Employment Law Attorneys
The Gathering Storm: COVID Rages While Worker Relief Laws Sunset

The Gathering Storm: COVID Rages While Worker Relief Laws Sunset

By Fran Slusarz,

Way back in March, when I read the Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security Act (CARES Act), I thought they were great. Increased unemployment benefits through the end of July, unemployment benefits for up to 37 weeks, unemployment benefits for gig workers, two weeks of paid leave in case you or a loved one gets sick, and up 12 weeks of paid emergency family medical leave if you are unable to work because your child’s school or child care becomes unavailable. Americas workers were being looked after when we need it most.

The laws weren’t perfect. They had loopholes that allowed large and well-capitalized businesses to grab Paycheck Protection Program loans intended for small businesses. But as imperfect as they are, no one thought we would be facing the same emergency in November as we faced in March. No one anticipated we’d have 8 months of lockdown, remote learning, masking, social distancing, and a quarter of a million dead Americans.

Yet here we are. New York City just announced that it is closing its public schools and returning to all-remote learning. My hometown’s public school system did not open at all this fall. (But we did get the John Oliver Memorial Sewer Plant. Comme ci, comme ça.)

What does this mean for American workers? It’s not good.

The worker protections in the FFCRA and the CARES Act end on December 31, 2020. Happy New Year! Congress is in recess until after Thanksgiving and no one expects them to become serious about coronavirus relief when they return. Even if Congress did, no one expects the President to focus it.

Our best-case scenario is a stopgap agreement to extend the laws for a few weeks for the new Congress to and new administration to take office. But a stopgap won’t be enough for many Americans.

Remember that generous two weeks of paid sick leave if we develop coronavirus symptoms? Common cold symptoms caused many of us to use days – and rightly so – but slow test results had us burn through more sick days than necessary waiting for the negative results that allowed us to return to work. I’ve had two coronavirus scares in the last 8 months, both negative. If I couldn’t work from home, I would have used up my emergency paid sick leave and then some.

Remember those 12 weeks of paid Emergency Family Medical Leave? If your children are especially attentive and diligent teenagers, you’ve got nothing to worry about. Everyone else, chances are good you’ve already used a lot of that time caring for your younger children and playing teacher for your older children. My youngest is 16. Brilliant, but not especially attentive. I was reminded daily why I dropped my secondary ed major, and why it was the right decision.

Next, the unemployed. The good news is that the jobs numbers have been better than many expected. We hit a high of 14.7% unemployment in April, falling to 6.9% in October. This is a wonderful improvement, but it is so much higher than the 3.6% unemployment of January. The bad news is that the enhanced unemployment benefits of $600 per week ended on July 31, 2020, and the extended benefits for 37 weeks to gig workers and regular employees alike ends December 31, 2020.

Finally, the grim reality. The Institute for Health Metrics and Evaluation at the University of Washington projects that we will reach 320,000 deaths from COVID-19 by year end.

Wear your bleeping mask. And call your mother. She hasn’t seen you in months. Happy Friday!

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

 

Carey Quoted in Wall Street Journal Article: What Rights Do Furloughed Employees Have?

Carey Quoted in Wall Street Journal Article: What Rights Do Furloughed Employees Have?

Here’s what to know about health insurance benefits, freelance work, unemployment and more

Furloughed workers face uncertainty in a pandemic-stricken economy.

PHOTO: NAM Y. HUH/ASSOCIATED PRESS

By Anne Steele
Link to Orginal article.

What rights do furloughed employees have?

The bottom line

A furlough generally means workers’ hours have been cut or eliminated temporarily, or requires that they take a certain amount of unpaid time off. Furloughed workers are still considered active employees and eligible for some benefits. While furlough doesn’t have a technical legal meaning, employers—especially since the onset of the pandemic—are using the term to signal that it’s a status where employees can expect to maintain their health care benefits and eventually be called back to work. Still, a furlough can lead to termination.

