How unemployment works

The word “unemployed” has many definitions, but I’ll focus on three of them. One: the layperson believes someone is unemployed if they are not working. Two: the data analyst or survey taker considers a person unemployed if they are not working but have been actively seeking work for some specified amount of time. And three: the unemployment insurance system provides short-term financial assistance for eligible unemployed persons.

Unemployment benefits are not the same as “welfare.” A person’s current financial condition and family situation does not sufficiently determine eligibility. Instead, unemployment is an insurance system, and some people pay in so some (other) people can get payouts.

The system is a joint state-federal program administered by the states. The state (generally) determines eligibility, benefit amounts, and the tax rate (like an insurance premium) that must be paid into the system. Some states are more generous than others.

Now, who pays the insurance premia? Employers. As a business owner with employees, I pay a percentage of payroll into the unemployment insurance system. By paying into the system, I’m doing my part to make sure that if my employees get laid off (lose their jobs through no fault of their own) they will have some assistance while they look for other work or while they wait for recall to my company.

Some companies hire employees, some hire independent contractors (ICs). I’m not going to get into all of the differences now, but employers who hire only ICs have not done their workers any favors for this current pandemic. See, no one pays unemployment insurance for ICs. An IC who applies for benefits wants something for nothing. If you work for someone who pays you with checks and you get a 1099 for taxes, they haven’t paid into unemployment on your behalf.

If you work for yourself, and just cash checks as they come to you, without paying UI taxes, you have not paid into the system. When applying for benefits, you are asking something for nothing.

Of course, COVID-19 has flung us into a truly unusual situation. Many self-employed people are unable to earn money from work through no fault of their own. And this is where the CARES Act comes in. We needed a special appropriation in order to pay benefits yo people who have not paid into the system.

FWIW, I am an employee of my corporation and pay payroll taxes and UI taxes on my wages, just as I do for all of my employees. Frankly, it’s the right thing to do, and there are a lot of business owners out there who choose to pay themselves and others as ICs when they could be employees. And why do it that way? To avoid paying payroll taxes, workers comp insurance, and UI taxes. To avoid contributing to the safety net that so many Americans need right now.

For example, if I pay an employee $15 per hour, I pay an additional $1.15 for Social Security and Medicare, $1.97 for liability and worker’s compensation insurance, and $0.38 into the unemployment system. I also pay for a payroll service and I offer benefits like paid sick leave and professional development funds. So every $15 hourly wage costs me about $20. Lots of employers choose not to pay that. For shame.

Do you have questions about unemployment? Feel free to ask me, I’ll do my best to answer.

Feeling, safe

I have been trying to pen a message for so many days, I’ve lost count. What day is it today, anyway? Tuesday? Friday?

I need to provide my clients a professional update about the business and talk about details, when all I can think about are feelings and data and justice.

hands holding a tree

Yes, technically, EFTE operates in industries that are allowed to continue working right now. Even though industry groups and political leaders have instructed us to do site work only for emergency issues, “emergency” is self-defined, and often stretched.

The truth is, we’d rather be working in your gardens, woodlands, trees, and yards right now. A few weeks ago I was in the process of hiring three new employees. Instead, I shuttered site operations and instructed my manager to apply for unemployment compensation. One of the main reasons I created this business was because I wanted to provide good jobs, so this closure leaves me gutted.

While it may seem that our work is “safe,” crew members nonetheless are at risk whenever visiting a client’s property, when gathering tools from our storage, when purchasing equipment and materials, when filling their gas tanks. And frankly, EFTE does not own enough tools to have one of every lopper, pole pruner, hard rake, chain saw, mattock, wheelbarrow, and heavy spade for every crew member, so we have to share. Sharing is really risky right now.  I cannot bear the thought of one of my employees contracting the virus during work. And as we’ve seen with healthcare workers, even taking precautions is no guarantee.

