We all have made decisions we regret later on at some point in our lives, especially related to our work. Here are three very good reasons why accepting a severance pay may not be in your best interest.
Reason 1: Confidentiality Clauses and Clawbacks
You were just presented with a severance package but you hold the brass ring of all time employment war stories there is. You plan on exposing your employer and you are extremely agitated. Without a doubt, you think you have the greatest case in the world. Then you discover the severance agreement contains an iron-clad confidentiality clause that will prohibit you, your wife, your children and your parents, from ever telling your big story about a colossal corporate wrongdoing. If you accept the confidentiality clause and later breach the provision through disclosure, you risk the company taking back all of the severance pay and getting sued by the company. At this point, the severance pay must outweigh the potential monetary value of public exposure and your credibility as a new whistleblower. But your career may take a dive. This is the classic catch-22 I see all too often. You may not want to accept the severance agreement if the future monetary reward is great.
Reason 2: Non-competition and Non-solicitation Clauses
Remember that document you signed when you were on-boarded and were not really sure why you were checking the electronic box? Yes, that one. The non-competition and non-solicitation agreement you never intended to enter into. Now, upon separation, your employer hands you the severance agreement and you see an acknowledgment provision relating to the old non-competition and non-solicitation agreement. In the alternative, the non-competition and non-solicitation agreement is presented in the severance agreement and you never had one while working for the company. It gets worse, you were just offered a higher paying position with a competitive company which also does business with the employer (yes this does happen) or the new employer is both the competitor and the former customer/vendor). In either example, you want to accept the severance pay because it is modestly reasonable, let’s say $75,000-$100,000. But your new offer pays a salary of three times the severance amount and several years of employment. Obviously, you may want to decline the severance if this the first time you have been presented with a non-compete and non-solicitation provision, as the future salary far outweighs the severance being offered. You may want to ask the new employer to offer a sign-on bonus in exchange for the leave behind pay (severance and bonus). But what do you do if the non-competition and non-solicitation agreement was signed back on your first day of work? In this case, signing a severance agreement acknowledging the original non-compete only makes matters worse. You are stuck with the restrictive covenants.
You may need to challenge the enforceability of the original agreement by declaring it void for lack of consideration (you did not intend to enter into it). We do this all the time but there are risks associated with moving forward with employer number two, mainly having an injunction filed against you. Again, the future salary will dictate your choice here and hopefully, your new employer will financially support your choice to compete.
Reason 3: Severance Amount Is Too Low
Let’s assume you have worked for the employer for ten years before being offered a severance package. When you open the agreement, the severance amount is small. You discover the confidentiality clause and the restrictive covenant provisions mentioned above. You conclude the severance is just too small in comparison to the loss of future economic value of not working in your industry. You can decline the severance and sleep well at night knowing you can remain in your chosen field of work. In the alternative, you can hire an employment attorney to scope out any and all possible legal claims to leverage on your employer to get a higher severance amount. This is what we do every day.
If you’ve been terminated by your employer and offered a severance agreement, let the employment lawyers at Carey & Associates, P.C. help you evaluate the pros and cons of signing the agreement.
No one discusses the psychology of work and the enormous role it plays in your everyday life. I have researched and watched this issue for more than twenty years, from discrimination bias to contract negotiation. I comb through client fact patterns looking for every psychological angle emanating from all the cast of characters in order to position the client to achieve success or to resolve a dispute.
Why aren’t you doing this?
The Psychology of Your Manager
I know you think you know your manager, but I doubt you really know how your manager thinks and what motivates them. Psychology plays a direct and important role in such things as how your manager makes decisions regarding what jobs or tasks to assign employees and your career advancement. Managers evaluate employee strengths and weaknesses, i.e. perceived psychology, and selectively assign tasks. Employees are also chosen to advance based on their perceived psychology about whether they will be effective in handling the responsibilities of the new position.
If you are blind to the role of psychological analysis, get your head out of the sand and in the game!
