By Mark Carey
Really, you’re going to give me a PIP after my dedicated years of service to this company? That’s “bullshyte”! If this sounds recently familiar, it should be. More and more and more employees are facing PIPs (Performance Improvement Plans). (See related PIP articles we have written about HERE and HERE). Here’s the bad news, the odds are you are going to get fired no matter how you react to the PIP. It’s like being unfriended or canceled, because your presence and contributions to the office are no longer valued. The good news is I have a few ideas to promote your leverage and set yourself up for a severance/settlement package, even where one would never be offered to you. There is one catch, do not do this without an employment attorney.
According to SHRM (Society for Human Resource Management), a PIP “is a tool to give an employee with performance deficiencies the opportunity to succeed. It may be used to address failures to meet specific job goals or to ameliorate behavior-related concerns.” Ugh! A PIP is a tool to set you up on a rotisserie and slow cook you until you are fired 60-90 days later! I have never seen in all my years of practice a PIP that was even remotely justified. I am not alone in my disgust of this ancient and crusty management employment practice, Forbes published a story in July 2019 sounding the alarms entitled “It’s Time We Finally Do Away With Performance Improvement Plans”.
A PIP is more like the red paddle in the grade school principal’s office that she used to enforce the rule of law through corporal punishment. (In reality, my principal was a gem of a lady, but you get the point!) The PIP screams at you to comply, but for what? You were already working at a 110% capacity, and every performance review up to that point was exceeds or average. So what is the story here? Is it your gender, sexual orientation, race, age, etc. that caused you to receive a PIP? Unfortunately, it is highly likely. Yes, I am jaded, but at least I know the statistics and how routinely this happens to our clients.
As background for this article, I conducted a bit of legal research among employment discrimination cases that mentioned or discussed the use of performance improvement plans. I wanted to reaffirm what I already knew to be true, that PIPs are used to set employees up for termination and courts often let employers get away with it. Performance Improvement Plans are a means to an end- the end of your job! Although I enjoy working with my colleagues from the bench, in almost every case I found, the court upheld the validity of the PIP given to the employee. Why is that? You need to understand that Courts are extremely reluctant to second guess employers; they seek to avoid becoming Super-HR Departments. I did discover a few cases where the performance improvement plan was viewed negatively by the courts, only because the employee was successful in demonstrating a discrimination case at the summary judgment stage of the case. Specifically, and as I will show you below, the employee was able to factually demonstrate evidence of intentional discrimination in and around the administration of the performance improvement plan, i.e. the employee was able to establish the employer’s reasoning behind the PIP was pretextual or false. However, the odds currently favor employers, and we seek to change those “Vegas odds” by empowering you with the following tricks of the trade.
Now with all of this information in hand, let me show you how to beat a Performance Improvement Plan. FYI – I have thought about these comments over a period of weeks to ensure the following strategy points were realistic, practical and successful.
1. Never Sign the PIP Under Any Circumstances and Start Looking for Another Job
Employers always demand that employees sign their performance improvement plans. We advise our clients not to sign them, so as to avoid any level of consent or acknowledgment to the bogus narrative strung through the PIP by the employer. You are getting fired anyway, so why worry about the threat that you will be fired if you refuse to sign it. The moment you take a step in the direction to admit anything on the PIP was correct, or the very fact that your received one, your future employment case is doomed! Receiving the PIP demonstrates you were put on notice of it and the employer will hold you to whatever bogus goals they established for you. I have seen this play out in court where a federal judge held my client to the PIP just because she received it, even though she did not sign it. Hopefully for you the next job will be better and management will be more employee focused and enlightened.
