Employment Law Attorneys
Three Reasons Why You Should Not Accept Severance Pay

Three Reasons Why You Should Not Accept Severance Pay

We all have made decisions we regret later on at some point in our lives,  especially related to our work.  Here are three very good reasons why accepting a severance pay may not be in your best interest.

Reason 1: Confidentiality Clauses and Clawbacks

You were just presented with a severance package but you hold the brass ring of all time employment war stories there is. You plan on exposing your employer and you are extremely agitated.  Without a doubt, you think you have the greatest case in the world. Then you discover the severance agreement contains an iron-clad confidentiality clause that will prohibit you, your wife, your children and your parents, from ever telling your big story about a colossal corporate wrongdoing. If you accept the confidentiality clause and later breach the provision through disclosure, you risk the company taking back all of the severance pay and getting sued by the company.  At this point, the severance pay must outweigh the potential monetary value of public exposure and your credibility as a new whistleblower. But your career may take a dive. This is the classic catch-22 I see all too often.  You may not want to accept the severance agreement if the future monetary reward is great.

Reason 2: Non-competition and Non-solicitation Clauses

Remember that document you signed when you were on-boarded and were not really sure why you were checking the electronic box? Yes, that one. The non-competition and non-solicitation agreement you never intended to enter into. Now, upon separation, your employer hands you the severance agreement and you see an acknowledgment provision relating to the old non-competition and non-solicitation agreement.  In the alternative, the non-competition and non-solicitation agreement is presented in the severance agreement and you never had one while working for the company.  It gets worse, you were just offered a higher paying position with a competitive company which also does business with the employer (yes this does happen) or the new employer is both the competitor and the former customer/vendor).  In either example, you want to accept the severance pay because it is modestly reasonable, let’s say $75,000-$100,000.  But your new offer pays a salary of three times the severance amount and several years of employment.  Obviously, you may want to decline the severance if this the first time you have been presented with a non-compete and non-solicitation provision, as the future salary far outweighs the severance being offered. You may want to ask the new employer to offer a sign-on bonus in exchange for the leave behind pay (severance and bonus).  But what do you do if the non-competition and non-solicitation agreement was signed back on your first day of work? In this case, signing a severance agreement acknowledging the original non-compete only makes matters worse. You are stuck with the restrictive covenants.

You may need to challenge the enforceability of the original agreement by declaring it void for lack of consideration (you did not intend to enter into it).  We do this all the time but there are risks associated with moving forward with employer number two, mainly having an injunction filed against you.  Again, the future salary will dictate your choice here and hopefully, your new employer will financially support your choice to compete.

Reason 3: Severance Amount Is Too Low

Let’s assume you have worked for the employer for ten years before being offered a severance package.  When you open the agreement, the severance amount is small. You discover the confidentiality clause and the restrictive covenant provisions mentioned above.  You conclude the severance is just too small in comparison to the loss of future economic value of not working in your industry.  You can decline the severance and sleep well at night knowing you can remain in your chosen field of work.  In the alternative, you can hire an employment attorney to scope out any and all possible legal claims to leverage on your employer to get a higher severance amount.  This is what we do every day.

If you’ve been terminated by your employer and offered a severance agreement, let the employment lawyers at Carey & Associates, P.C. help you evaluate the pros and cons of signing the agreement.

Get in touch today!

 

Controlling the Psychology of Working to Your Advantage

Controlling the Psychology of Working to Your Advantage

No one discusses the psychology of work and the enormous role it plays in your everyday life.  I have researched and watched this issue for more than twenty years, from discrimination bias to contract negotiation.  I comb through client fact patterns looking for every psychological angle emanating from all the cast of characters in order to position the client to achieve success or to resolve a dispute.

Why aren’t you doing this?

The Psychology of Your Manager

I know you think you know your manager, but I doubt you really know how your manager thinks and what motivates them. Psychology plays a direct and important role in such things as how your manager makes decisions regarding what jobs or tasks to assign employees and your career advancement.   Managers evaluate employee strengths and weaknesses, i.e. perceived psychology, and selectively assign tasks.  Employees are also chosen to advance based on their perceived psychology about whether they will be effective in handling the responsibilities of the new position.

If you are blind to the role of psychological analysis, get your head out of the sand and in the game!

Think of your job like a chess or strategy game, you need to consider every conceivable variable that will impact your chosen goals, both positively and negatively.  If you are not evaluating your opponent, i.e. your boss or coworker, you will not advance in your current position or your career.  I am not asking you to confront your boss with your new found psychological intelligence, keep it to yourself and use it to guide you when making critical decisions to your benefit. Successful employees and executives do this every day.

Here is what to look for when evaluating your boss’s psychology in order to gain an advantage:

(1) Evaluate facial and body cues that may show a degree of nervousness or over aggressive micromanaging (polar opposites), facial and body cues are one of the most important signals to read when assessing your opponent.

(2) Examine the person’s prior work conduct toward yourself and other employees and the reaction those individuals had in relation to the decision being made. Was there a consistent logic flow or arbitrary selection decision making process without basis?

(3) Go beyond the email language and check if the person really intended what was stated, email can be misleading.

(4) Examine the individuals the person promotes and if they are a logical fit or the result of office favoritism and worse, discrimination.

(5) Examine the potential for personal issues being brought to the office and determine if they are playing a role in the person’s work life.

This list is by no means exhaustive of the possible variables impacting your opponent’s decision making.

