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I am 52 years old. I am not as woke as the up and coming generations, for the most part.
I have been aware of race for as long as I can remember. Growing up in an Irish-Italian Catholic home in Town Plot, we were surrounded by people like us. But my Dad coached basketball at Crosby High School in the 70s, and I was surrounded by Black teenagers from when I could walk and attend practices and games with my Dad. Those guys, my childhood heroes, looked different from me but they were like part of our family. I remember driving with my Dad to pick them up for practice on snow days. Those guys would tease me and my brother, but I could tell they cared about my family and I knew my family cared about them. I usually felt comfortable around the players, but I remember language about race throughout my childhood. There were biases and prejudices, but they were not my living experience. Ultimately, because of my reverence for those players and those teams, I decided to attend Crosby High School because I wanted to be part of a wider community. I could have gone elsewhere. I chose Crosby. I count it as one of the three best decisions I have made in my life. The other two are choosing my wife and getting a dog. I think those early experiences are probably a big reason why my legal career brought me into an area where I challenge discrimination in the workplace. Discrimination never made sense to me. My experience was narrow, but those players could do things athletically that I knew I would never be able to do. Why would we ever want to diminish such greatness because of skin color. It didn’t make sense to me. That’s my background. If you grew up in Waterbury, yours might be similar. Despite my experiences, I will never understand the difficulties that my friends and classmates have gone through when it comes to addressing racial issues. Connecticut has a very robust anti-discrimination statute known as the Connecticut Fair Employment Practices Act. It is even stronger than federal legislation. Connecticut has always been at front of trying to ensure equity among its residents. It is still a battle, but I think we try hard in this state. Last week, the General Assembly passed the Crown Act, and Governor Lamont signed it into law. CROWN is an acronym for Creating a Respectful and Open World for Natural hair. The law has arisen out of the ways that some employers discriminate against employees of color based on hairstyle. In my 52 years, I had never heard of such a thing, but it has been a thing. Those who testified in support of the bill talked about being judged based on hairstyle. One witness said that “I take pride in wearing my natural hair, especially when it is styled in an afro. My natural hair is a statement of me being bold and comfortable in whom I am as an individual. I should not have to alter the texture of my hair for it to fit into what is considered professional and acceptable to society and the workplace.” The new law adds protections against discrimination on the basis to ensure that ethnic traits including hair texture and protective hair styles are not used as a basis for employment decisions. I have always believed that discrimination can only be erased with knowledge and understanding and that it will occur incrementally. The CROWN Act is a step in the right direction.
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Last Monday folks all over the state were getting ready to take a peek at the light at the end of the tunnel. Last Monday was the day that the Lamont administration was set to announce that residents with pre-existing conditions and co-morbidities would be eligible to get in line for a COVID vaccination.
And frontline workers who have navigated this plague with courage, care, and hope were going to finally be able to shed the shackles that have been placed on them by the virus and taste a bit of life with less fear. Connecticut has been a forerunner of national efficiency in delivering the vaccine into arms of its residents. All of us have benefitted to date from the our collective efforts to limit the transfer of the disease. Liberals and conservatives, Democrats and Republicans – each of us have worn our masks and kept our distance. We have taken the reasonable precautions promoted by the doctors and scientists and the vast majority of us thankfully have muddled through. When the books are written about the lives we have led over the last 15 months, Connecticut will likely stand out as a state that got it right. And, in the end, it may turn out that the Governor got it right last Monday, too. But man, it was a punch in the gut for those who were patiently and anxiously awaiting their chances to rid themselves of the fear. The decision prioritizes vaccines based on age; shortly after the Governor made his decision, the first legal claim was filed. And that interests me. The claim was filed by a non-profit organization called Disability Rights Connecticut with the federal Department of Health and Human Services. The organization has demanded that the Department’s Office of Civil Rights order Connecticut to revise its vaccination policy to prioritize folks with underlying medical conditions, regardless of age, who are at increased risk of infection. The CDC has recommended that individuals with medical conditions that put them at greater risk and essential workers get the vaccine ahead of middle aged people. The Lamont administration has countered that 95 percent of deaths from COVID have occurred in the over-55 population. One of the concerns raised by the non-profit is that the new policy is not completely age-based because it makes exceptions to prioritize teachers and child care workers. If indeed the age-based process is the right way to do this, then there would be no need for professional exceptions. The complaint asserts that the policy should also make exceptions for “qualified individuals with disabilities” in order to comply with Title II of the Americans with Disabilities Act. Under the ADA, it is unlawful for the state to use “eligibility criteria that tend to screen out individuals with disabilities” or that fail to “make reasonable modifications to policies and practices necessary to avoid discrimination.” From my review of the claim and the law, I doubt the action will be successful. By its own provisions, the vaccination policy limits eligibility currently to folks over the age of 55 who otherwise do not fall within an exceptional group. Individuals with disabilities who are not otherwise eligible under the policy are not obliged to be granted eligibility simply by virtue of their disabilities. While I think the policy is harsh, and its implementation was mishandled, I am not sure that the legal action against it will be successful. We are just about a month into the Biden administration and still waiting on a COVID stimulus plan that, hopefully, will be the last stimulus we need before we emerge from the pandemic back to a more normal economy.
