Employment Law Attorneys
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.

CONTRACTS AND COVID-19  What Businesses, Employers and Employees Need to Know NOW

CONTRACTS AND COVID-19 What Businesses, Employers and Employees Need to Know NOW

By Jill Halper

In light of the imminent widespread COVID-19 outbreak across the U.S., parties to contracts, both in business and employment scenarios need to carefully review their existing agreements in order to determine how these recent events might impact their contractual obligations. For example, in the likely scenario that a party to a contract is presently unable to perform under the contract due to having to self-isolate, due to an office, workplace or business closing, due to having the virus or any other related reason, can that party be relieved of their contractual obligations without exposure for breach? The answer is IT DEPENDS.

An Act of God May Void a Contract

Generally, as employment attorneys, we handle the drafting, review and negotiation of contracts for employers and employees as well as for asset purchase, merger, partnership, buy out and other business transactions. While the purpose of a contract is to bind the parties, there are certain instances, where parties are excused from performance because a contract is found to be void and no longer enforceable under law. With a voided contract, the parties are no longer bound by the contractual duties set forth in the agreement. Circumstances that might render a contract void by operation of law include a lack of capacity to perform by one or both of the signors, mistake, breach, signing under duress or coercion, and impossibility of performance. Regarding this last circumstance, an act of God may be interpreted as something that makes the performance of the contract impossible or impractical. In this instance, and absent express language voiding the contract for an act of God or the rule of impossibility, one would attempt to argue that because of unforeseen occurrences which were unavoidable and would result in extreme delay or expense, the contract is void and as such, the promise to perform is discharged.

The Impact of COVID-19 and Act of God Provision in Contracts

It is no doubt already clear to you how all of this fits into the current state of affairs regarding the COVID-19 outbreak. If you are currently a party to a contract and are unable to fulfill your duties under that contract because of these unforeseen events, you might be able to declare the contract void and thus discharge you from your contractual obligations. The first step is to determine whether your contract contains an act of God clause, otherwise known as a force majeure clause. These clauses, often used in insurance contracts in order to remove or limit liability for injury and losses caused by acts of God, also find their way into other important transactional instruments. If your contract does not include an act of God or force majeure clause, generally speaking, one will not be implied. If your contract does contain a force majeure clause, the specific language used will determine the scope and applicability of the clause.  The fact that a contract contains a force majeure clause does not automatically mean that you have the right to breach or seek relief as a result of impacts to your business from COVID-19. Because these are unchartered waters, it is highly unlikely that your current contract terms reference this virus as an act of God covered by this clause. Absent such express language, you will need to determine whether an event of force majeure under your contract has occurred. This is a matter of both a strict reading of the contract language and contract interpretation.

An Employment Attorney Can Provide Guidance

With this in mind, it is important that you seek legal advice and examine any contract where you are experiencing challenges in fulfilling your contractual duties or receiving the benefits of the bargain under the contract, because of the COVID-19 situation. In the absence of express language, we will need to analyze and interpret the language in order to counsel you as to your rights and liabilities. It is not as easy as one might think to get out of a contract and avoid a breach as the standard for demonstrating “impossibility of performance” is a hard one to meet. A disruption that merely impacts the profitability of a contract may not be sufficient for a force majeure claim, nor would an economic downturn or other ordinary adverse business conditions likely be sufficient. Therefore, it is always advisable to expressly include (or to intentionally not include) a customized force majeure clause, depending on which side of the agreement you are on. This is something we discuss with our clients when drafting and reviewing agreements or will help our clients negotiate depending on what their objectives are. Needless to say, such language in your agreements could be a much needed life-line for your business or job, especially during the current crisis.

What is a Usual Force Majeure Clause

In examining your agreements for the relevant and controlling language, a contractual term which states only that the “usual force majeure clause” applies or that uses boiler plate language has been held void for uncertainty. A force majeure clause operates as an exclusion clause, excusing a party from performing its contractual obligations. It is therefore subject to the reasonableness test under the Unfair Contract Terms Act 1977 or the fairness and transparency requirements of the Consumer Rights Act 2015. A force majeure clause that is too broadly drafted maybe considered to be unreasonable and declared void, providing no effective protection to a party and leaving them exposed to a claim for damages. What we are now so keenly aware of is that a force majeure clause that references acts of God may encompasses much more than natural disasters and weather events. As such, the language will ideally reference not just acts of God, but also might include particular events such as pandemics, outbreaks and epidemics. One might even want to include trigger events such as quarantines, social distancing mandates, government imposed lockdowns, shutdowns, shortfalls, supply chain obstacles and the like in these clauses These are events that we might not have previously contemplated, but given what we know now, they should be discussed and considered so as to make your force majeure clause as clear and comprehensive as possible. Courts in this Circuit have held that force majeure clauses should be interpreted by reference to the express words used and not by the parties’ general intention. An optimal force majeure clause will typically seek to exclude liability or excuse non-performance in certain circumstances described with a high degree of specificity AND be followed by a catch-all phrase. It might also include language that requires the invoking party to demonstrate that the event could not have been mitigated by preventive action.

