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 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009
“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.
By Mark Carey
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.
If you need more information about this article or want to discuss your employment with an employment attorney, please call Carey & Associates, P.C. at call (203) 255-4150 or email to email@example.com. Thank you and be safe and well.
By Mark Carey
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.
If you need more information about this article or want to discuss your severance agreement with an employment attorney, please call Carey & Associates, P.C. at call (203) 255-4150 or email to firstname.lastname@example.org. Thank you and be safe and well.
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/
Thank you in advance for your support! Ride on!
By Chris Avcollie,
Can You Sue Your Employer for Covid-19 Illness?: Several faithful readers of our humble employment blog have asked us a pressing and important question that many employees are thinking about at the moment: “Can I sue my employer if I get Covid-19 at work?” As with most employment law questions, the answers are neither simple nor straightforward and they depend to a large extent on the laws of the state wherein the employment is located. The basic answer is: “Yes. You can sue your employer if you get Covid-19 at work except in states that have passed statutes prohibiting it, provided you can over-come the significant legal obstacles to this type of claim.” I will attempt to unpack some of the key issues surrounding this significant and timely inquiry. Let’s try to jump those legal hurdles!
The Initial Hurdle: Worker’s Compensation
The answer to the question: “Can I sue my employer if I get Covid-19 at work?” depends, in the first instance, upon what you mean by the word, “sue.” In a broad sense, most people consider “suing” to encompass any type of legal claim against another party. Lawyers, however, use this term to refer specifically to the initiation of a lawsuit against another party in court. In this instance, we must carefully distinguish between the term “lawsuit” or a civil action for damages brought in a trial court and “Worker’s Compensation claim,” which is an administrative action usually brought before a state agency to seek statutorily limited compensation for work related injuries.
In most cases where one can demonstrate that one has contracted Covid-19 at work, the infected employee can bring a Worker’s Compensation claim. It is important to note that this is not a “lawsuit.” The primary difference between a “lawsuit” and a “Worker’s Compensation claim” is that a plaintiff in a lawsuit can seek full, fair, and just compensation for all of his or her damages and losses as well as equitable relief if applicable. In a Worker’s Compensation case, the claimant may seek only the limited damages set forth in the state’s Workers Compensation statutes. Worker’s Compensation is therefore a very limited remedy. The benefit of a claim under Worker’s Compensation laws is that unlike the plaintiff in a lawsuit, the claimant in a Worker’s Compensation suit need not prove that the employer was at fault or that he or she committed some negligence, recklessness, or misconduct which caused the damages. It is enough to prove that the injury or illness in this case, occurred at work. Additionally, the claimant in a Worker’s Compensation case need only prove the type of injury or illness sustained at work and the damages are then calculated by a statutory formula. Thus, the Worker’s Compensation system is considered a “trade-off.” Claimants give up a portion of the damages they could otherwise obtain at law, but they are relieved of much of the delay, cost, and burdens of proof that litigants face in court. Hereafter, we will refer to Worker’s Compensation cases as “claims” and actions for damages brought in court as “lawsuits.”
The most commonly available remedy for a worker who contracts Covid-19 at work is the Worker’s Compensation claim. Most every state that has a Worker’s Compensation system also has laws that make Worker’s Compensation the “sole and exclusive remedy” for all workplace illnesses or injuries. This means that a Worker’s Compensation claim is the only type of claim an employee may bring. Injured workers do not have a choice to pursue their damages in court if they wish. This means that as an initial matter, most cases involving Covid-19 at work are going to be resolved in the Worker’s Compensation process and no lawsuit may be filed except in very specific circumstances. That means most cases of workplace Covid-19 are going to be poorly compensated. Even in cases involving the death of the infected employee, the exclusivity rule of the Worker’s Compensation system will often prohibit the employee’s survivors from filing a lawsuit for wrongful death. Even survivor’s claims are strictly limited to the Worker’s Compensation system.
On February 14, 2021, Lauren Weber of The Wall Street Journal published an article captioned “Why So Many Covid-19 Workers’ Comp Claims Are Being Rejected“. The take away is that employees are facing a high bar to prove their Covid-19 Workers’ Compensation claims.
The Liability Hurdle: Intentional or Willful Conduct
So what are the “specific circumstances” when an infected employee might be able to get around the exclusivity rule of the Worker’s Compensation system and file a Covid-19 lawsuit against their employer? One common exception to the exclusivity rule is the third-party exception. If a person or entity other than your employer causes your workplace illness or injury, an employee may sue that third party depending on the applicable state laws. Another common exception applies in some states in cases where the employer does not carry Worker’s Compensation insurance. In some states that do not include occupational illnesses in the category of compensable injuries under their Worker’s Compensation law, employees may sue their employers for Covid-19 infections. The most common exception to the exclusivity rule involves cases where the employer either intentionally or willfully engaged in misconduct that caused the worker’s illness or injury.
In Connecticut, this exception is called a “Suarez Case” after the case called Suarez v. Dickmont Plastics Corp., 242 Conn. 255 (1997), where the Connecticut Supreme Court held that employees could sue their employers (for illness or injury) in cases where the employee can prove: “either that the employer actually intended to injure the plaintiff (“actual intent” standard) or that the employer intentionally created a dangerous condition that made the plaintiff’s injuries substantially certain to occur (“substantial certainty” standard).” Id., at 257–58. This standard provides a very narrow exception to the exclusivity rule because it is so difficult to establish. The plaintiff employee must prove that the employer intentionally or deliberately created the dangerous situation under circumstances where the injury or illness was very likely to occur. Not many employers would deliberately harm their workers, so this is quite difficult to prove. Many states have exceptions similar to Connecticut’s Suarez exception, although the standards differ from state to state.
