandemic.
Routinely, these folks who went to work every day in the face of dangers to themselves and their loved ones are called “heroes.” It is funny how we so readily toss words around to make ourselves feel better when others step up to help us selflessly. But in America, shouldn’t we thank people for their work by paying them for the work they do? And when the jobs are dangerous, shouldn’t we pay them more? The only truly authentic way to thank someone for working is with a paycheck. That’s my opinion anyway. And I suspect for people who work, they would agree. I used to be an avid watcher of the television show Mad Men. There was a scene in one episode where Peggy Olson, the hotshot advertising protégé was lamenting to her boss, Don Draper, that she had not been given enough credit for the amazing work that she had done. She was begging for an attaboy. And Draper, the no-nonsense boss, looked her in the eye and said “that’s what the paycheck is for.” Indeed. Why during the pandemic were we so quick to lavish empty praise but slow to deposit money in the bank accounts of those who took on so much risk? Over the last generation or two that seems to have become an American ideal. As if a pat on the back can overcome pay inequality. As if a sign on the lawn will excuse those who refuse to pay their fair share. Finally, some legislators seemed to be taking some action on this front. When President Biden was able to ram his American Rescue Plan Act through a partisan Congress to the tune of $1.9 trillion, there was an important provision in there to honor the work that our essential workers performed during the pandemic. The provision set aside tens of billions of dollars in funding for states and local communities that would provide premium pay of at least $13.00 per hour to a maximum of $25,000 per worker for essential work performed during the pandemic. The funding could go not just to public employees, but also to workers at private employers who performed work in “critical infrastructure” industries. The federal funds are to be allocated by state governments. Connecticut received $2.6 billion in ARPA funding from which the premium pay is supposed to be distributed. But out of that $2.6 billion, Governor Lamont has tentatively set aside just $10 million and only for state workers. That is .4% of the total allocated to the state. That is the value the Governor has put on essential workers who showed up every day in the face of the pandemic. That is, in relative terms, less than the cost of the construction paper to draw a red heart with the words “Thank You.” It is, frankly, disgusting. So a suggestion: maybe it is time for workers to stop taking it from this Governor and this legislature and start calling to find out where the money is. While the members of the General Assembly were drinking in the parking lot and slapping themselves on the back last month, maybe they should have been ensuring that workers get paid with the federal money that was sent to the state.
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I’m a Crosby High School grad. I became a Bulldog in 1982. I can’t believe it has been that long.
My history teacher freshman year was Mrs. Vassallo. I think she reads this column. She may remember assigning my class a project requiring the students to create a mosaic out of construction paper when we were doing a unit on Mesopotamia. It was a nightmare project. I still hate the word “mosaic.” Why am I telling you this story? Because last week I came across a case from the federal eleventh circuit court of appeals that talked about mosaics in the context of proving discrimination in the workplace. I still don’t like mosaics, but I can see how the idea of a mosaic can be useful in proving a discrimination case. I am open to embracing the concept almost forty years after I swore off mosaics. If you read this column regularly you know that I often say that proving a case of discrimination can be difficult. It is rare that there is a “smoking gun” piece of evidence that connects a discriminatory intention to an employment action. We don’t typically get a Perry Mason moment where the supervisor gets on the stand and under intense pressure admits to firing a plaintiff because she is Jewish or Black or old or a woman. Usually we have to connect a series of dots. Or as the Eleventh Circuit court said, we have to look at the pieces of the mosaic. There is a well-known legal standard used to evaluate discrimination claims. A plaintiff needs to show that she is qualified for the employment position and that she is in a protected class. So if she is a nurse, she has to show that she is qualified to hold the position of a nurse and that she is in a protected class, meaning she is Jewish, or Black, or over age 40, or a woman. Then she has to show that she suffered an adverse employment action, meaning she was demoted, suspended, or fired from her job. And finally she needs to be able to prove that the adverse employment action was a result of her membership in the protected class. Often this last element can be proven by showing that the plaintiff was treated less favorably than those not in the protected class, but that is not the only way to prove discrimination. According to the Eleventh Circuit and some other courts, a plaintiff can satisfy her burden on a discrimination claim by presenting a “convincing mosaic” of circumstantial evidence from which a jury could conclude by inference that the boss intentionally discriminated against the plaintiff when making the adverse employment decision. So what are the pieces of a “convincing mosaic?” According to the Eleventh Circuit court, a plaintiff can show a “convincing mosaic” by presenting evidence of suspicious timing, ambiguous statements, multiple explanations for the employment action, conflicting testimony, or off-hand comments demonstrating a discriminatory intent. If there are enough pieces that create a picture of discrimination, then a jury can infer discrimination. I have often viewed the various pieces of information as bricks that when placed together form a wall of discrimination. But that is probably just my anti-mosaic bias. Thanks Mrs. Vassallo. The masking and vaxxing requirements are changing regularly, and they can be confusing for most of us. I walk into some stores and there are no worries if I don’t wear a mask. In others I can tell before I reach the front door that it is best I don my mask as I have for the last year. You can never be sure about what the rules or expectations are.
