All employment relationships are based on a contract. A lot of people don’t know that. Its easy to forget. Most of us get a job. We work a job. We get paid. Not much time or reason to contemplate the legal metaphysics of our relationship to our employer. In the landmark Connecticut case called Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc. the Connecticut Supreme Court held that: “At the outset, we note that all employer-employee relationships not governed by express contracts involve some type of implied ‘contract’ of employment. There cannot be any serious dispute that there is a bargain of some kind; otherwise, the employee would not be working.”
What would we find if we took a few minutes to examine the fundamental nature of that contract which we all depend upon for our livelihood? As it happens, I have some thoughts on that subject…
Post Pandemic Recovery – Employees Market
In our current “almost but not quite post-pandemic” economic climate the dominant employment story is the dire shortage of workers. Recent economic reports reveal that employers in various sectors of the economy including transportation, construction, hospitality, manufacturing, and retail are experiencing an unprecedented difficulty in finding workers to staff up for the rapidly re-opening economy. “Despite unemployment numbers in the millions, some 8.1 million job vacancies remain.” The business press reports that demand for employees is at an all-time record high and is likely to remain so for the balance of 2021.
This rare confluence of social, economic, and biological forces may offer a rare opportunity to re-think the fundamentals of the American employment contract. Employees are more in demand than ever before. Whether they realize it or not, these in-demand workers have unprecedented bargaining power in the employment marketplace. If all employment is a “contract,” the newly empowered workers of today can and should demand a fair, just, and reasonable contract of employment.
You Have An Employment Contract But You Just Don’t Know It – Yet!
So, if all employment is a contract then what kind of contract is it? Even in situations where there is no written agreement the basic employment relationship, (i.e. “You work for me doing ‘x’ and I will pay you ‘y’”) creates, at a minimum, what is known as an implied contract. While an express contract is usually in writing with more or less clearly defined terms spelled out, an implied contract is created by the words, actions, or conduct of the parties which manifest an intent to undertake an actual contractual commitment. Contracts may be created by the initial offer letter. Oral promises of employment along with the terms of that agreement implied through the publication of company policies set forth in handbooks and manuals may also form the required agreements. The important take-away here is that even where an employment arrangement does not involve a formal written agreement, a contractual relationship is still created. The terms and conditions of that agreement are to be determined by the words and actions of the parties.
So why does it matter if my employment is technically a legal contract? What difference does it make to me? The significance of the contractual nature of the employment relationship lies in the fundamentals of contract law. Over the centuries, Anglo-American judges have created rules that govern the interpretation of contracts. This process of judicial rule making is known as the “common law” of contracts. These rules, either through codifications of the common law such as the Uniform Commercial Code or directly through common law case precedent govern the interpretation of all contracts from commercial sales to union labor contracts. Indeed, these rules apply directly to employment contracts as well. These rules of contract can and should be used to the advantage of workers who traditionally occupy a subordinate position in the economic caste of our society.
At-Will Employment is Abusive Because It Is Unconscionable!
So…is the basic employment contract unconscionable? I contend that it is. First, the default rule of employment is the “employment at will” doctrine. This is the doctrine that holds that barring a specific agreement to the contrary, all employers may terminate their employees at any time and for any reason or for no reason at all. In other words, the employer has no particular obligation to its employees to continue their employment or to treat them fairly regardless of the circumstances. The only caveat to this default rule is that an employer cannot terminate a worker for an illegal reason such as race or gender-based discrimination for example. We have written extensively about the fundamental inequity of the employment at will doctrine. As long as employers are not technically breaking a law, they can do whatever they please.
Why is the employment at will doctrine so unfair? One reason is that in most cases, the disparity in the economic bargaining power between an employer like Amazon, McDonald’s, or Wal-Mart, and the average employee is staggering. A worker applying to Amazon has absolutely no leverage to bring against such a global financial giant. Even a high-level management employee is an insignificant cog in the global machine. Whatever terms of employment these huge employers are offering is what the worker can get. Period.
Disparity In Employee Bargaining Power vs Employers
While the disparity in economic power is more dramatic in the Amazon example, it is also true in the small business context. A person who owns a restaurant is likely to have vastly greater resources than the employees applying to wait tables and wash dishes at the restaurant. In most employment scenarios, the resources of the business owners are going to be vastly superior to those of the employees seeking to work there. The economic power of the employer nearly always overshadows the economic power of the worker.
One might suggest that if an employee does not like the terms of employment offered by a given employer the worker is free to seek employment elsewhere. While this is true in some sense, it ignores the economic reality facing most workers, i.e. the need to work is an economic and social imperative. All those who are not independently wealthy must work in order to survive. Most workers must accept any suitable employment available or risk dire financial consequences for themselves and their families. Very few workers can remain out of the workforce and await more favorable terms of employment with another employer. Further, the fact that nearly all employers follow the “rule” of employment at will means employees generally find themselves in similar conditions with any employer for whom they work.
Our economic system depends upon employers having a large pool of available workers in such desperate need of employment that they will work under almost any conditions or for almost any wages. Indeed, the current shortage of workers has been roundly attributed to the provision of federal subsidies to unemployment benefits. These benefits are apparently keeping low-wage workers temporarily out of the workforce and causing the employee shortages discussed above. The U.S. Chamber of Commerce has recently stated the following about the federal $300 weekly supplement to unemployment benefits: “[T]he $300 benefit results in approximately one in four recipients taking home more in unemployment than they earned working.” To the extent this statement is valid, there is a serious problem here. If $300 per week is enough to surpass the wages of one quarter of the workforce, then a quarter of our workers are working for almost nothing! This statement shows that our business community essentially needs an available slave labor force in order to function! This dynamic illustrates the vast superiority of the employer’s position and the extreme vulnerability of the average worker.
When one considers the relative value of the goods exchanged between a worker and an employer the unconscionability of many employment relationships becomes apparent. When a worker agrees to accept a full-time job, that individual is usually giving almost all of their available waking time to that employer. A recent Gallup survey revealed that the average work week for U.S. full-time employees consists of around 47 hours. Some 21 percent of full-time workers surveyed work as much as 59 hours every week. Thus, a full-time job requires most or all of the productive waking time a person has available. So a full-time worker is required to give almost all of his or her energy and time resources to the employer. That is a huge percentage of one’s personal resources. So is the employer likewise required to give most of its resources to the worker? Not at all. The wages and benefits of one employee is not only a fraction of the employer’s overall resources, it is usually a fraction of the productive value the employee brings to the enterprise.
The fact that a meagre $300 per week extra unemployment benefit is enough to keep one quarter of workers out of the workforce illustrates the unconscionable nature of many employment relationships. Why would anyone not under extreme duress voluntarily agree to give most of his or her time and energy (i.e., most of his or her life) to an enterprise that offers so little in return? Further, why would the employee agree to that arrangement when he or she can be terminated at will for no reason, no matter their seniority, their dedication to the company or how hard they work? That is a bargain, “…such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other…’”
So the employment at will doctrine leaves workers in the position of making an agreement that one would have to be “under delusion” to agree to while the employer is placed in the position of requiring a bargain that no “fair” person would accept. Even in situations where an employer pays fair and reasonable wages, there are other ways in which the unequal bargaining power between employer and employee is manifest in the modern marketplace.
Employers Are Delusional – What Were They Thinking?
Employers frequently use their superior bargaining position to insist on making other agreements part of the at-will employment contract which only someone “under delusion” would accept. Non-competition agreements, forced arbitration provisions, and other restrictive covenants are often forced on workers as a condition of employment.(See related articles: When Can Non-Competition Agreements Be Enforced Against Independent Contractors? ; Free Yourself From Forced Arbitration). These pernicious and inequitable covenants can impair an employee’s ability to earn a living after the employment relationship ends. So an employer is free to extract a non-compete from an employee by offering the consideration of employment, then terminate the employment for no reason and thereby withdraw the consideration previously offered and then nonetheless prevent the employee from finding another job in the same industry. Indeed “delusion” backed by economic coercion is the only explanation for such an agreement.
