Employment Law Attorneys
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 info@capclaw.com or 203-255-4150.

Employee Wage Exemptions Easily Explained

Employee Wage Exemptions Easily Explained

By Jill Halper

This article is meant to inform and offer guidance for either an employer or an employee who wishes to have a better grasp on the complex matter of employee exemptions. At the start of employment it is crucial for both parties to understand and be on the same page about the incoming employee’s exemption status so that he or she may be properly compensated and to hopefully avoid any legal disputes that may arise. If this is not clear from the start, an employee who believes he or she might be nonexempt will expect to receive overtime pay in addition to regular pay and a legal battle could ensue where the employer may not only be liable for back pay for the overtime hours, but if if can be shown that the failure to pay the overtime was knowing or intentional, the employer could be subject to double damages (overtime back pay times 2).

OVERTIME DEFINED

The Fair Labor Standards Act (FLSA) Regulations (promulgated by the U.S. Department of Labor established after passage of the FLSA. The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. The FLSA provides that covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek (any fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods) at a rate not less than one and one-half times the regular rate of pay. There is no limit on the number of hours employees 16 years or older may work in any workweek. The FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days. While the FLSA sets forth guidelines related to overtime pay for covered employees (nonexempt employees), it also exempts certain types of employees from its overtime pay requirements.

EXEMPT EMPLOYEE HAVE NO RIGHTS

An exempt employee has virtually “no rights at all” under the FLSA overtime rules. In fact, all an exempt employee is entitled to under the FLSA is to receive the full amount of the base salary in any work period during which s/he performs any work (less any permissible deductions). Nothing in the FLSA prohibits an employer from requiring exempt employees to “punch a clock,” or work a particular schedule, or “make up” time lost due to absences. Nor does the FLSA limit the amount of work time an employer may require or expect from any employee, on any schedule.

Under the FLSA, some jobs are classified as exempt by definition. For example, “outside sales” employees are exempt (“inside sales” employees are nonexempt). For most employees, however, whether they are exempt or nonexempt depends on (a) how much they are paid, (b) how they are paid, and (c) what kind of work they do.

THE SALARY BASIS TEST

To be exempt, an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in the FLSA Regulations. Most employees must meet all three “tests” to be considered exempt. Employees who are paid less than $23,600 per year ($455 per week) are, for the most part, automatically nonexempt.

EXAMPLES OF EXEMPT EMPLOYEES

The following are examples of employees who are explicitly exempt from the overtime pay requirements:

  • Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor’s regulations);
  • Employees of certain seasonal amusement or recreational establishments;
  • Employees of certain small newspapers and switchboard operators of small telephone companies;
  • Seamen employed on foreign vessels;
  • Employees engaged in fishing operations;
  • Employees engaged in newspaper delivery;
  • Farm workers employed on small farms (i.e., those that used less than 500 “man days” of farm labor in any calendar quarter of the preceding calendar year);
  • Casual babysitters;
  • Persons employed solely by the individual receiving services (not an agency, non-profit, or other third-party employer) primarily providing fellowship and protection (companionship services) to seniors and/or individuals with injuries, illnesses, or disabilities;
  • Certain commissioned employees of retail or service establishments;
  • Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non manufacturing establishments primarily engaged in selling these items to ultimate purchasers;
  • Auto, truck, or farm implement parts clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers;
  • Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans;
  • Announcers, news editors, and chief engineers of certain non metropolitan broadcasting stations;
  • Domestic service employees solely employed by the individual, family, or household receiving services (not an agency or other third-party employer) who reside in the private home where they provide services;
  • Employees of motion picture theaters;
  • Farmworkers;

In sum, where an employee meets or exceeds the minimum weekly pay of $455/week and is paid on a “salary basis”, the analysis of whether they are exempt will come down to what type of work they do and whether that type of work explicitly or otherwise somehow places them into one of the above exempt job title categories.

In many cases, the determination of whether an employee is exempt comes down to whether the employee falls under the first bullet point above (executive, administrative or professional), as the other bullet points for exemption are straight forward. However, whether an employee is considered an executive, administrative or professional employee is not always clear, and in particular, whether an employee is considered a “professional” is the least clear of the three job designations.

