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There are a lot of crackpots in the world.
Social media helped them rise to the top (or sink to the bottom, as it were). COVID gave them free time to shout their drivel from the social media rooftops. But this is America, and our First and most important Amendment says that we cannot stifle the garbage that some spew, even when it is clearly identifiable as “malarkey,” as our President calls it. Our obligation as Americans is to either respond to the nonsense with facts, or just let it all die from lack of oxygen. Either can be effective in response, but sometimes more is needed. I represent folks who occasionally get targeted by social media cellar-dwellers. We like to tell ourselves that everybody is equal in this country, but that’s not exactly true. Some folks work hard, pay their taxes, raise their families, and act with kindness. Others do the opposite. There is no equivalence among those who occupy these different groupings. Those who go on the attack with the intent of smearing, humiliating, or threatening often go after folks who have earned our respect as leaders in the community. Those who do the attacking tend to be those who “earned” participation trophies back in little league. Not everyone’s an MVP - the smear artists prove that every day. I recently had to deal with a case where one of my clients, by all accounts the kind of person we would all want our kids to grow up to emulate, had suddenly become the target of a social misfit for no reason other than that my client was somebody in the community who had decision-making responsibility. There is nothing wrong with disagreeing with a leader’s decision, especially when there are facts and policy reasons to support the disagreement. But when the disagreement becomes vulgar, threatening, or harassing, there is no need to tolerate it even if one is a local public figure. But what does the law say about that? After all, First Amendment protections are quite broad - as they should be. What can be done when a crackpot goes on the attack? Most of us have heard about libel and slander, together known as defamation. And while a claim of defamation may be an effective means of stopping the harassing and demeaning behavior by the guy who still lives in his mother’s basement, there are other tools as well. Connecticut recognizes the tort of invasion of privacy. There are four possible ways that one’s privacy can be invaded, including: placing one in a false light, unreasonably intruding on one’s seclusion, giving unreasonable publicity to one’s private life, and appropriation of one’s name or likeness. Filing a lawsuit for invasion of privacy can be a powerful means of stopping harassment in its tracks. Someone who is harassed by another can also bring a claim for infliction of emotional distress. In order to be successful on this kind of claim, an injured party must prove that the defendant intended to cause emotional distress, that the conduct was extreme and outrageous and caused the claimant’s distress, and that the emotional distress was severe. These requirements all go to questions of degree of harm, but in cases where one’s privacy is invaded and humiliation follows, it makes sense that emotional distress would be the expected outcome. Still, where the emotional distress, or the privacy invasion results from speech on a matter of public concern, the First Amendment is likely to protect the speech, no matter how outrageous society would generally consider it to be.
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The COVID numbers keep getting better, but now we are hearing warnings over the last week that we may never reach herd immunity. Today I heard a report from the New York Times, relaying a report from the CDC, that in March eighteen residents of a nursing home in Kentucky who had been vaccinated were subsequently infected by a worker who had not been vaccinated. Two of the vaccinated residents died.
The CDC concluded that the vaccine was 86.5% effective against the variant that caused the outbreak. And that case, in a nutshell, is why folks are still being asked to mask up in public. While the vaccine is highly effective at preventing death and severe disease, it is not one hundred percent effective. And for the vulnerable population that the virus can still attack, even after a vaccine, masks become a second layer of life-saving protection. Which leads me to another interesting case that was recently broadcast by the United States Department of Labor. The Department recently fined a tax preparation business in Massachusetts more than $136,000 because it prohibited its workers and its customers from wearing masks while on the premises. The business was so lax in its enforcement of health standards that it did not require social distancing and refused other safeguards like cleaning and barriers. I wonder if it prepared taxes based on 2013 tax law too? According to the DOL, OSHA received a complaint that the business was not ensuring the safety of its employees and opened an investigation in March. As a result of the investigation, OSHA determined that the requirement that employees and customers not wear masks was a violation of a statewide order in Massachusetts. That order mandated that businesses require employees and customers to wear masks. OSHA also determined that the business failed to provide adequate ventilation, and it required employees to work within six feet of each other without acceptable barriers between them. In addition, OSHA faulted the employer for not undertaking pre-shift screenings of employees, enhancing cleaning procedures, or taking other steps to prevent transmission of the virus. The DOL found that the employer was not simply negligent in these failures, but rather that it willfully refused to follow the safety guidelines and ensure the health and well-being of its employees and customers. The determination in the case came directly on the heels of OSHA implementing a “national emphasis program” in March to focus enforcement efforts on companies that put the largest number of workers at serious risk of contracting the virus. It is likely not a coincidence that after that plan was put in place, we began to see infection rates decline or stay steady at lower rates from the high infection rates we witnessed just after the holidays. The plan is designed to work in conjunction with the national effort to increase vaccinations in order to curb the spread of the infection through vulnerable workplaces as commercial activity begins to ramp up headed into the summer. With the likelihood of herd immunity decreasing, large efforts from employers to limit the spread of the virus have become a national focus. For business owners, it appears that more of the burden of stopping the virus is going to be placed on their shoulders as the national effort to eradicate the pandemic continues to move forward. One of these days I won’t be writing about COVID anymore; today is not that day.
