Understanding Your Rights In The Workplace

Ruth Krishnan: I’m here with Ami Sanghvi, a close friend and client of mine who is an employment attorney. I wanted to bring her on today because I’ve noticed that unfortunately, a lot of people out there are continuing to lose their jobs. As an employer, this is something I think about a lot in terms of wanting to keep my staff on, take care of them, and thinking through things in proper legal ways so that I’m also protected.

Ami has a background in protecting people of all different backgrounds, ranging from homeless people in New York to employees. She’s going to talk to us a bit today about the CARES Act and how that can help anyone who has been laid off. We’re also going to hear what she’s been noticing in her work as a result of COVID-19 and this massive unemployment environment that we’re in. So with that, we’ll get started!

Ami Sanghvi: Thank you, Ruth, for having me on to have this conversation. I appreciate the thoughtfulness you bring to this from both the perspective of an employer and someone who’s living through this very intense and strange moment in time.

Let’s begin with the CARES Act. Most people know that very early in the pandemic Congress passed two very big pieces of legislation. One is called the FFCRA (this is like alphabet soup for even lawyers), which is the Families First Coronavirus Response Act. The act provides for emergency paid sick days, as well as paid family leave, which is an expansion to the FMLA.
This covers one portion of employees who need to take some time off from work for a COVID-19 related reason.

The CARES Act did a few different things, but it primarily created or modified three unemployment insurance programs. The way I like to think about it is that the pandemic unemployment assistance program expanded, extended, and increased coverage. What that really means is it is drawing in people who are unemployed and underemployed because of COVID-19, but not eligible for traditional unemployment insurance. This includes people who don’t have a sufficient work history from the last 18 months to qualify for standard UI benefits, and they have become unemployed or underemployed because of COVID-19. A huge beneficiary of this are gig workers and people who are considered independent contractors who would not be eligible under traditional unemployment insurance programs.

Ruth Krishnan: It’s a new thing for the real estate industry because we’re 1099, and for the first time real estate agents have access to unemployment. With regards to this, I wonder if a real estate agent files for unemployment, and then they sell a house, does that mean they can no longer receive benefits? It’s obvious when you’re working versus not in our industry. I think that’s one of the reasons why 1099s have been excluded — because we’re always working. We’re just not always getting paid.

Ami Sanghvi: One of the things the law was careful to do is to say that this is extending to people who were unemployed as well as under-employed. This notion of under-employed includes a reduction of hours. I haven’t looked at it specifically in terms of sales, but my guess is that you would be able to say something like, “I have experienced some level of under-employment as a result of not having as much work as I previously did; therefore, I can claim under the PUA for benefits.” That’s a big distinction that expands coverage to people who weren’t previously eligible.

Ruth Krishnan: One of the things a lot of business owners are complaining about (not so much in this area but in the Midwest where I have family who own a restaurant and other businesses) is that it seems some of the unintended consequences of this are that the unemployment benefits are so high for blue collar workers, that now they don’t want to go back to work at their previous jobs because they’re actually collecting more in unemployment benefits than they were receiving in compensation while working. So it seems like there was something left off there. Have you heard any talk about revising that or will it just stay that way?

Ami Sanghvi: I think there are two responses to that. One refers to that third point of “increase,” when I talked about the expansion, the extension, and the increase of coverage. The pandemic unemployment compensation (the PUC program) basically states that if you have regular unemployment insurance, if you are eligible for that expanded PUA claim, or your extended benefits through the extension, then between March 29th and July 25th, you should check that. I think certain states changed that end date a little bit, but you’ll receive an additional $600 in federal stimulus funds.

Generally, unemployment insurance is a partnership between the federal and the state government. The state government will decide what your weekly benefit amount is based on your base period, and they do that calculation. For this window of time, you’re going to receive $600 of federal money to supplement what you’re receiving in unemployment insurance. But it’s limited as of right now. Although the news is changing and I try to stay on top of it, I don’t know of any current bills that are going through Congress right now that would extend that date beyond July 25th. So that’s one thing — it’s not forever, so in terms of a revision, there’s an end date.

