As I type at 6:30 a.m. on the morning after, we still don’t know who won the presidency. There are nine states and 87 electoral votes undecided, and few of those states (Arizona, Wisconsin, Michigan, Georgia, and Pennsylvania) will ultimately determine the winner.
Yet, in the wee hours of the morning, Donald Trump took to a White House podium and stated his clear and unambiguous intent to go to the Supreme Court to stop the counting of outstanding votes, which he says is “a fraud on the American public.”
Let me make this as clear as possible. This is not about left/right, blue/ ed, or Biden/Trump. This is about the legitimacy and future of our democracy.
We need to make sure every vote that has been lawfully cast is counted. Otherwise, we will never know who legitimately wins this election. Whether it’s a Biden win or a Trump win, we need to know who actually wins. Otherwise, why have an election at all? If we can’t trust the results of our election as the will of our nation, why bother?
If you care about the future of our democracy and the future of our country, then we must count every single vote. Period. The fraud here isn’t in uncounted votes. The fraud is in not counting them at all and declaring a winner by disenfranchising millions of voters.
On Sept. 29, a mere 16 miles from my home, President Trump and Vice President Biden will step in front of the cameras to make their respective cases to America in the first of three debates. Eight years ago, some of my blogging friends and I got together to propose the debate questions we’d ask each of the candidates if we had the power to do so. Given the current state of our Republic and what’s at stake when we vote, we thought it would be a good idea to revisit this collective idea and do it again.
Here are my “one questions” for President Trump and Vice President Biden.
For President Trump
Last week, you said the following during a White House press briefing, about your intent to uphold a peaceful transfer of power following the election: “[G]et rid of the ballots and you’ll have a very ⌠there won’t be a transfer, frankly. There’ll be a continuation.” Our democracyâin fact, any democracyâis premised on the people choosing their elected representatives and the loser of an election ceding and allowing for a peaceful transition of power. On the contrary, a “continuation” of a regime without counting ballots is the hallmark of a dictatorship, not a democracy. Mr. President, this evening will you commit, without exception, that come January 20, 2021, that if Congress declares Joe Biden, and not you, the winner of the 2020 Presidential election, you will step aside and allow for the peaceful transition of power as has occurred every four years since 1793? And if not, why not?
For Vice President Biden
To date, COVID-19 has killed more than 200,000 Americans. If the numbers and trends merey hold steady, by Inauguration Day that number will increase by more than another 100,000. Some models project the death toll will be even higher. We’d be approaching, if not surpassing, the number of U.S. combat casualties in both World Wars combined. Can you please tell the American people the steps you will take from day one in office to contain this deadly virus and decrease the tragic trajectory of death and loss?
For the questions that my employment law/HR blogging friends would ask, head over to the following:
Late last week, Russell Vought, the director of the Office of Management and Budget, issued a memo directing that from this point forward, the federal government will spend zero federal dollars for diversity training for its employees. Why? Because President Trump has concluded that diversity training is “divisive, anti-American propaganda.”
According to the memo, “All agencies are directed to begin to identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’ or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil.”
It continues, “[A]ll agencies should begin to identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.”
Diversity training is the opposite of anti-American, and canceling it will only serve to drive us further apart. We need to teach differences, not hide from them.
We as a nation are more divided than we have ever been during my lifetime. In fact, I’d argue that we are more divided than we’ve been since the Civil War.
Race continues to be the line that divides us the most. Ignoring this issue won’t fix the problem, and likely will only make it worse. We will not fix America’s race problem by pretending that it doesn’t exist. Not only does it exist, but it is perhaps that which defines us best as American. Our nation is one with an unnerving history of slavery, which has caused 155 years (and counting) of race relations problems.
Germany, for example, does not pretend that Holocaust never happened. Instead, it reckons with its horrific past by teaching the Holocaust in its schools and making illegal Nazi symbols and language. Yet, some of us Americans still want to whitewash our history and fly Confederate flags. We don’t fix out race problems by pretending they don’t exist or aren’t problems at all.
Employee diversity training is critically important, perhaps now more than ever. We all should be committed to the cause of fair and equal treatment of all Americans. Canceling diversity training, however, is a big step in the wrong direction away from the goal of equality for all.
Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening that (subject to a few limited exceptions). The only rules are that the mask cover the employee’s nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.
One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear “Trump 2020” masks.
Worse, it’s firing employee who refuse.
