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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment At-Will Conceals Discriminatory Behavior and Must Be Banned

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

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

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

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

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

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

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

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

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

In this episode of the Employee Survival Guide, Mark explores the use of nondisclosure or confidentiality provisions in settlement agreements.  In essence, employers seek to hide their bad acts behind confidentiality agreements and shield them from public disclosure.  Mark explores a new California statute being proposed that will further provide transparency to unlawful employer conduct. Finally, Mark provides a solution to creating more equality in the work place by banning nondisclosure agreements and two other initiatives he has been raising for several years.

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

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

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

Carey Reaches 1000 miles in a Month: #solojourneytocurems

Carey Reaches 1000 miles in a Month: #solojourneytocurems

Last night I hopped on my indoor cycling trainer and embarked on a butt busting 70 mile ride. In case you are wondering, there is no coasting on a trainer, spin spin spin …  I started at 9 pm after dinner and got off the bike at 1:15 am. Yes, that’s how long it takes to ride 70 miles indoors.  Why?  Well, why not? We are trying to cure Multiple Sclerosis here! At 1 am, my mileage said that I just passed 1,000 miles since January 10, 2020, the day I started.  I have my routine down, I developed my long haul legs again and I can see the end of 10,000 miles in the distance.

What are you waiting for?  I implore you to make a donation today and BUY MILES for this worthy cause!  I need your donations to continue riding, no I am not kidding.  Right now I have raised $2,385, that means the gas is in the tank and I can ride for 1385 more miles.  I need your help, donate today and use this link https://www.facebook.com/donate/233329948389093/

On February 15, 2021, I received an email from those very smart people at BioNTech. Yes, I sent an email to them inquiring about the start of human trials after they announced they found a cure for MS in mice using the RNA technology; the same technology they used to cure Covid-19.  Here’s what BioNTech said,

“The study mentioned is currently still in the pre-clinical phase. We are not yet able to provide information on the start of recruitment for patients, but it is expected to start in 2-3 years. As soon as BioNTech will start studies in further indications, you will be able to view this information on www.clinicaltrials.gov and on BioNTech’s homepage… As soon as BioNTech initiates a new clinical trial, this information will be published on www.clinicaltrials.gov and on the homepage of BioNTech.”

Ugghhh, yes human trials do usually take 2-3 years and don’t be confused about how fast the Covid-19 vaccine was rolled out.  What this means is that I will continue to cycle 10,000+ miles every year for the next two to three years until that wonderful RNA science is injected into the arms of nearly 2.3 million people Worldwide who have been diagnosed with MS and the nearly 1 million people here in the United States, including those people close to me. (Source).  You can help by BUYING MILES from me through your donations.  Your dollars will be sent to BioNTech through the National MS Society to help finish this thing once and for all!  What are you waiting for?

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

By Chris Avcollie,

In an often-quoted line from the hit TV series Dexter, actor Michael C. Hall, who plays the title character said: “There are no secrets in life; just hidden truths that lie beneath the surface.” For those of us involved in the resolution of employment claims on behalf of employees, this quote has special meaning. Beneath the surface of most employment settlement agreements lie the undisclosed facts that led to the conflict and which often result in the messy end of an employment relationship. Recently proposed legislation in California seeks to ensure that those “hidden truths” do not remain hidden.

California Proposes New Law – Silence No More Act (SNM Act)

A new law proposed in California this week called the Silenced No More Act (SNM Act) is intended to prevent the enforcement of non-disclosure provisions in a wide variety of employment settlement agreements. The legislation, proposed by California State Senator Connie M. Leyva, will expand upon the 2018 STAND Act (Stand Together Against Non Disclosure) and will protect plaintiffs in cases of employment discrimination and harassment of all kinds who choose to speak out publicly about their experiences. Under the current provisions of the STAND Act, only plaintiffs in cases of gender discrimination or sexual harassment may avoid non-disclosure provisions. The new law will expand the STAND Act to prevent the use of non-disclosure provisions in employee severance agreements. Under the SNM Act, targets of discrimination based on race, national origin, religion, or gender identity will also now be free to ignore the contractual gag orders companies negotiate into their settlement agreements.

This legislation has been supported by employee rights groups in California including the California Employment Lawyer’s Association and the Equal Rights Advocates.  The new laws are seen as an end to the days when employer misconduct can be hidden from public view. Workers who have been targeted with harassment and discrimination will be free to speak their truth publicly. The perpetrators of this type of misconduct can no longer hide behind the veil of secrecy provided by their company. Non-disclosure and non-disparagement agreements will no longer be used to silence employees.  The hope is that the public disclosure of the details of these abusive work environments will prevent perpetrators from targeting other workers in the future.

STAND and SNM Could Influence Other States to Pass Similar Laws

Although STAND and SNM (if it is enacted) are or would be exclusively California laws, these statutes could ultimately have a broad national impact. Other states often follow California’s lead in employment matters. Further, the fact that so many large technology companies are headquartered in California gives these laws an outsized influence on the national conversation about non-disclosure agreements. In the wake of the STAND Act, a number of states have enacted some limitations on non-disclosure enforcement including Washington, New York, New Jersey, Vermont and Tennessee. Many more states are likely to see some version of this legislation in the future.

