Did you hear the one about the two employment lawyers who walked into a Zoom?

If you know of a good punch line, then you may have figured out that the answer is actually a link: Employment law attorney Eric Meyer (who writes the always topical blog Employer Handbook) and I have a lunchtime webinar scheduled for Friday, January 28th at noon on all things employment law. You can find the link here.

Like most good Zoom sessions, we promise we won’t take ourselves too seriously.  But we will try to talk about the very latest in all the changes in employment law at the White House. The first 10 days of the new administration have shown how much can get done when you have focused leadership.

In addition, Eric has promised we’ll take a few questions so no doubt we’ll talk about the very latest in vaccines and what the new COVID-19 variants may have in store for employers.

Longtime readers of the blog will no doubt remember Eric’s name which goes back to the early days of the blog.  Now a partner at FisherBroyles, Eric has one of the more unique introductions of himself that you will find: “You know that scientist in the action movie who has all the right answers if only the government would just pay attention? If you want a nerdy employment-lawyer brain to help you solve HR-compliance issues proactively before the action sequence, as a Partner of a national law firm, FisherBroyles, LLP, I’m here to help.”

I can’t help but think of Doctor Emmett Brown from my favorite movie.  (Though would that make me Marty McFly?  Perhaps I’ll wear my vest…)

Come join us for this free program, stay for the action sequences, and bring your questions (and your own lunch).

If you thought the new Biden White House would take it easy on the use of Executive Orders, you haven’t been paying attention.  President Biden has been indicating that he would use Executive Orders liberally in the first few days to either develop policy or turn around policies that he believes should be revoked.

The first week has brought a series of orders that address topics from sexual orientation, to the pandemic, to wage increases.

My colleagues, Keegan Drenosky and Sarah Westby, and I have tried to recap the Executive Orders to date in a post on our sister firm blog, Employment Law Letter earlier today.

Employers in Connecticut have already had to comply with the Sector Rules put in place to operate during this pandemic through Governor Lamont’s own Executive Orders.  Some other states have enacted similar rules, including New York.  Thus, employers will need to ensure that they are complying with both federal and state rules.

I’ll be talking more about this on Friday, with Eric Meyer, an attorney at FisherBroyles who runs the Employer Handbook blogYou can find the registration information (free!) here.

And speaking of Executive Orders, Governor Lamont indicated on Monday that he plans to extend the emergency orders another 10 weeks (from February 9 to April 20).  So we’ll watch for that language in the upcoming days.

Suffice to say that for employers, the new Biden administration will bring changes to a wide swath of employment law policies.

Stay tuned.

 

Lately, I’ve been hearing a lot in the media say that the First Amendment doesn’t apply outside the government.

In Connecticut, that’s just not true — particularly when it comes to the private workplace.

As I’ve written about before, employees do have certain free speech rights that have been codified in state law. Conn. Gen. Stat. Section 31-51q to be exact.

But those rights are not unlimited and when such speech interferes with the working relationship at the company, it may not be protected at all.

On Monday, I’ll be discussing this on a live webinar with the Western Connecticut chapter of SHRM.

I’ll talk about the state of the current law, some common scenarios and best practices for human resources in dealing with social media, protests and the pandemic.

Hope you can join us.

One of the stories to come out of the Capitol Attack earlier this month was the strong presence of QAnon supporters.

QAnon is a wide-ranging — and wholly untrue — conspiracy theory (online cult?) that posits that President Trump has been waging a secret war against elite Satinists and pedophiles in government and elsewhere.  It started in the fall of 2017 when an anonymous user put a series of posts on the 4Chan website and claimed to have “Q”-level government clearance.

(Though conspiracies like this also started well before that — see that pizzagate story too.)

It’s nonsense, of course.

But that hasn’t stopped hundreds of thousands of people — and perhaps millions — from trafficking in part or all of the (sometimes contradictory) theories spouting from it.

Psychology Today has done a series of articles on this as have many other publications like The Atlantic but the issues such online conduct raises go far beyond the workplace.

But more and more, we’re seeing it start to infiltrate the workplace.  They are anecdotal pieces to be sure, but we’re starting to hear about employees who spout off at work about conspiracies.