The Psychology of Your Coworkers and Yourself

When you arrive at work, you walk into an office workspace filled with a multitude of personal psychologies.  There is no control other than the corporate mind speak dished out by the company or what you believe the proper protocol to acting professional is.  There is no discussion about how to manage yourself or others while at work. Sure, there are rules regarding behavior, but in reality, employees are thrown into the workplace and are just expected to know how to act and react moment by moment.

Short of being fired for poor misconduct, how do you navigate the psychological warfare of the office?

The solution is to become aware or mindful of your interactions with co-workers, including supervisors, especially when you are having a bad day.  Take a week and just observe the behaviors of others but don’t be reactive, just observe.  While you’re observing various office behavior, listen to your inner voice, you know the voice that is talking inside your head right now as you read this.  The more you become aware of this inner voice, the more self-control you will have during moments you need it most.  That inner voice is the reactive brain and not your conscious brain, it just keeps on talking at you over and over all day long.  Listen to your conscious brain, the one you make decisions with and the one you use to learn new information. Notice that the conscious brain does not ramble on at you, it is more concise and logical, not dramatic and overblown.

Another method of handling the office psychology is to observe the expectations you set for yourself and others. Stop working from those expectations and focus on the current issue you are experiencing.  Your own expectations may be causing the problem you may be experiencing but you just don’t know it.  We pre-imagine how events in our work life should result, but we never really think about how we created those expectations in the first place. When the crap hits the fan and our expectations are dashed, we tend to blame ourselves or others in a knee-jerk reaction.  We never stop to think about our own thought processes, we just accepted what our mind (inner voice vs. conscious mind) said to us.

As employment attorneys, we confront the end product of psychology in the workplace and are requested to find solutions.

 

For more information, please contact Mark Carey.

SEVERANCE: What to Know Before You Take the Money and Run

SEVERANCE: What to Know Before You Take the Money and Run

You have been terminated from your employment and have been fortunate enough to be offered the opportunity to separate from your employer by way of a severance agreement. A severance pay out can certainly be the silver lining in the otherwise unfortunate scenario of losing your job. In fact, it might even seem too good to be true – receiving compensation from your employer without having to work anymore and sometimes in addition to earnings from a new position. But as they say, if something seems too good to be true, it probably is. In fact, severance paid to a soon-to-be-former employer does not come FREE and there are usually substantial conditions that come along with this payment, or what the law refers to as “consideration.” As the employee, it is crucial that you are fully apprised of what you are giving or giving up in return for this payment. Knowing this at the outset means that the agreement under which the severance is offered needs to be meticulously reviewed, understood and negotiated, before you sign.

It is important to begin any conversation of severance agreement with the understanding that a severance agreement is a contract and as such, once executed, the terms and conditions are binding for both parties. While severance agreements can take many forms and vary substantially, these agreements are almost always generated by the employer and provided by the employer to the employee. As such, there are certain provisions that typically find their way into these agreements that can work to the detriment of the employee and to the benefit of the employer.

Here are examples of such severance contract items that need to be carefully considered – before you take the money and run.

Release of Claims/General Release

Almost every severance or settlement agreement will have a release clause. In fact, these agreements are actually sometimes titled, “Severance and Release” or “Settlement and Release.” It is important to fully read and understand the particular release language in your agreement. In essence, a release means that in return for the settlement pay out, the employee agrees to release the employer from any and all claims the employee might have. It is important to note that often these releases are retroactive and proactive, thereby prohibiting the employee from making a claim against the employer for something that occurred prior to the signing of the agreement as well as for any claims that might arise or which might become known to the employee AFTER the signing of the agreement. These release provisions can be extremely broad and restrictive and so it is imperative to fully understand what you are giving up in this regard. You are essentially agreeing not to bring any form of claim at any time past, present or future against your former employer.

Amount of Severance

The amount of severance provided can vary greatly depending on such factors as the situation under which you were terminated, the length of your employment and the position you held. But this amount can also be wholly arbitrary and not surprisingly, the employer will try to get away with paying as little as possible. It is advisable to look back to your initial employment agreement (if you have one), as it might set forth the specific terms of severance to which you are entitled. In addition, your employer might have a company-wide severance policy. It is also important to make sure any accrued or unused vacation days are added to your severance in the form of additional pay out. In many instances, the amount of severance can be negotiated and we strive to get our clients the maximum severance pay out under the circumstances.

Non-compete

This is one of the most important clauses to understand in your severance agreement. Most agreements will have some sort of a non-compete which essentially means you cannot go and work for or with the “competition” after leaving your current employer. Depending on the specific language of the non-compete, these covenants are typically highly restrictive and might actually prevent you from earning a living in the field in which you are qualified. They often significantly limit the period of time and geographic area in which you can seek re-employment and go back to work. It is ideal to have these non-competes stricken from the agreement. In the alternative, the next best course of action is to modify this clause to make it less prohibitive so that you are not denied the right to earn a living.

Expiration Date

Severance agreements often have an expiration date masked in the form of a “review period.” Many times this is overlooked by the employee as it is not set forth as an outright expiration date of the severance offer, but rather as a period of time within which the employee has to review and sign the agreement. While the amount of time can vary, a typical review period is 21 days. It is important to be mindful of this deadline as the severance offer can be rescinded if you do not sign within the time frame set forth in the agreement. If you feel that you will need more time to fully understand and be counseled on this agreement, it is advisable to seek an extension of the review period at the outset so that you have adequate time to retain counsel, address and negotiate any issues, and not feel pressured or rushed into signing.

