|
It was supposed to be over by now. Two months ago, it WAS over. And here we are again. Wringing our hands and raising our voices about masks and mandates without any clear answers. Who do we trust? What can we trust? What are our rights? What are our responsibilities? When will it end?
This hangover is lasting way too long. But here we are again confronting our uncomfortable reality. As the kids get ready to head back to school and we get ready to head back to a regular work life, it has become difficult if not impossible to predict exactly what is on the horizon for us in the rest of 2021 and beyond. So let’s take it one at a time. First, I would predict that vaccine mandates are going to become more prevalent because the statistical evidence is showing that the greatest bulwark against getting seriously ill from the disease is a full vaccine. In order for the economy to continue to move in the right direction, folks need to be working, going to school, and living their lives. The best way to prevent surges seems to be to increase vaccination rates. The evidence is also clear that vaccinations do not make us bulletproof. But the more folks are vaccinated, the dangers of the disease seem to dissipate. So it makes sense that employers and governmental agencies are going to have an interest in promoting the vaccine and, in many cases, mandating it. What can you do if you refuse a vaccine? Well, your options are fairly limited. Courts are not going to step in to protect your “rights.” Absent a religious or disability exception, it is unlikely that you will be able to sidestep a mandate. If you have a union, your union should be negotiating exceptions and compliance requirements. Without a union though, you are going to be limited in your options. At this point, your employer is not going to be required to allow you to work from home in order to avoid a vaccination even if that would serve the interests of you and your employer. I have maintained since the beginning of this pandemic that employers need to have open communication with employees about expectations and obligations. I also have maintained that mandates should be limited except in exigent circumstances. Employees continue to have some bargaining leverage, and, ultimately, the way around a mandate may simply be to call the employer’s bluff. The labor market favors employees right now. If employees refuse a vaccine mandate, employers will have difficult decisions to make. Will they really let valuable employees go, or will they find a work around? I think they’ll find a work around for the valued employees. I know I would. After vaccines, the next hot topic is mask mandates. I thought I was done with masking back in June. Last week I went searching for my old stinky mask and bought a 20-pack of N-95s. I think they, like the Yankees, are making a comeback from premature statements of their demise in June. I hate my mask, and I hate the Yankees, but I think they’ll both be with us through October and beyond. If your boss wants you to wear a mask, you’re going to have to abide. On the other hand, you can still pull for the Red Sox or the Rays or the Dodgers in order to diminish your misery.
0 Comments
If you follow the national news, either by watching the networks, the cable channels, or social media, you might get the idea that America is still a right-leaning nation when it comes to policy-making. Our Supreme Court is definitely a conservative bench even though it still takes the opportunity from time to time to break that mold.
Our Senate is essentially controlled by two moderate Democrats from West Virginia and Arizona, two conservative-leaning states. And our House of Representatives is split just about down the middle. So the progressive agendas that have been advanced by the left side of the Democratic party haven’t gotten much traction in the Congress. But the same is not true in the Nutmeg state. Here, our politics are pretty clearly blue, and our elected representatives are overwhelmingly progressive in their views. With a governor who leans to the left and an Assembly that embraces progressive ideas, Connecticut has become a place where progressive ideas get tested out before going national. This coming October, employers and employees are going to see the law of the workplace change in ways that favor of employee in pursuit of the state’s progressive agenda. For a lot of you out there, the word “progressive” is a dirty word. But in the most recent case, the new laws make the workplace a little fairer for workers. And for those conservatives out there who work to earn a wage every day, you might like some of these new provisions, even though they might carry a “progressive” label. We all know that it is illegal to discriminate against workers based on their age. And as workers begin to reach their late 40s and early 50s, the real possibility that a pink slip might be coming for no other reason than age can be really disconcerting. And yet job decisions continue to be made on the basis of age. Employers have different ways of discovering age. They don’t have to ask you when you were born to figure out how old you are. They can usually tell by asking when you graduated high school. Subtract 18 from that year and they have your birth year and know how old you are. But under the new law, employers can no longer ask when you graduated. They cannot ask your age, they cannot ask you date of birth, and they cannot ask when you attended or graduated from school. The limitation applies to an “initial employment application.” Any employer who has three or more employees must comply with the law starting on October 1. That means that employers who use a general application are going to have to modify it to take out questions that allow the employer to infer a candidate’s age. And employees that may be concerned that they fall into a potential category for discrimination, should modify their resumes to take out any references that allow age to be inferred. The idea behind the law is a good one. Even employers who may not have an intention to discriminate may still make a hiring decision based on age - everything else being equal. If there is no way to determine age from an application, then the playing field will be leveled to allow for the selection of the best candidate, which should be favorable for all involved. Last month Governor Lamont signed legislation requiring employers to provide employees with wage ranges for positions in their companies. The idea is that with more transparency, wage gaps will be tightened and folks will be paid based on value rather than on gender. It's a good idea and, based on studies, seems like it should work.