But the state has recently issued some new guidance on mask wearing, and it probably makes sense to share it with you so you have a better idea of what you can and cannot do as the summer unofficially begins. First, according to state guidelines, you are not required to wear a mask outdoors. That is the case whether you have gotten a vaccination or not. So if you’re heading to the beach this weekend, you won’t need your mask. Same for hiking, fishing, or Little League games. Family picnic – no need for a mask. But don’t be so sure about heading to an outdoor concert venue. That is because businesses and state and local governments can still require universal masking if they choose. While some states, like Texas, have prohibited businesses from mandating masks, Connecticut has not. It is best for you to check with an outdoor venue before assuming that no mask will be required. The rules are different for indoor venues. If you are fully vaccinated, the general rule is that you do not have to wear a mask. But you also know that plenty of venues are still expecting you to wear one. Take a walk into the grocery store and you will see most folks wearing masks along with the employees. But if you choose not to wear a mask, you will be in compliance with current state rules. However, the business owner can still require you to wear a mask. There is another set of exceptions, too. Healthcare facilities still require you to wear a mask, as do public and private transit facilities. If you hail an Uber because you expect to have a few beers with friends this weekend, you’ll have to put a mask on when you get in the car. Headed to the airport for summer vacation? You’ll need to wear a mask as soon as you enter the airport property until you exit the airport property at your destination. Schools in Connecticut are still mandating masks, as are jails, and any facilities catering to vulnerable populations. There is a caveat though. If you have a medical condition that is exacerbated by wearing a mask, you can decline to wear a mask and you will not be required to prove the medical condition. Head spinning yet? You are probably no longer surprised why folks get so agitated when it comes to mask wearing. The rules are not clear. They are designed to agitate. If you are not vaccinated, you have to wear a mask except when you are outside. If you are vaccinated, you should carry a mask and expect to put it on when you are at an indoor venue and when at some outdoor venues. Vaccinations keep increasing. At some point, infection rates are going to diminish to such a level that masks may become a thing of the past. For the near future, though, keep them handy. Over the last 25 years, I have been lucky enough to have this space to write about work and business. I am fully aware that I write for a conservative-leaning newspaper, and that I bring a left-leaning voice sometimes (not always). I am grateful for the chance to share my ideas with the folks who read this column even when some disagree with me. That’s what journalism is for after all.
