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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.
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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. I am noticing changes in the world of commerce - it isn’t just the leaves that are changing in this COVID autumn.
Commerce is slowly opening up. Schools remain open despite predictions that it would be impossible for them to contain the virus. The Big Ten is going to play football after all. It looks like we continue to advance on a vaccination that may be safe and effective. Sports are becoming a regular part of our lives again, although they look different. There is a bit of a feeling of optimism, I think. As if we are more resilient than we thought we were, and that we really can get through this together. I still hate wearing a mask. But I wear it! And so do the folks around me. It is interesting. There seems to be an understanding among reasonable people, whether Republican or Democrat, Blue or Red, Black or White. We’ll do what seems right to keep ourselves safe and our brothers and sisters safe, too. We expect you to do the same. But no need to go overboard. The sky is not falling; it’s just gray right now. It would be helpful if more N95 masks were available. Masks really do seem to work well in controlling the virus. I think they are why Connecticut has been in good shape for most of the summer. And I really think we could get a stranglehold on this SOB if at-home test kits were a reality and we could test ourselves daily just to make sure we aren’t infecting our neighbors. We still need help from the government too. The FFCRA (Families First Coronavirus Relief Act) turned out to be a remarkable piece of legislation from a completely dysfunctional Congress. It actually helped keep folks alive and it put money in their pockets. Truly amazing. But as we get COVID fatigue entering our third season of the virus with an eye on a potentially forbidding winter, administration of the FFCRA is becoming trickier, and employers are getting a bit lax in protecting workers. Last week I got a call from a group that I represent complaining that the employer suddenly came in and removed the plastic barriers from an office space that was separating workers. No explanation was forthcoming. The plastic just got removed one day. Those types of strategies do not enhance workplace morale. I said from Day One that employers needed to include employees in decision making when personal health was an issue. The fact is that employees want their businesses to stay open so that they can keep collecting a paycheck, but they need to feel safe when they go to work. Including employees in the conversation is vital in this regard. There are a few more new things that employers and employees should know. First, Governor Lamont updated the travel restriction requirement so that effective on Friday, the 18th, employees who travel to a restricted state may avoid quarantining by obtaining a negative COVID test either immediately before returning to the state or immediately after returning to the state. More can be found at Executive Order 9C. The EEOC has put out guidance that employers can ask employees about their reasons for being absent from work without running afoul of ADA mandates. Again this is temporary during the COVID pandemic, but it is useful to maintain safety and allow employees to believe in the integrity of the safety measures being implemented at the workplace. We have made it through two seasons of COVID. If we can believe what we are told, there are likely two more to go. I am not so sure - I think it will be longer.
Still, I have adjusted. Many of you have probably adjusted, too. I usually do not forget to put on my mask when I get out of the car these days. I usually remember to clean my hands when I get back into the car. I have become pretty knowledgeable about video conferencing and all the other sorts of technology that allow us to keep a safe distance. Doing business from a distance is not as difficult as I once thought it might be. Technology has eased the burden. I have gotten used to a new routine in the morning. The old routine always felt rushed. And everyone around me always seemed rushed too. These days, I get up and amble into my day. I grab a coffee, sit in the sun, and catch up on the news. I can stop and consider what lies ahead, do some thinking about what I want out of the day, eat some breakfast, and then get on with it. If I have a meeting, I walk up to the office and start up the Zoom. If I have a deposition, I’ll put on a tie, grab a coffee, and start up the Zoom. I rarely drive. I walk a lot. I talk to the dog. I talk to my wife. I talk to my kids. I visit with friends throughout the day via text or Zoom. Life is slower and yet more gets done. And throughout, I feel at ease. In the meantime, the air feels fresher and lighter. As a business owner, I see the benefits of changing the way we do business. I am more thoughtful in my work and I can give more attention to my clients. Courts have taken time to adjust, but they are adjusting, and ultimately the justice system is going to be more accessible to more folks in Connecticut and easier to navigate for all. I do not want to go back to the way things were. I am hopeful that we embrace the changes that have made our lives better. Still, there will be roadblocks because there are entrenched systems in place that will be hard to move, even though moving them may be more beneficial for our communities. I was speaking to a medical professional last week who has been providing tele-health services since the pandemic began. Whereas folks used to come see him at his office, now he can provide the bulk of his services via video conference. He told me that the health insurance companies are going to mandate that he begin seeing patients in the office soon because the companies do not want to pay for tele-health services anymore. That kind of view is short-sighted and fails to account for the increased access to healthcare that tele-health provides. COVID is a plague. And it will stick with us for a while, I think until we reach herd immunity. And people we care about will get sick and some will die. That is the tragedy of the COVID virus. But we should not underestimate our resilience or our capacity to take advantage of change. There is real opportunity to improve our lives because of this scourge. I am hopeful that when the plague finally passes we will not return to old ways that sapped our strength and our well-being. “Safe and effective.” That is a phrase you are going to be hearing a lot in the next few weeks as we head toward election day.
