By Liz Swedock
As I’m sure everyone reading this knows by now, one of the biggest impacts of the ongoing coronavirus / COVID-19 crisis has been to employees – from every industry, every walk of life, CEOs to hourly wage workers. We’ve been receiving an unprecedented amount of calls because employees are unhappy and scared. This FAQ is to help answer some of your questions. If this FAQ doesn’t answer your question, or if your question is more complicated than what is covered here, please call us.
We continue to offer our standard free phone consultation with our attorneys, and we have added a reduced rate one-hour engagement for individuals who need our advice and help, but don’t necessarily need a full-blown attorney engagement. Our Initial One Hour Fee is $250.00 for Covid-19 related questions.
Common questions we are getting, starting with the most basic:
I’ve been fired because of coronavirus, what should I do?
File for unemployment online here: http://www.ctdol.state.ct.us/UI-OnLine/index.htm
To find your state specific unemployment office click HERE.
How long does that take?
The Department of Labor (DOL) is overwhelmed, but we are hearing that claims are being processed in approximately two to three weeks.
I’m an hourly employee and I haven’t been fired, but my hours have been eliminated or I have been told to stay at home and I’m not getting paid, what should I do?
File for unemployment online, you should qualify for benefits. There is no penalty for filing if it turns out you are not eligible, so when in doubt, file!
I’m an hourly employee and I haven’t been fired, but my hours have been reduced, what should I do?
File for unemployment online, you may qualify for partial benefits.
Should I tell my employer that I’m filing, especially if they haven’t fired me?
This is up to you, but we suggest yes. You are entitled to these benefits, but it can be helpful to have open dialogue so that you can stay on a positive note and hopefully resume your job after the crisis is over.
I’m a salaried employee and my employer told me they’re implementing a pay cut, can they do that?
Yes, usually they can if you are an at-will employee. With an exception being if you have a contract for your compensation. Another huge exception to be aware of here, is if any groups of employees are being treated differently. For example, if only older employees are being asked to work reduced hours or take a pay cut, that’s a major red flag for discrimination.
You may be eligible for partial unemployment, depending on the severity of the pay cut.
My employer is forcing me to go into work, can they do that?
This is where we get into more complicated answers. If your employer is lawfully open, the short answer is usually yes, they can require employees to come to work, or risk termination for cause.
Why does “for cause” matter?
Because, usually, if you are terminated “for cause” (or if you quit a job) you are not eligible to collect unemployment benefits.
If I refuse to go into work because I am uncomfortable about the virus risk, can my employer legally fire me?
Similar answer to above – usually, yes. If the business is lawfully open, they can require employees to go to work or face termination.
What if I requested to be allowed to work from home and my employer said no?
Generally, the employer is not obligated to allow you to work from home and can require you to go to work. However, important exceptions are discussed below, such as disability accommodations.
What if I can fully do my job from home and making me go into the office is ridiculous?
Unfortunately, the same answer as above, but please read the exceptions below!
I am not comfortable going into work and my employer told me my only option was to use vacation time or paid time off – can they do that?
Usually, yes. Similar to above, employers are generally allowed to require you to use your time off if you are electing not to go to work.
But I am a high risk person for COVID-19 (or have a close family member who is high risk), can I be required to go into work?
At the moment, this is somewhat unclear. Legally, even if you are high risk, the above rules still apply – meaning that your employer can require you to go to work. What is unclear is whether you will be able collect unemployment if you choose not to go to work to protect yourself or your family.
Why is that unclear?
There are certain exceptions where a person can be entitled to unemployment benefits, even if they quit their job or were fired “for cause.” One of these exceptions is where the working conditions endangered the employee’s health or safety. We do not yet know whether employees who refuse to go to work because they have concerns about COVID-19 will be found by the Department of Labor to be entitled to collect unemployment benefits.
Part 2: Dealing With Catching COVID-19
I’m an hourly employee, and my employer just sent everyone home (or work got suspended) because a coworker got sick or tested positive, can they do that?
Yes, but the same rules noted above apply. If you are not getting paid, file for unemployment.
I’m a salaried employee, and my employer just sent everyone home (or work got suspended) because a coworker got sick or tested positive, and suspended or reduced our pay, can they do that?
Yes, but again the same rules apply. You are likely eligible to collect unemployment benefits.
I have COVID-19 or I might have COVID-19, what should I do, related to my job?
We suggest that you immediately inform your employer and request information about what sick leave or paid time off you have, and also request information about legal rights which you may be entitled to. These rights include, but are not limited to, protected leave under the Family and Medical Leave Act (FMLA) and/or possibly paid leave under the Families First Coronavirus Response Act (FFCRA).
See more information on these laws below.
I have been in contact with someone who has or might have COVID-19, what should I do, related to my job?
Again, we suggest that you immediately inform your employer. Depending on your relationship to the individual who has COVID-19, you might also be protected under these laws, particularly if you are the caregiver of the individual affected by COVID-19.
I have COVID-19 and I am being fired, suspended, or sent home – can my employer do that?
If you are allowed to work from home and being paid, then there is probably no issue. However, from a legal standpoint, we expect that COVID-19 is going to be treated exactly like any other disability. This means that employees cannot be discriminated against if they have a condition – including COVID-19 – which “substantially limits one or more major life activities,” and “major life activities” includes working.
I don’t know or don’t think I have COVID-19, but I have been fired or suspended/sent home – can my employer do that?
Similar to above, if you are being paid, there is probably no issue and your employer is not explicitly prohibited from barring you from the workplace. However, if you are not being paid, it is possible that your employer’s treatment of you is unlawfully discriminatory. This will depend on several factors, such as whether you are being treated differently from other employees.
How do I know if I’m being discriminated against?
Generally, you are being discriminated against if you legally qualify as disabled and you are being treated differently from other people who do not have the disability, including COVID-19. This could be anything. It could be being demoted or having work taken away or your responsibilities reduced. It could be more obvious, like teasing or jokes or being isolated. Basically, anything that is negative for your job and related to a medical condition that limits your ability to work, can be discriminatory.
Hang on, are you saying that if I catch COVID-19 I am automatically legally disabled?
