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Last Wednesday was, as predicted, wild. For those of you who have ever been to the Capitol, the idea that a mob could assault it and overrun it never really seemed possible; however, there it was in living color on the screens we were glued to last Wednesday afternoon.
So what will be the fallout? I think the politics will simply play out as they always do, with posturing, distraction, and distance. I do worry that, as a country, we seem to be moving incrementally away from our democratic ideals. I have some theories on how to fix that. But I don’t want to share them here. Instead, I have been thinking about how this political craziness is affecting our relationships and our workplaces, and how it is likely to keep folks like me busy. Unlike past mobs and riots that have happened during our American history, much of this riot was caught on film and posted on social media and other websites. The actual perpetrators of the crimes that occurred are actually readily identifiable. It goes without saying that insurrection is bad for business. Regardless of your politics, my guess is that folks who do legitimate business do not want even minimal association with the taint of insurrection or wild conspiracy. Now we all know that, as Americans, we have a First Amendment right to speak freely on matters of public concern. It is the cornerstone of our democracy. But when speech becomes a riot, the protection ceases. But the First Amendment only prevents the government from taking action against you because of the speech you have used. The First Amendment does not protect you from an employer deciding to fire you because you were dumb enough to film your criminal behavior and post it to the world. So by Thursday afternoon, stories were already hitting the wires about regional and national employers terminating employees who participated in the riot that occurred on Wednesday. In fact, one of the terminated employees participated in the riot and vandalism of the Capitol while actually wearing his identification badge from his employment. That probably was not the free advertising the employer was looking for. He was fired by the end of the day. But, you may ask, what about his right to “protest” and “speak freely.” Ah, yes, he does have those rights. But his employer is not obligated to entertain those rights to its detriment. In that same vein, a University of Tennessee-Chattanooga assistant football coach was fired last week for posting disparaging commentary about Stacey Abrams. Sure, he has a right to speak freely, but that does not prevent his employer from firing him if that speech puts the employer in a bad light. I expect that the political battle lines that have been drawn are going to cause a great deal of economic pain for those who choose to use social media forums to express their viewpoints. Where threats or slurs are delivered, or violence is advocated, those doing the posting are going to not only have to face potential criminal culpability, but also the likely loss of employment. My advice is this: take a breath and sleep on your commentary before hitting send. Decide if you are willing to lose your job over your words. Ask if your opinion is that important. Don’t drink and post. Then, and only then, should you engage with your community about your political ideas.
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Yesterday I was driving in my car when it suddenly hit me that when midnight strikes on New Year’s Eve, things are not suddenly going to go back to normal. When Joe Biden takes the oath of office in a little less than three weeks, we will not be emancipated from our seasons of despair that enveloped us over the last year.
There is still much to do and a lot of difficulty awaiting us. I think all of us have been anticipating the end of our grueling 2020. But we are going to enter 2021 with the stink of 2020 still embedded in our clothing and stuck to our skin. There is no magic wand. We will still have to rely on our wits and our resiliency. We will still have to lean into the discomfort and find our ways forward. So these are my hopes for 2021 (in no particular order). I hope that our kids can return to school safely and begin the process of learning and growing again in a nurturing environment among friends and mentors. I hope that those students who are on the cusp of graduating can enjoy their final few months celebrating with classmates and receiving the honors that come with a job well done. I hope that our leaders are given the tools and resources necessary to allow them to distribute vaccines in a fair and reasoned way so that by Independence Day we have achieved herd immunity. I hope that as Americans we can come together as a single community with a shared goal of defeating this COVID-19 virus, regardless of political persuasion, so that we can begin to live the lives we choose to live. I hope that politics as entertainment becomes a distant memory, and that we return our focus to the people we love, the matters we care about, and the delights that life brings to each of us. I hope that the Supreme Court becomes something we hear about, not something we care about. I hope that soon we will be able to travel again and experience all of the interesting foods, folks, landscapes, and climates that make life worth living. I hope that Zoom becomes a convenience to enhance our lives, and not a necessity that commands our lives. I hope that restaurants come roaring back with creativity, vision, and love, and each of us gets the chance to savor the simple pleasure of sharing a wonderful meal with friends. I hope that this century’s decade of twenties roars like the last century’s decade of twenties. I hope March Madness is the greatest March Madness ever. I hope that when the umpire announces “Play Ball” this spring that the stands are filled to capacity. I hope that those who have lost the loved ones they have treasured can mourn the loss with families and friends in a way that honors the lives that have passed. I hope that the air stays as clean as it was in March and April. I hope roads get converted to boulevards of green space. I hope that the dogs we adopted last spring bring years of love and companionship while we toil in new ways at home. I hope that we have learned about what is important and what is just noise. And I hope that we all have a Happy New Year. 2021 is going to bring some big changes to employment in Connecticut.
