|
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.
0 Comments
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. There is an old adage in politics that folks vote with their pocketbook.
I am not so sure that is as true as it might have been once before, but I still think that most people would prefer to have more money in their pockets rather than less. This year’s presidential election has been fought on fields that might not be directly related to pocketbook issues, but in the end, after folks think about what they are afraid of when they vote, they next think about what they want. I practice labor and employment law for a living. It has been my calling for 25 years. So when I consider who is on the ballot, I inevitably think about how my vote will affect me, my family, my business, and my clients. Since almost all of us work, this election is likely to have impacts on each of our work lives. This is what I have discovered about the presidential candidates and about how they are likely to govern relative to workplace issues. 2021 is going to present unprecedented challenges to the president, whoever it might be. That is because in the beginning of the year we are likely to still be in the midst of a pandemic, albeit hopefully near the end. The federal government to a greater or lesser extent will play a role in helping folks get to the other side of the pandemic. President Trump has focused his efforts on keeping the economy open and getting kids back to school so parents could get back to work. On the other hand, former Vice President Biden has placed an emphasis on having the government assist with increased testing, across the board mask-wearing, and investment in local governments and boards of education to allow remote learning to continue where needed in order to shut down the spread of the virus. Moving forward, by mid-2021 there will likely be a hangover from the pandemic with businesses needing governmental assistance to get back on their feet or to adjust to the marketplace. Both candidates have embraced the idea of governmental stimulus to assist businesses in getting back on their feet. How the details are handled remains up in the air although a bipartisan plan similar to the original CARES Act would likely help a huge number of people sooner rather than later. Vice President Biden has supported a nationwide increase in the minimum wage to fifteen dollars an hour. President Trump has not come out in support of an increase and congressional Republicans have consistently voiced opposition to an increase out of concern that such an increase would drive down hours for workers and lead to fewer opportunities. One result from the pandemic is that the idea of unions have become more attractive to workers. Many workers felt disempowered when it came time to deal with health and safety issues associated with the pandemic. Still, union organizing remains a difficult and daunting process. Vice President Biden has supported legislation to make organizing easier while President Trump has insisted that no changes are needed to current laws. Finally, the pandemic has placed a premium on leave availability for workers. The CARES Act was the first piece of federal legislation to mandate paid leave for workers. The idea was popular with workers and it may gain momentum in coming legislative sessions. President Trump approved a measure that took effect this month allowing paid parental leave for federal employees. He has endorsed the idea. Back in March, when the pandemic began taking a toll on cash flow and wages, the federal government actually came through with the CARES Act. More than half a billion dollars available to small businesses through the PPP loan program.
Over five million businesses took advantage of the program to shore up their capital needs and ensure that employees continued to get paid while businesses slowed or shut down completely. The key to the loan program was that if the funds were spent mostly on wages for employees, the loan would be entirely forgiving and essentially turned into a government grant. Here we are more than six months later, and it is coming time now to reckon with repayment or forgiveness of those loans that were such an important lifeline to so many businesses at the time. Typical of these large governmental programs, there has been a disconnect about informing borrowers how to obtain loan forgiveness, or if not forgiven how and when to start repaying the loans. The SBA and the treasury are trying, though. Last week the SBA released a simpler loan forgiveness application for loans of $50,000 or less. The application is just two pages long and allows for faster processing of the forgiveness claim for borrowers. It can be found on the Small Business Administration website. It is Form 3508S. The SBA also released Form 3508EZ in June which allows a certain subset of borrowers to use the EZ form to seek forgiveness. Borrowers who are self-employed and who had no employees at the time of the loan application are eligible to use the EZ form. Also, most employers who did not reduce wages of any employee by more than 25 percent during the covered period of the loan, and who did not reduce the number of employees during the covered period will be able to take advantage of the EZ form. When it comes time to apply for forgiveness (it may already be time for some of you), you will need to have lots of information available. You will need statements of wages, commissions, and other compensation paid to your employees. Any payments made for paid time off must be calculated. Any payments that you as an employer made on behalf of employees for benefits like insurance premiums. Any retirement benefit costs that were paid by you, and any state or local taxes assessed based on employee compensation. There is no forgiveness for payment of wages in excess of an annual salary of $100,000 for each individual employee. You should also remember that payments to independent contractors does not count as forgivable wages on your employer payroll. You will need to know your “covered period,” which may be the 168 days following the Loan Disbursement Date. You can find this date on your loan documents. Otherwise, it is the 56 days following loan disbursement if your loan was received before June 5, 2020. You may have some employees who were furloughed initially who subsequently refused to return back to work after a bona fide offer of a return was made to them. In those instances, the government will give you an exception so that you will not be penalized for reducing your work force because an employee refused to come to work. You should be able to make this claim on the loan forgiveness paperwork. Like many government programs, the paperwork can be daunting. If in doubt, you should consult with a professional who can help you avoid the pitfalls. It’s October. I am sort of enjoying the baseball playoffs. By “sort of,” I mean it is a distraction from the all of the daily disasters breathlessly reported on the news channels. And the quality of baseball, when batters actually make contact with the ball, is pretty good.