PROFESSIONAL EMPLOYEE DEFINED

Under C.F.R. Section 541.301, an employee may be considered a “professional” for purposes of exempt status if he is determined to be a “learned professional”. Section 541.301 provides, in pertinent part, the following:

Learned professionals.

(a) To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This primary duty test includes three elements:

(1) The employee must perform work requiring advanced knowledge;

(2) The advanced knowledge must be in a field of science or learning; and

(3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

PERFORM WORK REQUIRING ADVANCED KNOWLEDGE

(b) The phrase “work requiring advanced knowledge” means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.

IN A FIELD OF SCIENCE OR LEARNING

(c) The phrase “field of science or learning” includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.

CUSTOMARILY ACQUIRED BY A PROLONGED COURSE OF SPECIALIZED INTELLECTUAL INSTRUCTION

(d) The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is also available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. Thus, for example, the learned professional exemption is available to the occasional lawyer who has not gone to law school, or the occasional chemist who is not the possessor of a degree in chemistry. However, the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.

In order to determine if an employee qualifies as a learned professional, pursuant to 29 C.F.R 541.301 (a) the DOL and courts will look to such factors as whether the work performed includes the consistent exercise of discretion and judgement as distinguished from performing routine mental, manual, mechanical or physical work. The test also includes whether the advanced knowledge required by the job is in a field of science. For example, there is no dispute that engineering is one such field and so often times an employee having an engineering academic background will be an exempt employee, even if the majority of their work duties involves manual labor. Lastly, the test includes whether the employee has a degree which requires a prolonged course of specialized intellectual instruction and that the employee’s job duties could not be performed without this specific engineering training. Moreover, the job duties contemplated must be the employee’s “primary duties. Factors that the DOL and courts take into account in determining whether the “primary duty” requirement is met are:

DEFINING PRIMARY DUTIES TO DETERMINE EXEMPTION

  1. the relative importance of the exempt duties as compared with other

types of duties;

  1. the amount of time spent performing exempt work;
  2. the employee’s relative freedom from direct supervision; and
  3. the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee

In the case of Cooke v. Gen. Dynamics Corp., 993 F. Supp. 56 (D. Conn. 1997), the court stated that employee’s “primary duty” will usually be what he or she does that is of principal value to employer, not collateral tasks that he or she may also perform, even if they consume more than 50% of his or her time, for purposes of determining whether employee is administrative employee exempt from overtime pay requirements of Fair Labor Standards Act (FLSA). The court also held that whether an employee is exempt from overtime pay requirements of Fair Labor Standards Act (FLSA) is determined by employee’s actual work activities, not by the employer’s characterization of those activities through job title or job description.

By further example, the court in Aneja v. Triborough Bridge & Tunnel Auth., 35 F. App’x 19 (2d Cir. 2002) found that a worker who was employed by the Bridge and Tunnel Authority, who earned a salary of $68,000 per year, who worked in engineering, and who exercised discretion and judgment regularly was a “professional employee” who was exempt from the overtime provisions of the Fair Labor Standards Act (FLSA). The fact that worker supervised others in addition to his engineering tasks, that he lacked authority to hire and fire, and that there was purported a “public service” nature to his work was irrelevant to the analysis of whether he was “professional employee” for FLSA overtime purposes.

Based on the above, just because an employee’s job duties include certain manual tasks such as repairs and maintenance does not automatically take that employee outside of the professional exemption where the employee’s advance knowledge and intellectual skill set is of prime importance to the employer