Disparagement and Confidentiality

Many severance agreements will have a disparagement and confidentiality clause. What this basically means is that the employee is prohibited from disparaging the company in any way and that the employee is agreeing to keep the terms of their separation from the company and the resulting severance agreement confidential. We advise our clients to modify this clause so that the disparagement and confidentiality restrictions are MUTUAL. In other words, why should this be one sided? It is preferred that both the employer and employee be prohibited from disparaging each other in the future, and that both parties be bound to keep the specific terms of the termination and severance confidential.

Bridging Pay or Set-off

Many severance agreements include language that reference severance pay out as money intended to “bridge” the time between when you are terminated from your current employer and when you seek re-employment and regain earning a living. In essence, what this seeks to accomplish is that once you gain new employment, you are obligated to inform your former employer of this and that your severance will stop on the first day of your new employment. Severance is often paid out over the span of the severance period, in conjunction the company’s usual pay roll schedule. However, we believe severance is intended to and needs to be treated as a lump sum settlement amount to which you are fully entitled, regardless of if and when you begin a new job. Even though it might technically be paid out over the course of the bridging period, at no time, even in the event of re-employment, should you be deprived of the full amount of this settlement. We will always seek to have this set-off clause removed from the agreement.

While every severance situation is unique, generally speaking these are just some of the types of matters that we counsel our clients on when they come to us after having been terminated and presented with a severance/settlement/release agreement. Our goal is to educate and counsel the client on what they are signing and specifically what they are giving up in return for the severance payout. We will then discuss what needs to be negotiated and work with the employer and opposing counsel in getting an optimal, more balanced and legally sound agreement presented to our client.

If you’ve been terminated by your employer and offered a severance agreement, let the employment lawyers at Carey & Associates, P.C. help you feel confident before signing on the dotted line.

Get in touch today!

 

NY Times The Daily: The Rampant Problem of Pregnancy Discrimination, Part 2

NY Times The Daily: The Rampant Problem of Pregnancy Discrimination, Part 2

Many women are passed over for promotions and raises when they become pregnant. Part 2 of this series examines the subtle sidelining of pregnant women and mothers in corporate America. Guests: Natalie Kitroeff, who covers the economy for The New York Times, and Erin Murphy, who alleges that she was denied opportunities by her employer, Glencore, once she became a mother. For more information on today’s episode.

The issue of pregnancy discrimination at work will not go away…unless you raise your voice and stop remaining silent.  Erin Murphy chose to speak out.  We should all speak out and end this devastating form of discrimination. We all came from someone.  Would you treat your mother like Erin Murphy was treated by Glencore.

To read Erin Murphy’s June 18, 2018 federal complaint against her current employer Glencore click here Murphy Complaint As Filed 6.18.18

If you need help with your employer because you are experiencing pregnancy discrimination, contact us.

Hidden Arbitration Clauses: What You Don’t Know CAN Hurt You

Hidden Arbitration Clauses: What You Don’t Know CAN Hurt You

Employers are opting increasingly for forced arbitration as a tool to prevent their employees from seeking justice against them in court. A form of private dispute resolution, an effective arbitration agreement forces the parties to submit their dispute to a professional arbitrator (usually chosen by the employer), who will decide the result. The arbitrator’s decision is final: It is legally binding and cannot be appealed in court.

The Problem with Forced Arbitration

Forced arbitration comes at a tremendous cost to employees, who will no longer have their day in court.  As a result, their right to fair treatment on the job is inevitably compromised.  Even a favorable monetary arbitration award can feel like a hollow victory for an employee who has suffered years of discrimination at the hands of their employer.  For a large company in particular, even a high six-figure payout is effectively nothing but a slap on the wrist. A license to continue their unfair employment practices.

An employee’s real bargaining power comes from the public nature of the court system. By signing mandatory arbitration contracts, employees are waiving their fundamental, constitutional right to a trial by a jury.

According to a recent study, nearly 52% of employees are subject to mandatory arbitration procedures. “Extrapolating to the overall workforce, this means that 60.1 million American workers no longer have access to the courts to protect their legal employment rights and instead must go to arbitration.” Alexander J.S. Colvin, Economic Policy Institute, EPI.org.

Workers’ Rights Put at Risk

Just a few weeks ago, the Supreme Court ruled 5-4 in NLRB v. Murphy, that employers can include employment contract clauses forcing employees to arbitrate their disputes individually, and waiving the right to resolve those disputes through joint legal proceedings.  In a rambling, logically incoherent majority opinion, Justice Gorsuch asserted, “[t]he policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written.”

This decision paves the way for companies to strip workers of the right to pursue class action suits in cases of widespread discrimination. In her written dissent, Justice Ginsberg cautioned, “[t]he inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”

Savvy employers are well aware of the advantages provided to them by private arbitration.  They are becoming ever more creative in finding places to bury mandatory employment arbitration clauses to ensure that their employees are bound by them.

The Supreme Court’s decision in the Murphy case left unanswered, the question of what constitutes valid “notice” to an employee.

Consider the case of an employer who sends an arbitration agreement through a company-wide email, requiring any employee who does not agree to be bound by mandatory arbitration to opt out proactively.  Are all employees who have not opted out of the agreement still bound by its terms, even if they never opened the employer’s email?

In another case, the employing company placed a mandatory arbitration clause within the text of the legal disclaimers included in its employment application.  In order even to be considered for a position, a potential employee is required to find and agree to mandatory arbitration.

