Rescuing and Defending Equality (Part 2) – with Daniel Lennington [Ep. 104]

Linda:

Welcome. Thank you for tuning in to this episode of The Prosperity 101 Breakroom Economics Podcast. My name is Linda J. Hansen, your host, and the author of Prosperity 101 Job Security Through Business Prosperity, The Essential Guide to Understanding How Policy Affects Your Paycheck and the creator of the Breakroom Economics Online Course. The book, the course and the entire podcast library can be found on prosperity101.com. I seek to connect boardroom to breakroom and policy to paycheck by empowering and encouraging employers to educate employees about the public policy issues that affect their jobs. My goal is to help people understand the foundations of prosperity, the policies of prosperity and how to protect their prosperity by becoming informed, involved and impactful. I believe this will lead to greater employee loyalty, engagement and retention, and to an increased awareness of the blessings and responsibilities of living in a free society.

Listen each week to hear from exciting guests and be sure to visit prosperity101.com. Thank you for tuning in today. This is Part Two of a great conversation that I've been having with Daniel Lennington. Daniel Lennington is a freedom-loving lawyer. He serves as Deputy Counsel for the Wisconsin Institute for Law and Liberty and focuses on the Equality Under the Law Project. Dan previously served as the Assistant Deputy Attorney General and Deputy Solicitor General at the Wisconsin Department of Justice, where he argued constitutional law cases before the Wisconsin Supreme Court, the Seventh Circuit, and state and federal trial courts around the state. Before joining the Wisconsin Department of Justice, Dan was an award-winning federal prosecutor in Oklahoma. He is a graduate of Hillsdale College and Valparaiso University School of Law.

Dan, thank you for making time for this interview, especially this Part Two, this extended conversation where we're able to go into more depth regarding vaccine mandates and the employer employee mandates. And for our listeners who may be tuning into this episode, please visit Part One of this conversation, because it's quite insightful regarding defending equality, true equality, in many different segments of society. So Dan, thank you so much for joining us.

Daniel:

Thank you for having me.

Linda:

It's a strange time that we're living in, but the cascading effects of what has been going on in our culture for many, many years and in our government really lead to this. And that leads us into the mandates and all these different things that are happening in America today and really across the world. We're looking at these societal change issues and here we're looking at the lockdowns, mandates. We're talking about that with the restaurants. We're talking about the discrimination. We're seeing discrimination with people who don't want the vaccine as well. And there's employers who don't want to mandate it for their employees, because they'd like to give the employees the freedom to choose. And they'd like to give the employees the freedom of medical privacy.

And in one of our episodes, I highlighted Steven Fettig and their company has, together with Wisconsin Institute for Law and Liberty, has really taken a stand on this. That is episode 96. It's called, A Bold Stand, Protecting Employee Freedom. So that episode, I'd encourage the listeners to go back and listen and hear Mr. Fettig's discussion about why they chose to initiate this lawsuit. And you are their attorney for that. So I'd love for you to bring an update on that and talk about the larger issue of vaccine mandates. Even recently, this week, there's been some changes to what employers have to adapt to. And so we'd love an update on that case as well as what's happening nationwide.

Daniel:

Right. So when COVID first started, everyone should remember vividly what happened back in March, April, May, June of 2020, when the virus first came out, the governments around the country and the world, their first response was to have lockdown. And so in Wisconsin, like many states, our governor issued a stay-at-home order. WILL, our law firm, we went to our Wisconsin Supreme Court and we worked on that case and got that struck down. They also tried to close all of our schools, including private schools. And we won that case and got that order struck down. Other people in other states were not so lucky. But next door in Michigan, they had nearly identical orders, but they were unsuccessful. And those lawyers over there were unsuccessful. And so Michigan had quite a lockdown and other states, Illinois [inaudible 00:05:28] places surrounding us.

And so it really was this kind of patchwork where there were these states that were free from lockdowns and stay-at-home orders, and states that were not. And so it was very frustrating, I'm sure, for a lot of people that it depended what state you lived in, whether you had freedom or not, and especially with the businesses about whether they could open. And some restaurants did very, very well, because they could do curbside service and drive throughs. And some restaurants were not able to do that just because of the way they were built. And some other businesses were really struggling. I don't need to tell people how bad businesses were struggling. But during that initial few months we heard things like, "Well, the next thing is the mask mandate. We're going to require the mask mandate. And then we're going to require these occupancy limitations." And every month it seemed like another thing going on.

