Employment Law Attorneys
WSJ Article- When Co-Workers Test Positive for Covid-19: What You Need to Know

WSJ Article- When Co-Workers Test Positive for Covid-19: What You Need to Know

The Wall Street Journal (July 13, 2020) reported the following story with an interview with Employment Attorney Mark Carey, Carey & Associates, P.C.  The story is reprinted herein in its entirety.

By Lauren Weber

“Somebody at my workplace tested positive for Covid-19. What are my employer’s legal obligations? What do they have to disclose to the rest of us employees and in what time frame?”

The bottom line

Your employer should immediately inform co-workers who have been exposed (federal and state agencies offer guidance on exposure criteria), while protecting the confidentiality of the affected employee, so colleagues can quarantine for the recommended 14 days, employment lawyers say. While the Centers for Disease Control and Prevention have made these recommendations clear, they are guidelines, not laws. Employers also have some obligations under the Occupational Safety and Health Act of 1970’s “general duty” clause, as well as under some state regulations.

The details

Workers have a right to be free from “recognized hazards” that could cause death or serious injury, according to the “general duty” clause enforced by the Occupational Safety and Health Administration. OSHA may find that employers who didn’t inform employees immediately—and therefore didn’t tell them to quarantine—were violating their obligations, which could subject employers to fines or other enforcement actions. Keep in mind that OSHA is a small agency, and it has rarely flexed its enforcement muscles during the pandemic. Through July 9, it has received 6,442 Covid-19-related complaints and issued only one citation, an agency spokesperson said.

While workers can try to sue their company for negligence if they test positive for Covid-19 after being exposed by a co-worker, the employer will likely argue that the claim is covered, if at all, under the workers’ compensation system, says Jennifer Merrigan Fay, a Boston-based employment lawyer. Precedents haven’t yet been set, so it isn’t clear how courts will interpret OSHA and other standards in light of a highly contagious virus.

Some state laws require that employers report positive Covid-19 cases quickly to public-health authorities so that contact tracing with colleagues and others can take place. Depending on location, the employer here may have violated a state law or executive order if it didn’t inform the appropriate authorities, says Ms. Fay. New York and Massachusetts, for example, have reporting requirements.

Employers must balance confidentiality laws, which are enforced by the Equal Employment Opportunity Commission, with the rights of workers to be in a safe workplace, which is enforced by OSHA. Employers should not disclose the name or identifying details of the person who tested positive, says Connecticut-based attorney Mark Carey, even if workers can figure out the person’s identity themselves. “The immediacy of communication is paramount, but so is confidentiality,” he says.

When employers don’t inform workers of their exposure, they are likely afraid of the risk to operations, Mr. Carey says. They may also be concerned about having to pay wages to workers in quarantine. The Families First Coronavirus Response Act requires that employers with fewer than 500 workers cover two weeks of paid sick leave to those who have to quarantine. (Larger employers are subject to the longstanding Family and Medical Leave Act, which provides workers with unpaid leave.) But these aren’t reasons to delay or avoid disclosing important information to workers, Ms. Fay and Mr. Carey say.

The Workplace of Tomorrow III: A New Path

The Workplace of Tomorrow III: A New Path

By Fran Slusarz

About a million years ago, I remember hearing that the Star Wars epic was meant to track the rise and fall of the Roman empire. It starts as a republic, becomes an empire as its boundaries grow and power is consolidated, becomes corrupt because power corrupts, and finally it falls. After the chaos, a new government starts the cycle again as a republic. I have no idea if this is true and, in any event, once Leia survived the vacuum of space with her Poppinsesque flying power it no longer mattered. But the New Path for The Workplace of Tomorrow is very different and we are going to show you why.  So, let me tell you about the Old Path first so you can get your bearings.

The Old Path

Once upon a time, a person could expect to work for one or two companies (at most) for their entire adult lives, earn a decent wage, and retire with a pension. Manual laborers were unionized and enjoyed income and job protection from the strength of their ability to bargain collectively. Office workers were not typically union members, but their identities as employees of particular companies were practically encoded at the DNA level. Men (and they were nearly all men) at IBM wore dark suits, white dress shirts, rep ties, and wing tips. Men at Procter & Gamble wrote P&G Memos. In those days, a man could start off working in the mailroom with a high school diploma and, if he were hard working, smart, and white, he could make it to the Executive Suite.