Employers need to know that the law is going into effect on October 1st, and there are severe penalties for those who don't comply. This week I have written about employer obligations. Fall is fast approaching; if I can assist you or your clients in navigating this treacherous employment environment, please be in touch. I am grateful for the chance to help. The labor market is red-hot right now. We have an overheated economy presenting itself in many places including the labor market. Lots of jobs are chasing a few employees, and the result is that employees have lots of leverage in negotiating terms of employment. It is important for employees to assert the leverage they have because right now is a once-in-a-generation opportunity to redefine the parameters of work and make them employee friendly before the market settles. One thing we have learned during the pandemic is that folks like to work their own schedules whenever possible. The idea of working Monday through Friday from 9-to-5 is so 1990s. These days, the promise of the internet and access to wide-ranging communications have made it possible to do lots of jobs from just about anywhere at just about any time. And, from what we have seen, employees have embraced this new freedom in large numbers. A few weeks ago I wrote about the four-day workweek. If you need a refresher, I said that a four-day workweek does not work if we simply cram five days of work into four days. A four-day work week works when employees are allowed to do their work at their own pace in order to produce a superior product. At least one study has shown that less work and more leisure makes for better workplace outcomes. Hours matter, but I guess jobs usually come down to money. In June, Governor Lamont signed into law “An Act Concerning the Disclsoure of Salary Ranges.” The new law, which goes into effect on October 1st, is part of the state’s continuing quest to close the pay gap caused by gender bias. The law will require certain employers to provide job applicants with a “wage range” for the position for which the applicant is applying. The range must be provided when the applicant requests it, or when an offer of compensation is made to the applicant (whichever comes first). The law by itself adds greater leverage to an employee seeking work and will allow an employee to use that range to negotiate more favorable terms in other areas such as hours and days of work, time off, and schedule security. The law does not just apply to applicants, though. It also applies to current employees. It requires employers to provide its employees with a wage range for the employee’s position when the employee is hired, when the employee’s position is changed, or when the employee requests the information. Employers need to be prepared to provide this information, and they should be working on it now. That is because an employer who fails to comply with the law will be subject to legal action for damages including payment of the employee’s attorney’s fees and costs, and for punitive damages. A “wage range” is defined under the statute as “the range of wages an employer anticipates relying on when setting wages for a position.” A wage range could be defined by a budget for the position, actual wages paid for the position, or a pay scale that is in effect. Now is the time for employees to start demanding to know their worth because they have leverage to do so. Employers need to be aware of their new obligations and adjust if they are going to fill important positions in their companies. I was an Economics major at Fairfield University more than thirty years ago. I enjoyed the study of economics, particularly looking at rational and irrational behaviors in markets. I also learned a lot of basic concepts that help me today as I negotiate collective bargaining agreements.