No. However, if any physical or medical condition limits your ability to engage in “major life activities,” you can be classified as disabled under both federal and state law. This can be temporary, such as with an illness like COVID-19.
What is FMLA?
The Family and Medical Leave Act is a federal law which provides eligible employees up to 12 weeks of unpaid leave per year, and requires group health benefits to be maintained during the leave as if the employee continued to work instead of taking leave. Connecticut law expands this to up to 16 weeks of protected leave per year for qualified individuals. The most important of these is that you are entitled to take a medical leave and you are entitled to have your job protected during that leave, meaning that your employer has to hold your job for you.
What is FFCRA?
The Families First Coronavirus Response Act (FFCRA) was recently passed by Congress and requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. The law will apply from April 1, 2020 through December 31, 2020.
What can I do if I am fired or my employment is otherwise impacted because I have COVID-19 or I might have COVID-19?
First, it is important to determine what legal rights you are entitled to, such as FMLA or FFCRA leave noted above, and, second, you should know your rights if you are being unlawfully discriminated against. The legal landscape here is developing, but, depending on your individual circumstance, we anticipate that negative treatment of employees related to COVID-19 will be held to be unlawful discrimination of an individual on the basis of having a disability or being perceived as having a disability. This will need to be evaluated on an individual basis, based on the impacted person’s individual fact pattern. If you think you have been discriminated against and want to discuss your options, we encourage you to call us.
In addition, if you qualify as disabled under the law due to COVID-19 (or due to any other reason), your employer is legally required to offer you accommodations to enable you to do your job. There is a wide range of potential accommodations, but it can include things such as allowing you to work from home, or with flexible hour arrangements. In short, if you qualify as legally disabled, there are a multitude of protections that you should be aware of that can help you.
What can I do if I am fired or my employment is otherwise impacted because I have been in contact with a person who has COVID-19 or might have COVID-19?
Again, depending on individual circumstances, this might constitute unlawful discrimination on the basis that you are “associated with” a disabled individual. It is illegal for an employer to treat someone differently because they are associated with a disabled person. This will need to be evaluated on an individual basis to determine if your rights are being violated.
CARES ACT- Individual Payments
The CARES Act provides for Economic Impact Payments to American households of up to $1,200 per adult for individuals whose income was less than $99,000 ( or $198,000 for joint filers) and $500 per child under 17 years old – or up to $3,400 for a family of four.
Additionally, the IRS will use the information on the Form SSA-1099 and Form RRB-1099 to generate $1,200 Economic Impact Payments to Social Security recipients who did not file tax returns in 2018 or 2019. Recipients will receive these payments as a direct deposit or by paper check, just as they would normally receive their benefits.
The United States Treasury is launching a web-based portal for individuals to provide their banking information to the IRS online, so that individuals can receive payments immediately, as opposed to checks in the mail.
Be sure to check this space as well as irs.gov/coronavirus for continuous updates.
CARES ACT- PAID FMLA LEAVE
The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020.
Generally, the Act provides that employees of covered employers are eligible for:
- Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of paybecause the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
- Up to an additional 10 weeks of paid expanded family and medical leaveat two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.
Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered and eligible for paid sick leave.
Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
Eligible Employees: All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19.
If you anticipate needing paid time off, we advise you to inform your employer as soon as possible, however you are not legally required to give any type of “formal notice” or be granted permission to take such leave. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.
Qualifying Reasons for Leave:
Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:
- is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine related to COVID-19;
- is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
- is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
- is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
Duration of Leave:
For reasons (1)-(4) and (6): A full-time employee is eligible for 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.
For reason (5): A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
Calculation of Pay:
For leave reasons (1), (2), or (3): employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
For leave reasons (4) or (6): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
For leave reason (5): employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period).
For more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at firstname.lastname@example.org or call 203-255-4150.
By Mark Carey
The CARES Act application opens today April 3, 2020. The following PDF document is the most concise statement regarding the CARES Act as it relates to small businesses. Please be patient with your bank lender because they are still waiting on pertinent information from Washington, D.C. about how to implement the program. You need to fill out your SBA application to be considered for the CARES Act Paycheck Protection Program.
For more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at email@example.com or call 203-255-4150.
|By Jill Halper
It is possible that many of you might not be aware that the CT Department of Labor (CTDOL) already has regulations in place known at Shared Work Program which was enacted to specifically to address any unexpected and sudden downturns in your business, such as the one we are all currently experiencing. While the scenarios for devising such legislation likely did not contemplate a Covid-19 pandemic, CTDOL has been promoting this platform in recent days to inform and remind businesses of this vital option available to them. For one, this program addresses the question that we have been getting repeatedly, “Are employees entitled to unemployment if they have not been terminated but are working fewer hours and making less money?”
This platform also provides a strategy for businesses who want to keep employees employed while they ride out the storm, but are not in a financial position to currently provide them with their regular full compensation. Although all non-essential businesses are currently shut down, with President Trump declaring that he wants businesses back open and people returning to work on April 12th, the option of a shared work arrangement might be something to start to think about as both employers and employees consider the most optimal strategy for re-entry into MAKING MONEY.
HOW DOES IT HELP EMPLOYERS?
Shared Work is a voluntary program that helps employers during business downturns by providing an alternative to layoffs. Shared Work allows the employer to reduce work hours and pay for an entire group of affected employees rather than laying off across the board. To qualify, the business’ reduction of work cannot be less than 10 percent or more than 60 percent, however, it would not be surprising if those percentage requirements experience may get modified, in light of the recent events.
The program allows employers to pay partial unemployment benefits and partial pay as an alternative to a full termination which would result the employer’s obligation to pay full unemployment benefits to displaced employees. Further, by reducing hours as opposed to laying off employees, the relationship between employer and employee remains intact. This ensures that these employees will be available for regular hours when business picks up by keeping them on staff while providing them with reduced pay and partial unemployment benefits (and even fringe benefits) during a downturn or in this case, a total shutdown.