Think of your job like a chess or strategy game, you need to consider every conceivable variable that will impact your chosen goals, both positively and negatively. If you are not evaluating your opponent, i.e. your boss or coworker, you will not advance in your current position or your career. I am not asking you to confront your boss with your new found psychological intelligence, keep it to yourself and use it to guide you when making critical decisions to your benefit. Successful employees and executives do this every day.
Here is what to look for when evaluating your boss’s psychology in order to gain an advantage:
(1) Evaluate facial and body cues that may show a degree of nervousness or over aggressive micromanaging (polar opposites), facial and body cues are one of the most important signals to read when assessing your opponent.
(2) Examine the person’s prior work conduct toward yourself and other employees and the reaction those individuals had in relation to the decision being made. Was there a consistent logic flow or arbitrary selection decision making process without basis?
(3) Go beyond the email language and check if the person really intended what was stated, email can be misleading.
(4) Examine the individuals the person promotes and if they are a logical fit or the result of office favoritism and worse, discrimination.
(5) Examine the potential for personal issues being brought to the office and determine if they are playing a role in the person’s work life.
This list is by no means exhaustive of the possible variables impacting your opponent’s decision making.
The Psychology of Your Coworkers and Yourself
When you arrive at work, you walk into an office workspace filled with a multitude of personal psychologies. There is no control other than the corporate mind speak dished out by the company or what you believe the proper protocol to acting professional is. There is no discussion about how to manage yourself or others while at work. Sure, there are rules regarding behavior, but in reality, employees are thrown into the workplace and are just expected to know how to act and react moment by moment.
Short of being fired for poor misconduct, how do you navigate the psychological warfare of the office?
The solution is to become aware or mindful of your interactions with co-workers, including supervisors, especially when you are having a bad day. Take a week and just observe the behaviors of others but don’t be reactive, just observe. While you’re observing various office behavior, listen to your inner voice, you know the voice that is talking inside your head right now as you read this. The more you become aware of this inner voice, the more self-control you will have during moments you need it most. That inner voice is the reactive brain and not your conscious brain, it just keeps on talking at you over and over all day long. Listen to your conscious brain, the one you make decisions with and the one you use to learn new information. Notice that the conscious brain does not ramble on at you, it is more concise and logical, not dramatic and overblown.
Another method of handling the office psychology is to observe the expectations you set for yourself and others. Stop working from those expectations and focus on the current issue you are experiencing. Your own expectations may be causing the problem you may be experiencing but you just don’t know it. We pre-imagine how events in our work life should result, but we never really think about how we created those expectations in the first place. When the crap hits the fan and our expectations are dashed, we tend to blame ourselves or others in a knee-jerk reaction. We never stop to think about our own thought processes, we just accepted what our mind (inner voice vs. conscious mind) said to us.
As employment attorneys, we confront the end product of psychology in the workplace and are requested to find solutions.
Many women are passed over for promotions and raises when they become pregnant. Part 2 of this series examines the subtle sidelining of pregnant women and mothers in corporate America. Guests: Natalie Kitroeff, who covers the economy for The New York Times, and Erin Murphy, who alleges that she was denied opportunities by her employer, Glencore, once she became a mother. For more information on today’s episode.
The issue of pregnancy discrimination at work will not go away…unless you raise your voice and stop remaining silent. Erin Murphy chose to speak out. We should all speak out and end this devastating form of discrimination. We all came from someone. Would you treat your mother like Erin Murphy was treated by Glencore.
To read Erin Murphy’s June 18, 2018 federal complaint against her current employer Glencore click here Murphy Complaint As Filed 6.18.18
If you need help with your employer because you are experiencing pregnancy discrimination, contact us.
On Sunday June 17, 2018 the New York Times posted an article, There’s An Epidemic of Discrimination Against Pregnant Women at Work involving a case attorneys Jill Saluck and Mark Carey are working on.
The article reported “Throughout the American workplace, pregnancy discrimination remains widespread. It can start as soon as a woman is showing, and it often lasts through her early years as a mother… Many of the country’s largest and most prestigious companies still systematically sideline pregnant women. They pass them over for promotions and raises. They fire them when they complain…In corporate office towers, the discrimination tends to be more subtle. Pregnant women and mothers are often perceived as less committed, steered away from prestigious assignments, excluded from client meetings and slighted at bonus season.”