One of the basic tenets that I have approached my professional life with is that workers should be paid for the work they do. If someone performs work for an employer, she should be able to join with like-minded employees to advance their mutual interests. That idea is caustic to about half of the population. I get it. The reason I support collective action for workers is because ultimately I think that when employees do better, the economy as a whole does better. Higher wages lead to more buying power which helps drive the economic engine. Meanwhile, when workers are undervalued for the work they do, productivity suffers, depression increases, and financial precariousness becomes the norm. Workplace culture becomes a casualty. I’m for abundance, not scarcity. Which brings me to a recent change announced by the National Labor Relations Board related to the work that graduate students do at colleges and universities. The NLRB is a great example of how elections matter: the Board’s policies swing like a pendulum from conservative to liberal based on whether a Republican or Democrat is in the White House. With the recent election of Joe Biden, the Board’s policies are swinging back to the liberal side. But back in September 2019, during the Trump administration, the Board proposed a rule that grad students who performed services including teaching or research assistance at private colleges in connection with their studies are not “employees.” If not “employees” then the grad students could not band together to negotiate for better working conditions and wages. They essentially would be servants to their “employer;” well, not “employer,” because they’re not employees. They would be servants to their college and subject to the whims of the professor they were assigned. With so much hinging on successful completion of the student’s graduate studies, you can see how the mismatch in power dynamics could lead to abuse. But then this past March, the NLRB announced that it was withdrawing the proposed rule. By August of this year, President Biden will have appointed a majority of board members and the pendulum will have completely swung one hundred eighty degrees. Back in 2016, the NLRB issued a decision in a case involving Columbia University declaring that student workers are “employees” and eligible to organize. When the NLRB found that grad students are not “employees,” it hinged its decisions on a conclusion that grad students are “primarily” students and not workers. Similarly, this situation is like how my nephew, who plays football at Notre Dame, is a “student-athlete,” not an employee. Yeah, tell that to NBC. And tell that to my nephew when he is putting in 8-hour days in the weight room and on the practice field during the off-season. I am glad that the NLRB is favoring workers right now. It is good for the economy and good for the people in this country who work. There are a lot of crackpots in the world.
Social media helped them rise to the top (or sink to the bottom, as it were). COVID gave them free time to shout their drivel from the social media rooftops. But this is America, and our First and most important Amendment says that we cannot stifle the garbage that some spew, even when it is clearly identifiable as “malarkey,” as our President calls it. Our obligation as Americans is to either respond to the nonsense with facts, or just let it all die from lack of oxygen. Either can be effective in response, but sometimes more is needed. I represent folks who occasionally get targeted by social media cellar-dwellers. We like to tell ourselves that everybody is equal in this country, but that’s not exactly true. Some folks work hard, pay their taxes, raise their families, and act with kindness. Others do the opposite. There is no equivalence among those who occupy these different groupings. Those who go on the attack with the intent of smearing, humiliating, or threatening often go after folks who have earned our respect as leaders in the community. Those who do the attacking tend to be those who “earned” participation trophies back in little league. Not everyone’s an MVP - the smear artists prove that every day. I recently had to deal with a case where one of my clients, by all accounts the kind of person we would all want our kids to grow up to emulate, had suddenly become the target of a social misfit for no reason other than that my client was somebody in the community who had decision-making responsibility. There is nothing wrong with disagreeing with a leader’s decision, especially when there are facts and policy reasons to support the disagreement. But when the disagreement becomes vulgar, threatening, or harassing, there is no need to tolerate it even if one is a local public figure. But what does the law say about that? After all, First Amendment protections are quite broad - as they should be. What can be done when a crackpot goes on the attack? Most of us have heard about libel and slander, together known as defamation. And while a claim of defamation may be an effective means of stopping the harassing and demeaning behavior by the guy who still lives in his mother’s basement, there are other tools as well. Connecticut recognizes the tort of invasion of privacy. There are four possible ways that one’s privacy can be invaded, including: placing one in a false light, unreasonably intruding on one’s seclusion, giving unreasonable publicity to one’s private life, and appropriation of one’s name or likeness. Filing a lawsuit for invasion of privacy can be a powerful means of stopping harassment in its tracks. Someone who is harassed by another can also bring a claim for infliction of emotional distress. In order to be successful on this kind of claim, an injured party must prove that the defendant intended to cause emotional distress, that the conduct was extreme and outrageous and caused the claimant’s distress, and that the emotional distress was severe. These requirements all go to questions of degree of harm, but in cases where one’s privacy is invaded and humiliation follows, it makes sense that emotional distress would be the expected outcome. Still, where the emotional distress, or the privacy invasion results from speech on a matter of public concern, the First Amendment is likely to protect the speech, no matter how outrageous society would generally consider it to be. The COVID numbers keep getting better, but now we are hearing warnings over the last week that we may never reach herd immunity. Today I heard a report from the New York Times, relaying a report from the CDC, that in March eighteen residents of a nursing home in Kentucky who had been vaccinated were subsequently infected by a worker who had not been vaccinated. Two of the vaccinated residents died.
