By Mark Carey
If you are reading this article on your company provided computer or device, your employer is watching you and taking notes. Stop now and go to a personal device to read further. No really, I am not kidding! Your employer may even be watching you access your bank account and social media accounts. They may even be ease dropping on your conversations with your spouse, physician, therapist and attorney. Wait, what? Can they do that?
Wake up everyone, the technology is here in abundance. According to a Gartner Survey in 2018, “22% of organizations worldwide use employee-movement data, 17% are monitoring work-computer-usage data, and 16% are using Microsoft Outlook-or-calendar-usage data.” There are algorithms for just about any type of covert surveillance on your work-space. Companies know how long you are logged in, how many emails you send, how many phone calls you make, whether you check social media on your device etc. According to an interview from MarketWatch.com with Ifeoma Ajunwa, an assistant professor at Cornell University’s Industrial and Labor Relations School, there are three ways employers monitor employees, “location tracking through a company-issued phone’s GPS or an employee ID badge, communication monitoring through email monitoring, Slack messages or keystroke logging, and wellness programs that track health data, including sleep patterns.” What does the future look like and how can you protect yourself. Whether your employer’s surveillance upon your privacy while at work is legal, that does not necessarily lend a straight forward answer.
Does Your Company Have An Employer Monitoring Policy?
The first thing you need to do is check whether your employer maintains a written policy in any HR Portal or office poster that provides notice that your employer is monitoring and recording everything you do at work. If so, forget your freedoms under the U.S. Constitution- well you did not have any to begin with once you stepped into the private workplace. Yes, there are other statutes that provide additional rights, but you get the point.
How to Protect Against An Invasion of Privacy At Work?
The following suggestion is what I tell everyone, take your communications “off-line”. Never communicate personal or confidential information using a work related computer or device. Resist the temptation to check your private email on a work computer; yes, they can read your passionate comments to your spouse or your comments to a co-worker about blowing the whistle on the employer. If your employer utilizes video surveillance, then move to a location where you cannot be seen. I won’t suggest the bathroom because I heard rumors that employers record there too, even though that’s illegal. Workplace privacy means you believe you would have a reasonable expectation of privacy, i.e. the bathroom. Or better yet, do what employees at Bridgewater Associates do when they really want to talk privately- they leave the campus and go to a nearby restaurant, diner or coffee shop. At Bridgewater, every employee conversation, email, etc. is openly recorded in this Orwellian Big Brother is Watching You environment. Scary yes, but very, very real.
Employers Use Keystroke Monitoring Software
Sorry, but it’s technical. According to a recent Business.com Survey of the best 2019 employee monitoring software products, “Employee monitoring software can track employee web and application use, monitor chats and keystrokes, or filter specific types of online content making them inaccessible to employees…our top picks for employee monitoring software are Teramind, SentryPC, ActivTrak, ContectProtect and SoftActivity. For example, the Teramind software makes this ominous description about what the software can do, “this application can monitor your employees undetected, or it can run in transparent mode, which lets employees see that they’re being tracked. You can monitor employee activity in real time or set the software to collect snapshots to review later. This means administrators don’t need to spend time watching employees; instead automated notifications alert them whenever an employee violates your organization’s rules and policies”.
What is Keystroke Logging?
Although I don’t normally cite to Wikipedia, I will just to help explain what Keystroke Logging is. According to Wikipedia, keystroke logging “is the action of recording (logging) the keys struck on a keyboard, typically covertly, so that person using the keyboard is unaware that their actions are being monitored. Data can then be retrieved by the person operating the logging program. A keylogger can be either software or hardware”. As to the legality of this practice, Wikipedia points us to keylogger.org for further information, but the link only reveals more product reviews.
Is Employer Surveillance Legal?
Well, the short answer is yes. But if you want to read a whole lot more, check out this Article from 2016 presented by Jackson Lewis, P.C. attorneys to the American Bar Association in Washington, D.C.
You should be paranoid, it will save your butt!
If you want learn more about this subject, please call our employment attorneys and set up an appointment (203) 255-4150 or email Mark Carey at firstname.lastname@example.org.
Very often, someone will come to our office having just been fired, feeling that the reason given by their employer just doesn’t make sense. For example, a seasoned marketing executive loses his job shortly after his company brings in a team of young consultants. When the marketing department turns its focus exclusively upon social media, his role and responsibilities are gradually minimized. Eventually, he is terminated and replaced by several of his own former trainees.
In another instance, a Senior Benefits Administrator with 30 plus years of stellar performance is suddenly criticized by her new manager as, “incompetent” and “not a forward thinker”. She is placed on a performance improvement plan (PIP) and her workload is increased so much that she can no longer keep up. Meanwhile, the company posts a job ad for an entry level Benefits Administrator. After the new hire has shadowed her for a few weeks, her manager fires her for failing the PIP.