The NY Times article explored Erin Murphy’s willful pregnancy and sex discrimination case against her current employer Glencore:
“As a senior woman at Glencore, the world’s largest commodity trading company, Erin Murphy is a rarity. She earns a six-figure salary plus a bonus coordinating the movement of the oil that Glencore buys and sells. Most of the traders whom she works with are men.
The few women at the company have endured a steady stream of sexist comments, according to Ms. Murphy. Her account of Glencore’s culture was verified by two employees, one of whom recently left the company. They requested anonymity because they feared retaliation.
On the company’s trading floor, men bantered about groping the Queen of England’s genitals. As Glencore was preparing to relocate from Connecticut to New York last February, the traders — including Ms. Murphy’s boss, Guy Freshwater — openly discussed how much “hot ass” there would be at the gym near the new office.
In 2013, a year after Ms. Murphy arrived, Mr. Freshwater described her in a performance review as “one of the hardest working” colleagues. In a performance review the next year, he called her a “strong leader” who is “diligent, conscientious and determined.”
But when Ms. Murphy told Mr. Freshwater she was pregnant with her first child, he told her it would “definitely plateau” her career, she said in the affidavit. In 2016, she got pregnant with her second child. One afternoon, Mr. Freshwater announced to the trading floor that the most-read article on the BBC’s website was about pregnancy altering women’s brains. Ms. Murphy, clearly showing, was the only pregnant woman there. “It was like they assumed my brain had totally changed overnight,” Ms. Murphy, 41, said in an interview. “I was seen as having no more potential.”
When she was eight months pregnant, she discussed potential future career moves with Mr. Freshwater. According to her, Mr. Freshwater responded, “You’re old and having babies so there’s nowhere for you to go.” A Glencore spokesman declined to comment on Mr. Freshwater’s behalf. After she came back from four months of maternity leave, she organized her life so that having children wouldn’t interfere with her career. She arranged for child care starting at 7 a.m. so she would never be late. But as her co-workers were promoted, her bosses passed her over and her bonuses barely rose, Ms. Murphy said.
When there was an opening to be the head of her department, Ms. Murphy said she never got a chance to apply. The job instead went to a less experienced man. Ms. Murphy said an executive involved in the selection process had previously asked repeatedly whether she had adequate child care.
Ms. Murphy said that after she missed out on another job, the same Glencore executive told her it was because of the timing of her maternity leave. Ms. Murphy has retained a lawyer and is planning to file a lawsuit against Glencore.”
In response to the NY Times article Attorney Jill Saluck commented, “Sometimes a pregnant employee will be subject to blatantly discriminatory remarks by her employer, indicating a clear bias against pregnant workers. But more often, pregnancy discrimination is much more insidious. Often after pregnancy, a woman’s career will suddenly and inexplicably plateau. Her non-pregnant coworkers will receive raises and promotions, but despite her consistent hard work, she will not be afforded the same opportunities. If this is happening to you at work, chances are that you’re not the only employee that has been subject to this type of discriminatory treatment. Pregnancy discrimination is not just unfair, its illegal, and employers must be called out for derailing the careers of pregnant employees.”
In the case reported in the NY Times article, Erin Murphy v. Glencore, Ms. Murphy filed her legal action in the District of Connecticut on June 18, 2018 (Erin Murphy v. Glencore, Ltd, 3:18-CV-1027 D.Conn). The case will proceed to a jury trial and we expect the jury to send a strong message to the company that pregnancy discrimination will not be tolerated and punished severely.
If you need assistance with your pregnancy discrimination issues at work, please do not hesitate to contact us.
We all build relationships based on trust. Some relationships require more trust than others. For example, marriage, medical professionals and hiring lawyers. We all take the time to explore whether these relationships are the right fit for us. We even memorialize these important, sometimes life-changing, relationships with contractual agreements. But when it comes to the relationship with your employer, you might as well start hand feeding piranhas.