2021 has been a year where we have been continually turning the corner. It’s a long corner my friends. We’re still turning it. And new issues keep popping up as we navigate this unprecedented pandemic. I still think we’re going to come out of it okay. But there are other, darker times when I think it is going to take out a third of humanity before it’s done. And it’s the part of me that sometimes gets startled into thinking about unimaginable human loss that requires me to keep my mask in my glove box and dutifully wear it whenever I am in a place where I can’t be certain that everybody else has been vaccinated. I don’t wear it for me so much. I wear it for you. I think there is a fundamental misunderstanding about our collective duty relative to the pandemic. When Pearl Harbor was attacked before most of us were born, our grandparents and great grandparents understood their duty to humanity. When the World Trade Center and our nation’s capital was attacked almost twenty years ago, we each had an understanding of our patriotic duties in the moment. We stood arm in arm, together. Now as our neighbors, friends, and families are personally attacked by a virulent disease, and our businesses crumble under the weight of the pandemic, the discussion has not centered so much on collective obligation but rather on personal choice. And I don’t get it. I suppose whether you get vaccinated or not is a personal choice if the issue is tetanus or the flu. I suppose whether you wear a mask or not is a personal choice if the issue is air pollution. But those are not the issues. The issues are public health. And whether I get vaccinated or not impacts you and your family, not just me and mine. Because if the virus can no longer attack me, then you don’t have to worry about it attacking you if you come into contact with me. I maintain, and I have since this whole thing started, that getting vaccinated and wearing a mask is a patriotic duty. It is a solemn obligation. (I can hear your howling out there). The vaccine and the masks are not about protecting you personally. They are about protecting the public health. Each of us has a duty and obligation to pitch in to protect the public health. It is why we have sewage systems. It is why we protect our public water supplies. When the virus attacks you or a member of your family, it is tragic for you. But it also exposes everybody you come in contact with to the potential for their own personal tragedy. Vaxxing and masking stop that death spiral at your doorstep. Which is why everyone should get the vax and wear the mask, even at the risk that the vaccination turns out to have some side effect that we don’t yet know about. The kids who signed up to go overseas and face down the Germans had to take the risk of taking a bullet for their countrymen. They did it with grace and courage. This is our war. It is time for us to risk taking the bullet. So roll up your sleeve and take the risk. It is – literally – the least you can do. And once you do, you will have done your part to help all of us to get back to business. I thought things were going to be different by now.