2. Written PIP Rebuttals and Corporate Whistle Blowing
Do a 180 degree turn on your employer and show them in writing the PIP you just received is part of a systemic problem related to flawed quality control measures, clearly established violations of the Sarbanes-Oxley internal compliance rules, outright corporate fraud, and discrimination. If they don’t pay attention, well then let them freeze in litigation hell with the authorities. Employers who receive internal complaints also face external scrutiny from the Securities Exchange Commission (if the event involves a material misrepresentation of financial information and is reported directly to the SEC), the U.S. Dept. of Labor (regarding wages) and the U.S. Equal Employment Opportunity Commission (regarding discrimination and retaliation, although in my experience getting the EEOC litigation department to pay attention is like pulling teeth). Bottom line, if you are a true professional, then your demonstration of proper and ethical corporate practices via your PIP rebuttal and whistle blower claim will protect you from any future allegations of corporate malfeasance or spurious claims of breach of duty of loyalty and care (“aka” attack claims used by defense counsel to make you feel insecure). You must not go down with the sinking corporate ship and your professional reputation must remain intact. Afterall, you have personal financial obligations to protect.
3. An All Out Full Frontal Attack😊
I have a skiing motto amongst my knucklehead buddies, DROP IT LIKE IT’S HOT! (also a song by the same name, listen here). This was on a sign posted before entering an avalanche prone area at Targhee in Wyoming. When dealing with your unscrupulous employer regarding the PIP you just received, you are going to pull out ALL the guns.
First, get your facts straight, no I’m not kidding. Set your facts to paper in chronological order, because there are inferences, large and small, that flow through and between your fact pattern. Start with the day you were hired and move forward to the date of the PIP and then beyond. You want to specifically focus on your prior performance reviews, manager comments and your own comments. Pull the PIP accusations apart and factually rebut them contemporaneous with your fact pattern. You also want to look around and see if anyone else in your department was treated more favorably than you in any way. Chances are they were. Internal corporate counsel and HR just do not have the time resources to monitor every employee/supervisor relationship. Yes, there are bad eggs inside every organization- this I know to be true and it keeps my firm busy like bees. Keep a wide eye for all possible protected classifications you may fall into and the classifications of your colleagues. Is age, gender, sexual orientation, race, disability, sexual harassment etc. playing a part in the decisions your employer is making with respect to your job? You will need to report factual situations where your colleagues were treated more favorably than you in your attempt to show how discrimination or retaliation was the real motive behind your supervisors’ PIP accusations.
Next, file an employment discrimination complaint internally to HR, copy to your boss and your boss’s boss. In one case a few years back, I sent the sexual harassment complaint to the CEO’s wife- it worked out in my client’s favor. All it takes is a simple email stating you are being discriminated against. Next, take your detailed factual chronology and file an administrative complaint with the EEOC and the relevant state agency. These two acts will insulate you against immediate termination during the PIP and begin to build a case for retaliation discrimination when you do get fired or demoted. Remember, internal complaints and complaints to the EEOC are not subject to google searches, so your claims are confidential at this point.
Now that you have effectively blocked or checked your employer’s nonsense, start to think about what you want to do with your new found legal leverage. Normally, our clients start negotiating severance terms, which will eventually lead to your signing a complete release and waiver of your legal claims in exchange for MONEY! If you are lucky and have a good claim with well supported facts, you can negotiate the right dollar amount to transition you to the next job.
If you are not so fortunate and your employer continues to give you the cold shoulder, the next step is to file a lawsuit. I do it everyday, but for you it’s not so normal. Also, you need to consider what effect if any having your name appear on a lawsuit out there on the internet. People do it all the time, so you just need to get comfortable with this small but significant caveat. Well, now that you are off to the races there is some hope of a settlement during litigation, as 98% of all cases settle at some point in the process. We live in an era of evaporating trials, which is a good sign that parties work out deals. But if you continue to receive the cold shoulder, as we sometimes do in 20% of all cases, then settle in for a lengthy litigation and the associated financial expense. Please remember to maintain your full frontal attack posture at every stage mentioned above, as psychology and public exposure play an enormous role in every case. Good luck and drop it like it’s hot!