The second piece of it is that you still need to qualify or certify for unemployment insurance. If I’m not mistaken, one of the certification questions (at least in California) every two weeks is are you ready, willing, and able to go back to work and have you refused an offer of employment?

While I appreciate and have read the news articles about this tension between “I’m getting more staying home than I would going back to work and exposing myself to a risk,” the truth is that it’s number one – time limited. And number two – I query how sound that analysis would be, given the requirement that states will often have people not reject an offer of employment if they’ve offered it.

Ruth Krishnan: It seems like employers should be able to contact someone to say “these are the people who I’ve offered work to that have returned, and these are the people that have refused.” Then the state would look into that further and perhaps disqualify it because it seems like that’s not meeting what was intended to happen there.

You bring up a good point when you mention that some of the reasons people don’t want to return to work is because they don’t feel safe. Do people have to return to work if they’re offered employment, if that’s the case? What should employers be thinking about in terms of their own risk for exposing their employees to a dangerous environment?

Ami Sanghvi: I’ll give you a very typical lawyer answer, which is, it depends. It’s a very complicated question. If I were to answer it very briefly, I’d say that in general, if you have a job and you’ve been working at home for some period of time because of the quarantine orders in your locality or state, and those have been lifted and you have been asked to return to work, it doesn’t work to simply say, “nope, I don’t want to, I’m not comfortable. I’m not coming back.”
But there is more of a process that needs to happen. And this is really where employees and employers should, could, and really must work together to have interactive processes and a conversation about what should happen. There are questions about why doesn’t the person feel safe? Is the employer actually doing what they need to do to provide enough protective gear? Are they providing enough space between people? What are the employee’s concerns regarding safety? There’s a whole federal agency that’s supposed to be dedicated to ensuring workers’ safety.

Ruth Krishnan: What if all safety regulations are in place, but I have a preexisting condition or I’m older? So I just feel more nervous about my exposure and I’d rather continue the duties as best I can from home? I know that a lot of the people who you advocate for (and thank you for doing that) are women. So to add to the further complication of this example scenario, let’s say I also have kids at home. So maybe my performance is actually being altered because I’m trying to take care of my kids while at the same time trying to do my job, but I don’t want to go into the office. And also, maybe I can’t even afford childcare. What then?

Ami Sanghvi: A couple of things. If you have a concern about needing to take care of somebody at home, the FFCRA provides for emergency paid sick days for employees. That basically entitles a full-time employee to two weeks of paid sick leave.

Ruth Krishnan: Right, but we had two months of kids at home with no school and my guess is that we probably have lots more of that coming.

Ami Sanghvi: My best piece of advice is some of this has to be done, but it needs to be done in a fair and consistent manner. What I would be cautious about are employers making assumptions about whose work might be affected more than others. If you have a woman on your team, as well as a man on your team, and they both have children at home, but you’re going to be a little bit harsher on the woman’s performance than you are on the man’s performance because of some underlying gender stereotyping, that’s something that would implicate Title VII, which is a protection for people and prevents discrimination on the basis of sex. That’s something that employers need to be thoughtful about. Am I evaluating people on the basis of what they’re producing in a way that is equal across the board and not bringing in an implicit or explicit bias around who’s doing what?

If you’re allowing your workers to work remotely, and you’re judging what product they’re providing, you want to make sure that there are ways to do that that’s fair and not benefiting one class of workers over another. That’s one issue.

In terms of, “I can’t go back in,” “I’m not eligible for any additional leave or sick leave,” whatever that might be, the question is then, does the employer allow other people to work from home for different reasons? Again, you can’t say you can’t work from home because you have childcare needs, while another person is going to work from home because they have some other reason for it. You want to be able to apply some of those policies across the board and evenly, while being aware of the protections in the law for family leave and paid sick leave for individuals who have to stay home to care for a child.