I thought I could forget about wearing a mask. I thought I could go out to dinner and not worry about virus exposure. I thought I could pop into a coffee shop and sit down, drink my coffee, and read the news. Maybe I could do all those things right now, but it doesn’t feel like I can. And I don’t think anybody knows for sure when, or if, you or I will ever be able to. We still have about sixty or seventy thousand people getting infected every day. We still have close to a thousand people dying every day. Those numbers have been steady for two months now. Two months is about as long as a good part of the adult population has had access to the vaccine. It ain’t getting any better folks. I really thought things would be different by now. Given that the numbers are steady, we have finally come to the point in our state where our governor, who by most accounts has done a pretty good job at managing this crisis, has said it is time to open the state up fully next month. If he says so, I have no reason to disagree. His stewardship has been good so far. When that happens, given the infection numbers, lots of people who return to work are likely going to be exposed to the virus and get sick. With only about forty to fifty percent of the population vaccinated, there are going to be plenty of unwilling hosts for the virus to do its dirty work. I do worry about how our work force is going to stay safe. I absolutely want to see people get back to work. But it is bad business to sacrifice our workers for the sake of some form of normalcy. So the workplaces have to be safe. Last week the Maryland legislature passed a bill and sent it to the governor’s desk called the Maryland Essential Workers Protection Act. At the time of this writing, it was uncertain whether Governor Hogan, a moderate Republican, would sign the legislation or veto it. The bill is intended to mandate that COVID-related safety regulations be put in place for frontline workers and that the state’s department of labor be authorized to enforce the regulations. Right now, not only in Maryland, but in almost all states including Connecticut, there are no enforcement mechanisms for ensuring that workers are kept safe from COVID-19 infection. Most employers have been pretty good about protecting workers. After all, it is in their interest to keep infection rates down. But even the best employers fail at times in key areas of protection. Under the Maryland legislation, the legislature has empowered the Labor Secretary in that state to establish a so-called “Emergency Temporary Standard” for COVID-specific safety regulations. Nationally, Congress has debated establishing these types of temporary standards, but so far they have not gotten sufficient traction. Without an enforcement mechanism in place, workers have no real means of ensuring that the workplace is safe. Union workers have a little more protection because of their ability to bargain, but even they are limited in available remedies for unsafe workplaces. The Maryland bill is a step in the right direction. A national initiative should follow if we are truly going to turn the corner for our workers and our businesses. For a while now, I have thought that there are two key reasons that the middle class has gotten squeezed in our growing economy over the last forty years.
The first is the change in tax policy enacted during the Reagan administration that reduced the highest marginal tax rate on high earners from seventy percent in 1981 down to twenty eight percent by 1986. This change in tax policy disincentivized reinvestment in labor, infrastructure, and durables, and incentivized profit-taking and huge jumps in salaries for managers and owners of private enterprises. Don’t get me wrong: seventy percent marginal tax rate is unconscionable to me. There has to be incentive for risk-taking. The policy shift has likely resulted in huge gains in innovation by private entities. Consider where we are technologically today compared to 1980. I’m just not sure the right balance was struck because as a result of the policy shifts, the gulf between the haves and have nots has continued to grow wider, leading to stresses throughout society. I am not a believer in using taxes to give handouts to those who don’t work for their earnings; however, I do believe that tax policy can effectively be used to unburden government programs by forcing behavior changes in private entities that lead to increasing wages and benefits for the middle class workers. A tax rate of seventy percent won’t get it done. But a top marginal tax rate near forty percent on earnings in excess of two million dollars annually could make a dent in the income gulf. The majority of households today have a top-end marginal tax rate of twenty-two percent, with more than ninety percent of households maxing out at twenty-four percent. Increasing the marginal tax rate on million dollar earners will benefit everyone earning under a million bucks annually. The second important factor in closing the income gap involves labor organizing. As you know, I have represented labor unions for more than 25 years, but I am not a militant. I see the benefits for lots of workers while understanding the problems with unions. Today, only six percent of the workforce is organized. That number is too low because it is not significant enough for the organized workers’ gains to have ripple effects through the market. The pebble is way too small. When thinking about the downsides of unions, most folks consider that unions only protect bad workers, drive up employer costs, and lead to listlessness in the workforce. Those are often valid concerns. Effective unions understand these downsides and effectively address them. The problem is that too many institutionalized unions are unwilling to address these concerns as a drag on commerce. Last week, Amazon workers in Alabama overwhelmingly rejected an effort to unionize their plant. It seemed to me that the union was tone deaf in its efforts and didn’t make its case clear. One worker who was interviewed said that she received health insurance on day one, and her pay was double the minimum wage in a state that typically does not value workers. Why would any worker want a union at a job that was already doing everything for workers that a union could do? The workers were not stupid. They weren’t fooled. They understood completely. Unions are not needed where employers pay fair and play fair. In places where employees are not treated with dignity or respect, and in places where an employee’s value is not recognized, a good and thoughtful union can help benefit workers and make the business more successful. I’ve been handling employment and labor cases for a quarter of a century. In that time I’ve helped lots of folks with unemployment claims.
