Employment Law Attorneys
Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

By Mark Carey and Fran Slusarz,

The Supreme Court just issued a ground-breaking Bostock decision making it unlawful for employers to discriminate on the basis of a person’s sexuality or gender identity. About half the states already had laws protecting LGBTQ employees, but this decision extends employment rights to all LGBTQ folks in America and opens the federal courts to them. In this quarantine Pride Month, devoid of parades and parties, the Bostock decision is certainly something to celebrate!

On the day the Bostock case was being argued (October 8, 2019), we predicted the now historic outcome in an article stating, “…the Court will hold that sexual orientation discrimination and discrimination based on transgender status constitute sex discrimination under Title VII of the 1964 Civil Rights Act because adverse employment decision discriminating against the LGBTQ community are being made ‘because of sex’ of the employee.” Honestly, there was only one direction the Bostock holding could go, granting protected status under Title VII.

A Monumental and Unpredicted Decision for LGBTQ Employees

The decision is monumental and unpredictable for several reasons. First, it provides equal treatment to LGBTQ employees in their employment and provides tools to fight against employment discrimination. Sexual Orientation carries as equal a significance as race, national origin and religion, under Title VII.  Second, the Supreme Court’s decision demonstrates what we have been complaining about for a long time, employment law is NOT political and should not be politicized. Employment law is bi-partisan and protects everyone.  Here, conservative justices (Gorsuch, Roberts) joined with the Court’s liberal wing (Bader-Ginsburg, Breyer, Sotomayor, and Kagan) to expand Title VII protections to a whole new class of employees.  We are all equal under Title VII, contrary to current popular media depiction that as a country we are inherently unequal and divided during this election season.

Three Cases, Almost Identical Facts, and Different Outcomes

The Bostock decision actually involves three separate cases with almost identical facts and different outcomes. Frankly, advocates could not have dreamed up the perfect test cases for securing LGBTQ employment rights if they tried. They each involve long-term employees who were fired from their jobs after their employers learned they were homosexual or transgender, and for no other reason. They involve both public and private employers.

Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate for more than a decade. The county won national awards for the work he did leading the department. When “influential members of the community” made disparaging remarks about Mr. Bostock’s participation in a gay softball league, he was fired for conduct “unbecoming” a county employee. The Eleventh Circuit dismissed his case, holding that Title VII to the Civil Rights Act does not prohibit employers from firing employees for being gay.

Donald Zarda was a skydiving instructor with Altitude Express in New York. After several years with the company, Mr. Zarda mentioned to a female student that he was “100% gay” to allay any discomfort she may have felt about their tandem jump – she was going to be extremely close to Mr. Zarda, strapped to the front of his body. Days later, he was fired. The Second Circuit held that Title VII prohibited employers from firing an employee for being gay.  Mr. Zarda died before his case reached the Supreme Court and his estate continued his legal battle.

Aimee Stephens worked for R.G. & G. R. Harris Funeral Homes in Garden City, Michigan for six years. During her tenure, she presented as male. When she informed her employer that she planned to “live and work full-time as a woman” upon her return from an upcoming vacation, the funeral home fired her saying, “this is not going to work out.” The Sixth Circuit’s decision was consistent with Second Circuit: Title VII prohibited employers from firing an employee for being transgender. Ms. Stephens died last month, yet her estate carried her fight to fruition.

The New Rule Banning Sexual Orientation Discrimination

Justice Gorsuch, who wrote the opinion for the 6-3 decision, wrote:

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors beside the plaintiff’s sex contributed to  the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer-a statutory violation has occurred. Title VII’s message is ‘simple but momentous’: An individual employee’s sex is ‘not relevant to the selection, evaluation, or compensation of             employees.’…

An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

At bottom, these cases involve no more than the straight-forward application of legal   terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’”

How Can You Protect Yourself After Bostock?

If you are a LBGTQ employee and believe you are experiencing unfair treatment at work, we have the following strategies your employer may not want you to know about.  First, very quietly write down your factual narrative in chronological order on a computer you do not use or access for work.  Writing out your story is part of the investigative process that lawyers use to determine liability and how we advise clients. If you are getting the sense you are being set up for a performance improvement plan (PIP) or termination, your employer and their employment attorneys are already examining and trying to control your factual narrative, but they will never tell you that.   Second, quietly gather all offending and supportive emails, text messages, slack message etc. and preserve them.  The content of these documents should appear in your factual narrative in some form. Third, do not tell your supervisor or HR that you have potential claims until you speak to an employment attorney in our office.  Your supervisor and HR personnel do not represent you and work only against you on behalf of the employer.  They will always deny this fact. Third, you need to decide if you are going to remain employed or seek a severance package from the employer.  We have an obligation to keep you employed for as long as possible for your income purposes. More importantly, you may be able to gather corroborating or direct evidence of discrimination by remaining employed; your employer will not predict you are secretly investigating them and trying to set them up. Yes, you can do that.  Fourth, you never want to quit your job as you cannot collect unemployment benefits and it is more difficult to demonstrate a constructive discharge (i.e. anyone would leave on similar circumstances and file a charge).  Fifth, after we put your case together, we will then place the employer on notice that it is discriminating against you because of your sexual orientation and attempt to negotiate your exit package.  Sixth, avoid litigation at all costs, due to the expense and time involved; yes lawyers do give that sort of advice and we do it every day.

We have had many sexual orientation claims over the past twenty-four years, including several complicated transgender cases. We are more than familiar with all of the employer’s strategies and we can quickly assess the liability in your case.  For more information please contact Carey & Associates, P.C. at 203-255-4150 or send an email to info@capclaw.com.

They Denied My Unemployment Claim…Now What?

