By Liz Swedock
COVID-19 is interrupting everyone’s lives these days, worldwide, and for many of us it is negatively impacting our jobs. Even while we are trying to achieve the work-from-home revolution, an unprecedented number of workers are experiencing frightening job stressors, including drastically reduced workload, changes in job responsibilities, dropped job responsibilities, and job loss. While not every negative impact can be fixed, there are a few legal protections that all workers should be aware of.
Is your job being impacted in a way that is unethical, or possibly illegal?
The sad reality is that the global recession is going to quickly motivate employers to start firing people. Businesses are panicked right now about their financial bottom line, and those salaries for all the people who aren’t in the office are looking daunting. While it may be legal for employers to lay people off due to purely financial concerns, all employees should be their own watchdog for any layoffs, terminations, demotions, or changes in responsibilities that appear to be unfairly – or unequally – happening.
What is unfair or unequal? Often the answer is discrimination. These days most people are aware of the protected classes of employees. They include older individuals (over 40), disabled individuals (physical or mental), gender, race, national origin, religion, and others. It is illegal for employers to single out any of these classes of individuals for negative treatment.
It’s often not obvious if an employee is being illegally discriminated against, which is why workers should arm themselves with what to look for. Sometimes illegal mistreatment is blatant, such as bullying and inappropriate remarks. But it can also be done through much more subtle means, like removal of responsibilities, being taken off projects or sidelined, exclusion from important meetings, or old-fashioned favoritism.
We all know what’s coming. As the economy is disrupted, companies are going to be forced to start eliminating employees. So, keep your eyes and ears open and watch out for anything that seems wrong. Did an entire project get cancelled or an entire team laid off? That kind of activity might be perfectly legal. However, does it seem like only the older employees or those with medical conditions are suffering the consequences? Has your multi-gendered and multi-national team suddenly become, well, a lot less diverse? These types of selective actions could be crossing a line into illegal territory.
Are you being denied rights that you are entitled to, particularly medical leave or accommodations?
The headlines are warning us that a huge percentage of the population should expect to catch COVID-19, a/k/a Coronavirus. This means that an even larger number of people can expect to be impacted by the virus, including if family members get sick.
If you or an immediate family member gets sick, you may be entitled to take medical leave while your job is protected – meaning, you cannot be demoted or fired. Federally, the Family and Medical Leave Act (FMLA) guarantees employees up to 12 weeks of leave per year if you’ve been an employee for at least one year and worked a minimum of 1,250 hours over the prior year. FMLA leave is unpaid, which means your employer is not required to pay you while you are on leave, but is required to hold your job for you until you return. Any negative impact on your job, such as by giving your work away or demoting you because you took leave, is illegal.
In Connecticut, this protection is expanded to 16 weeks of leave for any employee who works 1,000 hours during the prior year. In New York, since 2018, employees may be entitled to up to 10 weeks of paid family leave, up to 60% of their average weekly pay. This is one of the strongest protections in the country.
Can you take FMLA leave any time you or a family member gets sick? For a simple illness, such as a cold or the flu, the answer is usually no. However, you are entitled to leave for any “serious health condition,” which is defined as “an illness, injury, impairment, or physical or mental condition” which involves “inpatient care” or “continuing treatment by a health care provider.” Sound confusing? It is. Put quite simply, it’s not a black-and-white rule about when legal protections kick in for any individual medical situation. The bottom line is that if you, or a family member, has a medical problem that requires repeated, or ongoing, medical treatment, you probably qualify for protected leave.
It’s also important to know that individuals can take this medical leave in pieces, or “chunks.” This is called “intermittent leave.” What this means is that if you qualify for leave, but you can work sometimes, you can still be eligible for the protections provided under these laws, most importantly that you cannot be fired or demoted while utilizing your leave. This is extremely important for people who have ongoing medical conditions that require short periods of treatment.
Lastly, every employee with a medical issue should understand how the law defines “disability” and what an “accommodation” is. Legally speaking, disabilities can be temporary! You can be legally disabled if you have a medical condition that “substantially limits one or more major life activities,” and “major life activities” includes working. Of course, this means that many people who qualify for FMLA medical leave will also qualify under the law as disabled.
So, what protections do you have if you are legally disabled? A complete answer here would require far more space and time than I’m tackling in this article. However, the short answer is that your employer is required to cooperate with you so that you can do your job. In legal terms, this is called an “accommodation.” If you can do your job with a reasonable accommodation, then it is illegal for your employer to fire you, demote you, or do anything else to hurt your employment.
Just like with medical leave, it’s different for each person. However, an example how these legal systems work might be something like this – Person A contracts Coronavirus. Unfortunately, person A has the aggressive symptoms of the virus and needs to be hospitalized for a week, and then required to quarantine at home for a few more weeks. While they are hospitalized, Person A would be entitled to FMLA (and state) leave while they are in the hospital, and, most likely, while they have to self-quarantine at home. At the same time, Person A would most likely also qualified as disabled. This means Person A would have the following protections: the employer has to hold Person A’s job while person A is out, and, while Person A is recovering, the employer is required to offer Person A accommodations so that Person A can do Person A’s job. In other words, Person A cannot be fired, and must be given options to enable Person A to perform the job.