The CDC concluded that the vaccine was 86.5% effective against the variant that caused the outbreak. And that case, in a nutshell, is why folks are still being asked to mask up in public. While the vaccine is highly effective at preventing death and severe disease, it is not one hundred percent effective. And for the vulnerable population that the virus can still attack, even after a vaccine, masks become a second layer of life-saving protection. Which leads me to another interesting case that was recently broadcast by the United States Department of Labor. The Department recently fined a tax preparation business in Massachusetts more than $136,000 because it prohibited its workers and its customers from wearing masks while on the premises. The business was so lax in its enforcement of health standards that it did not require social distancing and refused other safeguards like cleaning and barriers. I wonder if it prepared taxes based on 2013 tax law too? According to the DOL, OSHA received a complaint that the business was not ensuring the safety of its employees and opened an investigation in March. As a result of the investigation, OSHA determined that the requirement that employees and customers not wear masks was a violation of a statewide order in Massachusetts. That order mandated that businesses require employees and customers to wear masks. OSHA also determined that the business failed to provide adequate ventilation, and it required employees to work within six feet of each other without acceptable barriers between them. In addition, OSHA faulted the employer for not undertaking pre-shift screenings of employees, enhancing cleaning procedures, or taking other steps to prevent transmission of the virus. The DOL found that the employer was not simply negligent in these failures, but rather that it willfully refused to follow the safety guidelines and ensure the health and well-being of its employees and customers. The determination in the case came directly on the heels of OSHA implementing a “national emphasis program” in March to focus enforcement efforts on companies that put the largest number of workers at serious risk of contracting the virus. It is likely not a coincidence that after that plan was put in place, we began to see infection rates decline or stay steady at lower rates from the high infection rates we witnessed just after the holidays. The plan is designed to work in conjunction with the national effort to increase vaccinations in order to curb the spread of the infection through vulnerable workplaces as commercial activity begins to ramp up headed into the summer. With the likelihood of herd immunity decreasing, large efforts from employers to limit the spread of the virus have become a national focus. For business owners, it appears that more of the burden of stopping the virus is going to be placed on their shoulders as the national effort to eradicate the pandemic continues to move forward. One of these days I won’t be writing about COVID anymore; today is not that day.
2021 has been a year where we have been continually turning the corner. It’s a long corner my friends. We’re still turning it. And new issues keep popping up as we navigate this unprecedented pandemic. I still think we’re going to come out of it okay. But there are other, darker times when I think it is going to take out a third of humanity before it’s done. And it’s the part of me that sometimes gets startled into thinking about unimaginable human loss that requires me to keep my mask in my glove box and dutifully wear it whenever I am in a place where I can’t be certain that everybody else has been vaccinated. I don’t wear it for me so much. I wear it for you. I think there is a fundamental misunderstanding about our collective duty relative to the pandemic. When Pearl Harbor was attacked before most of us were born, our grandparents and great grandparents understood their duty to humanity. When the World Trade Center and our nation’s capital was attacked almost twenty years ago, we each had an understanding of our patriotic duties in the moment. We stood arm in arm, together. Now as our neighbors, friends, and families are personally attacked by a virulent disease, and our businesses crumble under the weight of the pandemic, the discussion has not centered so much on collective obligation but rather on personal choice. And I don’t get it. I suppose whether you get vaccinated or not is a personal choice if the issue is tetanus or the flu. I suppose whether you wear a mask or not is a personal choice if the issue is air pollution. But those are not the issues. The issues are public health. And whether I get vaccinated or not impacts you and your family, not just me and mine. Because if the virus can no longer attack me, then you don’t have to worry about it attacking you if you come into contact with me. I maintain, and I have since this whole thing started, that getting vaccinated and wearing a mask is a patriotic duty. It is a solemn obligation. (I can hear your howling out there). The vaccine and the masks are not about protecting you personally. They are about protecting the public health. Each of us has a duty and obligation to pitch in to protect the public health. It is why we have sewage systems. It is why we protect our public water supplies. When the virus attacks you or a member of your family, it is tragic for you. But it also exposes everybody you come in contact with to the potential for their own personal tragedy. Vaxxing and masking stop that death spiral at your doorstep. Which is why everyone should get the vax and wear the mask, even at the risk that the vaccination turns out to have some side effect that we don’t yet know about. The kids who signed up to go overseas and face down the Germans had to take the risk of taking a bullet for their countrymen. They did it with grace and courage. This is our war. It is time for us to risk taking the bullet. So roll up your sleeve and take the risk. It is – literally – the least you can do. And once you do, you will have done your part to help all of us to get back to business. I thought things were going to be different by now.