Whether a small business or a large manufacturer, the Shared Work Program can save the employer the time, worry and expense of having to hire and train new workers by keeping skilled and experienced workers on the job until business upturns. In light of current circumstances, this will allow for a smoother, quicker and more efficient return to normal business once the shutdown has been lifted. Searching for, training and onboarding new employees is a laborious process. Shared Work affords employers the opportunity to pick up where they left off as far as staff is concerned. The last thing employers are going to want to deal with once given the green light to reopen are delays in earning revenue caused by first having to find and train qualified employees, not to mention the expenses associated with the search and hiring process.
To participate, an employer must complete an application for the affected groups of employees or departments within the company and submit it to the CT Department of Labor for approval.
Our firm has become well versed in this program and are here to help answer any of your immediate questions, complete applications for you or provide ongoing counsel throughout the process.
HOW DOES IT HELP EMPLOYEES?
The Shared Work Program is an effective alternative to an employee’s full termination during what is already a most difficult and stressful time for everyone. Rather than being laid off, employees work a reduced number of hours and receive a portion of their compensation and a portion of their weekly unemployment benefit payment. The employer submits a weekly report to generate the employee’s unemployment payment. The employee does not have to file anything. In essence, the employee continues working while collecting unemployment benefits to supplement the lost or reduced wages. The Shared Work payment is based on the percentage of the reduction. For example, if an employee normally works 40 hours per week and earns $20 an hour, under the Shared Work program, if the employee’s hours are reduced by 20 hours per week (a 50% reduction), the unemployment benefit would be reduced by 50%.
To show how this can result in more money in an employee’s pocket, if the employee in the above scenario was totally laid off, they would be entitled to $400/week in unemployment benefits. However, under the Shared Work program, if they worked and earned 50%, they would receive $400 in pay ($20 hour x 20 hours) and $200 in unemployment (50% of the total benefit). So, they would be receiving $600/week instead of $400/week AND they would have a job to return to!
Under this program, the employee would also be entitled to fringe benefits such as health, retirement benefits, and union seniority (if applicable).
Our firm has become well versed in this program and are here to help answer any of your immediate questions, assist you in alerting your employer about the existence of this program, provide you with ongoing counseling throughout the process or help you with any of your employment needs.
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 firstname.lastname@example.org.
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 email@example.com or call the office at 203-984-5536.
Very often, someone will come to our office having just been fired, feeling that the reason given by their employer just doesn’t make sense. For example, a seasoned marketing executive loses his job shortly after his company brings in a team of young consultants. When the marketing department turns its focus exclusively upon social media, his role and responsibilities are gradually minimized. Eventually, he is terminated and replaced by several of his own former trainees.
In another instance, a Senior Benefits Administrator with 30 plus years of stellar performance is suddenly criticized by her new manager as, “incompetent” and “not a forward thinker”. She is placed on a performance improvement plan (PIP) and her workload is increased so much that she can no longer keep up. Meanwhile, the company posts a job ad for an entry level Benefits Administrator. After the new hire has shadowed her for a few weeks, her manager fires her for failing the PIP.
In yet another instance, a Strategy Analyst is abruptly demoted after over a decade in his supervisory position. He is assigned to “project work” as his role in the firm is slowly marginalized. The firm’s turns its employee recruitment efforts on finding “young”, “energetic”, “enthusiastic” new graduates. His compensation is drastically reduced when the firm decides to allocate the lion’s share of the annual bonus pool to its new hires. When he complains, he is warned that he could easily be replaced by a kid right out of school for a fraction of his salary.
Age discrimination occurs when an employer treats an individual who is qualified for their job differently because of their age. The federal Age Discrimination in Employment Act (ADEA) protects job applicants and employees 40 years of age and older from discrimination on the basis of age. Many states, including Connecticut, have similar laws protecting older individuals.
You may be a victim of age discrimination if:
Your performance reviews start going down as you get older;
Your employer makes frequent age-related comments;
You are disciplined for behavior that younger employees are not disciplined for;
You are passed over for promotions in favor of younger employees;
You are reassigned to unwanted or unpleasant tasks while younger employees get better assignments;
You are passed over for hire in favor of a younger job candidate or replaced by younger worker.
But proving that you were demoted or fired because of your age can be a difficult task. First, direct evidence of discrimination, such as your boss telling you he is firing you because you are too old, is very rare. Most employers will try protect themselves by carefully documenting a narrative explaining why your firing had nothing to do with age.
In each of the real-life examples above, the employer set up a pretext of poor performance to cover up its true discriminatory motives. If you are suddenly and inexplicably given a poor performance review or placed on a PIP, your employer may be building a pretext to pave the way for your termination. Knowing that your performance has remained consistent, you are blindsided by your supervisor’s sudden and inexplicable criticism. Attempting in vain to save your job, you then try to to work even harder. By the time you are terminated, you feel somehow responsible for failing at your job. It’s not your fault, it’s your age!
In addition to prohibiting employers from treating older workers differently than their younger counterparts, the law also prohibits policies and practices that have a “disparate impact” on older workers. This particularly insidious type of age discrimination occurs when an employer’s seemingly neutral policies have a disproportionately adverse impact upon older workers. For example, a company announces that it will be laying off all employees above a certain salary level. This policy has a disproportionately adverse impact on older workers who generally earn larger paychecks.
But courts are reluctant to second guess a company’s layoff policy, where the employer can show that it is a “business necessity”, in this case, cost-saving. In order to win a disparate impact claim, an employee would then need to bring forth evidence of an equally effective, but non-discriminatory way for the company to achieve the same goal. The cost-saving “business necessity” excuse makes disparate impact claims particularly hard to prove. Older workers tend to earn higher wages than younger workers by virtue of their added years of experience. Making the situation even murkier is that the impact of these “cost saving” layoffs tends to fall specifically on older workers in middle to upper middle management positions. In a case like this, the company’s officers, also over the age of 40, decide to get rid of its long-term managers and replace them with younger workers at lower salaries.
If any of these scenarios sound familiar and/or you just received a severance package, you should consult our employment lawyers. Please call (203) 255-4150 or email firstname.lastname@example.org.