Technically, most of the non-union “Organization Men” were employees at-will. They could leave at any time, for any reason, and their employers would terminate their employment at any time and for any reason. It just didn’t happen very much. The sense of community and shared purpose that eludes modern businesses was alive and well on the Old Path. Those team-building activities we “enjoy” at company retreats were unnecessary because companies fielded baseball teams and bowling teams and engaged in a variety of other activities. The International Ladies Garment Workers Union had a famous chorus that recorded tunes, gave concerts, and showed off their chops in many memorable commercials of the ‘70s.

Better Start Swimming Or You’ll Sink Like a Stone

Things began to change as union membership decreased in the 50s and 60s. The turbulent economic times of the early ‘70s through early ‘80s (oil embargo, inflation, recession, rinse, repeat), followed by the corporate raiders throughout the 80’s effectively severed the symbiotic relationship between workers and management in America. Raiders would take on huge debt to take over control of a public company, and then strip assets from the company to pay their debt or otherwise profit. These takeovers invariably involved massive layoffs and reorganizations of the companies. “Flat organizational structures” became de rigeur as middle management all but disappeared and my high school classmates’ fathers became “consultants;” i.e., unemployed.

In the 30+ years since Black Monday, October 19, 1987 – the day the stock market crashed and lost 22.5% of its value – the connection between employer and employee has become more tenuous and opportunistic. Black Monday triggered an economic downturn and both parasitic layoffs. Same thing in the Dot Com Bust, the Great Recession, and now the Covid19 era.

The flipside of knowing your employer doesn’t have your back and your employment at- will can be terminated at any moment, is a lack of loyalty to your employer. In other words, employees do not trust their employers will protect them, even though the employer needs the employees now more than ever to – just survive. Ironic isn’t it?  I haven’t checked recent statistics, but GenX, Millennials, and GenZ are expected to change jobs 10-20 times in their adult working lives.

Enough with the History. Where’s this New Path?

I am not an at-will employee, nor do I breathe the rarified air of those with written contracts of employment for a specific period of time and who can only be terminated for cause. So, what am I? I am a traveler on the New Path.

Mark Carey, who has written on why at will employment is a bad rule and how it was invented by lawyer in 1877, puts his money where his mouth is. My employment is not terminable “at will,” it is terminable “for cause.” It means no one from my office has been laid off during the pandemic.  We are all in this together and I have a vested interest in the success of my employer. It means if I do my job, my employer will have my back. In exchange, I’ve agreed to stay with my firm unless I have good reason to leave (i.e., reduction in pay, demotion). The Thirteenth Amendment prevents Mark from enforcing my side of the deal, but the trust engendered in his commitment to me as his employee engenders my reciprocal promise to stay.

Employers should seriously consider the current “relationship” they have with their employees.  Employees are the backbone of each company and employers could not exist without them. Trust- that’s what employees want right now and presumptively have always wanted it.   Now that the blinders are coming off due to Covid-19, employers must realize they cannot abuse employees and treat them like a number. There are currently Forty million plus (40,000,000) job terminations during this pandemic, this is not exactly what I would call building trust with your employees.  These recently terminated employees (“Your Ex-Employees”), are real people of all races and backgrounds, with emotions, goals, financial issues just like you.  If you give employees a real sense of security in their jobs, they will reword their employers tenfold- with #EmployeeTrust and increased EBITDA (aka profitability).

Employers- show your employees they can trust you at all times– that you got their backs in times of trouble. Here are a couple of suggestions:

  1. Provide a termination for cause employment agreement-ignore your management lawyer’s advice not to follow this suggestion;
  2. Make sure employees feel confident they will not get sick when they come back to work- give them everything they need and write if off on your PPP and SBA money you just received;
  3. If employees want to work from home and/or the office, just let them- but remind them you do pay rent in an office they should use;
  4. Buy them necessary computer gadgets to work remotely – anywhere;
  5. Build a sense of a strong community experience amongst employees;
  6. Immediately fire any employee, manager or not, who exhibits any discriminatory bias against anyone- this will deter the bad actors- as we are all in this together;

This list of perks employers can provide to develop and ensure employee trust is endless and specific to your company, but you get the main idea.  Yes, employees need perks too!

If you would more information about this topic, please contact Carey & Associates P.C. at 203-255-4150 or email to info@capclaw.com.

