Employment Law Attorneys
Metlife and Employment Racism, Black Lives Matter, and Diversity Initiatives

Metlife and Employment Racism, Black Lives Matter, and Diversity Initiatives

In this episode of the Employee Survival Guide, Mark discusses a current employment discrimination case brought by a former Metlife employee in Connecticut on December 4, 2019.  The employee, who is Black, accuses Metlife of race discrimination in her employment.
Mark examines the company’s BLM response and diversity initiatives across the company and the contemporaneous employment discrimination experienced by an employee of the company.  The episode concludes by asking whether Metlife was just marketing in reaction to the George Floyd murder and subsequent protests or whether Metlife really meant to bring about permanent change.   The answer is very clear.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Tags: MetlifeEmploymentRacismBlack Lives Matter

Metlife and Employment Racism, Black Lives Matter, and Diversity Initiatives

Metlife and Employment Racism, Black Lives Matter, and Diversity Initiatives

By Mark Carey

This article features a current employment discrimination case brought by a former Metlife employee in Connecticut on December 4, 2019.  The employee, who is Black, accuses Metlife of race discrimination in her employment.  The case was filed pro se and I volunteered as pro bono counsel along with a colleague in May 2020.  The case is captioned as Stefanie Cunningham v. Metlife Group, Inc. and Metropolitan Life Insurance Company, 3:19-cv-01912 (AWT) (D.Conn.).  A copy of the First Amended Complaint is attached hereto.

In September 2011, Ms. Cunningham became employed with Metlife, in the company’s Bloomfield, Connecticut offices.  She worked there continuously and with good performance reviews until racial problems arose in her employment.  During her tenure, Ms. Cunningham was working towards her Ph.D.

In July 2017, Ashlee Tringo, a biracial African American, became Ms. Cunningham’s supervisor.  Ms. Cunningham’s former supervisor was Ms. Tringo’s husband, a Caucasian.  Ms. Tringo asked Ms. Cunningham if she was Puerto Rican, and she responded no, that she was African American.  You are probably thinking, why is the supervisor attempting to discover her race and why is that even relevant to her work duties—it’s not!  Ms. Cunningham retorted that she does not talk about her race at work and that she was raised African American.  Coincidentally, Ms. Cunningham’s sister was also employed at the company.  Ms. Tringo further asked why Ms. Cunningham and her sister had different textured hair. Specifically, Ms. Tringo inquired if Ms. Cunningham was mixed race or biracial. Adamant, Ms. Tringo argued that she could see the textual differences in the sisters’ hair and demanded to know why.  Again, these are not relevant questions related to work and are discriminatory.

During her training, Ms. Cunningham was confronted by another African American employee who was providing job training.  The employee stated to Ms. Cunningham “you are a fake black person”.  Ms. Cunningham immediately reported the incident to Human Resources and explained how shocked she was by the work environment at Metlife.  An investigation ensued but as usual the company failed to confirm the existence of any discrimination or even that the racial statement was made.

In October 2017, Ms. Tringo abruptly gave Ms. Cunningham a written warning that was factually baseless and intended to harass Ms. Cunningham.

During her employment she would attend daily team huddles, wherein Ms. Tringo again made comments about Ms. Cunningham’s hair, that it is kinky and looks like pubic hair.  Again, why is this even relevant to Ms. Cunningham’s work duties and performance—it’s not.

Ms. Tringo would often discuss her personal life while at work in front of Ms. Cunningham.  “Ms. Tringo described the details of taking a shower with Matt [her husband and Ms. Cunningham’s former supervisor] at his parents’ house, compared to her new master bathroom at their new home, with sexual inferences. Ms. Tringo stated that she had more white girlfriends then black ones and in fact she stated she didn’t have any black girlfriends. She also told Plaintiff and others how she was a bully in school and that she had her friends help her bully and taunt a girl for stealing her sneakers.” (First Amend. Compl. ¶23).

