by Mark P. Carey | Feb 5, 2021 | Chris Avcollie, Coronavirus, Covid-19, Disability Discrimination, Employment At-Will, Employment Law Blog, mandatory vaccination, Newsletter, Religious Discrimination
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.
by Mark P. Carey | Dec 23, 2020 | Mark Carey, Podcast, Religious Discrimination
by Chris Avcollie | Dec 14, 2020 | Chris Avcollie, Discrimination, Employment Law Blog, Newsletter, Religious Discrimination
When it comes to freedom of religious expression in the commercial context, the corporation you work for may have more rights than you do. How is this possible? Well, as you may know, there is a peculiar legal doctrine that regards corporate organizations as “persons.” Although we all know corporations are not exactly “people,” the law treats them as if they were. This is what lawyers call a “legal fiction.” We know it’s not literally true but the law pretends it’s true to make things work. This particular legal fiction is the source of many unjust and inequitable laws. What is worse is that it is so deeply ingrained in our jurisprudence that people no longer question it. They should definitely start.
As it applies to the topic of protections for religious expression, our lawmakers and the United States Supreme Court have begun to take this legal fiction a bit too far. In the landmark case Burwell v. Hobby Lobby, 573 U.S. 682 (2014), the Supreme Court ruled that closely held for-profit corporations could be exempt from laws to which its owners object on religious grounds if there is a less restrictive means of furthering the law’s objective. Id. at 730-31. This ruling turns on an absurdly broad interpretation of a federal law called the Religious Freedom Restoration Act (RFRA). In Hobby Lobby, the Court recognized for the first time that a corporation could hold religious “beliefs.” While the decision does not explicitly state that corporations are protected by the free-exercise of religion clause of the First Amendment of the Constitution, we can someday expect to see that innovation. After all, the other “people” in the country have that right. It’s only fair. Corporations are people too, right?
The Court appears to base its reasoning in Hobby Lobby in part on the idea that by ascribing personal religious freedoms to corporations, the law is protecting the religious freedoms of the corporation’s owners. Id. at 706-07. But what of the rights and beliefs of the workers who make a corporation possible but whom are not privileged to own the company? Are their religious views considered when the company declares the tenets of its deeply held faith? No. Not at all. The owners are presumably the only entities within the corporation that matter, even where the corporation employs thousands of people. What if most of the employees who actually comprise the corporate entity hold entirely different religious beliefs than the owners? Why is a company Christian if its workers are mostly Hindu or vice versa? Can a corporation undergo a religious conversion? Apparently the religious beliefs of a corporation are determined solely by the individual or individuals holding a controlling interest. Surprise plot twist: Court creates more privileges for the wealthy.
This doctrine begs the question: If the owners of the corporation already have all of the individual religious liberties that all other individuals have, why do they get to carry their beliefs into the marketplace and exercise them as a corporate entity as well? The owners of closely held corporations now have an extra set of religious liberties not available to those who do not own corporations. What is the source of this extra set of religious prerogatives?
Hobby Lobby is not a lone anomaly. Apparently bakeries also may have sincerely held religious beliefs that need protection. In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission (2018), a private cake decorating business claimed that it had the right to ignore Colorado’s civil rights laws prohibiting discrimination based on a customer’s sexual orientation because of its sincerely held religious beliefs. The Court did not directly answer the question as to whether a business has a constitutional right to discriminate based on its owner’s religious beliefs. Instead, the Court decided that in Masterpiece, the Colorado law was unenforceable because the Commission expressed an impermissible hostility towards the bakery’s sincerely held religious convictions. Apparently, the fact that bakeries are simply commercial pastry manufactories that cannot hold personal beliefs except by some absurd metaphysical alchemy was not an important fact the Court needed to acknowledge.
In a case currently pending before the Supreme Court, Fulton v. City of Philadelphia, the Supremes must decide whether the Constitution protects a private corporation’s right to discriminate against LGBTQ couples in violation of the law. The plaintiff in Fulton is Catholic Social Services (CSS), an organization that was hired as a contractor for the City of Philadelphia to place foster children in suitable homes. CSS believes it has the right to violate its contract with the City by intentionally discriminating against LGBTQ couples based on its religious beliefs without losing its contract rights. Fulton challenges the long-held doctrine that neutral laws that apply equally to religious and secular parties without singling out people of faith for inferior treatment are constitutional. CSS also challenges the government’s right to regulate its own contractors in the public interest.