The takeaway here is to know your rights and stand up for yourself! Don’t expect your HR department to know the law or give you good advice. Even the most well intentioned employers or human resources people often don’t know how this process works, or what they are legally required to provide to you. You need to speak to an employment attorney to get the right advice, especially now during this Coronavirus pandemic.
If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at email@example.com.
By Mark Carey
What do you mean I can be fired for any reason or no reason at all? Who made up this rule? Why do I have to follow the employment at-will doctrine? Well, you don’t and there are several reasons companies and employees should shift to a modified approach that satisfies the expectations of both the employer and the employee.
I can honestly say that over the past twenty-three years handling employment law cases for both executives and employees, my clients are really confused and bewildered by the employment at-will rule and the significant financial impact it creates when employers decide to let them go. Many clients always state they understand the basic rule that they can be fired at any time and they can leave at any time. But beyond that they know absolutely nothing about why the rule came into being or more importantly how they can negotiate around it. When a termination occurs the adverse impact is clear, the uncertainty of the break in career trajectory and financial resources.
At the executive level, I routinely negotiate employment contracts that provide for termination “for cause” and “termination for good reason” by the executive. This is standard in the industry at the executive level. However, I do confront the hybrid cases, where the employer “shoves” in the provision identified as “termination for any reason”. Well, that sounds like the employment at-will rule doesn’t it, because it is. Enter the LeBron James Rule. (I made up this rule). When negotiating employment contracts, employees needs to identify their leverage factor; it is what makes the employer throw money or equity in order to induce the hire. LeBron James can write his own ticket to work wherever he finds the highest bidder, and he can demand the termination for cause and good reason provision with a severance payout. Find your leverage and do not be shy about asserting it.
Well you might say not everyone is as fortunate as LeBron. I disagree and this is what has bugged me for many years. We all too often knee jerk react and accept this stupid and ill-conceived rule that your employment is as good as the last minute or hour you just worked. Some say, just be grateful you have your job etc. Give me a break! There is a new way to handle this.
I propose getting rid of the employment at-will rule and replacing it with the modified form we see in executive employment contracts. Specifically, employees can be fired for cause or terminated by the employee for good reason. If the good reason event occurs, then the employer pays a severance amount to take care of some of the financial issues related to your transition to new employment. If you land a job, your severance stops, as this is fair in an economic theory way of thinking. “Termination for cause” means you violated the law and company policies. “Termination for good reason” means the employer materially changed your title, salary, reporting structure, location of your office etc.
Now here are several positive effects of eliminating the employment at-will rule based on my research into this issue.
- Management vs. Everybody: Eliminating the employment at-will rule will get rid of the large divide between management and employees. Literally, this is the trust divide. If you scare employees into believing they can be fired any time, management is not creating a loyal and trusting environment that spurs innovation and creativity which will push the company forward in profound economic ways. Employers want employees to be focused on their work, but this rule is utterly distracting and frankly non-motivating. The rule erodes any semblance of entrepreneurial creativity among the team. Employers need to seriously rethink this one.
- HR vs. Everybody: Honestly, did you really believe the Human Resources Department was there to help you. I make it my mission to point this out to every client I have. They (HR) have a duty of loyalty to the employer and have absolutely no interest in doing what’s right for you. By eliminating the employment at-will rule, employees will closer align themselves with HR and HR will do a better job of “caring” for the very employees that make up the company; without employees you have no company. Where did all those employers go astray?
- Eliminating Fiefdoms: Does your boss have their favorites? Do they hire from the last place of employment? Are there any “brown-nosers” in the team who believe the only way to the top is to “work it” what ever that means to you. It’s childish and it’s irritating to say the least. You know what I am referring to. Why do other employees do this and why do supervisors encourage it? Eliminating the employment at-will rule will breed meritocracy, but not the type Bridgewater Associates thinks they are creating. Employees will begin to feel compassion for their coworkers and work more closely as a team or family, instead of putting a knife in their back at work. Employees will work with management for the company common good; all will prosper together not just the few.
- Reducing Discrimination: If you create trust, honesty, transparency and vulnerability, then you create lasting relationships where employees want to stay and work. Employment discrimination bias arises from many reasons, but my theory is that if you get rid of the employment at-will rule you will gut the walls that employees build in their work environments with the sole goal of getting ahead. Think about it. If you say something or do something negative about another person to make yourself look better in the eyes of your employer, you will do it to get ahead. That negative comment or idea could be motivated based on gender, age, race, religion or manipulation like seeking sexual favors in exchange for career advancement. We need a sea change to course correct our current direction. The status quo just doesn’t work anymore; although it may work for employment attorneys like myself as we are very busy policing this garbage. If you see something, say something. Have the courage to speak out, you will be protected.
