You have seen the headlines: “A Record Number of Americans are Quitting Their Jobs,” (CNN, October 12, 2021). To put it in perspective, the Job Openings and Labor Turnover Survey (JOLTS), commissioned by the Federal Bureau of Labor Statistics, found that 2.9% of Americans quit their jobs in August, up from 2.7% in July. This translates to about 4.3 million Americans who left their jobs in August, the most since the survey began in 2000. The report is generally about a month behind, so the September and October numbers won’t be out until November and December, respectively. I see those already outrageous numbers going ever higher.
The question is why? While the argument over the summer was centered on pay, benefits, and working conditions, the argument is shifting to vaccine mandates. Many workers are deciding to leave their jobs, whether it be through resignation or termination, rather than get the COVID-19 vaccine. This could not have come at a worse time for the country. First, we are in the middle of a pandemic. It’s no secret that vaccination is the way out of this pandemic, and, personally, I believe the vaccine is safe and effective. In fact, I have been vaccinated since February. But again, that is my personal feeling on the vaccine. On the other hand, I fully understand how others could be hesitant on getting the vaccine. The issue has been so politicized that even Donald Trump’s followers booed him when he told them to get vaccinated. Remember back in 2020 when then President Trump took full credit for getting the vaccine approved and in use in record time through Operation Warp Speed? Now, even his own followers are undermining what could have been a huge political win!
With that said, I believe everyone that wanted the vaccine has, for the most part, already been vaccinated. The government mandates on healthcare workers, educational employees, and Federal Government employees really have not improved the vaccination rates as expected. In fact, it looks like more people are choosing to leave their jobs or ask for accommodations rather than submit to a forced vaccination. And again, this is only my opinion, but when the new OSHA rules, forcing every private employer with more than 100 employees to require its employees to be vaccinated, becomes effective, we will see yet another jump in resignation and terminations. This is only going to worsen the persisting labor and supply chain troubles.
So, the second question is what could we have done better? There’s no question that Americans do not like being told what to do, especially during a time when trust in government is at an all-time low. In order to answer this question, we have to go back to late 2020, early 2021, when the vaccines were being rolled out. Rather than let politics and social media drive the conversation and information regarding the safety and efficacy of the vaccines, the government should have taken the bull by the horns and hired a marketing firm to control the message. Both former President Donald Trump and President Joe Biden hold the blame for the poor messaging and misinformation that persists today. Had the messaging been done right, the COVID-19 vaccine would have been less politicized, more trusted, and government mandates may not have been necessary.
Of course, in reality, that did not happen. And now we are stuck with a divided society, a labor crisis, a supply chain crisis, soaring inflation, low worker moral, a low vaccination rate, a pandemic that will not quit, and millions of Americans out of work, again. Oh, and to top it off, CNN reported this morning that up to half of the Chicago Police Department could be placed on unpaid leave over the City’s vaccine mandate. This is happening in a city where crime is out of control. Do the residents of Chicago, and other major cities, really want their police forces cut in half over their vaccination status? I know I don’t.
Lastly, we must ask ourselves, how do we fix this? That’s the big question; I don’t have a good answer, but I have my opinions. First, it is not too late to drive the vaccine narrative. Get the right information out to the public through a forum that is trusted—which is a challenge in itself—and provide all the supporting data. Social media has a role in this, and censoring people’s opinions only leads to more mistrust. This first step is going to be a huge lift, but at the same time a very delicate balancing act. Next, I think the government should not be the force driving the mandates. If private industry feels that vaccinating employees is good for business, let the businesses make that decision. Governmental mandates on anything always lead to pushback and conspiracy theories that diminish the final result. This, so far, looks like it is not going to be any different. Finally, get the vaccines in the hands of private physicians who patients trust. Under the current system, patients often are asked to go to a vaccination site, which many are not doing. Give the vaccine in the office, right then and there, immediately after the conversation on why vaccines work.
Whether these ideas will actually help or not, I just don’t know; I don’t think anyone does. The point is that the Country’s leadership needs to start thinking out of the box and coming up with solutions that actually address the problems the country is facing, regardless of the politics or power struggles involved. Leave the childish measuring contests on the playground where they belong.
Getting back to the point, yes, in my opinion, governmental vaccine mandates will only cause an exacerbation of the many problems this country faces. There has to be a better way to jump start the economy while at the same time increasing the vaccination rates.