4. Fight With Facts But No Legal Claims
Ok, so you went through this article and you realize you don’t have any legal claims to stand on, what do you do? You also can’t leave your job because you need the income. This is a tough one and I see it quite often. You just have to hunker down and face that freight train head-on. Who knows, you may just survive the Vegas Odds. Go through the PIP and create a word document, breaking down each section and write a rebuttal. Ignore any employer resistance to your filing a rebuttal or lack of space on the PIP document. Under each accusation of poor performance, locate and list objective facts that demonstrate your point of view. Hell, throw in your contributions to the financial performance of the company over the past five years, i.e. you saved or made them money. We will assume here that your performance was not flailing, but your employer wants to hire his colleague from another job to replace you. All you can do is send a letter containing your factual arguments to each of the purported performance problems. Send the letter to your boss, to your boss’s boss and to the HR Department. I would also encourage you to dig down deep into your corporate culture and try demonstrating that you are committed to a lengthy career with this employer. Show them you bleed corporate colors, but make it believable. Next, get on the campaign wagon and start networking internally, letting everyone know you are as corporate loyal as it gets. Finally, say some prayers and go buy a few lottery tickets. Good luck, you’ll need it
5. Quit and Don’t Look Back- It’s Cheaper
This last strategy begs the question of how you define success here. Sure, you can hire a lawyer and fight the employer and potentially find yourself in a lawsuit and legal fees. Not spending money on a lawyer is a practical option that most employment lawyers will not advise, but we do. Leave your employment immediately and save the time, expense and anxiety related to dealing with a PIP. A PIP is really just an employer’s way of saying “here is the writing on the wall please leave”. I actually prefer the employer just terminate the employee instead of putting her through an unnecessary and worthless process. No one learns anything from a PIP, not the employee and not the employer. There is no management epiphany that causes further efficiency within the organization. What there are a lot of are scorched professional reputations and deeply diminished corporate cultures. Really, who wants to work in an office that promotes this sort of thing, no one. Yet, management continues to follow this tortured practice. Give me a break and give yourself a break- RUN!
If you would like more information about this topic, please contact Carey & Associates, P.C. and speak to one of our employment lawyers. Or send an email to email@example.com.
By Fran Slusarz
It always surprises people when they learn that they really don’t have a right to say whatever they want at work or outside work. We all have rights to free speech under the First Amendment, but what that means is often misunderstood. Everyone’s heard, “You can’t yell ‘Fire!’ in a crowded theater,” but what does that mean for everyone who doesn’t work in crowded theaters?
Answer: not a heck of a lot.
What the First Amendment Is and Is Not
First, take a look at what the First Amendment actually says: “Congress shall make no law … abridging the freedom of speech….” The First Amendment is only concerned with what the government does. Government employers have protection for speech made in their capacity as private individuals, but not in their roles as government employee. If a government employee’s freedom of speech is abridged, the employee can bring a civil rights claim under 42 U.S.C. § 1983. But your private employer? The First Amendment has nothing to do with it. Private individuals and private companies can do what they want. Even terminate your employment.
This may seem counterintuitive – how can you be fired for doing something that is 100% legal and enshrined in the Constitution? Simple: just because the government cannot stop you from doing something does not mean your employer has to like it. For example, you can be a member of the KKK and the government cannot stop you and your brother klansmen from putting on pointy hoods, and sharing secret handshakes and racist screeds (one assumes). When your employer finds out, however, she can fire you because she finds your beliefs repugnant. Many who stomped around Charlottesvillle, Virginia, shouting Nazi slogans learned this the hard way.
But this same rule works against people who are bringing attention to concerns more in line with American ideals of life, liberty, and the pursuit of happiness. For example, in 2017, Lisa Durden, a college professor, was fired for appearing on Fox News and defending a Black Lives Matter party to which only Black people were invited. There’s no question that her statements were protected by the First Amendment, but some of her statements were viewed as inflammatory, outrage was duly sparked, and her employer wanted to distance itself from her.
Don’t Embarrass Your Employer
Like it or not, we are all ambassadors for our employers and how we act/what we do reflects on them. We live in a world where the Internet can find you in hours, as certain self-involved dog owner and bullying cyclist recently learned. Both lost their jobs because their actions reflected upon their employers, and their employers wanted nothing to do with them.