Finally, here is my shout out to older employees. If you are an older employee “we honor your wisdom and experience, you are worth every penny we pay you”. Employees who are in their fifties and even sixties are well paid because they have many years of experience to offer, more than someone twenty years their younger. I say we should keep them on board and ignore the bottom-line cost issues and focus on their economic impact these older wiser employees can create for the company. Management must stop terminating the baby boomers because the economic argument that fosters this decision making is not financially sound and never was to begin with. It’s like a bad drug addiction. Remember, wisdom still is a virtue for a reason.
When will this change occur? When management realizes they can make greater revenue multiples by providing better job security. They will have to stop listening to management side defense employment counsel who banter incessantly to maintain the employment at-will rule for every client. The world isn’t flat, or at least until someone very smart said it wasn’t. Same goes here, management should adopt this new rule and maybe just maybe they will convince themselves that #employees matter.
If you want more information about employment law issues, please feel free to contact Mark Carey, Carey & Associates, P.C., at firstname.lastname@example.org or call the office at 203-984-5536.
The next recession is now here, depending on the of source of information or this source. The Federal Reserve is reversing interest rate hikes to soften the economic expansion and the unemployment rate is at a 50 year low. We are well past the cyclical ten year timeframe as recessions go. What is your strategy to preserve your job in the face of this new recession? What is your strategy if and when you are laid off?
You are probably thinking, “what strategy?” You get up, go to work and hope you can continue to remain an at-will employees until the end of the new pay period, under the presumption you have no control over your job. Better yet, you planned on retiring from your company in the distant future. On the other end of the spectrum, there are employees who think their longevity with their employers will insulate them from any headcount reductions during recessions. Both viewpoints are wrong and employees can control their employment outcomes during a recession.
5 Strategies To Save Your Job During a Recession
The following strategies are followed by our clients when they see the “writing on the wall” by their managers. Although some clients never see the messaging from their employer, we do. Depending on how soon you pick up all the clues determines which strategy to pursue. Hint, the sooner you speak with an employment attorney the better. If we are engaged earlier in the process, we can evaluate and develop an aggressive strategy that will force the employer to maintain your employment and/or pay a larger severance package with more favorable terms.
Plan Ahead and Gather Intelligence From Managers and Coworkers
Are you proactive about your employment or do you follow the wait and see approach? Becoming proactive with your employer means obtaining objective feedback from your managers and coworkers. No, I am not referring to the annual performance review or 360 reviews. A proactive employee will develop an initial assessment of his or her own performance by quietly engaging in one on one discussions with managers and coworkers about their working relationship and performance. You will need to keep detailed notes of these conversations in order to track the information over time and over various contexts. Forget about the formalities of the annual review or the vague performance metrics employers follows. I am talking about all the intel you can gather by having a straight up ever day conversation with your manager and coworkers. Examine the body cues such as facial expressions, tone of voice and the context of conversations in relation to those cues. Observe more instead of being reactionary or defensive. The better you are at this task, the more intelligence you will pick up, as your manager or coworker will not know you are gathering information. Once you collected this information, you will need to strategize how to position yourself as a thought leader, influencer, leader and over-all get the job done kind of employee. Lead by example and always remain the consummate professional during all interactions with your employer and coworkers.
Ironically, your employer is collecting similar information about you and your coworkers. In a recent article from SHRM, “A good way to begin is by collecting information about the organization’s workforce that can be used for long-range planning. ‘[HR] should be looking at the data, knowing who is where in their careers, who is where in their teams’… ‘Are people ready to move into the next position? Are they happy where they are?’ Review job descriptions and tasks and determine whether responsibility for those tasks can be more evenly distributed throughout the team. By understanding the big picture, HR leaders can advise business leaders on how to ready the workforce for future changes without resorting to morale-damaging layoffs.”
File Internal Complaints of Discrimination to Maintain Your Job
Once we determine you are may be the victim of employment discrimination or have other employment claims, we will advise you about bringing these claims to your employers attention without escalating to an external governmental agency. The main idea here is to engage in a protective activity to force your employer to “back the heck off” and cause them to reevaluate your potential termination. Our longest standing record to keep an employee employed using this method is two years (my opposing counsel in that case was not happy, but I was not there to please him).
If necessary, you may need to file your discrimination claims with governmental agencies in order to preserve your legal rights. The same antiretaliation laws apply and employers will back off for a limited period of time in order to avoid you asserting an easy to prove retaliation claim.
Dealing With Performance Improvement Plans (PIPS)
Combatting those inaccurate, one-sided and self-serving performance improvement plans. We wrote about this issue in Are Performance Improvement Plans (PIPS) Illegal? A PIP is a clear indicator you will be terminated and you will need to engage an employment attorney ASAP!