The details

A furlough does not offer job security, though employers choosing to put employees on such leave typically intend to bring them back.

“Employers are operating in a lot of uncertainty right now, where they truly believed what would be two to three months then became eight months, and they’re now having to forecast business needs in a different environment,” says Stephanie Lewis, an attorney with employment law firm Jackson Lewis in Greenville, S.C. “We are seeing companies that are having to convert furloughs into layoffs.”

SHARE YOUR THOUGHTS

Have you or someone you know been furloughed during the pandemic? Share your experience below.

Furloughed workers, while still considered active employees, aren’t paid for time they don’t work. If, however, employers ask employees to work at any point during a furlough, workers must be paid in accordance with their regular salary or hourly rate, says attorney Mark Carey of Carey & Associates, an employment law firm in Southport, Conn.

In the meantime, furloughed employees can and should apply for unemployment benefits. All state unemployment systems were modified to make such workers eligible to collect unemployment.

“You should apply for every week you’re off. Even if you’re off one week and on the next,” says Ms. Lewis.

And while the employer can dictate the length and span of furlough, many are offering flexibility where they can, allowing workers to choose which weeks or months to take off.

If employers furlough employees without terminating their employment, they should make sure those workers are continually offered health care coverage to avoid penalties under the Affordable Care Act.

In fact, says Ms. Lewis, “most employers have worked hard for permission to keep employees covered by benefits.” Many furloughed workers are now crossing into a period where they would be ineligible for coverage—typically after 60 or 90 days on most benefit plans if they’re not actively at work—and would have to move to Cobra, which is more expensive for many people. Employers have requested approval to retain coverage, and benefits providers have allowed that, says Ms. Lewis.

An employer can’t restrict furloughed employees from taking other work outside the company—and employees who find other work may choose to remain in that job even if they’re called back by their original employer.

Companies bringing employees back to work must also treat furloughed employees equally or discrimination issues may arise. “These have to be equal-employment opportunity scenarios with furloughing and bringing employees back to work. People could raise issues of gender, race and age,” says Mr. Carey. Age tends to be the largest problem in rehiring after furlough, he says, as workers who are older tend to be paid more because they’ve been employed longer.

Write to Anne Steele at Anne.Steele@wsj.com

****

For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you.

Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

By Chris Avcollie

“In science, computing, and engineering, a ‘black box’ is a device, system or object which can be viewed in terms of its inputs and outputs…without any knowledge of its internal workings. Its implementation is ‘opaque’ ([i.e.] black). Almost anything might be referred to as a black box: a transistor, an engine, an algorithm, the human brain, an institution or government.” (https://en.wikipedia.org/wiki/Black_box).

When it comes to the world of requests for disability accommodations under the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act, the “black box” or the “unseen internal mechanism,” is the ever elusive “interactive process”. This is the process of information gathering and discussion between the employee requesting the disability accommodation and the employer who is obligated to determine whether the accommodation requested will be granted.  I analogize this process to a “black box” because it is inherently opaque. Why? While the ADA and the Rehabilitation Act require that both employers and employees engage in this interactive process, neither statute precisely defines what it is or when it starts or ends. It is not clear what precisely the employer must do in this process or what the employee can and should expect. How long should the process take? How does anyone know if they are doing it correctly? How do we know the proper accommodations were considered?

Now factor in the public health, work place safety, and personal medical complexities of the Covid-19 pandemic and the concomitant work-from home revolution and the box becomes even blacker. Do employers have to offer the same accommodations to teleworkers that they offered to workers when they were on site? Are accommodations automatically available for those with health conditions that put them at greater risk for Covid-19? If a disabled employee was able to do her job during temporary telework periods due to Covid-19, is she entitled to continue telework after the employer resumes regular operations?  More importantly, what is the specific “interactive process” that will be used to decide these issues?