These are outrageous examples that illustrate an important lesson. If keeping your job is important to you, you must consider how publicly exercising your right to free speech reflects on your employer. A vocal gun control advocate can’t expect to keep his marketing job at Smith & Wesson.
If You’re Not the Designated Spokesperson, Don’t Speak for your Company
This seems obvious, but it includes not doing or saying anything that would make anyone else think that you are speaking for the company. For example, if you work for UPS, doff the brown uniform before you join the protest rally. Don’t hold a sign that says, “Company X Employees Against World Peace.”
Before law school, I worked in human resources for a Fortune 10. One day, all hell broke loose because a vice president of training and development wrote a letter to the Wall Street Journal on company letterhead, which WSJ printed. His letter included references to “gritty inner-city streets” and addressed racial issues. He was lucky. It was the late 90s and the hubbub was almost all internal. If that were today, he would have been fired the day after WSJ published his letter.
Nevermind Your Privacy Settings, Everything on the Internet is Public
This is where people make the most mistakes. You may think you are just venting to a group of friends and no one else will see it, but anything can be forwarded, or screenshot, or found in a Google search. Don’t write anything you wouldn’t want your boss to read and you don’t want published on The Daily Beast. If you’re unsure, stick with cat memes.
Last year, agents of U.S. Customers and Border Patrol discovered that their “private” Facebook group, where they shared jokes about dead migrants and sexist memes, wasn’t at all private. Various punishments ensued and Congress is investigating the group. This is not a good look on anyone. That any of the more active members are still employed is only because they are government employees and are entitled to due process. Private employees are not.
Back to Fairness, Why Isn’t What You Say “Off the Clock” Protected?
By design, the Constitution concerns itself only with what the government can and cannot do. The idea was that if the government involves itself too deeply in the day-to-day conduct of people’s lives, it is akin to tyranny. So, we are left with an imperfect situation where white supremacist groups are protected the same as pro-democracy groups, and your private employer can fire you for involvement in either.
Still, that doesn’t feel right. Is it possible to work around it, and protect employment rights for private employees who are exercising their First Amendment rights?
Answer: Yes. Some federal statutes already protect some speech, and some states protect employees engaged in political activity.
OSHA, the NLRB, and Whistleblower Laws
As I discussed in my articles about preparing to return to work in CovidWorld and Whistleblower Laws, you have the right to a safe workplace and the right report unsafe working conditions without fear of reprisal. You also have the rights to discuss the terms and conditions of your employment with your co-workers and engage in concerted activity to change the terms and conditions. These protections are limited as to the subjects upon which you can speak, and to whom, but it is something.
Some states have passed laws that specifically protect employees from adverse action based on pollical activity. Connecticut comes right out and prohibits discipline or discharge of an employee for exercising First Amendment Rights, provided the activity does not interfere with the employee’s job performance or the working relationship between the employer and the employee. Colorado, North Dakota, and Utah prohibit workplace discrimination based on “lawful conduct outside of work.” California and New York prohibit discrimination for “recreation activities” outside work, which can include attending political events. A handful of other states protect employees engaged in “political activities,” based on their party membership, and based on their “political opinions.”
In the current divisive political environment, it is unlikely that the federal government will pass a law adding employment protection for political activity, but laws change to reflect the people’s beliefs. Twenty years ago, marriage equality seemed like an impossibility. By 2004, same sex marriage was legal in Massachusetts, followed by Connecticut’s civil union law in 2005. Over the next 10 years, same sex marriage became legal in state after state, until the watershed moment in 2015, when the U.S. Supreme Court declared same-sex marriage to be legal throughout the United States.
A sea change of societal acceptance over 15 years, from something considered virtually impossible to something legal and generally accepted by most Americans is unprecedented. But don’t be discouraged. Pressure from the general public is already causing businesses to rethink their policies about political speech at work.
