Meggie Palmer spoke to Susan Crumiller, Founding Attorney at Crumiller P.C., a feminist-focused law firm. Susan talked about what you’re entitled to and what your employer can and can’t do, especially in the time of Covid-19.
She taught us to document everything, get a doctor's note if you’ve had Corona or any other illness, and make sure your employer knows the provision and tax rebates available to them.
Meggie: We want to chat about your rights at work. A lot of men and women have been asked to take pay cuts. A lot of people have been laid off. You run a feminist-focused law firm, what are some of the trends that you're seeing?
What are some of the trends that you've seen during this time?
Susan: We're seeing different people in a couple of different buckets of situations. There are people who are essential workers who are worried about having to go into work and the safety of their workplace. Then, it's a different set of issues for people who are able to work remotely, but might be afraid of their job security. We're getting tons of calls from people who, unfortunately, have already been laid off or furloughed. So, in terms of people being afraid of their job security during pregnancy, we're also getting a lot of calls.
COVID-19 is showing everyone's true colors. We see it with our politicians. We've seen employers who are using it as an excuse to engage in discriminatory conduct. They didn't feel free to do it before and are now saying, “We're laying you off, but it has nothing to do with the fact that you're on maternity leave. It's just business.” Coronavirus: they think it's this magic amulet. So, that's where we come in.
But, it's always better to prevent issues before they happen. I usually tell people that legal rights are largely academic and that if an employer takes an action against you, that's illegal. You're still screwed but it just means you can come back later, file a lawsuit, and get a settlement down the road. But, if you can engage your employer politically, and this is where you're exiting to. It comes with using your negotiating skills.
You can prevent issues from happening. So, the question becomes how to present your legal rights in a way that will protect you but also not isolate you or damage your social standing. A lot of people don't want to be too forthright or too forthcoming and say, “Hell, no. We won't go.” That’s because they don't want to suffer the social repercussions of their workplace, understandably. So, the best thing to do is, as always, figure out ways to present your case in a way that is collaborative and compelling, especially if you have a decent employer. If you have a shitty, jerk employer, figure out how to appeal to their egos or their fear in a way that's not too over.
Meggie: That's interesting, too. This idea of appealing to their ego or their fear, can you just dive in? Because I agree with you and I totally know what you're getting at for people who don't?
How do you appeal to your employer’s ego or fear?
Susan: Ultimately, right now, but as always, we're dealing with human beings and everyone's feeling very vulnerable right now. I'm an employment discrimination attorney, but I'm also an employer. So, I can appreciate the employer situation. Right now, where we're really worried too. Who can we trust? Who can we count on? Who's gonna be there? Can we make ends meet? All of those things.
But with respect to the jerks and the egos and the context of the jerk employers, good employers want to do the right thing. You can approach things collaboratively from the standpoint of “I'm so glad that you're prepared to do the right thing and we can all do the right thing together.” But where you have a really big corporation that doesn't really care about you, or just a less scrupulous company of which there are times you'll get further by figuring out how to not be too overtly threatening, in a way, you want them to feel in control and in charge. But, you need to educate them. They might not realize that they can't use this as an excuse for whatever bad behavior they wanted to engage in. They think they can get away with it. And so it's a question of educating.
Meggie: You run a law firm that that isn't an employment law firm. You have a feminist focus company where you deal with a lot of men and women, but particularly a focus on women's agenda. I know you can't speak specifically about cases.
What are the issues you observed that women are facing during these Covid-19 times?
Susan: I ended up getting a huge thing in my own life too because I have two young daughters. I always joke that when we're looking back and when we meet someone in 30 years, the question will be, “how old are your kids during the corona?” If, you have. Because that's the big thing, balancing being at home with the kids. It's so hard to juggle your responsibilities.
But something that a lot of people don't know is that the new federal legislation provides a sort of paid leave that can be taken intermittently. If you're a caregiver to a child whose school, childcare services, or daycare providers are unavailable because of the coronavirus, you can take those intermittently. My best piece of advice for people in that situation is if you request this type of leave, you can't be penalized for it. This is definitely the main question that we get and that I think about. A lot of moms and dads are facing this. And that's a lot of the times protecting your rights in a political way.
I often use the imagery of the fist and the velvet glove. Requesting leave can be a great form of that and something that everyone should know is retaliation is its own claim. So, if you assert your rights, or if you make a claim of gender discrimination, racial discrimination, or any kind of bad behavior based on a protected class, and your employer then mistreats you and retaliate against you for making the claim, you now have another claim even if your original claim was questionable as long as it was made in good faith. I'm not saying just go and wave around discrimination flag and you'll be fine.