Severance Negotiation Based Years of Service
This strategy is relatively straight forward. If you are slated for termination in a layoff, your employer may have a severance plan governed by ERISA, a federal statute that governs these plans. Essentially, an ERISA severance plan spells out the amount you will be paid a salary continuation based on the number of years you worked for the company. There is one catch, you will need to sign a waiver and release of all your legal claims against the employer in order to receive the payout. You will also need an employment attorney to review the settlement agreement to insert favorable terms or get rid of unfriendly terms like noncompetition agreements. Make sure when speaking with an employment attorney that he or she is an ERISA attorney, as there is a difference. Our ERISA attorneys know how the statute works and will even point out in certain cases that you can create an ERISA plan based on one employee, “you”, even though the employer never created an ERISA plan. Engage us to learn more.
Getting Rid of That Noncompete Agreement on the Way Out
Great, you will be getting terminated but your employer stuck you with a noncompete, either at the start of your job or as part of the severance agreement. What do you do? The noncompete does not benefit you at all, only your employer. Now you have to navigate away from jobs you would normally apply for given your years in the same industry. Is this fair? No. Someone has to pay the utilities, mortgage and household expenses, but do not count on your employer to do you a favor. I have long taken a stand against these selfish one sided agreements and forced employers to rescind them or obtain an order from the court to void them. We can help you remove your noncompete agreement with your employer and make you a free agent in the job market. We will challenge the validity of the agreement with the employer directly and if the employer does not back down, we will take them to court through what is called a declaratory judgment action. Essentially, we ask courts to void the agreement due to lack of intention by the employee to enter into the agreement, aka a lack of consideration.
If you need more help planning for your future employment issues, please contact an employment attorney in our office. Employment law is all we do.
Many women are passed over for promotions and raises when they become pregnant. Part 2 of this series examines the subtle sidelining of pregnant women and mothers in corporate America. Guests: Natalie Kitroeff, who covers the economy for The New York Times, and Erin Murphy, who alleges that she was denied opportunities by her employer, Glencore, once she became a mother. For more information on today’s episode.
The issue of pregnancy discrimination at work will not go away…unless you raise your voice and stop remaining silent. Erin Murphy chose to speak out. We should all speak out and end this devastating form of discrimination. We all came from someone. Would you treat your mother like Erin Murphy was treated by Glencore.
To read Erin Murphy’s June 18, 2018 federal complaint against her current employer Glencore click here Murphy Complaint As Filed 6.18.18
If you need help with your employer because you are experiencing pregnancy discrimination, contact us.
On Sunday June 17, 2018 the New York Times posted an article, There’s An Epidemic of Discrimination Against Pregnant Women at Work involving a case attorneys Jill Saluck and Mark Carey are working on.
The article reported “Throughout the American workplace, pregnancy discrimination remains widespread. It can start as soon as a woman is showing, and it often lasts through her early years as a mother… Many of the country’s largest and most prestigious companies still systematically sideline pregnant women. They pass them over for promotions and raises. They fire them when they complain…In corporate office towers, the discrimination tends to be more subtle. Pregnant women and mothers are often perceived as less committed, steered away from prestigious assignments, excluded from client meetings and slighted at bonus season.”
The NY Times article explored Erin Murphy’s willful pregnancy and sex discrimination case against her current employer Glencore:
“As a senior woman at Glencore, the world’s largest commodity trading company, Erin Murphy is a rarity. She earns a six-figure salary plus a bonus coordinating the movement of the oil that Glencore buys and sells. Most of the traders whom she works with are men.
The few women at the company have endured a steady stream of sexist comments, according to Ms. Murphy. Her account of Glencore’s culture was verified by two employees, one of whom recently left the company. They requested anonymity because they feared retaliation.
On the company’s trading floor, men bantered about groping the Queen of England’s genitals. As Glencore was preparing to relocate from Connecticut to New York last February, the traders — including Ms. Murphy’s boss, Guy Freshwater — openly discussed how much “hot ass” there would be at the gym near the new office.
In 2013, a year after Ms. Murphy arrived, Mr. Freshwater described her in a performance review as “one of the hardest working” colleagues. In a performance review the next year, he called her a “strong leader” who is “diligent, conscientious and determined.”
But when Ms. Murphy told Mr. Freshwater she was pregnant with her first child, he told her it would “definitely plateau” her career, she said in the affidavit. In 2016, she got pregnant with her second child. One afternoon, Mr. Freshwater announced to the trading floor that the most-read article on the BBC’s website was about pregnancy altering women’s brains. Ms. Murphy, clearly showing, was the only pregnant woman there. “It was like they assumed my brain had totally changed overnight,” Ms. Murphy, 41, said in an interview. “I was seen as having no more potential.”
When she was eight months pregnant, she discussed potential future career moves with Mr. Freshwater. According to her, Mr. Freshwater responded, “You’re old and having babies so there’s nowhere for you to go.” A Glencore spokesman declined to comment on Mr. Freshwater’s behalf. After she came back from four months of maternity leave, she organized her life so that having children wouldn’t interfere with her career. She arranged for child care starting at 7 a.m. so she would never be late. But as her co-workers were promoted, her bosses passed her over and her bonuses barely rose, Ms. Murphy said.
When there was an opening to be the head of her department, Ms. Murphy said she never got a chance to apply. The job instead went to a less experienced man. Ms. Murphy said an executive involved in the selection process had previously asked repeatedly whether she had adequate child care.