DEPARTMENT OF LABOR AND EMPLOYMENT ATTORNEY GUIDANCE

The DOL routinely issues opinion letters for reference on these matters. These are useful when trying to find similar fact patterns to your own in order to determine the exemption status.  However, even if there is a perfectly on point opinion letter, or this article has helped you arrive at a preliminary determination, we urge you to contact an experienced employment attorney if this issue is not crystal clear. As an employee you might be entitled to overtime in addition to your regular pay. And as an employer, you might be found to have committed DOL violations which would require you to compensate your employee for back pay and in some instances subject you to punitive damages. This dollar amount derived from this damage award could be devastating, especially for a small business owner who has failed to pay overtime wages for a long duration. The statute of limitations under the FLSA is two years of general violations and three years look back for willful or flagrant violations. In determining whether punitive damages against an employer is appropriate, courts will look to whether the employer knew or should have known that the employee was nonexempt and eligible for overtime. Some courts have been known to consider the employer’s good faith effort to properly designate an employee’s exemption status in their determination of whether the employer’s conduct was intentional or willful. An employer’s efforts to seek counsel and elicit an informed option on this issue will go to the issue of willfulness and might help to convince a court that the mischaracterization and resulting failure to pay overtime wages was an honest mistake. Therefore, if you are an employer who finds themselves in this situation, it is important to get professional legal advice about your employee’s exemption status is there is any gray area or as soon as you are aware there might be an issue as to the employee’s designation. This is especially true when an employee’s job duties, pay, hours, work requirements or experience/education change during the course of their employment.

If you would like more information please contact Jill Halper at info@capclaw.com or call Carey & Associates P.C. at 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 info@capclaw.com or call the office at 203-984-5536.

5 Essential Things To Know About Severance Agreements

5 Essential Things To Know About Severance Agreements

1. Every Severance Agreement Must be Negotiated

A severance agreement is NOT an agreement until you sign on the dotted line. Until then, it is a severance OFFER. And as with all offers, it can be negotiated. If you are presented with a severance offer at work, either at the start of or upon separating from your employment, it is crucial that you have an employment attorney weigh in. The language in the agreement is just as, if not more, important than the severance dollar amount being offered to you. But both the dollar amount and covenants therein can be and should be reviewed and negotiated so that the agreement is as optimal as possible for you. Because Connecticut is an “at will” employment state, employers can terminate you for any reason or for no reason (as long as it is not an unlawful reason) and they are under no obligation to provide you with any severance (unless they have an express written severance policy or agreement with you already in place). Knowing this, if an employer first presents you with a severance offer at the time of your departure, it usually means they want something significant in return from you, such as a full general release or a non-compete. That is where the leverage for you to negotiate certain elements of the agreement, including, but not limited to the amount of severance money on the table comes into play.

Bottom line: Severance agreements are not take it or leave it offers, but can be and should be negotiated in order to best protect you and compensate you for your loss of job.

2.  Resist Signing the Severance Agreement and Speak To An Employment Attorney

A severance agreement can be a springboard to a settlement agreement with your former employer. Although when first presented to you, a severance agreement is designed in theory to essentially compensate you for any gap in income between your prior job and your next job, it can also serve as a settlement agreement to compensate you for claims that you might have related to an unlawful or improper termination. Although Connecticut is an “at will” employment state and your employer can terminate you without cause, the employer is NOT permitted to terminate you for an unlawful cause such as discrimination or retaliation, or for a breach of an employment contract that provides a certain duration of employment or that spells out certain circumstances under which you may or may not be terminated from your employment. If you believe that your termination was in some way improper or unlawful, then it is important to immediately speak to an employment attorney. It is often the case that with a skilled employment attorney taking the reins, your severance offer can be negotiated into a settlement offer that will compensate you for your legal claims. In many instances, where there are valid legal claims underlying a wrongful termination. We are successful in reaching settlements for our clients during the severance review period, which translates into settlement dollars that exceed the measly severance offer first presented to you.

Bottom line: If you believe your termination was motivated by discrimination or retaliation, or other improper acts, do not rush into signing a severance agreement and seek out an employment lawyer to understand your options for pursuing a settlement or litigation to recover all damages available to you for your legal claims.