They Denied My Unemployment Claim…Now What?

The good news is that the enhanced unemployment benefits available in response to COVID-19 provide unprecedented and supplemental financial relief to employees. The bad news is that you applied for these generous benefits, but you have received a denial from the CTDOL.  So now what are your options? First, you must believe that the determination denying your benefits was in some way erroneous. Perhaps certain information was missing or reported incorrectly, or perhaps the fact finder at the CTDOL just made an improper or misguided determination. Regardless of the reason for the denial, if you believe the decision was WRONG, then you should take the next steps to reverse the decision and get your benefits as soon as possible. In almost all instances, if an unemployment determination is reversed, you will get your full benefits retroactively, assuming you continue to file weekly claims. So, what is the process for getting the CTDOL to reconsider your application and approve your benefits? This same process would be filed in all other states, but check your state department of labor website by using the following LINK.

YOU MUST FILE AN APPEAL:

You have 21 days after the date of the DOL’s written decision to file your appeal. Here are the different ways you can file your appeal:

  • File by mail, fax, or online at www.ctdol.state.ct.us/appeals/apfrmnt.htm.
  • Fill out an appeal form. You can get a blank form at an American Job Center or an Appeals Division office.
  • Write a letter. Include your name, address, social security number, date of the fact finder’s decision, and the reason you think the decision is wrong.

It is critical that you keep meticulous written records and copies of everything involving your appeal. In addition, we advise that you continue to file your weekly claim, even though the determination has been made to deny unemployment benefits because if you win the appeal, you will only get money for the weeks you filed a claim. It is also important that you file the appeal within the 21 days or you may be barred from having your appeal heard unless you can convince the CTDOL that you had good cause or reason to have missed the 21 day filing period.

WHAT HAPPENS NEXT:

Unemployment appeals will result in a hearing. While we are in unchartered waters given the overload of unemployment applications in response to COVID-19, it still appears that the hearing appeal process used by the DOL before COVID remains in place.

WHAT YOU NEED TO KNOW ABOUT YOUR UNEMPLOYMENT APPEAL HEARING:

A hearing is almost like a mini trial conducted  by a “referee.” These hearings are usually done in person at the offices of the CTDOL, but given current circumstances, they will likely be conducted for the foreseeable future by phone or some other video conference technology such as Zoom. In addition, unemployment appeal hearings are almost always completed in a day or less.

Once you file your appeal, the Appeals Division will mail you a notice with the date, time, and place of your hearing as well as the issues the referee will ask about. If you do not get this notice within 30 days, you should contact the Appeals Division. You should also contact the Appeals Division if you need to change the date or if you require an interpreter, or if you have any other questions, hardships, or concerns. Again, under normal times, the Appeals Division has been very approachable and responsive, but with COVID, the process might not be as user friendly as it’s been in the past.

PREPARING FOR YOUR HEARING:

While applying for unemployment benefits is something that most people are able to do on their own and without counsel, we do advise that you consult with an attorney related to your appeal hearing and ideally that you have an attorney present with you at your appeal hearing. Because unemployment benefits have been so greatly expanded in response to COVID-19, there is a lot more money at stake. You want to win this appeal and employment attorneys will be able to prepare you and represent you at the hearing in order to increase the likelihood of success.

With or without counsel, you will want to prepare for the hearing by organizing and bringing with you all the documents, exhibits and other evidence to support your case. Such evidence or documents might include any communications regarding the separation from your employment, your earnings, the circumstances surrounding your change in employment status, personnel records etc. These documents will be presented by you and examined by the referee at the hearing. In addition, you are the party witness to your appeal and you will be sworn in and questioned. However, you are entitled to bring supporting witnesses to the hearing and if that is the case, you should be prepared with a list of questions for that witness that will help support your position. You may also want to prepare a list of questions to ask the employer’s witness. In most instances, the referee will ask the witness questions, but you may be given a chance to question the witness yourself in order to cover anything that the referee might have missed. In addition, you should be prepared with some sort of a written “opening and closing statement” as the referee may ask at the beginning and then again at the end if you have any opening or closing remarks. Of course, these are all tasks that ideally would be done by your counsel if you have one present with you at the hearing.

HEARING TIPS:

  • Arrive 20 minutes early
  • Bring pen and paper
  • Be organized
  • Bring prepared notes and documents
  • Stay calm, demonstrate respect for the referee and do not interrupt or speak until it is your turn
  • Be persuasive
  • Be honest
  • Be prepared

AFTER THE HEARING:

The referee will take some time to review what was stated and presented at the hearing and will usually render a decision within 2-4 weeks. The referee’s decision will be mailed to you, however, in light of COVID-19, it is possible decisions may be emailed. So be certain to check both in the weeks following your hearing. If you win the appeal, you should continue to file, and the checks will follow. However, if you lose the appeal, you are permitted to APPEAL the appeal. You need to file that appeal with the Board of Review in person, by fax or by mail. This further appeal process requires you to submit a statement in support of your position and to explain why you believe the appeal hearing determination was erroneous. Again, this is a task best done by experienced employment attorney, but if you are going to do this yourself, it is important that you read the referee’s decision carefully and identify any mistakes in the decision or the reasoning behind the decision. You are also permitted to include with your statement any additional “proof” or other information that was not available to you at the time of your appeal hearing. The board will read and review your statement and make a decision based on your statement. You will most likely not be granted another hearing, so that is why it is so important that your appeal statement must be persuasive, compelling and legally sound. After all, this is your last chance to get those unemployment checks!