By Jill Halper
A while back I blogged an article on Performance Improvement Plans and what they really mean for an employee who has just been placed on one, or threatened to be placed on one. More so than any other blog article I have written, this one received the most prolific feedback, with so many reaching out to express how much the article resonated with them and their experience with their current or former employer.
As a result of the positive response received, I have decided to provide to our readers a follow up article to expand on and provide greater detail into the ever offensive, likely unlawful, usually unfair and sham scenario that often wrecks tremendous havoc on one’s work life only to often be followed by an improper, possibly illegal termination.
The Law Related to Performance Improvement Plans
The best place to start with any legal discussion is with the law. As you likely know, the law is derived from statutes and case law, also called common law. In the matter of performance improvement plans as they relate to discrimination in the workplace, the statutory law is generally designed to protect employees. As discussed in my prior article on this topic, the federal law as promulgated in the ADEA, ADA and and Title VII of the Civil Rights Act of 1964, and as essentially mimicked by state law, prohibits discrimination and makes it unlawful to treat certain classes of employees (i.e. age over 40, race, religion, maternity, gender, sexual orientation, disability, national origin) adversely because of their age, gender, disability etc. As such, when an employer treats an employee adversely, such as a demotion or termination, for reasons based on any of those characteristics, it may be UNLAWFUL, and they could be found liable and subject to compensatory damages and sometimes punitive damages, which may translate into an increased severance package or a financial settlement to the grieved employee. The statutes also prohibit retaliation by an employer for any complaints or claims of discrimination made by any of these protected employees. In other words, if you believe that you are being discriminated against at work and you put your employer on notice of this and they subsequently terminate you, for no legitimate reason, you may also have a retaliation claim. It is important to note that placing an employer on notice does not necessarily mean filing formal claims against them. Simply communicating to them that you believe you are being discriminated against at work will suffice for this purpose. So, it is possible that you can make them aware that you are being discriminated against or treated disparately, and still go on to work there without issue. But it is more often the case that once you make these complaints, you are likely looking for a way out and they are likely looking for a way to get you out, so at least you have ammunition now to pursue a retaliation claim (in addition to a discrimination claim) if they do go and terminate you for no legitimate reason.
So how does this relate to the subject of the Performance Improvement Plans (PIPs)? As described above, while the statutes are pretty clear about the unlawfulness of discrimination and retaliation in the workplace, the case law helps set forth what constitutes discrimination and retaliation and how one would be able to make out a successful cause of action for these claims. And this is where it could get more complicated for the grieved employee seeking to prove discrimination or retaliation. In the landmark case, McDonnel Douglas Corp. v. United States, 411 U.S. 792, 793, 93 S. Ct. 1817, 1820, 36 L. Ed. 2d 668 (1973), the court established what has been termed the McDonnell Douglas framework which is used to this day in analyzing and determining liability in discrimination cases. Under this framework, where there is no DIRECT evidence of discrimination (such as an email telling an employee that they are too old and making too much money), and a claimant or plaintiff is attempting to prove discrimination by indirect evidence (such as they were treated differently than other employees) the employee/plaintiff must first make out their prima facie case of discrimination by showing that they were in a protected class, qualified for the job, and that they were treated adversely under circumstances giving rise to discrimination. The burden then shifts to the employer/defendant to show that the reason they were treated adversely was not related to being in a protected class, but rather was due to a legitimate work-related reason such as non-performance or some sort of disciplinary issue. Under the McDonnell Douglas framework, once the employer puts forth evidence that there was a “legitimate reason” for the adverse action taken against the employee, the burden shifts back to the plaintiff/employee to show that the supposed legitimate reason proffered by the employer is a sham, false or not legitimate and that the acts of the employer were actually motivated by discrimination.
A PIP Is a Tool Used to Fire You!
Your employer certainly understands how the discrimination laws work, as summarized above. Thus, it is equally important that employees understand this as well, especially those who are dealing with a PIP at work, so that they know what they need to do when faced with this situation. As discussed in my prior article, employers with discriminatory motives who are looking for a “legitimate” reason to terminate someone will use the PIP as a way of establishing and documenting a performance reason, even where none exists. As a result, the PIP is a tool used by employers not to help employees improve, but rather to help employers meet their burden of proving that the adverse action taken against the employee is “legitimate, and that their actions were not unlawfully motivated by discriminatory animus. Employers and in particular, their human resources departments, are well versed in discrimination law and they know that if they terminate someone in a protected class, they will be held to the above framework in defending a discrimination suit. Therefore, they must show that there are performance issues and that despite their good faith attempts to help the employee improve, the employee is deficient and there are solid grounds for termination NOT rooted in discrimination.
Methods Employees Can Use to Fight Back
So, what do you do the minute you learn that you are going to be placed on a PIP and you believe that it is unwarranted or not “legitimate”? Just as your employer is and has been plotting their defense by having placed you on this sham PIP in order to document the legitimacy of the adverse actions they intend to take against you, you need to start plotting a strategy that will help you keep or prolong your employment as well as a strategy for prevailing on discrimination claims once you lose your job – WHICH YOU LIKELY WILL – if you are placed on an undeserved PIP.
Lawyer Up, Your Employer Already Has
Given what has been explained above, the first thing you should do is call one of our employment attorneys. Your employer no doubt has counsel; you should have counsel as well given what is at stake. The future of your employment and your ability to earn a living is being messed with and you need to be well advised and to make sure your rights are protected. There are very specific deadlines called statutes of limitations which provide a certain amount of time within which you are permitted to bring discrimination claims, wage claims and whistle blower claims against your employer, at which time thereafter you are forever precluded from doing so. So, if nothing else you should understand what those end dates are. More importantly, and something an attorney will walk you though is how to formally rebut the findings in the PIP. It is important that your personnel file includes these rebuttals because if and when it gets to a point where you are terminated and bring claims, the matter will often hinge on the legitimacy issue and whether the PIP was warranted or not. Certainly, if you are being told that you need improvement in certain areas and you disagree, or if you are being told in your PIP reviews that you are not improving or not meeting the goals of the PIP and you disagree, that is something you want to document in writing and refute, so it is in your personnel file if and when you need it. Another tip we provide to our clients is to quickly and articulately inform your employer that you believe you are being treated unfairly or being discriminated against and that the PIP seems to be motivated by same. In doing so, that is something that can be used to help prove retaliation. This strategy can often buy you some more time at your job as the key to a retaliation claim is causation and the key to causation is timing of the termination relative to the claims asserted. If the date of termination follows closely the date of the complaint, it is easier to establish retaliation, and the employers know this. So, by lodging a complaint that places the employer on notice that you believe you are being discriminated, the employer might be less inclined to make a swift termination. While you will very likely be terminated at some point, making the complaint will often buy you some time, which translates into more paychecks and more opportunity to get your ducks in a row for filing formal claims and a potential lawsuit. Our office has additional tactics and strategies we use to help protect our clients when they are placed on or even threatened with an undeserved PIP, so feel free to contact us immediately, should that be you.