I thought I could forget about wearing a mask. I thought I could go out to dinner and not worry about virus exposure. I thought I could pop into a coffee shop and sit down, drink my coffee, and read the news. Maybe I could do all those things right now, but it doesn’t feel like I can. And I don’t think anybody knows for sure when, or if, you or I will ever be able to. We still have about sixty or seventy thousand people getting infected every day. We still have close to a thousand people dying every day. Those numbers have been steady for two months now. Two months is about as long as a good part of the adult population has had access to the vaccine. It ain’t getting any better folks. I really thought things would be different by now. Given that the numbers are steady, we have finally come to the point in our state where our governor, who by most accounts has done a pretty good job at managing this crisis, has said it is time to open the state up fully next month. If he says so, I have no reason to disagree. His stewardship has been good so far. When that happens, given the infection numbers, lots of people who return to work are likely going to be exposed to the virus and get sick. With only about forty to fifty percent of the population vaccinated, there are going to be plenty of unwilling hosts for the virus to do its dirty work. I do worry about how our work force is going to stay safe. I absolutely want to see people get back to work. But it is bad business to sacrifice our workers for the sake of some form of normalcy. So the workplaces have to be safe. Last week the Maryland legislature passed a bill and sent it to the governor’s desk called the Maryland Essential Workers Protection Act. At the time of this writing, it was uncertain whether Governor Hogan, a moderate Republican, would sign the legislation or veto it. The bill is intended to mandate that COVID-related safety regulations be put in place for frontline workers and that the state’s department of labor be authorized to enforce the regulations. Right now, not only in Maryland, but in almost all states including Connecticut, there are no enforcement mechanisms for ensuring that workers are kept safe from COVID-19 infection. Most employers have been pretty good about protecting workers. After all, it is in their interest to keep infection rates down. But even the best employers fail at times in key areas of protection. Under the Maryland legislation, the legislature has empowered the Labor Secretary in that state to establish a so-called “Emergency Temporary Standard” for COVID-specific safety regulations. Nationally, Congress has debated establishing these types of temporary standards, but so far they have not gotten sufficient traction. Without an enforcement mechanism in place, workers have no real means of ensuring that the workplace is safe. Union workers have a little more protection because of their ability to bargain, but even they are limited in available remedies for unsafe workplaces. The Maryland bill is a step in the right direction. A national initiative should follow if we are truly going to turn the corner for our workers and our businesses. For a while now, I have thought that there are two key reasons that the middle class has gotten squeezed in our growing economy over the last forty years.