Sample Force Majeure Clause

As such, in light of recent events, the below sample language might be contemplated when advising our clients in their current and future contract matters:

“Neither party hereto shall be liable except under the indemnities provided herein and for the payment of monies due hereunder for failure to perform the terms of the Agreement when performance is hindered or prevented by strikes (except contractor induced strikes by contractor’s personnel) or lockout, riot, war (declared or undeclared), act of God, pandemics, epidemics, insurrection, civil disturbances, fire, interference by any Government Authority, including but not limited to government shut downs of business operations, mandated quarantines or curfews, mandated social distancing, or other cause beyond the reasonable control of such party and unable to be reasonably prevented.”

With regard to Asset purchase agreements and other corporate transactional contracts, these agreements might include what is known as a material adverse change clause (also known as a MAC or material adverse event (MAE) provision) in place of or in addition to an act of God or force majeure clause. A MAC clause, for example, might give the buyer in an asset purchase agreement the right to terminate if the target business being acquired is materially and adversely affected by certain events occurring in a specific time period. Once again, in this context the recent coronavirus outbreak might be interpreted to be such an event and the parties will therefore need to be properly advised as to the enforceability of their asset purchase agreement terms.

If you are considering declaring and enforcing a force majeure event in order to be released from an agreement (asset purchase, employment, business or any other contract), because of the coronavirus outbreak or if any party is attempting to invoke a force majeure clause against you in an existing contract because of the coronavirus outbreak, you should carefully review your agreement and consult with legal counsel as soon as possible. Just as importantly, if you are creating or entering into any new contracts, or wish to draft addendums or modify any existing contracts, you should seek legal advice. A proper force majeure clause might be the most important language in your agreement and be a matter of economic life or death in these trying times, presently and in the months to come.

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.

Uncovering Your Bias About People Infected By the Coronavirus

Uncovering Your Bias About People Infected By the Coronavirus

By Mark Carey

You know the man in the supermarket you saw today as you hurried for the last roll of TP… yes the one with the facemask and plastic gloves. Was he wearing the protective essentials because he was sick or because he was trying not to get the Coronavirus? Were you afraid to go near him?  Should he wear a symbol (red or green) indicating he was infected or not?

The internal reaction you had was most likely a flight and fight response you could not suppress.  But did you have enough information about this masked shopper to really render a rational conclusion that it was safe to pass? Probably not.  He could have been shopping for an elderly couple, sitting in their car in front of the store, performing a good samaritan deed and wore the protective gear to ensure he was not infecting the food he was gathering.  Would that make you feel different about this fellow?

What if the masked shopper lived with a family of five, all of whom were now contagious with the Coronavirus and the Dad, the only noninfected family member, was wearing the protective gear 24/7 in order to care for his family. Someone must still shop for food when nearly the entire family becomes ill. Would this make you feel different about him?

As we all move through these very uncertain and anxiety filled times, I ask you all to hold your judgments about each other until you can obtain more information, and then don’t judge.  Maybe exchange a few words and see if the person is ok, instead of ignoring them. Or just express a warm “hello” or “good morning”. Everyone has a story or will have a story about how they are coping with this national tragedy, including the New Rochelle Man.  We all will need more compassion and less bias in order to get through this.

According to a recently released Centers of Disease Control projection modeling, 160-214 million Americans are expected to contract the Coronavirus; you and I stand a good chance to become inflicted.  When you do, you will immediately wonder how people will judge you and whether you were careless in your pre-infection days, going to work or a party with a cough or jumped on an airplane.  The point is, no one knew they had the infection before it was too late, as no knows what the early stages of the Coronavirus feel like.

The Coronavirus does not discriminate based on sex, race, national origin, religious affiliation, sexual stereotype, age or political ideology.  We are now ALL on the same team.  Show a smile to a passerby, saw hello instead of looking down or away, volunteer to buy groceries or cook for the elderly, call your parents more often.  Take care of the home team, because we ALL need you right now. Finally, do not forgot what expressing or receiving compassion feels like when this is all over, we need to continue to take care of our home team no matter our differences.  Give a Shaka today.

If you need immediate assistance, please email our Employee Coronavirus Hotline and we will attempt respond to your questions.  Mark Carey can be reached at 203-255-4150 or mcarey@capclaw.com.

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Employees Are Entitled to Mandatory Paid Leave During Coronavirus Outbreak

Employees Are Entitled to Mandatory Paid Leave During Coronavirus Outbreak

By Mark Carey

In our continuing effort to bring you immediate and pertinent employment related information during the Coronavirus outbreak, I have the following answer to your question whether you will be paid for sick leave by your employer if you contract the Coronavirus and are ordered to self-quarantine at home.

I have researched for you all the states that provide for Mandatory Paid Sick Leave for employees who contract the Coronavirus. There are different requirements in each state and I have attempted to summarize them below.  I have also included a link to each state statute for your further reading.

