Employment Law Attorneys
Podcast: C’mon, Man! Employees Continue to Get Screwed Over

Podcast: C’mon, Man! Employees Continue to Get Screwed Over

In this episode of the Employee Survival Guide Mark confronts systemic barriers created by employers that promote inequality of gender, age, race, sex, sexual orientation etc. and protects  bad actors and bad companies from public exposure of their illegal actions and public shaming.   Mark examines the current social equality movement (#metoo and BLM) to find system barriers thrown in their faces of employees by the very employers who publicly denounce sexism and racism.  Employers should be banned from using confidentiality agreements in employment discrimination settlements. We should ban the employment-at will rule because it only promotes biased discrimination in the workplace.  And finally, every case should be made public instead of being forced into the black hole of arbitration.  We need to know how our employers are treating our coworkers and ultimately ourselves.

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

YOUR HOST MARK CAREY

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

EMPLOYEE SURVIVAL GUIDE PODCAST IS LIKE NO OTHERS

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Podcast: C’mon, Man! Employees Continue to Get Screwed Over

C’mon, Man! Employees Continue to Get Screwed Over

As we await the dawn on this purported new era of social change in America, I can promise you that your employment rights will not improve. I am unapologetic.  In fact, your employment rights have been so eroded by your employers that we are collectively veering toward ever more systemic inequality and racism in the workplace.  Now that I have your attention, what are YOU going to do about it?

You have sat on the sidelines watching others do the heavy lifting, but when are you going to start questioning your employer regarding your employment and the selfish one-sided employment practices you are somehow required to follow, such as the employment at will rule, confidentiality of settlement agreements, and forced arbitration of employment disputes. Can you say “No”?  Maybe?

A majority of you, may never question or oppose your employer because of fear – of losing your job,  income and benefits. I get the financial insecurity issue faced by all, but that’s the employer’s only leverage!   “Come on Man”, as President Biden is often quoted as saying. But really, come on men, women and other, how much pain and suffering has to occur before the collective “YOU” says enough?  If we are in the midst of a new social revolution in support of diversity and equality where big corporations have piled on diversity support initiatives, solely for marketing purposes in my opinion, then we should be seeing signs of dramatic changes to reverse racial inequality at work, promote pay equality and the end of firing older workers (55 and above) just because they cost too much.

Wait, pause, listen- what’s that?  Is that the sound of my meditation music playing in the background?   If #metoo and BLM are real long lasting social movements to correct the injustices at work, I should not be able to hear anything over the gigantic thunder of public outrage toward racial, sexual and age inequality hurtling at my office windows, internet, television, etc.  I have not heard nor read anything after the recent election that indicates real changes beyond political hyperbole.  And as far as I can see, employers continue to default into the same old management practices of yesterday.  Nothing has changed, nor will it change. Employers will continue to screw YOU (collectively) for the near future.  I am writing this article in order to make you understand what your employer does not want you to know about; “default management practices” are real and designed to suppress the collective YOU literally.

Here is why. Employers continue to require the following chains of servitude and secrecy solely to promote their default “control at all costs” position at your expense.  You did know your current employment system stems from the centuries old practices of Master and Servant, right?  The following employment practices are inherently racial, sexist, ageist, homophobic and just downright undemocratic, but you will not hear anyone else dare to say these truths.  I will because I do not care what management or corporations say.  Why don’t you feel the same way?

NDA’s and Confidentiality Agreements Conceal Bad Actors and Bad Companies

Shame and more shame.  If you statutorily ban the use of confidentiality provisions in settlements of employment discrimination cases, bad actors and bad companies will stop discriminating. Why?  Companies will seek to avoid public shaming if we all knew – that a CEO attempted to rape a subordinate, that a billionaire hedge fund manager fired a woman with young children and recently diagnosed with two forms of aggressive cancer, that a Black man was immediately fired after being asked and gave an internal talk regarding the BLM movement, that an older man was fired for losing his voice box due to cancer and told he did not have a physical disability, that a pregnant woman was fired from a large public company because her brain allegedly changed as a result of her pregnancy.  Need I go on?