If someone, for example is worried about balancing the responsibilities of work in childcare, I would say, be proactive and come and talk to your employer about it. Say, “I want to do a good job. But as you know, I'm home with my kids. Here are these options available.” The more you make an explicit from a legal standpoint, the harder it is for them to turn around and say, “Well, you're underperforming.” Because you've raised these issues. You've gotten them out into the open.
Meggie: Can you just explain that? I don't have children but if I did, if I had two kids at home, is there leave that's covered by the government?
Does the government pay for my leave or is the employer expected to pay for my leave?
Susan: It's in the form of payroll tax credits for the employer. For example, I have a sick employee who took two weeks. There's the new federal legislature that includes sick leave provisions and then caregiving provisions. They rushed everything through so fast and everything's really sloppy. There are way more and better protections for caregivers and for people who get sick themselves. But, if you get sick yourself, for example, you have two weeks fully paid sick leave at your 100% rate. What happens is when I ran payroll, I clicked a little button saying so and so is on paid leave. Then, I get a tax credit in that very same payroll for the amount of that person's paycheck.
So, the employer is not out of pocket. That's why I think this seems underused, because with a child, with a caregiver provision, you can't use it if you're alive. If you can tell the work and care for a kid, then you can't use it, but you can use it intermittently. I could tell it works. Four hours a day but not eight hours a day, you get paid as per usual for the four hours and then get the credits which are up to 60% -70%, two-thirds of your pay for the other half.
Anyway, I didn't mean to get into the nitty-gritty more than I meant to but my point is, get it out into the open. and be explicit about it. Come forward with your concerns so that you're using it not like a sword rather than a shield.
Meggie: The nitty-gritty is so interesting as well. You mentioned you're an employer, I'm an employer and I think employs a good lot going on too. I think if we can really empower the community members of PepTalkHer to understand the provisions available, that's very valuable for when they have to have that conversation with their boss. Or maybe, they can advise a friend who feels bad that took weeks off because they've got COVID. This is really valuable and very interesting.
What if someone's on maternity leave while all this is going on? Is there any coverage available for them?
Susan: There are no special rules at this moment other than just the regular 'you can't be penalized for being on maternity leave.' You can't be treated differently for being on maternity leave. I did want to make one other point that applies to maternity leave, but also generally. A lot of people have questions, especially pregnant people. New parents are especially worried about their health and their safety in terms of going into the workplace. Lots of people say, “I'm scared to go in which I'm immunocompromised or my partner is immunocompromised”, get a doctor's note. That's my other big piece of advice to everyone if you have concerns.
The New York State also has expanded leave laws. There's lots of great resources on my website. Crumiller.com has a big Resource Center. If anyone has questions, we have set up a hotline. We have an email hotline system if anyone wants to email COVID@Crumiller.com, we have a team distributing answers, but also our better balance and the gender equality law center are operating hotlines and they have tons of really active information.
But New York State pay family has new expanded paid family leave, sick, and family leaves that apply to anyone who was advised to quarantine, for example. You have to get a certification from the health department. You can get started right away with a doctor’s letter and you just submit your doctor's letter to the health department. A letter from your doctor goes probably further like we've been offering to write letters from people for free, who were in unsafe situations. But, we always say “first go get the doctor's letter because that's the factual evidence that you need.” You can't if you're like, “I'm scared to go into work.” That's not a reason not to go.
Meggie: I think what you're saying that applies during COVID in terms of getting the documentation, correct me if I'm wrong, Susan, that it’s so important during any workplace situation that may or may not turn dramatic. So, whether if you think you have been sacked while pregnant, if you think that you've been discriminated against, if you're part of a protected class, and you feel that you're being treated differently, document everything. Put everything in writing. Is that right, Susan?
What are the top things that women can do?
Susan: That's the top thing! You nailed it. That's the top thing: document everything and just make the conversation explicit. Even though it's uncomfortable, say “I know that you guys would never treat me differently just because I'm on maternity leave, but I'm just making sure that we're all on the same page.” If there are layoffs and if you feel you're going to be treated differently because you have kids, you could say something like, “I just want to be very clear and make sure that I'm not going to be treated differently just because I'm caring for three children at home.”
For a gender discrimination claim, for retaliation claims, a lot of the times it hinges on: Did you say anything? It's much harder to come back later and say, “I think I was mistreated and then they treated me worse.” If you come out and say: I'm pregnant. Make it explicit. It bolsters your case and more importantly, it's proactive. They will be more hesitant to take negative action against you once you vocalize these concerns, or they should be.
Meggie: We're really grateful that you could spend this time with us. It’s super interesting. Document everything, get a doctor's note and make sure your employer understands the provisions and the tax rebates that are available to them.
You can email Susan at susan@crumiller.com, COVID@crumiller.com, or you can call their main number. It's on their website, crumiller.com.