For example in some states such as Arizona and New York, the exception applies only if an employer’s purposeful actions were actually intended to harm the employee. Florida only allows the exception where an injured employee can prove that the employer’s actions were “virtually certain” to cause the worker’s injury, that the employee was unaware of the risk, and where the employer took steps to conceal the danger. Texas allows the exception only in cases that result in the wrongful death of the employee and only if the employer exhibited, “gross negligence.” New Jersey, like Connecticut, has a slightly lower but still formidable standard. New Jersey’s Supreme Court has held that the employee does not have to prove that the employer intended the harm the employee, only that there was a “substantial certainty” that the employee would be injured. While these state law exceptions to the exclusivity rule are burdensome, it is not yet clear in most states how courts will apply them to Covid-19 cases where employers disregard established safety protocols like mask-wearing, social-distancing, work from home options, and reduced capacity. Is Covid-19 “virtually certain to occur” in public workspaces where mask-wearing, health screening, and social distancing precautions are not enforced?
One important distinction to understand here is the difference between claims of negligence and those involving intentional conduct. While most injury lawsuits are based on the concept of “negligence” which is the standard of liability which applies where a party breaches the ordinary standards of care in circumstances where an injury is foreseeable, the exceptions to the Worker’s Compensation exclusivity rule generally require some level of intentional conduct to succeed. Employers who are merely negligent or careless can almost never be sued for Covid-19. Because of the exclusivity rule this means that employees cannot file a lawsuit in cases where an employer was merely negligent or careless in following Covid-19 protocols and workplace safety rules. In cases involving employer negligence or carelessness, only a Worker’s Compensation claim would be available. Merely proving careless or inconsistent enforcement of Covid-19 safety protocols is not enough to meet the exceptions to the exclusivity rule.
The Big Hurdle: Causation
In workplace Covid-19 lawsuits, the largest hurdle to overcome in my view is the hurdle of causation. A claimant in a Worker’s Compensation case only needs to prove that he or she contracted the virus at work. This in itself can be a herculean task. Extensive and well documented contact tracing and even genetic sequencing of the relevant strains of the virus by public health officials may be required to prove where and when someone contracted the disease. This can be devilishly challenging in the case of a highly contagious and widespread virus because it can be contracted easily almost anywhere one goes in public. If the coffee shop you stop to pick up coffee at on the way to work, the gas station you go to twice a week, and your grocery store, as well as your office all have cases of Covid-19, how can one prove that it was more likely than not that the would-be plaintiff caught the virus at one location and not the others? Merely proving that it is more likely than not that you contracted the virus at work is a huge task.
A plaintiff in a lawsuit, however, must not only prove that the virus was contracted at work, but also that the employer’s actions or inactions caused the employee to contract the illness. This is a much more difficult burden of proof. Did the employer cause the employee to contract the virus where mask mandates were not enforced but social distancing was practiced? If cases of Covid-19 circulated among the staff who were required to wear masks can it be proven that the failure of the employer to enforce mask wearing among customers caused the employee’s illness?
The Last Hurdle: Proving Damages
If an infected plaintiff employee is able to clear the Worker’s Compensation hurdle, overcome the intentional conduct hurdle, and summon evidence to surmount the causation hurdle, the final hurdle in bringing a Covid-19 case in court against your employer is proving and calculating the damages that you are asking to be awarded. As with liability, questions of damages are more easily resolved in a Worker’s Compensation claim than in a lawsuit. At Worker’s Compensation, damages are strictly limited to set categories of damages and a specific formula calculation. Damages for pain and suffering and emotional distress are often very limited or unavailable in a Worker’s Compensation claim. In a lawsuit, however, each element of damage must be proven by the plaintiff by a preponderance of the evidence.
How does one calculate the damages suffered when one contracts a deadly disease amidst a global pandemic? Symptoms for Covid-19 can range from no symptoms at all to death and all levels of illness in between. Can damages be calculated for the suffering that occurs when one unknowingly infects one’s spouse or children with Covid-19 due to an employer’s misconduct? What damages should be awarded in cases where an infected employee is only mildly ill for several weeks but because the employee is suffering from medical conditions that put her at high risk of death from Covid-19, she spends those weeks in constant fear of imminent death? How can a plaintiff be compensated where he or she is suffering from long term complications from Covid-19 that doctors do not know yet how to treat? While many types of damage are not compensable in the Worker’s Compensation context they must be proven and calculated in a lawsuit.
State Imposed Hurdles: Statutory Liability Shields
Some states have created special laws that shield some or all of its employers from lawsuits related to Covid-19. Many states, including Connecticut and New York, have enacted laws that shield healthcare facilities from liability related to Covid-19 infections. States such as Michigan have passed laws that shield all employers from Covid-19 liability. Ohio has passed a law that shields nearly all employers from Covid-19 liability from its workers unless the employer engaged in willful and reckless misconduct. Many of these state shielding laws have exceptions similar to the Worker’s Compensation exclusivity exceptions such as for intentional misconduct or intentional disregard of government imposed safety protocols.