Ms. Murphy said that after she missed out on another job, the same Glencore executive told her it was because of the timing of her maternity leave. Ms. Murphy has retained a lawyer and is planning to file a lawsuit against Glencore.”
In response to the NY Times article Attorney Jill Saluck commented, “Sometimes a pregnant employee will be subject to blatantly discriminatory remarks by her employer, indicating a clear bias against pregnant workers. But more often, pregnancy discrimination is much more insidious. Often after pregnancy, a woman’s career will suddenly and inexplicably plateau. Her non-pregnant coworkers will receive raises and promotions, but despite her consistent hard work, she will not be afforded the same opportunities. If this is happening to you at work, chances are that you’re not the only employee that has been subject to this type of discriminatory treatment. Pregnancy discrimination is not just unfair, its illegal, and employers must be called out for derailing the careers of pregnant employees.”
In the case reported in the NY Times article, Erin Murphy v. Glencore, Ms. Murphy filed her legal action in the District of Connecticut on June 18, 2018 (Erin Murphy v. Glencore, Ltd, 3:18-CV-1027 D.Conn). The case will proceed to a jury trial and we expect the jury to send a strong message to the company that pregnancy discrimination will not be tolerated and punished severely.
If you need assistance with your pregnancy discrimination issues at work, please do not hesitate to contact us.
We all build relationships based on trust. Some relationships require more trust than others. For example, marriage, medical professionals and hiring lawyers. We all take the time to explore whether these relationships are the right fit for us. We even memorialize these important, sometimes life-changing, relationships with contractual agreements. But when it comes to the relationship with your employer, you might as well start hand feeding piranhas.
Meet Your Antagonist: Your Employer
An antagonist is someone who actively opposes or is hostile to another; an adversary. Does this describe your current or former employer? In my role as the employment attorney, I do not hear very many people say they trust their employers. In fact, the opposite is true. According to a Harvard Business Review article, “In both your personal life and your work life, you’re bound to encounter people who take advantage of you, and these painful experiences can make you cynical.”
You have several reasons to be cynical about your employment relationship. Your employer is not interested in whether you are happy at work, fulfilled in your career aspirations, concerned about your personal responsibilities at work or anything remotely realistic to a nurturing relationship. In fact many employees have a low level of trust in their employers. The 2016 Trust Barometer report from Edelman revealed that a third of employees do not trust their employers. Employees reported a lack of engagement, short term profit seeking, lack of belief in the company mission, poor product quality, unethical behavior, bad corporate reputation, invisible CEOs and lack of corporate communication to employees.
At-will Employment is Bad for You
When you are employed at-will, as most of you are, you might as well be on a first date for the next several years. You would think that after knowing your employer for three or more years, you’d just settle down and get engaged to be married. However this is not so. Unless you have a coveted and rare employment contract with a “for cause” termination provision, your employer can bounce you with little or no notice. Many of you have felt this scorned feeling from prior jobs. So where is the trust in the at-will workplace if you can never predict your future with a reasonable certainty on a day-to-day basis? There is none. Ouch!
Somehow, we have just grown accustomed to this dysfunctional at-will relationship and let employers manipulate us with unenforced corporate codes of conduct, lofty corporate double speak and fear.
Management by Fear Does Not Create Trust
The most common corporate management practice today is to maintain a consistent level of passive-aggressive practices which propagate employee fear and insecurity. From my vantage point, I see a persistent pattern by employers accusing employees of subjective performance issues while their objective performance criteria are “meets” or “exceeds expectation”. Employers use performance management techniques such as performance improvement plans and coaching to force out undesirable employees. No one ever remains long after being managed this way. I also see cases of overt ruthless conduct, where a supervisor discriminates against pregnant employees as having “baby brain.” Saying things like, “I don’t want another woman working on the desk” or “If you’re being honest with yourself, do you really think you could do this job?” And the comments get even worse. “I don’t want to hear any complaining from you, you and [spouse] did this to yourselves.” Only a supervisor with intentions to rid themselves of pregnant employees will make discriminatory statements like this to push the employee to quit out of fear of reprisal.
Discrimination Does Not Create Trust
The absence of trust becomes more noticeable when employees experience discrimination in the workplace or need to take time off due to health issues affecting themselves or a family member. For these employees, their career with their particular employer has taken an abrupt turn for the worse.
For example, you become pregnant while employed and take a maternity/paternity leave under company policy and FMLA. When you return, your job duties have changed and so has the person you reported to. Pregnancy discrimination is one of the most perverse examples of a lack of trust an employee can encounter. The employer has a maternity leave policy and you take a leave under said policy with no resistance. However, upon returning to work you face pregnancy discrimination when your employment is terminated. The employer will jump at an opportunity to replace you rather than reinstate you. We would all agree, this is not an ideal trust building experience at any company, yet pregnancy discrimination continues to persist.