Meet Your Antagonist: Your Employer
An antagonist is someone who actively opposes or is hostile to another; an adversary. Does this describe your current or former employer? In my role as the employment attorney, I do not hear very many people say they trust their employers. In fact, the opposite is true. According to a Harvard Business Review article, “In both your personal life and your work life, you’re bound to encounter people who take advantage of you, and these painful experiences can make you cynical.”
You have several reasons to be cynical about your employment relationship. Your employer is not interested in whether you are happy at work, fulfilled in your career aspirations, concerned about your personal responsibilities at work or anything remotely realistic to a nurturing relationship. In fact many employees have a low level of trust in their employers. The 2016 Trust Barometer report from Edelman revealed that a third of employees do not trust their employers. Employees reported a lack of engagement, short term profit seeking, lack of belief in the company mission, poor product quality, unethical behavior, bad corporate reputation, invisible CEOs and lack of corporate communication to employees.
At-will Employment is Bad for You
When you are employed at-will, as most of you are, you might as well be on a first date for the next several years. You would think that after knowing your employer for three or more years, you’d just settle down and get engaged to be married. However this is not so. Unless you have a coveted and rare employment contract with a “for cause” termination provision, your employer can bounce you with little or no notice. Many of you have felt this scorned feeling from prior jobs. So where is the trust in the at-will workplace if you can never predict your future with a reasonable certainty on a day-to-day basis? There is none. Ouch!
Somehow, we have just grown accustomed to this dysfunctional at-will relationship and let employers manipulate us with unenforced corporate codes of conduct, lofty corporate double speak and fear.
Management by Fear Does Not Create Trust
The most common corporate management practice today is to maintain a consistent level of passive-aggressive practices which propagate employee fear and insecurity. From my vantage point, I see a persistent pattern by employers accusing employees of subjective performance issues while their objective performance criteria are “meets” or “exceeds expectation”. Employers use performance management techniques such as performance improvement plans and coaching to force out undesirable employees. No one ever remains long after being managed this way. I also see cases of overt ruthless conduct, where a supervisor discriminates against pregnant employees as having “baby brain.” Saying things like, “I don’t want another woman working on the desk” or “If you’re being honest with yourself, do you really think you could do this job?” And the comments get even worse. “I don’t want to hear any complaining from you, you and [spouse] did this to yourselves.” Only a supervisor with intentions to rid themselves of pregnant employees will make discriminatory statements like this to push the employee to quit out of fear of reprisal.
Discrimination Does Not Create Trust
The absence of trust becomes more noticeable when employees experience discrimination in the workplace or need to take time off due to health issues affecting themselves or a family member. For these employees, their career with their particular employer has taken an abrupt turn for the worse.
For example, you become pregnant while employed and take a maternity/paternity leave under company policy and FMLA. When you return, your job duties have changed and so has the person you reported to. Pregnancy discrimination is one of the most perverse examples of a lack of trust an employee can encounter. The employer has a maternity leave policy and you take a leave under said policy with no resistance. However, upon returning to work you face pregnancy discrimination when your employment is terminated. The employer will jump at an opportunity to replace you rather than reinstate you. We would all agree, this is not an ideal trust building experience at any company, yet pregnancy discrimination continues to persist.
If you complain to your employer about issues of discrimination or whistle blowing, you will immediately cause your employer not to trust you. You have a legal and moral right to complain about these issues, but do not expect reciprocation from your employer. You just threw yourself off or under the company bus. This equals your spouse cheating on you and then pointing the finger at you as the cause for why they had the affair. Your employer’s Human Resources Department will not help you when you are down and have complaints about coworkers or your supervisor. I am sure the folks in HR are nice people, but their “job” is to protect the employer, not you! Don’t make the mistake in confiding with human resource personnel, unless absolutely necessary to build a case for retaliation.