Earlier this month, Starbucks suffered serious social media backlash when it was learned they instructed employees that they could not wear Black Lives Matter shirts or paraphernalia because it might amplify divisiveness. Starbucks has since announced the creation of its own Black Lives Matter t-shirts for its employees to wear. Last week, when a Taco Bell franchise employee claimed he was fired for wearing a Black Lives Matter face mask, Taco Bell was quick to respond, apologizing for the action, stating that its employees are allowed to wear Black Lives Matter masks and that it supports the Black Lives Matter movement. I doubt any of us could have imagined this reaction three years ago, when Lisa Durden was fired.
One thing is certain, support for free speech protection for private employees is gaining traction in the United States. We certainly live in interesting times.
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 firstname.lastname@example.org.
This article is directed at Google employees who participated in or wanted to participate in recent walkouts and signed open letters to management. Googlers stop wasting your time trying to form a union or engaging in public organizing efforts, there is a more effective way to get management to bow to your demands and without the risk of termination. There is no need to risk losing your job like Laurence Berland, Sophie Waldman, Paul Duke and Rebecca Rivers. Google management will squash your efforts to align with the Communication Workers of America. The CWA only wants your union dues and will never protect you from discrimination and retaliation under federal and state employment laws.
Back in the fall of 2019, the NY Times published an article about how disrespected Google employees were embracing and becoming inspired by a recently republished short book about labor organizing and solidarity to effect changes within the company. Curious, I purchased the small paperback to understand why Googlers were continuing to protest under the following call to action: “A company is nothing without its workers. From the moment we start at Google we’re told that we aren’t just employees; we’re owners. Every person who walked out today is an owner, and the owners say: Time’s up.” (Source).
The NY Times story summarized the current movement at Google as follows: “Some workers argued that they could win fairer pay policies and a full accounting of harassment claims by filing lawsuits or seeking to unionize. But the argument that gained the upper hand, especially as the debate escalated in the weeks after the walkout, held that those approaches would be futile, according to two people involved. Those who felt this way contended that only a less formal, worker-led organization could succeed, by waging mass resistance or implicitly threatening to do so.”
For Googlers, the way forward in their labor battle to effect positive change should not and cannot in any way remotely relate to a “labor organization” as that term is defined under the National Labor Relations Act. Management at Google has already brought in their consultants to “fix” the problem, mainly by convincing employees not to organize. There is a new way to maintain a collective voice but without the fear of reprisal and termination.
Just Say “No” To Unions
Googlers must vote “No” to unionization and collective bargaining, but vote “Yes”
to a decentralized and leaderless collective. Liz Shuler, the secretary-treasurer of the A.F.L.-C.I.O. stated in the NY Times article above, “You don’t have the law behind you to protect you like you would if you have recognized agents like a union,” Either you accept Ms. Shuler’s mantra, and that of union activists nationwide, or you move forward, all the way forward, and accept the advent of a new non-unionization movement that is happening right now. The NLRA won’t catch up to this new momentum because the statute is irrelevant. Management will not know how to quell this collectivism because there is no centralized labor organization to bargain with and that’s the essential point, it is leaderless and decentralized.
The Hong Kong Protest Method
Employees can now realize their true leverage to invoke change within their organizations, without the need to form a represented collective bargaining unit to address their concerns with management. I now propose the Hong Kong Protest Method to employment civil disobedience, but without the element of violence. A decentralized and leaderless movement that has no discernable identity for government regulators to challenge them. Yet the protest movement in Hong Kong fully describes its’ strategy of inclusion via Wikipedia, “[t]hrough a participatory process of digital democracy activists are able to collaborate by voting on tactics and brainstorming next moves in an egalitarian manner in which everybody has an equal say. Telegram chat groups and online forums with voting mechanisms to make collective decisions have facilitated this type of flexible co-ordination.”
Googlers now have access to technology on their phones to air their concerns collectively under the radar in order to defeat a formidable opponent like management. Under the cloak of pseudonyms on message boards, airdrop communication broadcasts and other forms of subversive communications, employees can complain about important issues such as forced arbitration, sexual harassment, ending pay inequality, boycotting Project Dragonfly, without the fear of retaliation. What has worked in Hong Kong can work here inside of Google.