The fact that the fundamental legal principles of the employment relationship are outrageously inequitable is evident to anyone who has had a serious dispute with an employer. As an employment lawyer representing employees and executives, I am frequently in a position where I need to educate my clients on their employment rights and guide them through all manner of disputes with their employers. Without fail, clients are shocked and outraged when they are apprised of the limited rights they have to resist the unchecked hegemony of their employers. Employees sign non-competes because they feel they are required to in order to get a job. Then when their employment ends, often through no fault of their own, they are shocked to realize they cannot work in their industry because the employer has extracted an inequitable yet enforceable promise from them not to work for a competing business. They signed away their right to work in exchange for a job they can be fired from for no reason whatsoever and for a wage which is in no way worth the time and effort they sacrificed!
I have spoken to thousands of employees who were unfairly treated at work during my career. Invariably in these situations, the employee assumes there is some fundamental legal principle of equity or “fairness” that would work to right the outrageous wrong they suffer. This confusion regarding the rules governing employment contracts is essentially being “under delusion.” My contention is simply that if principles of contract law were actually fairly and logically applied to the employment contract, the unequal bargaining power between employer and employee, as well as the relative disparity in consideration offered between the parties to the employment contract should make patently unjust results such as the one outlined above all but impossible. The fact that these outrageous default rules like “employment at will” have ben normalized in our society and in our jurisprudence makes them a self-fulfilling prophecy. Questioning those default rules and resisting the presumption that they are even remotely fair is a first step in changing them.
Aside from the inherent imbalance of power between employer and employee and the relatively disproportionate value of the consideration exchanged, the dynamics of the legal process itself reinforce the unconscionability of the standard at-will employment agreement. All employment agreements are contracts. When the rights of parties to contracts are in dispute the results are determined by our civil court system. They are determined usually by judges. When employees seek to engage the legal system to resolve disputes with their employers, they are stepping into an arena so dominated by employers that the process itself is designed to reject their claims.
The Losers Rules Favor Employers – Employees Need to Finally Wake Up
In her seminal article in the Yale Law Journal called “Loser’s Rules,” former Federal District Judge and Harvard Law Professor, the Honorable Nancy Gertner observes that because employers are repeat players in the judicial system, they have the power (as a group and over time) to settle employee’s cases when they are strong and to litigate the cases that are weak. The power to accomplish this strategic settlement is itself born of the economic disparity between the players.
While an employer has the money to buy off a plaintiff employee with a strong case, individual employees who cannot afford protracted litigation costs are forced by economic necessity to accept these settlements rather than push their case to trial. This power to choose which cases settle results in an overwhelming majority of judicially determined employment cases favoring the employer. These decisions become the body of legal precedent which shapes future decisions on employment cases. This, like the blind acceptance of the employment at will rule also becomes a self-fulfilling prophecy. Judge Gertner notes: “Over time, strategic settlement practices produce judicial interpretations of rights that favor the repeat players’ interests.“ This dynamic illustrates the often unseen ways that the social, economic, and political power of employers as a group dominates the individual employee in the employment relationship.
The rules currently governing the employment relationship are not written on stone tablets. Legislators, employers, workers, judges, and juries have created these rules and they can also be changed. The first step is the awareness that there are fundamental problems with them and more importantly that those problems can be addressed by rethinking some the principles at work behind them. No one needs to accept that “employment at will” is the default rule. No one needs to accept a non-compete. No one needs to work for unfair wages or in adverse conditions. No one needs to accept that bullying or harassment at work by an aggressive employer or co-worker is just, “the way it is.”
The day he took office, President Biden issued Executive Order 13988, on “Preventing and Combatting Discrimination on the basis of Gender Identity or Sexual Orientation.” The effect of this order was to undo seven months of hackneyed religious liberty arguments of the previous administration to justify transphobic and homophobic policies that circumvent the obvious application of the Supreme Court’s holding in Bostock v. Clayton County. In honor of Pride Month and Bostock’s first anniversary as law of the land, I present some thoughts on the intersection between the First Amendment’s free exercise clause and anti-discrimination legislation, as well as current attempts to curtail transgender rights.
But first, a few ground rules: This is not a peer-reviewed law journal article. It is an attempt to translate some complex legal issues into something a non-lawyer can read and think about. I have most definitely overlooked nuances, and I welcome thoughtful criticism. Further, I intend no disrespect to any religion, religious thought, or people of faith. I do, however, disrespect the use of one’s religious beliefs to limit the rights of others and my pet peeve, the ascribing of religious faith to intangible statutorily-created legal fictions like corporations.
Bostock: Discrimination Because of Sexual Orientation or Gender Identity IS Because of Sex
Bostock resolved a trio of employment discrimination cases, where the employees were fired when the employers found out the employees were homosexual or transgender. The Supreme Court acknowledged that discrimination based on a person’s sexual orientation or gender identity is included in prohibition against discrimination “because of … sex” in Title VII of the Civil Rights Act. The Court explained, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The employer who discriminates on the basis of sexual orientation or gender identity necessarily considers the behavior or appearance of the employee in comparison to how the employer believes a person of the employee’s sex should behave or appear and, therefore, discriminates because of the employee’s sex. The decision was groundbreaking and led to predictable backlash in the name of religious freedom.
Civil Rights Act of 1964 Prohibits Some Discrimination
Title VII of Civil Rights Act of 1964 makes it unlawful for an employer “to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his[/her/their] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII of Civil Rights Act does not apply to “religious corporation[s], association[s], educational institution[s], or societ[ies] with respect to the employment of individuals of a particular religion.” This makes sense: Congress did not want a world in which I could sue a Jewish congregation for refusing to hire me, a non-Jew, as a religious education teacher. That would be silly and would infringe the congregants’ rights to worship as they choose.
The Former Guy’s Shot Across the Bow
On January 19, 2021, the day before Biden’s inauguration, the former acting head of the Civil Rights Division of the Justice Department, John Daukas, issued a spite memo declaring that Division should not extend the holding in Bostock to areas such as gender-based policies on bathrooms and sports teams. The memo states, “Unlike racial discrimination, the Supreme Court has never held that a religious employer’s decision not to hire homosexual or transgender persons ‘violates deeply and widely accepted views of elementary justice’ or that the government has a ‘compelling’ interest in the eradication of such conduct.”
Albeit true, I’m calling Balderdash! at Daukas’s lofty statement. First, the Civil Rights Act exempts “religious corporation[s], association[s], educational institution[s], or societ[ies]” from its prohibitions against employment discrimination. Churches can discriminate in its employment practices because of sex with abandon. (See Female Catholic Priests. Or, more to the point, don’t see them.) Second, Daukas intentionally misstates what the Supreme Court held in Bostock. The Supreme Court did not invent two more protected categories to Title VII; it explained that discrimination because of sex includes discrimination against homosexuals and transgender people. It is natural and expected, therefore, that “the Supreme Court has never held that … [failure to] hire homosexual or transgender persons ‘violates deeply and widely accepted views of elementary justice…’” because the Supreme Court decries discrimination because of sex.
Finally, Daukas’ use of the term “religious employer,” signals that he is preaching to the interventionist religious freedom choir. No one questions the right of a religious organization to discriminate. Daukas wants individual employers and their business corporations to be able to discriminate against people based on their sexual orientation and gender identity.
The Civil Rights Division rescinded Daukas’s insightless memo two days later, as inconsistent with Executive Order 13988.