Let’s see if we can figure out what is going on inside the black box. As with all black box analysis we are going to examine the “inputs” and “outputs” to determine what unseen principle or byzantine process is going on inside the box itself.  The “inputs” will be specific request for accommodation scenarios and the “outputs” will be the Equal Employment Opportunity Commission’s (“EEOC”) guidelines and recommendations for ADA requests for accommodation during Coivid-19.[1]

First, let’s look at the box itself.  The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic. Under the ADA, “reasonable accommodations” are adjustments or modifications in the facilities, operations, or equipment provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an “undue hardship,” on the employer. “Undue hardship” means “significant difficulty or expense.” That is the basic reasonable accommodation rule under the ADA.

An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that will not impose an undue hardship. But how is that determination made by the employer? The not so simple answer is: “Through the ‘interactive process.’” We have now entered the black box.

The “interactive process”, as described above, is the information gathering and discussion process between the employee requesting the disability accommodation and the employer. It begins when a request for accommodation is made by an employee and the employer responds. Where it ends is more difficult to pinpoint. This process may continue or stop and resume again when circumstances change. It should really be thought of as an on-going process. Let’s look at some “inputs” and “outputs” to see how the “interactive process” works:

›           If my job requires me to be on-site and I have a preexisting medical condition that makes me especially vulnerable to Covid-19, am I entitled to reasonable accommodations under the ADA?

Possibly. The threshold question is whether your condition is a disability as defined by the ADA. If the condition is not a disability under the ADA you might not be entitled to accommodation even if you are at higher risk. The ADA defines a “disability” as “a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.” When requesting an accommodation, the employee should ask his or her physician whether the condition in question meets that definition. Some physical and mental conditions which meet the definition include but are not limited to: heart disease, diabetes, lung disease, compromised immunity, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder. In this example, the employer would begin the interactive process by asking questions and/or requesting medical documentation from the employee to determine whether the condition for which the employee is requesting an accommodation is an ADA disability. If it is not, then the process will likely end with a denial. If the condition is in fact an ADA disability then the interactive process continues with an exploration of the accommodations possible and available.

          If my job is on-site and I have a preexisting medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19, how do I know what accommodations I can get?

The type of accommodations needed are usually proposed initially by the employee or her physician. The interactive process continues here as the employer then asks questions such as: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of her position (that is, the fundamental job duties). Some recommended Covid-19 accommodations to reduce exposure include without limitation: changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers; providing personal protective equipment (PPE); temporary job restructuring of marginal job duties; temporary transfers to a different position; or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure. Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances.

         Can my employer just say that my requested accommodations pose an “undue hardship,” and not engage in any sort of process?

The employer may not simply deny a requested accommodation without engaging in the interactive process. The employer is required to actually “discuss” the accommodations with the employee. If a particular requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that does not involve undue hardship.( In discussing accommodation requests, the EEOC recommends that employers and employees consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.) The discussion of proposed accommodations and the proposal of alternatives is part of the required process. Further, a general denial by an employer is insufficient. Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. The employer must consider certain factors such as:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
  • the impact of the accommodation on the operation of the facility.

If the employer cannot answer questions regarding these topics, it is likely that the interactive process was not properly conducted.

          When is an accommodation too costly? How can my employer decide? Won’t employers just say anything that costs money is too costly?

“Undue hardship” is determined based on the net cost to the employer. Employers are required to actually calculate costs and to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. Thus, an employer is not only required to assess the cost-impact of a requested accommodation on the organization but must also determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. If only a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if she or he will pay the difference. If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation. Again, if the employer is engaging in the interactive process in good faith, these points will be considered and discussed with the employee.

          Besides providing many new reasons for needing accommodations, how does Covid-19 affect the interactive process with my employer, if at all?