In yet another instance, a Strategy Analyst is abruptly demoted after over a decade in his supervisory position. He is assigned to “project work” as his role in the firm is slowly marginalized. The firm’s turns its employee recruitment efforts on finding “young”, “energetic”, “enthusiastic” new graduates. His compensation is drastically reduced when the firm decides to allocate the lion’s share of the annual bonus pool to its new hires. When he complains, he is warned that he could easily be replaced by a kid right out of school for a fraction of his salary.
Age discrimination occurs when an employer treats an individual who is qualified for their job differently because of their age. The federal Age Discrimination in Employment Act (ADEA) protects job applicants and employees 40 years of age and older from discrimination on the basis of age. Many states, including Connecticut, have similar laws protecting older individuals.
You may be a victim of age discrimination if:
Your performance reviews start going down as you get older;
Your employer makes frequent age-related comments;
You are disciplined for behavior that younger employees are not disciplined for;
You are passed over for promotions in favor of younger employees;
You are reassigned to unwanted or unpleasant tasks while younger employees get better assignments;
You are passed over for hire in favor of a younger job candidate or replaced by younger worker.
But proving that you were demoted or fired because of your age can be a difficult task. First, direct evidence of discrimination, such as your boss telling you he is firing you because you are too old, is very rare. Most employers will try protect themselves by carefully documenting a narrative explaining why your firing had nothing to do with age.
In each of the real-life examples above, the employer set up a pretext of poor performance to cover up its true discriminatory motives. If you are suddenly and inexplicably given a poor performance review or placed on a PIP, your employer may be building a pretext to pave the way for your termination. Knowing that your performance has remained consistent, you are blindsided by your supervisor’s sudden and inexplicable criticism. Attempting in vain to save your job, you then try to to work even harder. By the time you are terminated, you feel somehow responsible for failing at your job. It’s not your fault, it’s your age!
In addition to prohibiting employers from treating older workers differently than their younger counterparts, the law also prohibits policies and practices that have a “disparate impact” on older workers. This particularly insidious type of age discrimination occurs when an employer’s seemingly neutral policies have a disproportionately adverse impact upon older workers. For example, a company announces that it will be laying off all employees above a certain salary level. This policy has a disproportionately adverse impact on older workers who generally earn larger paychecks.
But courts are reluctant to second guess a company’s layoff policy, where the employer can show that it is a “business necessity”, in this case, cost-saving. In order to win a disparate impact claim, an employee would then need to bring forth evidence of an equally effective, but non-discriminatory way for the company to achieve the same goal. The cost-saving “business necessity” excuse makes disparate impact claims particularly hard to prove. Older workers tend to earn higher wages than younger workers by virtue of their added years of experience. Making the situation even murkier is that the impact of these “cost saving” layoffs tends to fall specifically on older workers in middle to upper middle management positions. In a case like this, the company’s officers, also over the age of 40, decide to get rid of its long-term managers and replace them with younger workers at lower salaries.
If any of these scenarios sound familiar and/or you just received a severance package, you should consult our employment lawyers. Please call (203) 255-4150 or email email@example.com.
By Mark Carey
Sexual Orientation discrimination is being argued today before the United States Supreme Court in the combined cases of Bostock v. Clayton County George and Altitude Express, Inc. v. Zarda. The Court is also holding argument in a similar transgender discrimination case of Harris Funeral Homes, Inc. v. EEOC. The trio of cases are as important as the same sex marriage equality issue ratified by the Court in Obergefell v. Hodges. These cases are history in the making and I predict the Court will hold that sexual orientation discrimination and discrimination based on transgender status constitute sex discrimination under Title VII of the 1964 Civil Rights Act because adverse employment decisions discriminating against the LGBTQ community are being made “because of sex” of the employee.
The controversy around the cases has more to do with “perceived politics” infecting the bench than whether sexual orientation discrimination falls within current federal law “because of sex”, which it does. Although the Court’s majority now leans to the conservative side, the Court cannot ignore prior precedent written by Justice Scalia in Oncale v. Sundowner Offshore Services. In Oncale, the Court held,
“Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct com-parative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex.’”
The Court does record oral arguments and posts them to the Court’s website at the end of each argument week. I encourage you to listen to the case, especially because the Trump Administration is arguing that Title VII does not cover sexual orientation discrimination, even though the U.S. EEOC has ruled that it does fall within the statute.
If you would like more information about sexual orientation discrimination and transgender discrimination, please contact employment attorney Mark Carey at 203-255-4150 or firstname.lastname@example.org.