But during this time, I think people who were conservative would say things like, "Well, someday they might require people to get vaccinated." And the cries from the left were apoplectic about, "Oh, no. We would never require vaccines." And then those people would say things like, "Oh, maybe there will be vaccine passports." And then the left would say, "No, there's never going to be that. Oh, that's a conspiracy theory. And if you believe in vaccine passports, you're a conspiracy theorist." And then, lo and behold, now we are here in December of 2021 and what we're talking about are vaccine mandates and vaccine passports. There are vaccine passports for children in some places around the country, which is a outrageous public policy in my opinion.

So where we are right now with vaccine mandates is what kind of started off was a private sector mandate, in my view, some of the biggest companies around the United States and around the world started to mandate that their employees start to get vaccinated. And these were kind of spotty and in different sectors. But you could kind of tell that a lot of the private employers, the large private employers, were kind of waiting for some signal from the government, because I think they were getting some pushback from their employees. And they didn't want to be the only one to do the vaccine mandate. If you're a small business and you need to make a decision, you want to make sure that the decision you make doesn't cause your employees to leave you and go to the next business next door. And so I think there was a lot of that going on.

And so what started to happen at the state level, state here in Wisconsin, we saw our state government require their government workers to get vaccinated or test. We saw different agencies sort to sprinkle around. But then in the fall, President Biden announced a number of vaccine mandates that were going to be national. And we have seen and heard of some of the disclosures that a lot of this was done at the request of big businesses. Big businesses a lot of time like to, and when I'm talking about big businesses, I mean, hundreds of thousands of employees, they like to impose regulations, because they can comply with them. And also it applies to smaller businesses who might have a much more difficult time to comply with those regulations. So this is no mystery to anybody who has a small business that big businesses like to cram down their regulations on the small businesses.

But the federal requirements that were issued were number one, a vaccine requirement for all healthcare workers. That was called the CMS mandate. The Centers for Medicare and Medicaid pay the largest portion of our healthcare costs in America. And they required anybody who works in the healthcare industry to be vaccinated. Then there was a federal contractor mandate. It was a mandate that said, "If you have a federal contract, you have to have all your employees vaccinated." And this applied, for example, to universities, universities have federal contracts, or companies that do business with the federal government and there's many defense contractors and people who supply parts to the federal government. And then the granddaddy of them all was the OSHA mandate. This was the nationwide mandate for businesses with a hundred or more employees.

And so where we stand right now, December 20th, 2021 is that the healthcare worker mandate is put on hold for half of the country. And this is just by virtue of how these cases materialized over the last few weeks. So in 25 states there's a mandate. And in 25 states there's not a mandate. Wisconsin is in the group where there is a mandate. So healthcare workers in Wisconsin do have to get vaccinated, but in next door, in Iowa, they don't have to get vaccinated. That case is at the U.S. Supreme Court right now. And it's supposed to be decided. There's an emergency petitions pending. We expect it to be decided early January. The federal contract mandate is enjoined nationwide, which means that it's not in effect anywhere. A federal judge in Georgia put an injunction on the federal contractor mandate, which was a nationwide a mandate, so that one is on hold right now for the whole country.

Then the big mandate for all businesses with a hundred or more employees. And by the way, when OSHA issued this, they said they wished they could do it for employers with 25 or more employees. And they think they will be able to do it, but they wanted to do this step first. So if you're a small business and you think, "Ah, I don't have a hundred employees," stay tuned, because it could be coming to your neighborhood very soon. This nationwide OSHA mandate requires every employer to have a mandatory vaccination policy, which says, "Everybody who works here must get vaccinated," or a weekly test policy that says, "If you are not vaccinated, you have to test every single week and produce a negative test to me when you come into work on Monday." The boss, you have to give the boss a negative test on Monday.

Now, there's all sorts of other bells and whistles that go along with this mandate. There's a face covering requirement, which is going to be a surprise to a whole lot of people who work in states that have not had face covering requirements for over a year, maybe in some cases. And we just think about South Dakota, or Alabama, or some of these states that are... Or Florida. They haven't had face covering requirements for a long time. But employers, all of a sudden, they're going to have to require face coverings nationwide. They have to create a roster of employees about who's vaccinated, who's not vaccinated. So they have to collect all of this information. They have to come up with some sort of mechanism to how you're going to test these employees, where the tests are going to come from, what do you do if someone tests positive, how you remove them from the office and how long they have to stay home.

You have to maintain employee medical records. Records you've never maintained before, now you have them in your possession. You have to abide by the law now. Now, you have this very sensitive information. So you're going to be doing a lot of things you've never done as an employer. And I've talked to employers throughout Wisconsin. They've talked about, they're going to have to hire people to do this. This is going to be a full-time job to be the COVID policy manager for your business. So that's expensive. You're talking about hiring a person. Well, first of all, where are you going to hire this person? It's hard to find anybody to work now. And then to add on top of all this, employers are having trouble getting enough workers, right? And we've heard from a number of business sectors who've said that up to 30% of their employees will quit, in some cases, if they're forced to vaccinate or test weekly.