Bostock and Title IX of the Education Amendments of 1972
Title IX of the Education Amendments of 1972 states, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” On March 26, 2021, the Civil Rights Division of the Justice Department issued a memorandum concerning the Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972, concluding that the textual analysis of “because of” sex in Bostock applies to Title IX’s “on the basis of sex.” The Department of Justice’s conclusion that Title IX protects transgender students is backed by two post-Bostock appellate court decisions that reach the same conclusion. This is unlikely to cause widespread pushback from colleges and universities. The National Collegiate Athletics Association has supported transgender athletes for many years, publishing its handbook entitled, NCAA Inclusion of Transgender Student-Athletes in 2011.
In general, all colleges and universities that receive federal funding are covered by Title IX. Many high schools are covered as well. There is a religious exemption for private colleges and universities that are run or controlled by religious organizations. Fear-mongers can relax: Liberty University will not be forced to amend its Honor Code and admit openly homosexual or transgender students.
Bostock and Section 1557 of the Affordable Care Act
HHS’s interpretation and enforcement are limited by challenges concerning religious freedom. In the Religious Sisters of Mercy v. Azar, decided on January 19, 2021, the Northern District of North Dakota held HHS’s interpretation of Section 1557, which could require Catholic plaintiffs to provide gender-affirming surgery and/or insurance coverage for gender-affirming surgery, violated the plaintiffs’ sincerely held religious beliefs. It is likely that Courts of Appeals reviewing the same issue would affirm the decision. This makes sense: Catholic doctrine on issues of sexuality, birth control, abortion, and the procreative purpose of humankind is well-known. If Congress cannot establish a state religion and cannot infringe individuals’ rights to worship as we choose, it cannot force religious organizations or individuals with sincerely-held religious beliefs, to perform or pay for medical procedures that violate religious doctrine.
Rant alert: I’m talking about religious organizations, not business corporations. Applying this rule to business corporations is crazy talk, Hobby Lobby notwithstanding. I cannot get behind the idea that a business corporation has sincerely-held religious beliefs. Corporations are legal fictions created by state law. The purpose of a business corporation is to create a legal “person” that can sue and be sued, to protect human owners from liability. As amusing as the Wall Street Catechism might be, business corporations do not ponder the meaning of life or their roles in it: the meanings of their lives are inscribed on certificates of incorporation and imbued in mission statements. Corporations are intentionally not the human owners. Regardless of what the human owners may sincerely believe, business corporations are no more capable of religious thought than a stapler. And at least the stapler is tangible. Rant over.
Backlash from the States
Bathroom Bills have been covered extensively and are based on the fantastic belief that allowing transwomen to TCOB in the women’s bathroom will invite hordes of pedophilic men to touch your daughters. It’s ‘nad-baiting, simple and plain.
Tennessee has added a new twist, by requiring businesses to post which biological sex is allowed in multi-person public bathrooms. It’s an exciting new way for trans-inclusive businesses to blackball themselves without ever having to answer if they are now, or ever have been, courteous to transgender patrons.
It’s almost impossible to keep current with the anti-transgender athletics laws passing state legislatures and signed gleefully into law by governors surrounded by assorted daughters and females (because, you know, as fathers of daughters, they know what it’s like). I was going to call out Mississippi, Arkansas, and Tennessee for their laws banning trans girls from participating in girls’ sports, but then the fatheriest of fathers of daughters of them all, Florida’s Ron DeSantis, signed his very own ban on trans girls and women participating in girls’ and women’s sports on June 1. A very merry Pridemas to all!
One of the assorted daughters and females surrounding Governor DeSantis was Selina Soule, a plaintiff who sued to end Connecticut’s transgender inclusion policy. Ms. Soule talked about the pain of competing against talented athletes who are different from her. Her lawsuit, by the way, was dismissed as moot in late April since the two trans athletes who were ruining her life graduated from high school. The Heritage Foundation described presiding Judge Robert N. Chatigny as “activist” for his exercise of judicial restraint.
This is a hot-button issue, so let me put it out there right now – sports are supposed to be fun. Kids should just get to play. There is no evidence that a trans girl on hormone therapy has an unfair advantage over biological girls in sports. Indeed, the medical evidence says otherwise, as does indisputable fact: if the two trans athletes in the Connecticut case had an unfair competitive advantage, they would have come in first and second in every race. But they didn’t. They were beaten regularly by the named plaintiffs, each of whom is an extremely gifted athlete in addition to being a biological girl.
Nothing but the deepest respect for the law of unintended consequences has me wondering what the biological girls’ parents are thinking. (As minors, the girls cannot bring a lawsuit themselves, it must be brought by a parent or legal guardian on their behalf.) As much fun as “owning the libs” may be, the girls will be high school seniors soon enough. Have their parents considered how their daughters’ roles in transphobic political theater will look to Division I NCAA colleges? The NCAA “firmly and unequivocally” supports giving transgender athletes the opportunity to compete. Lawsuits are forever.
Back to the law, these states enacted their laws knowing perfectly well that they will be struck down, according to long precedent concerning the interpretation of “on the basis of sex” in Title IX cases. As long as the athletic programs are connected with federal funds, they have to comply with federal law. The Fourth and Eleventh Circuits have already applied the Bostock definition of “sex” to Title IX, and the Second Circuit will likely do so if the Soule case is ever decided on the merits. (The Plaintiffs appealed Judge Chatigny’s “activist”.)
Healthcare is the final, broad backlash category. The Arkansan legislature, in overriding Governor Asa Hutchinson’s veto, decided that it is in a better position to make healthcare decisions for adolescents in the state than the adolescents’ own medical doctors. Specifically, it decided it must save the youth of Arkansas from gender affirming medical care because it is far better that transgender youth commit suicide than receive hormone therapy.
Think I’m joking? Being histrionic for dramatic effect? Look up the stats for suicidality in transgender adolescents. And then look up the stats for homelessness and sex work among transgender adolescents. After your stomach settles, you can clear your conscience with a donation to the youth shelter of your choice.
But back to healthcare, much ink has been spilled by the prospect of medical doctors of conscience being forced to perform gender-affirming surgery or being forced to prescribe hormone therapies. This is utter nonsense. Doctors choose the field of medicine in which they practice. Gender-affirming surgery, while lifesaving, is not emergency surgery. Hospital residents don’t get awakened at 3:00 am for emergency top surgery.
If you don’t want to perform gender-affirming surgery, the solution is simple: don’t become a plastic surgeon specializing in gender-affirming surgery. If you don’t want to prescribe hormone therapy to trans people, don’t become an endocrinologist specializing in gender-affirming hormone therapy. Trust me, trans people aren’t looking for resentful jerks to perform surgery on them or to provide any other medical care. The community knows who the good and empathetic healthcare practitioners are. If you have to ask, it ain’t you so don’t worry about it.
As a basic matter of Constitutional, employment, and human rights law, no one can be forced to perform gender-affirming surgery in this country. The Thirteenth Amendment ended slavery. If your employer insists you perform gender-affirming surgery and you do not want to for any reason whatsoever, you can work somewhere else. If you have a sincerely-held religious belief that prevents you from performing gender-affirming surgery, and your employer decides that starting tomorrow you must perform gender-affirming surgery or you will be fired, you still don’t have to do it. If you get fired or demoted or your pay is cut or you get switched to a bad shift, you have tidy discrimination and retaliation claims against your employer.
So, let’s talk about the true emergency situation. You arrive via ambulance in the emergency department of Religious Organization Hospital (which religious organization cleaves unto an unchangeable gender binary). You are unable to move one side of your body, experiencing altered states of consciousness, and a loss of balance. Your biological gender is relevant for the administration of anesthesia for your emergency cranial surgery, and it is important to disclose the medications you take.