By Jill Halper
A while back I blogged an article on Performance Improvement Plans and what they really mean for an employee who has just been placed on one, or threatened to be placed on one. More so than any other blog article I have written, this one received the most prolific feedback, with so many reaching out to express how much the article resonated with them and their experience with their current or former employer.
As a result of the positive response received, I have decided to provide to our readers a follow up article to expand on and provide greater detail into the ever offensive, likely unlawful, usually unfair and sham scenario that often wrecks tremendous havoc on one’s work life only to often be followed by an improper, possibly illegal termination.
The Law Related to Performance Improvement Plans
The best place to start with any legal discussion is with the law. As you likely know, the law is derived from statutes and case law, also called common law. In the matter of performance improvement plans as they relate to discrimination in the workplace, the statutory law is generally designed to protect employees. As discussed in my prior article on this topic, the federal law as promulgated in the ADEA, ADA and and Title VII of the Civil Rights Act of 1964, and as essentially mimicked by state law, prohibits discrimination and makes it unlawful to treat certain classes of employees (i.e. age over 40, race, religion, maternity, gender, sexual orientation, disability, national origin) adversely because of their age, gender, disability etc. As such, when an employer treats an employee adversely, such as a demotion or termination, for reasons based on any of those characteristics, it may be UNLAWFUL, and they could be found liable and subject to compensatory damages and sometimes punitive damages, which may translate into an increased severance package or a financial settlement to the grieved employee. The statutes also prohibit retaliation by an employer for any complaints or claims of discrimination made by any of these protected employees. In other words, if you believe that you are being discriminated against at work and you put your employer on notice of this and they subsequently terminate you, for no legitimate reason, you may also have a retaliation claim. It is important to note that placing an employer on notice does not necessarily mean filing formal claims against them. Simply communicating to them that you believe you are being discriminated against at work will suffice for this purpose. So, it is possible that you can make them aware that you are being discriminated against or treated disparately, and still go on to work there without issue. But it is more often the case that once you make these complaints, you are likely looking for a way out and they are likely looking for a way to get you out, so at least you have ammunition now to pursue a retaliation claim (in addition to a discrimination claim) if they do go and terminate you for no legitimate reason.
So how does this relate to the subject of the Performance Improvement Plans (PIPs)? As described above, while the statutes are pretty clear about the unlawfulness of discrimination and retaliation in the workplace, the case law helps set forth what constitutes discrimination and retaliation and how one would be able to make out a successful cause of action for these claims. And this is where it could get more complicated for the grieved employee seeking to prove discrimination or retaliation. In the landmark case, McDonnel Douglas Corp. v. United States, 411 U.S. 792, 793, 93 S. Ct. 1817, 1820, 36 L. Ed. 2d 668 (1973), the court established what has been termed the McDonnell Douglas framework which is used to this day in analyzing and determining liability in discrimination cases. Under this framework, where there is no DIRECT evidence of discrimination (such as an email telling an employee that they are too old and making too much money), and a claimant or plaintiff is attempting to prove discrimination by indirect evidence (such as they were treated differently than other employees) the employee/plaintiff must first make out their prima facie case of discrimination by showing that they were in a protected class, qualified for the job, and that they were treated adversely under circumstances giving rise to discrimination. The burden then shifts to the employer/defendant to show that the reason they were treated adversely was not related to being in a protected class, but rather was due to a legitimate work-related reason such as non-performance or some sort of disciplinary issue. Under the McDonnell Douglas framework, once the employer puts forth evidence that there was a “legitimate reason” for the adverse action taken against the employee, the burden shifts back to the plaintiff/employee to show that the supposed legitimate reason proffered by the employer is a sham, false or not legitimate and that the acts of the employer were actually motivated by discrimination.
A PIP Is a Tool Used to Fire You!
Your employer certainly understands how the discrimination laws work, as summarized above. Thus, it is equally important that employees understand this as well, especially those who are dealing with a PIP at work, so that they know what they need to do when faced with this situation. As discussed in my prior article, employers with discriminatory motives who are looking for a “legitimate” reason to terminate someone will use the PIP as a way of establishing and documenting a performance reason, even where none exists. As a result, the PIP is a tool used by employers not to help employees improve, but rather to help employers meet their burden of proving that the adverse action taken against the employee is “legitimate, and that their actions were not unlawfully motivated by discriminatory animus. Employers and in particular, their human resources departments, are well versed in discrimination law and they know that if they terminate someone in a protected class, they will be held to the above framework in defending a discrimination suit. Therefore, they must show that there are performance issues and that despite their good faith attempts to help the employee improve, the employee is deficient and there are solid grounds for termination NOT rooted in discrimination.