So employers are facing a lot of labor disruption because of this. This mandate was put on hold in November. Nationwide, there was a case, part of the case was filed in Texas, but it was enjoined by the Fifth Circuit Court of Appeals, which is in Louisiana. And it said that this mandate is on hold. Nobody has to comply with it. And the federal government said, "We agree. You don't have to comply. No one has to comply with this. It's on hold." All right, well, on Friday, December 17th, a court in Cincinnati, the Sixth Circuit Court of Appeals, dissolved that mandate, dissolved that stay, meaning now the regulation is back on. So it's back on. So over the weekend, a number of businesses and associations filed emergency petitions with the U.S. Supreme Court. And the U.S. Supreme Court received those petitions today. And they've given 10 days for the U.S. government to respond.

In the meantime, OSHA has kicked out the compliance date out into February. So now it's not January 4th anymore. It's February 9th. So they've given a little bit of breathing room to employers, but employers still have to do a bunch of things to get ready for this, put policies in place, collect information. So it's still an amazing headache, but hopefully, with the healthcare worker mandate and this other mandate will also be decided by the U.S. Supreme Court early in January. So we're hopeful for this a favorable decision. It's all been quite a whirlwind. We filed our case here. These are unusual cases, because when you file them, the challenge is you file them at the Court of Appeals level. And our Court of Appeals here in Wisconsin is called the Seventh Circuit in Chicago. It's based out of Chicago. It covers three states.

And so we represented Steve Fettig. His company is Tankcraft and Plasticraft. And he talked on your other podcast about all the hardship that the vaccine mandate was going to cause and the rights of his employees. He's very concerned about his employees' rights, their religious liberty rights, overreach of the federal government's powers. And so we filed our initial lawsuit in the Seventh Circuit. But there were lawsuits filed in 11 other circuits around the country about the same time as we filed ours. There were something like 56 different groups of companies that sued nationwide.

And by operation of a very unusual federal law, all of these cases got consolidated together and put in one big lump. And it was assigned to the Sixth Circuit, which is why they're the ones that have had the last say in it so far. So all that to say the OSHA nationwide mandate is back on the books. Compliance is February 9th now. And the case is pending at the U.S. Supreme Court.

Linda:

The employers must feel like they're on a teeter totter or, more aptly, a merry-go-round, because it just [crosstalk 00:17:36]-

Daniel:

We call it-

Linda:

Go ahead.

Daniel:

We call it a whip saw. In one of our briefs, we said, "Employers are on a whip saw." They just don't know how they're supposed to comply with this. And it's not inexpensive. As I said, you have to hire someone. And then you have these employees who might say, "Hey, I like you, boss, but I'm not working here anymore. And I feel bad for you, but I'm going somewhere else." And this is all through a sector, manufacturing, service industry, transportation is a big one. People are going to go. And they're going to go somewhere where they don't have to abide by the mandate. They'll go to smaller businesses or [inaudible 00:18:11]. So it's got to be very frustrating for these employers.

Linda:

It's very, very frustrating. And it brings to light really why I do what I do, because policy affects paychecks. What happens at the government policy level affects every single individual. And it can either promote freedom and prosperity or it can harm freedom and prosperity. Rarely is it neutral. And personnel is policy, too. So it matters who's elected. Elections have consequences. And at the local state national level, we really need to pay attention to this. You talked about the school district levels. And so for people listening, what can you do? Well, get involved at the local level. Go to these school district meetings, or the school board meetings. Go to your local council meetings. Be a voice for freedom wherever you are. Sometimes I think people think, "Well, this is so big. I can't do anything." But you can. One voice can make a difference.

So speak up for freedom. Educate yourself. Go to the website Daniel mentioned, defendequality.org and you can learn about all of these cases. You can learn more about how to protect your own freedom. And you can reach out to Daniel and others at the Wisconsin Institute for Law and Liberty for more information. But whether you are an employee or maybe you are the employer listening and you are a small business owner and you really have no idea which end is up right now. You don't know how to prepare. You're concerned, as my previous guest, Steve Fettig, is regarding his employees' personal freedom and health privacy. You want to protect your employees, but you want to abide by the law and you don't want to pay extra fines or be put out a business. I mean, it's a really hard spot for employers to be in. So again, personnel is policy and policy really matters to paychecks.