It is time to begin and give the real owners of Google a fair say in the direction of the company. Management will have no choice but to tolerate your dissent, because Google can’t fire all of you!
If you would like more information about this article, please contact Mark Carey at email@example.com or 203-255-4150.
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.
At first glance, the word arbitration might sound like a less formal, lower cost, friendlier process than litigation. Certainly, in theory, it can be those things. But let’s talk about what it can also be…. forced arbitration can be devastating. It is an unconstitutional, unfair process whereby employees are prevented from suing their employers for potentially violating the law and are forced to have their claims heard and adjudicated in a private binding arbitration. This quasi-legal forum with no judge and no jury should be avoided by employees in almost all instances and to all extents possible.
Forced arbitration, also referred to as mandatory arbitration is an alternative form of binding dispute resolution used to resolve legal disputes out of the courts. Arbitration is “forced” when your employer requires you to sign away your right to go to court at the start of employment and before any legal dispute has arisen. Many forced arbitration agreements also ban groups of employers from coming together to file class action lawsuits. These forced arbitration provisions can find their way into employment offer letters, employment agreements, employee handbooks and even emails where the employee is instructed to electronically accept. Mostly, this occurs at the hiring stage, but there are times when arbitration agreements are presented in any of these forms after hiring and during the course of your employment and as a condition for continued employment, i.e. “forced”.
What you need to understand is that forced arbitration strongly benefits corporations and employers. Forced arbitration obstructs an employee’s pursuit of justice, violates employees’ civil rights and fails to hold employers accountable to employees and to the public. The mere fact the arbitration is forced and getting the job or being allowed to keep your job is a condition of entering into an arbitration agreement should make your hair stand on end. Here are just some of the ways forced binding arbitration can hurt you.
Arbitrations Are Private, Confidential and Not Transparent
For one, and what I see as the most serious concern with forced arbitration is that they are conducted in private, not publicly filed, and deprive plaintiffs of their day in court and the right to conduct discovery and a trial by jury. As such, forced arbitration is in fact arbitrary. They lack utter transparency, accountability and the employer is able to shield unlawful and unfair practices from the public. Not only is that a problem as a matter of public policy, but practically it takes away the leverage an employee might have to get an employer to the settlement table for fear of making their grievances public. The employer has no obligation or incentive to be transparent and to make things right. As a result of all of this, forced arbitration facilitates the perpetration of discriminatory and other unlawful and improper behavior in the workplace by preventing victims from being heard in an open court of law and preventing their complaints and stories from being made public. In addition, because there is no “verdict” and the findings of forced arbitration are private and confidential, there is no ability for future plaintiffs and their attorneys to uncover company-wide data to expose patterns and prior practices of discrimination and violations. In addition, arbitration does not yield publicly filed decisions and as such does not create legal precedent to inform future plaintiffs and their attorneys on whether laws have been violated and how to apply these laws to particular fact patterns.
Arbitration Favors Employers Not Employees
In addition to the above, forced arbitration strongly favors employer corporations as the employer selects and hires the arbitrator. In a court of law, neither party has the ability to select a judge and the process is blind. In addition, it is not uncommon that corporate executives may not only travel in the same social circles as the arbitrators and may be personal acquaintances of each other, but that corporate employers are often repeat offenders and as such become known by individual arbitrators in a particular market. Moreover, forced arbitration can be prohibitively expensive as plaintiffs may be required to share and sometimes even cover all of the fees, which include attorney fees. As in a court situation, both parties will want attorneys to represent them at an arbitration, so the costs can be significant on the flip side, there are far fewer options for pro bono counseling. Also, forced arbitration is binding and the rulings are final. It is almost impossible for employees to appeal an unfair or erroneous decision, as may be done in a court of law. Lastly, forced arbitration are subject to little if, any government oversight.