The Employees’ Field Guide to Protesting: What you Need to Know Before the Rally

The Employees’ Field Guide to Protesting: What you Need to Know Before the Rally

By Fran Slusarz

It always surprises people when they learn that they really don’t have a right to say whatever they want at work or outside work. We all have rights to free speech under the First Amendment, but what that means is often misunderstood. Everyone’s heard, “You can’t yell ‘Fire!’ in a crowded theater,” but what does that mean for everyone who doesn’t work in crowded theaters?

Answer: not a heck of a lot.

What the First Amendment Is and Is Not

First, take a look at what the First Amendment actually says: “Congress shall make no law … abridging the freedom of speech….” The First Amendment is only concerned with what the government does. Government employers have protection for speech made in their capacity as private individuals, but not in their roles as government employee. If a government employee’s freedom of speech is abridged, the employee can bring a civil rights claim under 42 U.S.C. § 1983. But your private employer? The First Amendment has nothing to do with it. Private individuals and private companies can do what they want. Even terminate your employment.

This may seem counterintuitive – how can you be fired for doing something that is 100% legal and enshrined in the Constitution? Simple: just because the government cannot stop you from doing something does not mean your employer has to like it. For example, you can be a member of the KKK and the government cannot stop you and your brother klansmen from putting on pointy hoods, and sharing secret handshakes and racist screeds (one assumes). When your employer finds out, however, she can fire you because she finds your beliefs repugnant. Many who stomped around Charlottesvillle, Virginia, shouting Nazi slogans learned this the hard way.

But this same rule works against people who are bringing attention to concerns more in line with American ideals of life, liberty, and the pursuit of happiness. For example, in 2017, Lisa Durden, a college professor, was fired for appearing on Fox News and defending a Black Lives Matter party to which only Black people were invited. There’s no question that her statements were protected by the First Amendment, but some of her statements were viewed as inflammatory, outrage was duly sparked, and her employer wanted to distance itself from her.

Don’t Embarrass Your Employer

Like it or not, we are all ambassadors for our employers and how we act/what we do reflects on them. We live in a world where the Internet can find you in hours, as certain self-involved dog owner and bullying cyclist recently learned. Both lost their jobs because their actions reflected upon their employers, and their employers wanted nothing to do with them.

These are outrageous examples that illustrate an important lesson. If keeping your job is important to you, you must consider how publicly exercising your right to free speech reflects on your employer. A vocal gun control advocate can’t expect to keep his marketing job at Smith & Wesson.

If You’re Not the Designated Spokesperson, Don’t Speak for your Company

This seems obvious, but it includes not doing or saying anything that would make anyone else think that you are speaking for the company. For example, if you work for UPS, doff the brown uniform before you join the protest rally. Don’t hold a sign that says, “Company X Employees Against World Peace.”

Before law school, I worked in human resources for a Fortune 10. One day, all hell broke loose because a vice president of training and development wrote a letter to the Wall Street Journal on company letterhead, which WSJ printed. His letter included references to “gritty inner-city streets” and addressed racial issues. He was lucky. It was the late 90s and the hubbub was almost all internal. If that were today, he would have been fired the day after WSJ published his letter.

Nevermind Your Privacy Settings, Everything on the Internet is Public

This is where people make the most mistakes. You may think you are just venting to a group of friends and no one else will see it, but anything can be forwarded, or screenshot, or found in a Google search. Don’t write anything you wouldn’t want your boss to read and you don’t want published on The Daily Beast. If you’re unsure, stick with cat memes.

Last year, agents of U.S. Customers and Border Patrol discovered that their “private” Facebook group, where they shared jokes about dead migrants and sexist memes, wasn’t at all private. Various punishments ensued and Congress is investigating the group. This is not a good look on anyone. That any of the more active members are still employed is only because they are government employees and are entitled to due process. Private employees are not.

Back to Fairness, Why Isn’t What You Say “Off the Clock” Protected?

By design, the Constitution concerns itself only with what the government can and cannot do. The idea was that if the government involves itself too deeply in the day-to-day conduct of people’s lives, it is akin to tyranny. So, we are left with an imperfect situation where white supremacist groups are protected the same as pro-democracy groups, and your private employer can fire you for involvement in either.

Still, that doesn’t feel right. Is it possible to work around it, and protect employment rights for private employees who are exercising their First Amendment rights?