Fighting Workplace Discrimination

The Supreme Court’s decision in NLRB v. Murphy will have significant consequences for the ability of employees to fight back against discrimination on the job.  Despite the unequal bargaining power inherent in employer-employee agreements, the decision marks a victory for companies seeking to avoid liability for the mistreatment of their employees.

It remains to be seen how the court will handle the issue of hidden arbitration clauses, whether long-standing contract principles requiring notice to both parties will become a thing of the past as well.

The following companies use forced arbitration clauses: Morgan Stanley, Hooters, Forever 21, Nordstrom, Neiman Marcus, Macy’s, Yahoo, Dillard’s, Manpower, Carrols, Papa John’s Pizza, Xerox, Amazon, Ford, GE, Coca-Cola, CVS, ExxonMobil, Bridgewater Associates, Glencore, RBS, Barclays, Tradeweb, Boehringer Ingelheim Pharmaceuticals.

Have employment questions? Need help with a case? The employment lawyers at Carey & Associates, P.C. handle each and every aspect of employment litigation and appellate work and act as the story tellers of our client’s personalized narrative to the company, the court and the jury.  Contact us today!

There’s An Epidemic of Discrimination Against Pregnant Women at Work (NY Times 6.17.18)

There’s An Epidemic of Discrimination Against Pregnant Women at Work (NY Times 6.17.18)

On Sunday June 17, 2018 the New York Times posted an article, There’s An Epidemic of Discrimination Against Pregnant Women at Work involving a case attorneys Jill Saluck and Mark Carey are working on.

The article reported “Throughout the American workplace, pregnancy discrimination remains widespread. It can start as soon as a woman is showing, and it often lasts through her early years as a mother… Many of the country’s largest and most prestigious companies still systematically sideline pregnant women. They pass them over for promotions and raises. They fire them when they complain…In corporate office towers, the discrimination tends to be more subtle. Pregnant women and mothers are often perceived as less committed, steered away from prestigious assignments, excluded from client meetings and slighted at bonus season.”

The NY Times article explored Erin Murphy’s willful pregnancy and sex discrimination case against her current employer Glencore:

“As a senior woman at Glencore, the world’s largest commodity trading company, Erin Murphy is a rarity. She earns a six-figure salary plus a bonus coordinating the movement of the oil that Glencore buys and sells. Most of the traders whom she works with are men.

The few women at the company have endured a steady stream of sexist comments, according to Ms. Murphy. Her account of Glencore’s culture was verified by two employees, one of whom recently left the company. They requested anonymity because they feared retaliation.

On the company’s trading floor, men bantered about groping the Queen of England’s genitals. As Glencore was preparing to relocate from Connecticut to New York last February, the traders — including Ms. Murphy’s boss, Guy Freshwater — openly discussed how much “hot ass” there would be at the gym near the new office.

In 2013, a year after Ms. Murphy arrived, Mr. Freshwater described her in a performance review as “one of the hardest working” colleagues. In a performance review the next year, he called her a “strong leader” who is “diligent, conscientious and determined.”

But when Ms. Murphy told Mr. Freshwater she was pregnant with her first child, he told her it would “definitely plateau” her career, she said in the affidavit. In 2016, she got pregnant with her second child. One afternoon, Mr. Freshwater announced to the trading floor that the most-read article on the BBC’s website was about pregnancy altering women’s brains. Ms. Murphy, clearly showing, was the only pregnant woman there. “It was like they assumed my brain had totally changed overnight,” Ms. Murphy, 41, said in an interview. “I was seen as having no more potential.”

When she was eight months pregnant, she discussed potential future career moves with Mr. Freshwater. According to her, Mr. Freshwater responded, “You’re old and having babies so there’s nowhere for you to go.” A Glencore spokesman declined to comment on Mr. Freshwater’s behalf. After she came back from four months of maternity leave, she organized her life so that having children wouldn’t interfere with her career. She arranged for child care starting at 7 a.m. so she would never be late. But as her co-workers were promoted, her bosses passed her over and her bonuses barely rose, Ms. Murphy said.

When there was an opening to be the head of her department, Ms. Murphy said she never got a chance to apply. The job instead went to a less experienced man. Ms. Murphy said an executive involved in the selection process had previously asked repeatedly whether she had adequate child care.

Ms. Murphy said that after she missed out on another job, the same Glencore executive told her it was because of the timing of her maternity leave. Ms. Murphy has retained a lawyer and is planning to file a lawsuit against Glencore.”

In response to the NY Times article Attorney Jill Saluck commented, “Sometimes a pregnant employee will be subject to blatantly discriminatory remarks by her employer, indicating a clear bias against pregnant workers. But more often, pregnancy discrimination is much more insidious. Often after pregnancy, a woman’s career will suddenly and inexplicably plateau.  Her non-pregnant coworkers will receive raises and promotions, but despite her consistent hard work, she will not be afforded the same opportunities. If this is happening to you at work, chances are that you’re not the only employee that has been subject to this type of discriminatory treatment. Pregnancy discrimination is not just unfair, its illegal, and employers must be called out for derailing the careers of pregnant employees.”

In the case reported in the NY Times article, Erin Murphy v. Glencore, Ms. Murphy filed her legal action in the District of Connecticut on June 18, 2018 (Erin Murphy v. Glencore, Ltd, 3:18-CV-1027 D.Conn). The case will proceed to a jury trial and we expect the jury to send a strong message to the company that pregnancy discrimination will not be tolerated and punished severely.