There are probably more reasons to disclose your biological gender and hormone therapy – I’m not a medical professional – but the disclosures must be tied to your care. You should not be forced to answer endlessly invasive questions about your genitalia or to show your genitalia to all and sundry. You should not be misgendered or referred to by offensive terms. Simply, you should be treated with the same dignity-preserving respect as every person receiving medical care.
Providing emergency medical care to a transgender person does offend any legitimate religious doctrine I can think of, and I have to question the faith of anyone who claims their religion prevents them from preserving life.
If you are being treated unfairly at work, in school, or by medical professionals because of your gender identity or sexual orientation, please contact our employment attorneys at Carey & Associates, P.C. at firstname.lastname@example.org.
Employer Mandated Covid-19 Vaccinations for All Employees
By Mark Carey
Employers can now mandate all employees to get a Covid-19 vaccination as a condition of their employment without violating federal laws. This resolution was anticipated but it is unclear how the guidance will be followed after the population falls short of the so called herd immunity. On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance that allows all employers to require a Covid-19 vaccination in order to work, with two exceptions. Specifically, the EEOC guidance states for all employees entering back to the physical workspace, they must provide proof of vaccination. The guidance is just that, not a governmental mandate. The EEOC is the primary agency in charge of enforcing work related policies and statutes.
Direct Threat – Primary Rationale by Employers
In essence, the EEOC stated that if an employee refuses to show proof of vaccination, then the employer has the right to prevent the employee from coming to the physical workspace and terminate the employee if necessary. The primary rationale is that an unvaccinated employee poses a “direct threat” to the employer and its’ employees, which trumps the few employment rights employees already have. There are two exceptions. First, if the Covid-19 vaccination would interfere with the employee’s medical condition, including pregnancy, he or she has the right to request a reasonable accommodation under federal disability laws. Second, if because of religious reasons the employee does not want to become vaccinated, he or she again can request a reasonable accommodation from the employer. In both cases, the employee must provide supporting documentation that they qualify for the exemption. The employer is required to follow federal law and provide an interactive discussion regarding possible reasonable disability and religious reasonable accommodations.
Will the Government Mandate Vaccination to Win the War Against Covid-19?
Although I was interested in providing this newsworthy item, I was more interested in the future of how this guidance will be enforced once we have reached a national impasse where far too many employees refuse to vaccinate and the pandemic roils onward. Forget everything we now know, including politics, as these are unchartered waters. How do you require employees to vaccinate for Covid-19 against their will? Answer, by the force of the rule of law due to a national health emergency. I wrote about this issue recently, Employer Mandated Covid-19 Vaccinations- Can They Do that?. Remember, your individual rights are only as strong as the country you belong to, but if the country is under attack – guess what- the government takes over to defend us all. The governmental action will not come from the EEOC, but from an Act of Congress under the War Powers Act (War Powers Resolution of 1973).
The federal government will pass legislation requiring all employees to become vaccinated in order to finally bring an end to the pandemic and the overall infringement on our personal freedoms. I predict this will happen once we see a resurgence of Covid-19 cases in the unvaccinated population and it will be riding tandem with the end of the vaccination efficacy period for which data is still emerging, i.e. the date when the current Covid-19 vaccines wear off. These events might also coincide with a substantial decline of the Covid-19 vaccines efficacy against new highly contagious variants. If this perfect storm hits the U.S., consider it an act of war and the federal government will institute an unprecedented vaccination mandate requiring all employees, including the non-working population, to vaccinate. Our government is immensely powerful indeed, regardless of who is in power, and it can declare an act of war against foreign enemies; we just have not done so since 1942. It is not impossible. Covid-19 is that foreign enemy. Prepare yourselves, as this may get uglier before the enemy is finally defeated.
Is it worth it to sue your employer? Answer: Maybe. Oh honey. You weren’t expecting a straight answer from a lawyer, were you? First, this is not a decision for a lawyer to make. We can only show you the door. You are the one who has to walk through it.
Second, there are many things for you to consider before you sue your employer, and you are the only person who can weigh the pros and cons to decide what is best for you. Best for you could be total war, or it could be quietly stewing for years while maintaining a placid façade until you deliver a sweet, sweet cold dish of revenge. (Not that I would know, of course. From my first paper route at age 12, I’ve had nothing but affirming and revelatory employment experiences.)
As I was saying, here are the main factors to consider:
Is it Your Current or Former Employer?
Trick question. If you decide to sue your current employer, it will become your former employer when all is said and done. The only possible exception is if you work for the government.
Employment discrimination and whistleblower laws prohibit retaliation for filing complaints/blowing the whistle – what we call “protected activity – but that does not change the two overwhelmingly likely outcomes: (a) your employer will ignore the prohibition against retaliation and will terminate your employment, thereby giving you a new, strong claim against the employer; or (b) ending your employment is part of a settlement agreement.
It is true that your former employer can reinstate you and pay lost wages to resolve your complaint, but it is the Loch Ness monster of remedies: it is in the statutes and very smart people have written much about it. Some claim to know someone who has seen an employer offer reinstatement. Personally, I am skeptical. I’ve never seen it and I have a hard time believing the reinstatement truthers (which is to say, if there were such a thing as ReinstatementTruthers).
As a practical matter, do you think you would be welcome with open arms by the people whose actions caused you to sue your employer? Even if they’re gone, do you want to work along side people who may not like that you complained and think you got someone disciplined or fired? Of course not. And lawyers, for our parts, want any settlement to mean the end of the possibility of history repeating itself. This means the employer pays you to leave.
Bottom line: if you are going to sue your current employer, you must accept that it will become your former employer when all is said and done.
Time, Time, Time
The claim will take longer than you ever thought possible. Even for the most blatant claim, it will take longer than you think. Let’s say you tell your boss you are pregnant, and he fires you on the spot saying, “When did you get married? I won’t have no preggo dames working for me. You should be home taking care of your husband like a good wife, not taking the space of a deserving man.” This is blatant, over-the-top sexism, pregnancy discrimination, misogyny, presumptuous patriarchal nonsense from 1957, when my momma lost her job as a bank teller because she started “showing.” Easy win, right?
Yes, it is. But the employer still has a right to defend itself. No judge is going to look at your complaint and declare you the winner because our adversarial court system does not allow it. Generally speaking, we can expect your employer to act rationally and recognize that it is not 1957 and it will be damaging to the business for the public to find out the ridiculous things spouted by Mr. Dinosaur Bank Manager, but there is no guarantee. The employer could be irrational and spend two years requesting documents and taking depositions to test your stamina.
Paying the Piper
Hiring an employment lawyer to bring your claim is either going to cost money or attention. You may not have a choice but, if you do, you must decide whether to hire someone who charges by the hour and will give your case all the attention it needs, someone who takes cases on a contingent fee basis and may not have the time to give your case the attention it needs, or someone who does a combination with a lower hourly rate and a piece of your award.
Why don’t all employment lawyers work on a contingent fee basis like personal injury lawyers? Because the business model is not well-adapted to this kind of work.
Let me explain in English (or as close as possible). Every automobile accident case is run the same way. The lawyer meets with the potential client and immediately has a good idea of what the case is worth (a multiple of medical costs, usually), whether it will settle and, if so, when it is likely to settle, and whether it will go to trial. She hands the case off to her paralegal to gather medical records and contact auto insurance companies and submit claims. If there are early settlement negotiations with the insurance company, she gets involved. If not, the paralegal lets her know when it is time to file a complaint, writes the complaint from a form, gets the lawyer to sign it, and takes care of getting it filed. And on it goes. The same processes and forms for all cases and predictable outcomes. This means a personal injury attorney can run a successful volume business without charging clients by the hour for her time.