Have you ever made a mistake at work? How about in life? I generally don’t go more than 30 minutes without doing something pretty dumb; so, if you’re anything like me, the answer to both questions is a resounding yes. If you’re human, you make mistakes. Mistakes are one of the most productive ways we learn and adapt. If you’re human and you work, you make mistakes at work.
For an employer, that mistake might be costly in a bunch of different ways. It can cost an employer a great deal of time, money, credibility, and effort to correct employee mistakes. Do you know what’s even more costly than fixing a mistake? Blaming employees for making them.
“But, Jay, what about accountability?” Accountability and blame are two different things, with accountability being the much more difficult path. Accountability means looking at the complexity of the error, not just the person who happened to make it. Accountability means looking at the many systematic interactions that lead to a fault, identifying where they can be improved, and then putting the proper structures in place to fix them. That takes A LOT of work.
Because accountability is so labor intensive, most organizations default to blame. It’s far easier to point out the person who made the mistake as the sole cause of an error than it is to zoom out and take the macro view of the system.
“Joe was the last person to use the toilet before it overflowed; it’s obviously his fault, and he’s responsible for all this damage.” Simple, no further thought required.
Joe gets reprimanded (aka “held accountable”), but do we really have accountability? No, we don’t, all we did was blame Joe, and close the book. And by blaming Joe, we closed the feedback loop that could potentially avert future errors.
Do you think Joe (or any of his co-workers) are going to be willing to speak-up next time they almost make a mistake? Nope. As a matter of fact, the next time they make a mistake, they probably consider trying to hide it so that they don’t open themselves up to blame and punishment. This is known as a “closed loop system.” A work environment where mistakes, near misses, lessons learned, and opportunities for improvement, are be buried for fear of blame and punishment. Buried for now, but destined to pop up again later, just hopefully not on Joe’s watch.
The better solution is the “open loop system.” These are the types of transparent and engaged work environments where the goal is not punishment and blame, but reduction in error and improvement of outcomes. The end goal is high reliability. Open loop systems are what turned around the safety records of industries like aviation, medicine, and nuclear power. They are known has HRO’s or High Reliability Organizations: workplaces where operations have high risk and small errors have enormous impacts.
Those fancy organizations are still run by humans, and guess what…humans make errors. How do mitigate the risk of human errors? By removing blame and taking accountability. Human error is assumed in the system, so leaders care little about WHO made the mistake, instead they care much more about WHY, the mistake happened. Leadership recognizes that it is their job to take the hard path towards accountability, instead of the easy blame game route. It is leadership’s job to ensure workflows are simplified, ergonomic, safe, redundant, and thoughtfully laid out. They empower employees to proactively report errors, near misses, or concerns.
In hospitals, the most junior nurse is empowered to stop the most senior surgeon, by “stopping the line,” “arching up a concern.” Literally, those words cut through all hierarchy and dogma and allow junior employees to address a concern on the spot. These actions are built into the culture because they are supported by policy and management systems and modeled by leaders.
Safety reviews in aviation are anonymous. Self-reporting an error is protected by “safety privilege” which cannot be used in civil, criminal, or disciplinary proceedings. Further, if you proactively report a mistake and it gets investigated by the FAA, any finding against you is deferred (as long as you haven’t used “safety privilege” in the past 5 years) and eventually redacted from your record.
I’m certain that if you pulled out your organization’s mission and vision statement, there will be some catchy passage about “accountability or transparency,” but if the description of the “closed loop system” sounds more like your daily life, then “accountability” and “transparency” are not your organizations goals.
There are lots of people, smarter than I, who have intimate knowledge of the change in management process within an HRO and how to get an organization to adopt HRO principles/culture. Matthew Syed wrote a fantastic book about the above topics called “Black Box Thinking.” If you’re interested, you can find it here. He also has a ton of resources on his website.
If your employer has rolled out fancy new surveillance systems but hasn’t offered any explanation as to how they are going to improve the system beyond “holding people accountable,” beware. They are setting up a closed loop system, and they are squandering their investment by not offering protection for mistakes.
Every employee and employer stand to benefit from adopting HRO principles and reducing blame. In the public sector, taxpayers will see greater efficiency for their dollars, and in the private sector, profits will increase.
If you feel like you’re working in the closed loop system and want some help, give Nutmeg a call. We want to help your employer adopt a culture of high reliability. It’s better for everyone.
