Employment Law Attorneys
Podcast: The Workplace of Tomorrow: A New Path

Podcast: The Workplace of Tomorrow: A New Path

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.

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.

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

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

By Mark Carey

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

Identify the Problem and Why It Happened

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

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

A Universal Law Was Born Out of Thin Air

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

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

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

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

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

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

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

There Was a Solution All Along, Hidden From You

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

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

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

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

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

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

DOWNLOAD YOUR COPY OF OUR
We're here to help with COVID-19 questionsRead More