If you complain to your employer about issues of discrimination or whistle blowing, you will immediately cause your employer not to trust you. You have a legal and moral right to complain about these issues, but do not expect reciprocation from your employer. You just threw yourself off or under the company bus. This equals your spouse cheating on you and then pointing the finger at you as the cause for why they had the affair. Your employer’s Human Resources Department will not help you when you are down and have complaints about coworkers or your supervisor. I am sure the folks in HR are nice people, but their “job” is to protect the employer, not you! Don’t make the mistake in confiding with human resource personnel, unless absolutely necessary to build a case for retaliation.
Arbitration and Noncompete Agreements Don’t Create Trust
Arbitration and non-competition agreements and employer trust are like oil and water with a sprinkling of gasoline for added flare. The U.S. Supreme Court’s further endorsement of employer arbitration agreements cemented in stone the future of employee litigation and the permanent role of arbitration in your career. Listen, don’t be fooled, arbitration agreements are bad for you, your rights, your claims, the economy and are only good for employers. Noncompetition agreements are even a better example of a lack of employer trust. When your employer is finished with you and terminates your employment, they sink a big fishing hook in you and reel you back in at their whim each time you land a new position. The employer cries foul, complaining you are single handedly destroying the company via working for the competitor. These two forms of employment agreements represent the worst in every company that mandates them. An arbitration agreement is a tool to conceal bad corporate acts from employment attorneys like myself and non-competition agreements are used to threaten competitive employers in the market place.
Rise Up and Demand More Trust
It is time to call an end to bad corporate practices- the deceit, the greed, the lies and the double speak. Employees should demand more from their employers. Rise up and unite together and tell your employer you would trust them only if they demonstrated trust to you first. Trust begets trust.
Have questions or think you’ve been discriminated against at work? Let our employment law attorney’s help you get justice. Get in touch today!
Central to any present-day discussion of pregnancy discrimination is the issue of lactation and nursing moms in the workplace. The practice of breastfeeding has expanded in recent years and various legal issues have accompanied this development.
The law is designed to protect moms who breastfeed in almost all 50 states, Connecticut included.
The Patient Protection and Affordable Care Act (P.L. 111-148, known as the “Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide, “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”
Employers must provide as many breaks as are needed by the employee. Employers are also required to provide, “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”
Therefore, the Federal statute ensures that employers provide nursing employees with a time and a space to “express milk” if there is an employee with this need and the employer is made aware of the need. Moreover, all employers covered by the FLSA must comply with the break time and private place provision for nursing mothers. Small businesses with less than 50 employees, who are not covered by the FLSA may be exempt from the FLSA provisions if they can demonstrate that compliance with the provision would impose an undue hardship.
How does all of this apply to employers and nursing employees in Connecticut?
The FLSA requirements for nursing mothers to express breast milk does not preempt state laws. And in fact, state law in Connecticut actually provides greater protections to nursing employees. The Connecticut Breastfeeding Coalition joined with the Departments of Public Health and Labor, and the Commission on Human Rights and Opportunities to create the, “Guide to Connecticut Breastfeeding Nondiscrimination and Workplace Accommodation Laws.” A closer look at the guide and the law in CT will show CT to be a state that gives great deference to, and places high public importance on, the protection of breastfeeding moms in the workplace.
Michele Griswold, chairperson of the Connecticut Breastfeeding Coalition said, “Most people want mothers and infants to be healthy, but not all understand the connection between breastfeeding and improved health outcomes. Taking steps to remove barriers for breastfeeding mothers and their children is a win-win situation for everyone. Increased breastfeeding rates ultimately mean healthier communities.”
Specifically, in the state of Connecticut, ALL businesses, regardless of the size, must provide breastfeeding protection in the workplace. Conn. Gen. Stat. Section 31-40 (along with the Patient Protection and Affordable Care Act, amending Section 7 of the Fair Labor Standards Act) requires employers to provide a reasonable amount of time each day to an employee who needs to breastfeed or express breast milk for her infant child and to provide accommodations where an employee can do so in private. And these CT laws apply to all businesses in CT regardless of their size or number of employees.
Sec. 31-40 entitled CT Breastfeeding in the Workplace reads as follows:
(a) Any employee may, at her discretion, express breast milk or breastfeed on site at her workplace during her meal or break period. CT case law has expanded this provision to mean, when possible this milk expressing activity should occur on your meal or other work break, but if it occurs at another time the employer is not obligated to pay you during the pumping break.
(b) An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.
(c) An employer shall not discriminate against, discipline or take any adverse employment action against any employee because such employee has elected to exercise her rights under subsection (a) of this section.
(d) As used in this section, “employer” means a person engaged in business who has one or more employees, including the state and any political subdivision of the state; “employee” means any person engaged in service to an employer in the business of the employer; “reasonable efforts” means any effort that would not impose an undue hardship on the operation of the employer’s business; and “undue hardship” means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.
This requirement in CT is a much harder standard to meet than the Federal statute as it defines undue hardship as posing a, “significant difficulty” for the employer.