The interactive process is largely about assessing the relative burden of a particular accommodation on the employer’s operation. Therefore it makes sense that the financial, economic, and situational conditions affecting the workplace due to Covid-19 will factor into that calculus. In some cases, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one in the new conditions imposed by Covid-19. Further, an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations considering the facts of the particular workplace. For example, it may be more difficult now to conduct a needs assessment or to acquire certain PPE items. Covid-19 could cause “excusable delays” in the interactive process. The loss of some or all of an employer’s income stream because of the pandemic may affect the calculation of whether an accommodation is too costly. The physical layout of the facility may have changed due to Covid-19 safety measures, and a particular accommodation might not be feasible. Temporary accommodations might be granted and later changed or withdrawn as circumstances change. It might be easier to accommodate a request for telework or more difficult to obtain a temporary worker to take on marginal job duties. These complex factors make the interactive process more important than ever. Flexibility, creativity, and effort are needed to come up with workable accommodations in this challenging environment. The EEOC advises that there are many no-cost or very low-cost accommodations that can be found to assist those struggling to work during Covid-19.

          If I have a family member who has a medical condition (which is an ADA disability) that makes him/her especially vulnerable to Covid-19, does the ADA provide accommodations for me to reduce the risk of indirectly exposing my family member?

No. While the ADA does prohibit discrimination based on one’s association with an individual with a disability, that protection is limited to disparate treatment or actual harassment. The ADA does not require employers to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. Of course, an employer is free to provide such an accommodation if it chooses. While caregivers and family members of individuals with disabilities are not entitled to accommodations under the ADA, they may be entitled to leave under the federal Family and Medical Leave Act (FMLA) or the federal Families First Coronavirus Response Act. If an employee’s close family member has Covid-19, the FMLA could provide leave to care for that family member.

          If I have a medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19 and my employer allowed me (and others) to work remotely for a period of time, does my employer automatically have to grant me telework as a reasonable accommodation when the company returns to on-site work?

Not necessarily. Whenever an accommodation is requested the employer can engage in the interactive process and determine whether there is a disability related reason for it and whether there is an undue hardship under the circumstances. This is a fact-specific inquiry that can be made at the time the accommodation is requested. If the employee’s disability does not cause a limitation that will be relieved by telework, then it need not be granted. Further, if the employee’s disability related limitation can be addressed with another accommodation then that accommodation may be provided instead of telework. Additionally, if the telework arrangement requires the employer to excuse the employee from certain essential functions of the job, the employer need not excuse that function even if it did so voluntarily for a period of time out of necessity.  The ADA does not require an employer to eliminate an essential function of a position as an accommodation. However, if the disability related limitation would be removed by telework and all essential functions of the employee’s job were performed satisfactorily during the telework period, then the period of telework could be seen as an experiment that demonstrates that the accommodation was effective and satisfies all job requirements.  The interactive process must be flexible, cooperative, and truly interactive to determine what accommodations will work for employer and employee.

Based on our “black box” analysis here, it seems that the “unseen mechanism” that makes the interactive process work is some combination of cooperation, communication, and flexibility. While the specific results may vary widely depending on the factors mentioned here, it is clear that in the age of Covid-19, obtaining the right output from the “black box” that is the ADA interactive process requires a lot of input from all involved.

If you or someone you know needs advice or assistance in navigating a request for accommodation, please contact us at info@capclaw.com  or call 203-255-4150 and speak to one of the employment lawyers at Carey & Associates, P.C.

[1] All of the substantive information contained herein is derived from the EEOC website at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

Christopher S. Avcollie

Podcast Episode: COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

Podcast Episode: COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

[TRANSCRIPT]

You’re a free agent and your noncompetition agreement is void!  That should make you feel less stressed about getting your next job in the very industry you have spent so many years cultivating, especially during this pandemic.  Yes, I know your employer made you sign a noncompetition agreement when you were hired, but Covid-19 has changed everything.