While CSS should not be compelled to enter into any contract that will cause it to violate the religious beliefs of its organizers, when it voluntarily seeks to become a government contractor, it should not be exempt from the laws and regulations which govern such contracts. It certainly should not be exempt from the terms of the contract it voluntarily entered! In Fulton, CSS seeks to bend the public laws to conform to its religious beliefs. In the sphere of public commercial activity, what interest is served by ascribing personal religious beliefs to an organization? Rather than asking the question: Does a private religious organization have the right to dictate how the government conducts its business(?); we should rather ask: Does any organization engaged in commerce in a public market have the right to assert personal religious beliefs to begin with? How will the Supreme Court’s new religious conservative majority answer these questions?
So given that our laws are carving out an expanding set of religious liberties for corporate entities in the public marketplace, what rights do the employees of a corporation have to exercise their religious preferences in the workplace? The answer: almost none. While corporate entities controlled by people with religious views may enter the public marketplace and assert their religious prerogatives at the expense of the government and the general public, a worker at a corporation has very few rights to express or protect his or her sincerely held religious beliefs.
Under Title VII of the Civil Rights Act of 1964, employers are required to provide a reasonable accommodation for an employee’s sincerely held religious beliefs or practices, but only if the accommodation needed does not impose an “undue hardship” on the employer. A reasonable religious accommodation is a modification to a company policy or workplace that permits an employee to practice or express his or her religious beliefs. Accommodations often include minor schedule changes, exemption from vaccinations on religious grounds, relaxation of dress codes, or lateral transfers.
The key to understanding the employer’s obligation to accommodate, however, lies in the use of the term “undue hardship.” In this context, “undue hardship” is defined basically as any factor that disrupts the workplace in any way or that has a more than de minimis cost to the company. Thus, if an employer must incur any identifiable cost or endure any inconvenience to its business, it may deny or ignore an employee’s request for religious accommodation.
Thus, while the Supreme Court has carved out vast areas where a private corporation may assert its religious preferences in the public marketplace to defy the laws and regulations enacted by duly elected government bodies in the interest of the public, an employee cannot assert his or her religious preferences at work even in defiance of a private company’s arbitrary and idiosyncratic policies unless the accommodation has no impact on the business whatsoever. Under the RFRA the government must show that a law is the least restrictive means of accomplishing the law’s purpose in order to enforce it in the face of a private company’s claim of religious imposition. If laws passed by democratically enacted bodies must yield to a corporation’s religious preferences, why doesn’t a private company’s policies have to yield to an individual’s religious convictions? Answer: the company has more religious freedom than its individual employees in the American marketplace.
Corporations are commercial entities formed by leave of the government. They are “things” not “people.” How do we know? They are bought and sold legally. People cannot be bought or sold any longer in this country. When corporations are formed they must seek the permission of the state and local government wherein they are located in order to operate. State and federal laws and regulations are specifically enacted to regulate, limit, and control the conduct of these entities. They are not private persons with individual liberties and “beliefs.” Very few corporations are owned and operated by a single individual. Most corporations involve a multitude of individuals to function, each with his or her own sets of beliefs and liberties.
Further, when one or more individuals form a corporation, the primary objective and chief benefit of that formation is to shield the owners from individual liability. In essence, the whole purpose of the corporate form is to legally distinguish the corporate entity from the individuals that control it. The Supreme Court rulings in Hobby Lobby and the ruling urged by the plaintiffs in Fulton would eliminate the very distinction between owners and entity that the law provided when the corporation was formed. These rulings are not just illogical. They are fundamentally inequitable. Let’s start treating corporations as what they are: things.
If you would like more information about this topic, please contact one of our employment lawyers at Carey & Associates, P.C. at (203) 255-4150 or send an email to info@capclaw.com.
by Elizabeth Swedock | Mar 18, 2020 | Age Discrimination, Disability Discrimination, Discrimination, Employment Law Blog, Family Medical Leave Act, Gender Discrimination, Liz Swedock, Pregnancy Discrimination, Race & National Origin Discrimination, Religious Discrimination, Retaliation Discrimination, Severance, Sexual & Gender Discrimination
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.
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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.