More Cow Bell – More Corporate Disclosure and Shaming = More Equality in the Workplace

As am employment attorney, I was very curious about how this new legislation might impact the ability of plaintiff’s lawyers to negotiate settlements for clients in employment discrimination cases. Often the best leverage plaintiffs have in the early stages of an employment case is the prospect of public disclosure of misconduct on the part of a company employee or manager. The reason many companies offer settlements to claimants is to avoid embarrassing public disclosures of uncomfortable truths about their corporate culture or work environment. Companies also have an interest in keeping settlements secret to avoid what they see as “encouraging” other claimants looking to “cash in” on potential claims. In other words, the concern is that the non-disclosure and non-disparagement provisions outlawed by the STAND Act and the SNM Act are the best tools to obtain fair settlements for employees who have been targeted with harassment or discrimination.

The STAND Caveat

Further examination of the proposed statute reveals that its scope is more limited than I had anticipated. These statutes are actually structured to encourage and not to discourage early settlement of discrimination cases. The STAND Act allows for use and enforcement of NDAs (non-disclosure agreements) in cases where there has not yet been any court or agency filings. So during the initial stage of the claim, when a demand letter has been issued but where claims have not yet been filed with state or federal human rights agencies (such as the Equal Employment Opportunities Commission or “EEOC” in federal discrimination cases or the Connecticut Commission on Human Rights and Opportunities or “CHRO” in Connecticut state discrimination cases) and no lawsuit had been filed, the companies may include NDAs in settlement agreements and they are enforceable.

This exception to the ban on NDAs is highly significant. Far from discouraging early settlements of discrimination claims, this feature of the proposed law offers employers a powerful incentive to settle employment discrimination and harassment claims early. If an early settlement is not reached then the agency filings will occur and the employer will lose the right to demand an NDA as part of the settlement agreement. In order to keep employee misconduct secret, employers will have to settle employment discrimination cases early and often. While some cases can be kept secret by early settlement negotiations, targets of discrimination who want to shed light on their experience can ensure their ability to speak out by filing their claims with state and federal agencies.

What Opponents/Management/Defense Attorneys Say About Anti-NDA Legislation

Opponents of the anti-NDA legislation contend that restricting NDAs takes away a survivor’s choice to keep their case private and provides a strong incentive for employers to refuse settlement options and to defend themselves against a publicly disclosed allegation. According to Attorney Jill Basinger, an entertainment litigation partner and Michael L. Smith an associate at Glaser Weil in Los Angeles, “This harms survivors of sexual harassment and assault by removing their choice and forcing them to endure the hardship and uncertainty of a public trial as the only means of vindicating their claims.”[1] Once an agency filing occurs or a lawsuit is commenced, the NDAs become unenforceable. It seems as if these laws would remove a strong incentive for defendant employers to settle claims.

It appears, however, as if the STAND Act has resulted in an increase in pre-filing mediations in employment cases in California.[2] According to Mariko Yoshihara, the Legislative Counsel and Policy Director for the California Employment Lawyer’s Association, the predictions and fears over the STAND Act impairing the ability to settle have not borne out. According to Attorney Yoshihara, attorneys involved in this type of litigation have informally reported that the legislation has not lowered settlement amounts or impaired the settlement process. Additionally, according to Yoshihara, it has made it easier to advocate for employee rights from a public policy perspective because the targets of harassment and discrimination can make their stories public. While dispositive data on this point is not yet available, it seems as if the legislation is working in California.

Further, fears surrounding the forced public disclosure of the identity of the claimant are unfounded. Under the STAND Act there are specific provisions which protect the identity of the complaining employee in the context of a lawsuit. The STAND Act includes a specific provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including documents and pleadings filed in court, at the request of the claimant. California Code of Civil Procedure 1001(c). Thus, the anti-NDA legislation does not force the disclosure of a claimant’s identity.

While many employer advocacy groups including various chambers of commerce and industry and trade associations have opposed legislation such as STAND and SNM, similar legislation should be considered by all state legislatures that have not already enacted similar laws.  When it comes to use of NDAs in employment discrimination and sexual harassment cases there is an unfair imbalance of power between the bargaining parties. The employers who are often defending the harasser or denying that the harassment occurred have an overwhelming advantage over the complaining employee in terms of investigative, legal, personnel, and financial resources. Employers are frequently holding all of the cards in a settlement negotiation. Legislation such as STAND and SNM will help to level the playing field at least with respect to NDAs.