A PIP Can Be Considered An Adverse Action
One final important point relative to the PIP discussion is the matter of what is considered an adverse action. As mentioned above, the adverse action is an essential component of making out a discrimination case. While an adverse action almost always means a demotion or termination, it CAN also include other acts by your employer that materially alter or affect the terms and conditions of your employment. Case law here generally provides that an adverse employment action is one which is “more disruptive than mere inconvenience or alteration of job responsibilities” and usually is meant to include actions that cause a significant change in employment status such as hiring, firing, failing to promote and reassignment.” Terry v, Ashcroft 336 F. 3d 128 (2d Cir. 2003). However, there is some recent case law that has introduced a broader interpretation of what constitutes an adverse action and has determined that being placed on a PIP in certain instances may be an adverse action. In the case of Amato v. Hearst Corp., aff’d, 149 Conn. App. 774, 89A.3d 077 (2014), the court stated that the threat of termination of the Plaintiff under a PIP, “in conjunction with the Plan’s imposition of new, burdensome conditions of employment was sufficient to constitute an adverse employment action”. This case also discussed other factors to be taken into consideration when determining if the act of being placed on a PIP is tantamount to an adverse action, such as whether the mandates of the PIP restricted the employer’s freedom by requiring them to be in their office for longer periods of time than other employees. Another factor to consider is whether the PIP negatively impacts your personnel file and reputation in a way that might prevent future employment opportunities. In another case, the court held that whether an undesirable employment action qualifies as being adverse is a fact specific, contextual determination. Zelnik v. Fashion Inst. of Tech., 464 3d 217, 226 (2d Cir. 2006).
The bottom line is that the mere act of being placed on a PIP might constitute an adverse action in and of itself – even before and without a demotion or termination. This will often come down to the details and a totality of the circumstances analysis. In the event you believe the PIP is not justified, discriminatorily motivated and has materially altered your employment, you might have a case of discrimination just by having been placed on an unwarranted PIP by your employer. This also means that the clock to file a suit could start running from the date you are placed on a discriminatory PIP, which is another reason you should contact our employment attorneys immediately.
Attorney Jill Halper can be reached at (203) 255-4150 or email@example.com.
[This article is currently running in the Fairfield County Business Journal today.]
Suite Talk: Mark P. Carey, owner, Carey & Associates PC
Mark P. Carey is the owner of Carey & Associates PC, a Southport-based law firm specializing in employment discrimination litigation. In this edition of Suite Talk, Business Journal reporter Phil Hall discusses the issues that dominate Carey’s legal focus.
What do you see as the state of today’s workplace discrimination environment?
“It’s probably been the most crucial time since the 1964 Civil Rights Act passage. The system is broken – the laws don’t protect employees the way that they should. The employers game the situation to their benefit and the employees are left, in essence, reporting to HR and seeking solace and comfort from HR. But that’s not HR’s role. They have to seek out people like myself from the outside.
“I don’t feel the law is helping individuals the way it was intended, and it has been further manipulated by the courts. One-third of all cases in the federal district courts are employment cases and there is a conservatism by the federal judges against employees. In 2017, there were only five employment cases that went to trial out of the hundreds that are filed in the year, so the odds are not great for an employee in federal court — they fare much better in state court.”
What are the most prevalent complaints that you are receiving from people who feel they were the subject of workplace discrimination?
“When a woman gets pregnant, the reaction by an employer is the opposite of congratulations. If you are pregnant a second or a third time, the reaction is anything but congratulations. The reaction is simply: you are not worthy, you are going to take time away, we are going to have to find a replacement and what a big fiasco this has been for us. On top of that, the employer makes outrageous statements about the employees that became pregnant — that their brains have somehow changed. You cannot believe the nonsense. The employers make it a terrible time, period.”
What about age discrimination? As the baby boomers get older and more millennials and Gen Z members come into the workplace, are more older workers being targeted?
“Employers get rid of workers in their 50s and 60s for the sake of money — younger workers make less money and many are more tech savvy. No one is doing anything to stop the flow and tide of discrimination cases that are happening. The law itself is ineffective and no one is crying foul. No state or federal agency is doing anything about it and it is continuing to occur as the boomers find themselves in what is called long-term unemployment. After all, retirement isn’t at 65 anymore.”
The #MeToo movement called attention to workplace harassment and was a dominant subject for the past couple of years with many high-profile cases involving politicians, media figures and entertainers. But is it relevant in the everyday workforce?
“With #MeToo, we had people being called out without any fear of reprisals. It was amazing because when was the last time that happened? I can’t recall that happening in the employment setting.
“It prompted employees to realize they actually have a voice. We’ve seen instances of Google and Microsoft employees banding together without unions and bringing complaints to management and causing management to do something. The psychology of the relationship between the employer and employee is changing — that has never happened.”
Within Connecticut, there is a new effort to put paid medical and family leave into law. What is your view of this issue? And how do you respond to business owners who say it will increase operational costs?
“It is the right thing to do. It’s not a political statement. As for the business response, it is the same as workmen’s compensation insurance. If you are going to permit people to come into work and give you the benefit of their services, it is the cost of doing business. Without a better explanation from the business side of the argument, that is just a sound bite to put out there.”
Many companies claim they are trying to build a more diverse workforce. Is this a serious claim?
