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.
It was supposed to be over by now. Two months ago, it WAS over. And here we are again. Wringing our hands and raising our voices about masks and mandates without any clear answers. Who do we trust? What can we trust? What are our rights? What are our responsibilities? When will it end?
This hangover is lasting way too long. But here we are again confronting our uncomfortable reality. As the kids get ready to head back to school and we get ready to head back to a regular work life, it has become difficult if not impossible to predict exactly what is on the horizon for us in the rest of 2021 and beyond.
So let’s take it one at a time.
First, I would predict that vaccine mandates are going to become more prevalent because the statistical evidence is showing that the greatest bulwark against getting seriously ill from the disease is a full vaccine. In order for the economy to continue to move in the right direction, folks need to be working, going to school, and living their lives. The best way to prevent surges seems to be to increase vaccination rates.
The evidence is also clear that vaccinations do not make us bulletproof. But the more folks are vaccinated, the dangers of the disease seem to dissipate. So it makes sense that employers and governmental agencies are going to have an interest in promoting the vaccine and, in many cases, mandating it.
What can you do if you refuse a vaccine? Well, your options are fairly limited. Courts are not going to step in to protect your “rights.” Absent a religious or disability exception, it is unlikely that you will be able to sidestep a mandate. If you have a union, your union should be negotiating exceptions and compliance requirements. Without a union though, you are going to be limited in your options.
At this point, your employer is not going to be required to allow you to work from home in order to avoid a vaccination even if that would serve the interests of you and your employer.
I have maintained since the beginning of this pandemic that employers need to have open communication with employees about expectations and obligations. I also have maintained that mandates should be limited except in exigent circumstances.
Employees continue to have some bargaining leverage, and, ultimately, the way around a mandate may simply be to call the employer’s bluff. The labor market favors employees right now. If employees refuse a vaccine mandate, employers will have difficult decisions to make. Will they really let valuable employees go, or will they find a work around? I think they’ll find a work around for the valued employees.
I know I would.
After vaccines, the next hot topic is mask mandates. I thought I was done with masking back in June. Last week I went searching for my old stinky mask and bought a 20-pack of N-95s. I think they, like the Yankees, are making a comeback from premature statements of their demise in June.
I hate my mask, and I hate the Yankees, but I think they’ll both be with us through October and beyond. If your boss wants you to wear a mask, you’re going to have to abide. On the other hand, you can still pull for the Red Sox or the Rays or the Dodgers in order to diminish your misery.
If you follow the national news, either by watching the networks, the cable channels, or social media, you might get the idea that America is still a right-leaning nation when it comes to policy-making. Our Supreme Court is definitely a conservative bench even though it still takes the opportunity from time to time to break that mold.
Our Senate is essentially controlled by two moderate Democrats from West Virginia and Arizona, two conservative-leaning states. And our House of Representatives is split just about down the middle.
So the progressive agendas that have been advanced by the left side of the Democratic party haven’t gotten much traction in the Congress.
But the same is not true in the Nutmeg state. Here, our politics are pretty clearly blue, and our elected representatives are overwhelmingly progressive in their views. With a governor who leans to the left and an Assembly that embraces progressive ideas, Connecticut has become a place where progressive ideas get tested out before going national.
This coming October, employers and employees are going to see the law of the workplace change in ways that favor of employee in pursuit of the state’s progressive agenda.
For a lot of you out there, the word “progressive” is a dirty word. But in the most recent case, the new laws make the workplace a little fairer for workers. And for those conservatives out there who work to earn a wage every day, you might like some of these new provisions, even though they might carry a “progressive” label.
We all know that it is illegal to discriminate against workers based on their age. And as workers begin to reach their late 40s and early 50s, the real possibility that a pink slip might be coming for no other reason than age can be really disconcerting. And yet job decisions continue to be made on the basis of age.
Employers have different ways of discovering age. They don’t have to ask you when you were born to figure out how old you are. They can usually tell by asking when you graduated high school. Subtract 18 from that year and they have your birth year and know how old you are.
But under the new law, employers can no longer ask when you graduated. They cannot ask your age, they cannot ask you date of birth, and they cannot ask when you attended or graduated from school.
The limitation applies to an “initial employment application.”
Any employer who has three or more employees must comply with the law starting on October 1.
That means that employers who use a general application are going to have to modify it to take out questions that allow the employer to infer a candidate’s age. And employees that may be concerned that they fall into a potential category for discrimination, should modify their resumes to take out any references that allow age to be inferred.
The idea behind the law is a good one. Even employers who may not have an intention to discriminate may still make a hiring decision based on age - everything else being equal. If there is no way to determine age from an application, then the playing field will be leveled to allow for the selection of the best candidate, which should be favorable for all involved.
Last month Governor Lamont signed legislation requiring employers to provide employees with wage ranges for positions in their companies. The idea is that with more transparency, wage gaps will be tightened and folks will be paid based on value rather than on gender. It's a good idea and, based on studies, seems like it should work.