It is also important to note that whereas the Federal statute defines the protected activity as “expressing milk” in the workplace, the State of CT law is unique in that it protects and allows mothers to actually breastfeed their babies in the workplace, and/or express milk/pump.
If you are a mother returning to work after pregnancy and believe that your employer is failing to provide you with the breastfeeding protection you are owed under Federal and State law, please feel free to reach out to the employment lawyers at Carey & Associates, P.C. for help in this area, or for help with any other matters involving pregnancy discrimination in the workplace.
Remember: A CT business is not permitted to discriminate against, discipline or take any adverse employment action because you’ve elected to exercise your right to breastfeed or express milk at work.
Reports have shown that pregnant women and new mothers are suffering increasing levels of unfair treatment at work, including cuts to their work hours, zero-hour contracts or even undergoing forced removal from their jobs.
Laws Protecting Pregnant Employees
The Pregnancy Discrimination Act of 1978 ensures that pregnant employees or “women affected by childbirth,” are treated the same as childless workers. In addition to federal laws protecting pregnant employees from discrimination and ensuring that they receive family leave benefits, many states and localities also have passed laws giving additional protections and rights to pregnant employees.
Most states have passed laws requiring employers to provide reasonable accommodations to pregnant workers. The Connecticut Fair Employment Practices Act was recently amended, making it unlawful for an employer to refuse reasonable accommodations for an employee due to her pregnancy or to limit, segregate, or classify her in a way that would deprive her of employment opportunities due to pregnancy. The law also expands the definition of “pregnancy” to include related post-pregnancy conditions, such as lactation (PA 17-118).
What is Pregnancy Discrimination
The term, “pregnancy discrimination” is deceptive. Courts are only just beginning to define the parameters of what can be considered “on the basis of pregnancy.” Although a pregnancy itself is limited in time to a discrete period, the discrimination faced by a pregnant woman often continues long after the birth of her baby.
Federal law and the antidiscrimination laws of most states consider pregnancy and pregnancy-related conditions, such as lactation, to be protected. But the definition becomes more blurred, for example, in the context of a mother returning to work from maternity leave, only to find out that she has been demoted or placed in a new position.
Sometimes an employer’s discriminatory action won’t take place for months, or even years, following an employee’s pregnancy. Years after her pregnancy, a female employee will notice that she is repeatedly passed over for promotions. Despite her hard work and positive performance, her male and childless coworkers are given opportunities that she is not.
This phenomenon has been dubbed, the “motherhood penalty,” and is extremely common in today’s workplace. According to recent studies, about three quarters of working mothers say they have experienced discrimination in the workplace.
Research shows that mothers are significantly less likely than either childless women, or fathers with identical qualifications, to get interviews. In addition, regardless of whether women work less after having children, employers pay them significantly less over time, assuming they will be less committed. When mothers do cut back their work hours, their pay is disproportionately reduced.
Consider two specific examples of discrimination on the basis of motherhood responsibilities;
New Supervisor Syndrome – A working mother performs well and has no significant problems at work until her supervisor changes. The new supervisor cancels her flexible work arrangement, changes her shifts, or imposes new productivity requirements. On occasion, the new supervisors will even make comments indicating that these actions have been taken specifically to push mothers out. In other instances, a working mother may be targeted for termination under the biased belief that she is not as committed to her job or as productive as other employees who are not female and do not have childcare responsibilities.
Second Child Bias – Some mothers have reported experiencing little discrimination until they become pregnant with their second child. After informing her employer of her second pregnancy, a working mother is suddenly faced with questions about whether she intends to return to work after maternity leave and how she can continue working with two children. Some supervisors openly counsel women who are pregnant with their second child to stay at home, deny promotions or other opportunities, treat them rudely or ignore them, or make the work vs. home decision for them by terminating them. The assumption behind these actions appears to be that a mother can handle one child and work, but two is too much. www.worklifelaw.org/pubs/FRDupdate2016.pdf
Defining Motherhood Discrimination
Not neatly categorized as pregnancy or gender discrimination, motherhood discrimination occurs when an employee suffers an adverse employment action based on unexamined biases about how female workers with childcare responsibilities will or should act, without regard to her actual performance or preferences.
Discrimination based motherhood often occurs in the context of failure to hire or to promote, demotion, transfer to dead-end jobs, removal of sales territory or responsibility, increase or strict enforcement of goals for mothers but not others, discipline for actions that do not result in discipline for non-mothers, humiliation or harassment, selection for layoff despite seniority and strong performance and termination for reasons that are not accurate or legitimate.
No federal or Connecticut statute expressly prohibits employment discrimination or retaliation based on motherhood responsibilities. In many situations, a court will rely on laws regarding pregnancy discrimination in analyzing a claim more aptly categorized as, “motherhood responsibilities discrimination.” A working mother may prevail by showing, for example, that because of her pregnancy, she was treated differently from employees who had not been pregnant. Sometimes, the difference in treatment occurs after she returns from maternity leave, based on her employer’s assumption that because her childcare responsibilities will impact her work.