It’s also important to make certain that that conversation is happening. So for the person who has a preexisting condition or is older, an employer should see if there is a way to provide that individual with a reasonable accommodation. One of the main things to remember is despite COVID-19, despite the economic downturn, the laws are the laws and they have not changed. The protections for employees remain. To the extent that an employee is seeking some sort of reasonable accommodation under the ADA for a condition, then they have to go through that process with their employer. Just the same as if they were, pre COVID-19, undergoing some treatment that required them to stay home or they couldn’t commute, or they needed to work from home for a variety of reasons. That same process exists. Those same laws protect individuals, and employers should continue to employ some of those practices now.

A lot of this landscape is changing a lot. The EEOC, which is the federal agency charged with protecting employees and enforcing the country’s federal anti-discrimination laws, and where I worked for the last 10 years, has been putting out guidance for how employers can ask certain questions during this period of time. Normally, you wouldn’t be able to take someone’s temperature when they returned to work. That would be an impermissible medical inquiry. You also couldn’t ask somebody if they’ve had a COVID-19 test. Whereas right now, in this moment in time, at least during the existence of this pandemic, that is something that employers are permitted to do. And that guidance is changing pretty frequently. For example, a couple days prior to this meeting, the EEOC, who had previously said that you can administer a COVID-19 test to employees or require that they have one before they enter the workplace, clarified that an employer cannot require an antibody test, because that would constitute a medical examination under the ADA. A lot of this is based on changing guidelines or new guidelines that are coming out from the CDC, so a lot of that landscape is certainly changing.

I may be being a bit too hopeful in saying this, but I think the idea is if people are working with their employers and employers are looking at this from a perspective of trying to ensure that they’re doing right by their employees, there are ways to navigate a somewhat complicated situation. But the very, very long answer to your question is that there really is no clear distinction as to what you can and/or cannot do as an employer or employee. If you feel like you can’t go to work because it’s not safe, we have to consider the safety considerations. If you feel like you can’t go to work because it’s not safe because of your preexisting conditions, then you might need to seek something from a doctor to be able to request that reasonable accommodation, to work from home under the ADA. And if it’s, “I can’t go to work because I’ve got childcare,” there might be some existing protections in the law that allow you to stay at home for some period of time and still get paid, or be at home and not be paid, but at least have your job protected for a period of time.

Ruth Krishnan: Do you think if employers are doing everything that has been requested of them in terms of providing a safe work environment and someone gets sick at work, is there a claim?

Ami Sanghvi: That’s a tough question and I have the same answer — it depends. I really think that it will depend on the facts of that specific scenario. In your hypothetical, the employer has taken every possible precaution and there’s no way to trace it back to the employer. The other harder part of that question is also that, as I understand it, it’s very hard to be able to trace back to where exactly you picked up the virus.

Ruth Krishnan: Unless every person on my team suddenly is sick, right? In that case, there would seem to be a common denominator there.

Ami Sanghvi: Right.

Ruth Krishnan: I read about a girl who was in a bar in Florida where all 15 of her friends got sick. I was like, whoa, okay. They were all in one bar. So it’s pretty obvious where it came from.

Ami Sanghvi: Sure. But then, in terms of what that fight will look like, I’m sure there’s going to be an argument about were they six feet apart? Were there enough precautions there for them to be six feet apart? And by choosing to go into the bar and be with a group of 15, were they already violating an order in terms of how many people you can socially gather with? And was the bar violating an order?

Ruth Krishnan: Are you seeing an uptick in discrimination in terms of which employees employers are letting go? Are they cutting the same kind of people across the board? Or are you seeing an uptick?

Ami Sanghvi: Yes. One of the biggest things I have been watching and noticing, given my own personal interest as well as what I do for a living, is women being really hit hard by COVID-19 in so many different ways. You have women working at high rates in many of these essential occupations. Women make up something like 75% of hospital workers, 93% of childcare workers, and 63% of fast food and counter workers. That means they’re getting hit at work and getting hit in terms of the childcare needs that are happening in their own communities, since their children’s schools are closed. I think I read somewhere that mothers with children under the age of 18, or something like 16 or 17% of all workers, make up 35% of registered nurses, 28% of childcare workers. Those categories of occupations that are getting hit pretty hard right now are disproportionately women, mothers, and particularly women of color.