Please note, these benefits are in addition to Family Medical Leave Act benefits under state and federal law. Generally, employees are entitled to 12 weeks of paid/unpaid time off due to a serious medical condition under federal FMLA; some states like Connecticut provide for 16 weeks of FMLA leave.  Employers often coordinate such a leave with Short Term Disability Benefits at a 100% of base salary.

The following states now provide paid sick leave to employees.

Arizona –Earned Paid Sick Time

Employees are immediately entitled to paid sick leave upon hire. Employees accrue one (1) hour of earned sick leave time for every thirty (30) hours worked, but employees can only accrue 40 hours of earned paid sick leave per year.  The statute applies to employers with 15 or more employees; employers may elect a higher annual amount if they choose.

California – Healthy Workplaces, Healthy Families Act of 2014 (AB 1522)

Employees are eligible after 30 days of date of hire. Employees accrue one (1) hour of earned sick leave time for every thirty (30) hours worked.  A total of 48 hours or six days

Connecticut – Paid Sick Leave Act

Employees who work for employers with 50 or more employees are entitled to 40 hours of paid sick leave per year. Employees accrue one hour of sick leave for every 40 hours worked. Employees can carry over unused sick leave from year to year, but are limited to 40 hours each year.

Maryland – Maryland Healthy Working Families Act 

Employees are entitled to five (5) days of sick leave but must work for employers with 15 or more employees. Employees accrue one hour of sick leave for every 30 hours worked.

Massachusetts – Earned Sick Time for Employees

Employees are entitled to 40 hours of paid sick leave per year. Employees earn one hour of paid sick time for every 30 hours of work.  Law applies to employers with 11 or more employees.

Maine – LD 396 (takes effect Jan. 1, 2021)

Employers with 10 or more employees will be required to provide 40 hours of paid sick leave each year. Employees must work 40 hours to earn one hour of paid sick leave.

Michigan – Paid Medical Leave Act (SB 1175)

Employees are entitled to 40 hours of paid sick leave each year and will accrue one hour of paid sick leave for every 30 hours of work. Law only applies to employers with 50 or more employees.

Nevada – 2020 Paid Leave Statute

Employees are entitled 40 hours of paid sick leave each year, but can only use paid leave after the 90th day of employment.  The paid leave can be accrue year over year.

New Jersey – The New Jersey Paid Sick Leave Act

Employees are entitled to 40 hours of paid sick leave each year or every consecutive 12 months.  Law prohibits use it or lose it benefits, and must pay the balance of unused benefit; the paid sick leave can accrue year over year. The law prohibits a use it or lose it policy and the employer must compensate for unused paid sick leave.

Oregon – Mandatory Provision of Sick Time 

Employees who have worked at least 90 hours for an employer are entitled to 40 hours of paid sick leave per year.  Employees earn 1 hour of paid leave for every 30 hours worked.

Rhode Island – Healthy and Safe Families and Workplaces Act

Employees are entitled to 5 days (40 hours) of paid sick leave. Law applies to employers with 18 or more employees. Employees must wait 90 days after the date of hire to use benefit.

Vermont –  Act 69 (H 187)

Employees are entitled to 40 hours of paid sick leave per year. Employees earn 1 hour of paid sick leave for every 52 hours of work.

Washington – Paid Sick Leave

Employees are entitled 40 hours of paid sick leave per year and hours can accrue year over year.  Benefits do not start until 90 days after the date of hire.

If you need immediate assistance, please email our Employee Coronavirus Hotline and we will attempt respond to your questions.  Mark Carey can be reached at 203-255-4150 or mcarey@capclaw.com.

Your Job and the Coronavirus: 5 Things To Know and Protect Yourself

Your Job and the Coronavirus: 5 Things To Know and Protect Yourself

The issue is not if the Coronavirus will impact your employment but when it will.  If you contract the Coronavirus or you are quarantined due to a family member having the illness, you need to know the following important pieces of information to protect yourself.

1. Having the Coronavirus is a Disability and You Are Entitled to Protections

If you are diagnosed with the Coronavirus, you will have a physical disability pursuant to state and federal law.  Generally, any impairment of your major life functions is considered a disability and it appears that the Coronavirus is so severe it can become fatal in a short period of time.  An employer who discriminates against an employee who contracts the Coronavirus may be liable under disability laws.  Also, you should request a reasonable accommodation for a disability leave of absence to quarantine yourself and seek medical assistance. Your employer has an obligation to discuss your accommodation, albeit after they order you not to come to the office until you recover.

State and federal disability laws also protect employees who are “regarded as” having the Coronavirus but have not been diagnosed yet or do not even have the virus.  The medical community has only indicated the early signs of the Coronavirus mimic flu symptoms and you will not know which illness you have until you have been tested.  The idea here is that disability laws seek to address discriminatory biases held by employers who speculate a person has a disability but are unsure about the truth of the employee’s medical situation.