3.  Know What You Are Getting (Golden Handcuffs) for The Severance Money

Whether you are about to enter into a settlement or a severance agreement, you must understand that this is a quid pro quo and that any monies being offered to you do not come freely. In return for a settlement or severance pay out, you will be asked to agree to certain covenants, referred to as restrictive covenants. The restrictive covenant to be most mindful (SCARED) of is a non-compete. If you accept the settlement or severance offer and execute the agreement with your former employer, you will be bound by all of the terms of the agreement and any breach of any term in the agreement is a breach of contract. As such, if there is a breach, you would be subject to damages which might consist of having to return the severance or settlement dollars or even to pay a pre-determined monetary penalty (known as liquidated damages).  Therefore, it is crucial you understand what these covenants mean, how they restrict you and what you must do going forward in order to comply with the contract terms. Ideally, your agreement will not contain a non-compete and we take great efforts to remove those from our clients’ agreements or to narrow their scope and impact. But the first step is for you to be aware of and comprehend the relevant restrictive language. In essence, a non-compete will prohibit you from earning a living in the same field for a certain amount of time and usually within a certain geographic territory. This can be devastating and should be avoided at all costs. There are additional restrictive covenants such as non-solicitation, confidentiality and non-disparagement clauses, which too must be addressed and negotiated so that you are adequately protected from a potential breach down the line.

Bottom line: You must be very aware of what you are giving in return for the money you are getting and there are certain gives, such as a non-compete, that we negotiate and attempt to narrow or ideally remove from these agreements.

4. The Severance Agreement Must Contain Terms That Are Mutual to Both Parties

Confidentiality and disparagement are additional boiler plate clauses often added to these agreements and are almost always first presented as a unilateral restriction on the employee receiving the settlement or severance pay out. However, that does not need to be the case. We are extremely successful in getting these particular covenants to be mutual. In other words, if the agreement requires that you keep certain information concerning your separation from your employer quiet and confidential, including the existence and terms of the agreement itself, it only seems fair that your employer be bound by the same confidentiality requirements. Likewise, if you are being directed not to disparage your former employer, wouldn’t you want your employer to be held to the same standards and to be bound to not disparage you to others and to the public. We have also in many cases negotiated certain language into these agreements that specifically prohibits certain named employees at your former employment from disparaging you, for example your supervisor or manager with whom you might have had a less than amicable professional relationship with and because of whom you might have actually been terminated.

Bottom line: Certain clauses that are initially included as unilateral in a severance agreement can and should be made mutual so that you are just as protected as your former employer after you both have parted ways.

5.  Severance Should Always Be Paid Out Up Front in a Lump Sum

Severance will often be offered to you as a payout over a period of time (usually in monthly increments and in coordination with your employer’s regular payroll schedule.) However, severance, like a settlement offer, can be and should be a lump sum. There is no rule that says employers must pay it out to you as they would with your regular paychecks, even though such payments are often considered income and taxed as such. Don’t forget you are no longer employed there, and you are no longer on their payroll. So, any argument they make to pay you as “payroll” is disingenuous and only serves their benefit. In that you will likely be signing a release of all future claims against your employer as well as possibly agreeing to other restrictive covenants described above, in return for the severance payment, you should have the upper hand in the arrangements regarding that payment. Not only is it optimal financially for you to have your severance money paid up front and in a lump sum, but it is optimal from an exposure standpoint. For one, you might not know how financially sound or healthy your employer is. After all, they are terminating employees, which could be a sign that business is bad. Therefore, it is prudent to get your severance dollars up front and in full if possible, in order to avoid any potential inability of them to pay out their remaining obligations. In addition, because any agreement will bind you to comply with the contract terms, where there is a payout arrangement, employers have more leverage to withhold payments to you under the notion that there has been some alleged breach of the contract terms. Lastly, where there is no express severance policy or agreement already in place, there are no hard and fast rules about how much severance you are entitled to. While many employers attempt to correlate your severance payment to how long you have worked there, or to have it reflect a certain number of weeks’ pay for each year you were employed, this is all arbitrary and as a result, usually negotiable.

Bottom line: Severance is not payroll and should be paid to you up front as a lump sum, taking into account not just how long you have been there, but all of the circumstances surrounding your departure, including whether you have potential legal claims and what they are asking you to agree to in return.

ULTIMATE BOTTOM LINE: If you have been presented with a severance agreement/severance policy either at the outset of your employment, during your employment, or at the time of your termination, please do not sign until you have consulted with an employment attorney. We are happy to help you in this situation and we can be retained on a limited hourly basis to guide you through this stressful process. Feel free to contact us at any time or call 203-255-4150 or email at info@capclaw.com.

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, send an email to info@capclaw.com, 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 info@capclaw.com.

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