If you need assistance with your pregnancy discrimination issues at work, please do not hesitate to contact us.

A Few Very Good Reasons Why You Can’t Trust Your Employer

A Few Very Good Reasons Why You Can’t Trust Your Employer

We all build relationships based on trust.  Some relationships require more trust than others. For example, marriage, medical professionals and hiring lawyers.  We all take the time to explore whether these relationships are the right fit for us.  We even memorialize these important, sometimes life-changing, relationships with contractual agreements.  But when it comes to the relationship with your employer, you might as well start hand feeding piranhas.

Meet Your Antagonist: Your Employer

An antagonist is someone who actively opposes or is hostile to another; an adversary.  Does this describe your current or former employer? In my role as the employment attorney, I do not hear very many people say they trust their employers. In fact, the opposite is true.  According to a Harvard Business Review article, “In both your personal life and your work life, you’re bound to encounter people who take advantage of you, and these painful experiences can make you cynical.”

You have several reasons to be cynical about your employment relationship.  Your employer is not interested in whether you are happy at work, fulfilled in your career aspirations, concerned about your personal responsibilities at work or anything remotely realistic to a nurturing relationship.  In fact many employees have a low level of trust in their employers.  The 2016 Trust Barometer report from Edelman revealed that a third of employees do not trust their employers. Employees reported a lack of engagement, short term profit seeking, lack of belief in the company mission, poor product quality, unethical behavior, bad corporate reputation, invisible CEOs and lack of corporate communication to employees.

At-will Employment is Bad for You

When you are employed at-will, as most of you are, you might as well be on a first date for the next several years.  You would think that after knowing your employer for three or more years, you’d just settle down and get engaged to be married. However this is not so.  Unless you have a coveted and rare employment contract with a “for cause” termination provision, your employer can bounce you with little or no notice.  Many of you have felt this scorned feeling from prior jobs.  So where is the trust in the at-will workplace if you can never predict your future with a reasonable certainty on a day-to-day basis? There is none.  Ouch!

Somehow, we have just grown accustomed to this dysfunctional at-will relationship and let employers manipulate us with unenforced corporate codes of conduct, lofty corporate double speak and fear.

Management by Fear Does Not Create Trust

The most common corporate management practice today is to maintain a consistent level of passive-aggressive practices which propagate employee fear and insecurity. From my vantage point, I see a persistent pattern by employers accusing employees of subjective performance issues while their objective performance criteria are “meets” or “exceeds expectation”.  Employers use performance management techniques such as performance improvement plans and coaching to force out undesirable employees.  No one ever remains long after being managed this way. I also see cases of overt ruthless conduct, where a supervisor discriminates against pregnant employees as having “baby brain.” Saying things like, “I don’t want another woman working on the desk” or “If you’re being honest with yourself, do you really think you could do this job?”  And the comments get even worse. “I don’t want to hear any complaining from you, you and [spouse] did this to yourselves.” Only a supervisor with intentions to rid themselves of pregnant employees will make discriminatory statements like this to push the employee to quit out of fear of reprisal.

Discrimination Does Not Create Trust

The absence of trust becomes more noticeable when employees experience discrimination in the workplace or need to take time off due to health issues affecting themselves or a family member.  For these employees, their career with their particular employer has taken an abrupt turn for the worse.

For example, you become pregnant while employed and take a maternity/paternity leave under company policy and FMLA.  When you return, your job duties have changed and so has the person you reported to.  Pregnancy discrimination is one of the most perverse examples of a lack of trust an employee can encounter.  The employer has a maternity leave policy and you take a leave under said policy with no resistance.  However, upon returning to work you face pregnancy discrimination when your employment is terminated.  The employer will jump at an opportunity to replace you rather than reinstate you.  We would all agree, this is not an ideal trust building experience at any company, yet pregnancy discrimination continues to persist.

If you complain to your employer about issues of discrimination or whistle blowing, you will immediately cause your employer not to trust you.  You have a legal and moral right to complain about these issues, but do not expect reciprocation from your employer.  You just threw yourself off or under the company bus.  This equals your spouse cheating on you and then pointing the finger at you as the cause for why they had the affair.  Your employer’s Human Resources Department will not help you when you are down and have complaints about coworkers or your supervisor.  I am sure the folks in HR are nice people, but their “job” is to protect the employer, not you! Don’t make the mistake in confiding with human resource personnel, unless absolutely necessary to build a case for retaliation.

Arbitration and Noncompete Agreements Don’t Create Trust

Arbitration and non-competition agreements and employer trust are like oil and water with a sprinkling of gasoline for added flare.  The U.S. Supreme Court’s further endorsement of employer arbitration agreements cemented in stone the future of employee litigation and the permanent role of arbitration in your career. Listen, don’t be fooled, arbitration agreements are bad for you, your rights, your claims, the economy and are only good for employers.  Noncompetition agreements are even a better example of a lack of employer trust.  When your employer is finished with you and terminates your employment, they sink a big fishing hook in you and reel you back in at their whim each time you land a new position.  The employer cries foul, complaining you are single handedly destroying the company via working for the competitor.  These two forms of employment agreements represent the worst in every company that mandates them.  An arbitration agreement is a tool to conceal bad corporate acts from employment attorneys like myself and non-competition agreements are used to threaten competitive employers in the market place.