Some states have decided to ban confidentiality provisions in employment settlement agreements, but they have not gone far enough because employer lobby groups temper down the statutory language and create gaping loopholes for employers to slither through. For example, some employers have conditioned part of the settlement payment requiring the employee (victim) to sign a separate confidentiality agreement.  I brought this to the attention of the relevant state Attorneys General’s Office without even a response.  The statutes are worthless because employers always seek the default to control you and control their self-interest.

Here is the bottom line, remove all confidentiality provisions from every employment settlement agreement and you will directly and substantially decrease all forms of racial, ethnic, sex, sexual orientation, disability, religious and age discrimination. Think about the millions of dollars saved by companies that could be used to train more employees and managers about the Golden Rule.  The money saved by not having to pay attorneys’ fees to employment lawyers like myself.  Please, I beg you to put me out of business, I would be glad to retire.  But employer’s cannot seem to give up this “confidentiality” drug.  There is absolutely no contrary rational argument in favor of the continued use of confidentiality provisions to shield bad actors and bad employers; if there is one let me know.  So why does this nonsense continue?  That’s how powerful employers are, always seeking to maintain this “default” management practice.  And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.  It’s a bipartisan effort to screw you! As I continue to say, employment law is not political- but NELA says it is (Disclaimer: I am a NELA member, but a registered republican doing the peoples’ work).

Employment At-Will Conceals Discriminatory Behavior and Must Be Banned

I will beat this drum till the end of time.  Most employees, except those in Montana, are capable of being fired for no reason at all and at any moment – this is the employment at-will rule.  The rule should be banned nationwide and replaced with a termination for cause rule.  The at-will rule arose out of the Master and Servant context and is still the current management default rule adversely impacting – everyone, except those employees in Montana and executives with the clout to demand employment contracts with severance and termination for cause.

Why is the at-will rule so dangerous?  When employers do not have to give a reason for termination, employers and managers, who hold a discriminatory bias of any kind, can quietly terminate employees they do not like.  Yes, the at-will rule promotes racism, sexism, disability discrimination, ageism etc.  But again, employers are so addicted to this rule, they can’t give it up.  This issue is equivalent to the opioid crisis and more companies and management counsel continue to prescribe this drug of choice.  That’s how powerful employers are, always seeking to maintain this the most coveted of all “default” management practices.  And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.

Instituting the termination for cause rule would result in decreased discriminatory practices, as employers would be required to demonstrate an objective factual basis to support the decision to terminate, not one that was arbitrary and capricious – which is what discrimination is.

Forced Arbitration Conceals Everything Bad That Your Employer Does Not Want You To Know About

What is forced arbitration? Simply, your employer says it is a quicker and cheaper way to resolve employment disputes.  It’s not quicker and it’s not cheaper – for you!  It’s called “forced arbitration” because your employer mandated your job offer or your continued employment on your signing the agreement.  You could not negotiate it away and it never benefits you at all.  It is a management default rule and more than 50% of employees in the United States are adversely impacted by this one sided practice.

What is it really?  The sole purpose of arbitration agreements in the employment context is to “conceal” bad actors and bad companies. The adverse effect on all employees is identical to the default use of confidentiality agreements. This default rule is so entrenched in our work culture that courts overwhelmingly compel arbitration in nearly all cases; concealing your claims of discrimination to a nonpublic black hole. There is absolutely no way to publicly discover what types of claims were sent to arbitration, as google cannot crawl it and Westlaw (lawyer research database) can’t search it. It is as if those claims never happened at all, i.e. the woman who was almost raped by the CEO, the Black man fired after being asked to give a BLM explanation etc.   Worse, you cannot shame the corporations for what they did- that’s the point!   It will take an act of Congress to overturn the Federal Arbitration Act, and this current Congress won’t touch this with a 100 mile pole.  That’s how powerful employers really are, always seeking to maintain this “default” management practice at every level.  And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.

You now know what I would propose, but what will you do to effect real change?