Methods Employees Can Use to Fight Back
So, what do you do the minute you learn that you are going to be placed on a PIP and you believe that it is unwarranted or not “legitimate”? Just as your employer is and has been plotting their defense by having placed you on this sham PIP in order to document the legitimacy of the adverse actions they intend to take against you, you need to start plotting a strategy that will help you keep or prolong your employment as well as a strategy for prevailing on discrimination claims once you lose your job – WHICH YOU LIKELY WILL – if you are placed on an undeserved PIP.
Lawyer Up, Your Employer Already Has
Given what has been explained above, the first thing you should do is call one of our employment attorneys. Your employer no doubt has counsel; you should have counsel as well given what is at stake. The future of your employment and your ability to earn a living is being messed with and you need to be well advised and to make sure your rights are protected. There are very specific deadlines called statutes of limitations which provide a certain amount of time within which you are permitted to bring discrimination claims, wage claims and whistle blower claims against your employer, at which time thereafter you are forever precluded from doing so. So, if nothing else you should understand what those end dates are. More importantly, and something an attorney will walk you though is how to formally rebut the findings in the PIP. It is important that your personnel file includes these rebuttals because if and when it gets to a point where you are terminated and bring claims, the matter will often hinge on the legitimacy issue and whether the PIP was warranted or not. Certainly, if you are being told that you need improvement in certain areas and you disagree, or if you are being told in your PIP reviews that you are not improving or not meeting the goals of the PIP and you disagree, that is something you want to document in writing and refute, so it is in your personnel file if and when you need it. Another tip we provide to our clients is to quickly and articulately inform your employer that you believe you are being treated unfairly or being discriminated against and that the PIP seems to be motivated by same. In doing so, that is something that can be used to help prove retaliation. This strategy can often buy you some more time at your job as the key to a retaliation claim is causation and the key to causation is timing of the termination relative to the claims asserted. If the date of termination follows closely the date of the complaint, it is easier to establish retaliation, and the employers know this. So, by lodging a complaint that places the employer on notice that you believe you are being discriminated, the employer might be less inclined to make a swift termination. While you will very likely be terminated at some point, making the complaint will often buy you some time, which translates into more paychecks and more opportunity to get your ducks in a row for filing formal claims and a potential lawsuit. Our office has additional tactics and strategies we use to help protect our clients when they are placed on or even threatened with an undeserved PIP, so feel free to contact us immediately, should that be you.
A PIP Can Be Considered An Adverse Action
One final important point relative to the PIP discussion is the matter of what is considered an adverse action. As mentioned above, the adverse action is an essential component of making out a discrimination case. While an adverse action almost always means a demotion or termination, it CAN also include other acts by your employer that materially alter or affect the terms and conditions of your employment. Case law here generally provides that an adverse employment action is one which is “more disruptive than mere inconvenience or alteration of job responsibilities” and usually is meant to include actions that cause a significant change in employment status such as hiring, firing, failing to promote and reassignment.” Terry v, Ashcroft 336 F. 3d 128 (2d Cir. 2003). However, there is some recent case law that has introduced a broader interpretation of what constitutes an adverse action and has determined that being placed on a PIP in certain instances may be an adverse action. In the case of Amato v. Hearst Corp., aff’d, 149 Conn. App. 774, 89A.3d 077 (2014), the court stated that the threat of termination of the Plaintiff under a PIP, “in conjunction with the Plan’s imposition of new, burdensome conditions of employment was sufficient to constitute an adverse employment action”. This case also discussed other factors to be taken into consideration when determining if the act of being placed on a PIP is tantamount to an adverse action, such as whether the mandates of the PIP restricted the employer’s freedom by requiring them to be in their office for longer periods of time than other employees. Another factor to consider is whether the PIP negatively impacts your personnel file and reputation in a way that might prevent future employment opportunities. In another case, the court held that whether an undesirable employment action qualifies as being adverse is a fact specific, contextual determination. Zelnik v. Fashion Inst. of Tech., 464 3d 217, 226 (2d Cir. 2006).
The bottom line is that the mere act of being placed on a PIP might constitute an adverse action in and of itself – even before and without a demotion or termination. This will often come down to the details and a totality of the circumstances analysis. In the event you believe the PIP is not justified, discriminatorily motivated and has materially altered your employment, you might have a case of discrimination just by having been placed on an unwarranted PIP by your employer. This also means that the clock to file a suit could start running from the date you are placed on a discriminatory PIP, which is another reason you should contact our employment attorneys immediately.
Attorney Jill Halper can be reached at (203) 255-4150 or email@example.com.
California’s just passed a bill that, once signed by Governor Gavin Newsom, will require gig economy workers to be reclassified as employees. The bill codified a recent decision by the California Supreme Court, Dynamex Operations West v. Superior Court of Los Angeles County, which laid out a new standard for when workers should be classified as employees rather than independent contractors for purposes of California’s wage order rules. Under the new California bill, workers are classified as employees if the company directs their tasks and their work is part of the company’s main business.