For more information about this article or to speak to one of our Employment Lawyers, please contact Carey & Associates, P.C. at 203-255-4150 or by email to info@capclaw.com.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

The U.S. Equal Employment Opportunity Commission has issued the following critical guidance that lawyers and judges are using today and you should as also.  Please use the following link to the following information below reprinted in its entirety:

Technical Assistance Questions and Answers – Updated on May 5, 2020

  • All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
  • The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act.
  • The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
  • The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It has been updated as of March 19, 2020 to address examples and information regarding COVID-19; the new 2020 information appears in bold.
  • The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:

A. Disability-Related Inquiries and Medical Exams

A.1. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? (3/17/20)

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

A.2. When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

A.3. When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic? (3/17/20)

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

A.4. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? (3/17/20)

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

A.5. When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty? (3/17/20)

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

B. Confidentiality of Medical Information

B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)

Yes. The employer needs to maintain the confidentiality of this information.

B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)

Yes.

B.4. May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19? (4/9/20)

Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.

C. Hiring and Onboarding

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (3/18/20)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.

C.2. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? (3/18/20)

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.

C.3. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? (3/18/20)

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

C.4. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? (3/18/20)

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

C.5. May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? (4/9/20)

No. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.

D. Reasonable Accommodation

In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

D.1. If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities, absent undue hardshipthat could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (4/9/20)

There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.

Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

D.2. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

D.5. During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).

D.6. During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change. This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

D.8. May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)

Yes. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

D.9. Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)

Yes. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

D.10. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic? (4/17/20)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

D.12. Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC? (4/23/20)

Yes. These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.

E. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

E.1. What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? (4/9/20)

Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.

Practical anti-harassment tools provided by the EEOC for small businesses can be found here:

  • Anti-harassment policy tips for small businesses
  • Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
    • report;
    • checklists for employers who want to reduce and address harassment in the workplace; and,
    • chart of risk factors that lead to harassment and appropriate responses.

E.2. Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? (4/17/20)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

F. Furloughs and Layoffs

F.1. Under the EEOC’s laws, what waiver responsibilities apply when an employer is conducting layoffs? (4/9/20)

Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.

G. Return to Work

G.1. As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20)

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? (5/5/20)

An employee – or a third party, such as an employee’s doctor – must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition).  Individuals may request accommodation in conversation or in writing.  While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.

The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need.  After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation?

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.  Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard.  As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties.  A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).  The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.  This can involve an interactive process with the employee.  If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).  An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.

G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (5/5/20)

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

For further information please contact our Employment Lawyers at Carey & Associates P.C. at 203-255-4150 or email to info@capclaw.com.

 

Scared To Return To Work During Covid-19?

Scared To Return To Work During Covid-19?

Even after weeks of quarantining and social distancing, we continue to read about alarmingly high statistics related to Covid-19 illnesses, hospitalizations and deaths. Regardless of which side of the political spectrum you are on, we can all appreciate the double edge sword of getting back to our normal way of living and returning to our jobs versus the risks of further spread and outbreaks. Sure, going back to work and getting a paycheck is the goal in theory, there are likely many of you who are scared in practice. Will I be safe at work? What precautions will my employer take to minimize risk? Will I be subject to having my temperature taken every day? Will I have increased exposure to the virus on my commute? I managed to avoid contracting the virus all this time and I am now fearful, I will get it by being around others at my workplace? These are all legitimate concerns. But now consider all of the above concerns if you are someone who is already disabled, someone who has an autoimmune disease, someone who is pregnant, someone who is older, someone who has an anxiety disorder, someone who is battling cancer. What rights and protections do these compromised employees have when told they need to report to the office on Monday AM? And how to do we all address their important needs?

WHAT IF I AM HEALTHY, BUT JUST SCARED?

The Americans with Disabilities Act (“ADA”) prevents employers from discriminating against employees with disabilities and continues to apply during the COVID-19 pandemic. The tricky part about establishing a case of disability discrimination is that the employee must be able to show that they were able to perform the essential functions of their jobs with or without reasonable accommodations. In other words, just because you have a disability, does not mean you are automatically guaranteed full protection from an adverse employment action as you still must be able to perform your essential job duties with reasonable accommodations made by your employer.

If you do not have any pre-existing disability, as defined by the ADA, and are simply scared to return to work or refuse to return to work, you can and might be terminated. After all, how can you perform your job functions if you are not willing or able to work?  However, if you can demonstrate that you have developed an anxiety disorder related to COVID-19, you should pursue a reasonable accommodation request with your employer. For example, perhaps you have a compromised family member living at home, or perhaps you were already someone who dealt with anxiety and now find that your anxiety has increased because of COVID -19, or perhaps you have some other emotional or psychological issue that renders you less equipped to manage the stress and fears associated with this pandemic. In these situations, it may be the case that you now have a severe anxiety disorder, a disability which would entitle you to reasonable accommodations from your employer such as being afforded the opportunity to work from home, or to work in an area of the office that is partitioned or secluded from others, or to work on off hours when the office is less crowded. The accommodation requested must be reasonable and must not present any undue financial harm or obstacles to the employer.

Each employee’s situation will need to be evaluated on a case by case basis. If you are able to perform the essential functions of your job from home and if the employer will not suffer any undue hardship from your working from home (or any other accommodation requested), you might be able to reap the benefit of a “disability” protection  under the ADA. Thus, if you are physically well, but are simply scared to return to work, there may be other factors at play that will entitle you to seek reasonable accommodations from your employer. Our employment attorneys will be able to help you navigate this, either in front of or behind the scenes.

IF I DO RETURN TO WORK, WHAT CAN I EXPECT?

While the ADA and state antidiscrimination laws continue to apply during the COVID-19 pandemic, these laws do not interfere with or prevent employers from following the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19. In other words, there will be a great deal of “gray area” regarding what your employer can and cannot do related to COVID-19, but here is some of what you may expect to find upon your return to work.