The biggest, which you probably heard about at some point, is the beginning of the paid family medical leave act. Under the new law, all employers in the state, regardless of size, will have to begin contributing to a state fund that will ultimately allow eligible employees to begin receiving paid leave for up to twelve weeks starting in 2022. Beginning with the first payroll in 2021, employers will have to withhold .5% from all employees’ pay. On every thousand dollars earned, fifty bucks will be sent to the state to help create the fund. A nickel here, a dime there and soon we’re talking about real money. The good news (wink-wink) is that the funds will be administered by the Connecticut Paid Family Leave Authority. What could possibly go wrong? A government agency handling the money you worked for - sounds perfect. The paid leave law applies to all employers. Under the current FMLA in Connecticut, only employers with 75 or more employees had to provide unpaid leave to eligible employees. That provision is gone now. Beginning on January 1, 2022 (there will be one year of contributions to build up the fund before anyone can take advantage), employees will be able to take up to twelve weeks of paid leave annually for any number of reasons. None of them include golf or a trip to the beach. For now anyway. Under the law, an employee can take the paid leave if he is experiencing a serious health condition, caring for a family member with a serious health condition, caring for a new child, dealing with an emergency due to a family member’s active military service, serving as an organ or bone marrow donor, or being a victim of family violence. Family members to which the law applies now includes siblings, grandparents and grandchildren, in-laws, and “individuals related by blood or affinity (affinity?) whose close association the employee shows to be equivalent of those family relationships.” So, in reality, what does this all mean for employers? Well, first of all, you can count on some employees taking a twelve-week summer vacation while you hold their job. Think of all the folks your employees may have an affinity for who just might be suffering from some illness or other. So prepare yourself. For conscientious employees, congratulations. You are now making a charitable contribution of about fifty bucks a week to a fund so that your freeloading co-workers can take a twelve-week paid vacation. No worries, your reward will be at the pearly gates. You hope. As a Democrat and a union lawyer, you would think this would be my cup of tea. It’s bitter tea. I can’t see taking money out of your pocket to pay for a benefit that you are unlikely to use and which is more than likely to be abused by a discreet subsection of society. We know who they are. They’ve been doing it for decades. For some it is the American way. It’s just not our American way. The way to handle the potential, catastrophic consequences of long-term illness is through insurance. If you want it you can buy it. If you’d rather take your chances, that’s your choice. When I started working, I began paying for a disability policy. My choice. It wasn’t easy, but I did it for me. I didn’t need the government doing it for me. I don’t consider myself an apologist for police officers.