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

Podcast: The Devil Wears Santoni Shoes – This Boss Was No Angel

Podcast: The Devil Wears Santoni Shoes – This Boss Was No Angel

In this episode, Mark shares a real life story of a woman who was loyal to the company and did everything they asked of her.  But then she became sick with cancer and was fired.  This is a disability discrimination case. We have modified the names and facts to conceal the identities and ensure confidentiality. Her boss was a billionaire but by his actions you would consider him a cheap capitalist.   They refused to make her an employee with health benefits and she struggled for seven years as an independent contractor, working 60-70 hours per week, until the company finally made a her full time employee with health benefits. She had two pregnancies while working, and her employer forced her to work during her pregnancy leaves.  Soon after, she was diagnosed with breast cancer and needed surgery and chemo therapy.  She continued to work tirelessly even while on medical leave. Her cancer spread, she needed more surgery to remove her ovaries and more chemo therapy. She continued to work through her recovery. But then her employer forced her out on family medical leave without her consent, twice.  The second time she was not allowed to return to work and forced into disability leave of absence. The company cut off her health insurance when they terminated her, just as she was to receive further cancer treatments. Her husband was also suffering from cancer and no access to health insurance.   Mark provides commentary about the employer’s discriminatory and unlawful actions to get rid of this employee solely because she was a woman, over forty, and diagnosed with two forms of cancer.

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

YOUR HOST MARK CAREY

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

EMPLOYEE SURVIVAL GUIDE PODCAST IS LIKE NO OTHERS

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

“Vaxed” is the New “Black”: Navigating Employer-Mandated Vaccinations

“Vaxed” is the New “Black”: Navigating Employer-Mandated Vaccinations

By Chris Avcollie

In 2021 there is a new status symbol that will determine who is “in” and who is “out” in many social situations. It’s not fashion or cars and it’s not your number of followers on social media. The new hot status for 2021 will be: “Vaxed” or “Un-Vaxed.”

As the FDA approved Covid-19 vaccines become more widely distributed over the next few months, the question of who is “Vaxed” and who is “Un-Vaxed” will start to take on tremendous importance. As new strains of Covid-19 spread we can easily imagine restaurants or stores with “Vaxed Only!” signs on their doors. One’s vaccination status could soon determine one’s access to schools, public conveyances, businesses, and churches. It may also determine where one can work.

As businesses and institutions grapple with the effects of the pandemic the wide availability of effective vaccines will force the issue of whether to require their employees to receive the vaccine in order to keep their jobs. (See related article Employer Mandated Covid-19 Vaccinations – Can They Do That?). For businesses in customer-facing industries like hospitality or food service, the question is pressing. Will anyone want to go to a barber that was not vaccinated? Wouldn’t customers feel safer eating at a restaurant where all employees are vaccinated? While many are awaiting the vaccine with anticipation, many have concerns about the vaccines and do not want them. Some are medically unable to receive a vaccine and others have personal or even religious objections to them. What right does an employee have to refuse an employer’s mandated Covid-19 vaccine? Will employees be fired for refusing? What can employer’s do to respond to valid and deeply held objections to a blanket vaccine requirement?

The basic rule is that in an employment at will situation an employer can require a vaccine as a condition of employment. Almost all employment in the US is employment at will. If an employee is a member of a union, then a vaccine mandate would be negotiated by the union, but would likely become a requirement at the end of that process. Even where an employee has an individually negotiated employment contract, those agreements often contain provisions that allow the employer to change company policies and job requirements, particularly for worker safety. Thus, in most all situations, an employer can require its workers to be vaccinated.

If it strikes you as outrageously unfair that employers can require you to undergo an intrusive medical procedure against your will and your only recourse is to give up your livelihood and sole means of support for you and your children, you are not alone. While most Americans are clamoring for this particular vaccine there is also widespread concern. Many women of child-bearing age have expressed objections based on the lack of longitudinal research on the effects of the vaccines on the reproductive system. Many people of color have expressed objections to the vaccine based on historic precedents of medical experimentation on minority populations. If the ability to force vaccinations on employees under threat of economic ruin seems to be too much power for employers, we can thank the “at will employment rule.” This is the great default principle of American employment law. It holds that employers can essentially do (or not do) anything they want to their employees provided they do not violate specific statutes. Under this rule, as long as they stay within the law, employers are a law unto themselves.

There are a few exceptions to this general rule allowing employer mandated vaccines. While the employment at will rule allows employers to require vaccines as a condition of employment, their vaccination policies must comply with the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other state and federal workplace laws. The question then becomes when do these laws prevent an employer’s vaccine requirement?