According to the recent guidelines, employers may screen employees (take temperature) who enter the workplace, and should rely on the CDC for guidance on symptoms associated with the disease. Employers may also administer COVID-19 tests to detect the presence of the virus before permitting employees to enter the workplace, as long as the testing is job-related and consistent with business necessity i.e. health care workers. If an employer requires all employees to have a daily temperature check before entering the workplace, the employer may keep a log of the results as long as the medical information is stored in a manner that maintains confidentiality and is apart from their personnel file, in accordance with the ADA. Despite the requirement of confidentiality, the employer may and should inform the work population if there has been a recent possible exposure or diagnosis and should require that employee to leave the workplace until they are symptom free. Lastly, an employer may require employees to wear protective gear such as masks and gloves and enforce infection control practices such as hand washing and social distancing protocols.

WHAT IF I AM SCARED TO RETURN TO WORK BECAUSE I AM DISABLED, COMPROMISED OR OTHERWISE AT HIGHER RISK?

The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, such a condition would fit the scenario of someone with a disability, as defined by the ADA, requesting a reasonable accommodation either to work from home or for additional safety precautions or adjustments at work. Apart from the specific medical conditions set forth by the CDC, there might be additional ones that constitute a disability as defined by the ADA and which therefore would entitle an employee to similar protection. Accommodations for those who request reduced contact with others due to a disability may include working from home as well as changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per the CDC guidelines or other accommodations that reduce chances of exposure. In addition, if you are disabled or otherwise compromised or at risk, other accommodations considered might be temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

What protections are provided to employees who are not CDC identified or ADA disabled, but may feel they are otherwise compromised because they are pregnant or older. While pregnancy and age are not “disabilities” and do not fall under the ADA (however, in some states like Connecticut pregnancy is considered a disability), employers must still handle such COVID-19 related matters pursuant to the protections afforded under the discrimination laws, such as Title VII. Thus, while an employer may not be legally required to accommodate a pregnant employee related to COVID-19 (or otherwise), an employer may not lay off, furlough or terminate a pregnant employee solely based on the CDC guidance that pregnant women are more likely to experience severe symptoms or that they should be monitored. The same holds true for employees over the age of 40 or for employees who come from a national origin with a higher rate of COVID-19 cases.

In addition, while a pregnant or older employee may not enjoy the protections of the ADA requirement to reasonably accommodate, there is nothing to prevent that employee from discussing this with the employer and requesting to work from home where it is safer. Further, if the employer is providing accommodations such as working from home or more flexible job hours to their more “desirable” employees on the basis of their younger age or their not being pregnant, that might constitute discrimination and should be addressed.

Lastly, while pregnant or older employees who are at higher risk might not fit under the ADA, all employers are governed by the CDC and OSHA. Employers need to be OSHA compliant always and now more than ever. So, if you believe that your employer is placing you at a greater risk, you may put them on notice of such and demand that they follow the workplace safety guidelines and laws. Most importantly, if you complain about any violations to these laws, it is unlawful for your employer to retaliate against you in any way for doing so. If you believe that is happening to you or might happen to you, we advise you call our employment lawyers immediately.

If you would like more information about this article, please contact Carey & Associates, P.C. and speak to one of our Employment Attorneys. Please call 203-255-4150 or email to info@capclaw.com.

 

 

FOR EMPLOYEES: Emergency Q&A With An Employment Attorney for $250.00 for 1 Hour

FOR EMPLOYEES: Emergency Q&A With An Employment Attorney for $250.00 for 1 Hour

Have you hit a wall in your attempts to obtain answers from the internet to your specific employment questions, then we have an offer for you.

Carey & Associates P.C. is offering a limited one hour engagement with one of our employment attorneys for a flat fee of $250.00.  The one hour session is designed to provide you with immediate answers to employment issues you are currently facing, such as paid FMLA and performance improvement plans, and how to navigate them while safely maintaining your job.

For employees who have recently been laid off, we can answer your post employment questions regarding severance negotiation, discrimination claims, wage claims, and unemployment benefits.

For more information please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

The Covid-19 Catch-All: Why Your Recent Termination Might Have Been Unlawful

The Covid-19 Catch-All: Why Your Recent Termination Might Have Been Unlawful

A record 22 million people were laid off in one month since the coronavirus pandemic shut down large portions of the U.S. economy as of the week ending April 16, according to the Wall Street Journal. The estimated current employment rate is 13.5%.  But were all those layoffs really due to the corona virus or did employers use the pandemic as cover to get rid of employees for other reasons, maybe unlawful reasons.  This is the big question many unemployed Americans are now asking.  Please review the following frequently asked questions and see which applies to you.

FAQ:    Were you recently furloughed, laid off, demoted or terminated due to COVID, but your co-workers remain employed?

FAQ:    Is your Employer still operating and profitable, yet you were laid off or had your compensation reduced due to a business decision to reduce costs or eliminate your job position?

FAQ:    Were other younger employees retained, while you were furloughed, laid off, demoted or terminated?

FAQ:    Were you laid off or terminated and not offered any severance or insufficient severance?

FAQ:    Were your unemployment benefits interfered with?

FAQ:    If you were unable to continue to work because you were sick, because a family member was sick or because you have young children at home, were you permitted to take FMLA leave or were you instantly laid off or terminated?

FAQ:    Were you the only one furloughed, laid off, demoted or terminated or due to COVID, even though your Employer is calling it a “reduction in force”?

FAQ:    Do you think your Employer was looking for an excuse to get rid of you?