The other day I explored whether an employer can be liable under the state or federal FMLA laws for disclosing private medical records. The simple answer is yes; however, actually and practically enforcing this protection is a little more complicated.
Here in Connecticut, private medical information provided to an employer is protected. In fact, private medical information disclosed to an employer for any reason must be kept in a file separate from the employee’s personnel file, and access must be limited. This rule applies to any private medical information disclosed to the employer for any reason, including FMLA leave.
Here’s where it gets confusing: there are two FMLA laws, the federal law and the state law. While both are similar in the benefits and protections offered to employees, the enforcement provisions are very different.
Under federal law, the disclosure of private medical information by the employer is considered an interference with the employee’s rights. While federal district courts conflict on whether a disclosure of an employee's medical information constitutes an interference claim under the FMLA, there is precedent out there to support the notion that labor regulations make it clear that confidentiality of medical information is a right provided and protected under the federal FMLA. Furthermore, in order to prevail, the employee must prove, through the preponderance of evidence, that the employer actually disclosed their private medical information. That may be difficult without a smoking gun or a credible witness.
Connecticut state law provides clearer protections and a remedy for a violation of the state FMLA law. The state FMLA law makes it very clear that “Records and documents relating to medical certifications, recertifications or medical histories of employees or employees' family members…shall be maintained as medical records….” State regulations further clarify this concept and provide a clear path for enforcement.
As with many labor related issues, all available administrative remedies must be exhausted before proceeding with a lawsuit. Complaints regarding FMLA violations must first be made to the State Department of Labor. Notwithstanding, the employee must prove that his or her private medical information was disseminated by the employer without permission. FMLA laws and protections only apply to employers, not individual employees.
That may not be much comfort to an employee who is being made fun of at work because of leaked private medical information, especially if the employee cannot prove the employer leaked the information. In that case, a hostile work environment complaint could be brough under the Connecticut Fair Employment Practices Act. The complaint could be made against the hostile employees individually or against the employer if the employer knew, or should have known, about the mocking.
If you have provided your employer with private medical information and are now facing harassment based on that information, I may be able to help. If you would like to schedule a consultation, please click here.
The question of mandatory vaccinations has been circulating around the internet, and so has a lot of misinformation. We will focus on private employers in this article, as public employment is a little more complicated. In general, the question has been, “Can a private employer require an employee to be vaccinated against Covid-19?” The simple answer: yes, a private employer can mandate a vaccination and can terminate an employee who does not want to be vaccinated with few exceptions.
The problem is there are many different opinions on whether this is true or not. A simple Google search will bring you to documents and articles from the media and the legal and medical communities. Some say yes, some say no. In the end, it all comes down to interpretation of 21 U.S.C. § 360bbb-3. This is the federal law that allows for the Emergency Use Authorization (EUA) of new vaccines. The language is a bit confusing, stating that people must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” This has been interpreted by some publications as meaning employees “must have the option to accept or refuse.” Yet, other publications have said there is nothing in the law preventing the mandating of vaccinations. So what’s the right answer?
At least one Federal Court in TX has very pointedly answered this question. In an opinion issued by United States District Judge Lynn N. Hughes of the Southern District of Texas, it is made very clear that a private employer can mandate its employees to receive the Covid-19 vaccine even though it has been approved under an EUA and is not fully approved by the Food and Drug Administration (FDA).
The facts of Jennifer Bridges, et al. v. Houston Methodist Hospital, et al. are simple. Jennifer Bridges and other members of the Hospital’s staff did not want to get the Covid-19 vaccine, while the hospital made it a mandatory part of employment. While the initial reasons cited in the complaint were over the top, Judge Hughes was not moved. In fact, Bridges went as far as to compare the administration of vaccines under an EUA to the experiments Nazi doctors performed on concentration camp prisoners during WWII, calling it a violation of the Nuremberg Code. That is just plain crazy.
In the end, Judge Hughes held that a private employer may compel its employees to be vaccinated, even though the Covid-19 vaccines are not fully approved by the FDA. This is in line with the opinions of the EEOC and Fed OSHA. EEOC feels that requiring an employee to be vaccinated is not discriminatory, as long as it does not infringe other rights based on a protected class. Similarly, Fed OSHA does not believe it’s a workplace hazard to require employee vaccination, although employers will be required to record any adverse effects in an “OSHA 300 log” that lead to the employee missing more than one day of work, require medical treatment beyond first aid, or (iii) result in restricted work activity or transfer to another assignment.