The game has changed a lot though since I first came to love it when the Swingin’ A’s and the Big Red Machine controlled October in the ‘70s. As an example, last Tuesday the Tampa Bay Rays used four pitchers to strike out 18 Yankees. There are 27 outs in a major league baseball game. Eighteen of them were recorded with a “K” in the scorebook. And the Yankees are supposed to have one of the most dominant lineups in baseball. All those “Ks” are boring. So while I enjoy the distraction, it is not as distracting as it could be. Like lots of things in America, the game has gotten worse not better. But like I love my country, I still love the game. The game is going through another major change in the coming months. The entire minor league system used to develop talent for the major leagues is being modified. These new minor leagues are not George Barnhardt’s and Duke Delpo’s Waterbury Dodgers. There was no minor league baseball in 2020 because of the COVID-19 pandemic. When minor league baseball resumes in 2021 hopefully, the design of the system will be much different. 42 of the current teams will no longer be affiliated with major league partners. The number of leagues will be streamlined down to four. And the minor leagues, like the Eastern League and the Pacific Coast League will no longer be operated independent of Major League Baseball. Essentially, the system will go from independent organizations and leagues to one that looks more like a franchise system operated by major league baseball who will provide all of the operational and administrative systems to the minor league teams. Major League Baseball will have complete control of the entire system. The idea is that through this new system, minor league teams will be able to generate higher revenues. It could also lead to higher prices as MLB owners try to dip their hands into the pockets of minor league operators. What will this mean for players? It is hard to say. Last week the U.S. Supreme Court granted a group of minor league players “class action” status to allow them to pursue a claim that during the years they spent toiling in the minor leagues, they were paid less than minimum wage. Minimum wage laws are extremely punitive to those employers who fail to comply, even baseball teams. The lawsuit began in 2014 when a group of minor leaguers sued major league baseball arguing that their annual pay of less than $7,500 violated wage statutes. Major League Baseball had used its big lobbying machine to try to convince Congress that wage statutes should not apply to ballplayers. The effort failed. It turns out that most minor leaguers work fifty to seventy hours per week and were earning wages below the poverty level. They are not paid at all during spring training which lasts six to eight weeks. The class action status poses a problem for Major League Baseball. Because the wage statutes are punitive, MLB could be on the hook for three times the actual damages owed to players. There could be as many as 15,000 players in the group that are eligible to collect damages. The case bears watching as we meander through the long winter on our way to a new baseball season. MLB owners faced with huge revenue shortfalls this past season could be looking down the barrel of a loaded gun. When I came out of law school, I did not know that I was going to be a labor and employment lawyer. I wanted to work in Major League Baseball. I didn’t have necessary pedigree, though, so I moved on to Plan B fairly quickly.