Out of the hundreds of cases I have handled, I only had one that involved a claimed overpayment of benefits in those twenty-five years. Overpayments usually happen because an employee who is not eligible receives benefits anyway. Often fraud is involved. But most folks follow the rules, so it has been a rare occurrence in my practice. That all changed in 2021. That is because in 2020 thousands of Connecticut residents applied for unemployment benefits – many for the first times in their lives – after getting forced from work by the COVID-19 pandemic. And in the last several months I have had more than a dozen folks call me after receiving notices from the unemployment compensation administrator that they had been overpaid benefits and that they were actually ineligible for benefits. And now they owe thousands of dollars back. Each case has basically gone like this: After COVID hit, the employees were working in positions in which they faced likely exposure to the virus. Each of the employees fell into a high-risk class based on CDC guidelines either because of age or underlying medical conditions, or they cared for someone who was deemed to be at high risk. In almost every situation, each employee approached the employer and asked for an accommodation – either work from home, provision of PPE, or distancing within the workplace - so that that they could continue working. In each case the employer said there was nothing it could do. So the employees felt that they had no choice but to quit because they were facing potential fatal exposure to a virus that we knew even less about then than what we know about it now. These job losses were occasioned in every case through no fault of the employees. If not for the pandemic, each employee would have continued to perform his work without skipping a beat. Instead, a completely unanticipated event changed the playing field for everybody and these workers faced the choice of deciding between their health and their loved one’s health or continued work. Congress quickly passed bipartisan legislation, recognizing that the pandemic was nobody’s fault, so that individuals would not have to take on greater burdens than the medical and physical ones that the virus was imposing. In April and May last year, lots of folks applied for unemployment, and the administrator almost uniformly found the employees eligible. But then employers, who were suddenly seeing their unemployment tax rates rise, began appealing the decisions in May and June claiming that the employees were not eligible for benefits because their jobs were still available. This, of course, did not take into account the argument that the jobs were no longer safe to do. The appeals got filed, but the unemployment referees did not act on them in a timely manner because so many were getting filed, and staffing had plummeted due to the pandemic. Finally, when vaccinations started becoming available, the backlog started to decline, and all of these previously eligible folks started getting notices that they owed sometimes twenty or thirty thousand dollars in overpayments because they had been getting paid benefits for almost a year. They should not have to pay the money back. They did nothing wrong. The unemployment compensation administration is not equipped to handle this unprecedented problem. It is time for the General Assembly to take a look at this problem and fix it now. It is appropriate that April is the month we celebrate fools, because April is the month that the IRS comes calling looking for our money.
And if you are like me, you dutifully remit your payments to the tax man throughout the year, whether it is weekly or quarterly. And Uncle Sam takes that cash and does what he will with the money while our national infrastructure crumples to such a degree that our new president has to come into office and demand a two trillion dollar infrastructure bill. I am all for the infrastructure bill. The greatest accomplishment government has made in my lifetime that has impacted me on a regular basis - and this is not hyperbole – is the successful widening of I-84 through Waterbury. That was government at its best in my opinion. You may argue that the moon landing or the COVID vaccine were greater accomplishments, I suppose. But for the glorious few years when I still commuted to work before COVID, cruising through the city on I-84 every day gave me moments of joy every single time. From my perspective, that was government legitimately doing something for me. So if President Biden and Congress can reach agreement on fixing bridges, expanding roadways, and making broadband wifi more readily available to the masses in more places, then I am all for it. I can envision little moments of joyful experience every day for everyone if it gets done. Who wouldn’t love being able to connect to the web quickly and without interruption whenever needed no matter where you are. Think of the possibilities for working remotely and enjoying life more. Infrastructure is good for every single one of us, no matter if we are rich or poor, married or single, young or old, black or white, Catholic or Protestant. You get my drift. But the proposal begs the question to our government leaders – what have you been doing with the hundreds of dollars we send you every week? Why haven’t you been building and rebuilding all along? I have the answer. It was in the news this week. Fifty-five of America’s largest corporations paid no taxes last year on billions of dollars in profits. You paid your taxes. I paid mine. Our neighbors paid theirs. But the big boys who benefit the most from infrastructure paid none. Not even a thousand bucks. Nothing. And now the same corporations that have gotten away with financial murder for decades are howling mad, as are their congressional allies, about the prospect of seeing corporate tax rates rise. My question is this – why should they care? Paying 28% of nothing is the same as paying 21% of nothing. If they weren’t paying taxes before, they’re not going to pay taxes later. Meanwhile an infrastructure bill hangs in the balance. Taking advantage of all of the opportunity that America has to offer, without paying any taxes, let alone a fair share may not be criminal, but it certainly is unpatriotic. For years, these large corporate institutions have been playing the game of pitting you against me, and us against the folks on the other side of town. It is an age-old game of triangulation. If you’re a Trumper, or a progressive, or a Muslim, or gay, or black, or a woman – they want us to draw battle lines with you. The distraction helps them to continue to get away with not paying any taxes and forcing us to pony up two trillion more bucks for something that should have already been paid for. It is time for us to put our arms around each other, march together, and stop the madness. I was getting interviewed last week by a podcaster who asked me what was interesting to me about labor and employment law. I am sort of a nerd about my field of practice.