Furthermore, employees with closely held religious beliefs or medical conditions preventing them from being vaccinated may be exempt, as long as any reasonable accommodations do not cause undue hardship to the employer. However, as of the start of the 2022-2023 school year, Connecticut will end religious exemptions.
Judge Hughes was very clear. The law does not prohibit private employers from requiring vaccinations. Moreover, the law does not prohibit the termination of employees who do not receive a vaccination and do not qualify for an exemption. Now, this is only the first decision released pertaining to this topic. I’m sure there are many more to come. Nevertheless, I believe this will be the road map going forward.
This is a confusing and controversial topic. If you have questions or concerns about an employer mandated vaccine policy, please give us call. We can help you understand the policy, the consequences, and help you navigate any reasonable exceptions.
On June 9, 2021, the Connecticut State Senate passed SB No. 658. This clears the bill for the Governor’s signature, which will officially make it law. This will be a huge win for Connecticut workers laid off during the pandemic.
As we all know, many workers were laid off due to the Coronavirus pandemic starting in March of 2020. At the height of the pandemic, the unemployment rate in Connecticut was somewhere around 8.3%. That is unprecedented. Many workers, particularly in the service industry, lost their jobs. While there was state and federal aid to ease the burden, much of that has expired. With the economy opening back up, many workers are worried that they will not be rehired when business begin to get back to full staff. Worry no longer.
SB No. 658 states that anyone laid off during the pandemic must be recalled when their old job or a similar job, becomes available. Of course, there are limitations. This bill only covers workers who were laid off from March 10, 2020, through May 1, 2021. The bill requires employers that laid off employees during the pandemic, and are now looking to expand their workforce, to notify all laid off employees of job openings for jobs they are qualified for. This includes the jobs the employee had, similar jobs that they are able to perform, and jobs the employee can be trained for in the same way a new employee would have been trained. If two laid off employees are both qualified for a single opening, the employee with the most seniority will have preference.
Once a laid off employee is called back, he or she will have ten days to respond. If the employee declines recall because of a pandemic related health or family concern, the job will be offered to the next employee in line, but their position and future recall rights will not be forfeited. If an employer declines to recall an employee on the grounds of lack of qualifications, the employer must provide the employee with written notice identifying the new employee hired in the laid off employee’s place, the reasons for not recalling the laid off employee, and all the demographics information for the new employee compared to the laid off employee. This provision is clearly designed to prevent discrimination.
The bill also includes some other protections that private sector employees, who are not unionized, do not normally enjoy. First, this bill provides “just cause” protections for recalled employees for the first thirty days. This means that recalled employees actually have to do something wrong before they can be fired during the first thirty days of recall employment. Second, an employer cannot terminate, refuse to rehire, or take any other adverse actions against an employee for enforcing his or her rights under this bill. Third, any employer that takes adverse actions against a laid off employee will provide that employee with a detailed written statement of the reasons for the adverse action. This statement shall not only contain the reasons for the adverse action, but also the contain all facts known to the employer that contradict the reason for the adverse employment action. Lastly, this bill creates a new cause of action; meaning, a laid off employee who feels they were not treated fairly under this bill will be able to file a lawsuit in State Court. If the laid off employee prevails, the court may enjoin the employer from further violations, order reinstatement or rehire, and award backpay and other equitable relief. If the court finds the employer acted with malice or reckless indifference, compensatory and punitive damages can be awarded. Finally, if the court finds the employer violated section (h), meaning the employer took adverse action against an employee for enforcing his or rights afforded by the bill, the court can award treble (triple) damages.
Last but not least, this bill applies to all Connecticut workers laid off between March 10, 2020, and May 1, 2021, regardless of their union status. However, unionized workers protected by a collective bargaining agreement that offers more protections or has similar recall language can defer to the union contract, but the protections provided in this bill still apply.
This bill not only provides guarantees for laid off workers as the economy opens up, but it also provides extensive protections. Many of these protections do not exists anywhere else in private sector employment, including union contracts. With that said, SB No. 658 is not yet law. It can become a law in one of two ways. First, the Governor can sign the bill. Second, the Governor can do nothing for fifteen days, after which the bill becomes law. However, the Governor may veto the bill, effectively blocking it from becoming law. I do not see that happening. Hopefully, this bill will be used as a roadmap for future employee protections.