Employers Are the Clear Winners In Arbitration
In light of the above observations, employers and big business are the clear winners in this unjust and unfair process. The majority of time, forced arbitration results in favorable outcomes for employers. In fact, research shows that arbitrators are more likely find in favor of your employer and that employees are 1.7 times more likely to win in federal courts than in arbitration and 2.6 times more likely to win in state courts than in arbitration. In addition, forced arbitration settlements yield significantly lower damages for employees than in federal and state courts. (Sources: bit.ly/EPIArbitrationStudy, bit.ly/CPDArbitrationStudy)
Can Employees Avoid Arbitration?
So, what can employees do about this? You are already on your way as the first step is being informed. Now that you know how devastating a forced arbitration agreement can be, you will surely be aware of their existence in an employment context and take caution before entering into one. Remember that because forced arbitration benefits the employer, it is in their best interest that you sign on the dotted line. In order to accomplish this, they will often try to sneak a forced arbitration provision into your hiring paperwork. Courts have held that because employees entering into arbitration agreements are giving up their right to their day in court and a trial by jury, employers need to make these arbitration provisions obvious and bold and specifically identify the employee is waiving their right to a jury trial. Still, employers do not always comply with these common law requirements and it is easy for employees to get duped or pressured into signing away, especially when these agreements are forced, and a job offer or continuation of employment is at stake. As such, you must read all of your employment documents very carefully and it is advisable to seek legal counsel before accepting or signing anything. Also, be on the lookout for an email communication that may come anytime during your hiring or on-boarding process (or even later) that addresses arbitration. When presented in this form, there is usually a single step “option” to opt out of or opt into arbitration. It may be the case that just be failing to click the opt out, you have implied your consent to agree to arbitration. So again, you need to be very careful and immediately consult an attorney if any such email appears in your inbox.
Employees Can Negotiate and Sue to Avoid Arbitration
What else can you do to protect yourself in this situation. Because these arbitration agreements are forced and a condition of employment, you may believe that you have no choice but to sign in order to get or keep your job. For one, that is not always the case and experienced legal counsel in these matters can fight for you and attempt to negotiate this provision out of your agreement. In addition, we implement other legal strategies to protect our clients from these provisions such as the use of a sworn affidavit created and entered into by the client contemporaneously at the time of signing an employment/arbitration agreement; the employee makes a sworn statement that it was not their intention to sign an arbitration agreement, but that they had no choice and did so under duress and coercion. This can be helpful in the event there is a future legal dispute between the parties and the employer invokes the arbitration clause in an attempt to keep the matter out of court and compel arbitration. We can use this sworn affidavit as part of our practice in fighting the validity and enforceability of the arbitration agreement as it relates to the intent of the parties at the time the supposed contract was entered into. We also file suit in court seeking a declaratory judgment action as whether the client had the intent to enter into the arbitration agreement.
Google Bans Forced Arbitration Agreements for All Employees
While all of this sounds rather scary (and it is), the good news is the courts and even some big business are seeing this the way we do, and strides have been made to get rid of forced arbitration. In one amazing example, the corporate giant Google recently promised to end mandatory arbitration for all current and future full-time employees, including temps, vendors and contractors by March 21, 2019, in order to resolve disputes such as harassment, discrimination or wrongful termination. Google employees, alarmed by this unjust practice actually banded together not through a union, and created Googlers for Ending Forced Arbitration. Through these grass roots, call to action efforts, a powerful and large coalition of 20,0000 plus employees was formed that stood up to their employer Google and worked to yield this ground breaking and encouraging outcome. Both Google and their employees should be lauded for this brave endeavor and perhaps (hopefully) other big business and band of employees can affect similar outcomes.
Congress Takes Action to Ban Forced Arbitration Agreements
To help this along, law makers are also seeing the light when it comes to forced arbitration. House Democrats recently (February 28, 2019) introduced a major bill that would protect access to the court system to millions of US employees. The Restoring Justice for Workers Act, which would ban businesses from requiring workers to sign arbitration clauses, is still being considered by congress. If the legislation is passed, it would positively impact millions of US workers by giving them back their right to remove themselves from the unfair arbitration forum and have their potential claims heard in court.