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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 info@capclaw.com.
by Mark P. Carey | Feb 6, 2020 | Age Discrimination, Disability Discrimination, Discrimination, Employment Contracts, Employment Law Blog, Gender Discrimination, Pregnancy Discrimination, Race & National Origin Discrimination, Religious Discrimination, Retaliation Discrimination, Severance
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 info@capclaw.com or call the office at 203-984-5536.
by Mark P. Carey | Jun 12, 2018 | Age Discrimination, Arbitration, Arbitration Agreements, Disability Discrimination, Discrimination, Employment Counseling, Employment Law Blog, Mark Carey, Newsletter, Noncompetition & Nonsolication Agreements, Pregnancy Discrimination, Pregnancy Discrimination, Race & National Origin Discrimination, Religious Discrimination, Retaliation Discrimination, Sexual & Gender Discrimination
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!
by Mark P. Carey | Dec 19, 2017 | Age Discrimination, Disability Discrimination, Discrimination, Employment Law Blog, Gender Discrimination, Newsletter, Pregnancy Discrimination, Race & National Origin Discrimination, Religious Discrimination, Retaliation Discrimination, Severance, Sexual & Gender Discrimination
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.
by Mark P. Carey | Dec 2, 2015 | Age Discrimination, Employment Counseling, Employment Law Blog, Mark Carey, Newsletter, Religious Discrimination, Retaliation Discrimination, Sexual & Gender Discrimination
“I encourage you to speak open and honestly.” An indirect quote from most any professional coach while coaching executives to “better communicate,” or how to “bond” an executive team, or how to “team build.” However, if you as the employee actually take this advice and speak honestly…most likely, your truth will be used against you. That seems to be the unfortunate culture of many work environments. Your boss does not want to hear how you feel, or whether you are trying to get pregnant, if your wife cheated on you, your child is sick, if you don’t like another employee, if another employee is not doing their job, if the hand soap in the bathroom gives you a rash, or if you are just in a bad mood because of the moon cycle. Really, what your boss cares about is the bottom line. Are you profitable for the company? Do you play nice in the sandbox? So long as you shut your mouth and swallow your true feelings, you are a “team player.” The minute you become “open and honest” and stir the pot you are automatically considered trouble. And companies don’t like pot-stirring trouble makers. And eventually, they will find a way to fire you.
The question is, why is this the culture and whether it can change. I’m not going to recite history, talk about equal rights in the work place for men and women, glass ceilings, or the like. But the culture was most likely created in an era where businesses were run by men and women were encouraged to work in the home. Big tough men, who don’t have feelings, are robotic and only care about making money and working their way up that corporate ladder. Feelings? What feelings? Men aren’t allowed to have feelings in the work place. Fast forward and the workplace evolved. Women began running companies too, sitting on the Board and bringing home six figure salaries. Another wave of robots. However, in this day of equality, men and women are treated equally…both are equally not allowed to express feelings in the workplace. So, shut your mouth and keep lying…because your truth will get you fired.
Ever want to look at your boss and say, “You want the truth? You can’t handle the truth!” And what you really want to say is, “You are a pig-headed ego-maniac and your treat your employees like garbage.” Or you work for someone so utterly incompetent that you want to tell him that his business plan will do nothing but drive the company into the toilet. For some, that would be “open and honest.” So while your boss or a professional coach may encourage “open and honest” communication, think about what they actually mean. I suggest that it actually means swallow your emotions and let’s talk “open and honestly” about work related issues that have nothing to do with emotion or feelings. So beware. Sometimes speaking “openly and honestly” actually means shut your mouth and keep lying. Or rather, be honest about the bottom line and how (or whether) you can take care of action items that your boss cares about. Your boss is your boss, not your counselor.
People talk and employees have rights. They have the right to work in a hostile free environment and an environment free of discrimination. And while, Connecticut is an at-will state, meaning you can be fired for no reason or a reason, the reason for termination cannot be discriminatory. With that….shouldn’t you be able to express your concerns openly and honestly without being concerned that your boss will hold them against you? Yes, yes you should. And an employer who does differently, is probably discriminating against you. So while dishonesty works (meaning it keeps you employed) and your truth may get you fired, you may have been fired for an unlawful reason and THAT is wrong. Work place culture may not change any time soon, but there are laws to protect you. Laws that allow you to speak open and honestly so you don’t have to shut your mouth and keep lying.
by Kirsten M. Schneider*
*This is my opinion. No professional coaches, executives, pot-stirrers or quiet individuals were harmed in the creation if this opinion piece. This is not meant to be legal advice or counsel. This is just my opinion….me being “open and honest.” That’s it.