Answer: Yes. Some federal statutes already protect some speech, and some states protect  employees engaged in political activity.

OSHA, the NLRB, and Whistleblower Laws

As I discussed in my articles about preparing to return to work in CovidWorld and Whistleblower Laws, you have the right to a safe workplace and the right report unsafe working conditions without fear of reprisal. You also have the rights to discuss the terms and conditions of your employment with your co-workers and engage in concerted activity to change the terms and conditions. These protections are limited as to the subjects upon which you can speak, and to whom, but it is something.

State Laws

Some states have passed laws that specifically protect employees from adverse action based on pollical activity. Connecticut comes right out and prohibits discipline or discharge of an employee for exercising First Amendment Rights, provided the activity does not interfere with the employee’s job performance or the working relationship between the employer and the employee. Colorado, North Dakota, and Utah prohibit workplace discrimination based on “lawful conduct outside of work.” California and New York prohibit discrimination for “recreation activities” outside work, which can include attending political events. A handful of other states protect employees engaged in “political activities,” based on their party membership, and based on their “political opinions.”

In the current divisive political environment, it is unlikely that the federal government will pass a law adding employment protection for political activity, but laws change to reflect the people’s beliefs. Twenty years ago, marriage equality seemed like an impossibility. By 2004, same sex marriage was legal in Massachusetts, followed by Connecticut’s civil union law in 2005. Over the next 10 years, same sex marriage became legal in state after state, until the watershed moment in 2015, when the U.S. Supreme Court declared same-sex marriage to be legal throughout the United States.

A sea change of societal acceptance over 15 years, from something considered virtually impossible to something legal and generally accepted by most Americans is unprecedented. But don’t be discouraged. Pressure from the general public is already causing businesses to rethink their policies about political speech at work.

Earlier this month, Starbucks suffered serious social media backlash when it was learned they instructed employees that they could not wear Black Lives Matter shirts or paraphernalia because it might amplify divisiveness. Starbucks has since announced the creation of its own Black Lives Matter t-shirts for its employees to wear. Last week, when a Taco Bell franchise employee claimed he was fired for wearing a Black Lives Matter face mask, Taco Bell was quick to respond, apologizing for the action, stating that its employees are allowed to wear Black Lives Matter masks and that it supports the Black Lives Matter movement. I doubt any of us could have imagined this reaction three years ago, when Lisa Durden was fired.

One thing is certain, support for free speech protection for private employees is gaining traction in the United States. We certainly live in interesting times.

If you would like more information about this topic please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or email to info@capclaw.com.

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

By Mark Carey and Fran Slusarz,

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

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

A Monumental and Unpredicted Decision for LGBTQ Employees

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

Three Cases, Almost Identical Facts, and Different Outcomes

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

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

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

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

The New Rule Banning Sexual Orientation Discrimination

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

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

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

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

How Can You Protect Yourself After Bostock?

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

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

The Workplace of Tomorrow II: Dystopia Rising

The Workplace of Tomorrow II: Dystopia Rising

By Fran Slusarz,

Last week, or 347 news cycles ago, I wrote that the post-COVID workplace will not be as bad as we feared. Most employers will do the right thing and provide a safe workplace for their employees. We may not have jetpacks, but the country would find its way. Today? I’m just not feeling it. After several solid days of civil unrest in the wake of the death of George Floyd in police custody, and with the government’s increasingly militaristic response to same, I can’t muster the optimism to tell you things will be all right.

With that as a backdrop, I present The Workplace of Tomorrow II: Dystopia Rising. Like any good trilogy, the second story ends with our heroes at their lowest, facing certain defeat. While reading this, despair not: The Workplace of Tomorrow III will have a happily ever after. Trust me. I’m a lawyer.

The Surveillance Workplace

While researching Montana’s Wrongful Discharge in Employment Act (much more on this to come), I discovered that as of October 1, 2019, it is unlawful in Montana for an employer to force the implantation of a microchip on its employees. The employee must consent, and the employer cannot fire or refuse to hire anyone who does not want to be treated like livestock or an errant pet. Several other states are considering similar laws. I was delighted to find states making autonomy over one’s body a priority, but I could not find the problem these laws are meant to solve. No employers are pushing for 24/7 tracking of its employees and there exist no grassroots #StopTheChip movement.