On July 17, 2017, a federal judge (Judge William Pauley, III, deceased) in Manhattan approved a $32.5 million settlement to resolve a racial discrimination class action suit filed by former Metlife financial service representatives. “At Metlife, we are committed to promoting a diverse and inclusive workplace and do not condone discrimination,” Kim Friedman, a company spokesperson, said in a July 6, 2017 email to Bloomberg BNA.”

On April 25, 2018, Metlife received a state agency complaint for racial discrimination that Ms. Cunningham had filed the same day via telephone.  On that same date, Ms. Cunningham received a written warning for allegedly “not being productive”; she refused to sign the warning.  “After being handed the warning [Ms. Cunningham] just started to cry as she had tried so hard to rise above all the discriminatory conduct and finally hit a wall.” (First Amend. Comp. ¶ 57). After the complaint was filed, Ms. Tringo targeted Ms. Cunningham and made every attempt to force her to quit.  Eventually, Ms. Cunningham was forced to take a medical leave of absence on June 7, 2018 due to the enormous stress caused by Ms. Tringo’s racial discrimination directed at her.

Before her leave, Ms. Cunningham repeatedly complained to Human Resources in January 2018 but nothing was ever done to correct the racially hostile work environment which continued until the day Ms. Cunningham left on a short term disability leave of absence.  She relayed all of Ms. Tringo’s racial comments, that her hair looks like pubic hair, whether her hair was real, if she used chemicals to straighten her hair, if she was the lightest one in her family etc.  The Human Resources employee admitted Ms. Cunningham should not have been treated in this discriminatory manner and told her she would speak to Ms. Tringo directly.  Ms. Cunningham requested a transfer out of the department, but the Human Resource employee stated she had to work out her differences with Ms. Tringo.  How does a Black employee work out “differences” created by a racist bi-racial supervisor they are forced to work under?  Things got even worse.  Ms. Cunningham was denied a promotion by Ms. Tringo, which was given to a lesser qualified Caucasian co-worker.  In February 2018, Ms. Cunningham again complained to Human Resources asking to be removed from an unhealthy work environment.   The Human Resource employee denied her request.

On May 7, 2018, Metlife concluded it’s purported investigation of Ms. Cunningham’s complaints of racial discrimination and reported that it had found no racial issues.  The HR investigator told Ms. Cunningham she had interviewed her coworkers, but Ms. Cunningham asked her coworkers if anyone from HR had called them. Her coworkers all denied being questioned by HR.  On June 6, 2018, Ms. Cunningham filed a police report complaining of a hostile work environment and racial discrimination.

On June 1, 2020, Metlife tweeted on its social media account, “As a company that is deeply committed to diversity, inclusion and human rights, we will strengthen our resolve in advocating for change and in doing our part so that we build a society that protects all people and values all voices.”

On June 18, 2020, the Metlife Foundation “announced it was committing $5 million over the next three years to advance racial equity in the United States.  The Foundation will use these funds to promote Black educational and career opportunities, Black business ownership, and racial-justice initiatives…Metlife Foundation’s $5 million pledge will supplement the $10 million in annual contributions it already makes to support diverse communities and racial equality, along with $100 million in impact investments made by Metlife Investment Management to support diverse communities and small businesses.”  However, Metlife never defines what these initiatives are or defines impact investments.  You would need to research these in company filings made to the Securities & Exchange Commission, but who besides me has the time and patience to do so—no one that’s the point—it’s all a marketing and public relations program to make it appear Metlife is concerned about important social issues.

The Metlife Foundation announcement goes on to include this statement, “[I]n 2019, Metlife joined CEO Action for Diversity & Inclusion, the largest CEO-driven business commitment to advance diversity and inclusion in the workplace.” The Metlife CEO is Michel Khalaf, who reportedly earned $15,434,255 in total compensation in 2020.  (Source)  All CEOs who join the initiative pledge a specific set of actions the signatory CEOs will take to cultivate a trusting environment where all ideas are welcomed, and employees feel comfortable and empowered to have discussions about diversity and inclusion.” Remember, this CEO initiative began at the same time as Ms. Cunningham’s racial discrimination case was getting under way.