“It is a rubber stamp to put up as a defense whenever there is a lawsuit. I got a response back from an employer that included their employment manual and put out this whole ‘We’re diverse this that and the other.’ But I was like, ‘Wait a minute, you have discrimination happening in your workforce. How do you explain that?’
“It is like a fig leaf for their defense against litigation. If it was true, statistics would have shown complaints have gone down. They haven’t — they’re increasing, with more cases being filed every single year.”
If you have an employment related issue, please contact Mark Carey at firstname.lastname@example.org or 203-255-4150.
By Jill Halper
Many of us have been in a work situation where we’ve had a boss or supervisor who does not respect our personal time. If it is on his or her mind, there is a primal need to share and address immediately, regardless of the where or when. After putting in a long day on the job, you come home to after-hour work emails or texts that seem to have some urgency, or why else would your employer not wait to contact us about the work matter the following morning, DURING WORK HOURS? In a world now defined by virtual immediacy and constant connectivity, it has become increasingly difficult to shut down and turn off our electronics. And because we are always reachable, it becomes instinctual to promptly respond, if not impossible to ignore communications as they arrive, especially when the reach out is from a hire up at work. As a result, your “9-5” job can quickly morph into a 24/7 situation. The problem with that, besides the obvious interruption to your valued personal down time, is that you are only being compensated for your designated hours and every email that you respond to or even read outside of those hours is being done at your expense and at your employer’s gain. Not only is this inherently unfair, it might even be unlawful. In fact, in Europe, employees have the legal right to disconnect from work, and the U.S., and New York and Connecticut in particular, may not be that far behind in this trend.
A Simple Solution
The solution to all of this might seem simple and just be one of being paid overtime for any communications that take place outside of your regular hours. However, overtime compensation is already clearly defined by the law and many employees are exempt from overtime pay. Generally, an employer has to pay overtime, time-and-one-half of wages, to any employee who works more than 40 hours in one week. And that work might and should certainly include responding to work related emails and texts. But an employer does not have to pay overtime at all, regardless of how many hours worked or when those hours are worked, depending on the title and/or specific job duties of that employee. For the most part, an employee is “exempt” under the overtime law if they fit into the category of executive, administrative or professional. If you think you are not being paid overtime for which you are entitled, you should contact a labor and employment attorney and/or contact the Connecticut Department of Labor to better understand your rights.
What If You Are Not Entitled to Overtime Pay?
So, what about the class of employees who do not benefit from the overtime laws? What right do these employees have in the workplace when it comes to a boss who does not value your personal time outside of the office? Generally, employment in Connecticut is “at-will,” which means that an employer can make unilateral decisions regarding almost anything, including an employee’s duties, hours and/or compensation. Unfortunately, in an at will arrangement, the employer can do things that might seem unfair and out of line, such as emailing you repeatedly over the weekend or at night. Taking this a step further, because an at will employee can be terminated or disciplined at any time, for any reason, as long as it is not a reason expressly prohibited by law, an employer can not only require or expect you to stay connected outside of your usual work hours but may even have the right to take an adverse action against you if you fail or refuse to engage. In these instances, it is important to take a deeper look into the narrative and nuances surrounding these off-hour communications. If you are treated differently in this regard than other employees, or if your employer has different expectations of you when it comes to requiring you to attend to such communications, this may be unlawful behavior if you are a member of a protected class because of your age, gender or race. In those instances, you should contact a labor and employment attorney to better understand your rights and potential for monetary damages against your employer for the disparate discriminatory treatment.
The French Have a New Solution- Right to Disconnect Law
However, what can be done if you are exempt from overtime pay and there is no discriminatory motive that would make excessive, off-hour communications unlawful? This is the very scenario that France has recently addressed in their new ‘Right to Disconnect’ law. This law that went into effect on January 1, 2017 gives French employees a qualified legal right to ignore work emails outside of normal business hours. The law was designed to curtail unfair and uncompensated work related technology use and communications and requires companies with 50 or more employees to develop policies with their workers that limit work-related electronic communications use after hours. Covered firms are required to negotiate email guidelines with their employees to regulate email use to ensure employees are able to possess time away from the office. If employers and employees cannot agree on an appropriate policy, then the employer is obligated to publish a charter that regulates when employees can disconnect.
New Law Would Promote A Work Life Balance
This is not only a clear victory for employees abroad, but it has sent a clear and strong message back in the states. This new law alleviates the cognitive, psychological and emotional load that employees suffer when responding to a work task on personal time. Interruptions at home disrupt the relaxation and recovery process that is necessary for healthy work-life balance. Research suggests that never “shutting off” increases stress and has both physical and psychological effects that has led many companies, such as Google, to hire mindfulness experts to help employees disconnect and clear their minds.
New York City Right to Disconnect Law
But, will the US formally embrace a similar policy to that recently enacted in France? The answer is a definite maybe, particularly if you live and work in New York City. A new bill has been introduced that would ensure private employees in New York City have the right to disconnect from work. READ THE BILL (.pdf). The law aims to give workers a break from texting, calling or emailing when off the clock and will give the employee the right to disconnect without fear their bosses are going to fire them, discipline them or cut their pay. While an employer can still contact the employee, the employee has the right to decide if that phone call is more important than their personal time. In sum, the proposed law would make it illegal for a company to require employees to access work email and other communications outside the office. It would apply to regular time off, sick days and vacation time, and covers all employers with 10 or more workers. Overall, it would require employers to adopt a written policy governing the use of electronic devices and other digital communications during non-work hours, and would set forth the “usual work hours” for each class of employee, and the categories of paid time off available to employees. The law would prohibit retaliation against employees, who exercised or attempted to exercise any right to disconnect. As stated above, currently, nonexempt employees who are experiencing work-related communications outside of their usual work hours are generally required to be paid and protected under the Fair Labor Standards Act and therefore, those non-exempt employees are not the focus of this bill.
Will Connecticut Enact a Right to Disconnect Law?