Arbitration and Noncompete Agreements Don’t Create Trust
Arbitration and non-competition agreements and employer trust are like oil and water with a sprinkling of gasoline for added flare. The U.S. Supreme Court’s further endorsement of employer arbitration agreements cemented in stone the future of employee litigation and the permanent role of arbitration in your career. Listen, don’t be fooled, arbitration agreements are bad for you, your rights, your claims, the economy and are only good for employers. Noncompetition agreements are even a better example of a lack of employer trust. When your employer is finished with you and terminates your employment, they sink a big fishing hook in you and reel you back in at their whim each time you land a new position. The employer cries foul, complaining you are single handedly destroying the company via working for the competitor. These two forms of employment agreements represent the worst in every company that mandates them. An arbitration agreement is a tool to conceal bad corporate acts from employment attorneys like myself and non-competition agreements are used to threaten competitive employers in the market place.
Rise Up and Demand More Trust
It is time to call an end to bad corporate practices- the deceit, the greed, the lies and the double speak. Employees should demand more from their employers. Rise up and unite together and tell your employer you would trust them only if they demonstrated trust to you first. Trust begets trust.
Have questions or think you’ve been discriminated against at work? Let our employment law attorney’s help you get justice. Get in touch today!
If you work in Connecticut, there are facts you need to know about when it comes to your employment rights. In this post we’ll cover the top 10 things you need to know as an employee in CT.
1. Employers Can Give Bad References, Just Not False Ones
Employers no longer give references for former employees, so stop worrying. Employers fear being sued for defamation or claims for negligent hire. The majority if not all employers will provide prospective employers and their recruiters with your dates of employment, position, and possibly salary. The employer will not provide the reason(s) for termination. However, if you hear your former employer said they would not recommend for rehire, that is code language that you are a poor employee. The only exception I can think of is if you and your employer are FINRA registered members, i.e. brokerages and licensed employees in the financial industry. FINRA regulated employers are required to provide the reason for termination in the employee’s U-5 record.
2. Connecticut Employees Allowed 16 Weeks Unpaid FMLA Leave
Under the Connecticut Family Leave Act, employees are entitled to take up to 16 weeks of unpaid leave. Connecticut law provides for an additional 4 weeks on top of the federal FMLA (12). Employees should ask there employers if they have short term disability benefits to coincide with the 16 weeks of leave. A typical STD plan provides for six months of paid leave at 60% of the employees base pay. Nothing is guaranteed, and the employer will not volunteer the information. Employees in need of a leave of absence must self-advocate for their rights and document all their requests in writing. Remember, your job is protected during the FMLA, but if you fail to return before your leave ends, you will lose your job.
3. Connecticut Employees Have a Right to Personnel Files
Connecticut employees are entitled to a complete and accurate copy of their personnel files, including a copy of their supervisor’s version of their file. All the employee has to do is make a written request via email to the HR department and the employer must provide a copy of the file within 30 days. If the employer refuses, please contact the CT Department of Labor and register a complaint.
4. An Unfair Employment Termination is Not Necessarily Illegal
Listen, employers can be really mean and behave in very unfriendly ways. However, just because the employer is a pain in the butt and trying to make your life miserable, this does not mean the employer’s actions are illegal. Employers do not care about employees, so get over it. Your job cannot be your identity. You are an “at will” employee and you should never assume your job is secure, even if you worked for the company for 10 years. In order to determine if your employer’s action to terminate you were illegal, you would need to speak to our employment attorneys. A quick 15 minute call to our office will flesh out the legal issues and permit us to determine if you were fired unlawfully.
5. Independent Contractors Have Rights Too
You may not know it, but if you are an independent contractor you are still protected against unlawful employment actions such as discrimination. You should also investigate if your employer is correctly classifying you as an independent contractor (IRS Form 1099) or regular employee (IRS Form W-2). We see a lot of employees misclassified as independent contractors when they should be regular workers. Employees fear challenging the employer on this classification because they believe they will lose their contract. If you are in doubt, call the CT Department of Labor or call our office to speak with an employment attorney. Also search the internet in Connecticut for the “ABC Test for Independent Contractors.” You can also search the IRS.gov website for the same information.
6. The Legal Effect of Quitting Your Job
Don’t ever quit your job! You cannot collect unemployment benefits. Also, it is too difficult to prove your voluntary job termination was a “constructive discharge”. The facts must show a series of recent events that violate state and federal law and that any reasonable person would also quit. If you are in a tight bind where your employer is giving you the writing on the wall treatment to get out, speak to an employment attorney in our office first. We will deter you from quitting and will advise you to leave your job through the signing of a separation agreement which includes a severance payment for your service with the company as a result of unlawful treatment.