If you answered yes to any of the above, your seemingly straightforward COVID-based termination may be unlawful. Unfortunately, the majority of Employees in the U.S. are “at-will”. This means that employees are at the absolute and arbitrary whim of their employers and they may be demoted, terminated or otherwise treated adversely for any reason or no reason at all. The exception to the anything goes rule of an at-will employment arrangement is that employees may NOT be treated unlawfully.

If you have recently suffered an adverse change in the terms and conditions of your employment amidst the COVID-19 crisis, you may still have viable claims against your employer for unlawful or wrongful treatment. COVID-19 is not and should not be a catch-all excuse or defense for employers’ bad behavior and even a crisis of this magnitude does not relieve employers of their obligation to treat employees lawfully at all times. If something does not feel right to you about the circumstances of your change in employment, it is prudent to speak to an employment attorney and review the fact pattern surrounding your work situation. It is in your best interest to discern whether your employer may be using COVID-19 as a sham or cover for otherwise unlawful behavior.

Unlawful or wrongful acts that may entitle an employee to monetary damages for claims against their employer will usually fit in one of three scenarios. Employers actions can be shown to be unlawful if they:

              1) violate or fail to comply with any legislative mandate, act or

              statute;

              2) breach a valid contract or agreement; or

              3) discriminate, harass or retaliate based on a protected class trait.

COVID-19 does not give employers a green light to violate laws, ignore contracts or discriminate against employees, and a termination under any one of those scenarios might be a wrongful one.     

Scenario 1 – Statutory Violations:

Employers must abide by all existing laws and statutes, especially as they apply to the COVID-19 pandemic. It is the employers’ obligation to stay abreast of and comply with all new mandates imposed and legislation enacted in response to COVID-19, including, but not limited to enhanced FMLA, the CARES Act and the expansion to the Unemployment Compensation Act. This is in addition the existing laws that have long protected employees from discrimination and retaliation such as Pregnancy, Sex Harassment, Sexual Stereotype, Disability, Age, Whistle Blowing and Family Medical Leave, to name just a few. Thus, any analysis of whether your termination was lawful and proper should begin with a review of the facts relative to the controlling law and any revisions and updates to those laws. If you identify any facts in the events leading up to your termination that just do not seem right, you may have uncovered the hidden basis for your termination.  For example, you got a good review last fall and received a bonus in January, but in March you were terminated without explanation.  The small window between the January bonus and March termination should be closely examined for any facts supporting bogus performance issues, favorable treatment given to other employees and not you and replacement by coworker who is substantially younger and lesser qualified.  The examples are endless, but you get the gist. See further discussion below.

Scenario 2 – Breach of Contract:

Even an at-will employment arrangement must be considered in light of any existing employment contracts or agreements between the employer and employee. In addition to or in the absence of a formal written employment contract, Courts may look to such documents as offer letters, on-boarding communications, employee handbooks, published severance plans and emails in order to demonstrate the existence of any enforceable covenants between the parties that may speak to such topics as causes for termination, compensation, bonus, healthcare, long term incentive compensation and severance. Thus, where a valid contract can be established as to any of your employment terms, your employer is bound by those terms and any deviation may be an unlawful breach for which you might be able to seek and recover damages. So, if you have been terminated or otherwise caused to separate from your employer, even if you are at-will and even amidst the COVID-19 crisis, it is imperative that you review all of your documents in order to discern that you are being treated lawfully according to the terms that were agreed upon and promised to you.

Scenario 3 (THIS IS THE BIGGIE) – Discrimination Claims:

Even if you are an at-will employee who was let go as a result of COVID-19, you may still have a claim for wrongful termination against your employer if their decision to let you go was at all based on discriminatory motives. Discrimination is unlawful and where an adverse act is taken against you because of such protected traits as your age, gender, pregnancy, race or national origin, disability, perceived disability, associational disability or sexual orientation, you may have legal claims against your Employer.

In the absence of direct evidence of discrimination or the smoking gun as we call it, discrimination can be shown if you are a member of the protected class and you were treated adversely (demoted, furloughed, laid off or terminated) under circumstances which give rise to an inference of discrimination, i.e. circumstances that show discrimination was the substantial motivating reason for the adverse act taken against you. The way an employer can defend itself against such a claim and rebut that inference is to show that there was a “legitimate” lawful reason for the termination, such as performance issues and other cause such as a business decision or reduction in force.

Certainly, you can all see where this is heading. COVID-19 and the related financial fallout provides your employer with the legitimate business reason it needs to “lawfully” terminate you.  However, this cannot be accepted at face value. In fact, if you are able to show that the supposed legitimate reason relied on by employer was a sham or cover for discriminatory motives, you may prevail on your claims against them in a severance negotiation. There are surely many situations where an employer, especially during these challenging economic times, needs to make a tough business decision to lay off employees or institute a reduction of force, and where their decision to do so is legitimate and truthful.

Employer May Have Used Covid-19 As An Excuse to Fire You

However, there are also many instances where certain employees are selected within the context of a business decisions, based on discriminatory motives. For example, the company makes the “business decision” to lay off only the older employees, or only the female employees or only the pregnant employees. In addition, there might not even be any explicit or formal business decision to reduce costs or a effectuate a reduction in force, but your employer may still feel safe engaging in discriminatory behavior knowing or hoping that any terminations taking place now will be viewed as a necessary and legitimate, due to the Covid-19 business climate. Again, we cannot allow employers to use this catch-all defense to what maybe culpable and unacceptable discriminatory behavior.  If you see something, say something to an employment attorney.