I have represented police unions for almost 25 years. They have put food on my table and my kids through school during my career, so I can acknowledge that I may have a bias. But in my 25 years, I have seen police in their true skins, warts and all. I don’t call them heroes. Some of the work they do is heroic and selfless. But they are human like you and me. I call many of them my friends. But I have also been called on to work with and defend officers who I would never voluntarily associate with ever again in my life. There aren’t many, but there are a handful. What I have learned over my career is that they are not much different from you and me. I think they have an extra bravery gene. Also an extra cynical gene. As a group, each of them can make dumb mistakes. But they are also willing to take risks without regard to the harm that may come to them personally. They, like you and me, are a complex lot. What brings me to write about police today is this controversy that is going on in our capital city, Hartford. According to news reports (I have no insider information), a detective in the major crimes division of the detective bureau texted out a message to some of his fellow officers earlier this year inviting them to pitch in twenty bucks as part of a “dead pool.” I have heard about these macabre games before. They create discomfort, because they invite us to confront mortality in a way that is generally not socially acceptable. But if you think about it, police officers are called upon fairly regularly to confront mortality and death in a way that is not socially acceptable. For a great majority of us, we never have to view scenes of violence, mayhem, and death in our lives. Police officers do that for us. We are fortunate because the scenes that police have to confront in dealing with the most gruesome and vile parts of society for us, are mentally incomprehensible to most of us. We know people die violent deaths because we read about them or see them fictionalized on screen. But for police, violence and death are daily realities. Maybe not every day in every town, fortunately, but enough that they have an impact on health and well-being. Anyway, according to reports, the Hartford detective at the center of the Deadpool controversy solicited wagers about the circumstances of the first homicide in Hartford in 2021. We have certain standards and norms in our society. One of them that most of us embrace is that death should not be trivialized. And neither should life. But we all know that in the performance of their duties, members of our police forces see lives trivialized on a regular basis, and lives lost over tens of dollars, packets of drugs, and minor disrespectful slights. In reality the police do not trivialize life and death, society does by its actions. In my career, I have listened to the public demand that cops toughen up and deal with the horrendous crime and loss they see every day. We give them limited tools to do so. Heck, we don’t even give them full workers compensation benefits to deal with the psychological toll that their jobs demand. Hartford politicians want to fire the police officers involved in the dead pool. I say we send them a note of thanks and ask what we can do for them to help them serve us better. There was more good news on the COVID front last week. It looks like vaccine distribution is going to start in the United States before the New Year, and the high-priority candidates will start receiving their inoculations. There is hope that by summer most of the American population will be immunized and that, finally, we will have turned the corner on this awful disease.
With that news we began seeing stories about whether or not employers could require employees to get the vaccine. It is an interesting question, but impractical. I view the issue differently, and I think more practically. Why would an employer want to mandate an employee put something in his body that the employee does not feel is best for him? And by the same token, why wouldn’t an employee want to get the immunity that apparently comes with a vaccination? We are Americans, and we value individualism, freedom, and independence. When someone tells us to do something against our will, we tend to recoil and prepare to fight. It is in our nature. But like most issues in the real world, there is a middle ground. This is not simply a question of “to mandate or not to mandate,” as Hamlet might paraphrase. This vaccine question is a question of interests. And where interests are involved, a negotiation should follow. It would be foolish, in my opinion, for an employer to mandate that an employee get a vaccination at this point, even assuming that the employer has the legal authority to do so. That is because forcing an employee to do something against his will, at the risk of losing his job, will lead to anger and distrust – not just from the affected employee but from other employees as well. And that is simply not good for business or relationships. The better course is for employers to encourage vaccinations if that is in the employer’s interest. And it is better for an employee to know exactly what his obligations are with respect to vaccinations and employment. A discussion is therefore necessary between the parties. I envision a reasoned negotiation going this way. An employer can encourage employees to get vaccinated in a couple of ways. First, the employer can provide job protection to an employee who gets vaccinated and subsequently becomes ill from side effects or from COVID itself. This would include paid time off to deal with side effects or illness. On the flip side, the employer can implement a policy that employees who do not get vaccinated and subsequently become ill with the virus, will be required to take a leave from work that will require use and exhaustion of paid time off if available, and unpaid if not available. For those employees who do not qualify for FMLA leave, an employer can guarantee FMLA protections in any event to those employees who miss work because of COVID-related illness if they get the vaccination. From the employee side, employees should speak to employers now about the employer’s policy regarding vaccinations. I recently negotiated language into a collective bargaining agreement specifically stating that employees could not be mandated to get vaccines absent a statutory requirement under the law. I said from the outset that COVID would require clarity and transparency in the employment relationship. Employers and employees would need to be open to discussion as we all navigated this unprecedented time. The same remains true now as we are on the doorstep of eradication. Now that we have finished off the last of the turkey leftovers, we are fully in the holiday season. This one is not going to look like others. Next year we’ll be back in form, though. But for now, like we have done all year, we’ll have to adjust.