The ways that folks interrelate with each other interests me. The ways that people react and constrain themselves according to law is fascinating. The emotions associated with work relationships always intrigue me. Often disputes at work are similar to disputes among family. I have never practiced divorce law, but divorce lawyer friends tell me stories that make me understand that a work breakup is as emotional, frustrating, and painful as a family breakup. So I was not surprised when I read a story in the news last week about an employer who paid a former employee his last week of pay by dumping 91,500 oil-slicked pennies in the former employee’s driveway. The penny dump happened after months of acrimony following the employee’s ending of the employment relationship. The employee had been hired to work at a high-end automotive shop. According to the employee, the deal was that he would be able to leave work at 5 p.m. each day so that he could pick up his son from daycare. The mixture of work and family is often a combustible cocktail, and this case was no different. Work is important to most folks. Family is typically more important. And when an employer seems to be interfering with family, sparks can tend to fly, even with the best work relationships. You have probably seen it yourself during your work life. Anyway, after COVID hit, according to the reports, some friction started to grow between the employer and the employee over the employee’s need to care for his son. That issue led to other disagreements and finally the employee decided to quit the job and gave notice. The situation deteriorated further and the employee left before his notice time had expired. The employer was angry at losing the employee along with the hard feelings that had built up over the last several months. He refused to give the employee his last paycheck as a result. The employee then went to the Department of Labor for assistance. The DOL reached out to the employer multiple times to no avail. To be clear, there is no excuse for an employer to refuse or fail to pay an employee the employee’s last paycheck after the employee quits. The payment has to be made in Connecticut no later than the following business day. A failure to make the payment in a timely fashion can subject the offending employer to fines, penalties, prosecution, and multiple damages. Finally, after the DOL had sufficiently reminded the employer, the employer decided to make payment. And the penny dump followed. So the question is, was the penny dump illegal? Is there a prohibition on paying employees with 500 pounds of pennies. I’d say there is. Implicit in the law is that payment be made by an expected and reasonable method. The payment to the employee was intended to harass and annoy. I would argue that the payment was insufficient and that the employer should still be subjected to potential civil penalties and fines. Breakups can be difficult. There is really no need to make them worse with immature behavior to simply make a point. If the immaturity is required to satisfy one of the parties, then there should be a legitimate price to pay for the satisfaction. Last year at this time the world was in the midst of falling apart.