I did not like noncompetition agreements before Covid-19 and I dislike them even more now seven months into this pandemic.  According to the latest jobs report, click HERE, “the total number of people claiming benefits in all programs for the week ending September 19 was 25,505,499…”  If you are a judge presiding over a complaint brought by an employer attempting to enforce a noncompetition agreement, would you enforce it against the unemployed employee in the face of these jobless numbers? Answer, No!  Regardless of the law related to noncompetition agreements (restrictive covenant), no judge will want to prevent employees terminated without cause from getting a new job. Who is going to pay for the employee’s food?  Who is going to pay for the employee’s mortgage?  How is she going to buy medication or diapers?

The time has now come to confront the idiotic, senseless and self-serving practice followed by 50% of all employers to force noncompetition agreements on vulnerable employees, especially during this pandemic. We need to protect employees and the income they need right now to survive.  We also need to confront employers and demand they stop using noncompetition agreements altogether because they are abusive and unnecessary. Employers are already overprotected by making employees sign Confidentiality and Proprietary Information Agreements, which protect against the disclosure of company trade secrets to third party employers.

NONCOMPETE MUST BE VOIDED DUE TO IMPOSSIBILITY

What does impossibility mean in relation to noncompetition agreements during the Covid-19 pandemic? Courts generally apply the doctrine of impossibility whenever there is an interference in achieving the purpose of the contract between the parties that is beyond their control and it was never foreseen prior to entering into the contract. “A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.” Roy v. Stephen Pontiac-Cadillac, Inc., 15 Conn. App. 101, 103-04 (1988) (internal citations omitted.) When impossibility is raised, “the court is asked to construct a condition of performance based on changed circumstances, a process which involves at least three reasonably definable steps. First, a contingency—something unexpected—must have occurred. Second, the risk of the unexpected occurrence must not have been allocated either by agreement or by custom. Finally, occurrence of the contingency must have rendered performance commercially impracticable.” Id. at 104, quoting J. Calamari & J. Perillo, Contracts (3d Ed.) § 13-1, p. 537; see also Hess v. Dumouchel Paper Co., 154 Conn. 343, 349-52 (1966)

All employers “intentionally” manipulate employees to sign noncompete agreements in order to get the job, i.e. take it or leave it.  Employers typically seek to prevent employees from working for a competitor for a period of twelve months after termination.  Bam! A pandemic hits the U.S. and the world. That’s the impossibility event.  Massive layoffs follow, covering nearly 40 million people. By the way, an estimated 157.76 million people work in the U.S.  Of course we want the economy to return to normal as quickly as possible, and those unemployed workers are part of that economy.  If 50% of all employers use noncompetition agreements, then we have a major economic obstruction caused by self-serving employers who deliberately seek to prevent these unemployed workers from earning a living.  Sounds unfair, because it is.  It is impossible for any employee to comply with the one sided noncompetition agreement because they need to put food on the table and just survive.  That is the argument I am making and will make in every court case my firm becomes involved with.  This is a public policy crisis plain and simple.  There exist no current Covid-19 court decisions on this issue, but there are a few cases now in the pipeline. The public, the politicians and the courts are faced with a major public policy dilemma. Should the courts protect employers for the sake of protection alone or can they help employees by overriding noncompetition agreements entirely.  I believe the scales tilt heavily in favor of employees, employed and unemployed alike.

WHAT IS A NONCOMPETE AGREEMENT IN 2020?

It is a promise the employee allegedly makes, without his/her consent, with their employer that after they are terminated, they need to refrain from accepting employment in a similar line of work, with a competitive company, or establishing a competing business, for a specified period in a certain geographical area. A non-compete clause ancillary to a valid agreement is unreasonable in restraint of trade and void as a matter of law if: (1) the restraint is greater than is needed to protect the business and goodwill of the employer; or (2) the employer’s need is outweighed by the hardship to the employee and the likely injury to the public. In other words, if you are unable to earn a living because you are sitting on the bench during the noncompete period, without pay, solely because of the employer’s self-serving noncompete, then a Court will void the agreement.  The employer is already protected from the employee because the employer forced the vulnerable employee to sign the confidentiality agreement, a.k.a. Confidentiality and Proprietary Information Agreement, which protects against disclosure of company trade secrets to third party employers.