The CEO pledge reveals the primary goal for all company CEOs that sign it, “we know that diversity is good for the economy; it improves corporate performance, drives growth and enhances employee engagement.” The pledge contains four commitments all company CEOs have committed their organizations to:

  1. We will continue to make our workplaces trusting places to have complex, and sometimes difficult conversations about diversity and inclusion.
  2. We will implement and expand unconscious bias education.
  3. We will share best—and unsuccessful—practices.
  4. We will create and share strategic inclusion and diversity plans with our board of directors.

On June 24, 2020, Metlife tweeted “[i]nclusion is a priority at Metlife. Click here to read how we’re using our Global #Inclusion and #Diversity Insights Study to strengthen our culture: spr.ly/6011GKo11” When you click on the last link in the text it produces a 404 error code meaning the company page was taken down. Why?

According to the company’s website regarding Global Diversity Inclusion “Our Workplace”, the company fails to include any information about Blacks on this set of pages describing current diversity and inclusion initiatives. Why?

On June 21, 2021, Metlife filed a certified EEO-1 form to the U.S. Equal Employment Opportunity Commission, which reveals that no (zero) Blacks or African Americans occupy positions in the C-suite (Executive Officers/Senior Officials & Managers). Overall, Blacks or African Americans occupy only 3% of the entire company workforce.  In comparison, Blacks and African Americans comprise 13.4% of the U.S. population, according to the latest Census data.  However, Dr. Cindy Pace, African American, is the Vice President, Global Chief Diversity & Inclusion Officer at Metlife. She has held this lead role since April 2019.   She tweets at https://twitter.com/savvycindy.

Ms. Cunningham’s case continues to the present.  As her attorneys, we have recently filed motions to compel further discovery and motions for sanctions against the defendants and their legal counsel. The issues involved in each motion address the wholesale failure to provide relevant discovery to Ms. Cunningham and absurd legal objections designed to conceal the very same racial discrimination alleged in the First Amended Complaint.  In addition, Metlife has sought to shield a great many documents behind the attorney-client privilege. However, as claimed in Ms. Cunningham’s motions, Metlife abused the attorney-client privilege because the attorney identified in the defendants’ privilege log was not admitted in Connecticut during all dates of his communications from New York to the defendants’ employees in Connecticut who were handling Ms. Cunningham’s internal complaints of discrimination and her agency complaint for the same.  Strangely, during a telephone conference, I was sternly warned by defendants’ legal counsel not to pursue a claim of the unauthorized practice of law by the out-of-state attorney in New York, who was also a former associate at the same firm.  Both the District of Connecticut and the Statewide Grievance Panel will have to decide this issue.

What is your impression regarding Metlife’s efforts to support Black Lives Matter and Diversity Initiative while also handling of Ms. Cunningham’s case during the same period of time? Is Metlife canceling Ms. Cunningham while at the same time seeking to promote its’ corporate image related to  the treatment of Blacks in America?  The aforementioned information was all derived from publicly available information.

If you would like more information about this article, please contact our employment attorneys at Carey & Associates P.C. at 203-255-4150 or email to info@capclaw.com.

First Amended Complaint as filed

 

 

Podcast: The End of Noncompete Agreements Nationally

Podcast: The End of Noncompete Agreements Nationally

The End of Noncompete Agreements Nationally: In this episode of the Employee Survival Guide, Mark discusses a controversial new public policy change from the federal government to issue a Federal Trade Commission rule to ban noncompetition agreements in employment nationally; historically this is a state law domain.   As usual, Mark adds his commentary of this historic event based on his years of employment litigation on the issue of noncompetition agreements and similar issues.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information about The End of Noncompete Agreements Nationally, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

Connecticut Employment Attorney

Podcast: The End of Noncompete Agreements Nationally

The End of NonCompete Agreements Nationally

By Mark Carey

If you have a noncompete agreement or about to be handed one, the following information is very important.  The collective “you” here covers an estimated 40-60 million employees nationwide, from executives to low wage workers in the service economy.  The epidemic use of noncompete agreements has gotten out of control and too many employees have needlessly and financially suffered under this onerous default management practice.  The end of this BS employment practice has now arrived!