Unlike contractors, employees are entitled to a number of benefits and protections under both federal and state laws. Restricting the standards for classifying workers as independent contractors will make it harder for gig economy companies to prove that their workers aren’t staff, while ensuring key benefits and protections, like minimum wage, insurance and overtime pay.
Other states have adopted legislation extending benefits such as unemployment insurance and workers’ compensation to independent contractors, but California’s bill is the strongest and most comprehensive to date. Similar bills aimed at protecting workers have been drafted in other states such as New York, Oregon and Washington.
Governor Newsom is still engaged in negotiations with Uber, Lyft and other gig economy companies about possible exceptions or caveats to the bill. According to Uber, the work of its drivers falls outside the scope of the company’s usual course of business: serving as a technology platform. It remains to be seen whether this argument will allow the company, and those with a similar business model, to keep its drivers from being classified as employees.
Reactions to the bill are split. Some argue that that the new classification framework will force employers to cut back on hiring in the face of rising costs. Some Uber and Lyft drivers worry that that it will curtail their work schedule flexibility. California contractors in remote-based fields have expressed concern that if other states do not follow suit, they will be unable to find work when companies opt for workers from other states who can be classified as independent contractors without needing to be added to the payroll.
But the bill could affect not only gig workers at companies like Uber, Lyft, DoorDash, Postmates and Instacart, it could change the employment status of more than a million low-wage workers in California, including nail salon workers, janitors and construction workers who are not covered by labor laws.
If you would like more information about your independent contractor situation, please contact us or email to firstname.lastname@example.org and speak with one of our employment attorneys.
The next recession is now here, depending on the of source of information or this source. The Federal Reserve is reversing interest rate hikes to soften the economic expansion and the unemployment rate is at a 50 year low. We are well past the cyclical ten year timeframe as recessions go. What is your strategy to preserve your job in the face of this new recession? What is your strategy if and when you are laid off?
You are probably thinking, “what strategy?” You get up, go to work and hope you can continue to remain an at-will employees until the end of the new pay period, under the presumption you have no control over your job. Better yet, you planned on retiring from your company in the distant future. On the other end of the spectrum, there are employees who think their longevity with their employers will insulate them from any headcount reductions during recessions. Both viewpoints are wrong and employees can control their employment outcomes during a recession.
5 Strategies To Save Your Job During a Recession
The following strategies are followed by our clients when they see the “writing on the wall” by their managers. Although some clients never see the messaging from their employer, we do. Depending on how soon you pick up all the clues determines which strategy to pursue. Hint, the sooner you speak with an employment attorney the better. If we are engaged earlier in the process, we can evaluate and develop an aggressive strategy that will force the employer to maintain your employment and/or pay a larger severance package with more favorable terms.
Plan Ahead and Gather Intelligence From Managers and Coworkers
Are you proactive about your employment or do you follow the wait and see approach? Becoming proactive with your employer means obtaining objective feedback from your managers and coworkers. No, I am not referring to the annual performance review or 360 reviews. A proactive employee will develop an initial assessment of his or her own performance by quietly engaging in one on one discussions with managers and coworkers about their working relationship and performance. You will need to keep detailed notes of these conversations in order to track the information over time and over various contexts. Forget about the formalities of the annual review or the vague performance metrics employers follows. I am talking about all the intel you can gather by having a straight up ever day conversation with your manager and coworkers. Examine the body cues such as facial expressions, tone of voice and the context of conversations in relation to those cues. Observe more instead of being reactionary or defensive. The better you are at this task, the more intelligence you will pick up, as your manager or coworker will not know you are gathering information. Once you collected this information, you will need to strategize how to position yourself as a thought leader, influencer, leader and over-all get the job done kind of employee. Lead by example and always remain the consummate professional during all interactions with your employer and coworkers.
Ironically, your employer is collecting similar information about you and your coworkers. In a recent article from SHRM, “A good way to begin is by collecting information about the organization’s workforce that can be used for long-range planning. ‘[HR] should be looking at the data, knowing who is where in their careers, who is where in their teams’… ‘Are people ready to move into the next position? Are they happy where they are?’ Review job descriptions and tasks and determine whether responsibility for those tasks can be more evenly distributed throughout the team. By understanding the big picture, HR leaders can advise business leaders on how to ready the workforce for future changes without resorting to morale-damaging layoffs.”
File Internal Complaints of Discrimination to Maintain Your Job
Once we determine you are may be the victim of employment discrimination or have other employment claims, we will advise you about bringing these claims to your employers attention without escalating to an external governmental agency. The main idea here is to engage in a protective activity to force your employer to “back the heck off” and cause them to reevaluate your potential termination. Our longest standing record to keep an employee employed using this method is two years (my opposing counsel in that case was not happy, but I was not there to please him).