Some creative plaintiffs and their lawyers have tried to get around these liability shields and the Workers Compensation hurdles by framing their lawsuits under alternative theories of liability. A number of lawsuits have been filed against employers who disregard Covid-19 safety protocols under theories that they have created a public nuisance. These suits allege that the employer is creating a dangerous situation to the public by failing to take proper Covid-19 precautions. Plaintiffs in these cases often seek court-ordered injunctions requiring the offending employer to enforce safety procedures. Cases have also been filed alleging the employer’s breach of OSHA safety guidelines. Other employees have sued their employers under whistleblower protection laws. Employees who file “whistleblower” claims have alleged that they were terminated illegally for complaining about the employer’s failure to follow proper safety protocols. Several states allow employees to bring claims of constructive discharge in Covid-19 cases. These claims allege that the employee was forced to quit her job because she was put in danger by her employer’s failure to follow safety protocols.
While these state imposed liability shields do not make it completely impossible to bring a lawsuit for Covid-19 in the workplace, they make the bar so high that only the most egregious cases of employer misconduct could have a chance of success. Each state is currently working out its own legislative and judicial tolerance for worker suits related to Covid-19.
What to Do If You Are at Risk of Covid-19 Due to an Unsafe Workplace
Can You Sue Your Employer for Covid-19 Illness? Given the high hurdles the law has erected to make it difficult to sue an employer for a workplace Covid-19 infection, what can you do to protect yourself if your employer is not implementing appropriate safety precautions? I recommend the following:
-Report the unsafe conditions to your employer or Human Resources department in writing. In many cases employers want to provide a safe environment but they may not be aware of all of the protocol violations throughout their organization. Making your complaint in writing will also help to document your efforts to address the problem should you need to make a claim later.
-Document the violations of protocol as well as your efforts to communicate them to management. This is important to demonstrate the nature of the unsafe conditions should you need to prove them in later. Strong evidence of the unsafe conditions in the workplace will be needed for any type of claim or lawsuit related to Covid-19..
-If management does not address the Covid-19 related safety issues promptly, then make a report in writing to OSHA and to your state Department of Public Health. A detailed report outlining the safety violations and any other relevant information could trigger an agency investigation that could help address the issues.
-In some states you can terminate your employment and bring suit against your employer for constructive discharge if you are forced to quit in order to protect your health and safety. In other states you cannot bring such a suit but you may have to leave your job anyway. Although it is deeply unfair that employees sometimes have to choose between their health and their livelihood, the limited legal options provided to address Covid-19 in the workplace may make that life or death choice necessary.
-Seek an experienced employment attorney to help you navigate the situation. Dealing with an unsafe work environment due to Covid-19 can be difficult and confusing. There is no substitute for a skilled employment attorney in these circumstances. Seek legal advice as soon as you observe a problem at work.
Can You Sue Your Employer for Covid-19 Illness? The issue of whether to hold employers liable for Covid-19 infections in the workplace raises fundamental questions about our social and economic values. How should we apportion the inevitable risks of commercial activity in society? Should the employers shoulder more of the burden because they profit the most from the economic activity? Should employees deal with the risks themselves since they are free to choose more or less safe work environments as they wish? Should the government provide some compensation to victims of Covid-19 who risked their health to increase our gross domestic product and therefore our national interests? While most Americans seem to honor the front-line workers who have courageously pulled our nation through the early stages of the pandemic, we seem to be reluctant to provide any equitable legal remedies to them when they become sick or die serving our collective good. Removing some of the hurdles employees have to jump over to obtain compensation for unsafe working environments during the pandemic would be a great first step.
If you need advice on Can You Sue Your Employer for Covid-19 Illness? please contact us at Carey & Associates, P.C. at email@example.com or call (203-255-4150. Chris Avcollie is an Associate Employment Law Attorney with the firm.
By Chris Avcollie
When Can Non-Competition Agreements Be Enforced Against Independent Contractors? In response to a recent Carey & Associates, P.C. survey of topics of interest in employment law, some of our readers asked: “Are non-competition agreements enforceable against independent contractors?” This is an excellent question. The short answer in Connecticut is: “Yes, but with some exceptions and special circumstances.”
What Is A Non-Competition Agreement?
Non-competition agreements are special contracts between employers and their workers which prohibit workers from engaging in business activities that compete with their former employers, usually for a fixed period of time following the end of an employment relationship and usually within a definite geographical area. These agreements, often called, “restrictive covenants” allow employers to prevent a former employee or contractor from earning a living in his or her business after the employment relationship ends.
Courts Generally Enforce Non-Competition Agreements
Courts in Connecticut will generally enforce non-competition agreements provided there is consideration provided for the promise not to compete and provided the restrictions are not unreasonable to protect the employer’s legitimate business interests. Facts which our courts consider in evaluating the “reasonableness” of an non-competition agreements include: (1) the duration of the restriction, (2) the scope of the geographic restriction, (3) the protection afforded to the employer, (4) the degree of restriction on the employee’s career opportunities, and (5) whether the restrictions are in the public’s interest. If even one factor fails the “reasonableness” test, the non-competition agreements could be held to be unenforceable.