It’s easy to be cynical and cast the law as a pointless gesture that gives Montana’s elected officials a “win,” but it touches upon real concern people have about their privacy and, in particular, electronic surveillance.

Momentary Digression: I Own No Foil Hats

Let me digress for a moment and assure you that I am not a privacy freak. I consider myself concerned about privacy, but probably not as much as I should be. I put security stickers over my cameras when I’m not using them and I rarely use location services on my phone because the idea of Tim Cook keeping tabs on me is creepy. Sometimes – but not often – I use a web browser with a Virtual Private Network. By contrast, I know my Internet Service Provider knows every website that has ever been visited by any device on my wifi network and the records can be subpoenaed. I have a Google Nest Hub in my kitchen that sometimes speaks when no one asked it anything. I have a collection of 5 or 6 passwords that I use for everything. I always sign up for the membership card to get the sale price, I do not have Radio Frequency Identification-blocking anything, and I own no aluminum foil-lined garments or headgear.

Digression Completed. Let’s Continue

Now that you have the context, you can decide how to take the rest of this article.

Back when going to work involved going somewhere, employers could tell if their employees were working by confirming that they were where they were supposed to be at the appointed time. That’s not as easy with a remote and mobile workforce. As a result, many employers use software to track computer use, and can easily check what time you started working, what websites you visited, and for how long.

A lot of states require employers to inform their employees that their computer use will be monitored, but when was the last time you read your employee handbook or the bulletin board in the lunchroom with all the employment law notices? That last one is a particular challenge when your workplace has been shut down for 3 months.

My plea to you: don’t do ANYTHING on your work computer that you don’t want your mother to read. Do your mother and your lawyer a favor. Believe me, I’ve had to sit through depositions while a smug opposing counsel read sexually explicit messages my client sent some rando from his work computer.

Point Taken, But What’s This Got to Do With COVID-19?

Contact-tracing is a time-honored weapon in fighting epidemics and pandemics. If you can get in touch with people who have been exposed before they have the chance to infect others, you can limit the spread of the disease. When a disease hits the level of “community spread” – i.e., so widespread it is almost impossible to track how a person came in contact with the disease, and to whom the person may have spread it. This is where technology can help, and your privacy can become an issue.

Every day, most Americans carry around a device with which our movements can be tracked: our mobile phones. Although we tend not to think about it, we willingly permit private companies to track our movement throughout the day as our devices ping nearby cell towers. The government can access this information immediately under exigent circumstances (i.e., a kidnapping), or with a search warrant.

Over the last several months, private companies have been working on ways to use our screen addiction for the public good, by developing contract tracing apps and notification tools to combat the coronavirus pandemic. Using such an app would be voluntary, but convincing us to download something that is designed to track your every movement and report it to the government – public health officials – is outside the comfort zone of many, many people.

To ease privacy concerns, yesterday, June 1, 2020, the Senate introduced the Exposure Notification Privacy Act, a nonpartisan bill to regulate contract tracing and exposure notification apps. It would ensure that any data collected for coronavirus cannot be used for commercial purposes and that users can request that their information be deleted at any time. It’s a tightrope walk: the ability to contact trace electronically, on a grand scale, can do wonders for containing COVID-19 and, ultimately, reopening the country. But, as Republican Senator Bill Cassidy (LA), stated, “If you ask most people, ‘Do you trust Google to respect your privacy?’ … they don’t trust Google.” Nothing personal, Google, but my Nest Hub does speak out of turn. Who knows what it reports back to the baseship.

Employer Use of Tracking Apps

There is also a growing concern about how employers may use this technology. Remember those wacky microchip implantation laws? Well, it is grows from the fact that employers in some sectors have their employees use wearable tracking devices at work, ostensibly for efficiency and productivity. Amazon, for example, is famous for its tracking of warehouse employees, including the time they take in the bathroom, and terminating them if they fall under threshold.

You may not wish to have contact tracing software on your phone, but if you carry a phone issued by your employer, you may not have that choice. Indeed, employers are driving the development of contact tracing tech, with companies like PriceWaterhouseCoopers offering an app that helps businesses “access precise proximity information” and “receive near real-time information about whether your people may be at risk for exposure.”

Welcome to The Workplace of Tomorrow II: Dystopia Rising. A world where your employer knows where you are every minute of the day, every person with whom you interact, and how poorly you play Vegas rules solitaire. I look back at my earliest office job, where I transcribed dictation tapes on a Wang VS word processing terminal, and sigh.

