By Mark Carey
So, like many of you out there, I have two recent college graduates who are confronting the work force for the first time. A few prefatory comments are needed to frame up the current employment atmosphere awaiting our new college grads. Simply, it is a harsh world out there.
Today, employers think they control the work environment as the payors of labor. The truth is that without employees there are no corporations to create profit, as the pandemic has shown us. Employers, large and small, mandate a myriad of unilateral employment contracts nobody has the guts to challenge, except our firm, let alone negotiate to their benefit. When new employees sign on, they become stuck and eternally connected to the employer. No, I am not kidding, let me explain.
Noncompetition agreements prevent college grads from building a natural career in one industry, because the second job is banned by the first employer. Not fair right? Well, it isn’t and the federal government is currently seeking to ban these agreements for that reason.
The next draconian agreement college grads face is the proverbial forced arbitration agreement, which mandates all employment disputes be filed in confidential and private arbitration outside of the courts. The results are always hidden to prevent a marketing disaster for the company if the employee wins.
The final act of torture is the ominous non-confidentiality agreement that smacks a gag order on any employee”for life! No really, these agreements stand the testament of time and are enforceable. Think of Mr. Weinstein, the convicted sexual offender we all love to hate. His company locked victims in confidentiality agreements designed to conceal his bad acts.
So, our recent grads have a boat load of reasonable fear about the agreements they are unfamiliar with and forced to sign. Employers know all of this, intentionally perpetuate this narrative, and maintain an extreme advantage in the workplace. But knowledge is power, so now I will arm you with the exact information you need to deal with your employer’s default employment practices.
1.The Job Search and Interview
There are legal issues to confront in the job search and interview processes. Employers cannot discriminate based on your gender, sexual orientation, race, color, religion, national origin, age, pregnancy and retaliation for complaining about discrimination. For recent college grads (presumptively 21-22 years of age) they will likely face all the above except for age and retaliation. Age discrimination arises after you reach 40 years of age, and retaliation is unlikely to arise in the hiring process. We know discrimination occurs in the hiring process, just read this article by Asktheheadhunter.com and you will be amazed by the new use of artificial intelligence in the hiring process. We see very few if any failure to hire cases come through our offices, due primarily to the lack of available evidence.
How do you know you are being subjected to discrimination in the hiring process? Well, it is very hard to tell as you have virtually no data, only the employer has the information. There is some available information to arm yourself beforehand and I am not referring to salary.com or glassdoor.com. You can check online if an employer has a history of discrimination by checking local court dockets for the employer. For example, in Connecticut the civil court system allows you to do a quick name search for employers. Type in the name of the employer and look for 2020 and 2021 cases where the employer is a defendant. Then go to the complaint and read it to discover the issue being sued over. If you find a case, you need to extrapolate from the allegations in the case whether it involves one person or many employees in the company. Caveat, many companies have forced arbitration so you may not see these employers in a case look up because the parties were contractually obligated to go to private and confidential arbitration. You should also google employment discrimination and include the employer’s name; I do this every day and you would be surprised how much information is available on the web.
Also, if you encounter a job interviewer conditioning the job based on sex or sexual favors “ RUN! If the employer wants you to meet a guy named Harvey W. at a hotel “ RUN EVEN FASTER. Obviously after the #metoo event, most people realize the above behavior is illegal. Uggghhhh! (you need to listen to this song!). Fortunately, twitter.com has become one of the primary sources of younger employee’s news feed.
The downside in this area is a lack of available information. The US Equal Employment Opportunity Commission and states do not publish discrimination cases filed with these agencies on a google searchable database. You may ask, isn’t the EEOC a federal agency? Yes, but their primary mission is to seek conciliations/settlements in cases filed before the agency. I do not professionally agree with this logic, as the general public should be able to search all EEOC filings to monitor employers and protect employees against further discrimination and retaliation. The agency does publish employer affirmative action and diversity records generally (EEO-1 Reports) but not specific to each employer. We now request them directly from employers during the discovery phase of any litigation we are involved in.
2.The Offer and Acceptance
A job offer is the most basic form of an employment contract. Clearly the offer letter states we want to hire you, will you accept? But the catch here is the offer is an at-will offer of employment and can be taken away at any moment. Once accepted, the position only lasts for as long as the employer wants to employ the recent college graduate. There are no promises to maintain your employment indefinitely. It is hard to trust an employer under these circumstances. There is no job security absent any for-cause termination job protections, discussed below. I practice what I preach. In our office, all employees, both part-time and full-time, can only be terminated for cause. This unilateral action by our firm has created greater trust by employees of management, more job security and provides more employee control over their own employment. What do I mean? Under a for-cause termination employment, employees know in advance what behavior is acceptable and which is not, so they can decide their own fate.