In employment law, every case is fact-intensive. The lawyer has to dig deep into the background of the case to know every fact that is helpful or potential harmful. It is hard to predict when and if cases will settle, and the value of settlement depends on the client’s income and the skill of the attorney to present the facts to the employer in a way that maximizes the employer’s perceived risk of the facts becoming public. This means the lawyer must be involved every step of the way, cannot delegate running the case to a paralegal, and really should not handle the volume of cases a PI attorney can.
Oh, those empty threats from our youth! There is no permanent record telling the world how you cut Italian several times per week in favor of breakfast sandwiches because you had an awesome teacher in junior high, mediocre teachers in high school, and you didn’t have to learn anything else to pass the Regents Exam. Hypothetically speaking, of course.
Filing a lawsuit, on the other hand, creates a public record that anyone can find online if they know where to look. If your case is newsworthy, finding your case online can be a simple Google search. And if you work in a relatively small industry, word of your lawsuit will spread.
I don’t want to overstate the significance of this, but neither do I want to pretend its all flowers and unicorns and joy. All sizeable companies have had situations arise where an employee behaved badly and a lawsuit resulted, and all sizeable companies have had situations arise where something was blown out of proportion and a lawsuit resulted.
You just have to accept that bringing a lawsuit against a former employer can have the unintended consequence of casting you in a negative light to a future employer. Smart employers will dig a little deeper before making a judgment, but not all employers are smart.
Know the Upside
Damages in employment cases are most often tied to your income. This means the more you earn, the higher your potential damages. This is awful in many ways because the same horrible behavior can be worth little if done to the lowest paid employees who are least likely to hire an attorney to fight for them, but worth a lot if done to highly paid employees who are more likely to have resources to survive without a regular paycheck and are more likely to hire an attorney.
This isn’t going to change – damages in employment law are tied to the employee’s losses, and the employee’s losses are a function of their rate of pay.
Employees also have a duty to mitigate damages, meaning you must look for another job and anything you earn will reduce your potential damages from the bad acts of your former employer. For example, if you get fired from your $50,000/year job at Company X as Social Media Manager, Widgets, because of discrimination, your damages aren’t $50,000/year until you hit 65. Instead, your damages accrue at the same rate as if you were still employed, minus any unemployment you receive, and minus any income you earn from work. If Company Y hires you at $100,000/year as Senior Widgets Influencer six months after Company X fired you, your damages stop accruing because you are earning more than you would have if you weren’t fired by Company X. Your maximum damages are the $25,000 you did not earn in the six months you were unemployed.
Potential clients usually call us before they have a new job, so they cannot predict when their damages will stop accruing. Still, it is important to understand how damages accrue so you can weigh how long it is likely to take to land a job comparable to the one you lost. This information will tell you the likely upside so you can decide if you want to fight for it, and how hard.
Anti-discrimination laws and some whistleblower laws provide for an award of your attorney fees, but that only comes up after you win at trial. It is very rare that an employer will agree to pay the employee’s attorneys fees as part of a settlement, so you should never add attorney fees reimbursement to your upside. There is hope here, you can deduct attorneys’ fees spent pursuing employment discrimination cases. Click HERE for information about IRS Publication 525 wherein you will learn you can deduct the total amount of attorneys’ fees, whether by judgment or settlement, from the gross income above the line on Form 1040.
Your Dignity and Sense of Justice
Finally, you have to consider how you will feel about yourself if you don’t bring the lawsuit. Can you live with “letting them get away with it,” or will it upset you for a long time that your employer did terrible and unlawful things and was never held accountable? I would caution against bringing a lawsuit solely to satisfy a sense of justice, but feeling some vindication after suffering a harm has a healing quality to it. And that’s not nothing. One final note, that manager or coworker who discriminated against you, well, he/she/they etc., will have to read every word of your sworn affidavit and complaint. Defense lawyers will require it. Imagine the shame and embarrassment the idiot will feel when doing the required reading. I mean, no one is immune from this sort of payback!
Is It Worth It to Sue Your Employer? There are many factors to weigh before deciding to sue your employer. If you would like more information about the factors at issue in your employment dispute, please contact Carey & Associates, P.C. at email@example.com
Feedback Responses to Cancel Culture is Illegal At Work
When I decided to write the first article (Cancel Culture is Illegal At Work!) I knowingly anticipated immediate judgment and backlash. In essence, I knew I was going to be canceled. That was the point. I was inviting debate about the entitlement mentality – to cancel others at will. What I knew to be true was the lack of legal substance to the argument in favor of cancel culture being used and defended at work. How could there be. In order for any legitimate social/political argument to arise to future public policy and statutory initiation, there would need to be a foundation based on prior legal precedent. Without legal precedent, cancel culture supporters are just acting arbitrarily based on social passions. Passions and emotions are high certainly. It is not my intention to criticize cancel culture, but to show the negative consequences of unfettered and arbitrary bias and the impact legally. Yes, it is still illegal to cancel at work and I invite any argument to support why it is not. I am listening but are you listening to my question here? To ignore me is to cancel me. To accept opposing viewpoints is only wise, as it will convince opponents there may be a sliver of justification for cancel culture. All of our American legal developments that address social concerns always follow this same process – seeking a foothold in the rule of law, as discussed below.
Angry Feedback Without Legal Foundation
In response to my first article I received several angry email responses informing I was wrong about what is cancel culture and accused me of perpetuating whiteness. But none of the objections to the article provided a legal basis to support the continued use and protection of cancel culture at work. This is my point. Proponents of cancel culture are not even understanding the legal issues or just ignore them entirely in order to perpetuate their narrative. Social movements must have a footing in the rule of law, otherwise they do not and will not survive. Advocates of cancel culture never cite any legal basis to support its existence but for the fact it just “IS” and we should all heed to it.
The Future of Cancel Culture at Work
The future of cancel culture at work will definitely result in lawsuits against individuals based on reverse discrimination. Now currently, only a select number of federal statutes provide individual liability, particularly 42 USC 1981. Section 1981, as it is commonly referred to, is a post-civil war reconstruction statute to protect and enfranchise early African Americans to own land of their own and to contract for business purposes, both of which did not previously exist. Today, employment lawyers, including myself, use Section 1981 to combat race discrimination in the workplace of any kind, whether Brown, Black, White, Hispanic, LatinX, Asian. Congress and the courts have never specified which race was protected by the statute; actually the word race was never mentioned in the statutory wording. Although it did set the standard to measure against, “as is enjoyed by white citizens”. 42 USC Section 1981 states specifically,
“(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”
Individual Liability for Employees Who Pursue Cancel Culture at Work
Most people who pursue cancel culture at work do not realize they can be sued individually for race discrimination under Section 1981. This is commonly referred to as reverse race discrimination, but that phrase too is also not mentioned in the statutory language. To be clear, reverse race discrimination can apply to any race.
Courts are responsible for this development and the use of Section 1981 to protect all races against invidious race discrimination. Cancel culture IS invidious race discrimination. There is no legal argument to be used to say that it is not. In fact, the point of this article is to demonstrate the utter lack of foundational legal support behind cancel culture at work. After all, we derive our individual rights, liberties and protections from the “rule of law”. In order for cancel culture to rise to its assumed zenith, it must first ground itself in the rule of law. What do I mean by this? Let’s assume a cancel culture event occurred at work and the employee perpetrating the canceling seeks to vindicate his “legal” right, not social right, to cancel another employee. The employee must assert legal “standing” to do so. Standing is a legal term that defines the right or opportunity to contest a legal interest. Where is the standing to “cancel” another employee at work? I have yet to hear any cogent argument to support cancel culture standing in the legal, not social, context. There are none. Cancel culture at work is illegal. I predict cancel culture will not survive because it is legally flawed.
Headhunter Offers Important Advice: Welcome to the AI Machine: A friend and colleague of mine is a nationally known headhunter and expert in his field. Nick Corcodilos, from AskTheHeadhunter.com, provides alarming insight regarding Artificial Intelligence (AI) and the interview process. In essence, employers like Hilton and Unilever are using AI to conduct video interviews without any human interactions.