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, because 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.

Federal Trade Commission Has Finally Weighed In

According to the Federal Trade Commission website, “On January 9, 2020, the Federal Trade Commission held a public workshop to examine whether there is sufficient legal basis and empirical economic support to promulgate a Commission Rule that would restrict the use of noncompete clauses in employer-employee employment contracts.” Proponents of the ban on noncompete agreements seek to create a rule that noncompete agreements in the workplace are an unfair method of competition under Section 5(a) of the Federal Trade Commission Act. Obviously, litigation will ensue right up to the U.S. Supreme Court, most likely on federalism grounds where opponents of the ban will argue states have a right to make and enforce their individual state laws vs. the federal government.

President Biden Issues a Comprehensive Executive Order Banning Noncompete Agreements

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.”

The End of Abusive Default Management Practices

The above Executive Order banning noncompete agreements marks the beginning of the end of abusive management practices that has enveloped the nation’s workforce since the founding of this country.  Other onerous default management practices such as forced arbitration, forced confidentiality of settlements, lack of employee privacy, lack of freedom of speech at work in the private sector and the employment-at-will rule, all strip employees of basic civil rights and negotiation power, and in some instances promote discrimination.   Employees are indispensable to the operations and profitability of all companies, think of the Amazon warehouse in your neighborhood without line workers. How will your prime delivery get to you when you press “buy now” on the website? Employers dehumanize employees down to their human capital quotient for capitalism purposes.  We should all be mindful not to break the collective backs of our nation’s workforce, and begin to recognize them for what they really mean to our economy as a whole.  We need to bring more fairness and transparency to the workplace.

If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or email to info@capclaw.com.  Thank you and be well.

The End of Non-Compete Agreements Nationally

Podcast Episode: COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

Carey Reaches 4000 Mile Marker on His Solo MS Fundraiser

Carey Reaches 4000 Mile Marker on His Solo MS Fundraiser

By Mark Carey

Yes, I am still riding day and night to reach 10,000 miles in one year and raising money for a cure for Multiple Sclerosis (MS).  On June 29, 2021, I reached the 4000.5 mile marker on a particularly humid and hot 92 degree June evening. I have 6000 more miles to go.   To date, I have raised over $5000.  You can help contribute any dollar amount to this worthy cause by donating HERE. If you are NOT on Facebook, please use this donation link HERE.   You can follow my daily rides on Strava.com HERE.

Who Are the Real Heroes We Are Helping Here?

People who have MS are just like you and me, but you might not know who they are.  MS is deceptive, as most symptoms are not noticeable in people with MS, but in others the symptoms are more obvious such as mobility issues.  People with MS are “fighters” and they are the most courageous, genuine and straightforward people you will ever meet.

Top MS Facts You Need to Know About

 

What is Multiple Sclerosis?

MS is a chronic disease of the central nervous system, which is made up of the brain, the spinal cord and optic nerves.  The body’s own immune system attacks the central nervous system.  Once attacked, the damage to the central nervous system interferes with the transmission of nerve signals between the brain, the spinal cord and other parts of the body.

Who Does MS Affect?

Women Are 2-3 times more likely to be diagnosed than men. Most people are diagnosed between 20 -50 years of age. MS impacts 1-3 million individuals worldwide.

Is There a Cure for MS?

There is no cure, although Bio-N-Tech has developed a vaccine/cure in animal studies in mice. Click HERE for more information about this research and possible cure.

Three Types of MS

Relapsing Remitting MS (RRMS) (85% of all cases) characterized by periods of relapses (new symptoms or a new worsening of older symptoms also called attacks or exacerbations) that subside, with full or partial recovery, and no disease progression (worsening) between attacks.