If you are a laid off worker and are concerned about recall or if your job has been filled with another employee, give us a call. We will evaluate your claim in light of this bill once it becomes law.
Every police officer in the state has the power to commit someone who is believed to be a danger to themselves or others. That authority comes from Connecticut General Statute §17a-503(a). The statue reads, in part, “Any police officer who has reasonable cause to believe that a person has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, and in need of immediate care and treatment, may take such person into custody and take or cause such person to be taken to a general hospital for emergency examination under this section. The officer shall execute a written request for emergency examination detailing the circumstances under which the person was taken into custody, and such request shall be left with the facility. The person shall be examined within twenty-four hours and shall not be held for more than seventy-two hours….”
We all know how this works. The police receive a call, and after an investigation, if the officer believes the person to be a danger to themself or others, the officer fills out a form, calls an ambulance, and the person is transported to the hospital for a psychiatric evaluation. This statute, and procedure, is used for a number of occasions including someone who is believed to be suicidal. This is generally not challenged, although it is a seizure under the Fourth Amendment, because no charges are filed and this is seen as a protective act, rather than punishment. Under the same theory, when the police believe someone is in danger of using a firearm against themselves, they generally seize the firearm or firearms, for safekeeping. This is where there might be an issue.
The United States Supreme Court recently released an opinion that clarifies when and how an officer seizes firearms after a committal. The facts of Caniglia v. Strom are typical. Mr. and Mrs. Caniglia got into an argument, after which Mr. Caniglia put a handgun on the table and asked his wife to shoot him and get it over with. Obviously she did not shoot him; rather, she left the house and spent the night at a hotel. When she could not get in touch with her husband the next morning, she called the police. The police contacted Mr. Caniglia that morning and decided to have him evaluated at a hospital. Mr. Caniglia agreed to go to the hospital peacefully under the condition that the police did not seize his guns. Once Mr. Caniglia left the scene, the police seized his firearms. Now, to be fair, that was the right thing to do. You certainly would not want Mr. Caniglia coming back from the hospital to a house full of guns. The problem is with the way the guns were seized.
Mr. Caniglia upset that the police seized his firearms, brough a §1983 civil rights action against the police alleging his Fourth Amendment rights against unreasonable search and seizure were violated. Initially, the Federal District Court dismissed the suit citing the “community caretaker” exception to the search warrant requirement. After appeal, the United States Supreme Court decided to hear the case. The Court held that the community caretaker function, and exception, does not justify warrantless searches of a person’s home. Justice Thomas explained, “ “The very core of the Fourth Amendment’s guarantee is the right of a person to retreat into his home and ‘there be free from unreasonable governmental intrusions.’”
So now what? The answer is not to avoid seizing firearms, but to use the tools you have at your disposal. Your best bet is to secure the residence and apply for a firearms risk warrant. If you are not familiar with a firearms risk warrant, please review Connecticut General Statute §29-38c. While this may be a little more work, it protects you from liability and ensures a hearing before firearms are released back to the person. This protects both you and the owner of the firearms.
If you have any questions about how to use a firearms risk warrant, or your administration is giving you a hard time about the added workload, please give us a call. We can answer all your questions.
"Always a beautiful answer who asks a more beautiful question." - e. e. cummings
Nutmeg hosted a webinar recently which focused on helping folks improve as union leaders. Attorney Eric Brown highlighted the five most common problems union leaders face; the 5th problem he emphasized had to do with listening and questioning. I won’t review the webinar in depth now, but if you’re interested, you can watch a recording here.
Eric’s talk got me thinking all about questioning and the innovative power of inquiry. I’ve personally been off the research deep end trying to discover how to improve my ability to ask great questions and how I can do it without being annoying (child repeatedly asking “Why”) or too philosophical (“what is the meaning of life”)
On my journey I found the book A More Beautiful Question written by Warren Berger in 2014. I’m not even a quarter of the way through it yet, but every passage has resonated strongly with me, especially when viewed through the lens of public sector employees and the challenges they face. Without diving too deep into the details of the book (you can find the book here or here and an audiobook here), Berger does a fantastic job of highlighting how much of the modern day work environment actively discourages questioning - in some cases it can lead to formal discipline (we’ve got your back if that ever happens).