I remember spending a lot of time on matters of inflation because we still were not too far removed from the Carter years of stagflation, gas lines, and staggering interest rates. But not too long after the Carter malaise, Paul Volcker took over the reins of the Federal Reserve. It seemed like policy makers got a stranglehold over inflation and inflationary pressures have been pretty stable since the mid-eighties. Suddenly we have seen a couple of months of price growth in the five percent range, and we are hearing about inflation again. There is lots of liquidity in the market right now and prices are rising. Our buying power is declining as a result. In the midst of increased government spending as a policy initiative to revive the post-Covid economy, California passed a law last week giving some residents a guaranteed basic income. The guaranteed basic income, one of Andrew Yang’s main arguments in his presidential campaign, has been floating around as an idea over the last several years as the wage gap has widened and squeezed the middle class in America. Under California’s law, which passed the legislature with bipartisan support, 35 million dollars has been set aside to be used for monthly cash payments for some pregnant people and other young adults transitioning out of the state foster care program. The program is funded through tax revenues and there are no restrictions on how the money can be used by recipients, differentiating it from other entitlement programs like “food stamps” or housing assistance. Monthly payments will range from $500 to $1,000 and will be administered by local governments and organizations who will apply to the state for the funding of their local programs. The program implementation comes on the heels of recent federal programs designed to alleviate financial pressures associated with Covid. And the handouts have not been limited to one political party. During the Trump administration, the federal government approved a plan to pay unemployed individuals an extra $600 a week on top of their state unemployment benefits. In addition, the Paycheck Protection Program made tens and hundreds of thousands of dollars in cash grants available to businesses without any required payback. These programs played a major part in keeping the economy going while production and service provision slowed to a crawl. It is likely that the success of those Republican initiatives has helped support the recent programs coming out of Democratic state houses and the federal government. There can be no doubt that putting money directly into the pockets of consumers, particularly those at the bottom of the American class structure, helps prime the economic pump. But the new policies are helping to create inflationary pressure unlike any we have seen in decades. It seems like something’s got to give fairly soon. The question is whether or not the economy will be able to continue improve as money continually gets pumped into it. California’s experiment will be important to watch as policy makers attempt to address wage inequality and the recovery from Covid. One idea that I have read about lately in our post-Covid world is the four-day work week. I have to say that the idea appeals to me.
I have never subscribed to the idea that employees need to be shackled to a desk or a workspace eight hours a day, five days a week. I think employees, particularly in jobs that require skill, thoughtfulness, or professional opinion, should take as much time as it takes to get the job done regardless of hours or days spent doing it. It has never made sense to me to have an employee sitting around watching the clock. Clock-watching leads to resentment, frustration, and lack of productivity. Those are not characteristics you would typically look for when making your next hiring decision. The idea of giving employees space not only to do their work but also to spend time doing activities that enrich their lives makes sense to me. It is that enrichment that can lead to better ideas at work, more productivity, and general satisfaction with life. And those are characteristics that an employer would value in a workforce. What is behind the 4-day workweek? Well, the idea falters if we try to jam five days of work into four hours of work. What you wind up with is resentful and exhausted employees. And if the employer believes that eliminating twenty percent of the work week should result in a twenty percent reduction in pay, then the idea is dead on arrival. According to recent news reports, the idea was tried out in Iceland, and the results were overwhelmingly positive. According to the Iceland experiment, as reported in the news, those employees who moved from a 5-day, 40-hour workweek to a 4-day, 35-hour workweek experienced less stress, better health, and improved work-life balance. As a result, 86 percent of the country’s workforce now can work a 4-day week for the same pay. The payoff comes in terms of overall productivity. According to the study, productivity of workers either remained the same or improved in most workplaces. In gaining another day of leisure time during the week, employees reported that they could attend to other interests and needs like hobbies, family time, and running errands which made them less-stressed and feeling like their lives were fuller. Another benefit of the 4-day workweek reportedly helps society as a whole. With fewer folks commuting to work and using the energy associated with performing work, the release of carbon into the environment necessarily declines. For those who believe in climate change (*raises hand*), this can be an important development in slowing the progress of global warming. Here’s the point: in my career as an advocate for employees, but also for profitable businesses, I have found that satisfied workers are the best workers. Those employees who feel a sense of control over the work that they do and how they do it feel more valued and tend to produce at a greater capacity than those who do not. The majority of workers in this country do not make high five-figure or six-figure incomes. Yet, many employees remain deeply satisfied with their work. Often that comes from the provision of benefits that recognize value and promote overall health and well-being. A four-day workweek seems to be a progressive idea that improves lives without any real negative downsides. I would anticipate the idea to begin getting traction as we return to work after COVID. Fourth of July has always been one of my favorite holidays. Hot dogs, swimming pools, and fireworks are hard to beat. It is good to feel like an American and to be proud of that fact at least on one special day every year.