Secondary Progressive MS (SPMS) (50% of all cases) is characterized by a more progressive course, with or without relapses or new MRI activity.

Primary Progressive MS (PPMS) (15% of all cases) is characterized by a gradual but steady progression of disability from the onset of symptoms, with few or no relapses or remissions.

MS Symptoms Vary

The most common symptoms of MS include fatigue, numbness and tingling, blurred vision, double vision, weakness, poor coordination, imbalance, pain, depression and problems with memory and concentration. Less commonly MS may cause tremor, paralysis and blindness.

How is MS Diagnosed?

MRI, spinal fluid analysis, blood tests, evoked potentials (EEG).

MS Is An Expensive Disease

The total lifetime costs per person with MS is estimated to be $4.1 million. The average annual healthcare costs are estimated between $30,000-$100,000 per person based on the type of MS.

MS And Employment

People with MS work every day.  A majority of people with MS will encounter employment related issues during their careers.  For example, employees with MS require periodic time off to take medications and require time off during exacerbations. Employers are required to provide reasonable accommodations in the form of paid sick leave.  In more serious cases, employees with MS require longer disability leaves of absences and apply and receive paid short and long term disability benefits through their employers.  As an ERISA attorney, I have successfully handled these types of cases for MS clients, as the medical evidence is usually dispositive and benefits are almost always awarded by the employer’s disability carrier.

Employees with MS also face employment discrimination while on the job.  Discrimination issues range from denial of accommodations, refusal to provide disability leave, demotions and wrongful terminations.  I have also successfully handled and resolved a great number of MS discrimination cases over my career.

If you would like more information about this topic or would like to speak to an employment attorney about your case, please contact Carey & Associates PC at info@capclaw.com. #10000MILES4MS

Carey Reaches 4000 Mile Marker on His Solo MS Fundraiser

Carey’s Solo Journey to Cycle 10,000 Miles to Cure MS

The Nation- The Dangers of Working While Black on Wall Street

The Nation- The Dangers of Working While Black on Wall Street

By Mark Carey

The financial industry is notorious for its cutthroat culture, largess incomes and racism.  On June 21, 2021, the publication The Nation issued an alarming article by investigative journalist Susan Antilla using the above caption.  The article explores the many destroyed careers of people of color on Wall Street and the financial firms and industry self-regulatory agencies that cover up overt racism through confidentiality agreements and forced arbitration.

Ms. Antilla wrote “…the industry is vowing to change. In the wake of last summer’s unrest, Merrill parent Bank of America and other giant financial institutions rushed to make commitments to racial justice and in several cases broke an industry-wide silence, releasing statistics that exposed the paucity of Black people and other minorities in the workforces.  Merrill, for instance, revealed in August that 780 of its 17,500 brokers are Black, a figure of 4.5 percent. That’s a 125 percent increase since 1994, when 2 percent of its brokerage force was Black.  But in an industry with sparse Black representation, it is easy to double or even triple a minority group’s numbers. More illuminating is that the Black segment of the firm’s brokers—also known as financial advisors—grew only 2.5 percentage points over those 26 years…”  For comparison purposes, Blacks statistically make up 13.4% of the U.S. population according to the latest Census data.

The article continues in pertinent part, “Whether sincere or motivated by image concerns, Wall Street’s heightened passion for addressing the racism in its midst has opened an important conversation about recruitment, promotion, and pay policies in one of the nations most lucrative businesses. Missing from the dialogue so far, though, are some key questions: When racism does occur, how do firms treat Black employees who complaint? And what happens to Black people when they take their complaints to arbitration or to court?”