In Connecticut, as in many states, there are no statutes or regulations that specifically address non-competition agreements outside of the medical profession. Whether a non-compete agreement is enforceable against an independent contractor is not specifically addressed under Connecticut law at this time. Our courts do not formally distinguish between non-competition agreements with employees as opposed to independent contractors. That being said, the five-factor analysis described above does vary when it is applied to the independent contractor relationship. When courts analyze the fourth factor, i.e., the effect the non-competition agreements has on the worker’s career opportunities, our courts must account for the fact that independent contractors are by definition expected to serve more than a single customer at one time. That is what makes them, “independent.” Notwithstanding this obvious basis to reject all non-competition agreements as applied to independent contractors, our courts will often find non-competition agreements enforceable. For example, non-competition agreements were upheld in circumstances where an independent contractor uses their position with the employer to gain information to set up a competing business for themselves.
Rationale For Non-Competition Agreements Are Faulty
The concepts underlying and justifying these restrictive covenants are faulty. One underlying notion that is misapplied to non-competition agreements is the “freedom of contract.” This legal fiction posits that individuals and firms are free to act in the marketplace in their own best interests and are therefore free to make any lawful agreements they see fit. Unfortunately for most workers this “freedom” is an illusion. The notion that workers who do not want to be bound by non-competition agreements can simply “choose” to work elsewhere is absurd. Jobs are difficult to find during the best of times. During a global pandemic amid skyrocketing unemployment, locating a good position can be overwhelmingly difficult. If one is restricted from using one’s business contacts, skills, and training to function in the market and the industry in which one has established a record of experience, the task of finding gainful employment becomes insurmountable. In the employment context the power and resources of the employer as opposed to the employee is generally so unbalanced that “freedom of contract” is a bad joke.
While non-competition agreements are becoming increasingly common, these restrictions on a person’s ability to work often cause extreme hardship on workers who must find continuous employment within their chosen industry in order to survive and to support their families. Why should an employer who has no legal obligation to employ its workers for any period of time get to dictate to a former employee where and how he or she can work? How can such an economically crippling restriction between parties of drastically unequal bargaining power be tolerated by courts of equity?
In a recent article, Attorney Mark Carey explores the profound injustice of restricting an employee’s right to work. (Covid-19 Cancels All Noncompete Agreements Due to Impossibility) During a pandemic where millions of American workers are unemployed, restricting anyone’s freedom to work is patently unconscionable. While our courts consistently uphold “reasonable” restrictions on competition, the Connecticut state legislature is at last beginning to address the problem directly.
In another recent article on this blog, Attorney Liz Swedock explains the provisions of a piece of proposed legislation currently under consideration by the Connecticut Legislature’s Labor and Public Employee Committee.(Connecticut “May Pass” a Partial Ban on Noncompetition Agreements). The new proposed legislation, SB 906, “An Act Concerning Non-Compete Agreements” would impose some reasonable limits on an employer’s ability to enforce a non-compete agreement. As it applies to independent contractors, SB 906 would prohibit non-competition agreements against contractors unless the contractor is being paid over five times the minimum wage or $60.00 per hour. While this proposed legislation is a step in the right direction in that it prevents non-competition agreements from victimizing the lowest-paid workers in the marketplace, it does not address the fundamental injustice of these agreements. The legislature’s special treatment of independent contractors under SB 906 indicates a recognition that employees and contractors are not in the same position with respect to these contracts.
Independent Contractors Serve More Than One Master
When it comes to independent contractors, the applicability of non-competition agreements becomes quite complex. While courts have recognized an employer’s interest in protecting its trade secrets and “good will” through non-competition agreements, independent contractors are by definition, not bound to a single employer, although in practice they sometimes are. The term “independent” refers to a contractor’s ability to provide goods and services to many businesses at once. Employees on the other hand are generally obligated to devote all of their productive time and energy to furthering the interests of their employer.
Employers Face Risks When Enforcing Non-Compete Against Independent Contractor
There are risks for employers who try to enforce non-competition agreements against independent contractors. When an employer imposes non-competition restrictions on an independent contractor, it runs the risk of changing the nature of its relationship with that worker. Where an employer exercises a high degree of control over the work of a contractor, that contractor could be considered a regular employee. Imposing a non-competition agreement could be construed as evidence of the very control that marks a traditional employment relationship.
Thus, employers sometimes seek to enforce non-competition agreements but are then counter-sued for employee benefits and wages based on the assertion of control under the non-competition agreement. Employers could incur liability for wages, administrative fines, or worker’s compensation benefits when an employee is “misclassified” as an independent contractor. This fact gives employers pause when enforcing non-competition agreements against their independent contractors.
Non-Competition Agreements Are Overreaching
In general, while courts in Connecticut will enforce non-competition agreements against independent contractors where they are held to be “reasonable”, it is difficult to justify the necessity of these restrictions. While employers often justify their restrictive covenants by asserting their right to protect confidential business information, this argument is irrelevant given the fact that all of an employer’s proprietary information is protected under trade secret and intellectual property protection statutes. Further, employers can and do include broad confidentiality and non-disclosure provisions into their employment agreements, which provide contractual protections from dissemination of vital company information. It is simply over-kill and over-reach to also seek to prevent competition from former workers whether they are employees or contractors.
The basic answer to the reader’s question about enforceability of non-competition agreements against independent contractors is that they are enforceable against independent contractors, but it is slightly more difficult and definitely riskier for employers to enforce such agreements against them. The larger answer is that all non-competes are inherently unjust, inequitable, and should be resisted by employees and contractors alike.
