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101, at CU Law School as an adjunct right before I came to the Council. It’s really fun. And I would ask my students on the first day of class for an example of some time when they thought maybe their rights as a worker had been violated, even if they weren’t sure. I wish I could just ask everyone this question because they always have an answer, and what you hear about is a lot of wage theft. Often problems with tipped wages not being calculated or distributed correctly, but people are not being paid their full wage that they should be one way or another — sometimes off the clock work. People are being told, ‘Well, you have to clock out and then fill out paperwork’ or something. And then, people are often misclassified. It’s pretty common for people to be told, ‘Well, we’re going to make you a contractor,’ when actually that’s not just at the discretion of the company or the employer — there’s a legal test for whether someone can be a contractor. If you’re supposed to be a worker [with] paid wages, then you’re entitled to overtime, minimum wage, all these things that you’re not as a contractor. That’s not just a matter of discussion: Some people are employees whether the company wants them to be or not. It depends on a bunch of factors, including whether that’s their main source of income and whether they’re genuinely kind of a free agent that could go do a bunch of other jobs, or whether this really is kind of like their job and it’s controlling their time. AF: And these are specifically things people often don’t realize? SP: Yeah. I think the reason is that a lot of times where you see wage problems happening is when there is complexity, and so often people working in kind of new industries will see a lot of wage violations. When the marijuana industry was growing in Colorado, I had many, many employees in that industry coming in with their wages not being paid correctly because employers don’t know how to do compliance, or maybe they think that they’re doing some kind of new economic model, or the law doesn’t apply to them. That happens a lot with app-mediated work — so gig work. Those companies will often say, ‘Well, we’re just so different that the law must not apply to us.’ And then the other big one is that people are often confused by, or not aware of, what kind of rights you have when you become sick or disabled. Those two things can overlap. Disabled is a legal term; sick is not. There’s a lot of layers of laws that might give you rights to accommodation, rights to certain kinds of leave, but the definitions are different under every one of these laws. And so, you end up looking and thinking, ‘How do I navigate asking for maybe some time off as a disability accommodation because I need time to get better?’ Or time off as a family medical leave thing under federal law and under state law. I think people really often don’t take advantage of everything that’s available to them when they’re sick or caring for a sick family member or have given birth. AF: I imagine there’s also the aspect of people maybe either not realizing, or not knowing, they have a right to some kind of retaliation against that as well. SP: Yes, and it’s actually quite case by case — whether you’re raising some kind of concern at work and the concern makes your boss angry, and you end up getting fired or disciplined — whether or not you could have a legal claim from that. There’s literally hundreds of city, state, and federal laws that try to protect different kinds of complaints or issues that an employee might raise. So, anytime you pass a discrimination law, you’re probably going to also say that if you complain about something that you perceive as discrimination, and you get retaliated against, that’s also illegal. If you raise a concern about environmental contamination at work, there may be statutes that say that that’s protected, but usually the statute is really about something else and it puts the evaluation thing in to try to protect other people. It’s very hard as an employee to know, even if you feel like what you’re doing is kind of advocating for something important, or in the public interest or protective of yourself and other workers, whether that’s protected from retaliation. It can be different by industry or different depending whether you’re a public or private employee. AF: I was just about to ask if there’s a difference in these rights for public compared to private employees. SP: Huge differences. Public employment is so different that I would always recommend that public employees make sure they’re talking to an attorney who knows about public employment, because there are many, many, many statutes and ordinances in both directions. Sometimes they’re more protective of public employees, sometimes less so, but that’s just extremely common across the board. One of my favorite little known areas — within the context of the National Labor Relations Act — is the private sector law that set out most employees’ right to unionize. And there’s some exceptions in it, but for most private companies, that’s where the right to unionize lives. It also has one provision that applies even to employees who are not yet in a unionized workplace, but are at an employer that’s otherwise covered, called Section 7 of the NLRA. Basically, again, for most private sector companies, if you are joining together with other workers in some way to talk about your working conditions — that could even mean, you know, my friend was sexually harassed and I went in with her to the boss’s office to bring it up — that Protected Concerted Activity is protected even for a workplace that isn’t actually unionized. That’s meant to protect people’s ability to start moving in that direction of unionization and kind of mutual support, but people don’t know that one, and it’s a good one to think about where strength is in numbers. AF: One of the other differentiations I wanted to ask about was the difference of rights for a worker who has been fired compared to laid off. SP: Well, those aren’t technical terms, but there are some differences. There are specific protections for if a company wants to have a layoff or reduction in force and they’re saying that this is not because of merit, like a mass layoff. There are certain laws that come in and protect workers, particularly from age discrimination, in that process because there’s a tendency to use layoffs sometimes to get rid of older workers. But mostly, the question is really just what the employer’s real motivation was, and so it doesn’t matter so much if the employer is saying, ‘I’m firing you for individual misconduct,’ or, ‘Gosh, we’re having a layoff, and we’re letting go 20 people and you happen to be one of them.’ In either case, the same laws are going to protect you. If the real reason wasn’t a legal reason — the real reason was discriminatory, retaliatory in an illegal way — then you’re going to be protected no matter what the reason was that the employer gave. AF: My last question: What workers’ rights do you think are weak and need to be improved? SP: One of the biggest ones goes back to public sector employees in the 2000s sometime, when Anthony Scalia was still on the Supreme Court. Before he passed away, he wrote an opinion that absolutely gutted what had been the First Amendment protections of public employees. In the Garcetti v. Ceballos case, he found — and a majority of the court joined him — that public employees are only protected from retaliation for their speech if the speech that they engaged in was unrelated to their job. So if you go to work and you say, ‘Oh, I’m voting for such and such,’ you can’t be retaliated against for that. Or, if you say, ‘Gosh, I really have some opinions about this street painting project,’ and you don’t work in street painting, you’re protected for that. But, if you try to blow the whistle on something that is part of your work — which, if you think about it, that’s obviously what we want public employees to do — you are not protected by the First Amendment under this decision. And I won’t even begin to explain the reasoning behind that. At any rate, that’s the law of the land. Since then, a lot of jurisdictions, I think, have been slow in replacing that protection for our public employees because it had been a matter of constitutional law. You kind of have these piecemeal protections of different kinds of speech. Having passed something that protects city workers using one aspect of the First Amendment — engaging in organization rights — I think we’re probably due to consider passing something that protects city employees if they are engaging in speech or whistleblowing, even if it’s related to their duties. Because again, it’s in the public interest for them to do that, in my view. SPRING Wishlist Drop-offs are accepted Wednesdays, 10 a.m.-1 p.m., or by appointment. 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