Ms. Antilla writes, “Racism exists in every industry, of course. But on Wall Street, where the potential earning power is vast, Black people face formidable barriers. They make up 13 percent of the US workforce, but they occupy only 2.9 percent of the industry’s financial adviser jobs, according to a January report by Cerulli Associates. Those who manage to get jobs can wind up losing them after enduring racist remarks, managers who deny them privileges enjoyed by their white colleagues, and social isolation that is both painful and distracting. The financial industry is a sharp-elbowed business that requires a thick skin to survive, but the brutality aimed at Black people exacts a different kind of toll. Capel and his colleagues gave an example of the day-to-day degradation in their complaint: A Merrill Lynch manager was photographing his brokers for a bulletin board display and suggested to a Black broker that he needn’t have his photo taken. ‘I can find your picture down at the precinct,’ the manager quipped.”

“Today, most major investment banks require employees to agree to arbitration—a policy that the rest of corporate America has admired and copied. Goldman Sachs, UBS, and Edward D. Jones are among those who have fought and won when employees tried to pursue civil rights claims in court. But few have gone to the extremes of Morgan Stanley, which has faced multiple racism complaints by Black former employees. In 2015, the firm sent e-mails to 36,000 workers that required them to respond to the company and opt out of a new mandatory arbitration policy if they wanted to retain the right to sue in court. The message included no hint of time sensitivity or importance in its subject line, and many employees said they didn’t recall receiving it. In the end, more than 30,000 employees failed to opt out, including several Black brokers who would later be forced into private arbitration.”  Our law firm has represented former Morgan Stanley employees who were duped into these “forced arbitration agreements” and have argued in federal court against these now notorious email sham arbitration contracts.  Unfortunately, courts have condoned this behavior in light of prior court decisions.

In 2018, a federal judge in New Jersey granted Morgan Stanley’s motion to compel forced arbitration in the matter of Craig Schmell v. Morgan Stanley & Co, Inc., 3:2017cv13080 [Doc.#35]. “CARE [Convenient Access to Resolutions for Employees] was implemented pursuant to an opt-out system between September and October 2015.  During this period, Defendant sent emails to all employees informing them ‘that the program was mandatory unless they opted out and that their continued employment without opting out constituted acceptance of [the Agreement]…The fact that the email appeared in Plaintiff’s inbox, combined with the expectation that Plaintiff would read his email, is sufficient to indicate that Plaintiff had notice of the Agreement.” The same decision was reached by a federal judge in the Southern District of New York in Lockette v. Morgan Stanley, 1:18cv00876 [Doc.#35].  The Court endorsed the use of the forced arbitration agreement sent to employees via email, even if the employee never opened the email or noticed it was sent to his inbox.  In all of the reported decisions, the forced arbitration emails were mostly sent to Morgan Stanley emails on a Friday evening over a Labor Day weekend, as reported in our own cases and those reported on Court databases.

Glencore, another leading commodities trading firm also uses forced arbitration for all new hires. However, the “trick” forced arbitration agreement was not contained in an email but in small print on the bottom of generic employment application. A federal judge in Connecticut in Murphy v. Glencore LTD, 3:18cv01027, granted Glencore’s motion to compel its’ forced arbitration agreement in a case that we filed during the #metoo movement on behalf of our client, holding, “Murphy further argues that Title VII employment discrimination claims are non-arbitrable as a matter of public policy. She contends that ‘[g]ender discrimination cases need to be decided in the public forum’ to ensure that companies are held accountable. The confidential nature of private arbitration, she says, ‘only helps to cover up the problem’ and does ‘nothing to deter [an employer] from discriminating in the future. Without minimizing the gravity of Plaintiff’s arguments—the subject of passionate and contentious debate for decades across this nation’s courts and legislatures—we are bound by precedent and cannot accept her position.”

For a more in depth discussion on forced arbitration and other issues faced by employees pursuing employment discrimination cases in federal court, I strongly encourage you to read Loser’s Rules by a former federal judge Nancy Gertner. Although the article was written in 2012, I will represent as a practicing litigator in many federal courts across this country for the past twenty-five years, the Loser’s Rules are alive and well.