There is no doubt that both employers and employees are presently finding themselves in the most difficult and tenuous circumstances. However, employers, in response to COVID-19, seemingly have absolute power and new founded legitimacy to make discriminatorily targeted employment decisions against their at-will employees, under the guise of a business decision. And this is very concerning and unlawful. If you are in a protected class because you are over the age of 40 or fall into any of the other class of protected traits discussed herein, and have seen a change to your employment that you do not believe was made as the result of a good faith business decision, cost reduction, reduction in force in response to COVID-19, or other legitimate basis, we encourage you to speak to an employment attorney immediately. You may be entitled to reinstatement, severance or increased severance or settlement dollars relative to your discrimination claims for wrongful termination or other possible improper acts by your employer.

Carey & Associates, P.C. is currently providing complimentary consultations for potential new clients who are experiencing any employment related issues or believe they might have possible employment claims, as a result of the COVID -19 pandemic. Feel free to contact our office if you need help with that or any of your employment matters.

The Small Business Owner’s Guide to the CARES Act

The Small Business Owner’s Guide to the CARES Act

By Mark Carey

The CARES Act application opens today April 3, 2020.  The following PDF document is the most concise statement regarding the CARES Act as it relates to small businesses.  Please be patient with your bank lender because they are still waiting on pertinent information from Washington, D.C. about how to implement the program.  You need to fill out your SBA application to be considered for the CARES Act Paycheck Protection Program.

https://www.sbc.senate.gov/public/_cache/files/9/7/97ac840c-28b7-4e49-b872-d30a995d8dae/F2CF1DD78E6D6C8C8C3BF58C6D1DDB2B.small-business-owner-s-guide-to-the-cares-act-final-.pdf

For more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

Covid-19 and How the Employment At-Will Rule Destroyed a Nation

Covid-19 and How the Employment At-Will Rule Destroyed a Nation

By Mark Carey

For the week ending March 21, 2020, 3.2 million American workers were terminated from their employment, according to the USDOL.  How did 3.2 million employees just vanish? Worse yet, we expect millions more in layoffs in the coming weeks.  Covid-19 has created a panic for employers and the shelter in place strategy has decimated the economy, ironically our only defense.  What really happened needs to be unearthed, as the origins of this current employment crisis traces back to 1877!

Identify the Problem and Why It Happened

I am referring to the employment at-will rule, under which your employer can fire you without cause and you can quit anytime. I wrote a similar article about this topic last month, obviously unaware of the current tragedy to come. You may have heard about the employment at-will rule, but did you really understand the enormous implication it currently has on your work life and your finances, probably not until now. If you are one of the 3.2 million newly terminated employees nationwide- you are more than just upset, you are pissed. Unfortunately, this article is only going to infuriate you further.

Employers of all sizes have the power to “flip-you-off” without notice.  Who gave employers this inherently unequal and un-American authority to screw up your professional and personal life and now the entire economy?  Indirectly, you did.  How you ask? Your collective (157 million employees strong) continued silence and failure to object to the employment at-will rule over more than a century has emboldened employers nationwide.  Employers have carefully weaned our working class and our state and federal courts onto a capitalist ideal designed solely to benefit employers and profit seekers, and not employees. It is paradoxical that the United States is the only developed country in the world that follows the employment at-will rule. What a tragic mistake.

A Universal Law Was Born Out of Thin Air

The origin of the rule can be credited to an Albany, New York lawyer named Horace Wood in 1877.  Mr. Wood’s preordained rule stated:

“With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof …. [I]t is an indefinite hiring and is determinable at the will of either party, and in this respect there is no distinction between domestic and other servants.”

Mr. Wood never provided any legal authority from which he derived the employment at-will rule, because there was none.  The rule holds that it is equal to both sides, either can terminate the contractual employment relationship at any time and without notice, but it is inherently unequal due to the lack of employee leverage to negotiate for better terms of employment. Employees are desperate for employment and are willing to accept an unequal bargaining position to put food on the table and much more.

The Courts Bowed to Employers and the Tragedy Was Set In Motion

The employment at-will rule was adopted by the Courts and must be resolved by the Courts, not the legislatures.  Courts initially gave deference to the employment decisions made by employers and supported the at-will rule without asking about the legal validity of the rule itself and without thinking about the devastating impact upon all employees.  The Covid-19 event only makes the problem more transparent.  Courts continued to follow the employment at-will rule to the present day, again bowing to the deference of employers to terminate employees without notice, subject to a few limited public policy exceptions and statutory protections such as Title VII of the 1964 Civil Rights Act etc.

For decades, arguments have been asserted to change the rule without success, largely due to the enormous economic considerations at stake for employers.  Courts, the original enactors of the common law employment at-will rule, pointed the finger to the legislatures, asserting that courts cannot legislate. However, this was a merely a deception, as the courts knew and currently know that employer-side interest groups will lobby to kill every piece of legislation designed to eliminate or modify the employment at-will rule.  So, back to the courts. I can safely say that no state or federal court will seriously entertain, let alone sustain, any change to the common law employment at-will rule now or in the future.  How can we resolve this stalemate, especially now during this global pandemic?  Is the time right for change? I argue the time is at hand and the employment at-will rule must be abolished.

If 157 million Americans knew their jobs were protected during the Covid-19 crisis and their income was continuous, we all would feel a lot less anxious and better able to cope with the pandemic.

There Was a Solution All Along, Hidden From You

Did you know there was a different way to be employed, one where you could predict the end of your employment or at least have some say in the process? It’s called “for cause termination”, meaning you can only be terminated as a result of a documented poor performance and not based on arbitrary or discriminatory reasons.  Under this new schema, employees are also empowered by a rule called “termination for good reason”, permitting the employee to leave if she is demoted, her salary is reduced, a job relocation, discrimination etc.