Employers need to know that the law is going into effect on October 1st, and there are severe penalties for those who don't comply. This week I have written about employer obligations. Fall is fast approaching; if I can assist you or your clients in navigating this treacherous employment environment, please be in touch. I am grateful for the chance to help.
The labor market is red-hot right now. We have an overheated economy presenting itself in many places including the labor market.
Lots of jobs are chasing a few employees, and the result is that employees have lots of leverage in negotiating terms of employment. It is important for employees to assert the leverage they have because right now is a once-in-a-generation opportunity to redefine the parameters of work and make them employee friendly before the market settles.
One thing we have learned during the pandemic is that folks like to work their own schedules whenever possible. The idea of working Monday through Friday from 9-to-5 is so 1990s. These days, the promise of the internet and access to wide-ranging communications have made it possible to do lots of jobs from just about anywhere at just about any time.
And, from what we have seen, employees have embraced this new freedom in large numbers.
A few weeks ago I wrote about the four-day workweek. If you need a refresher, I said that a four-day workweek does not work if we simply cram five days of work into four days.
A four-day work week works when employees are allowed to do their work at their own pace in order to produce a superior product. At least one study has shown that less work and more leisure makes for better workplace outcomes.
Hours matter, but I guess jobs usually come down to money.
In June, Governor Lamont signed into law “An Act Concerning the Disclsoure of Salary Ranges.” The new law, which goes into effect on October 1st, is part of the state’s continuing quest to close the pay gap caused by gender bias.
The law will require certain employers to provide job applicants with a “wage range” for the position for which the applicant is applying. The range must be provided when the applicant requests it, or when an offer of compensation is made to the applicant (whichever comes first).
The law by itself adds greater leverage to an employee seeking work and will allow an employee to use that range to negotiate more favorable terms in other areas such as hours and days of work, time off, and schedule security.
The law does not just apply to applicants, though. It also applies to current employees. It requires employers to provide its employees with a wage range for the employee’s position when the employee is hired, when the employee’s position is changed, or when the employee requests the information.
Employers need to be prepared to provide this information, and they should be working on it now. That is because an employer who fails to comply with the law will be subject to legal action for damages including payment of the employee’s attorney’s fees and costs, and for punitive damages.
A “wage range” is defined under the statute as “the range of wages an employer anticipates relying on when setting wages for a position.” A wage range could be defined by a budget for the position, actual wages paid for the position, or a pay scale that is in effect.
Now is the time for employees to start demanding to know their worth because they have leverage to do so. Employers need to be aware of their new obligations and adjust if they are going to fill important positions in their companies.
I was an Economics major at Fairfield University more than thirty years ago. I enjoyed the study of economics, particularly looking at rational and irrational behaviors in markets. I also learned a lot of basic concepts that help me today as I negotiate collective bargaining agreements.
I remember spending a lot of time on matters of inflation because we still were not too far removed from the Carter years of stagflation, gas lines, and staggering interest rates. But not too long after the Carter malaise, Paul Volcker took over the reins of the Federal Reserve. It seemed like policy makers got a stranglehold over inflation and inflationary pressures have been pretty stable since the mid-eighties.
Suddenly we have seen a couple of months of price growth in the five percent range, and we are hearing about inflation again. There is lots of liquidity in the market right now and prices are rising. Our buying power is declining as a result.
In the midst of increased government spending as a policy initiative to revive the post-Covid economy, California passed a law last week giving some residents a guaranteed basic income.
The guaranteed basic income, one of Andrew Yang’s main arguments in his presidential campaign, has been floating around as an idea over the last several years as the wage gap has widened and squeezed the middle class in America.
Under California’s law, which passed the legislature with bipartisan support, 35 million dollars has been set aside to be used for monthly cash payments for some pregnant people and other young adults transitioning out of the state foster care program.
The program is funded through tax revenues and there are no restrictions on how the money can be used by recipients, differentiating it from other entitlement programs like “food stamps” or housing assistance.
Monthly payments will range from $500 to $1,000 and will be administered by local governments and organizations who will apply to the state for the funding of their local programs.
The program implementation comes on the heels of recent federal programs designed to alleviate financial pressures associated with Covid. And the handouts have not been limited to one political party.
During the Trump administration, the federal government approved a plan to pay unemployed individuals an extra $600 a week on top of their state unemployment benefits. In addition, the Paycheck Protection Program made tens and hundreds of thousands of dollars in cash grants available to businesses without any required payback.
These programs played a major part in keeping the economy going while production and service provision slowed to a crawl. It is likely that the success of those Republican initiatives has helped support the recent programs coming out of Democratic state houses and the federal government.
There can be no doubt that putting money directly into the pockets of consumers, particularly those at the bottom of the American class structure, helps prime the economic pump. But the new policies are helping to create inflationary pressure unlike any we have seen in decades.
It seems like something’s got to give fairly soon. The question is whether or not the economy will be able to continue improve as money continually gets pumped into it. California’s experiment will be important to watch as policy makers attempt to address wage inequality and the recovery from Covid.