If you are presented with a forced arbitration provision as part of your hiring documents and/or employment agreement, or at any time during your employment, do not sign until you consult with an employment law attorney. You will be giving away your rights and we caution you against doing so. Feel free to contact this office and we will be able to counsel you on this important issue, or help you with any of your employment law related needs.
Recently, employees at Google, Microsoft, Nest and employees at other companies have been revolting against their employers, unhappy about company practices. These employees are not unionizing for traditional labor issues such as higher wages or better benefits, but collectively protesting company practices they do not agree with morally or are not in keeping with the company’s original mission statement. On January 18, 2019, the Bureau of Labor Statistics issued a report regarding the total number of U.S. employees represented by unions. BLS stated, “[T]he union membership rate — the percent of wage and salary workers who were members of unions — was 10.5 percent in 2018, down by 0.2 percentage point from 2017. This number has been declining since 1983 (20.1% of employees reported belonging to a union) when the BLS began reporting union membership. In my opinion as an experienced employment lawyer, union membership will continue to decline, while employee activism will gather further momentum and have a much larger impact on corporate behavior and practices.
The Google Example of Collective Activism
For Google, employees collectively joined together to protest Project Maven, stating in an open letter to Google CEO Sundar Pichai, “we believe that Google should not be in the business of war” and that the new military initiative is inapposite to the company’s former motto of “Don’t Be Evil.” According to article posted by Inc.com, “[b]eyond compensation, culture and benefits, employees want to know they’re contributing to a sincere, well-defined mission or vision. They need to know why they are getting out of bed every morning, why they sometimes work late and what their hard work is accomplishing.” Eventually, the employee pressure caused Google to discontinue Project Maven altogether. Wow! Google is a company not known for permitting employees to question authority. In fact, every employee hired by the company is dictated a set of nonnegotiable employment agreements that prevent them from working with competitors or raising complaints in court. The employees at Google were just getting started. In November 2018, Google employees posted a letter protesting Google’s efforts to build a censorship Google platform for the Chinese Government. Google halted the program in December after the employee backlash.
The Microsoft Example of Collective Activism
In the case of Microsoft, 500 employees signed on to a petition, in addition to 295,000 other employees across several companies, calling for the end of a company contract with ICE (Immigration and Customs Enforcement and CBP (Customs and Border Protection) worth $19.4 million. According to the petition, “Microsoft boasted about how Azure, it’s cloud computing services, which can range from hosting a customer’s data to facial recognition, was making the agency more efficient. According to Microsoft’s own communications, their product is ‘mission- critical’ to ICE’s operations. We demand Microsoft stop enabling ICE’s mission to publish families seeking safety and an acknowledgment that technology serves a critical function in Trump’s agenda to criminalize migration.”
Employee Activism Will Evolve Without Fear of Retaliation
What is so unusual about this new form of employee activism is that employees are organizing around a single particular issue without the fear of being fired or sidelined in the organization. In our experience, a single employee who complains internally is driven out of the company by their employer. But when three thousand employees collectively register one complaint, the Company is forced to listen and reconcile this opposition, not fire them. That’s the point! This is a fascinating change in the traditional notion of employee relations management. No longer can employers dictate behavior or outcomes with fear and retribution, as they currently get away with. This movement is huge and we need to bolster employee activism across all companies. Yes, employees do have a voice, a collective one, but one that does not require them to unionize and pay union dues with very little accountability for the money being sent to the coffers of spendthrift unions.
Employee activism has been rekindled in the absence of any need for unionized collective action. The recent employee revolts at Google and Microsoft mark the arrival of a new model of transformation and change. Some may argue this is merely political activism among tech company employees in the gig economy. I disagree, this is the start of an employee activist movement that will touch not only political issues, but moral and environmental ones as well. As we have seen in the cases of Google and Microsoft, employees now realize they have a powerful voice, but only when they operate as a collective. I understand a chosen few in management must make crucial decisions, but the C-Suite also now realizes employees charged with implementing those decisions want and need to be heard. Companies are now listening and change is here.
For more information, contact Mark Carey at firstname.lastname@example.org