In the meantime, many of us are getting ready to file income taxes for a year that was extraordinary in many respects. In late spring last year, Congress passed the CARES Act, the key provision of which sent twelve-hundred-dollar stimulus checks to eligible individuals to help cover expenses as the financial crisis began to hit individuals and families. Some folks never received their checks even though they were eligible. No worries. You can recover the missed stimulus check from spring and winter 2020 by claiming a “Recovery Rebate Credit” on your tax return. Either way, the stimulus money that is payable to you is not taxable on this year’s tax return. So no need to worry about withholding from the stimulus money. It is yours free and clear. For millions of workers, 2020 was the first year that many had to apply for unemployment benefits and deal with government payments. In addition to the state and federal unemployment benefits that were paid to workers affected by the pandemic, many workers also received benefits under the federal Pandemic Unemployment Assistance (PUA) program. All of those unemployment benefits are going to be taxable when you file your tax return this year. They are taxable as income, but not as wages. That means that while you will have to pay state and federal income taxes on the money, you will not be responsible for Social Security or Medicare payments on the funds. It’s a small win, but a win nonetheless for employees. But if you are a business owner who received pandemic assistance under the CARES Act through the PPP loan program, there is plenty of good news on the tax front. The IRS has made clear that loan proceeds received under the PPP program are not taxable. That is true even if those proceeds were ultimately forgiven. That forgiveness pumped up the loan value by at least twenty percent. But the government’s largesse did not end there. For those who were able to take advantage of the PPP program, proceeds were required to be used for payroll expenses and some other operational expenses. Typically, those types of business expenses are deductible off total income for the year. In other words, any revenue that is used to pay those types of expenses is not taxable. But the question that arose after the PPP program went into effect was whether or not employers would still be able to deduct the expenses covered by the PPP loan proceeds, given that the proceeds themselves were not taxable. The IRS gave a big win to employers when it decided that not only would the loan proceeds not be taxable, but that the expenses that the proceeds were used to cover could still be written off against revenues. A true win-win for employers. It is not clear why governmental policy would grant tax favorability to businesses, but not grant the same favorability to employees. After all, both have struggled during the pandemic, and it is arguable that commercial enterprises have greater financial wherewithal to weather the financial storm better than most individuals do. Within the next several weeks we can expect another round of stimulus and loan programs to be approved. In the meantime, you can start filing your taxes now. Last summer, in response to the killing of George Floyd in Minneapolis, the Connecticut General Assembly took action by passing Public Act 20-1 “An Act Concerning Police Accountability.”
Since its passage, police officers in the state have raised real and legitimate concerns about the impacts the new law will have on them personally and upon how they can safely perform their jobs. As a community, we should prioritize the safety of our police officers as they fulfill their vital roles of enforcing our laws. While there have been instances where fault can be found with the ways some rogue police officers have performed their work in jurisdictions outside of Connecticut, Public Act 20-1 provided an answer to a problem that evidently did not exist in Connecticut. As someone who has represented police officers for almost twenty-five years, I have seen the toll that the performance of police work can take on individual officers. A lack of public support, sufficient and regular training, and adequate manpower has served to exacerbate low morale while also spotlighting the exceptional work our police officers do even when poorly resourced. In the midst of a pandemic where employees everywhere were told to stay home and hunker down, Connecticut’s police officers were on the front lines facing daily exposures to a virus that has killed nearly half a million Americans. While it has been easy for some to magnify the occasional failures of police officers’ performance in other jurisdictions, few have been as loud in touting the selfless duty performed by police officers all over our state in a time of national emergency. Now, as our General Assembly has once again convened to tackle the legislative needs of Connecticut in 2021, one Senator, Gary Holder Winfield of New Haven has unilaterally determined that the problems with his Police Accountability Law will not be addressed this year. In the meantime, police officers are left to wonder daily if the actions they have been trained to take in protecting themselves and the public will be twisted in order to impose criminal liability or financial penalty upon them. The results from this uncertainty are now making themselves clear. Criminal activity is on the rise. Neighborhoods that demand law enforcement are being left to flounder as officers are told to avoid standard enforcement procedures. The most vulnerable in our communities are less protected, not more protected. There are clear pathways to improving law enforcement in Connecticut without resorting to finger-pointing and blame of those who bravely wear the badge. More and better training of officers would be a good start. But training requires funding and the legislators who have been quick to impose restraints on our officers have not been so eager to open the books to pay for quality training. A clear delineation of the roles we expect our police officers to play in the community would also help to eliminate confusion and uncertainty on the part of the public and our officers as they go about doing their jobs. A cop cannot be expected to be a teacher, a social worker, a psychologist, a nurse, and an enforcer all in a day’s work. It is unfair to the officer and unfair to the public that the officer serves. The problem therefore demands that additional personnel be added to police departments and those personnel be given clearly defined roles in performing the law enforcement function in a community. Finally, the job of police officer is not one that can be expected to be done by a person for decades. For some, five years may be enough. For others, movement from patrol into investigations or administrative management may be necessary in order to keep the officer engaged and fresh. We need to take a look at what our expectations are of the special individuals who commit to entering the field of law enforcement. And then we need to provide them with the support and the tools needed to keep them fit from a physical, emotional, financial, social, and career development standpoint. Senator Winfield, with all due respect, has gotten it wrong. The cops are not the bad guys. They are, and always have been, the good guys. I get calls occasionally from folks who insist on telling me how their HIPAA rights have been violated. By the way, its HIPAA with two “a’s” not two “p’s.” HIPAA stands for the Health Insurance Portability and Accountability Act. It was passed by Congress in 1996. It has thereafter caused pain and suffering for millions of business people and amateur lawyers, not to mention real lawyers, ever since.