The Nation article further identifies the dispute resolution programs, a.k.a. forced arbitration tribunals, such as JAMS and FINRA which are the sole judicial remedy for race discrimination employment complaints in the financial industry.  Financial employees cannot go directly to court and present their cases to the public and to a jury.  They must file their cases with FINRA or JAMS under the cloak of confidentiality.  In the absence of confidentiality, we would all discover the rampant discrimination Susan Antilla reveals in her article.  In every forced arbitration case our firm encounters, we seek to file court actions challenging the enforceability of the arbitration agreement AND lay out all the facts of the underlying discrimination claims for public consumption.  Maybe there are other employees who will hear about the case and come forward with similar stories of ridiculous discriminatory behavior.

Ms. Antila reports that “[O]n April 29, FINRA published a notice seeking comment on any aspects of its rules and processes that might create “unintended barriers” to greater diversity in the industry. FINRA “is committed to fostering an inclusive and diverse workplace, and to doing our part (subject to our statutory mandate) in the fight against racism and prejudice within our industry and communities,” its spokesperson said in a statement. Brokerage firms have also shown willingness to change. People of color make up more than one-third of the current class of financial advisors in the training program at Bank of America’s Merrill Lynch, according to spokesman Halldin. And in early June, Goldman Sachs yielded to shareholder pressure and said it would undertake a review to see how forced arbitration impacts its employees. The move inspired optimism that opponents of forced arbitration are making progress in pursuing its demise.”

I offer some closing thoughts for you to consider.  Every employment case filed in any judicial proceeding should and must be made public and not shielded by confidentiality agreements, nondisclosure agreements, and forced arbitration agreements.  These default tactics used by almost all employers, whose owners come from both political camps, only perpetuate inequality and discrimination of all types.  We have reached the crisis stage with respect to forced arbitration and it would take an act of Congress to amend or eliminate the Federal Arbitration Act. The Securities & Exchange Commission in cooperation with FINRA need to modify financial industry regulations to remove confidentiality from arbitration and to require mandatory disclosure of discrimination cases in company public filings.

If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or email to info@capclaw.com.

The Nation The Dangers of Working While Black on Wall Street

 

Free Yourself From Forced Arbitration

Four Ways to Get Out of Arbitration Agreements At Work

Taking ‘Forced’ Out of Employee Arbitration Agreements: A Review of New Article by Employee Rights Advocacy Institute for Law & Policy

 

 

 

 

 

Mark Talks With Nick Corcodilos about Enforcing Oral Promises and Effective Job Search Strategies

Mark Talks With Nick Corcodilos about Enforcing Oral Promises and Effective Job Search Strategies

On this episode of the Employee Survival Guide Mark Carey has an interesting discussion with his friend Nick Corcodilos from Asktheheadhunter.com.  The focus of the hearty exchange is about oral promises of employment and how to enforce them when the employer gets cold feet.  They also discuss job search methods and how to conduct a successful job search using targeted job search strategies.  Mark and Nick share stories and tips from their combined experience handling employment law matters and counseling clients regarding landing a job.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Employer Mandated Covid-19 Vaccinations for All Employees

Employer Mandated Covid-19 Vaccinations for All Employees

Employer Mandated Covid-19 Vaccinations for All Employees

By Mark Carey

Employers can now mandate all employees to get a Covid-19 vaccination as a condition of their employment without violating federal laws. This resolution was anticipated but it is unclear how the guidance will be followed after the population falls short of the so called herd immunity.  On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance that allows all employers to require a Covid-19 vaccination in order to work, with two exceptions.  Specifically, the EEOC guidance states for all employees entering back to the physical workspace, they must provide proof of vaccination.  The guidance is just that, not a governmental mandate. The EEOC is the primary agency in charge of enforcing work related policies and statutes.