The word on the street is that Connecticut may follow suit and lawmakers are considering introducing similar type right to disconnect legislation. But that could be years down the horizon, if ever. So, until then, what can you do if you are being barraged with off the clock/off-hour texts or emails from your employer? You can petition your local representative and lobby to get momentum on a right to disconnect bill in Connecticut. You can also petition and form a coalition with your fellow employees to negotiate guidelines, if your employer is a large enough and forward thinking enough company, such as Google. Lastly, you can seek labor and employment counsel to determine if you are either a non-exempt employee protected by the FLSA overtime laws, or if you are an exempt employee (admin, executive or professional) who believes the off-hour communications are routed in or motivated by some unlawful context or motive such as discrimination or harassment. Or you can relocate to Paris!
Feel free to contact this office at any time to discuss your right to disconnect, to receive overtime pay or to address any of your labor and employment needs.
By: Jill Halper
At first glance, the word arbitration might sound like a less formal, lower cost, friendlier process than litigation. Certainly, in theory, it can be those things. But let’s talk about what it can also be…. forced arbitration can be devastating. It is an unconstitutional, unfair process whereby employees are prevented from suing their employers for potentially violating the law and are forced to have their claims heard and adjudicated in a private binding arbitration. This quasi-legal forum with no judge and no jury should be avoided by employees in almost all instances and to all extents possible.
Forced arbitration, also referred to as mandatory arbitration is an alternative form of binding dispute resolution used to resolve legal disputes out of the courts. Arbitration is “forced” when your employer requires you to sign away your right to go to court at the start of employment and before any legal dispute has arisen. Many forced arbitration agreements also ban groups of employers from coming together to file class action lawsuits. These forced arbitration provisions can find their way into employment offer letters, employment agreements, employee handbooks and even emails where the employee is instructed to electronically accept. Mostly, this occurs at the hiring stage, but there are times when arbitration agreements are presented in any of these forms after hiring and during the course of your employment and as a condition for continued employment, i.e. “forced”.
What you need to understand is that forced arbitration strongly benefits corporations and employers. Forced arbitration obstructs an employee’s pursuit of justice, violates employees’ civil rights and fails to hold employers accountable to employees and to the public. The mere fact the arbitration is forced and getting the job or being allowed to keep your job is a condition of entering into an arbitration agreement should make your hair stand on end. Here are just some of the ways forced binding arbitration can hurt you.
Arbitrations Are Private, Confidential and Not Transparent
For one, and what I see as the most serious concern with forced arbitration is that they are conducted in private, not publicly filed, and deprive plaintiffs of their day in court and the right to conduct discovery and a trial by jury. As such, forced arbitration is in fact arbitrary. They lack utter transparency, accountability and the employer is able to shield unlawful and unfair practices from the public. Not only is that a problem as a matter of public policy, but practically it takes away the leverage an employee might have to get an employer to the settlement table for fear of making their grievances public. The employer has no obligation or incentive to be transparent and to make things right. As a result of all of this, forced arbitration facilitates the perpetration of discriminatory and other unlawful and improper behavior in the workplace by preventing victims from being heard in an open court of law and preventing their complaints and stories from being made public. In addition, because there is no “verdict” and the findings of forced arbitration are private and confidential, there is no ability for future plaintiffs and their attorneys to uncover company-wide data to expose patterns and prior practices of discrimination and violations. In addition, arbitration does not yield publicly filed decisions and as such does not create legal precedent to inform future plaintiffs and their attorneys on whether laws have been violated and how to apply these laws to particular fact patterns.
Arbitration Favors Employers Not Employees
In addition to the above, forced arbitration strongly favors employer corporations as the employer selects and hires the arbitrator. In a court of law, neither party has the ability to select a judge and the process is blind. In addition, it is not uncommon that corporate executives may not only travel in the same social circles as the arbitrators and may be personal acquaintances of each other, but that corporate employers are often repeat offenders and as such become known by individual arbitrators in a particular market. Moreover, forced arbitration can be prohibitively expensive as plaintiffs may be required to share and sometimes even cover all of the fees, which include attorney fees. As in a court situation, both parties will want attorneys to represent them at an arbitration, so the costs can be significant on the flip side, there are far fewer options for pro bono counseling. Also, forced arbitration is binding and the rulings are final. It is almost impossible for employees to appeal an unfair or erroneous decision, as may be done in a court of law. Lastly, forced arbitration are subject to little if, any government oversight.
Employers Are the Clear Winners In Arbitration
In light of the above observations, employers and big business are the clear winners in this unjust and unfair process. The majority of time, forced arbitration results in favorable outcomes for employers. In fact, research shows that arbitrators are more likely find in favor of your employer and that employees are 1.7 times more likely to win in federal courts than in arbitration and 2.6 times more likely to win in state courts than in arbitration. In addition, forced arbitration settlements yield significantly lower damages for employees than in federal and state courts. (Sources: bit.ly/EPIArbitrationStudy, bit.ly/CPDArbitrationStudy)
Can Employees Avoid Arbitration?
So, what can employees do about this? You are already on your way as the first step is being informed. Now that you know how devastating a forced arbitration agreement can be, you will surely be aware of their existence in an employment context and take caution before entering into one. Remember that because forced arbitration benefits the employer, it is in their best interest that you sign on the dotted line. In order to accomplish this, they will often try to sneak a forced arbitration provision into your hiring paperwork. Courts have held that because employees entering into arbitration agreements are giving up their right to their day in court and a trial by jury, employers need to make these arbitration provisions obvious and bold and specifically identify the employee is waiving their right to a jury trial. Still, employers do not always comply with these common law requirements and it is easy for employees to get duped or pressured into signing away, especially when these agreements are forced, and a job offer or continuation of employment is at stake. As such, you must read all of your employment documents very carefully and it is advisable to seek legal counsel before accepting or signing anything. Also, be on the lookout for an email communication that may come anytime during your hiring or on-boarding process (or even later) that addresses arbitration. When presented in this form, there is usually a single step “option” to opt out of or opt into arbitration. It may be the case that just be failing to click the opt out, you have implied your consent to agree to arbitration. So again, you need to be very careful and immediately consult an attorney if any such email appears in your inbox.