Finally, the disability laws also protect employees “associated with” individual family members who have the Coronavirus.  If you are fired out of fear that your family member infected you, you are protected against discrimination and unlawful termination, even though you never contracted the illness.

2.  You May Have Rights Pursuant to the Family Medical Leave Act

If you contract the Coronavirus, and you have worked a significant number of hours in the past year, you may be entitled to take time off, paid in some states like New York and soon Connecticut.  You will be entitled to 12 weeks or more and your job will be protected. However, you have to come back to work before the expiration of the FMLA leave or your employer will terminate you.   This leave of absence overlaps with the disability accommodation request above.  A good an employment lawyer will know how to navigate this for you.

3.   You May Be Entitled to Short Term and Long Term Disability Benefits

You may also be entitled to paid time off under your employer’s short term and long term disability benefits plan. Again, this disability leave of absence overlaps with the disability and FMLA leaves of absence.  In order to qualify for benefits, you need to apply for them through your Human Resources Department and demonstrate, via supporting medical documentation, you are totally disabled.  Given the severity of the Coronavirus, you will certainly qualify as having a total disability.  The grey area will be in those cases where the symptoms of the virus are not as severe and you recover within a matter of weeks.  If you recover, and hopefully you do, the STD and LTD benefits will only be paid for the period of your disability.  You would need to return to work after your recovery, but an employment lawyer will guide you through this process.

4.  You May Be Entitled to Workers Compensation

If and only if you contract the Coronavirus while at work, can you file a claim for workers’ compensation benefits.  This type of claim takes longer to collect from the insurer, but more importantly, it may bar you from recovery under other state laws but not federal laws.  Federal laws will always preempt state law claims.

5.  You May Be Entitled To Severance If You Are Terminated

If you are terminated for contracting the Coronavirus, regarded as having the virus or associated with a family member who has it, you should consider hiring an employment attorney to attempt to negotiate a severance package with your employer.  Your employer may already have a severance plan which pays out benefits, i.e. weeks of salary for years of service, and you will need to sign a waiver and release of claims, aka settlement agreement.  An employer will want to avoid any connection to accusations that it fired an employee for having the Coronavirus; it just does not seem fair and the right thing to do.

If you would like more information about this topic and need to speak to an employment attorney, please contact Mark Carey at info@capclaw.com or call Carey & Associates, P.C. at 203-255-4150.

 

 

 

Googlers Unite-Ignore Unions-Use the Hong Kong Method

Googlers Unite-Ignore Unions-Use the Hong Kong Method

This article is directed at Google employees who participated in or wanted to participate in recent walkouts and signed open letters to management.  Googlers stop wasting your time trying to form a union or engaging in public organizing efforts, there is a more effective way to get management to bow to your demands and without the risk of termination. There is no need to risk losing your job like Laurence Berland, Sophie Waldman, Paul Duke and Rebecca Rivers.  Google management will squash your efforts to align with the Communication Workers of America. The CWA only wants your union dues and will never protect you from discrimination and retaliation under federal and state employment laws.

Back in the fall of 2019, the NY Times published an article about how disrespected Google employees were embracing and becoming inspired by a recently republished short book about labor organizing and solidarity to effect changes within the company.  Curious, I purchased the small paperback to understand why Googlers were continuing to protest under the following call to action: “A company is nothing without its workers. From the moment we start at Google we’re told that we aren’t just employees; we’re owners. Every person who walked out today is an owner, and the owners say: Time’s up.” (Source).

The NY Times story summarized the current movement at Google as follows: “Some workers argued that they could win fairer pay policies and a full accounting of harassment claims by filing lawsuits or seeking to unionize. But the argument that gained the upper hand, especially as the debate escalated in the weeks after the walkout, held that those approaches would be futile, according to two people involved. Those who felt this way contended that only a less formal, worker-led organization could succeed, by waging mass resistance or implicitly threatening to do so.”

For Googlers, the way forward in their labor battle to effect positive change should not and cannot in any way remotely relate to a “labor organization” as that term is defined under the National Labor Relations Act.  Management at Google has already brought in their consultants to “fix” the problem, mainly by convincing employees not to organize.  There is a new way to maintain a collective voice but without the fear of reprisal and termination.

Just Say “No” To Unions

Googlers must vote “No” to unionization and collective bargaining, but vote “Yes”
to a decentralized and leaderless collective.  Liz Shuler, the secretary-treasurer of the A.F.L.-C.I.O. stated in the NY Times article above, “You don’t have the law behind you to protect you like you would if you have recognized agents like a union,” Either you accept Ms. Shuler’s mantra, and that of union activists nationwide, or you move forward, all the way forward, and accept the advent of a new non-unionization movement that is happening right now. The NLRA won’t catch up to this new momentum because the statute is irrelevant.  Management will not know how to quell this collectivism because there is no centralized labor organization to bargain with and that’s the essential point, it is leaderless and decentralized.