If we followed the ISA/TCIA guidelines to the letter, we would only do emergency jobs, but that is not enough work to keep our crew going. And I have yet to discover how many hours I could pay an employee that would enable her to keep receiving unemployment checks. Is three hours writing a newsletter too many? But I shouldn’t get ahead of myself. Even if I want to do that, I don’t have the money to pay for it. Instead, I have the early season expenses like renewing insurance and web hosting and did I mention our truck needs new tires? 

So I sit at my desk for a few hours, trying to be productive, applying for assistance, realizing that I don’t qualify for most of it. And no, I won’t put my house up for collateral on a business loan right now. Nobody should have to do that.

I open my email, make myself read a message or two, then realize how overwhelmed and distraught I feel, so I get up from my desk and wander to the basement, cobbling projects together from bits of scrap wood and old paint. I pass the time saying hello to my tomato and pepper seedlings. What else am I supposed to do right now? No, don’t tell me, I know the answers, I know the list. I have it in a couple evernote notes and on a cork board on the wall and in a post-it note array on an oversized clipboard on the floor, and on a daily schedule on my desk. I write in lunch over two 15-minute slots, just to give myself permission to do only that for a half hour. But that’s done and now is the next slot. I should fill it in with something.

“Must lift 50 pounds” is some straight up BS

{This is Part 1. Stay tuned for Part 2.}

Many ads for landscaping jobs include the requirement that applicants be able to lift 50 pounds. It seems an appropriate prima facie requirement for this sort of physical labor: shoveling dirt and mulch, carrying buckets of debris, and swinging leaf blowers around, for instance. But any time you see a job requirement that appears verbatim in ads from other companies in the same industry, it’s a good bet that you’ve discovered some legalese intended to cover the employer’s ass. 

50pounds1
Screenshot 16 Dec 2018

 Any guesses on the problem here? On average, men are stronger than women, right? So if a landscaper doesn’t hire a woman, and wants to prevent accusations of bias, they claim that employees must be strong and that she wasn’t strong enough because she couldn’t lift 50 pounds. “Must lift 50 pounds” is an example of an attempted “business necessity” defense for a potential sex (or disability) discrimination suit. That sort of defense worked well in the 70s, but it’s often rejected in more recent cases.

Establishing business necessity

A nurse for Saint Clare’s Health System became injured on the job and before returning to work, a functional capacity evaluation recommended that she should frequently lift no more than 16 pounds. She was fired because she couldn’t frequently lift 50 pounds and the employer claimed that was an essential function of the job. The nurse sued for wrongful termination. The crux of the case was whether her job truly required frequently lifting 50 pounds. The New Jersey Supreme Court ruled that it did not. The business necessity standard originated with a 1971 Supreme Court case involving Duke Power Company. The Court found that Duke’s employment requirements (e.g., including a high school diploma) discriminated against black employees and candidates andthat the hiring requirements were not directly related to the jobs. For instance, plenty of white workers didn’t have diplomas, but nonetheless held jobs that black workers couldn’t get. Cases like these begin with a plaintiff alleging discriminatory treatment against a protected class. They must prove disparate treatment (e.g., won’t hire a person in a wheel chair) and/or disparate impact (e.g., won’t employ people taller than 5’6” so fewer men are hired). Then the firm must prove that there is a bona fide occupational qualification (BFOQ) or business necessity. BFOQ applies in disparate treatment cases; a casting call for a toddler would have a BFOQ against hiring a 40-year old woman. Business necessity applies in disparate impact cases; an ESL class requires a teacher who can speak English (ipso facto), though this has a disparate impact on applicants whose country of origin is not English-speaking. 