But questioning is the genesis of any innovation, improvement, or change. If we want to improve our lives and the lives of our members, we MUST be asking good questions. The past year has accelerated unprecedented change onto all of us. As the velocity of that change begins to slow and some “normalcy” returns, I propose that our questioning should begin to pick up the pace.
I don’t propose questioning past decisions, armed now with the benefit of hindsight. We can’t change the past, and it won’t win you any points with your employer. I do propose asking the beautiful questions that will shape the future of your work landscape:
If you get the answer, “Because we’ve always done it that way,” you’re on the right track. Keep asking questions and be proactive in hunting for solutions. In the book, Berger offers a framework of “Why?,” “What if?,” and “How?” for developing big, beautiful questions. He makes it clear that it is not a formula for perfect questions (no such thing exists), but it is a good starting point. When things are complex, approaching them systematically can be extremely helpful.
Taking ownership of the future starts with questioning the status quo, even if that questioning makes people uncomfortable. If you need help, guidance, or additional support, we are here to help.
On May 13, 2021, the Centers for Disease Control and Prevention (CDC) updated the masking guidelines. Many thought the new guidance was confusing - it’s actually not. The guidelines themselves are very simple. If you are fully vaccinated, meaning it has been two weeks since your second Pfizer or Moderna vaccine, or two weeks after your one dose of the Johnson and Johnson vaccine, you no longer have to wear a mask inside or outside, unless required by law. To put it simply, the CDC is saying fully vaccinated people no longer have to wear a mask except for certain circumstances. There is no confusion there. But this is only guidance, not policy.
The confusion comes with the practicality of this guidance and how the general population and businesses will handle the change. Here in Connecticut, Governor Lamont has decided to suspend the mask requirements indoors and outdoors for fully vaccinated people, starting May 19, 2021. This has raised several questions. First, how do we know who is vaccinated and who is not? For the most part, people are expected to work on the honor system. If you are not vaccinated, you must be wearing a mask - it benefits you and others who are not vaccinated. The second question that has been raised is: can a business owner ask me if I am vaccinated? Doesn’t that violate HIPAA?
Yes, a business owner or employee can ask you about your vaccination status, and no, that does not violate HIPAA. First of all, business owners are well within their rights to establish policies to make their businesses safer, including requiring the wearing of masks by everyone, even if you are vaccinated. The new CDC guidance does not force a business owner to end masking, nor does the Governor’s latest masking order.
If a business owner decides to ask customers for their vaccination status, or even ask for proof, they can. You are under no obligation to answer or prove your vaccination status, but you will be treated as unvaccinated and will still be required to wear a mask. Next, HIPAA only applies to healthcare related businesses; thus, most business will not violate HIPAA by simply asking you for your vaccination status.
In the end, businesses and the vaccinated general population will now have the choice to mask or not to mask. Businesses are free to allow unvaccinated people to go maskless, or they are free to require masking for all customers. Finally, vaccinated people can still choose to wear a mask if they like. The mask has become part of our culture over the last fifteen months, and many may not be quite ready to sideline it just yet.
While the practical application of the CDC’s new masking guidance seems confusing, it is really all about choice. You can choose to get vaccinated and take the mask off. You can also choose to keep wearing the mask of you’d like. Businesses can choose to allow customers to go maskless or continue to require a mask. Notwithstanding, if you have not gotten the vaccine, you do not have a choice. The rule is that you must still mask up.
If you have questions about workplace masking polices, please give us a call. We can help you navigate through the confusion and uncertainty.
There has been some talk in the news lately about a strike involving unionized healthcare workers, specifically healthcare workers employed at state-run nursing and group homes. The reasons cited range from low wages, poor benefits, and working conditions to lack of adherence to coronavirus standards. The union states twenty-four employees have died due to the virus. Some of the union’s more disturbing claims relate to the lack of personal protective equipment, deficient testing programs, and staff shortages. While Governor Lamont has offered $280 million in federal funds, it is going to be interesting to see how this plays out.
I’m sure everyone has heard the term “strike” before and generally knows what it means. However, there are still some misnomers out there, and if you’ve never been involved in a strike before, you may not know how it actually works. Hopefully, this article will clear up any questions.
A union or labor strike occurs when unionized workers collectively agree to stop working in order to gain a concession from an employer. The key term in this definition is “collectively.” A strike and a related picket are both concerted activities protected by the National Labor Relations Act. In order for the strike to be protected, it has to be a “concerted activity,” meaning it has to be done collectively by a majority of the union members and be endorsed by the union. A single worker cannot decide to stay home from work for a week and call it a strike. That is not a collective activity and, therefore, is not protected - you will be fired for this.