The Hong Kong Protest Method

Employees can now realize their true leverage to invoke change within their organizations, without the need to form a represented collective bargaining unit to address their concerns with management.  I now propose the Hong Kong Protest Method to employment civil disobedience, but without the element of violence. A decentralized and leaderless movement that has no discernable identity for government regulators to challenge them. Yet the protest movement in Hong Kong fully describes its’ strategy of inclusion via Wikipedia, “[t]hrough a participatory process of digital democracy activists are able to collaborate by voting on tactics and brainstorming next moves in an egalitarian manner in which everybody has an equal say. Telegram chat groups and online forums with voting mechanisms to make collective decisions have facilitated this type of flexible co-ordination.”

Googlers now have access to technology on their phones to air their concerns collectively under the radar in order to defeat a formidable opponent like management. Under the cloak of pseudonyms on message boards, airdrop communication broadcasts and other forms of subversive communications, employees can complain about important issues such as forced arbitration, sexual harassment, ending pay inequality, boycotting Project Dragonfly, without the fear of retaliation. What has worked in Hong Kong can work here inside of Google.

It is time to begin and give the real owners of Google a fair say in the direction of the company. Management will have no choice but to tolerate your dissent, because Google can’t fire all of you!

If you would like more information about this article, please contact Mark Carey at mcarey@update-capclaw.mystagingwebsite.com or 203-255-4150.

Several Great Reasons to Get Rid of the Employment At-Will Rule

Several Great Reasons to Get Rid of the Employment At-Will Rule

By Mark Carey

What do you mean I can be fired for any reason or no reason at all? Who made up this rule? Why do I have to follow the employment at-will doctrine?  Well, you don’t and there are several reasons companies and employees should shift to a modified approach that satisfies the expectations of both the employer and the employee.

I can honestly say that over the past twenty-three years handling employment law cases for both executives and employees, my clients are really confused and bewildered by the employment at-will rule and the significant financial impact it creates when employers decide to let them go.  Many clients always state they understand the basic rule that they can be fired at any time and they can leave at any time.  But beyond that they know absolutely nothing about why the rule came into being or more importantly how they can negotiate around it.  When a termination occurs the adverse impact is clear, the uncertainty of the break in career trajectory and financial resources.

At the executive level, I routinely negotiate employment contracts that provide for termination “for cause” and “termination for good reason” by the executive.  This is standard in the industry at the executive level. However, I do confront the hybrid cases, where the employer “shoves” in the provision identified as “termination for any reason”. Well, that sounds like the employment at-will rule doesn’t it, because it is.  Enter the LeBron James Rule. (I made up this rule).  When negotiating employment contracts, employees needs to identify their leverage factor; it is what makes the employer throw money or equity in order to induce the hire.  LeBron James can write his own ticket to work wherever he finds the highest bidder, and he can demand the termination for cause and good reason provision with a severance payout.  Find your leverage and do not be shy about asserting it.

Well you might say not everyone is as fortunate as LeBron. I disagree and this is what has bugged me for many years.  We all too often knee jerk react and accept this stupid and ill-conceived rule that your employment is as good as the last minute or hour you just worked. Some say, just be grateful you have your job etc.  Give me a break!  There is a new way to handle this.

I propose getting rid of the employment at-will rule and replacing it with the modified form we see in executive employment contracts. Specifically, employees can be fired for cause or terminated by the employee for good reason. If the good reason event occurs, then the employer pays a severance amount to take care of some of the financial issues related to your transition to new employment.  If you land a job, your severance stops, as this is fair in an economic theory way of thinking.  “Termination for cause” means you violated the law and company policies.  “Termination for good reason” means the employer materially changed your title, salary, reporting structure, location of your office etc.

Now here are several positive effects of eliminating the employment at-will rule based on my research into this issue.

  1. Management vs. Everybody: Eliminating the employment at-will rule will get rid of the large divide between management and employees. Literally, this is the trust divide.  If you scare employees into believing they can be fired any time, management is not creating a loyal and trusting environment that spurs innovation and creativity which will push the company forward in profound economic ways.  Employers want employees to be focused on their work, but this rule is utterly distracting and frankly non-motivating. The rule erodes any semblance of entrepreneurial creativity among the team.  Employers need to seriously rethink this one.
  2. HR vs. Everybody: Honestly, did you really believe the Human Resources Department was there to help you. I make it my mission to point this out to every client I have. They (HR) have a duty of loyalty to the employer and have absolutely no interest in doing what’s right for you. By eliminating the employment at-will rule, employees will closer align themselves with HR and HR will do a better job of “caring” for the very employees that make up the company; without employees you have no company. Where did all those employers go astray?
  3. Eliminating Fiefdoms: Does your boss have their favorites? Do they hire from the last place of employment? Are there any “brown-nosers” in the team who believe the only way to the top is to “work it” what ever that means to you. It’s childish and it’s irritating to say the least.  You know what I am referring to.  Why do other employees do this and why do supervisors encourage it?  Eliminating the employment at-will rule will breed meritocracy, but not the type Bridgewater Associates thinks they are creating.  Employees will begin to feel compassion for their coworkers and work more closely as a team or family, instead of putting a knife in their back at work. Employees will work with management for the company common good; all will prosper together not just the few.
  4. Reducing Discrimination: If you create trust, honesty, transparency and vulnerability, then you create lasting relationships where employees want to stay and work.  Employment discrimination bias arises from many reasons, but my theory is that if you get rid of the employment at-will rule you will gut the walls that employees build in their work environments with the sole goal of getting ahead.  Think about it. If you say something or do something negative about another person to make yourself look better in the eyes of your employer, you will do it to get ahead.  That negative comment or idea could be motivated based on gender, age, race, religion or manipulation like seeking sexual favors in exchange for career advancement.  We need a sea change to course correct our current direction.  The status quo just doesn’t work anymore; although it may work for employment attorneys like myself as we are very busy policing this garbage.  If you see something, say something. Have the courage to speak out, you will be protected.