Rise Up and Demand More Trust

It is time to call an end to bad corporate practices- the deceit, the greed, the lies and the double speak.  Employees should demand more from their employers.  Rise up and unite together and tell your employer you would trust them only if they demonstrated trust to you first.  Trust begets trust.

Have questions or think you’ve been discriminated against at work? Let our employment law attorney’s help you get justice.  Get in touch today!

Pregnancy Discrimination: Reviewing Lactation Legalities

Pregnancy Discrimination: Reviewing Lactation Legalities

Central to any present-day discussion of pregnancy discrimination is the issue of lactation and nursing moms in the workplace. The practice of breastfeeding has expanded in recent years and various legal issues have accompanied this development.

The law is designed to protect moms who breastfeed in almost all 50 states, Connecticut included.

The Patient Protection and Affordable Care Act (P.L. 111-148, known as the “Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide, “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”

Employers must provide as many breaks as are needed by the employee. Employers are also required to provide, “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Therefore, the Federal statute ensures that employers provide nursing employees with a time and a space to “express milk” if there is an employee with this need and the employer is made aware of the need.  Moreover, all employers covered by the FLSA must comply with the break time and private place provision for nursing mothers. Small businesses with less than 50 employees, who are not covered by the FLSA may be exempt from the FLSA provisions if they can demonstrate that compliance with the provision would impose an undue hardship.

How does all of this apply to employers and nursing employees in Connecticut?

The FLSA requirements for nursing mothers to express breast milk does not preempt state laws. And in fact, state law in Connecticut actually provides greater protections to nursing employees. The Connecticut Breastfeeding Coalition joined with the Departments of Public Health and Labor, and the Commission on Human Rights and Opportunities to create the, “Guide to Connecticut Breastfeeding Nondiscrimination and Workplace Accommodation Laws.” A closer look at the guide and the law in CT will show CT to be a state that gives great deference to, and places high public importance on, the protection of breastfeeding moms in the workplace.

Michele Griswold, chairperson of the Connecticut Breastfeeding Coalition said, “Most people want mothers and infants to be healthy, but not all understand the connection between breastfeeding and improved health outcomes. Taking steps to remove barriers for breastfeeding mothers and their children is a win-win situation for everyone. Increased breastfeeding rates ultimately mean healthier communities.”

Specifically, in the state of Connecticut, ALL businesses, regardless of the size, must provide breastfeeding protection in the workplace. Conn. Gen. Stat. Section 31-40 (along with the Patient Protection and Affordable Care Act, amending Section 7 of the Fair Labor Standards Act) requires employers to provide a reasonable amount of time each day to an employee who needs to breastfeed or express breast milk for her infant child and to provide accommodations where an employee can do so in private. And these CT laws apply to all businesses in CT regardless of their size or number of employees.

Sec. 31-40 entitled CT Breastfeeding in the Workplace reads as follows:

(a) Any employee may, at her discretion, express breast milk or breastfeed on site at her workplace during her meal or break period. CT case law has expanded this provision to mean, when possible this milk expressing activity should occur on your meal or other work break, but if it occurs at another time the employer is not obligated to pay you during the pumping break.

(b) An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.

(c) An employer shall not discriminate against, discipline or take any adverse employment action against any employee because such employee has elected to exercise her rights under subsection (a) of this section.

(d) As used in this section, “employer” means a person engaged in business who has one or more employees, including the state and any political subdivision of the state; “employee” means any person engaged in service to an employer in the business of the employer; “reasonable efforts” means any effort that would not impose an undue hardship on the operation of the employer’s business; and “undue hardship” means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.

This requirement in CT is a much harder standard to meet than the Federal statute as it defines undue hardship as posing a, “significant difficulty” for the employer.

It is also important to note that whereas the Federal statute defines the protected activity as “expressing milk” in the workplace, the State of CT law is unique in that it protects and allows mothers to actually breastfeed their babies in the workplace, and/or express milk/pump.

If you are a mother returning to work after pregnancy and believe that your employer is failing to provide you with the breastfeeding protection you are owed under Federal and State law, please feel free to reach out to the employment lawyers at Carey & Associates, P.C. for help in this area, or for help with any other matters involving pregnancy discrimination in the workplace.

Remember: A CT business is not permitted to discriminate against, discipline or take any adverse employment action because you’ve elected to exercise your right to breastfeed or express milk at work.

Pregnancy Discrimination: Going Beyond Nine Months

Pregnancy Discrimination: Going Beyond Nine Months

Reports have shown that pregnant women and new mothers are suffering increasing levels of unfair treatment at work, including cuts to their work hours, zero-hour contracts or even undergoing forced removal from their jobs.

Laws Protecting Pregnant Employees

The Pregnancy Discrimination Act of 1978 ensures that pregnant employees or “women affected by childbirth,” are treated the same as childless workers. In addition to federal laws protecting pregnant employees from discrimination and ensuring that they receive family leave benefits, many states and localities also have passed laws giving additional protections and rights to pregnant employees.

Most states have passed laws requiring employers to provide reasonable accommodations to pregnant workers.  The Connecticut Fair Employment Practices Act was recently amended, making it unlawful for an employer to refuse reasonable accommodations for an employee due to her pregnancy or to limit, segregate, or classify her in a way that would deprive her of employment opportunities due to pregnancy.  The law also expands the definition of “pregnancy” to include related post-pregnancy conditions, such as lactation (PA 17-118).