It turns out that Plan B was a pretty decent plan. I took a job at a good law firm, learned my craft from some really good lawyers, and then soon found my niche in labor and employment law. Over 27 years of practicing law, I am grateful for all the opportunities the practice has given me. Because my practice is focused on labor and employment law, whenever an opening occurs at the Supreme Court, I tend not to get caught up in the typical debates over abortion rights, the Second Amendment, or the politics of the appointment process. Instead, I am interested in trying to understand how the potential Justice views labor and employment issues. Over the last week or so, President Trump’s nominee Amy Coney Barrett’s views on employment issues have come in to clearer focus. Last May, Judge Barrett was in the majority on a decision which found that “attendance” is an essential function of a job. The case involved a municipal employee in Chicago who was absent fifty times in a year and who claimed that her absenteeism was a “reasonable accommodation” for her disability. She was fired for excessive absenteeism notwithstanding her disability. The court said that she could not perform the essential functions of her job if she did not show up for work and dismissed her case. However, this view of the world may have changed considerably since COVID hit. We now know that attendance in many instances is not an “essential function” of many jobs. This area of the law is going to evolve in the next few years. While Judge Barrett has disfavored claims of disability discrimination generally, it is not clear how she would decide a case after the world of work changed as a result of COVID. Given her strong Catholic faith, Judge Barrett would likely broadly grant ministerial exceptions to discriminatory conduct engaged in by religious organizations. I have written about the ministerial exception before. Generally, the exception allows religious organizations to make employment decisions that might otherwise be discriminatory, in furtherance of their religious objectives. The typical case is one where a religious employer fires a teacher who announces that he is gay. In a case involving an employee at Costco who was stalked by a customer on a regular if not daily basis, Judge Barrett found that the harassment was severe and pervasive because it was “constant” and necessitated the employee taking a leave from her job for over fourteen months. The customer followed the employee, watched her from around corners, disguised himself and hid behind racks while he followed her, and asked her to account for conversations she had with men. Judge Barrett ruled in favor of the employee that Costco had submitted her to a hostile work environment by not taking sufficient action to stop the harasser. However, Costco was not liable for discrimination when it fired the plaintiff when she refused to return to work. So it was a partial win for the plaintiff. I suspect that a Justice Barrett will take a dim view of most claims of discriminatory conduct given that conservative judges often do. But based on her writing and her thoughtfulness, she is likely to hold bad employers accountable when a plaintiff puts forth sufficient evidence to support his claims. I am exhausted.
I am exhausted by the Supreme Court fight. I am exhausted over mail-in ballots. I am exhausted about peaceful transitions. I am exhausted about systemic racism, and destruction of cities, and the fate of Roe v. Wade, and Black Lives Matter, and COVID-19, and wearing masks. The answers to each of these questions seem obvious to me. And guess what: to the person who disagrees with me on each of my obvious answers, that person’s answers are just as obvious to him. In the meantime, while we have all become exhausted, I see a deterioration in the way we treat each other. No president, no Supreme Court justice, no senate majority leader can make us treat each other with kindness. 2020 has been a difficult year for every single one of us. The simple pleasures that we have enjoyed – visiting with friends, sharing a meal, taking a vacation, doing our work – have been taken away. And for those who are among the nearly 7 million Americans who have been diagnosed with COVID, the fear of dealing with the deadly disease is existential and must be overwhelming. I have a good friend who is a successful medical doctor and entrepreneur. He is the epitome of the American success story. He has a beautiful wife and two beautiful children. He pays his taxes, employs hundreds of people in his businesses, and provides health services that have kept tens of thousands of people healthy during the pandemic. I met him through our mutual love of baseball – the most American of sports. His parents emigrated from China to America and he grew up in New York City, attending public schools there. Last week, he and his wife ventured out for the first time since March to enjoy a meal at a New York restaurant. He finally thought it was worth it to take the risk even though he is acutely aware of the dangers of COVID. He and his wife were dining outside. While he was sitting there, a man walked up to him and yelled at him, because he is Asian, “This is all your fault!” and then bombarded him and his wife with a racial slur. This anecdote is not designed to inflame your outrage toward others. That guy is every one of us. He is us each time we act without kindness to our fellow human beings. He is us every time we fail to understand what our neighbor is going through. He is us every time we refuse to recognize the pain experienced in every person’s life. That guy who yelled at my friend is not an anomaly. He is not a monster. He himself might even be a good husband and father who was just having a bad day. Maybe his mother just succumbed to COVID and he needed to let go of his rage at the injustice. My point is this: we are better than who we have become as a nation. We are not lawless. We are not hateful. I still think that we believe in the rule of law. That we understand that without our democratic institutions we will never be able to enjoy all of the abundance that is available to us in America. Today is the day to change things. Today is the day to honor our neighbors by standing up for kindness and the rule of law so that we truly can make America great again. |
RSS Feed