Finally, here is my shout out to older employees. If you are an older employee “we honor your wisdom and experience, you are worth every penny we pay you”.  Employees who are in their fifties and even sixties are well paid because they have many years of experience to offer, more than someone twenty years their younger.  I say we should keep them on board and ignore the bottom-line cost issues and focus on their economic impact these older wiser employees can create for the company.  Management must stop terminating the baby boomers because the economic argument that fosters this decision making is not financially sound and never was to begin with.  It’s like a bad drug addiction.  Remember, wisdom still is a virtue for a reason.

When will this change occur? When management realizes they can make greater revenue multiples by providing better job security.  They will have to stop listening to management side defense employment counsel who banter incessantly to maintain the employment at-will rule for every client. The world isn’t flat, or at least until someone very smart said it wasn’t.  Same goes here, management should adopt this new rule and maybe just maybe they will convince themselves that #employees matter.

If you want more information about employment law issues, please feel free to contact Mark Carey, Carey & Associates, P.C., at mcarey@update-capclaw.mystagingwebsite.com or call the office at 203-984-5536.

Can You Be Fired for Expressing Your Political Beliefs?

Can You Be Fired for Expressing Your Political Beliefs?

The increase in private sector employment, rise of social media and caustic political climate have combined to create a slew of new issues surrounding the rights of private sector employees to express themselves outside the workplace.

Consider the highly publicized example of a New Jersey lawyer who was “outed” as a Democratic “ringleader” by a local Republican congressman for her off-duty political activism. The now former Representative Rodney Frelinghuysen (R-N.J.) sent a fundraising letter to a board member of the bank at which Saily Avelenda worked calling attention to her off-duty political activism, none of which was connected in any way with her employer.  Frelinghuysen enclosed an article that quoted Avelenda with a handwritten warning that a member of one of the groups challenging him worked in his bank.  Although Avelenda was not disciplined directly, her employer required that she write a statement to explain her political affiliations and activities. She resigned shortly after due to pressure she felt at work after having been targeted.  Unfortunately, private employees in New Jersey are not protected against employer retaliation for off-duty political activity.

Contrary to common belief, the First Amendment protects only public sector workers from termination based on their political expression. While there is no federal law explicitly covering all off-duty political activism, the National Labor Relations Act protects private sector employees from retaliation for union-related political activity. However, “purely political” speech unrelated to union activity is not protected.

States Enact Prohibitions Against Interference

Although private employers are free to regulate most political speech in the workplace under federal law, many states, including North Dakota, Colorado, New York and California have enacted prohibitions against interference with an employee’s lawful off-duty political activities.  In these states, employees cannot be discriminated against based upon their political affiliation or political activity.

What Is Considered Political Activity?

The very definition of “political activity” varies from state to state. While the majority of states consider voting rights to be protected as “political activity”, states such as New York have extended this definition to include running for public office, campaigning for a candidate for public office, and participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.

Connecticut Provides The Most Protection For Political Speech

Connecticut’s free speech statute is the nation’s most expansive in terms of the protection it affords private employees for political speech. Connecticut General Statute § 31-51q extends the same speech protections to public and private sector employees, prohibiting employers from disciplining or discharging them “on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution . . . provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”

The statute allows an employee who believes that he has been retaliated against for exercising his right to free speech to sue his employer. However, the language of the statute has been open to broad interpretation since it was enacted in the 1980’s.  First, other than in the obvious situation of discharge or demotion, an employee must show that he has been subject to some form of discipline by his employer. Second, the employee must show that he was speaking on his own behalf as a private citizen, not in connection with his job.

How To Prove Your Freedom of Speech Was Violated

In addition, the employee must demonstrate that he was expressing himself on a matter of public concern, unrelated to any private dispute with the employer. The U.S. Supreme Court has defined a public concern as “something that is the subject of legitimate news interest” or an issue that is of value or concern to the public at the time of the statement. To be considered a matter of public concern, there must be an “expression of views”.