Employees Can Negotiate and Sue to Avoid Arbitration
What else can you do to protect yourself in this situation. Because these arbitration agreements are forced and a condition of employment, you may believe that you have no choice but to sign in order to get or keep your job. For one, that is not always the case and experienced legal counsel in these matters can fight for you and attempt to negotiate this provision out of your agreement. In addition, we implement other legal strategies to protect our clients from these provisions such as the use of a sworn affidavit created and entered into by the client contemporaneously at the time of signing an employment/arbitration agreement; the employee makes a sworn statement that it was not their intention to sign an arbitration agreement, but that they had no choice and did so under duress and coercion. This can be helpful in the event there is a future legal dispute between the parties and the employer invokes the arbitration clause in an attempt to keep the matter out of court and compel arbitration. We can use this sworn affidavit as part of our practice in fighting the validity and enforceability of the arbitration agreement as it relates to the intent of the parties at the time the supposed contract was entered into. We also file suit in court seeking a declaratory judgment action as whether the client had the intent to enter into the arbitration agreement.
Google Bans Forced Arbitration Agreements for All Employees
While all of this sounds rather scary (and it is), the good news is the courts and even some big business are seeing this the way we do, and strides have been made to get rid of forced arbitration. In one amazing example, the corporate giant Google recently promised to end mandatory arbitration for all current and future full-time employees, including temps, vendors and contractors by March 21, 2019, in order to resolve disputes such as harassment, discrimination or wrongful termination. Google employees, alarmed by this unjust practice actually banded together not through a union, and created Googlers for Ending Forced Arbitration. Through these grass roots, call to action efforts, a powerful and large coalition of 20,0000 plus employees was formed that stood up to their employer Google and worked to yield this ground breaking and encouraging outcome. Both Google and their employees should be lauded for this brave endeavor and perhaps (hopefully) other big business and band of employees can affect similar outcomes.
Congress Takes Action to Ban Forced Arbitration Agreements
To help this along, law makers are also seeing the light when it comes to forced arbitration. House Democrats recently (February 28, 2019) introduced a major bill that would protect access to the court system to millions of US employees. The Restoring Justice for Workers Act, which would ban businesses from requiring workers to sign arbitration clauses, is still being considered by congress. If the legislation is passed, it would positively impact millions of US workers by giving them back their right to remove themselves from the unfair arbitration forum and have their potential claims heard in court.
If you are presented with a forced arbitration provision as part of your hiring documents and/or employment agreement, or at any time during your employment, do not sign until you consult with an employment law attorney. You will be giving away your rights and we caution you against doing so. Feel free to contact this office and we will be able to counsel you on this important issue, or help you with any of your employment law related needs.
Employers are opting increasingly for forced arbitration as a tool to prevent their employees from seeking justice against them in court. A form of private dispute resolution, an effective arbitration agreement forces the parties to submit their dispute to a professional arbitrator (usually chosen by the employer), who will decide the result. The arbitrator’s decision is final: It is legally binding and cannot be appealed in court.
The Problem with Forced Arbitration
Forced arbitration comes at a tremendous cost to employees, who will no longer have their day in court. As a result, their right to fair treatment on the job is inevitably compromised. Even a favorable monetary arbitration award can feel like a hollow victory for an employee who has suffered years of discrimination at the hands of their employer. For a large company in particular, even a high six-figure payout is effectively nothing but a slap on the wrist. A license to continue their unfair employment practices.
An employee’s real bargaining power comes from the public nature of the court system. By signing mandatory arbitration contracts, employees are waiving their fundamental, constitutional right to a trial by a jury.
According to a recent study, nearly 52% of employees are subject to mandatory arbitration procedures. “Extrapolating to the overall workforce, this means that 60.1 million American workers no longer have access to the courts to protect their legal employment rights and instead must go to arbitration.” Alexander J.S. Colvin, Economic Policy Institute, EPI.org.
Workers’ Rights Put at Risk
Just a few weeks ago, the Supreme Court ruled 5-4 in NLRB v. Murphy, that employers can include employment contract clauses forcing employees to arbitrate their disputes individually, and waiving the right to resolve those disputes through joint legal proceedings. In a rambling, logically incoherent majority opinion, Justice Gorsuch asserted, “[t]he policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written.”
This decision paves the way for companies to strip workers of the right to pursue class action suits in cases of widespread discrimination. In her written dissent, Justice Ginsberg cautioned, “[t]he inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”
Savvy employers are well aware of the advantages provided to them by private arbitration. They are becoming ever more creative in finding places to bury mandatory employment arbitration clauses to ensure that their employees are bound by them.
The Supreme Court’s decision in the Murphy case left unanswered, the question of what constitutes valid “notice” to an employee.
Consider the case of an employer who sends an arbitration agreement through a company-wide email, requiring any employee who does not agree to be bound by mandatory arbitration to opt out proactively. Are all employees who have not opted out of the agreement still bound by its terms, even if they never opened the employer’s email?
In another case, the employing company placed a mandatory arbitration clause within the text of the legal disclaimers included in its employment application. In order even to be considered for a position, a potential employee is required to find and agree to mandatory arbitration.
Fighting Workplace Discrimination
The Supreme Court’s decision in NLRB v. Murphy will have significant consequences for the ability of employees to fight back against discrimination on the job. Despite the unequal bargaining power inherent in employer-employee agreements, the decision marks a victory for companies seeking to avoid liability for the mistreatment of their employees.
It remains to be seen how the court will handle the issue of hidden arbitration clauses, whether long-standing contract principles requiring notice to both parties will become a thing of the past as well.
The following companies use forced arbitration clauses: Morgan Stanley, Hooters, Forever 21, Nordstrom, Neiman Marcus, Macy’s, Yahoo, Dillard’s, Manpower, Carrols, Papa John’s Pizza, Xerox, Amazon, Ford, GE, Coca-Cola, CVS, ExxonMobil, Bridgewater Associates, Glencore, RBS, Barclays, Tradeweb, Boehringer Ingelheim Pharmaceuticals.
Have employment questions? Need help with a case? The employment lawyers at Carey & Associates, P.C. handle each and every aspect of employment litigation and appellate work and act as the story tellers of our client’s personalized narrative to the company, the court and the jury. Contact us today!