What is Pregnancy Discrimination

The term, “pregnancy discrimination” is deceptive. Courts are only just beginning to define the parameters of what can be considered “on the basis of pregnancy.” Although a pregnancy itself is limited in time to a discrete period, the discrimination faced by a pregnant woman often continues long after the birth of her baby.

Federal law and the antidiscrimination laws of most states consider pregnancy and pregnancy-related conditions, such as lactation, to be protected. But the definition becomes more blurred, for example, in the context of a mother returning to work from maternity leave, only to find out that she has been demoted or placed in a new position.

Sometimes an employer’s discriminatory action won’t take place for months, or even years, following an employee’s pregnancy.  Years after her pregnancy, a female employee will notice that she is repeatedly passed over for promotions.  Despite her hard work and positive performance, her male and childless coworkers are given opportunities that she is not.

This phenomenon has been dubbed, the “motherhood penalty,” and is extremely common in today’s workplace.  According to recent studies, about three quarters of working mothers say they have experienced discrimination in the workplace.

Research shows that mothers are significantly less likely than either childless women, or fathers with identical qualifications, to get interviews. In addition, regardless of whether women work less after having children, employers pay them significantly less over time, assuming they will be less committed.  When mothers do cut back their work hours, their pay is disproportionately reduced.

Consider two specific examples of discrimination on the basis of motherhood responsibilities;

New Supervisor Syndrome – A working mother performs well and has no significant problems at work until her supervisor changes. The new supervisor cancels her flexible work arrangement, changes her shifts, or imposes new productivity requirements. On occasion, the new supervisors will even make comments indicating that these actions have been taken specifically to push mothers out. In other instances, a working mother may be targeted for termination under the biased belief that she is not as committed to her job or as productive as other employees who are not female and do not have childcare responsibilities.

Second Child Bias  Some mothers have reported experiencing little discrimination until they become pregnant with their second child. After informing her employer of her second pregnancy, a working mother is suddenly faced with questions about whether she intends to return to work after maternity leave and how she can continue working with two children. Some supervisors openly counsel women who are pregnant with their second child to stay at home, deny promotions or other opportunities, treat them rudely or ignore them, or make the work vs. home decision for them by terminating them. The assumption behind these actions appears to be that a mother can handle one child and work, but two is too much.  www.worklifelaw.org/pubs/FRDupdate2016.pdf

Defining Motherhood Discrimination

Not neatly categorized as pregnancy or gender discrimination, motherhood discrimination occurs when an employee suffers an adverse employment action based on unexamined biases about how female workers with childcare responsibilities will or should act, without regard to her actual performance or preferences.

Discrimination based motherhood often occurs in the context of failure to hire or to promote, demotion, transfer to dead-end jobs, removal of sales territory or responsibility, increase or strict enforcement of goals for mothers but not others, discipline for actions that do not result in discipline for non-mothers, humiliation or harassment, selection for layoff despite seniority and strong performance and termination for reasons that are not accurate or legitimate.

No federal or Connecticut statute expressly prohibits employment discrimination or retaliation based on motherhood responsibilities. In many situations, a court will rely on laws regarding pregnancy discrimination in analyzing a claim more aptly categorized as, “motherhood responsibilities discrimination.” A working mother may prevail by showing, for example, that because of her pregnancy, she was treated differently from employees who had not been pregnant.  Sometimes, the difference in treatment occurs after she returns from maternity leave, based on her employer’s assumption that because her childcare responsibilities will impact her work.

Gender discrimination laws have also been used in analyzing claims of motherhood discrimination.  Title VII does not prohibit discrimination on the basis of family responsibilities alone, but rather “gender plus” an additional status, in this case, childcare giver.

“Sex plus” or “gender plus” discrimination, involves a policy or practice by which an employer classifies employees on the basis of sex plus another characteristic.  It is actionable under Title VII, state law, and the Equal Protection Clause, which forbids sex discrimination regardless of how it is labeled, as long as there is evidence of purposefully sex-discriminatory acts. Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004).

The “sex plus” framework was used to analyze a female employee’s claim that her employer failed to promote her because of a sex-based stereotype that women who are mothers neglect their jobs in favor of their presumed child care responsibilities. Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009)

Such cases rest on the presumption that, “unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.” Id at 44–45.

In accordance with Title VII, women have, “the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.” Gingras v. Milwaukee County, 127 F. Supp. 3d 964, 975 (E.D. Wis. 2015).

If you feel that as a working mother, you have been the victim of discrimination by your employer, an employment attorney can help you determine what recourse may be available.

Get in touch today!

Jill Saluck is an employment attorney working in Connecticut for Carey & Associates, P.C. She can be reached at (203) 255-0380.
10 Things You Should Know About Employment in Connecticut

10 Things You Should Know About Employment in Connecticut

If you work in Connecticut, there are facts you need to know about when it comes to your employment rights. In this post we’ll cover the top 10 things you need to know as an employee in CT.

1. Employers Can Give Bad References, Just Not False Ones

Employers no longer give references for former employees, so stop worrying.  Employers fear being sued for defamation or claims for negligent hire. The majority if not all employers will provide prospective employers and their recruiters with your dates of employment, position, and possibly salary. The employer will not provide the reason(s) for termination.  However, if you hear your former employer said they would not recommend for rehire, that is code language that you are a poor employee. The only exception I can think of is if you and your employer are FINRA registered members, i.e. brokerages and licensed employees in the financial industry.  FINRA regulated employers are required to provide the reason for termination in the employee’s U-5 record.