Not all politically related conduct involves a matter of public concern. For example, D.C. law only protects political activity that is related to affiliation with a recognized electoral political party. Therefore, an employer is not prohibited from firing an employee based on his political activities in connection with a non-electoral white supremacist organization, for instance. As one federal court reasoned, “political” speech is aimed at government conduct rather than merely expressing a hateful opinion about members of a particular social group.

The employee must then show causation: that the exercise if his right to free expression was “a motivating factor” in the discharge or discipline.  If the employer claims that the action was based on reasons other than free expression, such as poor performance, the burden then shifts to the employee who must show that the employer’s explanation is a pretext, and that the real reason he was fired was for exercising his right to free speech.

Finally, an employee’s political expression is only protected to the extent that it does not “substantially or materially interfere” with the employee’s job performance or working employment relationship.  An employer cannot be forced to keep an employee who is connected with a group espousing hateful ideology. Court have invariably presumed that such ideologies “substantially or materially interfere” with the workplace relationship by creating a hostile work environment for other employees and business associates.

To date, there is no Connecticut case law addressing the interference of off-duty political activities with a private employment relationship.   However, in the context of government employment, the Second Circuit Court of Appeals followed the Supreme Court’s lead in concluding that unless the employer demonstrated “a vital interest” in firing employees based “on political belief and association, doing so plainly constituted an unconstitutional condition”.  In the case of the employee who participates in hate speech off hours, his employer certainly has a “vital interest” in avoiding any association with such views, which would likely hurt the business.

If you believe you have suffered at work because of your political activities, contact our office (203) 255-4150 and speak to one of our employment attorneys. You may be protected under the law, particularly if you work in Connecticut.

Your Employer Is Watching You Right Now!

Your Employer Is Watching You Right Now!

By Mark Carey

If you are reading this article on your company provided computer or device, your employer is watching you and taking notes. Stop now and go to a personal device to read further. No really, I am not kidding! Your employer may even be watching you access your bank account and social media accounts.  They may even be ease dropping on your conversations with your spouse, physician, therapist and attorney.  Wait, what? Can they do that?

Wake up everyone, the technology is here in abundance. According to a Gartner Survey in 2018, “22% of organizations worldwide use employee-movement data, 17% are monitoring work-computer-usage data, and 16% are using Microsoft Outlook-or-calendar-usage data.”  There are algorithms for just about any type of covert surveillance on your work-space.  Companies know how long you are logged in, how many emails you send, how many phone calls you make, whether you check social media on your device etc. According to an interview from MarketWatch.com with Ifeoma Ajunwa, an assistant professor at Cornell University’s Industrial and Labor Relations School, there are three ways employers monitor employees, “location tracking through a company-issued phone’s GPS or an employee ID badge, communication monitoring through email monitoring, Slack messages or keystroke logging, and wellness programs that track health data, including sleep patterns.”  What does the future look like and how can you protect yourself.  Whether your employer’s surveillance upon your privacy while at work is legal, that does not necessarily lend a straight forward answer.

Does Your Company Have An Employer Monitoring Policy?

The first thing you need to do is check whether your employer maintains a written policy in any HR Portal or office poster that provides notice that your employer is monitoring and recording everything you do at work.  If so, forget your freedoms under the U.S. Constitution- well you did not have any to begin with once you stepped into the private workplace.  Yes, there are other statutes that provide additional rights, but you get the point.

How to Protect Against An Invasion of Privacy At Work?

The following suggestion is what I tell everyone, take your communications “off-line”.  Never communicate personal or confidential information using a work related computer or device. Resist the temptation to check your private email on a work computer; yes, they can read your passionate comments to your spouse or your comments to a co-worker about blowing the whistle on the employer. If your employer utilizes video surveillance, then move to a location where you cannot be seen.  I won’t suggest the bathroom because I heard rumors that employers record there too, even though that’s illegal.  Workplace privacy means you believe you would have a reasonable expectation of privacy, i.e. the bathroom. Or better yet, do what employees at Bridgewater Associates do when they really want to talk privately- they leave the campus and go to a nearby restaurant, diner or coffee shop. At Bridgewater, every employee conversation, email, etc. is openly recorded in this Orwellian Big Brother is Watching You environment. Scary yes, but very, very real.

Employers Use Keystroke Monitoring Software

Sorry, but it’s technical. According to a recent Business.com Survey of the best 2019 employee monitoring software products,  “Employee monitoring software can track employee web and application use, monitor chats and keystrokes, or filter specific types of online content making them inaccessible to employees…our top picks for employee monitoring software are Teramind, SentryPC, ActivTrak, ContectProtect and SoftActivity.  For example, the Teramind software makes this ominous description about what the software can do, “this application can monitor your employees undetected, or it can run in transparent mode, which lets employees see that they’re being tracked. You can monitor employee activity in real time or set the software to collect snapshots to review later. This means administrators don’t need to spend time watching employees; instead automated notifications alert them whenever an employee violates your organization’s rules and policies”.

What is Keystroke Logging?