“Safe and effective” is the standard that we expect when assessing medical interventions. In the context of a COVID-19 vaccination, we expect that any offered vaccine will be “safe and effective” before it is widely distributed to the general public. The problem, of course, is that with all the disinformation that we receive from numerous sources, none of us really knows who to trust as we try to evaluate whether a medical intervention is “safe and effective” or not. I trust my doctor. And I trust her to get her information from reputable sources. When it comes time for me to decide about whether or not to get a vaccination, I am going to either have to trust her, or find another doctor that I can trust. My assumption of course is that I will have a choice about whether or not to get a COVID vaccination when it becomes available. I assume that I still have the freedom to decide what goes into my body. But maybe in the dystopia that we live in today, that is a false assumption. Maybe none of us will get to decide what goes into our bodies. Or if we do have the freedom of choice, maybe the choice will be a false one because we will base that decision on deliberately or negligently false information about what is “safe and effective.” Every day that goes by in this crazy 2020 and this absurd election season hijacked by social media conspiracies and disinformation from the highest levels of government, I start to believe that I am living in a dystopian Orwellian novel. Really. Look at the headlines in the daily newspaper. Who would have ever thought that this “news” would become the reality of our lives. I never did. I thought the stuff we read today was confined to the imaginations of writers and filmmakers. Sometimes folks say, “you couldn’t make this up,” to address a turn of events that seems completely detached from reality. Our whole 2020 existence seemed at one time like it could not be made up because it would be so unbelievable, and yet here we are. And here is the reality. Somebody is going to have to be first to get the vaccine. Who is it going to be? And will that person have a choice. I have been thinking about the possibility that public employers will force their public employees to get vaccinated in order to continue in their employment. I can see the government mandating that those on public assistance get vaccinated in order to continue to receive benefits. I can see schoolchildren in our public schools becoming guinea pigs in order to be able to attend classes in public spaces. The nightmare scenarios go on and on. And here’s the thing. You might think that our Bill of Rights will protect us. You would be wrong. As for workers, employers can mandate testing and vaccinations provided the procedures are “job-related, consistent with business necessity, and no more intrusive than necessary.” In places where employees regularly interact with immune-compromised people, the standard is fairly easy to meet. The time to really start talking about this issue is now. The time for the legislature and Congress to act is now. Either we are going to be in control of our bodies this fall, or the government is. I choose us as individuals. As many of you know, I have made my living over the last 25 years representing police unions and police officers. I am proud of that work, and I have met some amazing and courageous men and women over the years. I am a police supporter.