I saw a vodka ad recently. The ad was off-key because it showed folks at a festive party, dancing, talking closely and generally having a good time in a holiday party atmosphere – all sparkles and lights. We all know that it is an unlikely scenario this year. There will be few get-togethers. There won’t be sequins and appetizers and dancing. There will still be drinks served. There have been plenty of drinks served since March. But it won’t necessarily be festive. This will be the year without holiday parties. And while many folks dread the idea of a workplace holiday party, even introverts get excited to see friends and associates at a holiday gathering every year. It can be good for morale. It allows leaders to recognize the hard work of employees and allows everybody to reflect on a job well-done over the last year. This year, holiday attaboys are probably needed more than at any other time during most of our careers. We showed up. We innovated. We made needed changes. We found new ways of doing things. We adapted. And we’re still standing. So without the typical party, how will employers show gratitude, and how will employees take it in? The CDC has some advice. The Center’s best advice is to avoid gatherings at all. Alternatively, the CDC still defines outdoor dinner with family and friends from your community as a “moderate risk.” In these instances, social distancing and mask-wearing still must be a priority. Plenty of hand sanitizer should be on hand. If there will be food or beverages served, attendees should be encouraged to bring their own. If food will be served, a single person should be tasked with doing the serving to limit exposure. The CDC has cautioned that attending large indoor gatherings with people from outside your household is a “higher risk activity” which can be made worse by the use of alcohol. These types of events should be avoided. As an employer, it makes sense from both an economic perspective and a liability perspective to avoid these types of events – at least for this year. Losing a good chunk of your workforce due to a “super-spreader” holiday party could devastate your business just as we are about to emerge from the pandemic (hopefully in the spring). Instead, it might make sense to think about hiring a performer to put on a show for your employees via video-conferencing. Hiring a chef to teach a cooking class and sending appetizers and a bottle of wine to your employees while they watch the show could be a nice idea. Bringing in some stand-up comedians to perform for your employees would also be a great way to get everyone laughing together in a time when laughter has been hard to come by. These shared experiences will go a long way toward building camaraderie even in a time when it is hard to do. 2020 will always be remembered as a year unlike any other. But as we have already proven, we are highly resilient, and we can find new ways to celebrate. I was planning my schedule for the upcoming week a few days ago, and I said to the person that I was speaking to that we probably should stay away from Wednesday since that is a big travel day. Then it dawned on me: like so much else that has changed this year, there won’t be much travel on Wednesday because COVID has put the brakes on it.
Every time I think about what COVID has taken away, it stings a little. The breadth of lost lives is far too overwhelming to consider. It is an American tragedy. For those of us who have been lucky enough to escape the life and death impacts of this horrible disease, the pandemic has still taken away many of the joys of living. I don’t need to recount them for you. But suffice to say that our holiday season will be clearly subdued this year as we await the miracle vaccines that appear to be ready to make 2021 a better year for all. This coming week though, you are likely to hear from your co-workers and supervisors about what their Thanksgiving plans are. More than just small talk, however, these discussions are really going to be substantive and matter. That is because your plans for Thanksgiving are going to have impacts upon those that you work with for the next several weeks. If you plan to travel or gather with friends or family, your chances of exposure to the virus will be heightened. On your return to work, your chances of infecting co-workers, clients, or vendors will necessarily increase exponentially. Discussion of your plans is not simply a friendly discussion topic this holiday season. It is, in fact, a matter of life and death for some. So a question that will arise is exactly how invasive can your employer be in trying to discern your holiday plans. And can your employer require you to divulge the specifics of how you plan to spend your holiday and who you plan to spend it with? Can your employer require you to quarantine if there is an increased risk of exposure to you simply by congregating with relatives and friends over the holiday season? This holiday season, it has been reported that many employers are encouraging employees to spend the holidays simply at home with the immediate family members who live under their roofs. Others are asking employees to pledge to avoid contact with non-family members during the holidays. And some are even offering to pay for time off for those employees who must travel or visit with relatives they do not usually see. Overall, employers have been intent on delivering the message that this autumn and winter will be a volatile time for virus exposures and that the best way to avoid infection is by limiting exposure to others as much as possible. While many of us have been hopeful that we are “turning the corner” on the virus, the facts show us something quite different. Infections are up and hospitals are nearing capacity again. Before the vaccine arrives in numbers sufficient to allow us to get back to a sense of normalcy, we are going to have to weather the coming winter storm. Employers are intent on keeping their workforces healthy so that we can make it through to the end. Expect to continue to hear messaging from your employers about maintaining safety and avoiding large groups as we head into the new year. Back in the eighties when I was growing up, few people knew who was on the Supreme Court. Thurgood Marshall was a famous justice because of his work on civil rights prior to his appointment. He was the first Black jurist on the court, and he was a lion.