Although I don’t normally cite to Wikipedia, I will just to help explain what Keystroke Logging is.  According to Wikipedia, keystroke logging “is the action of recording (logging) the keys struck on a keyboard, typically covertly, so that person using the keyboard is unaware that their actions are being monitored. Data can then be retrieved by the person operating the logging program. A keylogger can be either software or hardware”.   As to the legality of this practice, Wikipedia points us to keylogger.org for further information, but the link only reveals more product reviews.

Is Employer Surveillance Legal?

Well, the short answer is yes.  But if you want to read a whole lot more, check out this Article from 2016 presented by Jackson Lewis, P.C. attorneys to the American Bar Association in Washington, D.C.

You should be paranoid, it will save your butt!

If you want learn more about this subject, please call our employment attorneys and set up an appointment (203) 255-4150 or email Mark Carey at mcarey@update-capclaw.mystagingwebsite.com.

Employer Tactics Revealed: How Employers Use Age to Terminate Employees

Employer Tactics Revealed: How Employers Use Age to Terminate Employees

Very often, someone will come to our office having just been fired, feeling that the reason given by their employer just doesn’t make sense.  For example, a seasoned marketing executive loses his job shortly after his company brings in a team of young consultants. When the marketing department turns its focus exclusively upon social media, his role and responsibilities are gradually minimized.  Eventually, he is terminated and replaced by several of his own former trainees.

In another instance, a Senior Benefits Administrator with 30 plus years of stellar performance is suddenly criticized by her new manager as, “incompetent” and “not a forward thinker”. She is placed on a performance improvement plan (PIP) and her workload is increased so much that she can no longer keep up. Meanwhile, the company posts a job ad for an entry level Benefits Administrator.  After the new hire has shadowed her for a few weeks, her manager fires her for failing the PIP.

In yet another instance, a Strategy Analyst is abruptly demoted after over a decade in his supervisory position. He is assigned to “project work” as his role in the firm is slowly marginalized. The firm’s turns its employee recruitment efforts on finding “young”, “energetic”, “enthusiastic” new graduates.  His compensation is drastically reduced when the firm decides to allocate the lion’s share of the annual bonus pool to its new hires. When he complains, he is warned that he could easily be replaced by a kid right out of school for a fraction of his salary.

Age discrimination occurs when an employer treats an individual who is qualified for their job differently because of their age. The federal Age Discrimination in Employment Act (ADEA) protects job applicants and employees 40 years of age and older from discrimination on the basis of age.  Many states, including Connecticut, have similar laws protecting older individuals.

You may be a victim of age discrimination if:

Your performance reviews start going down as you get older;

Your employer makes frequent age-related comments;

You are disciplined for behavior that younger employees are not disciplined for;

You are passed over for promotions in favor of younger employees;

You are reassigned to unwanted or unpleasant tasks while younger employees get better assignments;

You are passed over for hire in favor of a younger job candidate or replaced by younger worker.

But proving that you were demoted or fired because of your age can be a difficult task.  First, direct evidence of discrimination, such as your boss telling you he is firing you because you are too old, is very rare.  Most employers will try protect themselves by carefully documenting a narrative explaining why your firing had nothing to do with age.

In each of the real-life examples above, the employer set up a pretext of poor performance to cover up its true discriminatory motives.  If you are suddenly and inexplicably given a poor performance review or placed on a PIP, your employer may be building a pretext to pave the way for your termination.  Knowing that your performance has remained consistent, you are blindsided by your supervisor’s sudden and inexplicable criticism.  Attempting in vain to save your job, you then try to to work even harder.   By the time you are terminated, you feel somehow responsible for failing at your job. It’s not your fault, it’s your age!

In addition to prohibiting employers from treating older workers differently than their younger counterparts, the law also prohibits policies and practices that have a “disparate impact” on older workers. This particularly insidious type of age discrimination occurs when an employer’s seemingly neutral policies have a disproportionately adverse impact upon older workers.  For example, a company announces that it will be laying off all employees above a certain salary level. This policy has a disproportionately adverse impact on older workers who generally earn larger paychecks.

But courts are reluctant to second guess a company’s layoff policy, where the employer can show that it is a “business necessity”, in this case, cost-saving.  In order to win a disparate impact claim, an employee would then need to bring forth evidence of an equally effective, but non-discriminatory way for the company to achieve the same goal. The cost-saving “business necessity” excuse makes disparate impact claims particularly hard to prove.  Older workers tend to earn higher wages than younger workers by virtue of their added years of experience.  Making the situation even murkier is that the impact of these “cost saving” layoffs tends to fall specifically on older workers in middle to upper middle management positions.  In a case like this, the company’s officers, also over the age of 40, decide to get rid of its long-term managers and replace them with younger workers at lower salaries.

If any of these scenarios sound familiar and/or you just received a severance package, you should consult our employment lawyers. Please call (203) 255-4150 or email Jill Saluck at JSaluck@update-capclaw.mystagingwebsite.com.