Some states now require the posting of the salary information in the job offer. (Connecticut). There are a number of states that have passed legislation banning any request for salary history information from job applicants. The aim of these statutes is to end the cycle of pay discrimination. See additional information that will help you assess current legislation in your state.
A more important issue has recently arisen where employees are now more open about asking their colleagues about how much money they make. These employees tend to be much younger and looking for equality in pay, and gender equality in particular. What if you discover you are being paid substantially less than your co-workers for the same job and based on the same level of experience? Some employees immediately become stressed as no one told them about this situation in college and how to handle it. Well, here are my two cents based on my collective experience with thousands of clients. Employees have no advocates in the workplace, so they need to quickly learn how to become one for themselves. You definitely need to share how you feel about this inequality to your supervisor with a cc to their boss in an email. Employees should frame an argument via email and professionally state they require a salary adjustment to the same level as their peers. Next, employees should ask the employer for the rationale why there was a discrepancy in salary. Employers will generally not provide a clear answer. Regardless, now the employee has created an employment issue that the employer needs to confront. Smart employees will say their bluff has been called and raise the salary to the same level as the peers. Stupid employers will reject the request and the employee just learned the most important thing about their employer”a lack of trust and respect for employees. The employee should then evaluate a resignation (common these days), but only after finding a similar or better position. Once you have an offer, then tell your employer you want a raise and if not, you are walking out the door. To learn more about what Gen-Z and Millennials want, read this Forbes article from September 2021. Forbes recently published additional career tips for recent college graduates.
3.The At-Will Job and Internships
We have previously explored the history of the at-will rule in previous posts here. The bottom line recent grads must understand”they’re screwed just like everyone who currently is employed today. No seriously. Unless these grads have been made promises of lengthy term employment or have been subjected to discrimination or harassment, employers can fire them at-will without notice. We continue to shame employers to change to a more just and fair employment termination-for-cause just like Montana did. However, Montana recently curtailed the rule in three new bills signed by their republican governor.
Termination-for-cause means the employer must have a factual basis for termination, such as acts of insubordination, violating company policy or breaching an employment agreement. What does the for-cause provision really accomplish “ trust building and job security. Who doesn’t want that? We all do. But this new form of employment has been beaten down for years by lobbyists for employer groups. The tide is turning during this pandemic and employees are eyeing this new form of employment and employers are taking notice of the increasing leverage employees really do hold over employers. The biggest obstacle to full integration of this for-cause employment rule is employee education and awareness and the decentralized nature of private, non-unionized, employment most people take part in. Once employee awareness increases, thanks to this article, and social media forms a new consensus building vehicle to organize the workforce, for-cause termination will become the norm. My view of the law and social policy is that the social issues guide the development of the law and not the other way around. Why do I say this? In the legal field, lawyers and judges build the law everyday based on prior court decisions, commonly called stare decisis. This has a positive and a negative impact. On the positive side, we now have employment right protections against sexual orientation discrimination, based in part on the doctrine of stare decisis. On the negative side, the at-will rule promotes systemic discrimination across all categories of employees. Court’s simply knee jerk react and hold that if your employment is at-will there is nothing to prohibit an employer from terminating you for no reason. If no reason is provided, then employers can hide discriminatory firing decisions under the cloak of court endorsed secrecy. Not fair right, because it isn’t. Contact your local Congressional representative today and tell them you are feed up with the status quo and demand legislation promoting for-cause termination.
Employers who hire college students and recent college graduates, often hire them initially through an internship program. However, private sector for-profit employers must pay internship employees just like all other employees. According to the U.S. Department of Labor states, Courts have used the ˜primary beneficiary test’ to determine whether an intern or student is, in fact, an employee under the FLSA. In short, this test allows courts to examine the ˜economic reality’ of the intern-employer relationship to determine which party is the ˜primary beneficiary’ of the relationship. See the seven (7) factor test here.
4. Noncompetition Agreements
Noncompete agreements were created by employers for employers. Employees never had a chance to negotiate these agreements. We have written extensively about this topic, Read Here. Noncompetition agreements serve no valid or reasonable purpose to protect the interests of employees, only employers. Noncompete agreements are an overreach by employers, whose interests are already protected by Confidentiality and Proprietary Information Agreements. Read More Here. Employers say it further protects their competitive advantages, trade secrets and other corporate proprietary information. That is a lie, told over and over again by the pro-employer lobby groups and the defense bar that support them. Employees are now restricted from gainful employment more than any time in this country’s work history to their financial detriment. Meanwhile, employers reap billions in unlawful restrictive trade practices that are ruining our economy, just when we are trying to dig out from this pandemic. Shame on you employers!