If you would like more information about When Can Non-Competition Agreements Be Enforced Against Independent Contractors? or would like to hire an employment attorney, please contact Carey & Associates, P.C. at firstname.lastname@example.org or call (203) 255-4150.
2021 US Dept. Labor New Rule on Independent Contractors
By Liz Swedock,
This article is responding to a survey response question we recently received. The reader asked, “Do you see a time when non-competes are not allowed in CT, similar to how CA approaches them? What would have to happen for that to occur? Do you believe it would be a net positive or negative?”
On March 4, 2021, Connecticut’s Labor and Public Employees Committee is holding a public hearing to discuss a new proposed bill which would vastly reduce the ability of employers to impose non-compete agreements on employees and independent contractors.
The bill, SB 906, “An Act Concerning Non-Compete Agreements,” would make it illegal for employers to impose non-compete agreements unless ALL of the following criteria are met:
- Maximum term of one year if unpaid, or maximum term of two years if the employee is paid their entire salary and benefits for the term of the non-compete; and
- If an exempt employee (paid a salary, not hourly wage earners), only if that individual is paid over 3x minimum wage (approximately $75,000+ per year for a full-time employee at the current minimum wage of $12 per hour);
- If an independent contractor, only if that individual is paid over 5x minimum wage (approximately $60 per hour or $125,000+); and
- The non-compete must be offered to the employee at least 10 business days BEFORE a deadline to accept the job offer (as either an employee or independent contractor) or the deadline to sign the non-compete (if already working in the job).
In addition, the proposed bill includes additional employee-favoring protections, including:
- If the individual being asked to sign the non-compete is already an employee or independent contractor, the individual must be paid “sufficient consideration” for agreeing to the non-compete. The current rule in Connecticut is less clear – some courts have held that, when it comes to at-will employment, simply being allowed to continue your job is “sufficient consideration” when your employer demands that you sign a non-compete after you have already been working for some time. If you refuse, they can fire you. This bill would create a clearer rule.
- The non-compete cannot require the employee litigate or arbitrate the non-compete outside of Connecticut. This is extremely helpful for employees who work for multistate (or worldwide) companies who often require that any disputes over the non-compete be brought wherever the company is headquartered. This could be across the country or across the world.
- Non-competes will be automatically invalid if they either (1) attempt to restrict the employee in any geographical location where they did not work during the prior two years, or (2) attempt to restrict anything other than “type of work” the employee actually did for the company. This is also very good for employees because many non-competes attempt to restrict employees from performing any work, even if non competitive, for any theoretically competing business, and try to apply non-competes to every location where the company does business – even if the employee only worked in one or a few locations.
We strongly support this type of legislation and will provide you with updates as the bill progresses.
Mark Carey Weighs In:
My first reaction to reading this proposed legislation was that it smacked of compromise between bipartisan politicians seeking to coddle employers and I am sure the CBIA was the biggest opponent here.
There is still no complete ban on noncompetition agreements here in Connecticut, as a majority of employees can still be benched on the sideline for a year without any pay for doing so. Employer lobby groups pushed their continued agenda to restrict the livelihood of employees, even during a pandemic. Noncompetition agreements are undemocratic in my opinion and should be abolished in Connecticut, just as they were in California and several other states. In a recent article, I argued that noncompetition agreements should be void due to impossibility during a pandemic. Now I see our democratically controlled General Assembly is screwing employees once again. Shame on you all, go explain that to the working class employees who voted you into office! When will this nonsense ever end?
According to the CBIA website, “[t]his bill could cause economic harm that comes from the loss of your trade secrets, proprietary information, client lists, source codes, or other confidential information.” This explanation is nonsense. Of the remaining businesses left in Connecticut, these employers already have in place confidentiality and proprietary protection agreements with their employees that protect against employee theft. There is also the common law claims of breach of the duty of loyalty and care that most employers use to go after bad actors in noncompete disputes. There are statutory claims such as Connecticut’s Unfair Trade Practices Act and the Uniform Trade Secrets Act employers use to prosecute bad actors. Noncompetition agreements are solely intended to harm employees from earning a livelihood, do not be fooled. Employers in the State of California are doing just fine since 1872, the year the state outlawed noncompetition agreements.
If you would like more information about this topic or would like to hire an employment attorney, please contact Carey & Associates, P.C. at email@example.com or call (203) 255-4150.
As we await the dawn on this purported new era of social change in America, I can promise you that your employment rights will not improve. I am unapologetic. In fact, your employment rights have been so eroded by your employers that we are collectively veering toward ever more systemic inequality and racism in the workplace. Now that I have your attention, what are YOU going to do about it?
You have sat on the sidelines watching others do the heavy lifting, but when are you going to start questioning your employer regarding your employment and the selfish one-sided employment practices you are somehow required to follow, such as the employment at will rule, confidentiality of settlement agreements, and forced arbitration of employment disputes. Can you say “No”? Maybe?
A majority of you, may never question or oppose your employer because of fear – of losing your job, income and benefits. I get the financial insecurity issue faced by all, but that’s the employer’s only leverage! “Come on Man”, as President Biden is often quoted as saying. But really, come on men, women and other, how much pain and suffering has to occur before the collective “YOU” says enough? If we are in the midst of a new social revolution in support of diversity and equality where big corporations have piled on diversity support initiatives, solely for marketing purposes in my opinion, then we should be seeing signs of dramatic changes to reverse racial inequality at work, promote pay equality and the end of firing older workers (55 and above) just because they cost too much.