Or at least that’s what Kris Hauser, a former waitress of the restaurant, claimed happened to her in her viral Facebook post describing her termination.
The owner then approached me again and stated I needed to wear my Trump 2020 mask. I responded and told him I would wear it, but I would wear it inside out (which a majority of employees had been doing already for the days prior).
The owner, Scott, told me “No, you will wear it with Trump 2020 facing out for people to see.”
I told him I would not do this and he said that I needed to leave.
Your first inclination might be to say, “Jon, Ohio, like every other state besides Montana, is an at-will state, meaning that an employer can fire any employee for any reason, good or bad. And just last Thursday you told us that there are only a few states that ban political opinion discrimination, and Ohio isn’t one of them. So while many will feel that Kris Hauser’s termination is morally and ethically reprehensible, I don’t see anything unlawful about it.”
While Ohio is an at-will state, it recognizes several key exceptions to employment-at-will, including a tort claim for wrongful discharge in violation of public policy. What does this mean? I’ll let the Ohio Supreme Court explain:
In order for a plaintiff to succeed on a wrongful-termination-in-violation-of-public-policy claim, a plaintiff must establish four elements: (1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law (“the clarity element”), (2) that dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (“the jeopardy element”), (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (“the causation element”), and (4) the employer lacked an overriding legitimate business justification for the dismissal (“the overriding-justification element”).
In other words, if a termination offends a clear public policy of the state, and the employee does not have any other remedy to redress the termination, the employee can sue in tort for the wrongful discharge.
In this case, Ohio has a clear public policy against employers influencing employees’ political opinionsâOhio Revised Code section 3599.05, which criminalizes employers that make expressed or implied threats “intended to influence the political opinions or votes of his or its employees.”
That’s exactly what The Village Inn did in imposing its “Trump 2020” mask requirement under threat of termination. And it’s not too far off the mark from Kunkle v. Q-Mark, Inc. (S.D. Ohio 6/28/13), which refused to dismiss a public policy claim based on section 3599.05, after the employer allegedly threatened employees with termination if President Obama won re-election, and allegedly fired the plaintiff after she stated she voted a “straight Democratic ticket.”
I’ve never been shy about calling out an employer that has wronged an employee. The Village Inn has wronged Kris Hauser. The internet has already spoken. I hope Ms. Hauser finds a lawyer to take her case and the courts have their say as well.
Thatâs all it took for both parties in both houses of Congress to work together, along with the White House and President Trump, to pass important relief legislation for American workers. We need more cooperation like this to see our country thru this crisis.
Last evening, President Trump signed the Families First Coronavirus Response Act. Employers only have until April 2 to implement the lawâs required 12 weeks (10 weeks paid) family leave for school- and childcare-related coronavirus absences, and 80 hours of paid coronavirus-related sick pay.
Employers are going to need policies, and procedures, and forms, and paid leave management tools and training. And itâs all going to be very new for the smallest of employers, whose resources are already stretched thin.
Is this law perfect? Not by a long shot. For starters, it doesnât apply to the largest of employers who can afford to pay for this leave, and it offers little in the way of relief to the smallest of employers who canât. It has other holes as well. It leaves too many employees unprotected and too many types of leave uncovered.
That said, itâs a start, and itâs more than I would have hoped for if you would asked me about it just one week ago.
Employers, hereâs the thing. This law is a floor, not a ceiling. It is solely within your power to do right by your employees. Let them work remotely if possible. Pay them if and while you can if they are ill, or under quarantine, or with a child who can no longer attend school. If you have to lay employees off, let them collect their unused vacation and other paid time off (even if you have a policy that says otherwise or the law doesn’t require it). And seriously consider severance pay, or better, funding their COBRA payments for a period of time so they don’t lose needed health insurance, and do it without a release agreement.
I said this a few days ago, and it bears repeating again (and likely again, and again, and again). How we act over the next few months will define who we are as a nation and what we will look like when we come out on the other side. Please, think about this as you make decisions about your employees. We all have lots of difficult choices to make over the coming days, weeks, and months, but I am URGING compassion and flexibility if at all possible. What we do now will have a long-lasting effect on our country, whatever this country looks like when this crisis is over.
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42% of U.S. employees say they have personally experienced political disagreements at work
44% say they have witnessed political disagreements at work
34% believe that their workplace is not inclusive of differing political perspectives
12% report they have personally experienced political affiliation bias or discrimination based on their political views
56% state that political discussions at work have become more common over the past four years
Some will tell you that employees should avoid political discussions at work at all costs. I am not one of those people.