One limitation on an employer’s right to force vaccinations covers employees who cannot be vaccinated due to a disability. The ADA requires that if an employer’s vaccine requirement will force the termination of a worker who cannot be vaccinated due to a disability, the employer must show that the unvaccinated worker will pose a “direct threat” or will create a serious risk of “substantial harm” to the worker, co-workers, or the public. Only if that risk is significant and it cannot be eliminated or reduced by some reasonable accommodation can the disabled employee be terminated. The EEOC has provided some guidance on how employers should assess the potential risk of an unvaccinated employee including: assessing the duration, severity, likelihood, and imminence of the potential harm. If an accommodation such as masks, or a work from home option would reduce the risk, then the disabled employee should be accommodated.

While this exception is fairly easy to understand on paper, it might not be so easy to implement in the workplace. What if the only way to mitigate the risk and to accommodate the one disabled employee is to require all other employees and all customers to wear masks in the facility? Right now everyone expects to wear masks all the time anyway but what about when the mask restrictions could be lifted due to mass vaccinations? Will that still be a “reasonable accommodation?”

A second exception to the employer’s right to force vaccinations on their workers is carved out in Title VII. An employer must accommodate an employee’s sincerely held religious objection to a vaccine unless the accommodation causes “undue hardship” to the employer. Sounds fair enough. The trouble with this rule is that the definition of “undue hardship” is any accommodation that has more than a “de minimis” or “absolutely minimal” cost or burden to an employer. How will courts apply this rule in the example above, where a single employee with a religious accommodation can continue to work only if all employees and customers are provided PPE? As this example suggests, the “de minimis” standard could be very difficult to meet in the workplace.

While the EEOC is trying to develop a set of workable guidelines that accommodates employee’s rights under existing laws like the ADA and Title VII, there are no accommodations available for the employee who objects to vaccination based on personal concerns like racial disparities or lack of research on fertility effects. For most workers who object to vaccination for a host of personal reasons, there will be no option for dissent. “Shoot up and shut up” will be the rule for many.

There are times when public safety and the protection of our economy should take precedence over personal choice. I personally intend to get vaccinated as soon as possible whether my employer wants me to or not. (Carey & Associates, P.C. will leave it to the employee’s discretion about whether to vaccinate or not). It is important however, to consider the power dynamics and the broad implications of the employment at will rule when it invades the province of our bodily integrity and personal conscience. In a world where politicians are willing to substitute facts for politically convenient fantasies, it is easy to imagine these power dynamics leading to much more extensive invasions of personal choice. In the short term at least, “Vaxed” is likely to be the new “Black.”

If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. You can also send an email to info@capclaw.com or call (203) 255-4150.  If you liked this article, please leave us a review HERE.

 

 

 

 

Civil Disobedience and the Workplace: The Economic Consequences of Political Conscience

Civil Disobedience and the Workplace: The Economic Consequences of Political Conscience

Podcast explores civil disobedience in the workplace and freedom of speech by political activists on January 6, 2021 when they stormed the Capital Building and their employer’s reaction – immediate termination of an at-will employee.

Major news outlets reported on January 8, 2021 that a number of those individuals who participated in the siege on the Capitol have been identified by their employers and terminated from their jobs for their participation in the violent assembly. (See, https://www.wsj.com/articles/some-ceos-fire-rioters-call-for-president-trumps-removal-from office-11610070410 ). One employee of a Maryland based marketing company was prominently photographed wearing his employee name badge inside the Capitol during the riot. This employee was promptly terminated from his job “for cause.” This is the result of civil disobedience in the workplace.

Do employers have the right to terminate someone who is engaged in peaceful protest? What about not-so-peaceful protest? What is civil disobedience in the workplace? Why does an employer get to punish an employee for his or her political activity at all? Does the employer’s right to terminate kick in only when there is criminal activity associated with the protest? While many may not agree with the ideology that motivated the insurrection on January 6th, it is important to remember that Gandhi, Martin Luther King Junior and Thoreau also broke laws in the course of their political activism. Regardless of one’s political persuasion, why does an employer get to judge its employee’s political activism and mete out punishment for it?