Here’s a sample of his article which you can read HERE.
The employer has invested its money in HireVue, not in you, to conduct this assessment — which we can’t even call an interview because although HR is viewing there is no inter-action with anyone. It’s just your bit stream and a recording and some software and hardware, saving the employer the cost of deploying a human to judge you.
If your data doesn’t match the template the employer uses to match job candidates, the recruiting process ends. A quick look at the employer’s website reveals that “People are our most important asset!”
You were recently “Canceled” by your coworker, what can you do about it? Cancel culture was thought to be an election year propaganda issue that would go away, well it hasn’t. If you have not heard yet, cancel culture is the “popular practice of withdrawing support for (canceling) public figures and companies after they have done or said something considered objectionable or offensive. Cancel culture is generally discussed as being performed on social media in the form of group shaming.” (Source). Cancel culture has also evolved into “erasing history, encouraging lawlessness, muting citizens, and violating free exchange of ideas, thoughts, and speech”.(Source). Recently and more troubling, cancel culture has morphed into outright physical assaults on Asian Americans.
Employment Laws Prohibit Cancel Culture
Canceling someone at work, by what ever means either while at work or on social media, is illegal. Why is it illegal? To cancel a coworker is to hold a bias against that employee because of their physical characteristics. In doing so, you are committing an act of intentional discrimination and violating state and federal laws discussed below. You are also violating the company code of conduct subjecting you to possible termination, wherein the company legally cancels you! Why would anyone want to do this? It is insane but it’s happening!
There are state and federal statutes (Title VII, ADEA, ADA, PDA, EPA) that prohibit discrimination during employment “because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment investigation or lawsuit.” (Source).
Don’t I have a right to freedom of speech at work?
If you hold the opinion that you have a right to voice your opinion at work, i.e. canceling regarding any topic, issue or person, you are grossly misunderstanding your constitutional rights and availing yourself to possible reprimand and termination. Remember, while at work (assuming only nongovernmental employment here), you have no freedom of speech with the exception of whistle blowing communications to management or governmental agencies, which we have written about previously here. So get over it already! Why would anyone want to jeopardize their income by using cancel culture? My only conclusion is ignorance of the law and utter lack of respect for your coworkers, aka stupidity.
State and Federal Criminal Statutes Prohibit Cancel Culture
State and federal hate crime laws can be used to prosecute actions taken during working hours or arise from the employment relationship. Most states have hate crimes laws, except for Arkansas, South Carolina and Wyoming. Connecticut has a robust series of hate crimes laws on the books. “Connecticut has a number of statutes on hate crimes that protect a range of people, enhance penalties for bias crimes, and allow an injured person to sue for money damages. The primary criminal statutes are the intimidation based on bigotry or bias crimes. These statutes provide three degrees of penalties. They address certain actions that intimidate or harass another person because of his actual or perceived race, religion, ethnicity, disability, sexual orientation, or gender identity or expression.” (OLR Research Report).
On the federal level, the following laws make it a federal crime to cancel other employees because of actual or perceived religion, race, color, religion and national origin, gender, sexual orientation, gender identity, and disability. Yes, you can go to jail if you cancel someone, either in person or through social media.
“The Shepard Byrd Act makes it a federal crime to willfully cause bodily injury, or attempt to do so using a dangerous weapon, because of the victim’s actual or perceived race, color, religion, or national origin. The Act also extends federal hate crime prohibitions to crimes committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person, only where the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction. The Shepard-Byrd Act is the first statute allowing federal criminal prosecution of hate crimes motivated by the victim’s actual or perceived sexual orientation or gender identity.”
There are other federal hate crimes statutes related to fair housing, damage to religious property and violent interference with federally protected rights for those individuals participating in a federally protected activity such as public education and employment.
Cancel Culture is Simply Un-American
The continued observance of cancel culture in 2021 is an un-American illegal act that is not consistent with American customs, principles, or traditions. (Source) Here, principles are equated with the aforementioned statutes making it illegal to cancel coworkers at work. Cancel culture has always been a part of our American history since our inception, whether we like it or not. The U.S. Constitution and the Bill of Rights expressly prohibit cancel culture, as all women and men are created equally under the eyes of the law.
The Only Solution – Listen to Both Sides
The solution to cancel culture has always remained front and center, but recently intentionally obscured by the noise of the cancel culture movement itself and by omission in the press and by governmental representatives trying to curry votes. Simply, we all need a large dose of Latin, “audi alteram partem” which translates into “listen to the other side”. Why? Integral to our American experience is the action of debate. We never said you had to agree with your opponent, just listen and possibly learn. We enact laws in Congress and through state legislatures via heated debate on difficult public policy concerns. But we get the job done because of a higher calling- democracy. Cancel culture is the antithesis of democracy, as it eliminates debate altogether and reinforces discrimination of all types. The longer cancel culture is tolerated, the faster the stars and stripes peel away from the very fabric of our collective being. Remember the golden rule and act responsibly as a United States Citizen. We are all equal, no more and no less.
If you would like more information about why Cancel culture is illegal at work please contact Carey & Associates, PC at firstname.lastname@example.org.
If you have been around the workplace as long as I have, you can definitely separate out good and bad employee behavior. I have litigated both sides of employment cases for the past 25 years and currently act as a manager in my office for the past several years. I offer the following tips to keep you moving in a positive direction and becoming a great employee.
Treat Every Work-Day Like it Was Your First Day on The Job
Do you remember the first day of any new job you started? Yes, the feeling of newness, new colleagues, escape from the old rigid culture of your last job; it was a new relationship and the honeymoon just started. You went “all in” and you were generally excited about the new gig. You felt you belonged in this company and you walked around like you owned it. Fast forward two or three years later, now you are settled in and comfortable in your new surroundings at work. You have new work friends and your employer is acknowledging your positive performance. But then something unexpected/expected happened, “you’ve lost that loving feeling” about your job and it has turned into just another job where you look forward to time off away from work. Overall, you are doing just the right amount, in comparison to your work colleagues, and you are just getting by. What happened? Where did the mojo go? If you are not careful, your ambivalence may get the best of you as employers do notice; it’s the employer’s job to take notice of all employee behavior. I suggest you do a reset and figure out what made you so happy about your job when you first started working for the company. Are you falling back on bad habits from your prior work history? Take a fresh look at your advancement opportunities within the company and how you can create more equity and more compensation for yourself. If you cannot, then maybe it is time to move on.
Bad Habits and Practices Are Always Discovered
I have this superpower, I can determine exactly why an employee or executive client was terminated from the last position, regardless of the explanation offered by the employer and the client. When I receive a new case from a client I request a detailed factual narrative about their employment leading up to the termination. Although I only ask for facts and not conclusions, we get a one sided emotion filled story from the client. When the facts are compared to the employer’s version of the events, you can sparse out the clients with good claims and those clients who maintained bad work habits that eventually got them fired. Bad work habits can be anything from being argumentative, tardiness, insubordination, lack of attention to detail, conducting personal affairs on business time, only doing the bare minimum, not seizing opportunities to market the company’s services, etc. The worst habit is not knowing you are following your bad habits. Why do employees self-sabotage and why can’t they see the warning signs in advance? I can only offer a partial answer as part of the problem lies in the psychology of the employee which is outside the scope of my pay grade. We all have habits, good ones and bad ones. Accordingly, good habits are formed over 21 days (Steven Covey- The 7 Habits of Highly Effective People). But bad habits are formed over a lifetime and can be changed or unlearned. Try reading Covey’s book. I would also suggest the book Designing Your Life by two Stamford University Engineering Professors, which is based on the number one class at the university.