Last year was a rough one with so much uncertainty and the requirement that we keep our distance from each other. This year is shaping up to be better. We are getting our independence from the pandemic, and, thankfully, we can spend our holiday with friends and family. Even if the weather refuses to cooperate, it still will be a welcome holiday. President Biden was hoping to have at least seventy percent of Americans vaccinated by the holiday. It looks like we are going to fall short as a nation; although, in Connecticut high vaccination rates are keeping the most virulent variants of COVID at bay. We Nutmeggers deserve to pat ourselves on the back for that. I have said from the beginning that vaccines and masks are not about individual wants or needs, but rather about the public health as a whole. Each of us is obligated as Americans to take the steps necessary to ensure the public health. Those who refuse to do their part are free-riding on the backs of risk-takers who took a shot even though uncertainty remains about the long-term effects of the vaccine. I have little empathy for free-riders. Independence Day is a day when we salute and honor the original patriots who risked death for treason when they signed an official document declaring independence from colonial masters. Today, our patriotic duty is to squash the pandemic, and each of us is obligated to do our individual parts as Americans. As we continue to move through the summer and into the fall, the pandemic seems farther and farther removed from our daily lives. I don’t expect it to return. Still, some businesses are still grappling with how to deal with employees who refuse to get the shot or, alternatively, wear a mask. From my perspective, employers are within their rights to mandate one or the other, and I see courts and governmental agencies widely agreeing. There are some exceptions to the mandates. Religious and medical exemptions are widely accepted, and most exemptions for these reasons are routinely granted. As a union attorney, I have engaged on behalf of my unions with employers to discuss how to deal with recalcitrant employees who refuse to take any reasonable steps to do their part to stop the spread, feeble as the spread might be right now. I hear a lot about employees arguing that they have “rights” to refuse the shot. I agree. Nobody should be forced to take a shot against their will. However, nobody has a “right” to refuse a shot and keep a job. We all have difficult choices to make from time to time. Placing a job in the balance may seem coercive, but it is not illegal. There is nothing in the constitution or our laws about that, save for the religious, medical, and union exceptions. In the meantime, take some time this weekend to remember the original patriots. And ask yourself what you can do to honor their courage in the face of uncertainty. I remember getting my first job at J.E. Smith Hardware and Lumber in Waterbury back in 1984. I started three weeks after I turned 16 and one day after I got my driver’s license. I remember that the job was a little boring but, generally, I enjoyed it, I learned a lot, and I liked bringing home a paycheck of about seventy bucks a week for twenty hours of work. The minimum wage was $3.07 back then and I made $3.10 an hour.
Since I started working almost 37 years ago, I have worked just about every day since (when school or baseball did not get in the way). I have always valued work, and I think that is probably why I have gotten myself into this legal field. Since that time 37 years ago, I have never seen a job market so wide open as it is today. I have never seen so many employers looking for workers. The number of “help wanted” signs tells me a few things. First, our economy has changed significantly since that day in early March last year when the world shut down. The ways that we provide goods and services is likely changed for a generation if not longer. And because of those changes, our businesses are trying to find ways to adjust. Second, it seems to me that the economy is starting to overheat fairly significantly. There is an awful lot of money being handed out by the government, and the value of a buck is declining. As a result, fewer and fewer folks are willing to go back to work for a wage that pays under fifteen dollars an hour for difficult labor. Jobs will go wanting if the wages are insufficient, and right now we are seeing that workers have better options. Third, the ways in which people are willing to work has changed. I get more work done now just by virtue of the fact that I don’t spend at least ninety minutes every day commuting. I am more rested and relaxed. I can fix my attention on various projects for longer sustained periods of time and I can focus on the varied aspects of my job without interruption by working from home. My life has improved exponentially just by working in comfortable surroundings. I am not alone in this regard. People are starting to value time, leisure, and family over dollars. If employers want to extract workers away from their comfortable lives, they are going to have to pay, and right now employers seem resistant to that idea. In my business we saw what was coming, closed down our office, sent everyone home, and changed the model we use to work. We adapted, and, from what I can tell, I have very happy and productive employees who are paid well and who produce. I suspect that the “help wanted” signs are not going to go away until employers start coming to terms with the adaptations that need to be made. On the bright side, I would predict that happier workers who perform outside of a standard workplace are going to result in fewer lawsuits for employers. Sexual harassment can’t occur if nobody is around to do the harassing. Discriminatory conduct goes away when folks don’t interact with each other directly in the workplace. The first time I heard of Juneteenth was when I got my new iPhone a couple of years ago, and the day popped up in my calendar automatically. I did not know its significance.