For more information about this article or to speak with one of our employment attorneys, please contact Carey & Associates, P.C. at 203-255-4150 or send an email to info@capclaw.com.

The Workplace of Tomorrow: Not as Silly as They Predicted, Not as Bad as You Fear

The Workplace of Tomorrow: Not as Silly as They Predicted, Not as Bad as You Fear

By Fran Slusarz,

Mid-century was the golden age of futurism and if you are of a certain (ahem) age, you spent far too many hours on Saturday morning watching cartoons about The World of Tomorrow. Flying cars and jet packs featured prominently, along with voice activated appliances, innumerable tv screens, robots that sweep up after you: everything the middle-class, white, heterosexual, single income family could need. The best minds of the Boomer generation predicted Skynet would become sentient on August 4, 1997, and set out to destroy humanity shortly thereafter. The best minds of my generation were slightly kinder: our robot overlords let us think we lived in an imperfect dream world.

I’ve been thinking about these days of past future recently because we’re at a crossroads. Articles abound predicting what our workplaces will look like as businesses reopen, but all we know for sure is that it won’t be the same. Even after a vaccine for COVID-19 is widely available and herd immunity kicks in, some changes will be permanent. There is no hard reset to January 2020.

The Discrimination We Are NOT Seeing

When the pandemic first took hold in New York, we thought we would see rampant discrimination on the basis of COVID-19 status, risk of COVID-19 exposure, or risk of serious complications from COVID-19. Frankly, our only frame of reference was HIV/AIDS in the 1980s. We expected people to have the same irrational fear or working alongside someone who had been sick or may have been exposed.

While many people are, naturally, fearful of developing COVID-19, we are not seeing the fear of the individuals affected as we did at the height of the AIDS crisis. Instead, people are behaving compassionately and, despite the outliers we see in the news, accept inconveniences like hunkering down and wearing PPE because we recognize how deadly COVID-19 is. Fogged-up glasses are no big deal compared with the inability to breath.

Funny enough, I think we have to thank Princess Diana for this. One of her greatest legacies is that she humanized people with HIV/AIDS and help the world to recognize that the sick deserve our compassion even when the illness is scary.

The Undiscovered Country

The post-COVID workplace is the great unknown. While every employer is required to provide a safe workplace, for many industries compliance has consisted of little more than making sure exit routes are unlocked in case of fire. The closest thing to safety equipment I’ve used in 30 years of office work is dishwashing gloves. Tech employers that have never considered the risks of injury their employees face, now have to consider how to force social distancing in open, sit where you want, workplaces. Law firms have to consider the time a virus can survive on the coffee machine, or how frequently keyboards should be sanitized. The healthcare and construction industries are way ahead of the game since they’ve had to think about worker safety for more than a century.

Some of the changes employers need to make will be costly, inconvenient, or seemingly illogical and unnecessary. OSHA’s Guidance on Preparing Workplaces for COVID-19 has a lot of good information for how to minimize the risk of transmission in the workplace in general, but employers have to know to look for it and use it. One family member of mine, for example, works for an engineering firm that reopened its office last week. The owners do not think it is required to make any changes to ensure its employees are safe from COVID. My family member satisfies her own safety concerns with the knowledge that she spends most of the day alone in her office and the liberal use sanitizing wipes. Her employer, however, should be analyzing the workspace and how employees interact with each other to determine if temperature checks, masks, and an aggressive cleaning schedule should be implemented.

This knowledge gap leads us to believe that we will see an uptick in OSHA-related employment issues through the end of the year, as businesses reopen. Employees will want to know their legal rights before they file a complaint with OSHA, and some employers will retaliate against whistleblowers. Unless an employer does something remarkably stupid, I don’t expect the post-COVID workplace to be a breeding ground for class action lawsuits.

Overall, I’m optimistic about The Workplace of Tomorrow. I think employers will do their best to keep their employees safe even if it requires a little nudging, and people will continue to do what we can to avoid transmitting this deadly disease. We may not have flying cars and jetpacks, but we will have compassionate people who want to do the right thing. Not a bad trade-off.

If you would like more information about this article, please contact our employment attorneys at Carey & Associates, P.C. or send an email to info@capclaw.com.