And it’s not just employees, but supervisors too. Take this New York Times column from September — “Help! My Boss is a Conspiracy Theorist!”

Or this piece about employees who argue that no one is really dying from COVID-19. 

It’s a challenge for human resources and managers on top of a monumental set of other challenges.

But when those beliefs start interfering in the workplace — for example, the employee who refuses to wear masks — action is necessary. Discipline and firings are all tools in the toolbox to address it.

Unfortunately, just trying to convince employees that they are wrong hasn’t had a lot of success of late.

 

If 2020 was a year full of twists and hairpin turns, 2021 is proving to be a worthy successor — at least when it comes to paid leave.

There are a lot of news articles out there but I thought a quick recap of where we are (and where we are expecting to go) would be helpful, particularly for those in the Constitution State.

For employers in Connecticut, the state paid leave program is now alive and active.  That means that: 1) You should be registered with the state if you are among the covered group (which is nearly everyone); 2) You should be withholding .5 percent of employee’s wages so that you can distribute to the state at the end of the first quarter; 3) You should likely be reviewing your policies and procedures when it comes to paid leave.

The rest of the state paid leave program (including changes to the FMLA provisions) will go into effect January 1, 2022, but if you are not complying with the rules this far, be sure to contact your attorney to get into compliance ASAP.  The complications will only get worse quickly.

On a national level, and as I noted previously, the FFCRA leave provisions related to COVID-19 expired on December 31, 2020 leaving covered employers (those with less than 500 employees) to have to consider extending such paid leave voluntarily through the first quarter of 2021.

But last night, President-Elect Joe Biden announced a massive new stimulus package, called the American Rescue Plan, that would add paid leave benefits back and expand them (among many many other details.)

I credit Jeff Nowak, who runs the excellent FMLA Insights blog, for the initial deep dive into this but here are the highlights:

  • Under the Biden plan, the paid leave would cover nearly all employers and remove the cap of 500 employees.
  • The exemption for first responders to be excluded from the paid leave provisions would be removed.
  • The amount of leave would increase to 14 weeks in many instances.
  • The paid part of the paid leave would increase to $1400 per week which would provide for full wage replacement for workers earning up to $73,000 per year.
  • The tax credit would remain for employers with under 500 employees but larger employers would not get to take such a tax credit.

You can view the entire package here.

While Congress is now in Democrat-controlled hands, there’s little doubt that this plan is going to be subject to the usual back-and-forth of negotiation so don’t be surprised to see further changes.

But suffice to say that paid leave is going to remain a big issue for employers to have to manage for 2021…and beyond.

Why do Human Resources Professionals and Employment Law Attorneys need to worry about antitrust law?

I’ll confess it’s not a question that many of us thought we would need to answer. I didn’t take the class on antitrust law in law school.

But over the last few years, antitrust law HAS been creeping more and more into the HR area and the latest development should provide a big flashing caution sign to all employers.

First, a very brief background, in October 2016, the Department of Justice released “Antitrust Guidance for Human Resources Professionals” — an important document to caution employers that antitrust laws may be implicated for agreements by competing employers to limit or fix the terms of employment for potential hires.

For example,

“An individual likely is breaking the antitrust laws if he or she:
• agrees with individual(s) at another company about employee salary or other terms of compensation, either at a specific level or within a range (so-called wage-fixing agreements), or
• agrees with individual(s) at another company to refuse to solicit or hire that other company’s employees (so-called “no poaching” agreements).”

Despite the guidance, what was commonly understood is that such a practice could open the company up to civil liability.

But over the last week, a much greater risk was exposed — that of criminal enforcement.

Specifically, the U.S. Department of Justice said last week that a grand jury has indicted a company in Texas in its first criminal case targeting “no poaching” agreements.

It’s a major escalation in the enforcement area.  You can view the indictment here.  You can read the DOJ’s press release here.

I’ve already heard from several clients with major concerns and how to calculate risk here.

HR professionals should escalate these concerns immediately to management to figure out what exposure your company has.  Have you entered into any no-poaching agreements? Do you talk with your competitors about what the “market rate” is for certain positions? Have you talked with others about what benefit should (or should not) be offered in your industry?

It’s unclear what position President-Elect Biden will take with regard to this criminal indictment but it’s hard to see how the DOJ won’t continue to push this area of law further.