Direct Threat – Primary Rationale by Employers

In essence, the EEOC stated that if an employee refuses to show proof of vaccination, then the employer has the right to prevent the employee from coming to the physical workspace and terminate the employee if necessary.  The primary rationale is that an unvaccinated employee poses a “direct threat” to the employer and its’ employees, which trumps the few employment rights employees already have.  There are two exceptions. First, if the Covid-19 vaccination would interfere with the employee’s medical condition, including pregnancy, he or she has the right to request a reasonable accommodation under federal disability laws.  Second, if because of religious reasons the employee does not want to become vaccinated, he or she again can request a reasonable accommodation from the employer. In both cases, the employee must provide supporting documentation that they qualify for the exemption. The employer is required to follow federal law and provide an interactive discussion regarding possible reasonable disability and religious reasonable accommodations.

Will the Government Mandate Vaccination to Win the War Against Covid-19?

Although I was interested in providing this newsworthy item, I was more interested in the future of how this guidance will be enforced once we have reached a national impasse where far too many employees refuse to vaccinate and the pandemic roils onward.  Forget everything we now know, including politics, as these are unchartered waters.  How do you require employees to vaccinate for Covid-19 against their will?  Answer, by the force of the rule of law due to a national health emergency. I wrote about this issue recently, Employer Mandated Covid-19 Vaccinations- Can They Do that?.  Remember, your individual rights are only as strong as the country you belong to, but if the country is under attack – guess what- the government takes over to defend us all.  The governmental action will not come from the EEOC, but from an Act of Congress under the War Powers Act (War Powers Resolution of 1973).

The federal government will pass legislation requiring all employees to become vaccinated in order to finally bring an end to the pandemic and the overall infringement on our personal freedoms.  I predict this will happen once we see a resurgence of Covid-19 cases in the unvaccinated population and it will be riding tandem with the end of the vaccination efficacy period for which data is still emerging, i.e. the date when the current Covid-19 vaccines wear off. These events might also coincide with a substantial decline of the Covid-19 vaccines efficacy against new highly contagious variants.   If this perfect storm hits the U.S., consider it an act of war and the federal government will institute an unprecedented vaccination mandate requiring all employees, including the non-working population, to vaccinate.  Our government is immensely powerful indeed, regardless of who is in power, and it can declare an act of war against foreign enemies; we just have not done so since 1942. It is not impossible.  Covid-19 is that foreign enemy.  Prepare yourselves, as this may get uglier before the enemy is finally defeated.

If you would like more information about this topic, please contact our employment attorneys at, (203) 255-4150, Carey & Associates, P.C. at info@capclaw.com.

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In this episode of the Employee Survival Guide, Mark discusses whether it is worth it to sue your employer.  The discussion covers the factors you will need to consider whether or not to sue your employer, which include the amount of time needed, paying for an hourly vs. contingency attorney, will the suit create a permanent record for new employers, whether or not you mitigated your damages and finding a sense of justice and what that means.

If you enjoyed this episode of the Employee Survival Guide, “Is it worth it to sue your employer?” please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

If you feel you are being discriminated against in the workplace, wrongfully discharged, sexually harassed or if you are stuck in a hostile working environment, have an employment contract or severance agreement to be reviewed, we want to help. Give Carey & Associates, P.C. a call today at (203) 255-4150 and speak with one of our Connecticut & New York Employment Law Attorneys to discuss how we can help you with your case or email us at info@capclaw.com. We help clients located in New York, Manhattan, Westchester County, Connecticut, Fairfield County, and nationwide with their current employment situations.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

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Podcast: Feedback Responses to Cancel Culture is Illegal At Work. In this episode of the Employee Survival Guide, Mark discusses the feedback responses he received from his first article and podcast Cancel Culture is Illegal At Work.

In response to my first article I received several angry email responses informing I was wrong about what is cancel culture and accused me of perpetuating whiteness. But none of the objections to the article provided a legal basis to support the continued use and protection of cancel culture at work. This is my point. Proponents of cancel culture are not even understanding the legal issues or just ignore them entirely in order to perpetuate their narrative. Social movements must have a footing in the rule of law, otherwise they do not and will not survive. Advocates of cancel culture never cite any legal basis to support its existence but for the fact it just “IS” and we should all heed to it.

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If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

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