WHAT IS THE BUSINESS INTEREST?

The argument in favor of enforcing noncompete agreements is primarily to protect the company’s trade secrets, client relations, customer goodwill, employee training.  However, restraining competition is not a legitimate and enforceable business interest.  As I have repeatedly stated, the employer is already protected against disclosures of trade secrets through the Confidentiality and Proprietary Information Agreement.  The employer’s argument that a noncompete agreement is necessary to prevent the disclosure of trade secrets to third party employers is simply abusive and overreaching.

NONCOMPETE AGREEMENTS VIOLATE ANTITRUST LAW

I argue that noncompetition agreements violate Section 1 of the Sherman Act because every noncompete agreement is an unlawful contract to restrain trade.   Section 2 of the Sherman Act makes it illegal to “monopolize, or attempt to monopolize, …any part of the trade…”  (The Sherman Act, 15 U.S.C.§ 1)

You will never hear an argument in any litigation over the attempted enforcement of an employee noncompete agreement that the enforcing employer was seeking to restrain competition of its competitor businesses. Such a statement and action would constitute an unlawful antitrust action.  But we know in reality, that is exactly what employers are doing.  This conclusion is further supported by the recent statistics that nearly 49% of all employers use  noncompetition agreement for some or all of their employees, a doubling of the amount from 2014.  Noncompetition Agreements are a tool to kill competition, plain and simple.  Do not fall for the argument about protecting the company from rogue employees seeking to damage the employer. This accusation, albeit true in the rarest of circumstances, is specious given the employer made the employee sign an agreement to protect the employer’s trade secrets, the Confidentiality and Proprietary Information Agreement.

For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you for listening.

Podcast Episode: COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

You’re a free agent and your noncompetition agreement is void!  That should make you feel less stressed about getting your next job in the very industry you have spent so many years cultivating, especially during this pandemic.  Yes, I know your employer made you sign a noncompetition agreement when you were hired, but Covid-19 has changed everything.

I did not like noncompetition agreements before Covid-19 and I dislike them even more now seven months into this pandemic.  According to the latest jobs report, click HERE, “the total number of people claiming benefits in all programs for the week ending September 19 was 25,505,499…”  If you are a judge presiding over a complaint brought by an employer attempting to enforce a noncompetition agreement, would you enforce it against the unemployed employee in the face of these jobless numbers? Answer, No!  Regardless of the law related to noncompetition agreements (restrictive covenant), no judge will want to prevent employees terminated without cause from getting a new job. Who is going to pay for the employee’s food?  Who is going to pay for the employee’s mortgage?  How is she going to buy medication or diapers?

The time has now come to confront the idiotic, senseless and self-serving practice followed by 50% of all employers to force noncompetition agreements on vulnerable employees, especially during this pandemic. We need to protect employees and the income they need right now to survive.  We also need to confront employers and demand they stop using noncompetition agreements altogether because they are abusive and unnecessary. Employers are already overprotected by making employees sign Confidentiality and Proprietary Information Agreements, which protect against the disclosure of company trade secrets to third party employers.

Noncompete Must Be Voided Due to Impossibility

What does impossibility mean in relation to noncompetition agreements during the Covid-19 pandemic? Courts generally apply the doctrine of impossibility whenever there is an interference in achieving the purpose of the contract between the parties that is beyond their control and it was never foreseen prior to entering into the contract. “A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.” Roy v. Stephen Pontiac-Cadillac, Inc., 15 Conn. App. 101, 103-04 (1988) (internal citations omitted.) When impossibility is raised, “the court is asked to construct a condition of performance based on changed circumstances, a process which involves at least three reasonably definable steps. First, a contingency—something unexpected—must have occurred. Second, the risk of the unexpected occurrence must not have been allocated either by agreement or by custom. Finally, occurrence of the contingency must have rendered performance commercially impracticable.” Id. at 104, quoting J. Calamari & J. Perillo, Contracts (3d Ed.) § 13-1, p. 537; see also Hess v. Dumouchel Paper Co., 154 Conn. 343, 349-52 (1966)