How did employers cause this calamity? The facts are simple to understand. No one noticed the widespread use of this default employment practice. No one noticed the financial costs to employees. Employees are not organized and politicians sought only to align themselves with the business lobby such as the Chamber of Commerce or SHRM. It is exactly this decentralized and unorganized nature of nonunionized employees, roughly a 150 million strong, that employers across the spectrum abuse and mistreat with noncompete agreements. How certain am I of this fact? Very certain, as I watch the endless flow of noncompete cases come through our offices. In every case we have litigated, the employee never negotiated the noncompete agreement, had no say in the matter, was told to sign it or lose the job opportunity after they were already hired etc. These default employment practices have to stop, they are abusive and restrict trade in the U.S. economy. This is not a political issue and neither party can claim it as a weapon. Companies, large and small, run or owned by members from both political parties use noncompete agreements. Employers who force noncompete agreements on employees derive the same financial benefit, i.e. profits, at an enormous expense to individual employees.
On July 9, 2021, President Biden issue a comprehensive Executive Order that stated in pertinent part, Consolidation has increased the power of corporate employers, making it harder for workers to bargain for higher wages and better work conditions. Powerful companies require workers to sign non-compete agreements that restrict their ability to change jobs… (g) To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility
To be abundantly clear, this is not a political issue or socialistic propaganda by the Biden administration, but a return to fairness and placing a premium on a competitive workforce. As a political historian, employment activist, republican and employment litigator (employee side), I have professionally watched the nonsensical enforcement of unfair and dubious noncompete agreements for 25 years. Simply, enough is enough already! The pendulum is now swinging back to center.
According to an accompanying Fact Sheet published by the Biden Administration, Competition in labor markets empowers workers to demand higher wages and greater dignity and respect in the workplace. One way companies stifle competition is with non-compete clauses. Roughly half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.
5. Discrimination?
For as long has humans were programed for fight or flight, discrimination has existed. After too many years watching and litigating this phenomenon, I can safely say my job is protected for life and for the lives of my descendants. The world will always need human rights advocates and employment attorneys. When humans perceive fear they form biases, plain and simple. Some employees cannot turn off this self-defense genetic feature and go on to commit ridiculous and very serious discriminatory offenses that have ruined millions of lives to date.
The best advice for recent grads is to go to the EEOC.gov website and read about discrimination in general. Next, we tell all clients who are still actively working to maintain a private offline journal or file and record all events that appear to be biased filled employment actions. Simply write down what happened. Employment attorneys use this background narrative in building cases against employers. Often these narratives are 30-40 pages in length, all of which is transformed into a sworn affidavit and sent to the employer when needed.
The best advice is to learn what discrimination is in practical every day terms and then seek to avoid it at all costs. However, if you are confronted with clear and factually substantiated discrimination, then choose your next steps wisely. Yes, you do have a right to be free from discrimination. But today, it takes money to fight that fight. Congress did provide for attorneys fees at the end of a winning case. However, 80% of our cases settle before they every reach the courthouse steps, and for very large jury verdict figures. We internally track our settlements, so we have the statistics and we know as a firm what works and what strategies do not. So if the case settles, then legal fees are paid through the settlement not the courts. Most importantly, the time, money and personal aggravation will be heavy, so plot your course correctly in the litigation arena.
6. Family Medical Leave Act Leave
I will make this one simple to understand. If you or your family member is sick, you are permitted to take a 12 week paid (under state law, but not federal-yet). The catch here is that you need to be employed for 1250 hours during a rolling 12 month period prior to your leave and work for an employer with 50 or more employees. (Source here). If you are sick, you are also potentially covered under state and federal disability laws, so ask for accommodations — including taking an FMLA leave of absence. The tricks of the trade here are as follows. Make your FMLA request in writing, via email for the time stamp that it provides and demand a written response with a rationale. Second, do not wait until the last day of your FMLA leave period to return to work. Return to work at least one week earlier so the employer cannot wiggle and shake off it’s responsibilities. You would be surprised how many employers attempt to deter employees from returning. Why? In reality, most employers seek to get rid of unhealthy employees, in particular pregnant employees, because they are a drag on revenue. It’s a fact and I base this conclusion on many years of litigation experience. Once you are out the door on day one of your FMLA leave, the employer is delighted because now they can replace you using a different job description for the same job. Not only is this practice illegal but you need to confront the employer directly, possibly even file a lawsuit. The FMLA law only provides a protection to return to work to the same or similar position with the same pay and benefits, so long as you return prior to the FMLA leave expiration date (know the date!). You are probably asking, why should you take an FMLA leave if you know this information? Usually, you do not have a choice and Congress believed it needed to protect employees, in particular pregnant employees. Today, you can also receive FMLA pay under a few states (Connecticut and New York).