If necessary, you may need to file your discrimination claims with governmental agencies in order to preserve your legal rights. The same antiretaliation laws apply and employers will back off for a limited period of time in order to avoid you asserting an easy to prove retaliation claim.
Dealing With Performance Improvement Plans (PIPS)
Combatting those inaccurate, one-sided and self-serving performance improvement plans. We wrote about this issue in Are Performance Improvement Plans (PIPS) Illegal? A PIP is a clear indicator you will be terminated and you will need to engage an employment attorney ASAP!
Severance Negotiation Based Years of Service
This strategy is relatively straight forward. If you are slated for termination in a layoff, your employer may have a severance plan governed by ERISA, a federal statute that governs these plans. Essentially, an ERISA severance plan spells out the amount you will be paid a salary continuation based on the number of years you worked for the company. There is one catch, you will need to sign a waiver and release of all your legal claims against the employer in order to receive the payout. You will also need an employment attorney to review the settlement agreement to insert favorable terms or get rid of unfriendly terms like noncompetition agreements. Make sure when speaking with an employment attorney that he or she is an ERISA attorney, as there is a difference. Our ERISA attorneys know how the statute works and will even point out in certain cases that you can create an ERISA plan based on one employee, “you”, even though the employer never created an ERISA plan. Engage us to learn more.
Getting Rid of That Noncompete Agreement on the Way Out
Great, you will be getting terminated but your employer stuck you with a noncompete, either at the start of your job or as part of the severance agreement. What do you do? The noncompete does not benefit you at all, only your employer. Now you have to navigate away from jobs you would normally apply for given your years in the same industry. Is this fair? No. Someone has to pay the utilities, mortgage and household expenses, but do not count on your employer to do you a favor. I have long taken a stand against these selfish one sided agreements and forced employers to rescind them or obtain an order from the court to void them. We can help you remove your noncompete agreement with your employer and make you a free agent in the job market. We will challenge the validity of the agreement with the employer directly and if the employer does not back down, we will take them to court through what is called a declaratory judgment action. Essentially, we ask courts to void the agreement due to lack of intention by the employee to enter into the agreement, aka a lack of consideration.
If you need more help planning for your future employment issues, please contact an employment attorney in our office. Employment law is all we do.
By Mark Carey
Imagine you could save thousands, millions if not billions of dollars by refusing to pay your taxes. Oh and there’s a catch, you have to be an employer here in the U.S. Well, it is happening and we are all victims of this well-worn business scheme to misclassify employees as independent contractors, even though the employer controls every aspect of their employment. Independent contractors pay more in self-employment tax, receive no health insurance and state and federal governments lose payroll tax deposits.
On May 28, 2019, the New York Times report that nearly one half of Google’s workforce are independent contractors. Google employs 102,000 full time employees and 121,000 independent contractors. According to an Inc.com article, nearly 20 percent of all business intentionally misclassify employees as independent contractors, according to a report by the Economic Policy Institute.
At Google, employees revolted and threatened a walkout on twitter, writing “It’s time to end the two-tier system that treats some workers as expendable. From rideshare drivers, to cafeteria workers, to the many contractors who build and maintain tech products: we all contribute, and we all deserve a share”. Another group of independent contractors sent an open letter to the company’s CEO, Sundar Pichai, complaining of unfair treatment and abuse. The company responded with some vague illusory statement of change. Nothing is going to change and I would place this item in the political basket. When enough people become aware and then outraged by this gross fraudulent conduct, just maybe the issue will perk into a political football to be debated in the next election.
What are we all waiting for? How and when will this change? I say never. So long as businesses are motivated by the financial profit of misclassifying employees, this illegal and fraudulent practice will continue. Companies reap billions in savings by not paying FICA, unemployment benefits, workers compensation and health insurance to their independent contractors. Sure, employee and class action lawsuits help but do not deter further abuse by companies. Both state and federal governments are overwhelmed and underfunded, thus there is no remedy in sight.
If you need more information about working as an independent contractor, please do not hesitate to contact our office.
[This article is currently running in the Fairfield County Business Journal today.]
Suite Talk: Mark P. Carey, owner, Carey & Associates PC
Mark P. Carey is the owner of Carey & Associates PC, a Southport-based law firm specializing in employment discrimination litigation. In this edition of Suite Talk, Business Journal reporter Phil Hall discusses the issues that dominate Carey’s legal focus.
What do you see as the state of today’s workplace discrimination environment?