All employers “intentionally” manipulate employees to sign noncompete agreements in order to get the job, i.e. take it or leave it.  Employers typically seek to prevent employees from working for a competitor for a period of twelve months after termination.  Bam! A pandemic hits the U.S. and the world. That’s the impossibility event.  Massive layoffs follow, covering nearly 40 million people. By the way, an estimated 157.76 million people work in the U.S.  Of course we want the economy to return to normal as quickly as possible, and those unemployed workers are part of that economy.  If 50% of all employers use noncompetition agreements, then we have a major economic obstruction caused by self-serving employers who deliberately seek to prevent these unemployed workers from earning a living.  Sounds unfair, because it is.  It is impossible for any employee to comply with the one sided noncompetition agreement because they need to put food on the table and just survive.  That is the argument I am making and will make in every court case my firm becomes involved with.  This is a public policy crisis plain and simple.  There exist no current Covid-19 court decisions on this issue, but there are a few cases now in the pipeline. The public, the politicians and the courts are faced with a major public policy dilemma. Should the courts protect employers for the sake of protection alone or can they help employees by overriding noncompetition agreements entirely.  I believe the scales tilt heavily in favor of employees, employed and unemployed alike.

What is a Noncompete Agreement in 2020?

It is a promise the employee allegedly makes, without his/her consent, with their employer that after they are terminated, they need to refrain from accepting employment in a similar line of work, with a competitive company, or establishing a competing business, for a specified period in a certain geographical area. A non-compete clause ancillary to a valid agreement is unreasonable in restraint of trade and void as a matter of law if: (1) the restraint is greater than is needed to protect the business and goodwill of the employer; or (2) the employer’s need is outweighed by the hardship to the employee and the likely injury to the public. In other words, if you are unable to earn a living because you are sitting on the bench during the noncompete period, without pay, solely because of the employer’s self-serving noncompete, then a Court will void the agreement.  The employer is already protected from the employee because the employer forced the vulnerable employee to sign the confidentiality agreement, a.k.a. Confidentiality and Proprietary Information Agreement, which protects against disclosure of company trade secrets to third party employers.

What is the Business Interest?

The argument in favor of enforcing noncompete agreements is primarily to protect the company’s trade secrets, client relations, customer goodwill, employee training.  However, restraining competition is not a legitimate and enforceable business interest.  As I have repeatedly stated, the employer is already protected against disclosures of trade secrets through the Confidentiality and Proprietary Information Agreement.  The employer’s argument that a noncompete agreement is necessary to prevent the disclosure of trade secrets to third party employers is simply abusive and overreaching.

Noncompete Agreements Violate Antitrust Law

I argue that noncompetition agreements violate Section 1 of the Sherman Act because every noncompete agreement is an unlawful contract to restrain trade.   Section 2 of the Sherman Act makes it illegal to “monopolize, or attempt to monopolize, …any part of the trade…”  (The Sherman Act, 15 U.S.C.§ 1)

You will never hear an argument in any litigation over the attempted enforcement of an employee noncompete agreement that the enforcing employer was seeking to restrain competition of its competitor businesses. Such a statement and action would constitute an unlawful antitrust action.  But we know in reality, that is exactly what employers are doing.  This conclusion is further supported by the recent statistics that nearly 49% of all employers use  noncompetition agreement for some or all of their employees, a doubling of the amount from 2014.  Noncompetition Agreements are a tool to kill competition, plain and simple.  Do not fall for the argument about protecting the company from rogue employees seeking to damage the employer. This accusation, albeit true in the rarest of circumstances, is specious given the employer made the employee sign an agreement to protect the employer’s trade secrets, the Confidentiality and Proprietary Information Agreement.