For HR professionals, be very mindful of your communications outside the company; you’re now on notice that employment law covers antitrust issues.

The news this week is both positive and negative regarding the COVID-19 virus. The testing numbers on Tuesday in Connecticut were as bad as they’ve been since Spring 2020. If the virus isn’t everywhere, it sure feels that way.

But, on the vaccine front, the news is positive. We are moving this week to starting Phase 1B which may be broader than intiially thought. And more doses are arriving every day.

For employers, there’s work to do.

Employers in some essential workplaces — including schools — will be able to register their employees. Take a look at the website.

For Phase 1a, the state has required a three step process, which is likely to be followed in Phase 1b. These steps are as follows:

Step 1: Fill Out the Employer Coordinator Survey

If you are representing your business or organization as the person enrolling your employees, then you’ll need to complete the Employer Coordinator survey here.

Please be sure that you first have a roster of eligible personnel that qualify for the vaccine.

Step 2: Register with the Vaccine Administration Management System (VAMS)

After you complete the survey in Step 1, you will receive an email from VAMS within 24-48 hours. This email will guide you through registering your business or organization so your employees can access the vaccine.

Step 3: Upload your Roster of Eligible Employees

Once you have registered in Step 2, you can upload your list of eligible employees. This will allow your employees to schedule a vaccination appointment, based on supply.

Also, as the Employer Coordinator, you will be invited to a virtual training which covers the VAMS process and details how your workforce can access the vaccine.”

Expect further details later this week but employers including schools may want to start thinking about who it may designate an employer coordinator.

I’ve previously provided additional guidance on vaccines and in early February we will be producing a full program for employers on how to manage vaccines in the workplace.

There’s a lot going on right now — both in Washington, D.C. and at home. Employers should be vigilant in ensuring the health and safety of your employees.

In my last semester in law school, we had a program where you could serve as a legal fellow in a Congressional office instead of taking classes.  I was all too happy to work a 40 hour week (instead of 12 hours of classes) and get picked for a legal fellowship in the office of Senator Joseph Lieberman – my home state senator.

To this day, it remains one of the greatest privileges of my life.

With my yellow badge at that time, before 9/11, I had some freedom to naviage the complex.  I could walk the tunnels down below between the Capitol and the Senate office buildings, pop my head into a hearing, and yes, even eat the Senate cafeteria.

But late in my semester, after I had been working on a bill for several months, the office engineered a unique event for me.

As I recall it, legal fellows like myself were not allowed on the floor of the Senate with one exception — if a Senator accompanied us, we could sit in one of the couches on the sides. No talking, no disruption.  And when the Senator left, we could stay — but only so long as you didn’t leave and try to come back.

There would be no bathroom breaks.

And so, one day, they arranged to have me get to go on the Senate floor when I bill I had been working on was going to be discussed.  It was a rather lazy afternoon; only a few Senators would wander in from time to time.  I remember Senator Bill Bradley (and former basketball star) was there – he was tall. Senator Paul Simon was there too – with his bow tie.

I knew it was probably going to be a once in a lifetime experience — to be on the floor of the most consequential legislature in the world with the United States Senators making those laws.

I was in heaven.

I think about that day from time to time. A few years back, I took my kids on a tour of the Capitol and we viewed the Senate chamber from above. I pointed to the corner where I sat and noted how the desks there had been there for generations.

And I thought about that day on Wednesday, when Congress was attacked by a mob, incited by our very own President.

The insurrection had no reverence for the place. No understanding of its importance or its fragility. And no care for its history.

Our nation is a nation of laws, laws passed by Congress. The Rule of Law has governed who we are.  It defines our success (and, when it isn’t followed, defines our failures too.)

The Rule of Law allows for disputes of employment discrimination claims to be handled in courts, not “trial by combat” as the President’s lawyer, Rudy Giuliani suggested.

It allows for employers to understand what rules they need to follow if they want to operate — and the rules that employees can expect will be followed when they are working.

And it allows for prosecution of those who have broken the law.

Businesses understand how damaging Wednesday was; as the U.S. Chamber of Commerce noted: “Small businesses, local communities, and our nation pay a steep price when demonstrations turn violent and destructive, so it is critical that these gatherings be peaceful.”