Watch Out for Parasitic Layoffs: Companies are Dropping Headcount  to Boost the Bottom Line While No One’s Paying Attention

Watch Out for Parasitic Layoffs: Companies are Dropping Headcount to Boost the Bottom Line While No One’s Paying Attention

By Fran Slusarz,

It happens in every economic downturn. Companies that are doing just fine, thank you, go through rounds of layoffs to the cheers of Wall Street. Their stock value goes up because they cut expenses, and there’s no real consumer or job market backlash. So many companies are laying off workers that no one can keep track of which ones were on the brink of insolvency and which ones were riding the wave.

We see it in news and our firm has seen it in the calls we’ve gotten in the last few weeks. Last week, for example, IBM announced that it is laying off an undisclosed number of workers. Its CEO made a statement last month about uncertainty caused by COVID-19, but IBM’s current stock price is only about 6% off its price from one year ago today, and up nearly $30 per share from its low point on March 23, 2020. Bicycle shops across the US have backorders and waitlists they’ve never seen before, but we know of significant layoffs by manufacturers.

So what’s an undisclosed number of layoffs in the vast ocean of 38.6 million unemployed Americans?

I try to avoid falling into the trap of absolutes. Businesses exist to make money, so how can you fault them for doing so? Except, there is something patently unfair about firing people for no good reason at all. And mean-spirited about doing it at a time when it will be difficult for your former employees to find another job. And vulgar about using a the economic fall out of a global pandemic to deflect attention from their own opportunistic behavior.

If our Supreme Court says that corporations can have the religious beliefs of the humans who own them, then shouldn’t we expect them to behave ethically with regard to the humans who serve them?

Fortunately, some in business are beginning to recognize that “Greed is good,” isn’t the best of all possible worlds. The Business Roundtable, an association of CEOs from America’s largest companies, recently updated its Statement on the Purpose of a Corporation to recognize the company’s role in serving all stakeholders – shareholders and employees alike. If more companies adopt this approach, maybe we can disincentivize these parasitic layoffs. Maybe we can minimize the effects of economic downturns overall.

If you would like more information about whether your layoff was illegal, please contact our employment attorneys at Carey & Associates, P.C. or send an email to info@capclaw.com.

What If They Opened the Economy and No One Came?  Or, Why It’s Still Mostly Groundhog Day

What If They Opened the Economy and No One Came? Or, Why It’s Still Mostly Groundhog Day

By Fran Slusarz,

With all 50 states set to lift at least some restrictions as we head into Memorial Day weekend, it is the perfect time to look at what this means – and doesn’t mean – for America’s workers.

A reopening, however broad, isn’t going to magic us back three months. Most states are following variations on the staged openings recommended by the Centers for Disease Control and Prevention, but they are not mandatory and each state has been left to decide for itself how best to open.

This leaves us with a patchwork of rules and recommendations, and no universal path forward. We must proceed according to our home state’s rules, our employer’s health and business concerns, and our own risk tolerance.

Not Every Industry Will be Open

In deciding what to open and when, states must consider the continued need for social distancing. Certain industries are just not conducive to staying 6 feet apart from each other, which is why I won’t be reveling in my field-level GA tickets to the Foo Fighters this July 4th, and instead will be trying to keep my dogs calm amidst the neighborhood fireworks displays. Simply, if you are floor trader at a stock exchange, a National Football League player, or even a Foo Fighter, you can expect to wait a bit longer before your industry opens.

Even if Industry is Open, Your Job May Not Be

Just because the state decides your industry is “open,” doesn’t mean you are going back to work right away. Your employer has to decide if it makes sense to open. Yes, they are losing money by staying closed, but they can lose more money by opening before their customers are ready to come back. When the owners feel confident, they can generate enough sales to cover payroll, utilities, and supplies, they will reopen. But, again, it isn’t a simple 3-month rewind. Businesses will have to comply with new health and safety requirements when they open, which can involve providing PPE for their employees and instituting frequent, meticulous cleaning schedules, to limiting the number of customers they can serve. All these factors will affect when a business calls back their employees, and how many they call back.

Your Job May Not Exist Anymore

This is one of the grimmer realities and I won’t dwell upon it. Ask yourself this: how likely are you to sample food at your next trip to Costco? I’ve never seen the people who offer samples doing anything remotely icky and I doubt they will start. But that won’t matter.