Wait, pause, listen- what’s that? Is that the sound of my meditation music playing in the background? If #metoo and BLM are real long lasting social movements to correct the injustices at work, I should not be able to hear anything over the gigantic thunder of public outrage toward racial, sexual and age inequality hurtling at my office windows, internet, television, etc. I have not heard nor read anything after the recent election that indicates real changes beyond political hyperbole. And as far as I can see, employers continue to default into the same old management practices of yesterday. Nothing has changed, nor will it change. Employers will continue to screw YOU (collectively) for the near future. I am writing this article in order to make you understand what your employer does not want you to know about; “default management practices” are real and designed to suppress the collective YOU literally.
Here is why. Employers continue to require the following chains of servitude and secrecy solely to promote their default “control at all costs” position at your expense. You did know your current employment system stems from the centuries old practices of Master and Servant, right? The following employment practices are inherently racial, sexist, ageist, homophobic and just downright undemocratic, but you will not hear anyone else dare to say these truths. I will because I do not care what management or corporations say. Why don’t you feel the same way?
NDA’s and Confidentiality Agreements Conceal Bad Actors and Bad Companies
Shame and more shame. If you statutorily ban the use of confidentiality provisions in settlements of employment discrimination cases, bad actors and bad companies will stop discriminating. Why? Companies will seek to avoid public shaming if we all knew – that a CEO attempted to rape a subordinate, that a billionaire hedge fund manager fired a woman with young children and recently diagnosed with two forms of aggressive cancer, that a Black man was immediately fired after being asked and gave an internal talk regarding the BLM movement, that an older man was fired for losing his voice box due to cancer and told he did not have a physical disability, that a pregnant woman was fired from a large public company because her brain allegedly changed as a result of her pregnancy. Need I go on?
Some states have decided to ban confidentiality provisions in employment settlement agreements, but they have not gone far enough because employer lobby groups temper down the statutory language and create gaping loopholes for employers to slither through. For example, some employers have conditioned part of the settlement payment requiring the employee (victim) to sign a separate confidentiality agreement. I brought this to the attention of the relevant state Attorneys General’s Office without even a response. The statutes are worthless because employers always seek the default to control you and control their self-interest.
Here is the bottom line, remove all confidentiality provisions from every employment settlement agreement and you will directly and substantially decrease all forms of racial, ethnic, sex, sexual orientation, disability, religious and age discrimination. Think about the millions of dollars saved by companies that could be used to train more employees and managers about the Golden Rule. The money saved by not having to pay attorneys’ fees to employment lawyers like myself. Please, I beg you to put me out of business, I would be glad to retire. But employer’s cannot seem to give up this “confidentiality” drug. There is absolutely no contrary rational argument in favor of the continued use of confidentiality provisions to shield bad actors and bad employers; if there is one let me know. So why does this nonsense continue? That’s how powerful employers are, always seeking to maintain this “default” management practice. And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice. It’s a bipartisan effort to screw you! As I continue to say, employment law is not political- but NELA says it is (Disclaimer: I am a NELA member, but a registered republican doing the peoples’ work).
Employment At-Will Conceals Discriminatory Behavior and Must Be Banned
I will beat this drum till the end of time. Most employees, except those in Montana, are capable of being fired for no reason at all and at any moment – this is the employment at-will rule. The rule should be banned nationwide and replaced with a termination for cause rule. The at-will rule arose out of the Master and Servant context and is still the current management default rule adversely impacting – everyone, except those employees in Montana and executives with the clout to demand employment contracts with severance and termination for cause.
Why is the at-will rule so dangerous? When employers do not have to give a reason for termination, employers and managers, who hold a discriminatory bias of any kind, can quietly terminate employees they do not like. Yes, the at-will rule promotes racism, sexism, disability discrimination, ageism etc. But again, employers are so addicted to this rule, they can’t give it up. This issue is equivalent to the opioid crisis and more companies and management counsel continue to prescribe this drug of choice. That’s how powerful employers are, always seeking to maintain this the most coveted of all “default” management practices. And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.
Instituting the termination for cause rule would result in decreased discriminatory practices, as employers would be required to demonstrate an objective factual basis to support the decision to terminate, not one that was arbitrary and capricious – which is what discrimination is.
Forced Arbitration Conceals Everything Bad That Your Employer Does Not Want You To Know About
What is forced arbitration? Simply, your employer says it is a quicker and cheaper way to resolve employment disputes. It’s not quicker and it’s not cheaper – for you! It’s called “forced arbitration” because your employer mandated your job offer or your continued employment on your signing the agreement. You could not negotiate it away and it never benefits you at all. It is a management default rule and more than 50% of employees in the United States are adversely impacted by this one sided practice.
What is it really? The sole purpose of arbitration agreements in the employment context is to “conceal” bad actors and bad companies. The adverse effect on all employees is identical to the default use of confidentiality agreements. This default rule is so entrenched in our work culture that courts overwhelmingly compel arbitration in nearly all cases; concealing your claims of discrimination to a nonpublic black hole. There is absolutely no way to publicly discover what types of claims were sent to arbitration, as google cannot crawl it and Westlaw (lawyer research database) can’t search it. It is as if those claims never happened at all, i.e. the woman who was almost raped by the CEO, the Black man fired after being asked to give a BLM explanation etc. Worse, you cannot shame the corporations for what they did- that’s the point! It will take an act of Congress to overturn the Federal Arbitration Act, and this current Congress won’t touch this with a 100 mile pole. That’s how powerful employers really are, always seeking to maintain this “default” management practice at every level. And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.