Itâs simply not realistic to eliminate all political discourse from the workplace. Thanks to CNN, the internet and round-the-clock news cycles, politics has invaded every crevice of our existence (and itâs only going to get worse between now and 11/3/20). How can we expect employees simply to ignore conversing about these issues for the eight-plus hours a day they are at work?
Instead of banning these discussions, remind employees of your expectations regarding all workplace conversations â that they be civil, professional and respectful. And, if a co-worker violates these precepts you have the right to disengage and to go to a supervisor, management or HR to address the problem.
Political discussions need not be nasty, uncivil, or contemptuous, as long as we respect the rights of others to think differently, and hold them accountable when they fall short of this standard.
Has an employer violated the law if it docks the pay of an employee who skips a speech being given by President Donald Trump in their place of employment?
Over the weekend news broke of a Pennsylvania employer who had an interesting way to influence its employees’ attendance at a rally Trump was holding at their place of employment during the work day. Only pay those employees who show up.
âNO SCAN, NO PAY,â a supervisor wrote to his employees.
While attendance at the rally wasnât mandatory, the employer told its employees that they would only be paid for the work day if they attended. Otherwise, they had the option to take a PTO day or take the day off excused and without pay.
While it sounds terrible to withhold pay for employees who choose not to attend a political event during the work day, just because itâs terrible doesnât make it illegal.
Indeed, in all likelihood, there is nothing illegal about this practice. That said, I can envision a few arguments that could give this employer trouble.
1. You might jeopardize an exempt employeeâs overtime exemption. One of the cornerstones of the FLSAâs exemptions is that the employee must be salaried. By definition, a salaried employee receives the same predetermined amount of money for each week worked. Employers can jeopardize exemptions by docking employeesâ pay for hours or days missed from work. If an employer reduces an employeeâs pay for hours or days missed in a week, the employee is not receiving a standard predetermined amount for all work performed during the week, and therefore no longer salaried. If an employee is not salaried, he or she cannot be exempt. Exemptions are bad things to lose, because it would make an employee eligible for overtime. Thus, paying an employee four-fifthâs of his or her salary for a four-day work week might jeopardize that employeeâs exemption.
2. You operate in one of the few jurisdictions in which political affiliation discrimination is illegal. âPolitical affiliationâ is not a protected category protected by any federal law. Still there are a few states that protect it under their own anti-discrimination laws. In California, for example, an employee docked because he or she chose not to attend a rally of a politician they did not support would have a cognizable claim for political affiliation discrimination.
3. Youâve violated an employeeâs right under section 7 of the National Labor Relations Act to engage in protected concerted activity. Private employers cannot prohibit discussions by and among employees about wages, benefits, and other terms and conditions of employment. Therefore, if employees skip the Trump rally as part of a mass protest over how his policies impact the workplace, then it might be unlawful for their employer to dock their pay as a result.
Legal or illegal, however, you need to ask yourself whether coercing employeesâ attendance at a political event is a legitimate business practice. How you answer the question of whether you think itâs OK to try to shape or influence your employeesâ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I donât think itâs my business how my family members cast their votes.
I certainly donât think itâs an employerâs business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.
Norma Melgoza, a longtime employee of Rush University Medical Center in Chicago, is suing her employer for sex discrimination and equal-pay violations stemming from a denied application for a promotion.
In support of her claim of glass ceiling gender bias, Melgoza points to certain misconduct of the interviewing physician. Iâll let the district court explain.
During an interview with one of Defendantâs doctors, she alleges the doctor wore âa Donald Trump maskâ (the âDonald Trump Maskâ), an act she described as âhumiliating and offensiveâ to her, insofar as she inferred from this alleged act that the doctor (and, by extension, Defendant) âdid not take her or her position seriously and thought nothing of impersonating a man who publicly antagonized Melgozaâs community [Mexican-American] and many members of her gender.â
For its part, the employer seized a Donald Trump mask from the physicianâs office during its internal investigation of Melgozaâs allegations (although it claims that the actual look of the mask differs from Melgozaâs description of it).
Suffice it to say, if you wear a Donald Trump mask to conduct a job interview of a Mexican-American, female applicant, you might be the worst employer of 2019.
Also, thanks to this case I think Iâve discovered the trophy to present to this yearâs winner.