Before you worry about all the jobs that may become obsolete, remember that COVIDWorld has invented a host of new jobs. Grocery stores never had PPE checkers or cart cleaners before March; doctors’ offices never had temperature checkers.

That Pesky Consumer Confidence

Statisticians work tirelessly to describe numerically how consumers feel about spending money, but it’s all common sense: a person who feels confident about the economy and their personal financial situation is more likely to spend money. Someone who is worried about the economy and personal finances spend less.

What does this mean for your job in COVIDWorld? It’s another challenge. Without a universal set of rules for business reopening, having to rely on mixed messages and a patchwork of practices, it will be hard for consumers to feel confident about spending money.  It means we all must follow social distancing and PPE rules so we can all can feel confident that we aren’t risking our lives by going out into the world. Then consumers will spend money and employers will recall their workers.

We must work together on this one. This time around, we don’t have the option of going to the Winchester, having a nice cold pint, and waiting for all this to blow over.

If you would like more information about returning to work and your employment rights, please contact Carey & Associates, P.C. at 203-255-4150 or send an email to info@capclaw.com.

Does Your Large Employer Owe You Paid Sick Leave and Enhanced FMLA Leave?

Does Your Large Employer Owe You Paid Sick Leave and Enhanced FMLA Leave?

By Fran Slusarz,

If you are as outraged as I am by the well-capitalized hospitality industry and publicly traded companies gobbling up Paycheck Protection Program (PPP) loans meant for small businesses desperate for a way to pay their employees, you know that yesterday was the deadline for those companies to return loan funds without risk of penalty. After all, each of the companies had to certify that the “[c]urrent economic uncertainty makes this loan request necessary to support [their] ongoing operations,” and chances are pretty good that many of these companies had cash reserves from which to draw.

Why does it matter? Because employers with fewer than 500 employees are obligated to provide up to two weeks of Emergency Paid Sick Leave to their employees and 10 weeks Enhanced Family and Medical Leave under the Families First Coronavirus Response Act.

Isn’t this obvious? Fewer than 500 employees is fewer than 500 employees? If PPP, then Paid Sick Leave and Enhanced FMLA. Simple, right? Wrong. The CARES Act had a special carve out for the hospitality industry. Instead of requiring fewer than 500 employees total, hospitality industry companies were eligible for PPP loans if they had fewer than 500 employees per location. This is how ShakeShack qualified. (ShakeShack, returned their PPP loan. Most did not.)

That seems unfair. If you take PPP funds because you are a small business, how can you claim you aren’t a small business when it comes to paying benefits to your employees?

How indeed. It is an unintended consequence of the Single Employer Doctrine. When you have two or more companies with interrelated day-to-day operations, common management, centralized HR functions, and common ownership, they can be treated as a single employer for some employment law purposes. Businesses with multiple locations often organize separate business entities for each location, but operate them as a single business.

Traditionally, employers worked to avoid being lumped together as a single employer with another entity because different employment laws kick in as the number of employees increase. But we’re in COVIDWorld now, and the single employer doctrine is flipped on its head: employers that want to avoid Emergency Paid Sick Leave and Enhanced FMLA will wish to aggregate themselves with as many related companies as they can to hit the magic number of 500 employees.

At this point, we have no way of knowing how courts will treat the Shrödinger’s paradox of having both fewer than and more than 500 employees at the same time, but courts tend to prefer consistency over illogical outcomes. As Maya Angelou said, “When someone shows you who they are, believe them the first time.” The companies who received PPP loans should expect the world to believe they have 500 employees, and should treat their employees accordingly.

Or not. I’ll find it entertaining to watch their lawyers argue both sides.

If you think you may be entitled to Emergency Paid Sick Leave or Enhanced FMLA leave but your employer says you aren’t, please give Carey & Associates, P.C. a call at 203-255-4150 or send an email to info@capclaw.com.

They Denied My Unemployment Claim…Now What?

They Denied My Unemployment Claim…Now What?

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

YOU MUST FILE AN APPEAL:

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

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

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

WHAT HAPPENS NEXT:

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

WHAT YOU NEED TO KNOW ABOUT YOUR UNEMPLOYMENT APPEAL HEARING:

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

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

PREPARING FOR YOUR HEARING:

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

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

HEARING TIPS:

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

AFTER THE HEARING:

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

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

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