7. Salary vs. Hourly “ How to Know When You Are Entitled to Overtime
When I heard my daughter received her salary, I asked a simple question. How many hours per week are you required to work? She stated 35 hours. She is a first time employee fresh from school and is her position is nonexempt. Therefore, she is entitled to time and a half over 40 hours in a given week.
This is the biggest source of confusion among both employees and employers. Many employers seek many more than 40 hours per week, given all the after-hours email traffic many employees experience. Many recent grads do not know how to raise a complaint to ensure they are getting the right amount of pay. This is very wrong. Employees should not have to fear losing their jobs by questioning their pay. So question your employer about your pay. If they receive any negative feedback, report the issue to the human resource manager and ask the company to provide a written explanation why they are labeled exempt from overtime pay. Any employer who refuses to so is not the type of employer you want to work with. Employees are entitled to a clear explanation of their pay. For more information to determine whether your particular position is exempt or nonexempt click the following link: https://www.dol.gov/agencies/whd/fact-sheets/17a-overtime.
8. Remote Work
Ahh, the double edge sword. The remote working debate is ongoing. Employees across the board are reporting higher satisfaction with remote working, primarily because employees have more say in how they spend their work day and managing their personal affairs. I personally believe this is an overall healthier change to the office commute and work day grind. Employees are exercising more given the new flexibility, although younger college graduates are reluctant to step away from the laptop for fear of not being seen as being active and productive. This thinking is nonsense and needs to stop. Again, college never trained any employee about how to work or what standards are acceptable, they just learn this skill through assimilation to various, often dysfunctional, workplaces.
The downside is also concerning. Really, how many hours can you sit on a zoom meeting? Zoom fatigue is real and everyone is looking for a better solution. Read the article just highlighted for solutions.
9. Social Media
The SHRM website goes into detail about how employers should and should not use applicant social media information. Here are the highlights from their website, read more here.
When using social media sites to find information about prospective employees, employers must be careful. They may not have the right to access the information they are looking for without the applicant’s permission.
Some employers demand that applicants give them the passwords to their social media accounts; however, most legal experts warn against such practices, and some states have banned it. In fact, there is a growing federal movement to protect job applicants and employees from such requirements.
Looking at applicants’ social media profiles and postings provides employers with information that they might not otherwise obtain or might not obtain until they conduct a face-to-face interview. Social networking sites might discuss information that would be considered legally protected in a job interview, such as information about race, ethnicity, age, family relationships, disabilities, political views and more. Applicants could claim discrimination if they do not get a job and believe they were rejected based on protected information that the employer discovered via social media. HR experts say the HR department, not hiring managers, should conduct any social media research about candidates”and HR should do so only during background checks on finalists for a job.
The best advice about what to post on your own social media accounts is simple. Ask yourself what a potential employer will think of your post and how it reflects on your professional reputation. Judge for yourselves here on instagram.
10. Severance Negotiation
We write a lot about severance negotiations because we do this everyday! I have included two articles entitled How to Negotiate a Severance Agreement and An Employment Severance Agreement Explained in Detail. Both articles will bring you up to speed and get you thinking about your severance transaction. I included all the bits and pieces of strategy to make your next severance negotiation successful, whether or not you use an attorney to help you negotiate it. Also, remember how to use the employment attorney you hired. The most effective negotiation is one where the employment attorney investigates the possible leverage/legal claims and directly negotiates with the opposing party’s attorney. There is also another effective angle to follow. You can use an employment attorney behind the scenes, but keep them out of the email traffic. The opposing side will discover there is an attorney lurking about in the periphery and will not push so aggressively. We do this quite often with our clients and it really works. We will often direct the client to drop soundbites to grab attention and steer the negotiation in a favorable direction. For example, during negotiations we may cause the client to hint to the employer they have a whistle blower claim involving misleading financial disclosures to the SEC or a sexual harassment sexual assault to raise (both are now reportable offenses, see recent SEC investigation of Activision).
If you would like more information about this topic, please contact Carey & Associates, P.C. at info@capclaw.com.
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