7. Employees with Criminal Records Are Protected
Under Connecticut law, employers cannot refuse to hire or terminate an employee because of a criminal record. Obviously, each case is different, so you will need to contact an employment attorney in our office to figure out if you are protected.
8. You May Have a Legal Right to Severance Pay
Employees employed in Connecticut may have a legal right to severance pay. If the employer maintains a severance plan governed by ERISA (federal regulation), employees working in Connecticut are considered participants and entitled to severance pay pursuant to the plan document. The one condition to receive severance pay set forth in every ERISA severance plan is that the employee must signed a general release of claims. How do you know you company has a severance plan? You can check your internal human resource portal or employee handbook. All ERISA severance plans have to be filed with the U.S. Department of Labor. Years ago I found this free website where you can research your employer. Insert the employer’s name in the site and go through the various plans listed. You are looking for a plan labeled with the word “severance” in it. The plan severance plan code is “4i”. If you find it listed, then you know a severance plan exists. Once you have identified your employer’s severance plan, make a written request to the Human Resources Department for a copy of the severance plan. The HR Department has a legal obligation to provide a copy of the severance plan within 30 days of your written request. You will find in the plan the amount of severance pay based on your years of service with the employer. Don’t leave money on the table, but chances are the employer will remind you about your benefits, as they have a fiduciary obligation to you as a plan participant. If you need a severance attorney, call our office and speak with one of our employment attorneys.
9. How to Predict When You Are Getting Fired
Hmmm, try your gut instinct. Are you getting the awful feeling that your boss and coworkers have turned on you? You may have been a satisfactory performer last year, but this year your rating sunk or needs improvement. Or, you made a complaint to your supervisor or HR about your wages or unlawful discriminatory treatment, and suddenly your once friendly work place is not so friendly. Maybe you just announced you are four months pregnant and you are getting the cold shoulder. Worse, your supervisor makes pregnancy related comments and jokes. Finally, if your coworkers and/or supervisors are openly hostile with you and use derogatory language directed at your gender, sexual orientation, race or age, then you know the crap just hit the fan and you need to speak to one of our employment attorneys.
10. Don’t Sign Anything When You Get Fired
Isn’t this obvious? You should never sign anything when you leave your job. You should also not participate in any exit interview with the HR Department. No state or federal law mandates your participation in the exit interview. What you need to do is speak with an employment attorney in our office who will figure out if the termination was lawful and whether the employer acted unlawfully prior to the termination date, i.e. demotions, discrimination, etc.
If anything mentioned above sounds like your current situation, or if you find yourself there in the future, Carey & Associates, P.C. can help! Our firm specializes in employment, wrongful termination, discrimination, whistleblowing, and more.
Equal employment opportunities offer protection against being discriminated due to race, color, religion or sex.
Gender Identity Discrimination
When employers fire employees because of their sex, it is illegal under state and federal laws. Now, individuals who are in the process of transitioning their sex (transgender) are also protected against employer discrimination because of their sex.
The Sixth Circuit Court of Appeals ruled (see full opinion) that employers who fire employees because the employee has announced they are transitioning to become a man or woman, violates Title VII of the 1964 Civil Rights Act.
The Court specifically held that employers cannot discriminate against an employee who is gender “non-conforming” without violating their rights.
Here is an excerpt from the judgement:
“Second, discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping. As we recognized in Smith, a transgender person is someone who “fails to act and/or identify with his or her gender”—i.e., someone who is inherently “gender non-conforming.” 378 F.3d at 575; see also id. at 568 (explaining that transgender status is characterized by the American Psychiatric Association as “a disjunction between an individual’s sexual organs and sexual identity”). Thus, an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.”
If you are a transgender employee experiencing discrimination at work, please contact Mark P. Carey, PC to determine how to stop the illegal behavior.