So it matters who's elected. It matters who's at every level of our government. And we're really thankful for people like you and other freedom-loving lawyers across this country. You mentioned all these cases in states across the nation. And so I'm sure you've all consulted with one another and learned a lot. And as you said, some of these things took you by surprise. So thank you for stepping up to the plate and working quickly to defend freedom and liberty for these employers and all the individuals that are impacted.

Daniel:

Yeah. Thank you.

Linda:

Yeah. Well, do you have any other comments for especially employers? How should they talk about these issues with their employees? Maybe some three short ideas that come to mind.

Daniel:

Well, I was thinking about what recommendations I would have for an employer in sort of the context of what we're talking about. One is transparency. And the reason I think about that is that I know a private employer might not want to tell everything, all their secrets to their employees. But when it matters the most to an employee, their paycheck, whether they're going to be fired or laid off, being as transparent as possible to the employee, letting them know where they stand, letting them know how the business is doing, letting them know how they can make a difference in their own careers. I think transparency among employers and employees is very important. I've been seeing that really fall apart with these vaccine mandates, because I've seen a lot of private employers, especially health systems, private health systems, which are imposing vaccine mandates on their employees, and they're not telling them a lot of the information.

For example, we've seen some employers say things like, "Well, the reason you have to do this is because the federal contractor mandate exists." But then we know that the federal contractor mandate has been enjoined and that's not the real reason. And so I think there's some blame that's being put on the federal government when it shouldn't be and that may be being used as an excuse. And I think employees are smart enough to figure out if their employer is not telling them the whole truth. The other is with religious exemptions is that I've seen a lot of private employers really quiz employees about their religious exemption, asking them, "Provide us with a letter from your priest or your pastor verifying that this is a real religious belief that you don't like vaccines, or you feel..." That's not what the law is. The law says that you have a right to object to something at work if you have a sincerely held religious belief.

You can be the only person in the world who believes that thing. You don't have to have a priest or a pastor ratify what you believe. You can have a religious belief. And so I think there is in some sectors, some private sector companies, there is some obfuscation and some areas where employers could just be much more transparent about what's actually going on in the world. What are the real requirements? What are your rights? And I would say, I would encourage employees to know their rights. That would be the second thing.

So transparency is number one. I would say, know your rights would be number two. And that would sort of move into the third area is that I think a good employee is a good citizen, a good citizen who knows what it means to have a freedom of speech and to exercise their freedom of speech, to encourage their employees to go to school board meetings and be involved in their local community and their city council and the local regulations. Because I'll tell you, if I was a small business and a city council was about ready to regulate me out of business. And my employees were smart enough and knew their rights that they went to the city council meeting on my behalf to say, "This is such a great place to work. And you are going to put this company out of business. You're going to make it more expensive for them if you pass this new regulation," I think having good citizens as employees is a real benefit in many unforeseen ways to an employer.

And so those would be sort of my three things. I would say, be transparent. Encourage your employees to know what their rights are, their rights at work and their rights versus the government. And then encourage them to be good citizens and be out in the community. I think that would be a great benefit to any employer.

Linda:

Those are really important points. And thank you for bringing them to light. And that's again, what I try to do with Prosperity 101, helping people to be informed, involved and impactful so that they know how to protect their rights. They know where and how to get engaged. And then how to make a difference, a positive difference. A lot of people will try to do things, but they might not be educated enough to really be able to make a strong impact. And little things mean a lot. So one voice can make a big difference. So thank you so much for bringing that to light and for encouraging employers to talk to their employees and be transparent and helping them know their rights and then helping their employees to be good citizens, educating them and showing an example of what it means to be a good citizen. And that's important.

America is really run by we, the people. Or it should be. And so we just need to take back our rightful place as the ones in charge of this government. So thank you, Daniel. And if people want to reach out for you again, they can go to the website defendequality.org. Or would you like to share your email that they could reach out directly?

Daniel:

Yep. They can email me, Dan@will-law.org. So Dan@will-law.org. They can email me there, or I post on Twitter at Dan Lennington. I post things related to what's going on at WIILL and what we're doing and things I'm interested in. So those are the two best places to get ahold of me.

Linda:

Wow. That is great. So I hope you hear from a lot of the listeners. And thank you for everything you're doing to protect freedom in Wisconsin and around the country. Thank you.

Daniel:

Great. Thank you.

Linda:

Thank you again, for listening to the Prosperity 101 Podcast. If you enjoyed this episode, please subscribe, share and leave a great review. Don't forget to visit prosperity101.com to access the entire podcast library, to order my newest book, Job Security Through Business Prosperity, The Essential Guide to Understanding How Policy Affects Your Paycheck, or to enroll you or your employees in the Breakroom Economics Online Course. You can also receive the free ebook, 10 Tips for Helping Employees Understand How Public Policy Affects Their Paychecks.

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