50pounds2
Screenshot 16 Dec 2018

Another example of a disparate impact on women is from Eastern Airlines (remember them?) back in the late 1970s. They required flight attendants to take maternity leave when pregnancy began, and the pregnant women lost income and seniority as a result. Eastern’s defense cited the job duties to lift “up to 25 pounds regularly, 50 pounds occasionally” and to “lift out emergency window exits-weight 30 pounds each exit.” Eastern had to prove that this lifting requirement was necessary to the “safe and efficient operation of the business,” and there was no acceptable alternative to the policy that could accomplish the operation just as well (without causing the disparate impact). They were only partly successful. The ruling tied leave requirements to pregnancy stage and doctor’s permission, allowing women full employment through the 13th week and prohibiting flight duty after the 28th.

In 2016 Gordon Food Service saw the writing on the wall. Rather than take their feeble business necessity defense to court, they agreed to pay $1.85 million to 926 qualified female candidates and hire 37 of those candidates. See, GFS regularly eliminated women applicants through the use of a strength test measuring “upper and lower body resistance” but that test was found to be more stringent than the actual job requirements.

Coming in part 2:

What about business necessity in landscaping?
How much force is required to push a lawnmower up a ramp?
and
Can you jump off the ground? Congratulations, you can lift 50 pounds. 

Bibliography

Burwell v. Eastern Air Lines
Important Reminders for Accommodation
GFS ordered to stop strength test

Crafting responses to “That wasn’t sexist.”

I had a nice meeting with a nice man who volunteers his time as a management consultant. At one point he asked about my accountant, referring to my accountant as “he.” I responded “she….” and he had to interrupt me to state “that wasn’t sexist.”

As we ladies so often do, I just blinked and skated on by. Dis shit happen all the time.

How to respond?

  1. Isn’t it great how simply saying “that wasn’t sexist” makes it not sexist? It’s like magic.
  2. You omitted 2 syllables but had to interrupt me with 5. Which is more efficient, Mr Management Consultant?
  3. Yes it was.
  4. Does saying that actually work?
  5. Let’s take a poll and find out.
  6. You appear pretty old, you’ll probably die soon. We don’t need to convince you, we just need to wait.

I am not an Associate Professor.

You asked, “I see you are an Associate Professor, were you promoted with tenure?” The answer is yes, of course. But I am not an Associate Professor.

What are the important parts of this story? That some of my students waited after class to walk me to my car to make sure I’d be safe from some other students? That one of my faculty stormed into my office, threw things across my desk, towered over me, yelling and swearing? And when I told my in-department mentor he said, “that’s not threatening”? That when I inadvertently passed someone with an ASSA badge I ran home and stayed there for the next week?

With unanimous support from my department, I was promoted to Associate with tenure in 2008. (Fun fact: I was the first woman they had tenured in many years.) I spent my sabbatical at Cornell and upon my return became Interim Chair. Much went smoothly, but I experienced a series of abusive and harassing events from a handful of administrators, faculty, and students. In all cases, administrative responses were feeble. A university lawyer told me he believed I was the victim of sex discrimination, but nothing came of that finding. A dean advised me not to file a grievance because he would “take care of it.” A departmental committee pledged to write a letter of reprimand, but later “changed their minds.” The workplace became unsafe for me. But I was the breadwinner and my identity was my career—I was a labor economist, after all. The situation was untenable.

Two colleagues working in the office

I was diagnosed with acute stress disorder, then post-traumatic stress disorder with severe suicidal depression. I began getting my affairs in order. My husband lived in another state (two-body problem), but when he realized that I was preparing to kill myself, he begged me to leave the university. He encouraged me to look into a formal leave of absence, and the diversity office directed me to a medical leave. The university lawyer told me that if my doctors dictated I was unable to return, I would be eligible for disability benefits.

I went on medical leave and applied for disability. Despite the unanimous diagnoses of four doctors and documentation of inpatient treatment, I was denied. The ruling admonished me for not addressing personnel problems through formal university HR procedures. They determined that I simply left my position so I could live with my husband, and that I wasn’t really suicidal because I had “no documented attempts.”

I have since been in consistent treatment for PTSD and severe depression. Five years after leaving the university I am not yet cleared to return to academic work. I was [in-]“voluntarily resigned” in 2016.