The calls that I get go like this. “My boss told me that I need to tell him why I called out sick yesterday. I told him that’s HIPAA, so I didn’t tell him why I was out. Now he says I’m insubordinate.” Yes, that is correct: you are insubordinate. HIPAA is not a safe harbor that commands that medical information never be disclosed by anyone to anyone without a release. If I see you at the doctor’s office and then I run into your boss and tell him that I saw you at the doctor’s office yesterday, I have not violated your HIPAA rights. I am probably not a good friend, and what I have done is at minimum impolite and socially unacceptable. But I haven’t violated the HIPAA. So here’s a primer on what HIPAA allows and does not even address. The so-called HIPAA “privacy rule,” according to the U.S. Department of Health and Human Services, “protects individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and [certain] health care providers who transmit health information in electronic form.” That’s it. But still you will often hear people who have never read the law and its regulations promoting their ideas and theories about how HIPAA applies and prohibits folks from discussing health matters. A big issue that has been coming up this year, of course, involves COVID. For those folks who still are going into a workplace, it becomes quite unsettling when word gets around that somebody may have tested positive for COVID. When the whole COVID pandemic started, I gave the opinion that I believed it was going to be vitally important for all interested parties to be transparent about the disease and transmission in order to ensure faith and confidence in the system that would ultimately be put in motion to keep us safe. But then I started hearing from folks that I represent who would tell me about “rumors” they heard that this person or that person at work had tested positive, or that a family member related to that co-worker had tested positive. They would even whisper when they were telling me about it, as if speaking in a regular tone might subject them to penalties from the HIPAA police. There is nothing in the law that prohibits co-workers from talking about positive COVID tests, except in the case of healthcare workers who gain the information through the performance of their jobs. But for most other folks who do not work in a healthcare job, sharing knowledge about COVID is an important way to track the virus and make sure that we are all making safe choices. HIPAA was passed by Congress to ensure that health care providers and systems not disclose private health information of an individual without that individual’s consent. You don’t want your medical history being sold to an insurance company or a bank. But if you want to ask how a co-worker is feeling, or make a decision about whether you should get a COVID test based on what has occurred at work, HIPAA is not meant to stop you. Remember back in those heady days of December when we believed that 2021 would arrive with promise, cleanse us from the stink of 2020, and make us vital again? We were so naïve.
What I have realized about 2021is that 2020 was a devastation. I’ll paint you a picture. You know how when a tornado hits a community in the Midwest in the spring and the news reporters swoop in to report on the devastation? And the reporters inevitably go to the worst-hit streets in a community and start interviewing the survivors. The survivors are dazed, amazed, distraught, and yet thankful that they survived. They will rebuild they say. They are resilient they say. But then you look at the devastation and you say to yourself, how the heck are they going to rebuild from that disaster. That’s us in 2021. But I guess the survivors do rebuild. I have to guess, because the news reporters usually don’t return a year to two later to let us know how things are going. How are we going to rebuild from 2020? We have no choice, really. We either rebuild, reinvent, and reimagine, or we are not going to make it. I feel like our American ingenuity and swagger is dented. Maybe broken. This is not going to be easy. And I wonder if we have become a nation unwilling or unable to meet the challenge. Our institutions are beleaguered. Our ties and relationships are fractured. Our faith in our leaders has been lost. This I know: Washington and its posturing politicos are not going to revitalize our communities. Hartford’s big spenders are biased toward our crumbling cities. If we are going to come back, we are going to do it street by street, community by community. Our local institutions – little leagues, PTAs, churches, and gyms - are going to help guide us. And, importantly, the small businesses that drive our economy are going to matter as much as ever. After our families, our most important relationships are built and nurtured through our work. Now is the time that leaders of management and employees must work together to ensure that our people have what they need to be well. I have been thinking a lot about what I can do as an employment lawyer and a union lawyer to get this country back on its feet. And I am not going to be of any help if I engage in battles with employers. My role, as I see it, is to find ways to collaborate with employers to make sure that employees are honored for the important jobs that they do, and to make sure that they have the tools needed to do their jobs well. There are essential building blocks for living well. We all need to get our sleep. We need to stay hydrated. We need to eat healthy meals. We need to move every day. We need to be tasked with using our minds and our bodies to get our work done. We need to have agency over our routines. Employers can play a key role in ensuring that employees meet all of these needs on a daily basis. Our strength to get past 2020 is within all of us. Now we have to start along a path that allows us to express what is good in each of us and get it done. 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. 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. |
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