The first is the change in tax policy enacted during the Reagan administration that reduced the highest marginal tax rate on high earners from seventy percent in 1981 down to twenty eight percent by 1986. This change in tax policy disincentivized reinvestment in labor, infrastructure, and durables, and incentivized profit-taking and huge jumps in salaries for managers and owners of private enterprises. Don’t get me wrong: seventy percent marginal tax rate is unconscionable to me. There has to be incentive for risk-taking. The policy shift has likely resulted in huge gains in innovation by private entities. Consider where we are technologically today compared to 1980. I’m just not sure the right balance was struck because as a result of the policy shifts, the gulf between the haves and have nots has continued to grow wider, leading to stresses throughout society. I am not a believer in using taxes to give handouts to those who don’t work for their earnings; however, I do believe that tax policy can effectively be used to unburden government programs by forcing behavior changes in private entities that lead to increasing wages and benefits for the middle class workers. A tax rate of seventy percent won’t get it done. But a top marginal tax rate near forty percent on earnings in excess of two million dollars annually could make a dent in the income gulf. The majority of households today have a top-end marginal tax rate of twenty-two percent, with more than ninety percent of households maxing out at twenty-four percent. Increasing the marginal tax rate on million dollar earners will benefit everyone earning under a million bucks annually. The second important factor in closing the income gap involves labor organizing. As you know, I have represented labor unions for more than 25 years, but I am not a militant. I see the benefits for lots of workers while understanding the problems with unions. Today, only six percent of the workforce is organized. That number is too low because it is not significant enough for the organized workers’ gains to have ripple effects through the market. The pebble is way too small. When thinking about the downsides of unions, most folks consider that unions only protect bad workers, drive up employer costs, and lead to listlessness in the workforce. Those are often valid concerns. Effective unions understand these downsides and effectively address them. The problem is that too many institutionalized unions are unwilling to address these concerns as a drag on commerce. Last week, Amazon workers in Alabama overwhelmingly rejected an effort to unionize their plant. It seemed to me that the union was tone deaf in its efforts and didn’t make its case clear. One worker who was interviewed said that she received health insurance on day one, and her pay was double the minimum wage in a state that typically does not value workers. Why would any worker want a union at a job that was already doing everything for workers that a union could do? The workers were not stupid. They weren’t fooled. They understood completely. Unions are not needed where employers pay fair and play fair. In places where employees are not treated with dignity or respect, and in places where an employee’s value is not recognized, a good and thoughtful union can help benefit workers and make the business more successful. I’ve been handling employment and labor cases for a quarter of a century. In that time I’ve helped lots of folks with unemployment claims.
Out of the hundreds of cases I have handled, I only had one that involved a claimed overpayment of benefits in those twenty-five years. Overpayments usually happen because an employee who is not eligible receives benefits anyway. Often fraud is involved. But most folks follow the rules, so it has been a rare occurrence in my practice. That all changed in 2021. That is because in 2020 thousands of Connecticut residents applied for unemployment benefits – many for the first times in their lives – after getting forced from work by the COVID-19 pandemic. And in the last several months I have had more than a dozen folks call me after receiving notices from the unemployment compensation administrator that they had been overpaid benefits and that they were actually ineligible for benefits. And now they owe thousands of dollars back. Each case has basically gone like this: After COVID hit, the employees were working in positions in which they faced likely exposure to the virus. Each of the employees fell into a high-risk class based on CDC guidelines either because of age or underlying medical conditions, or they cared for someone who was deemed to be at high risk. In almost every situation, each employee approached the employer and asked for an accommodation – either work from home, provision of PPE, or distancing within the workplace - so that that they could continue working. In each case the employer said there was nothing it could do. So the employees felt that they had no choice but to quit because they were facing potential fatal exposure to a virus that we knew even less about then than what we know about it now. These job losses were occasioned in every case through no fault of the employees. If not for the pandemic, each employee would have continued to perform his work without skipping a beat. Instead, a completely unanticipated event changed the playing field for everybody and these workers faced the choice of deciding between their health and their loved one’s health or continued work. Congress quickly passed bipartisan legislation, recognizing that the pandemic was nobody’s fault, so that individuals would not have to take on greater burdens than the medical and physical ones that the virus was imposing. In April and May last year, lots of folks applied for unemployment, and the administrator almost uniformly found the employees eligible. But then employers, who were suddenly seeing their unemployment tax rates rise, began appealing the decisions in May and June claiming that the employees were not eligible for benefits because their jobs were still available. This, of course, did not take into account the argument that the jobs were no longer safe to do. The appeals got filed, but the unemployment referees did not act on them in a timely manner because so many were getting filed, and staffing had plummeted due to the pandemic. Finally, when vaccinations started becoming available, the backlog started to decline, and all of these previously eligible folks started getting notices that they owed sometimes twenty or thirty thousand dollars in overpayments because they had been getting paid benefits for almost a year. They should not have to pay the money back. They did nothing wrong. The unemployment compensation administration is not equipped to handle this unprecedented problem. It is time for the General Assembly to take a look at this problem and fix it now. |
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