Your employers, and their management counsel, never wanted you to know this information, fearing you might collectively say “we object” and force the entire employment system to change immediately.  That time is now. Well, in about two to three weeks I predict, when hundreds of thousands, if not millions, of employees across this country will be benched collecting unemployment benefits. You can bet they will want answers from their employers and the government. If you believed the #metoo movement was big, the Covid-19 era terminations will blow it away. Reporters are now using words like “great recession” and unfortunately “depression”, with estimates of a 20% unemployment rate.

We lead by example. In our office I have banned the employment at-will rule.  Instead, all of our employees are covered by the “termination for cause” and “termination for good reason” rules.  What’s the rule going to be in your office at the end of this crisis?

Employment attorneys must bring claims for wrongful discharge on behalf of American workers under one singular public policy reason that trumps all others.  We need Americans to remain at work, not furloughed and not laid-off.  The CARES Act (Coronavirus Aid, Relief and Economic Security Act) merely bandages the wound caused by the employment at-will rule, as it is only a temporary fix.  If we abolish the employment at-will rule and provide job security under a new “for cause termination” rule, the next time a pandemic surfaces, and it will, we will be better prepared as a country and our economy will not suffer in comparison to what is about to unfound over the next several weeks and months. Employees will have already been hooked up to payroll systems and the almighty U.S. Government can readily rain money down on us all.

That economic hurt is coming to your employment doorstep ASAP and you must say and do something about it today.  We are all connected to some form of a communication device, so spread the word. So now that you have seen something, say something.  Share this article. Re-tweet my tweet and #ban-employment-at-will once and for all.

For more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

Covid-19 and Noncompetition Agreements: 4 Situations Where They Are Not Enforceable

Covid-19 and Noncompetition Agreements: 4 Situations Where They Are Not Enforceable

By Jill Halper

If this blog article has caught your attention, you likely already understand what a non-compete is and might even be dealing with a non-compete situation presently.

Just to summarize, a non-compete is a restrictive clause or agreement whereby an employee agrees not to become employed by a “competitor” of their former employer or to otherwise “compete” with their former employer. These restrictive covenants are usually restricted to a reasonable length of time and geography.

Non-compete agreements can sometimes be found to be unenforceable if the restricted party can show that they are not “reasonable”. If the restrictive terms are deemed to be too broad, too long a period of time, or not necessary to promote a legitimate business reason, a court may void a non-compete.

Many states, including CT, have been exhibiting an increased distaste for non-competes, with courts more apt to find these agreements unreasonable and unenforceable. In light of current events, we envision an even stronger trend in this direction.  There has already been and will continue to be company downsizing and dissolution, which means employees and executives will need to seek new employment or start their own business. We hope and expect Courts to favor employees, more than ever, during this economic crisis. We envision all of the current non-competes under which displaced employee’s may now find themselves, to be subject to scrutiny in the coming months as things continue to unfold.

While there are many scenarios where non-competes will need to be addressed in a Covid-19 context, below are four scenarios where you might want to promptly seek counsel regarding a non-compete

IF YOU ARE CURRENTLY UNDER A NON-COMPETE:

If you left your employment before (or during) the Covid-19 pandemic and are currently honoring a non-compete, all bets may be off in certain situations. For example, if your former employer or career happened to have been in what has now been termed an “essential business”, we would argue that your non-compete should be void. Courts often look to the totality of the circumstances when analyzing these agreements. As such, given the current outbreak and the need for essential workers in fields such as health care, banking, liquor stores and distribution, pharmacies, construction, marijuana dispensaries, to name just a few, one can make the argument that the public’s interest in having as many people working in these essential fields during this time, outweighs the former employers’ interest in enforcing a non-compete. Each state has their own designation of what constitutes an essential business.

In addition, arguments can be made that an act of God, such as a pandemic, can invalidate a contract or non-compete. We can advise you about this and have strategies for voiding your non-compete if you are an “essential” employee sitting on the sidelines honoring your non-compete, or even if you are not an essential employee based on the reasonableness of enforcing such an agreement when an act of God has wrecked so much havoc on employees and our economy.

IF YOU ARE CURRENTLY FURLOUGHED:

If you have been furloughed during the Covid-19 pandemic, but still employed, you might be worried that your furlough will at some point turn into a permanent separation from your job. If you currently have a non-compete with your employer and your furlough results in a termination, or you decide to leave during your furlough to accept other more gainful employment, it is important that you look to the specific terms of your non-compete in order to understand if it is enforceable under these unique circumstance. For example, some non-competes are not enforceable if you were terminated not for cause. In addition, if your furlough morphs into a termination or even a voluntary resignation, and you are subject to an enforceable non-compete for a period of time following your separation from your former employer, it is our position that your non-compete starts to run from the time you were furloughed not the time of your permanent separation. For example, if you are presently employed and have a 1 year non-compete from the time you ceased being employed, if you become furloughed for 2 months because of Covid-19, and then ultimately separated from your employer under these same circumstances, we will make the case that your 2 month furlough was “time served” and your remaining non-compete should only be for 10 months.

IF YOU ARE AN EMPLOYER LOOKING TO HIRE SOMEONE WITH A CURRENT NON-COMPETE:

Non-compete agreements often require the employee to inform any future employer about the existence of the non-compete. A future employer can be liable for interfering with a contract if they knowingly hire an employee who is under a non-compete. The new employer may be forced to fight an injunction and risk having to forfeit the recently hired employee, as well as subject to potential damages, if a court finds that a valid non-compete was in place and has been breached. But we will argue that all bets are off, and all of this is about to change in a Covid-19 world. We will fight for employers to show that the enforcement of the non-compete is unreasonable because people need jobs now and if an employer is willing to hire, they should not be restricted from doing so. There should be no obstacles to employers hiring at this time. Non-competes have been falling out of favor before Covid-19, and we believe that they will be even more frowned upon in the coming months. Courts will be reluctant to punish employers who are making efforts to getting back to business and providing employment even where there might be an existing non-compete.