Last year the day registered as one of significance for me for the first time just a few weeks after the murder of George Floyd in Minneapolis. I’m not particularly “woke.” I have a Washington Redskins mini helmet on my desk in my line of sight as I write this. However, I did change the name of my men’s baseball team from the Chiefs to the Mules this summer. It seemed to me that if the name offended folks, I should probably honor that sentiment. As an added plus, I think mules are a cool mascot. I think I have pretty good common sense. Like most Americans. I try not to be racist. I try not to stereotype. I try to treat most folks with respect and honor their individual dignity. And still I fail from time to time, like a lot of us do. Still, I have some ambivalence about Juneteenth being made a national holiday. Don’t get me wrong, the abolition of slavery is a milestone moment in our American history. And the scourge of slavery, its aftermath, and the ongoing racial dissonance that our country faces needs to be acknowledged. If creating a new national holiday brings us another step closer to acceptance and respect, then I am all for Juneteenth. If it gives us an opportunity to spend a summer day with family and friends around the barbecue and to think about how we treat each other in America, then sign me up. And if I have to pay my employees for an extra day off to honor the work they do, I am good with that, too. But from my perspective, the new national holiday seems to be a bit too much virtue signaling. As if saying, “Here’s your holiday, are we good?” is the appropriate political response to the anger and resentment that has been building over the decades. I don’t think any of us are that naive. The politicians really don’t have much faith in us, do they? From my perspective, you prove that “we are good” by making sure that everyone has a fair opportunity to vote. You do it by making sure that every person, rich or poor, pays his fair share of taxes. You do it by enforcing the laws that prohibit discrimination in employment, housing, and educational opportunity. And that takes work. Lots of hard work. And understanding. And thoughtful debate. I think I speak for almost all of us when I say that our legislators are essentially incapable of the hard work these days. Instead, they prefer to make it better with the stroke of a pen. It’s like taking a pill to lose weight rather than actually monitoring your diet and taking a walk every day. So I’ll end with this: Juneteenth as a holiday that embraces summer and family is a welcome treat. Recognition of our past and what it means is really important if we are to improve in the future. But work remains. Not “woke” work. Not blame. Common sense working together remains. I hope the new holiday helps us get there. Over the last fifteen months, as I drive around New England and other parts of the East Coast, I see these nice signs with hearts on them giving thanks to the workers who kept this country going during the pandemic.