Typically, strikes arise out of a breakdown in contract negotiations, grievances that are not addressed, or a unilateral change in working conditions. Strikes can also arise from allegations of unsafe working conditions or unfair labor practices that violate state and federal labor laws. As I said earlier, workers that strike are protected and generally will not be fired for going on strike. However, the company is not required to pay an employee while on strike, and striking employees are not eligible for unemployment.
A strike is a union tactic designed to force the company into meeting its demands. The idea is that the company cannot function without workers; thus, management is pressured to cave. Yet the union is not the only entity to have some leverage. The company can also engage in a protected, concerted activity called a “lockout.” This is where the company locks out or prevents the union workers from coming to work—without pay and benefits, of course—and hires replacement workers. This tactic is designed to get the union to cave and meet management’s demands. Again, this is also a protected, concerted activity that must be endorsed by the company management. A disgruntled company supervisor cannot lock out a certain employee or shift on their own. That would be illegal, and the supervisor would face discipline, and the company could be liable for damages.
With that said, public sector employees in Connecticut cannot strike. The Municipal Employees Relations Act, the Teachers Negotiations Act, and the State Employees Relations Act all prohibit public sector workers from striking.
In the end, strikes can be dicey. There are rules that need to be followed and contracts to be reviewed before a strike can be planned. Furthermore, the underlying dispute may not be resolved by striking. If you are in a private sector union and are thinking of striking, please consult with an attorney experienced in these matters. If you have questions on strikes or need some advice on whether a strike is right for your union, give us a call. We are here to help.
President Biden’s $2.5 trillion infrastructure plan has certainly caused some stir in the past few weeks. The plan is unprecedented in terms of spending and drastically expands the definition of infrastructure. That could be good or bad, depending on your political leanings.
However, I would like to talk about the expanded union protections built into the proposal. The most current version of the American Jobs Plan includes the Protecting the Right to Organize (PRO) Act. According to the Administration, "President Biden is calling on Congress to update the social contract that provides workers with a fair shot to get ahead, overcome racial and other inequalities that have been barriers for too many Americans, expand the middle class and strengthen communities." Furthermore, "He is calling on Congress to ensure all workers have a free and fair choice to join a union by passing the [PRO] Act and guarantee union and bargaining right for service workers."
Expanded union protections include giving the National Labor Relations Board the power to fine employers who violate workers’ rights, increased protections for independent contractors, easing restrictions on strikes, and weakening “right to work” laws. Unions in general can help workers increase pay, increase benefits, and improve working conditions. Proponents of union rights are fawning over the bill, while opponents claim the bill could reduce jobs and harm workers who do not wish to pay unions dues.
The reality of it is that union membership has many benefits, including the right to bargain collectively. The process of collective bargaining, otherwise called contract negations, gives unionized workers more power to set and standardize salary, benefits, working conditions, disciplinary procedure, grievance procedures, and other protections, such as “just cause,” that would otherwise be unavailable to the individual worker. Overall, union membership is an advantage to workers all across the country. Yes, you have to pay dues to be a member. However, the benefits far outweigh the cost, making it a very good investment.
Unions have helped many industries, such as construction, manufacturing, transportation, and public safety, become some of the most sought-after jobs with high salaries, good benefits, and high levels of employee protection. According to the Nation Bureau of Labor Statistics, there were more than 14.3 million unionized workers in the United States in 2020. While that number is somewhat lower than the number in 2019, it was greatly disproportionate to the number of non-unionized workers who lost their job due to the Covid-19 pandemic. Unionized workers decreased by 2.2 percent from 2019-2020. Non-unionized workers decreased 6.6 percent from 2019-2020. That alone shows how powerful unionized workers can be and how being a member of a union can help keep you employed, even during a crisis. Moreover, if you are laid off as a union worker, there are protections in place to reduce the impact and rules that must be followed before a layoff can even happen. Non-unionized employees enjoy no such protections.
While some may not agree, union membership is good for most employees. President Biden’s infrastructure plan, if passed as is, will expand union rights for everyone. In my opinion, this is a good thing. If you are looking to unionize, please give us a call. We would be happy to help you get the process started, and we would love to represent you.