Gender discrimination laws have also been used in analyzing claims of motherhood discrimination. Title VII does not prohibit discrimination on the basis of family responsibilities alone, but rather “gender plus” an additional status, in this case, childcare giver.
“Sex plus” or “gender plus” discrimination, involves a policy or practice by which an employer classifies employees on the basis of sex plus another characteristic. It is actionable under Title VII, state law, and the Equal Protection Clause, which forbids sex discrimination regardless of how it is labeled, as long as there is evidence of purposefully sex-discriminatory acts. Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004).
The “sex plus” framework was used to analyze a female employee’s claim that her employer failed to promote her because of a sex-based stereotype that women who are mothers neglect their jobs in favor of their presumed child care responsibilities. Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009)
Such cases rest on the presumption that, “unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.” Id at 44–45.
In accordance with Title VII, women have, “the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.” Gingras v. Milwaukee County, 127 F. Supp. 3d 964, 975 (E.D. Wis. 2015).
If you feel that as a working mother, you have been the victim of discrimination by your employer, an employment attorney can help you determine what recourse may be available.
Get in touch today!
Carey & Associates, P.C., employment attorneys, can be reached at (203) 255-4150.
Ugh, you got fired by a computer! Artificial Intelligence has arrived in the workplace at breakneck speed. Decisions about your performance and termination are being made by artificially intelligent machine learning computers. I enjoy sci-fi but the news of computers making decisions about performance and terminations has serious legal implications you should be concerned about.
Artificial Intelligence in Use Today
Companies such as Google and Bridgewater Associates have built powerful computers that render decisions about performance and termination. Currently, AI computers operated by Google and Facebook have been found to discriminate based on race or gender. See NYTimes Article July 9, 2015. Companies in the recruitment field have begun using AI in recruiting. For example, the new start up company Pymetrics built an AI machine to remove bias in the recruiting process.
A Very Disturbing Future For Employees in Employment Discrimination Cases
Today, employment discrimination cases are determined by direct or circumstantial proof of intentional discrimination against a variety of protected classifications of employees, i.e. sex, age, disability, race, sexual orientation etc. Employment Attorneys, courts and juries routinely examine the human interactions underlying factual evidence to determine if an employee was terminated or adversely treated because of an unlawful bias or intent to discriminate held by a supervisor, a.k.a. a decision maker. What happens when you replace the “human” decision maker with an Artificially Intelligent computer? Answer, chaos!
I predict that employers will shift the decision making to a computer and eliminate the decision making from their managers and human resource personnel. This AI HR Bot will conduct internal investigations, interview employees and witnesses and render a decision to terminate. All these functions will comply with current state and federal laws required of all employers. Most importantly, the AI HR Bot will make the “final” decision to terminate the employee, leaving employees and their attorneys, helpless to prove some human being held a discriminatory bias against them. You could expect this future to arrive in one to three years.
What can you do to prepare for the future when computers terminate you? Computers function on data, so employees should create lots of positive favorable data inputs for the AI computer to examine. For example, you should use company email to document abuse and make complaints to your manager. You should also use emails to write rebuttals to factually baseless performance reviews that are done on-line by your manager. Save all of your supporting data on your own home computer. Finally, you should hire an employment attorney to guide you through the process to develop a case to support your lawsuit or severance package.
If you have employment law questions or need help with specific workplace issues, contact Carey & Associates, P.C. Our employment lawyers can consult with you regarding your issue and offer guidance on the next steps.
Men at work do not understand pregnant coworkers and often are too quick to throw them off the bus. In a NYTimes article on December 20, 2016, Pregnancy Changes the Brain in Ways That May Help Mothering, the following lead paragraph appeared, “Pregnancy changes a woman’s brain, altering the size and structure of areas involved in perceiving the feelings and perspectives of others, according to a first-of-its-kind study published on Monday.
In essence, the study has shown that women who become pregnant appear to be “less perceptive” of the thoughts and feelings of others. The author of the study stated the changes in the brain reflect the woman’s brain’s adaptation to permit “a mother’s ability to recognize the needs of her infant, to recognize social threats or to promote mother-infant bonding.” These findings account for the problems pregnant women experience at work at the hands of their male handlers and the near constant rate of pregnancy discrimination claims filed each year.
The bottom line as I see this issue playing out at work is simple. Male employees should respect that a pregnant coworker is magically building a human being inside. We as men should anticipate that our pregnant coworkers may require more of our time, attention, empathy and patience. What does not work is a lack of empathy, disparate treatment, isolationism and crass male bullshit behavior. If you’re a man dumb enough to cross this line at work, and believe me I have dealt with many of them, it is a 100% certainty you will violate your company’s code of conduct and state and federal law. Worse yet, you will contend with me. You can bet I will make sure you lose your job, because that’s the fair and just punishment for your stupidity. Gentlemen, what if you were a woman, would you want some a-hole doing this to you while you were pregnant at work? I didn’t think so and you can call me to discuss this further if you didn’t get the point of the study and this article. I would be delighted to agitate your cranium.