Routinely, these folks who went to work every day in the face of dangers to themselves and their loved ones are called “heroes.” It is funny how we so readily toss words around to make ourselves feel better when others step up to help us selflessly. But in America, shouldn’t we thank people for their work by paying them for the work they do? And when the jobs are dangerous, shouldn’t we pay them more? The only truly authentic way to thank someone for working is with a paycheck. That’s my opinion anyway. And I suspect for people who work, they would agree. I used to be an avid watcher of the television show Mad Men. There was a scene in one episode where Peggy Olson, the hotshot advertising protégé was lamenting to her boss, Don Draper, that she had not been given enough credit for the amazing work that she had done. She was begging for an attaboy. And Draper, the no-nonsense boss, looked her in the eye and said “that’s what the paycheck is for.” Indeed. Why during the pandemic were we so quick to lavish empty praise but slow to deposit money in the bank accounts of those who took on so much risk? Over the last generation or two that seems to have become an American ideal. As if a pat on the back can overcome pay inequality. As if a sign on the lawn will excuse those who refuse to pay their fair share. Finally, some legislators seemed to be taking some action on this front. When President Biden was able to ram his American Rescue Plan Act through a partisan Congress to the tune of $1.9 trillion, there was an important provision in there to honor the work that our essential workers performed during the pandemic. The provision set aside tens of billions of dollars in funding for states and local communities that would provide premium pay of at least $13.00 per hour to a maximum of $25,000 per worker for essential work performed during the pandemic. The funding could go not just to public employees, but also to workers at private employers who performed work in “critical infrastructure” industries. The federal funds are to be allocated by state governments. Connecticut received $2.6 billion in ARPA funding from which the premium pay is supposed to be distributed. But out of that $2.6 billion, Governor Lamont has tentatively set aside just $10 million and only for state workers. That is .4% of the total allocated to the state. That is the value the Governor has put on essential workers who showed up every day in the face of the pandemic. That is, in relative terms, less than the cost of the construction paper to draw a red heart with the words “Thank You.” It is, frankly, disgusting. So a suggestion: maybe it is time for workers to stop taking it from this Governor and this legislature and start calling to find out where the money is. While the members of the General Assembly were drinking in the parking lot and slapping themselves on the back last month, maybe they should have been ensuring that workers get paid with the federal money that was sent to the state. I’m a Crosby High School grad. I became a Bulldog in 1982. I can’t believe it has been that long.
My history teacher freshman year was Mrs. Vassallo. I think she reads this column. She may remember assigning my class a project requiring the students to create a mosaic out of construction paper when we were doing a unit on Mesopotamia. It was a nightmare project. I still hate the word “mosaic.” Why am I telling you this story? Because last week I came across a case from the federal eleventh circuit court of appeals that talked about mosaics in the context of proving discrimination in the workplace. I still don’t like mosaics, but I can see how the idea of a mosaic can be useful in proving a discrimination case. I am open to embracing the concept almost forty years after I swore off mosaics. If you read this column regularly you know that I often say that proving a case of discrimination can be difficult. It is rare that there is a “smoking gun” piece of evidence that connects a discriminatory intention to an employment action. We don’t typically get a Perry Mason moment where the supervisor gets on the stand and under intense pressure admits to firing a plaintiff because she is Jewish or Black or old or a woman. Usually we have to connect a series of dots. Or as the Eleventh Circuit court said, we have to look at the pieces of the mosaic. There is a well-known legal standard used to evaluate discrimination claims. A plaintiff needs to show that she is qualified for the employment position and that she is in a protected class. So if she is a nurse, she has to show that she is qualified to hold the position of a nurse and that she is in a protected class, meaning she is Jewish, or Black, or over age 40, or a woman. Then she has to show that she suffered an adverse employment action, meaning she was demoted, suspended, or fired from her job. And finally she needs to be able to prove that the adverse employment action was a result of her membership in the protected class. Often this last element can be proven by showing that the plaintiff was treated less favorably than those not in the protected class, but that is not the only way to prove discrimination. According to the Eleventh Circuit and some other courts, a plaintiff can satisfy her burden on a discrimination claim by presenting a “convincing mosaic” of circumstantial evidence from which a jury could conclude by inference that the boss intentionally discriminated against the plaintiff when making the adverse employment decision. So what are the pieces of a “convincing mosaic?” According to the Eleventh Circuit court, a plaintiff can show a “convincing mosaic” by presenting evidence of suspicious timing, ambiguous statements, multiple explanations for the employment action, conflicting testimony, or off-hand comments demonstrating a discriminatory intent. If there are enough pieces that create a picture of discrimination, then a jury can infer discrimination. I have often viewed the various pieces of information as bricks that when placed together form a wall of discrimination. But that is probably just my anti-mosaic bias. Thanks Mrs. Vassallo. |
RSS Feed