Many people had heard of Byron Whizzer White, not so much because of his jurisprudence, but because he had once been an All-American football player at the University of Colorado in the 1930s, finishing as a Heisman Trophy runner-up in 1937, and then moving on to a successful career in the NFL before joining the Navy during WWII. In 1981, soon after he was elected President, Ronald Regan appointed Sandra Day O’Connor as the first female Justice on the Court. There was never much hand-wringing or shouting about Supreme Court Justice appointments back then. Nobody cared all that much, and we all suspected that the Justices ruled in the best interests of the country. Things started to change a bit in 1987 when President Reagan nominated Robert Bork to a position on the court and he was rejected as a conservative ideologue by the Democrat-controlled Senate. That was really the first time average Americans took notice of a Supreme Court nomination. The appointment process became politicized in the eyes of the general public. Appointments became an “us” against “them” prospect, and battle lines got drawn. Slowly the Court was no longer viewed as a neutral apolitical branch of government above the political fray, but rather as an ideological branch wielding power beyond its presumed authority. By the nineties, we started hearing concerns about judges “legislating from the bench” when they issued decisions that ran afoul of the politics of the day. Suddenly the message started to creep into our understanding that unelected judges were making law, rather than interpreting it. We started learning about “originalism” and hearing debates about whether the Constitution is a living document or a static document. It was generally pointed out that liberal judges made up the law while conservative judges followed the law. This was all just messaging from spin doctors and special interests, though. My experience has been this: in those difficult cases that require exposition by appellate courts, the law is never really clear. Interpretation of ambiguity, and determination of legislative intent becomes vital. Judges use the various tools at their disposal to try to discern what an imprecise or intentionally ambiguous legislature could have meant when it passed a law that requires interpreting. If the law were clear, it would have been unlikely to have made it to an appellate court in the first place. When judges issue opinions, I suppose one could always argue that they are making law or legislating from the bench. In reality, what they are called upon to do is discern what legislatures meant. I may not agree with the politics of those who serve on the bench. But I still generally trust their judgments, and I believe that they use their power to interpret and apply law in ways that are just. There is a so-called 6 to 3 conservative majority on the Supreme Court today. And our news sources would have us believe that means that conservative principles will now be advanced from the bench at all costs. I am not so sure. I still put my faith in the people and the institutions, and so far that faith has been well-placed. I have noticed that since the COVID pandemic crisis began, the nature of my business has changed. I am getting lots of inquiries about employee and employer rights in dealing with the pandemic.