There must be consequences to those who have incited riots, those who have lied to the American people, and those who refuse to follow the Rule of Law.

It’s up to all of us — employers, employees, businesses and citizens — to say enough and demand that the Rule of Law be followed. Lies and conspiracy theories have no place in our workplaces or in civilized society.

But most of all, I hope we can bring back that feeling of reverence that many of us have had when we have visited the halls of Congress.

As President Dwight D. Eisenhower declared on Law Day in 1958: “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

With both Jon Ossoff and Raphael Warnock the likely winners of the U.S. Senate races in Georgia, a result that seemed unlikely just two months ago, Congress is suddenly back to being a major player in the next year or two.

Over the last several years, the amount of legislation coming out of Congress had slowed to a trickle; Majority Leader McConnell used his powers to block bills that might have otherwise passed.

It wasn’t that long ago that pieces of legislation like the ADA Amendments Act passed with overwhelming bi-partisan support. But that just hasn’t happened for many years now.

Instead, we’ve seen the Executive Branch issue new regulations and executive orders (including in the Obama administration) that have seemingly circumvented the legislative process (albeit within some judicially prescribed limits).

That all changes for the next two years with the U.S. Senate now in a 50/50 split (with Vice President-Elect Harris the tie-breaking vote).

I’ll leave it to the national media to break down the details, but for employers in Connecticut and New York, here are a few things to keep an eye out:

  1. The Congressional Review Act gives Congress the power to overturn regulations. Expect Congress to turn back several last-minute regulations issued by various agencies, including the Department of Labor and Department of Justice. Indeed, just last night, the New York Times reported that there was a push to eliminate some “disparate impact” discrimination cases.  A rollback seems likely.  Also likely to be rolled back? A new multi-factor test on indepedent contractors.
  2. A federal judgeship position in Connecticut has been vacant for over a year while a nomination has been pending; expect President-elect Biden to fill that roll and to have the Senate approve of that vacancy.  Will Judge Jongbloed be renominated?
  3. It’s been curious that President-Elect Biden had not yet announced the appointments for the Departments of Labor and Justice; with the nominations now likely to pass the U.S. Senate, who gets appointed to those roles? It’s quite possible we’ll see a more aggressive policy role for these agencies as well.
  4. What items of legislation we will now see? Minimum wage increases? Changes to the independent contractor rules? It’s ALL on the table now.
  5. And it should be noted that Senators Murphy and Blumenthal are likely to be in key leadership positions in the U.S. Senate as well.

In short, it’s been many years since Congress has passed legislation of consequence for employers to be on top of (pandemic-related legislation notwithstanding).  That all has the potential to change now that the U.S. Senate is flipping.

Where are the clusters of COVID-19 coming from?

That was the subject of a state report that was recently reported on by The Hartford Courant.

When a team of Connecticut officials traced 84 coronavirus clusters to their origin points, they found that the vast majority of those clusters stemmed from four places: restaurants, workplaces, homes and child care facilities.

As the Courant was quick to note, the state report has its limitations; it does not include outbreaks at health care facilities or colleges, both of which are traced by the institutions themselves.  Nor does the report include every outbreak.

Still, the report does provide some important data points to consider for strategy.

For employers, the report demonstrates the risks still present in the workplace.  Compliance with the sector rules still must be a priority, despite the fatigue that is no doubt setting in.

Second, travel is still a significant risk factor contributing to the pandemic.  For employees who travel voluntarily, employers should remind them of the travel quarantine rules still in place.  (This is particularly important for employees who live across the border and work in Connecticut!) And employers should minimize any business-related travel.

Third, encourage employees to turn on the anonymous contact tracing app on their phones.  It’s just one more tool in your toolbox.

Fourth, start talking to employees about vaccines. It’s still too early for many to think about mandates, but that time should hopefully come later this winter or early spring. (Hopefully!)

Finally, take a fresh look at the instructions you have set forth for your employees; remind them of the training that is in place and resend out the guidance from time to time.

The pandemic isn’t ending anytime soon. Indeed, January is projected to be among the toughest months we’ve had to endure.

The report demonstrates that workplaces are still at risk for spreading the coronavirus.  Only continued vigilence can help keep that risk low.