If you have a non-competition agreement (also known as non-compete) with your employer, it’s important that you understand the information which can be used to legally destroy the agreement. Here are factors the courts here in Connecticut use to analyze non-compete agreements.
1. Employee Must Have an Intention to Enter into Non-compete Agreements
No one can make you sign an agreement. An employee must intentionally and voluntarily consent to entering into a non-competition agreement. But why would any employee ever want to do that. These agreements are one sided and only protect the employer. If your employer forces you to sign an agreement under threat of termination, you do have rights. Once you leave and work for a competitor, your old employer may come after you. You can successfully argue that the non-competition agreement was a sham or a take it or leave it agreement. Again, why would you ever want to enter this type of agreement? Courts routinely relieve employees from non-competition agreements here in Connecticut based on this argument.
2. The Non-compete Agreement Must Be Reasonable in Duration
Every non-competition agreement must be reasonable in duration of time. We have seen compete periods of up to five years. Courts in Connecticut have held that one and two year limitations are reasonable. However, this is only one factor in the court’s analysis and it is not dispositive.
3. The Non-compete Agreement Must Be Reasonable in Geographic Area
Every non-competition agreement must be reasonable in geographic scope. Larger employers set the geographic scope to be worldwide and nationwide. Smaller employers use more localized areas such as 15 miles from each office, an example would be a real estate office. The Courts here in Connecticut will analyze this as one factor, but it is not the controlling factor. Courts will not enforce a non-compete if the company has several offices in Connecticut and restricts employees to 15 miles from any office in Connecticut; effectively barring employment in Connecticut. William Raveis Real Estate is a company that uses this type of non-compete geographic scope. Recently, the Court informed Raveis that this form of agreement is unenforceable.
4. The Non-compete Agreement Must Not Limit the Employee’s Ability to Work
The biggest factor in whether a non-compete would be enforceable is whether the agreement limits the reasonable ability of the employee to obtain work in his or her chosen profession. If the agreement is too lopsided in favor of the employer, Courts here in Connecticut will void the agreement. Courts typically review the protections afforded the employer to protect against competitive behavior versus the employee’s right to work and make a living. Each case is fact and context specific. The next item on the list provides the solution regarding the balancing of interests between the parties.
5. Strategy to Escape Non-compete Agreements
If the employer has a non-compete, we always look to determine if the employer enforces these agreements consistently. The employer’s burden is to show it consistently applies the agreement to everyone. But if some employees leave with non-compete agreements and start a competitive hedge fund in competition with their former employer, like Bridgewater Associates, Courts will deny protection to the employer. Go to the Connecticut Superior Court website and look up the employers actions to sue employees. Also ask around and see if other employees who have departed received nasty cease and desist letters when they went to work for a competitor. If they did not receive a cease and desist or were not sued in Court, this information becomes your leverage to argue your non-compete agreement is not legally enforceable.
The main argument we always use is that the employee never intended to enter the agreement, thus there was no legal consideration or glue to bind you to the agreement. This is a basic contract issue. You will need to draft a sworn affidavit that explains when you received the agreement, had little if any time to review it, did not consult an attorney, you could not negotiate the agreement and the employer conditioned your job unless you signed the agreement. We routinely send the signed affidavit to the employer along with a very detailed legal argument. Employers either forget the matter or try to push back with a cease and desist letter, assuming you went to work for a competitive employer. We will also file suit here in Connecticut against the employer to get the noncompetition agreement to be declared illegal and unenforceable.
Are you currently looking for help with a non-competition agreement or have other employment law questions? At Mark P. Carey P.C., our employment attorneys are here to provide information and help to all Connecticut employees.
If public shaming is the new normal for dealing with sexual harassers, then how do we fix the ineffective sexual harassment laws currently in place? I have the quick fix and it makes perfect sense.
Make Sexual Harassers Personally Liable
Currently, when sexual harassers do their evil deeds, there is no penalty. Under federal law, only employers are liable. In a few states, offenders are held personally liable, for example, Massachusetts and Ohio. If the harasser understands that placing his hand on a woman’s breast or other body part has a $150,000 price tag for the single act, the harasser will think twice. If the harasser also understands that they could lose their job in addition to paying a huge settlement to the victim, then they would avoid groping other employees.