IF YOU ARE A DISPLACED EMPLOYEE WHO IS BEING ASKED TO SIGN A NON-COMPETE IN ORDER TO SECURE NEW EMPLOYMENT:

Unfortunately, we are all finding ourselves right now in an “employers’ market” so to speak. While employers and their businesses are suffering immeasurably, they are still in the driver’s seat and the decision makers when it comes to hiring and firing. As such, if you are lucky enough to get new employment in this environment and an employer inserts a non-compete clause into your employment agreement, you might not have a great deal of leverage to fight back on this, as we would normally counsel our clients to do. If you find yourself in this situation, we still have strategies to protect you in lieu of fighting for the removal of the restrictive covenant at the outset and risking your new employment opportunity. We are having our clients sign affidavits contemporaneously with their employment contracts which speak to the extraordinary circumstances of obtaining employment amidst Covid-19. Contractual terms may be unenforceable if you can show that you signed under duress or that you did not intend to enter into a non-compete but had no choice. We believe that Courts will be reluctant to enforce non-competes entered into during this time and we have strategies such as the aforementioned affidavit that can be used at a later date if the employee needs or wishes to attempt to void a non-compete entered into during these unprecedented times.

If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at info@capclaw.com.

The New Shared Work Program Might Be Your Solution During the Covid-19 Pandemic

The New Shared Work Program Might Be Your Solution During the Covid-19 Pandemic

By Jill Halper

It is possible that many of you might not be aware that the CT Department of Labor (CTDOL) already has regulations in place known at Shared Work Program which was enacted to specifically to address any unexpected and sudden downturns in your business, such as the one we are all currently experiencing.  While the scenarios for devising such legislation likely did not contemplate a Covid-19 pandemic, CTDOL has been promoting this platform in recent days to inform and remind businesses of this vital option available to them. For one, this program addresses the question that we have been getting repeatedly, “Are employees entitled to unemployment if they have not been terminated but are working fewer hours and making less money?”

This platform also provides a strategy for businesses who want to keep employees employed while they ride out the storm, but are not in a financial position to currently provide them with their regular full compensation. Although all non-essential businesses are currently shut down, with President Trump declaring that he wants businesses back open and people returning to work on April 12th,  the option of a shared work arrangement might be something to start to think about as both employers and employees consider the most optimal strategy for re-entry into MAKING MONEY.

HOW DOES IT HELP EMPLOYERS?

Shared Work is a voluntary program that helps employers during business downturns by providing an alternative to layoffs. Shared Work allows the employer to reduce work hours and pay for an entire group of affected employees rather than laying off across the board. To qualify, the business’ reduction of work cannot be less than 10 percent or more than 60 percent, however, it would not be surprising if those percentage requirements experience may get modified, in light of the recent events.

The program allows employers to pay partial unemployment benefits and partial pay as an alternative to a full termination which would result the employer’s obligation to pay full unemployment benefits to displaced employees. Further, by reducing hours as opposed to laying off employees, the relationship between employer and employee remains intact. This ensures that these employees will be available for regular hours when business picks up by keeping them on staff while providing them with reduced pay and partial unemployment benefits (and even fringe benefits) during a downturn or in this case, a total shutdown.

Whether a small business or a large manufacturer, the Shared Work Program can save the employer the time, worry and expense of having to hire and train new workers by keeping skilled and experienced workers on the job until business upturns. In light of current circumstances, this will allow for a smoother, quicker and more efficient return to normal business once the shutdown has been lifted. Searching for, training and onboarding new employees is a laborious process. Shared Work affords employers the opportunity to pick up where they left off as far as staff is concerned. The last thing employers are going to want to deal with once given the green light to reopen are delays in earning revenue caused by first having to find and train qualified employees, not to mention the expenses associated with the search and hiring process.

To participate, an employer must complete an application for the affected groups of employees or departments within the company and submit it to the CT Department of Labor for approval.

Our firm has become well versed in this program and are here to help answer any of your immediate questions, complete applications for you or provide ongoing counsel throughout the process.

HOW DOES IT HELP EMPLOYEES?

The Shared Work Program is an effective alternative to an employee’s full termination during what is already a most difficult and stressful time for everyone. Rather than being laid off, employees work a reduced number of hours and receive a portion of their compensation and a portion of their weekly unemployment benefit payment. The employer submits a weekly report to generate the employee’s unemployment payment. The employee does not have to file anything. In essence, the employee continues working while collecting unemployment benefits to supplement the lost or reduced wages. The Shared Work payment is based on the percentage of the reduction. For example, if an employee normally works 40 hours per week and earns $20 an hour, under the Shared Work program, if the employee’s hours are reduced by 20 hours per week (a 50% reduction), the unemployment benefit would be reduced by 50%.

To show how this can result in more money in an employee’s pocket, if the employee in the above scenario was totally laid off, they would be entitled to $400/week in unemployment benefits. However, under the Shared Work program, if they worked and earned 50%, they would receive $400 in pay ($20 hour x 20 hours) and $200 in unemployment (50% of the total benefit). So, they would be receiving $600/week instead of $400/week AND they would have a job to return to!

Under this program, the employee would also be entitled to fringe benefits such as health, retirement benefits, and union seniority (if applicable).

Our firm has become well versed in this program and are here to help answer any of your immediate questions, assist you in alerting your employer about the existence of this program, provide you with ongoing counseling throughout the process or help you with any of your employment needs.

If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at info@capclaw.com.

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