You see this play out in many different ways. In terms of what I’m seeing in our practice, it’s hard to go from having no cases involving pregnant women to all of a sudden having four where there’s a potential pregnancy discrimination claim. That causes me concern. I know there are lay-offs and I know there are lots of reasons for them, but there’s definitely an uptick. And while I haven’t had any cases relating to this, there have been reports of an uptick in harassment at work on the basis of national origin, that started at the beginning of the pandemic. There was an uptick in national origin and racial discrimination experienced by Asian Americans, given some of the rhetoric around the virus. I’m sure there are going to be cases involving the ADEA, which protects older workers and how workplaces are making decisions on who to keep, who not to keep, who will get accommodations, who won’t, etc.

There are biases, both implicit and explicit in the workplace that are going to play out as employers struggle with the economics of the situation, the human component of it, and people’s reactions to everything.

Ruth Krishnan: My next question is a bit of a sensitive topic, but I think it’s an important one for people to understand because it seems like you largely serve disadvantaged people. How do the economics work in your profession? Do you work on contingency and then the employer covers your fee in the end? Or does someone need to be able to afford really good legal counsel in order to get representation?

Ami Sanghvi: Every practice is going to be different. There is a host of really fantastic service providers that aren’t a completely private model. Like I said, I worked for 10 years at the EEOC and people would file charges there, and then we would legally litigate a small percentage of those cases, but we would still take them to court on behalf of an aggrieved employee.

There are places, like Legal Aid At Work, that do fantastic work in northern California that would be able to assist people. Even in our own practice, my law partner and I are pretty passionate advocates for employee rights. We’re running a practice, so we have to feed ourselves, but at the same rate, there is something that motivates us to ensure that there is a way to guarantee people have the rights they need. So we do our work in a variety of ways. We do contingency work. We sometimes do hourly work if that’s the better model for a situation. And oftentimes, we’ll have some sort of hourly cap on our work and then move to a contingency model so that there is a balance in the way the person who is coming to us can make the ultimate decision about what they want to do — whether they want to accept that severance package as offered to them, or if they want to take more.

We try really hard within our own practice to make sure our paramount concern is assisting the employee and getting to the goal they want to get to. Sometimes that means that a contingency is the best way to go. And it’s generally a contingency of whatever they are achieving out of that resolution. That resolution sometimes happens quickly, and sometimes that resolution takes a long time, or it comes after litigation, or it comes down the road. It’s a mixed model of how we approach things, but there are plenty of organizations out there that do fantastic work for all people within a certain income level. Our firm would never say we only serve a certain population of people, or we only serve high-wage earners. We serve the gamut. For example, the Time’s Up Legal Defense Fund through the National Women’s Law Center runs a legal referral network, and I take referrals from there as well. It’s important to me that we’re providing good work for employees and trying to get fair resolutions for them at the end of the day.

Ruth Krishnan: Awesome! I love that about you. It’s so important that we have people doing the work you’re doing.

Ami Sanghvi: Thank you.

Ruth Krishnan: I think I covered most of what I have here. What did I forget? What should I be asking you?

Ami Sanghvi: I think we did a pretty good job of getting through stuff. I certainly appreciate this conversation because although it’s easy for an employer to say, “ I don’t want to talk to a plaintiff-side employee lawyer about these tricky issues because that could get me in trouble,” these are the conversations that are worth having. They’re important because most people are trying to do the right thing, and the right thing is sometimes complicated and nuanced, and I understand that, but as long as these conversations are happening and we’re trying to achieve that, that is an important goal for everybody to have in this moment, and at all times.

Ruth Krishnan: Absolutely. I will include your contact information here so that people can contact you if they feel like they’ve been discriminated against in any way.

If you think that you’re about to get fired or if you did get fired and you feel like something was off or unfair, Ami is happy to consult with you and either help you with your needs or point you in the right direction, if she can’t help you.

Thank you so much for your time today, Ami. I really appreciate it.

Ami Sanghvi: Absolutely, thank you Ruth, it was good seeing you.