I remember I was watching an NBA basketball game on ESPN when they suddenly announced that the game was cancelled. Soon, the NCAA conference tournaments were shutting down, and then we found out that Tom Hanks and Rita Wilson had COVID. I had no idea where we were headed. And while government leaders did not give us much reason to have faith that they knew how to lead us out of the haze, they at least seemed to get one thing right: they quickly passed the FFCRA which pumped much-needed liquidity into the arm of the economy and, essentially, kept our economy humming in its hobbled state until we could start pumping millions of vaccines into the arms of Americans this February and March. So we are starting to come out of it. But, of course, work still needs to be done, and lots of folks are still struggling with sickness, grief, and financial despair. It was really important that Democrats in Congress were able to get their act together again past week and pass the American Rescue Plan Act of 2021. There is a lot of relief in the Act. The Act extends the paid leave provisions that were put into the first FFCRA for all federal employees. That includes postal workers and folks employed in other federal agencies in Connecticut like law enforcement, Social Security Administration, and the Department of Labor. Full-time federal workers will get up to 15 more weeks of paid leave to recover from COVID illness, to quarantine or care for a sick family member, to care for a child attending school virtually, or to get vaccinated and recover from any sickness associated with the vaccination. That is some good stuff. Unfortunately, you have to be a federal worker to access the benefits. Regular Joes and Jills working regular jobs for regular employers don’t get to taste these benefits – not without a little cooperation from employers that is. While the benefits for federal workers are mandatory, they are not for the rest of the working class. For regular folks, employers are given the option of offering additional COVID-related leave to employees. If employers take the option, paid leave for employees under the FFCRA will be extended through September 30 of this year. The incentive for employers is that each will receive a tax credit of one hundred percent for up to ten days of paid sick leave capped at $200 per day. In addition, employers can get the same tax credit for up to twelve weeks of additional emergency paid family leave for each employee. The new Act has expanded the reasons an employee can take the leave. They include: if the employee is waiting for COVID-19 test results, the employee is obtaining a vaccine, or the employee is recovering from illness or injury related to the vaccination. Paid family leave can be taken for the following additional reasons: employee is subject to a quarantine order, has been advised by a health professional to quarantine, is experiencing COVID symptoms, is caring for someone subject to a COVID quarantine, or is caring for a child whose school or daycare is closed due to COVID. The policy behind the Act is clear. The government wants to encourage folks to get vaccinated and avoid spreading the virus in the workplace. An important way of doing that is incentivizing employers and employees to ease the burden of missing income from work. I received an interesting call from a client last week about PPP loans and how they impact employees of businesses that receive the loans.
Just as a refresher: last year, shortly after the nation shut down and the economy became a fully-loaded bullet train filled with restaurant and gym owners headed toward a bridge abutment, Congress took its collective heads off its seats and passed legislation opening up capital markets for business owners. The PPP loan program was put in place essentially so that employers could continue to pay workers while their businesses were forced to shut down. Under the program, business owners would be given governmental grants in the form of low-interest loans that would ultimately be forgiven if the loan proceeds were used to cover varied expenses including, most importantly, salaries and benefits for employees. The program worked too. Employees continued on payrolls even though revenues dropped precipitously for many businesses and the economy continued operating at a low hum. Some businesses have thrived during the pandemic. Others used the PPP loans as a life preserver that has allowed many of them to continue in operation as we approach a summer that many think will look like the Roaring 20s of yesteryear. So getting back to the call I received. My client works for an employer that was the recipient of a generous PPP loan. When the employer obtained the loan, the employees breathed a collective sigh of relief. The income spigot was going to stay on. It wouldn’t be a gusher, but it would be more than a trickle. The employer told the employees that the loan was going to allow employees to continue to earn their wages up to the maximum allowable wage amount of $100,000 annually. But then a strange thing happened: the employer did not pay its employees like it was supposed to. Instead, it made promises of future payments. Then it recalculated wage amounts that should be paid. Then it stopped answering phone calls and emails. And finally, it just shrugged its shoulders and told the employees “it’s very complicated.” Here’s one thing I have learned in my nearly 30 years of professional life. When someone tells you “it’s very complicated,” they are scamming you. Hardly anything is too complicated for a person of average intelligence to understand. You’re not dumb; you’re getting scammed. Remember that. Under the PPP program, employees could receive their average wages for the preceding year up to a maximum of $100,000. The actual loan amount provided by the program is based on actual wages paid in the preceding year. So, for example, if an employee earned $120,000 in the previous year, the employer could use up to $8,333 of loan proceeds to pay the employee each month. If the employer used the $120,000 in making the loan application and received proceeds based on that amount, then it should have paid the employee the maximum allowable amount under the program. An employer who failed to pay its employees the same wages as the employee earned in the previous year would likely lose its eligibility for loan forgiveness. That penalty could be crippling for many businesses that relied on the loan to carry them through the lost revenue of the pandemic. I told the employee to remind the employer of its obligations under the program and to request full payment. If the employer refuses, the employee is likely going to be in touch with the SBA to seek redress and hold the employer accountable. |
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