You now know what I would propose, but what will you do to effect real change?
If you would like more information about this topic or would like to hire an employment attorney, please contact Carey & Associates, P.C. at firstname.lastname@example.org or call (203) 255-4150.
Last night I hopped on my indoor cycling trainer and embarked on a butt busting 70 mile ride. In case you are wondering, there is no coasting on a trainer, spin spin spin … I started at 9 pm after dinner and got off the bike at 1:15 am. Yes, that’s how long it takes to ride 70 miles indoors. Why? Well, why not? We are trying to cure Multiple Sclerosis here! At 1 am, my mileage said that I just passed 1,000 miles since January 10, 2020, the day I started. I have my routine down, I developed my long haul legs again and I can see the end of 10,000 miles in the distance.
What are you waiting for? I implore you to make a donation today and BUY MILES for this worthy cause! I need your donations to continue riding, no I am not kidding. Right now I have raised $2,385, that means the gas is in the tank and I can ride for 1385 more miles. I need your help, donate today and use this link https://www.facebook.com/donate/233329948389093/
On February 15, 2021, I received an email from those very smart people at BioNTech. Yes, I sent an email to them inquiring about the start of human trials after they announced they found a cure for MS in mice using the RNA technology; the same technology they used to cure Covid-19. Here’s what BioNTech said,
“The study mentioned is currently still in the pre-clinical phase. We are not yet able to provide information on the start of recruitment for patients, but it is expected to start in 2-3 years. As soon as BioNTech will start studies in further indications, you will be able to view this information on www.clinicaltrials.gov and on BioNTech’s homepage… As soon as BioNTech initiates a new clinical trial, this information will be published on www.clinicaltrials.gov and on the homepage of BioNTech.”
Ugghhh, yes human trials do usually take 2-3 years and don’t be confused about how fast the Covid-19 vaccine was rolled out. What this means is that I will continue to cycle 10,000+ miles every year for the next two to three years until that wonderful RNA science is injected into the arms of nearly 2.3 million people Worldwide who have been diagnosed with MS and the nearly 1 million people here in the United States, including those people close to me. (Source). You can help by BUYING MILES from me through your donations. Your dollars will be sent to BioNTech through the National MS Society to help finish this thing once and for all! What are you waiting for?
By Chris Avcollie,
In an often-quoted line from the hit TV series Dexter, actor Michael C. Hall, who plays the title character said: “There are no secrets in life; just hidden truths that lie beneath the surface.” For those of us involved in the resolution of employment claims on behalf of employees, this quote has special meaning. Beneath the surface of most employment settlement agreements lie the undisclosed facts that led to the conflict and which often result in the messy end of an employment relationship. Recently proposed legislation in California seeks to ensure that those “hidden truths” do not remain hidden.
California Proposes New Law – Silence No More Act (SNM Act)
A new law proposed in California this week called the Silenced No More Act (SNM Act) is intended to prevent the enforcement of non-disclosure provisions in a wide variety of employment settlement agreements. The legislation, proposed by California State Senator Connie M. Leyva, will expand upon the 2018 STAND Act (Stand Together Against Non Disclosure) and will protect plaintiffs in cases of employment discrimination and harassment of all kinds who choose to speak out publicly about their experiences. Under the current provisions of the STAND Act, only plaintiffs in cases of gender discrimination or sexual harassment may avoid non-disclosure provisions. The new law will expand the STAND Act to prevent the use of non-disclosure provisions in employee severance agreements. Under the SNM Act, targets of discrimination based on race, national origin, religion, or gender identity will also now be free to ignore the contractual gag orders companies negotiate into their settlement agreements.
This legislation has been supported by employee rights groups in California including the California Employment Lawyer’s Association and the Equal Rights Advocates. The new laws are seen as an end to the days when employer misconduct can be hidden from public view. Workers who have been targeted with harassment and discrimination will be free to speak their truth publicly. The perpetrators of this type of misconduct can no longer hide behind the veil of secrecy provided by their company. Non-disclosure and non-disparagement agreements will no longer be used to silence employees. The hope is that the public disclosure of the details of these abusive work environments will prevent perpetrators from targeting other workers in the future.
STAND and SNM Could Influence Other States to Pass Similar Laws
Although STAND and SNM (if it is enacted) are or would be exclusively California laws, these statutes could ultimately have a broad national impact. Other states often follow California’s lead in employment matters. Further, the fact that so many large technology companies are headquartered in California gives these laws an outsized influence on the national conversation about non-disclosure agreements. In the wake of the STAND Act, a number of states have enacted some limitations on non-disclosure enforcement including Washington, New York, New Jersey, Vermont and Tennessee. Many more states are likely to see some version of this legislation in the future.
More Cow Bell – More Corporate Disclosure and Shaming = More Equality in the Workplace
As am employment attorney, I was very curious about how this new legislation might impact the ability of plaintiff’s lawyers to negotiate settlements for clients in employment discrimination cases. Often the best leverage plaintiffs have in the early stages of an employment case is the prospect of public disclosure of misconduct on the part of a company employee or manager. The reason many companies offer settlements to claimants is to avoid embarrassing public disclosures of uncomfortable truths about their corporate culture or work environment. Companies also have an interest in keeping settlements secret to avoid what they see as “encouraging” other claimants looking to “cash in” on potential claims. In other words, the concern is that the non-disclosure and non-disparagement provisions outlawed by the STAND Act and the SNM Act are the best tools to obtain fair settlements for employees who have been targeted with harassment or discrimination.