It’s Still a Privilege to Work for a Company
Until you are financially well off and lucky enough to start your own business, you have to work for someone else. When you apply for a new job, you are applying for the privilege to work for a company. That privilege is controlled by the employer, who can take it away at a moments notice. Notice, I did not say you are “entitled” to work for your employer because you are not. But when employees start a new job they begin the psychological disconnecting process veering away from respecting the privilege to work for the company to an entitlement mentality. I think we all know what I am talking about. I see it all the time, especially when the ax falls and the work identify is severed from the individual. Some say, “that job was my life” or “how can they do this to me after twenty years of dedicated service” and on an on. Now do you see the entitlement ideology that many employees create. It is still a privilege to work for the company, even after twenty years. Some employees seem to have forgotten this very basic element of the contractual employment at-will relationship they have with their employers. It was the same when you started and it was the same when you were fired. Wake up and respect the privileged situation you have and throw out the other garbage in your head that confused you that your job was no longer a privilege—that it was yours and no one could take it away. As an employment attorney/part-time armchair psychologist, I see this pattern and behavior in many employees. If you heed this simple consideration, you will improve your overall performance, receive more respect amongst your work colleagues and your boss, your individual attention to your job will be enhanced and you may just begin to enjoy your job at a much deeper level. Don’t ever lose this focus.
Need I say anything more? Unfortunately, this issue boils down to human nature. I am constantly thinking about this issue and why some employees engage in unlawful discriminatory behavior. Aside from the existence of real discriminatory bias, this is what I have concluded over twenty-five years of practicing as an employment attorney. Employees are hard wired for “fight or flight” at work and everywhere else. I call it the “crazy brain mentality”. Part of your brain is rational, empathetic and thoughtful, but the other wild side of your brain only seeks to self-promote, judge others who appear different than you, acting selfishly, reacting in a defensive posture, etc. This protective layer is cast out in an effort to protect employees against some form of “harm” they believe may come to them. What is the solution here? Simple, “audi alteram partem” which is a Latin phrase for “listen to the other side”. Listening means giving respect, even though you do not agree with the other person. But the more you listen, learn and digest how the other employee views the same reality, it will cut off your crazy brain from activation and allow your rational side of your brain to become more empathetic, sincere, understanding etc. even though you maintain a polar opposite point of view. The smartest and most successful position to attain is the one that truly reflects both positions with rationales for and against both, with a little bit of the right amount of humor to defuse the hostility. Right now in today’s workforce, and as a society as a whole, listening to the other side is altogether absent or is intentionally ignored in favor of drama and destructive ideologies based on the color of your skin, your gender or your age! Remember, listen more and react less. Throw a little bit of the golden rule on top of that and you should be good to go.
When your boss gives you a goal, don’t assume it is the ceiling- it may be the floor
Goals are important and carefully crafted goals are critical to how and if your team follows those goals. I see many employees only seek to hit the bare minimum and forget that they actually can over achieve a goal. A goal is only a floor and not ceiling. Do not ever forget that your employer is watching you and does take notice of slackers, team players and overachievers. Which one are you? Remember, working is a privilege, not an entitlement.
You’re An Adult, Act Like One at Work
You would be surprised how ridiculous grown men and women act in the workplace. I personally view the American workplace as a cesspool of maldeveloped psychologies that come together everyday with unbridled umbrage over people, internal fiefdoms, status, money etc. Remember the playground antics and bullies when you were in grade school? Yes, those memories! Well, all those nasty malcontents are now adults and no one ever told them to grow up nor trained them about how to be an adult at work. Do me a favor, please follow the golden rule, it will save your job, your career and your sanity. It will also save you from hiring an employment lawyer like myself to undo what you created all on your own.
Whether or not you use an employment attorney to review and negotiate your employment severance agreement, you need to know the mechanics of the agreement. The following discussion will go in depth and explain the legal terms in an understandable way. If you need further information on severance negotiations, we have written about severance agreements and negotiations in previous articles, read HERE and HERE.
Generally, all severance agreements accomplish one task, paying employees to release their claims against the company in exchange for money and confidentiality. I have seen thousands of these agreements in my twenty-five years of practicing employment law for employees and executives. They are all relatively the same in the terms, but differ in their layout. Most law firms use the same template, so I see the same agreement used over and over again.
The Intro Paragraphs
The initial paragraphs of every severance agreement identify the parties to the agreement and include a couple of “Whereas” paragraphs. The “Whereas” paragraphs are prefatory and not required in any agreement. I usually strike them as irrelevant.
The Non-Admission Provision
Every severance agreement includes a provision that the employer is not making an admission of wrongdoing, even though the employer’s actions were objectively discriminatory or wrongful. A non-admission provision is standard, but to the newly terminated employee, this provision seems awkwardly strange given the employee’s experience leading up to the termination.
The “Show Me the Money” Consideration Provision
Consideration or aka the payment provision. Well, for employees this is the most important provision in the agreement—what they will be paid to release their valid claims against their employer. It is important to consider the following structure when drafting the consideration or payment provision. First, all money paid to an employee to settle an employment case is taxable as income. Second, you can split the settlement payment into parts to take advantage of tax planning. The employer will also like this option too, as they pay less in FICA. We normally allocate 60% as 1099 income and 40% as W-2 income. This allows you to receive a larger lump sum as less taxes are deducted. The employer will require you to indemnify the employer if and when the IRS challenges the settlement agreement Form 1099 payments. In reality, I have never seen nor heard of the IRS conducting audits on client settlement agreements.
Attorneys’ Fees are Tax Deductible Against Gross Income
Remember, if you spent hard earned income on attorneys’ fees pursuing employment discrimination claims only and you received a judgment or a settlement in your favor, you can deduct the total amount of the attorneys’ fees against your gross income on your Form 1040. You can only take this deduction for the year in which the case settled or judgment occurred. See the attached link below. This is a crucial element to your decision to accept settlement, as most employers refuse to pay for your legal fees to get to a settlement. You are not alone if you never knew about this important IRS regulation. We regularly advise clients about this deduction, but it is recommended you speak to an accountant for tax advice. https://turbotax.intuit.com/tax-tips/tax-deductions-and-credits/can-i-deduct-legal-fees-on-my-taxes/L98fUeOrM
General Release of All Claims
When employers pay severance in exchange for a signed release, the general release provision is the primary provision most employers are concerned about. This provision effectively identifies every conceivable claim, known or unknown, that the employee has and then causes the employee to waive all such claims. Most severance agreements set forth a long laundry list of state and federal statutes the employee is agreeing to waive claims under. However, some claims can never be released in a written severance agreement, as state and federal laws prohibit such waiver of claims. For example, you cannot waive and release the following claims: (1) workers compensation; (2) unemployment insurance claims and (3) claims made to any self-regulatory government agency such as the Securities & Exchange Commission (SEC).
Challenge to Agreement or Enforceability
Most severance agreements contain a provision that if you seek to challenge the enforceability of the agreement, you have to return the money. That seems fair and it is. But some employers also sneak in penalty provisions in case the employee breaches the agreement for speaking out about the settlement etc. Employers often seek the total value of the settlement or some six figure amount to protect the employers in case the departing employee goes rogue and publicly denounces the employer on social media platforms. This penalty provision often shows up in cases where there is a lot of bad blood spilt between the parties, particularly after a lawsuit is filed. We strongly advise clients against these draconian provisions and inform employers they are overreaching and are already protected by non-disparagement clauses and employee confidentiality agreements previously signed at the start of employment.
No Other Amounts Are Due
Employers often place a redundant provision in the agreement that the company does not owe the employee anything more. I say redundant because the release provision should have covered every claim under the sun.