More Power to the People/Employees – Shift In the Balance of Power

Placing the power over which aspects of the case can or will be made public in the hands of the targets of harassment and discrimination will help balance the power in the arena of employment settlement agreements. As evidenced by the initial success of the STAND Act, these laws can be an important tool in ending the culture of silence that has permitted harassing and discriminatory behavior to continue in the workplace for so long. In a recent opinion piece, the feminist writer and critic Marcie Bianco said: “If the societal change necessary for dignity and justice is to occur, we must move from awareness to accountability.”[3] This legislation should help bridge the gap between awareness and accountability. We need to see a whole lot more of those “hidden truths” lying beneath the surface of the American workplace.

If you would like more information about this article, please contact Carey & Associates, P.C. at info@capclaw.com or call 203-255-4150.

Christopher S. Avcollie

[1] Basinger, Jill and Smith, Michael L.; “How California’s NDA Restrictions Cause More Harm Than Good for Survivors” (Guest Column); Hollywood Reporter;  https://www.hollywoodreporter.com/news/how-californias-nda-restrictions-cause-more-harm-good-survivors-guest-column-1280922

[2] LeHocky, Mark, “Shining a Needed Light on Harassment and Discrimination Claims: The Collective Benefits from California’s Recent Secret Settlement Restrictions”, Contra Costa County Bar Association, March 2020;   https://www.cccba.org/article/shining-a-needed-light-on-harassment-and-discrimination-claims/

[3] Bianco, Marcie, “Britney fans angry at Justin Timberlake have a point.” CNN Opinion, February 10, 2021.

Carey’s Solo Journey to Cycle 10,000 Miles to Cure MS

Carey’s Solo Journey to Cycle 10,000 Miles to Cure MS

On January 10, 2021, I began a solo ride of 10,000 miles in one year to raise $100,000+ to help cure Multiple Sclerosis once and for all. A miracle just happened, Covid-19 produced a possible MS Vaccine, but we are still a few years from a viable vaccine to prevent and reverse the effects of MS.

You can follow my adventures on Strava.com below and Facebook. To reach my ominous goal of 10,000 miles, I must ride 27 miles per day, everyday, for 365 days. The majority of my rides will take place during the week, so you will see me riding 30-70 miles per day. I will use weekends to make up miles on longer rides. I cycle on the roads here in Connecticut, even during the winter months. I also use a stationary bike in my new spin studio in the garage, equipped with disco lights and music. You will also see posts from Peloton, when I need a change of pace.

 

MS is personal to me, as it affects people close to me. Help me raise $100,000+ for research/cure and other MS services for nearly 300,000 people with this disease. You can make a difference today by making a donation HERE and end this devastating disease once and for all. Thank you!

I encourage you to share this fundraising campaign with others. Together, we can all make this vaccine cure a reality in the next two years or less.

If you would like more information, please call Mark at 203-255-4150 or send an email to mcarey@capclaw.com.

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

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

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

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

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

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

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

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

By Chris Avcollie

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

Podcast: Employer Mandated Covid-19 Vaccinations- Can They Do That?

Podcast: Employer Mandated Covid-19 Vaccinations- Can They Do That?

This episode explores the new controversy surrounding employer mandated Covid-19 vaccinations.  Can employers do that? The simple answer is yes.   The episode explores earlier governmental intrusion related to the smallpox epidemic of 1905 and then brings it forward to the current Covid-19 era.  Mark explores your liberty interest to be free from governmental intrusion now being orchestrated through each individual’s employment.

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

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

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

Are You Picking Up What We Are Putting Down? Let Us Know

Are You Picking Up What We Are Putting Down? Let Us Know

It dawned on me this morning that I have never really asked the 20,000 people on our blog list what you all think about the articles we are writing every week and the associated podcast episodes.  For the past 17 or so years, we have been producing insightful and informative articles to help you better understand the complexity of employment and constitutional law issues that surround us every day at work. Our point of view is from the trenches, armed in dystopian combat, not some lofty ivory tower.  Our approach is neutral, straight down the middle but veering off to one side occasionally when the issue is obvious.  Topics range from severance negotiations, forced arbitration, to asserting first amendment rights outside of work.

Yes, my intentions are very clear. I enjoy stirring the pot regarding employment issues, because I can and because there is just too little discussion about this enormous time expenditure we call working.  If you get something out of our articles that helps you deal with work issues or as attorneys (and there are a lot of you on this list) (and “honorable guests”) we help you expand the scope of view on employment law, then let us know what you think.  This morning’s epiphany was really a question. What are other people thinking about the same topics we are writing about?  Speech is free, express your opinion and get the discussion going. You can bet I will write about the responses you all provide.

We invite you to let us know by a variety of ways.  All of the responses will help us understand what is important to you and what is not.

Send us an email to info@capclaw.com with your comments and opinions about what’s on your mind.

Hey, you can even pick up the phone and call me directly at the office (203) 255-4150.

Please share our blog and podcast with your friends and like our facebook page.

If you feel our articles and podcasts have helped you figure out your own employment issues without using an attorney, great! I would really like to know, please post a review on our website Carey & Associates, P.C., (www.capclaw.com) and thank you in advance!

Have a great weekend!

Regards, Mark Carey

 

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