The STAND Caveat
Further examination of the proposed statute reveals that its scope is more limited than I had anticipated. These statutes are actually structured to encourage and not to discourage early settlement of discrimination cases. The STAND Act allows for use and enforcement of NDAs (non-disclosure agreements) in cases where there has not yet been any court or agency filings. So during the initial stage of the claim, when a demand letter has been issued but where claims have not yet been filed with state or federal human rights agencies (such as the Equal Employment Opportunities Commission or “EEOC” in federal discrimination cases or the Connecticut Commission on Human Rights and Opportunities or “CHRO” in Connecticut state discrimination cases) and no lawsuit had been filed, the companies may include NDAs in settlement agreements and they are enforceable.
This exception to the ban on NDAs is highly significant. Far from discouraging early settlements of discrimination claims, this feature of the proposed law offers employers a powerful incentive to settle employment discrimination and harassment claims early. If an early settlement is not reached then the agency filings will occur and the employer will lose the right to demand an NDA as part of the settlement agreement. In order to keep employee misconduct secret, employers will have to settle employment discrimination cases early and often. While some cases can be kept secret by early settlement negotiations, targets of discrimination who want to shed light on their experience can ensure their ability to speak out by filing their claims with state and federal agencies.
What Opponents/Management/Defense Attorneys Say About Anti-NDA Legislation
Opponents of the anti-NDA legislation contend that restricting NDAs takes away a survivor’s choice to keep their case private and provides a strong incentive for employers to refuse settlement options and to defend themselves against a publicly disclosed allegation. According to Attorney Jill Basinger, an entertainment litigation partner and Michael L. Smith an associate at Glaser Weil in Los Angeles, “This harms survivors of sexual harassment and assault by removing their choice and forcing them to endure the hardship and uncertainty of a public trial as the only means of vindicating their claims.” Once an agency filing occurs or a lawsuit is commenced, the NDAs become unenforceable. It seems as if these laws would remove a strong incentive for defendant employers to settle claims.
It appears, however, as if the STAND Act has resulted in an increase in pre-filing mediations in employment cases in California. According to Mariko Yoshihara, the Legislative Counsel and Policy Director for the California Employment Lawyer’s Association, the predictions and fears over the STAND Act impairing the ability to settle have not borne out. According to Attorney Yoshihara, attorneys involved in this type of litigation have informally reported that the legislation has not lowered settlement amounts or impaired the settlement process. Additionally, according to Yoshihara, it has made it easier to advocate for employee rights from a public policy perspective because the targets of harassment and discrimination can make their stories public. While dispositive data on this point is not yet available, it seems as if the legislation is working in California.
Further, fears surrounding the forced public disclosure of the identity of the claimant are unfounded. Under the STAND Act there are specific provisions which protect the identity of the complaining employee in the context of a lawsuit. The STAND Act includes a specific provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including documents and pleadings filed in court, at the request of the claimant. California Code of Civil Procedure 1001(c). Thus, the anti-NDA legislation does not force the disclosure of a claimant’s identity.
While many employer advocacy groups including various chambers of commerce and industry and trade associations have opposed legislation such as STAND and SNM, similar legislation should be considered by all state legislatures that have not already enacted similar laws. When it comes to use of NDAs in employment discrimination and sexual harassment cases there is an unfair imbalance of power between the bargaining parties. The employers who are often defending the harasser or denying that the harassment occurred have an overwhelming advantage over the complaining employee in terms of investigative, legal, personnel, and financial resources. Employers are frequently holding all of the cards in a settlement negotiation. Legislation such as STAND and SNM will help to level the playing field at least with respect to NDAs.
More Power to the People/Employees – Shift In the Balance of Power
Placing the power over which aspects of the case can or will be made public in the hands of the targets of harassment and discrimination will help balance the power in the arena of employment settlement agreements. As evidenced by the initial success of the STAND Act, these laws can be an important tool in ending the culture of silence that has permitted harassing and discriminatory behavior to continue in the workplace for so long. In a recent opinion piece, the feminist writer and critic Marcie Bianco said: “If the societal change necessary for dignity and justice is to occur, we must move from awareness to accountability.” This legislation should help bridge the gap between awareness and accountability. We need to see a whole lot more of those “hidden truths” lying beneath the surface of the American workplace.
If you would like more information about this article, please contact Carey & Associates, P.C. at email@example.com or call 203-255-4150.
 Basinger, Jill and Smith, Michael L.; “How California’s NDA Restrictions Cause More Harm Than Good for Survivors” (Guest Column); Hollywood Reporter; https://www.hollywoodreporter.com/news/how-californias-nda-restrictions-cause-more-harm-good-survivors-guest-column-1280922
 LeHocky, Mark, “Shining a Needed Light on Harassment and Discrimination Claims: The Collective Benefits from California’s Recent Secret Settlement Restrictions”, Contra Costa County Bar Association, March 2020; https://www.cccba.org/article/shining-a-needed-light-on-harassment-and-discrimination-claims/
 Bianco, Marcie, “Britney fans angry at Justin Timberlake have a point.” CNN Opinion, February 10, 2021.