Every severance agreement contains a non-disparagement clause, but one only applicable to the employee and not the employer. We advise clients to include a mutual non-disparagement clause to be signed by the employer so it does not engage in blacklisting, which is a very real phenomenon. You will need to name specific individuals and managers when negotiating a mutual provision, as employers object to having to police their entire workforce. I personally never liked that response, but hey, these are called negotiations for a reason—you don’t get all the things you want and must compromise or litigate.
References and Employment Verification
Contrary to urban legend, employers do not provide references to departing employees. What they do provide is a 1-800 number to confirm your employment and title, but nothing more. If you have a good reference still within the company, I suggest you get that in writing or have the person contact your new employer directly.
No Future Employment
Most if not all severance agreements contain a provision that bars you from obtaining employment with the company, or its’ subsidiaries, in the future. Yes, this is perfectly legal. What the provision really accomplishes is that it prevents future liability by the company in the event you re-apply for a position and claim you were somehow discriminated against for a failure to hire. If you asserted claims against the company prior to termination or thereafter, be reasonable with yourself and do not expect the company will want to rehire you. Consider yourself “canceled” by your old employer.
Return of Company Property
Severance agreements require you to return company property upon your termination or before you receive your severance payment. You would be surprised by the number of times I have had to explain what is and is not company property to former or departing employees. I often use the example of company email; you know the one containing your corporate email address. Well, the email and the piece of paper it is printed on do not belong to you. So if an email does not belong to you, everything else the employer gave you to do your job also does not belong to you. My biggest concern arises when the employee tells me he wants to hold onto the hard drive he purchased that contains the company email list, client list, power point presentations and any other corporate proprietary information. All of the above company property must be returned to the employer or you risk getting sued for theft, conversion of property etc. and risk breaching your severance agreement and returning the money paid to you under that agreement.
Entire Agreement or Full Integration Provision
This is a standard term in all well drafted employment agreements, including severance agreements. Essentially, the only terms of the agreement are those terms set forth in the severance agreement. Any oral or written agreements made prior to the full execution of the severance agreement are nonbinding and unenforceable. So be careful in your review of your case so that you do not hold expectations that are not realistic. You would need to have an employment attorney evaluate a prior oral agreement to determine if it is viable prior to signing the severance agreement. Some employers have promised severance prior to the severance agreement but then walked back those promises. Again, an employment attorney can help you dissect this important legal issue. You may discover that your employer created a severance plan of one person—you.
Non-competition and Non-solicitation Provisions
We often see employers sneaking into severance agreements brand new non-competition and non-solicitation provisions where none previously existed during the employee’s employment. We advise clients to strike these provisions and most employers do not raise the subject again. As employment lawyers, we see this tactic used every day, but you do not. This is one example where you should involve an employment attorney to review your agreement, whether helping to negotiate it with the employer or from behind the scenes. We also see employers reaffirming the prior noncompetition and non-solicitation provision signed at the start of employment into the severance agreement. Again, we advise clients to challenge the inclusion and enforceability of these restrictive covenants. Most employers will back away once they are met with a good argument as to why the prior agreements are unenforceable.
Agreement Signed In Counterparts
It is common to include a provision that the parties to a severance agreement can sign in separate counterpart copies, each of which will be considered one fully executed agreement. Counterparts are exchanged via email and facsimile, as well as in person.
21 Days to Sign or Else
Don’t panic if you have not signed your agreement within the 21 days, as spelled out in the “proposed” agreement. There is no state or federal law that states you have 21 days or 45 days to sign the severance agreement. If the agreement is not signed by you, do you think you have an enforceable contract? No. So, ignore the 21 or 45 day threat and just speak with an employment attorney to discover what claims or leverage you have to increase the severance amount. Often times, consulting with an employment attorney will pay off in huge dividends to you in the form of a much higher settlement value at the conclusion of the negotiations. The difference or delta here is the employment attorney. She or he has the professional experience you lack, and it is that experience and knowledge of the law that is applied to your narrative to develop claims that stick against your employer. As you read above, your legal fees are 100% tax deductible, so why wouldn’t you explore your potential claims with an employment attorney?
I saved the best for last. Of course everyone knows that you give up your legal rights in a severance agreement, but many do not know you also agree to a “lifetime” of silence. No, you cannot write a book about your horrible employer if you agree to take their blood money! But the reason why I saved this topic for last is because of recent social and legal developments. The #metoo event and the aftermath that followed brought with it a new understanding about confidentiality agreements, also called nondisclosure agreements (NDAs). The social issue that has arisen is that we are no longer comfortable letting the bad actors of the world get away with their misdeeds, in particular any misdeed of a sexual nature—regardless of gender or sexual orientation, by covering them up with confidential settlement agreements. Think of Harvey Weinstein or the former Met Opera conductor James Levine. For decades and continuing today, every single employer requires the departing employee sign a confidentiality provision in a severance agreement in exchange for severance payments. This is the default rule followed by all employers. This default rule has only caused more employees to be harmed by the same bad actors who caused the previous cases that eventually settled.
Many states like New York have created statutes requiring a voluntary confidentiality agreement, separate and apart from the settlement agreement. While this sounds like a good idea, it has already been abused by employers. Most employers will now apportion a part of the settlement payment to be exchanged for a signed confidentiality agreement. Simply, the legislators were lobbied by employers and should have banned the use of settlement dollars in exchange for signed confidentiality agreements.
The bottom line for you is this. We are just not at the social pivot point for you to resist the use of confidentiality provisions in settlement agreements, so don’t waste your time arguing about this issue with your former employer. But one day confidentiality provisions in employee severance agreements will be banned as a matter of statute and public policy. This is a nonpolitical issues, as both liberals and conservatives use confidentiality agreements to conceal the illegal misdeeds of their managers and employees.
On April 12, 2021, I set out to ride my 2000th mile toward my solo journey to 10,000 miles in a year for a cure of Multiple Sclerosis. I have could not have picked the worst day to ride weather wise. The rain and wind pelted my sore body early on in the ride, but I still had 32 miles to go. I could not turn back, just as I could not turn back on my 10,000 mile ride for an MS Cure. At the end, I swear I felt hypothermic, as the temperature dipped into the low forties; I was soaked to the bone. Once you buy into this sort of thing, the only thing that will stop you is an injury or an accident. I have the injuries, but fortunately no accidents. In addition to the hard rain that day, my legs are still recovering from high altitude training (10,000 feet above sea level) from three weeks prior. At my age, the body feels the pain longer than when I was younger, but again, no turning back. My cause is greater and matched by my persistence to succeed.
In case you are wondering how I can ride this many miles in a week, here’s a little peak into the madness that is required to ride a stationary trainer, Peloton bike, and the wide open hilly roads of Connecticut for 10,000 miles in a year. My total current elevation gained is 22,192 feet, by comparison Mount Everest is 29,032 feet tall. I initially started hammering out 30 mile rides at a time multiplied by five rides a week (schedule is 27 miles a day for 365 days). But given I started the journey on January 10, I started out in a deficit by nearly several hundred miles. I began doing what I call “double doubles”, where rides would last 60 and in one case 80 miles in one day. Either I would ride the morning and evening, 30 miles a piece, or just bang out a cool 60-80 miles. That’s four plus hours on a bike; this is no small feat of psychological and physical endurance. I occasionally take a day off just when I can’t think of riding another mile due to fatigue. Fortunately, I have experienced less pain as the miles have piled on. Part of me starts to think about doing this every year, but the jury is still out. Today, I average 40-50 miles per ride, as my base training is completed and now I am just racking up mile after mile after mile etc.
Please make a donation today and BUY MILES for this worthy cause! Donate a $1.00! I need your donations to continue riding, no I am not kidding. Right now I have raised $4101.00. Show your support to help cure Multiple Sclerosis, put more gas is in the tank and I can ride for more miles. I need your help, donate today and use this link https://www.facebook.com/donate/233329948389093/