Remove the Caps on Damages Under Federal Law
Under federal law, damages for sexual harassment offenses are capped at $300,000 for both back pay and punitive damages. Trust me, this compromise struck between Congressional Democrats and Republicans in enacting the 1991 Civil Rights Act was far too low to make any real difference to deter sexual harassment. We need to remove the cap on damages that were promoted by the Washington D.C. K Street lobbyists whom promoted the caps in the first place.
Make All Settlements of Sexual Assault and Sexual Harassment Public But Conceal Victim Identities
I recently wrote about making sexual harassment settlements transparent. Transparency of all sexual harassment settlements will deter both the employers and employees from engaging in unwanted sexual harassment. We would hope that companies do more to take care of the very employees who promote the employer’s products and services; the same employees who have close professional relationships with their customers and vendors. While transparency will add further deterrence, we also need to conceal the identities of the victims of sexual harassment in settlement agreements. There is no need to harm these victims any further.
All Perpetrators of Sexual Assault and Sexual Harassment Will be Listed on the National Sex Offenders Registry
If the price tag for an occasional groping did not stop bad behavior, the next solution will. Currently, we have a nationwide sex offender registry. If you are convicted of criminal or civil sexual assault, you are automatically registered on the sex offender registry. We now need to modify current state and federal laws regarding sexual harassment at work and place all perpetrators of sexual assault and harassment on that list.
Provide a Tax Deduction to Victims of Sexual Assault and Sexual Harassment for Pursuing Claims of Discrimination
Prior to the 2018 tax overhaul, victims of sexual harassment could claim a tax deduction for legal fees and expenses in pursuit of sexual harassment claims. The tax act removed that benefit from both employers and employees. I propose reinstating the tax benefit only to employees who are the victims of sexual harassment. Frankly, it is morally the correct thing to do. We should not be cutting victims off at the knees.
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If a woman makes a sexual harassment complaint to her employer, should the claim and the resulting settlement be confidential? The short answer is “no.”
INTERNAL SEXUAL HARASMENT INVESTIGATIONS SHOULD BE TRANSPARENT
When an employee files an internal complaint of sex discrimination or sexual harassment, the company immediately begins an internal investigation. However, the complaining employee will never know the result of the internal investigation and she lacks any legal rights to demand a written or verbal finding. Employers are mandated to conduct the investigation under federal law, if the employer wants the protection of an affirmative defense that it took action to remediate the underlying cause of the sexual harassment complaint. You would think an “investigation” would have some curative effect, but it does not.
The corporate investigation should be open for all to see how terrible a male co-worker or supervisor actually behaved toward his female counterpart. We cannot bury our heads under the cover of confidentiality of corporate investigations, just because the legal department said so. The only reason why companies keep corporate investigations confidential is because the company is seeking to build a case to protect itself against the complaining employee; there is no value to the employee whatsoever.
THE SETTLEMENT AGREEMENT SHOULD ALSO BE TRANSPARENT
Employers love confidentiality provisions in settlement agreements. They and their counsel claim the company is buying confidentiality in exchange for the settlement payment. In reality, the company is buying the release of legal claims. Confidentiality provisions have long been a staple of settlement agreements, in particular in employment discrimination cases, because employers demand them. Employees who complained of sexual harassment did not demand confidentiality. Employees want public disclosure in order to signal to other employees to watch out for the alleged perpetrator so he does not repeat the offense on others. In addition, public shaming of individuals who commit sexual harassment offenses is now the norm.
Today, Congress has taken one step closer to making confidentiality provisions illegal. The new Tax Cuts and Jobs Act seeks to restrain corporate tax deductions for legal fees and settlements related to sexual harassment claims. In essence, if a corporation wants a tax deduction it has to make the settlement of sexual harassment cases public and not confidential. If the company seeks the confidentiality clause in the settlement agreement, they are prohibited from taking the deduction.
See a similar discussion on the same topic at #metoo Sexual Harassment Laws Are Broken.
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