2. Connecticut Employees Allowed 16 Weeks Unpaid FMLA Leave

Under the Connecticut Family Leave Act, employees are entitled to take up to 16 weeks of unpaid leave. Connecticut law provides for an additional 4 weeks on top of the federal FMLA (12).  Employees should ask there employers if they have short term disability benefits to coincide with the 16 weeks of leave.  A typical STD plan provides for six months of paid leave at 60% of the employees base pay. Nothing is guaranteed, and the employer will not volunteer the information. Employees in need of a leave of absence must self-advocate for their rights and document all their requests in writing. Remember, your job is protected during the FMLA, but if you fail to return before your leave ends, you will lose your job.

3. Connecticut Employees Have a Right to Personnel Files

Connecticut employees are entitled to a complete and accurate copy of their personnel files, including a copy of their supervisor’s version of their file.  All the employee has to do is make a written request via email to the HR department and the employer must provide a copy of the file within 30 days.  If the employer refuses, please contact the CT Department of Labor and register a complaint.

4. An Unfair Employment Termination is Not Necessarily Illegal

Listen, employers can be really mean and behave in very unfriendly ways. However, just because the employer is a pain in the butt and trying to make your life miserable, this does not mean the employer’s actions are illegal.  Employers do not care about employees, so get over it. Your job cannot be your identity.  You are an “at will” employee and you should never assume your job is secure, even if you worked for the company for 10 years.  In order to determine if your employer’s action to terminate you were illegal, you would need to speak to our employment attorneys.  A quick 15 minute call to our office will flesh out the legal issues and permit us to determine if you were fired unlawfully.

5. Independent Contractors Have Rights Too

You may not know it, but if you are an independent contractor you are still protected against unlawful employment actions such as discrimination.  You should also investigate if your employer is correctly classifying you as an independent contractor (IRS Form 1099) or regular employee (IRS Form W-2). We see a lot of employees misclassified as independent contractors when they should be regular workers. Employees fear challenging the employer on this classification because they believe they will lose their contract.  If you are in doubt, call the CT Department of Labor or call our office to speak with an employment attorney.  Also search the internet in Connecticut for the “ABC Test for Independent Contractors.” You can also search the IRS.gov website for the same information.

6. The Legal Effect of Quitting Your Job

Don’t ever quit your job!  You cannot collect unemployment benefits.  Also, it is too difficult to prove your voluntary job termination was a “constructive discharge”. The facts must show a series of recent events that violate state and federal law and that any reasonable person would also quit.  If you are in a tight bind where your employer is giving you the writing on the wall treatment to get out, speak to an employment attorney in our office first.  We will deter you from quitting and will advise you to leave your job through the signing of a separation agreement which includes a severance payment for your service with the company as a result of unlawful treatment.

7. Employees with Criminal Records Are Protected

Under Connecticut law, employers cannot refuse to hire or terminate an employee because of a criminal record. Obviously, each case is different, so you will need to contact an employment attorney in our office to figure out if you are protected.

8. You May Have a Legal Right to Severance Pay

Employees employed in Connecticut may have a legal right to severance pay.  If the employer maintains a severance plan governed by ERISA (federal regulation), employees working in Connecticut are considered participants and entitled to severance pay pursuant to the plan document.  The one condition to receive severance pay set forth in every ERISA severance plan is that the employee must signed a general release of claims.  How do you know you company has a severance plan? You can check your internal human resource portal or employee handbook.  All ERISA severance plans have to be filed with the U.S. Department of Labor.  Years ago I found this free website where you can research your employer. Insert the employer’s name in the site and go through the various plans listed. You are looking for a plan labeled with the word “severance” in it.  The plan severance plan code is “4i”.  If you find it listed, then you know a severance plan exists. Once you have identified your employer’s severance plan, make a written request to the Human Resources Department for a copy of the severance plan.  The HR Department has a legal obligation to provide a copy of the severance plan within 30 days of your written request.  You will find in the plan the amount of severance pay based on your years of service with the employer.  Don’t leave money on the table, but chances are the employer will remind you about your benefits, as they have a fiduciary obligation to you as a plan participant.  If you need a severance attorney, call our office and speak with one of our employment attorneys.

9. How to Predict When You Are Getting Fired

Hmmm, try your gut instinct.  Are you getting the awful feeling that your boss and coworkers have turned on you?  You may have been a satisfactory performer last year, but this year your rating sunk or needs improvement.  Or, you made a complaint to your supervisor or HR about your wages or unlawful discriminatory treatment, and suddenly your once friendly work place is not so friendly.  Maybe you just announced you are four months pregnant and you are getting the cold shoulder.  Worse, your supervisor makes pregnancy related comments and jokes.  Finally, if your coworkers and/or supervisors are openly hostile with you and use derogatory language directed at your gender, sexual orientation, race or age, then you know the crap just hit the fan and you need to speak to one of our employment attorneys.

10. Don’t Sign Anything When You Get Fired

Isn’t this obvious?  You should never sign anything when you leave your job. You should also not participate in any exit interview with the HR Department. No state or federal law mandates your participation in the exit interview.  What you need to do is speak with an employment attorney in our office who will figure out if the termination was lawful and whether the employer acted unlawfully prior to the termination date, i.e. demotions, discrimination, etc.

If anything mentioned above sounds like your current situation, or if you find yourself there in the future, Carey & Associates, P.C. can help! Our firm specializes in employment, wrongful termination, discrimination, whistleblowing, and more.

Contact us now!