Last month President Donald Trump announced his desire to implement a new merit-based immigration system.
He did not put forward a detailed proposal, but instead described his proposal in broad strokes. The president emphasized that his goal is to change the make-up of U.S. immigrants, envisioning a points system that would provide more green cards to highly skilled, highly educated and younger immigrants, and reducing immigration based on family relationships.
While he did not mention many specifics, the presidentâs proposal bears a striking similarity to the RAISE Act, an immigration bill introduced into the Senate in 2017 by Sens. Tom Cotton, R-Arkansas, and David Perdue, R-Geaorgia. Trump praised the RAISE Act when it was initially introduced in the Senate, but the bill died in Congress.
The RAISE Act would have reduced total U.S. immigration by approximately half and included a points-based permanent immigration system which placed high numeric values on advanced education and extraordinary achievement.
According to the system proposed in the RAISE Act, although an immigrant would score more points with a U.S. job offer, U.S. employers would not be able to sponsor new hires or existing employees for green cards. The point value would be the ultimate determinant in whether a person would be able to secure permanent residence in the U.S.
In light of the presidentâs emphasis on increasing immigration of highly skilled workers, one might assume that his plan envisions higher numbers of temporary work visas for educated and highly skilled foreign nationals. However, neither the presidentâs recent proposal nor the RAISE Act included any discussion of temporary work visas such as H-1B or L-1 visas.
Further, the president laid out his proposal as just that: a proposal. The changes he would like to make are significant and such a radical departure from current law that most of them would have to be implemented in new immigration legislation. This is not likely to occur anytime soon as it would require bipartisan consensus.
In light of the fact that Congress would need to pass new immigration legislation to implement the presidentâs immigration vision, recruiters and hiring managers who rely on foreign talent to fill open requisitions should not expect to see increases to the H-1B visa numbers in the near term.
Further, since Trump has taken office, U.S. Citizenship and Immigration Services denials and requests for additional evidence in H-1B visa cases have risen significantly, reflecting the presidentâs desire to protect the American workforce, as spelled out in his April 2017 Executive Order, âBuy American, Hire American.â
Employers sponsoring H-1B visas should be prepared for the possibility of longer processing times between filing and ultimate approval of petitions, and should budget for potential additional legal fees.
Congress shall make no law ⌠abridging the freedom of speechâŚ.
So reads the 1st Amendment of the Constitution.
Take note that it does not say, âYou have absolute freedom of speech in all things at all times.â It only prohibits government-imposed restrictions on speech.
I am continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America â and we have whatâs known as FREEDOM OF SPEECH! We are monitoring and watching, closely!!
I promise you that if the president of the United States does not understand how the 1st Amendment works, your employees donât understand it, either.
Indeed, according to one recent survey, only 28 percent of American workers understand that getting fired because of a social media post does not violate their 1st Amendment free speech rights. Clearly, employees do not have free speech rights at work.
There are four key exceptions to this rule.
Public-sector employees. Government employees are the only employees the 1st Amendment actually protects. Still, their free speech rights are not absolute. The 1st Amendment only protects them as private citizens speaking on matters of public concern, and only then if the employeeâs interest in speaking freely outweighs government employerâs interest in efficiently fulfilling its public services.
Protected concerted activity under the National Labor Relations Act. Section 7 of the National Labor Relations Act protects the right of employees to, between and among themselves, discuss wages, hours, and other terms and conditions of employment. While the Board has attempted to narrow these protections over the past year, their scope is still fairly broad, even extending to obscene pro-union rants and racist picket-line threats.
Protected activity under anti-discrimination laws. If an employeeâs speech is in complaint about unlawful discrimination or harassment, various anti-retaliation provisions protect their speech from retaliation.
Specific state laws that either protect employee speech or other lawful off-duty conduct. Several states have specific laws that protect an employeeâs political speech, or, more broadly, speech in general. Even more states protect an employeeâs right to engage in lawful off-duty conduct. Ohio has neither. Regardless check your state laws if you intend to regulate your employeesâ speech, or otherwise take action against an employee for something that employee has said.
These exceptions not withstanding, your employees need to understand their lack of free speech rights as employees. I make this lesson a key point in my workplace social media training programs.
If so many of your employees operate under a misconceived and misunderstood notion of âfree speech,â then I believe that it is your responsibility as their employer to educate them. After all, if you are going to hold them accountable for what they say, itâs only fair that they understand their responsibilities and the related consequences.