“It’s probably been the most crucial time since the 1964 Civil Rights Act passage. The system is broken – the laws don’t protect employees the way that they should. The employers game the situation to their benefit and the employees are left, in essence, reporting to HR and seeking solace and comfort from HR. But that’s not HR’s role. They have to seek out people like myself from the outside.
“I don’t feel the law is helping individuals the way it was intended, and it has been further manipulated by the courts. One-third of all cases in the federal district courts are employment cases and there is a conservatism by the federal judges against employees. In 2017, there were only five employment cases that went to trial out of the hundreds that are filed in the year, so the odds are not great for an employee in federal court — they fare much better in state court.”
What are the most prevalent complaints that you are receiving from people who feel they were the subject of workplace discrimination?
“When a woman gets pregnant, the reaction by an employer is the opposite of congratulations. If you are pregnant a second or a third time, the reaction is anything but congratulations. The reaction is simply: you are not worthy, you are going to take time away, we are going to have to find a replacement and what a big fiasco this has been for us. On top of that, the employer makes outrageous statements about the employees that became pregnant — that their brains have somehow changed. You cannot believe the nonsense. The employers make it a terrible time, period.”
What about age discrimination? As the baby boomers get older and more millennials and Gen Z members come into the workplace, are more older workers being targeted?
“Employers get rid of workers in their 50s and 60s for the sake of money — younger workers make less money and many are more tech savvy. No one is doing anything to stop the flow and tide of discrimination cases that are happening. The law itself is ineffective and no one is crying foul. No state or federal agency is doing anything about it and it is continuing to occur as the boomers find themselves in what is called long-term unemployment. After all, retirement isn’t at 65 anymore.”
The #MeToo movement called attention to workplace harassment and was a dominant subject for the past couple of years with many high-profile cases involving politicians, media figures and entertainers. But is it relevant in the everyday workforce?
“With #MeToo, we had people being called out without any fear of reprisals. It was amazing because when was the last time that happened? I can’t recall that happening in the employment setting.
“It prompted employees to realize they actually have a voice. We’ve seen instances of Google and Microsoft employees banding together without unions and bringing complaints to management and causing management to do something. The psychology of the relationship between the employer and employee is changing — that has never happened.”
Within Connecticut, there is a new effort to put paid medical and family leave into law. What is your view of this issue? And how do you respond to business owners who say it will increase operational costs?
“It is the right thing to do. It’s not a political statement. As for the business response, it is the same as workmen’s compensation insurance. If you are going to permit people to come into work and give you the benefit of their services, it is the cost of doing business. Without a better explanation from the business side of the argument, that is just a sound bite to put out there.”
Many companies claim they are trying to build a more diverse workforce. Is this a serious claim?
“It is a rubber stamp to put up as a defense whenever there is a lawsuit. I got a response back from an employer that included their employment manual and put out this whole ‘We’re diverse this that and the other.’ But I was like, ‘Wait a minute, you have discrimination happening in your workforce. How do you explain that?’
“It is like a fig leaf for their defense against litigation. If it was true, statistics would have shown complaints have gone down. They haven’t — they’re increasing, with more cases being filed every single year.”
If you have an employment related issue, please contact Mark Carey at email@example.com or 203-255-4150.
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By Jill Halper
Many of us have been in a work situation where we’ve had a boss or supervisor who does not respect our personal time. If it is on his or her mind, there is a primal need to share and address immediately, regardless of the where or when. After putting in a long day on the job, you come home to after-hour work emails or texts that seem to have some urgency, or why else would your employer not wait to contact us about the work matter the following morning, DURING WORK HOURS? In a world now defined by virtual immediacy and constant connectivity, it has become increasingly difficult to shut down and turn off our electronics. And because we are always reachable, it becomes instinctual to promptly respond, if not impossible to ignore communications as they arrive, especially when the reach out is from a hire up at work. As a result, your “9-5” job can quickly morph into a 24/7 situation. The problem with that, besides the obvious interruption to your valued personal down time, is that you are only being compensated for your designated hours and every email that you respond to or even read outside of those hours is being done at your expense and at your employer’s gain. Not only is this inherently unfair, it might even be unlawful. In fact, in Europe, employees have the legal right to disconnect from work, and the U.S., and New York and Connecticut in particular, may not be that far behind in this trend.
A Simple Solution
The solution to all of this might seem simple and just be one of being paid overtime for any communications that take place outside of your regular hours. However, overtime compensation is already clearly defined by the law and many employees are exempt from overtime pay. Generally, an employer has to pay overtime, time-and-one-half of wages, to any employee who works more than 40 hours in one week. And that work might and should certainly include responding to work related emails and texts. But an employer does not have to pay overtime at all, regardless of how many hours worked or when those hours are worked, depending on the title and/or specific job duties of that employee. For the most part, an employee is “exempt” under the overtime law if they fit into the category of executive, administrative or professional. If you think you are not being paid overtime for which you are entitled, you should contact a labor and employment attorney and/or contact the Connecticut Department of Labor to better understand your rights.