But I am not blind to the problems that exist in policing these days. There are some folks carrying a badge who do not deserve that privilege, and even those of us in unions know that to be true. I have said it before and I’ll say it again because it is true: when we come upon an officer who does not fit the culture of service that is the first priority for policing, we find ways to move that person along into another career. The key to reforming police departments does not start with legislators or judges. It starts with street-level supervisors, the sergeants and lieutenants who work with patrol officers on a regular daily basis. They set the tone. And that tone ultimately comes from the top management of a department. If the management is rotten, the policing will be too. Fortunately in Connecticut, we have some of the best police leaders in America working for us. I have always believed that is why the disfunction that plagues other departments around the country has not infected most of our police departments in this state. Still there are places in Connecticut where the culture is so bad that disfunction necessarily has followed. A case in point was made clear in a recent federal court case that resulted in an award of almost two million dollars in favor of a female police officer on the Central Connecticut State University police force. According to the allegations in her complaint, the police department leadership was characterized by a culture of misogyny, intimidation, and retaliation. Women in the department, as well as women students on campus were frequently the targets of lewd, crude, and lurid behavior and remarks. In some cases the bad behavior crossed the line from verbal to physical. And according to the complaint, the supervisors within the department not only knew about the culture, they were some of the main participants. It was a formula for disaster. Several officers in the department engaged in ongoing sexual harassment of their fellow female officers including the plaintiff who ultimately held those officers and the department to account for their sexually demeaning and criminal behavior. Before the case got to trial, the University settled with the complaining officer for 1.75 million dollars. That type of pre-trial settlement in a sexual harassment case is virtually unheard of in Connecticut. Dysfunctional workplace cultures are not the sole domain of police departments though. They exist everywhere. But it is true that where you find a workplace that tolerates discrimination, retaliation, intimidation, or harassment, their abilities to perform their essential services and functions are corrupted. Police departments cannot be painted in broad strokes with a broad brush. Each is culturally distinct. They have shared qualities and characteristics, but their approaches to their mission will vary based on leadership and membership. The good ones should serve as models for the failing ones. And the failing ones must be reformed or torn down. Only then will wounds from this summer start to heal, and faith in our institutions begin to return. After a spring and summer without any sports, I thought I would be excited to watch NBA, NHL, and MLB games once they started up again at the end of July. But I find that I can’t get into it. I still pay attention to the Mets, but I haven’t given much attention to the NBA playoffs, which is unusual for me.
I have noticed though that NBA players are wearing social justice slogans on their uniform jerseys and their warmups. Same goes for MLB players on their batting practice jerseys. That’s cool as far as I am concerned. The more we keep these issues on the front burner, the more likely we are to come to some kind of solution. But there are competing messages, and not everyone comes from the same place. And as we all know, folks can get passionate and emotional when advocating their points of view on these complex and divisive issues. So a fair question to ask is where and in what kinds of places should folks be allowed to express their opinions on a t-shirt, or a ball cap, or a banner? Obviously these expression issues implicate the First Amendment. And whether you are a conservative, a liberal, or somewhere in between, most of us agree that freedom of speech and expression are sacred human rights. We may not like what the other person has to say, but we sure want to be able to express our competing viewpoints freely. Last week President Trump urged Americans to boycott an American tire company because one of the company’s plants put out an internal memo to employees allowing one particular political viewpoint at work while prohibiting another. This is a confusing time for company managers. On the one hand, they do not want to be anti-American and limit an employee’s right to free expression. On the other hand, they don’t want to be called bigoted or racist when they allow types of expression that some view as bigoted or racist, or when they restrict anti-racist speech. So what can a company do when an employee wears a piece of clothing advocating one political viewpoint or another? It is tricky. I would like to be able to say that employers should have a blanket policy that prohibits any kind of political speech. No shirts with slogans. No emblems or colors. Simply show up for work, do your job, and speak your mind when you’re off the clock. But even that kind of even-handed policy can run afoul of the law. The National Labor Relations Act allows all employees, even non-union employees, to express themselves at work even if that expression might encroach into difficult political topics. Section 7 of the Act lets employees engage in concerted activity to promote their workplace interests. That may include anti-racist speech. The right to speak is not unfettered, but it is broad. One court has said that the “speech” may be prohibited only if it jeopardizes employee safety, damages machinery or products, exacerbates employee dissension, or unreasonably interferes with a public image that the employer has established. In America, generally it is safer to allow speech of all sorts. Limiting speech tends to get you into trouble. America’s greatness is based on the exchange of ideas. It is a tricky era for all of us as we try to navigate these troubling times. Allowing folks to express themselves may be the best way to get through it. |
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