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.

WSJ Article: Stressed at Work? Here’s When to File for Disability Benefits (Quoting Mark Carey)

WSJ Article: Stressed at Work? Here’s When to File for Disability Benefits (Quoting Mark Carey)

Employee may be able to file for short-term disability with proper medical diagnosis, but there are other options to consider

PHOTO: GETTY IMAGES

Short-term disability leave is six months and pays out a portion, usually around 60%, of an employee’s salary.

By Anne Steele Oct. 4, 2020 3:00 pm ET
Link to Original

I have stress about Covid-19 at my office. Can I file for short-term disability?

The bottom line

Employees may be able to file for short-term disability if a medical professional diagnoses them with an anxiety disorder, depression or other mental illness due to that stress. But there are other options to consider under the Americans With Disabilities Act, depending on the person’s condition and workplace environment.

The details

This worker’s situation is common these days.

“We get this question every week multiple times a week,” says Michelle Barrett Falconer, a partner at employment law firm Littler Mendelson.

First, workers should consult their employee handbook or human-resources portal to find out whether their company provides for short-term disability benefits. Five states—California, Hawaii, New Jersey, New York and Rhode Island—also have such programs. To apply, employees need a medical provider to identify they are temporarily disabled from performing their particular job.

“Stress itself is not going to be a reason. It has to manifest in some physical or mental condition,” says Alex Berke of Berke-Weiss Law, noting that some short-term disability plans have exclusions for mental health.

Valdi Licul, partner at Wigdor, says many insurance companies have put out FAQs in recent months. He says employees shouldn’t be afraid to ask to see the policy, which usually has a “summary plan description” explaining the worker’s rights in layman’s terms.

Carey & Associates’s Mark Carey recommends applying for short-term disability and leave under the Family and Medical Leave Act—which has a lower threshold for approval—at the same time. Short-term disability leave is six months and pays out a portion, usually around 60%, of an employee’s salary. FMLA is 12 weeks and typically unpaid, but offers job protection during the time of leave, which short-term disability doesn’t.

Both are protected under the Americans With Disabilities Act. But lawyers also recommend using the ADA to seek other reasonable accommodations, such as working remotely, having a single closed room to the employee’s self, or a flexible or staggered schedule. Such accommodations are worked out during what’s called the “interactive process” between worker and employer.

If an employee’s stress stems from their being part of the immunocompromised or at-risk population, the ADA can also help.

Ms. Falconer, who works on the employer’s or defense side of litigation, says while most cases coming in stem from the employee having a generalized stress about Covid-19, some are more directly linked to the workplace itself. Employees who are stressed because of their work and the fear of catching the virus may be able to file a worker’s compensation claim.

“For fictional worker Larry, let’s say part of his job is going to public events and he’s supposed to go speak at a banquet,” she says. “If his boss says you’ve got to go speak and he says I’m so fearful and the boss is putting pressure on him, he may say he has stress as a result of Covid and the pressure the boss is putting on him, which could be psychiatric injury.”

Link to WSJ Original

Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

In this episode of the Employee Survival Guide we discuss how to apply for disability benefits through your employer if you fear for your personal safety at the workplace due to Covid-19.  Whether you have an anxiety or panic disorder  or you are trying to protect your vulnerability due to Covid-19, Employment Attorney Mark Carey will give you a short guide about how to apply for your employer’s Short Term Disability benefits and Long Term Disability benefits under a federal statute called ERISA (Employee Retirement Income Security Act). Mark will also discuss the very important overlap with the Family Medical Leave Act, the Americans With Disabilities Act and state antidiscrimination laws. He will show you how protected you actually are against your employer unfairly terminating you for taking a much needed disability leave of absence due to Covid-19.   For more information, please contact Carey & Associates, P.C. at 203-255-4150 or email at info@capclaw.com.

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.

******

For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you.

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 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.

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