What can employees do if they are forced to quarantine? What if they are caregivers for someone who has to quarantine? What kind of health information has to be shared with an employer? What kinds of steps must an employer take to keep his employees safe? How does federal CARES Act legislation apply in the workplace? When COVID first became part of our daily lives, it was all new, scary, and its impacts were confusing. Today, it remains scary, but we are learning to live with it, to adjust to it, and to continue to live our lives albeit in a different way. And while I have written a lot about some of the good changes in life that have resulted from the pandemic, I still look forward to getting my former life back – one where I am not restricted or constrained in living because of the virus. I may have learned better ways to live my life, but I still want to have the freedom to see and experience life in all of its beauty and abundance some day soon. Because our world changed so much over the last nine months, many of us became more considerate and more grateful for the good things that we still have. For those of us who continued to be able to go to work every day and earn a living, having a regular paycheck when so many of our neighbors were suffering without a paycheck was reassuring. For those who may have lost their jobs, many took the opportunity to pursue entrepreneurial dreams in a world that began looking for answers to new questions and problems. But given the uncertainty that existed relative to work and business relationships, many folks became simply happy to have work and business, and they started to let problems slide rather than confront them. Whereas mistreatment in the workplace may have been addressed in the past, now folks were willing to let it go because they did not want to “rock the boat.” Employers who were making decisions about how to retain their workers were looking the other way when employees failed to show up or gave less than optimal performance. The new world threw us for a loop and it changed our behavior. But this is the world we live in now. Things are not going back to normal. For those folks who have chosen to wait before understanding or pursuing possible claims of harassment, intimidation, or discrimination in the workplace, time is rushing by and soon the limitations period will be up for them to bring a claim. Governor Lamont suspended some statutes of limitation by executive order when the pandemic began, but there are real legal questions about whether or not he had the legal authority to do so. For those folks who have waited to bring a claim, either out of concern about rocking the boat; fear of meeting with a lawyer in an office; or worry about paying for counsel, they need to know that time and limitations periods wait for nobody. A new year is about to start. If you have a legal matter that needs to be addressed, the time to wait has passed. It is time to contact a professional and get to work on it. You can call me now at 888-579-4222 or email me at Eric@thelaborlawyer.com. Let's talk about the workplace issue that you have been putting off for too long. I am writing this as the first snowfall of the season is blanketing my neighborhood. It has got me thinking about the holidays, the election, and what our first and hopefully last COVID winter is going to look like.
Like many of you, I have fatigue about the pandemic. I would like to think that it is not dangerous. I would like to think that everything is fine. I would like to think that I really can just live my life as usual. But I don’t believe it. And so I am living my life like almost everyone else. Tentatively, with hints of bravado from time to time, and moments of regret at other times. My life as an adult has run in a rhythm. I have regular activities that I enjoy at different times of the week, month, and year. Those are gone now for the most part, except when the bravado strikes. Still, I am lucky by any standard. I work from home. I limit my exposure to potential COVID carriers. I am surrounded by people I love, and I can continue to make a living. Nobody that I care about has suffered any illness associated with the virus. But I am not optimistic about the winter. Over the next few days, I expect that Governor Lamont is going to tighten up restrictions associated with COVID as the infection rates continue to rise in the state. Connecticut has done a great job in preventing the spread, mostly because almost everybody, regardless of politics, class, or community, wears a mask. It is a credit to us Nutmeggers really. We have managed to keep each other safe for the most part. I suspect that the state is going to impose tighter restrictions on travel, even during the holidays. Now, many will say that nothing is going to keep them from seeing their cousins or grandchildren or parents. However, enforcement will come at the employment level. If you leave the state, you will likely have to report that to your employer. And if you fail to report and jeopardize the health and safety of your co-workers, you will likely suffer disciplinary consequences up to termination. So there is great risk, not only to your health, but to your job security if you defy governmental restrictions on travel. By now we should be in a place where rapid testing is readily available. Structures and plans for the autumn surge should have started in March. Sadly, they did not, so here we are faced with the same problems we faced in the spring. Not enough testing. Not enough tracing. And, as a result, restrictions on our freedom of movement. If you end up facing restrictions at work as a result of travel, you will want to get answers to important questions. Will you be able to use paid time off if you are forced to quarantine? Will you be able to avoid a state-imposed quarantine if you get a timely negative test? There are no legal requirements that you be paid for quarantine time. However, you may be eligible for paid quarantine time under the CARES Act for up to 80 hours if you are subject to a governmental order to quarantine or you are experiencing symptoms of COVID. Let’s be honest: the pandemic is terrible. But we all have to do our part to keep our communities safe. If that means that we will have to forego travel this coming holiday season, then it is the price we are going to have to pay. It is a patriotic responsibility. |
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