What If You Are Not Entitled to Overtime Pay?
So, what about the class of employees who do not benefit from the overtime laws? What right do these employees have in the workplace when it comes to a boss who does not value your personal time outside of the office? Generally, employment in Connecticut is “at-will,” which means that an employer can make unilateral decisions regarding almost anything, including an employee’s duties, hours and/or compensation. Unfortunately, in an at will arrangement, the employer can do things that might seem unfair and out of line, such as emailing you repeatedly over the weekend or at night. Taking this a step further, because an at will employee can be terminated or disciplined at any time, for any reason, as long as it is not a reason expressly prohibited by law, an employer can not only require or expect you to stay connected outside of your usual work hours but may even have the right to take an adverse action against you if you fail or refuse to engage. In these instances, it is important to take a deeper look into the narrative and nuances surrounding these off-hour communications. If you are treated differently in this regard than other employees, or if your employer has different expectations of you when it comes to requiring you to attend to such communications, this may be unlawful behavior if you are a member of a protected class because of your age, gender or race. In those instances, you should contact a labor and employment attorney to better understand your rights and potential for monetary damages against your employer for the disparate discriminatory treatment.
The French Have a New Solution- Right to Disconnect Law
However, what can be done if you are exempt from overtime pay and there is no discriminatory motive that would make excessive, off-hour communications unlawful? This is the very scenario that France has recently addressed in their new ‘Right to Disconnect’ law. This law that went into effect on January 1, 2017 gives French employees a qualified legal right to ignore work emails outside of normal business hours. The law was designed to curtail unfair and uncompensated work related technology use and communications and requires companies with 50 or more employees to develop policies with their workers that limit work-related electronic communications use after hours. Covered firms are required to negotiate email guidelines with their employees to regulate email use to ensure employees are able to possess time away from the office. If employers and employees cannot agree on an appropriate policy, then the employer is obligated to publish a charter that regulates when employees can disconnect.
New Law Would Promote A Work Life Balance
This is not only a clear victory for employees abroad, but it has sent a clear and strong message back in the states. This new law alleviates the cognitive, psychological and emotional load that employees suffer when responding to a work task on personal time. Interruptions at home disrupt the relaxation and recovery process that is necessary for healthy work-life balance. Research suggests that never “shutting off” increases stress and has both physical and psychological effects that has led many companies, such as Google, to hire mindfulness experts to help employees disconnect and clear their minds.
New York City Right to Disconnect Law
But, will the US formally embrace a similar policy to that recently enacted in France? The answer is a definite maybe, particularly if you live and work in New York City. A new bill has been introduced that would ensure private employees in New York City have the right to disconnect from work. READ THE BILL (.pdf). The law aims to give workers a break from texting, calling or emailing when off the clock and will give the employee the right to disconnect without fear their bosses are going to fire them, discipline them or cut their pay. While an employer can still contact the employee, the employee has the right to decide if that phone call is more important than their personal time. In sum, the proposed law would make it illegal for a company to require employees to access work email and other communications outside the office. It would apply to regular time off, sick days and vacation time, and covers all employers with 10 or more workers. Overall, it would require employers to adopt a written policy governing the use of electronic devices and other digital communications during non-work hours, and would set forth the “usual work hours” for each class of employee, and the categories of paid time off available to employees. The law would prohibit retaliation against employees, who exercised or attempted to exercise any right to disconnect. As stated above, currently, nonexempt employees who are experiencing work-related communications outside of their usual work hours are generally required to be paid and protected under the Fair Labor Standards Act and therefore, those non-exempt employees are not the focus of this bill.
Will Connecticut Enact a Right to Disconnect Law?
The word on the street is that Connecticut may follow suit and lawmakers are considering introducing similar type right to disconnect legislation. But that could be years down the horizon, if ever. So, until then, what can you do if you are being barraged with off the clock/off-hour texts or emails from your employer? You can petition your local representative and lobby to get momentum on a right to disconnect bill in Connecticut. You can also petition and form a coalition with your fellow employees to negotiate guidelines, if your employer is a large enough and forward thinking enough company, such as Google. Lastly, you can seek labor and employment counsel to determine if you are either a non-exempt employee protected by the FLSA overtime laws, or if you are an exempt employee (admin, executive or professional) who believes the off-hour communications are routed in or motivated by some unlawful context or motive such as discrimination or harassment. Or you can relocate to Paris!
Feel free to contact this office at any time to discuss your right to disconnect, to receive overtime pay or to address any of your labor and employment needs.