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

YOUR HOST MARK CAREY

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

EMPLOYEE SURVIVAL GUIDE PODCAST IS LIKE NO OTHERS

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship. Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Civil Disobedience and the Workplace: The Economic Consequences of Political Conscience

Civil Disobedience and The Workplace: The Economic Consequences of Political Conscience

By Chris Avcollie

In 1849, Henry David Thoreau was imprisoned for an act of civil disobedience. Thoreau had broken local laws by refusing to pay a poll tax which he found to be unconscionable. The story goes that when Thoreau’s friend Ralph Waldo Emerson visited Thoreau in jail he asked, “Henry, what are you doing in there?” To which, Thoreau replied, “Waldo, the question is what are you doing out there?”

Even in a free country, there are often profound consequences attached to the exercise of political conscience. On January 6, 2021 hundreds of pro-Trump protestors stormed the Capitol Building in Washington, D.C. in an attempt to stop the congressional certification of the electoral college vote which elected Joe Biden as our next President. While the protestors themselves probably believed that their actions were justified or motivated by conscience, those who occupied the Capitol and participated in the riot that terrorized the nation and caused at least five deaths and many more injuries have been properly branded as criminals and insurrectionists.

But what do their employers think of their actions? And can their employers punish them for their activity?

Major news outlets reported on January 8, 2021 that a number of those individuals who participated in the siege on the Capitol have been identified by their employers and terminated from their jobs for their participation in the violent assembly. (See, https://www.wsj.com/articles/some-ceos-fire-rioters-call-for-president-trumps-removal-from office-11610070410 ). One employee of a Maryland based marketing company was prominently photographed wearing his employee name badge inside the Capitol during the riot. This employee was promptly terminated from his job “for cause.”

While the man wearing his company’s name badge was photographed inside the Capitol during the siege, several other employees were “forced” or at least asked to resign from their positions for their participation in the assembly, although they claimed that they only engaged in peaceful protest outside the building. Its not clear whether those employees would have been fired if they had not resigned.

Do employers have the right to terminate someone who is engaged in peaceful protest? What about not-so-peaceful protest? Why does an employer get to punish an employee for his or her political activity at all? Does the employer’s right to terminate kick in only when there is criminal activity associated with the protest? While many may not agree with the ideology that motivated the insurrection on January 6th, it is important to remember that Gandhi, Martin Luther King Junior and Thoreau also broke laws in the course of their political activism. Regardless of one’s political persuasion, why does an employer get to judge its employee’s political activism and mete out punishment for it?

Recently, the Wall Street Journal reported that employers have wide latitude to limit employee’s speech, both political and otherwise, that might offend other workers or impact the business.(See, https://capclaw.com/wsj-article-is-political-speech-protected-in-the-workplace-heres-what-you-need-to-know-quoting-mark-carey/ ). The general rule is that the First Amendment only prohibits the government from restricting speech not private employers. While government employees have some limited free speech rights outside the workplace (i.e. when the speech is of public concern and not related to the employment), most employers have a great deal of discretion in terminating employees for public activism both in and outside of work. Vaguely worded “employee codes of conduct” and other arbitrary company decrees are used to terminate employees who violate management’s sensibilities. (See, https://capclaw.com/the-employees-field-guide-to-protesting-what-you-need-to-know-before-the-rally/ ). While some states such as Connecticut have passed laws that seek to protect First Amendment rights, if the employer believes that the speech or activity interferes with job performance or the workplace relationships, the speech is not protected.

Where an employee’s political activism involves actual civil disobedience, the law  protects an employer’s right to terminate an employee for criminal conduct. While thirty-six states have enacted “Ban the Box” (BTB) laws which prohibit employers from asking about an applicant’s past criminal convictions on a job application, (some 30% of adult Americans have a criminal background of some kind) there is no law prohibiting an employer from conducting a background check after the interview or hiring process and refusing to employ someone with a criminal record. Bottom line: if an employer does not like what you did, they do not have to employ you.

While many may believe that the right to protest publicly and in defiance of laws one thinks are unjust is a right enshrined in the Constitution and the laws of our country, it is important to remember that that right does not include the right to be employed by a company or boss that disagrees with your views. While Americans may still enjoy the right to protest, we do not enjoy a right to be employed while doing so. As long as the law allows the “employment at will” rule to govern the employment relationship, all employees should be cautioned that public political protest often has a steep economic cost. Before you head out to “stick it to the man,” just remember the man can still “stick it to you” in the end.

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

 

 

 

 

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.

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