Employment Law Attorneys
C’mon, Man! Employees Continue to Get Screwed Over

C’mon, Man! Employees Continue to Get Screwed Over

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 info@capclaw.com or call (203) 255-4150.

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements…

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.”[1] 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.[2] 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.”[3] 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 info@capclaw.com or call 203-255-4150.

Christopher S. Avcollie

[1] 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

[2] 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/

[3] Bianco, Marcie, “Britney fans angry at Justin Timberlake have a point.” CNN Opinion, February 10, 2021.

“Vaxed” is the New “Black”: Navigating Employer-Mandated Vaccinations

“Vaxed” is the New “Black”: Navigating Employer-Mandated Vaccinations

By Chris Avcollie

In 2021 there is a new status symbol that will determine who is “in” and who is “out” in many social situations. It’s not fashion or cars and it’s not your number of followers on social media. The new hot status for 2021 will be: “Vaxed” or “Un-Vaxed.”

As the FDA approved Covid-19 vaccines become more widely distributed over the next few months, the question of who is “Vaxed” and who is “Un-Vaxed” will start to take on tremendous importance. As new strains of Covid-19 spread we can easily imagine restaurants or stores with “Vaxed Only!” signs on their doors. One’s vaccination status could soon determine one’s access to schools, public conveyances, businesses, and churches. It may also determine where one can work.

As businesses and institutions grapple with the effects of the pandemic the wide availability of effective vaccines will force the issue of whether to require their employees to receive the vaccine in order to keep their jobs. (See related article Employer Mandated Covid-19 Vaccinations – Can They Do That?). For businesses in customer-facing industries like hospitality or food service, the question is pressing. Will anyone want to go to a barber that was not vaccinated? Wouldn’t customers feel safer eating at a restaurant where all employees are vaccinated? While many are awaiting the vaccine with anticipation, many have concerns about the vaccines and do not want them. Some are medically unable to receive a vaccine and others have personal or even religious objections to them. What right does an employee have to refuse an employer’s mandated Covid-19 vaccine? Will employees be fired for refusing? What can employer’s do to respond to valid and deeply held objections to a blanket vaccine requirement?

The basic rule is that in an employment at will situation an employer can require a vaccine as a condition of employment. Almost all employment in the US is employment at will. If an employee is a member of a union, then a vaccine mandate would be negotiated by the union, but would likely become a requirement at the end of that process. Even where an employee has an individually negotiated employment contract, those agreements often contain provisions that allow the employer to change company policies and job requirements, particularly for worker safety. Thus, in most all situations, an employer can require its workers to be vaccinated.

If it strikes you as outrageously unfair that employers can require you to undergo an intrusive medical procedure against your will and your only recourse is to give up your livelihood and sole means of support for you and your children, you are not alone. While most Americans are clamoring for this particular vaccine there is also widespread concern. Many women of child-bearing age have expressed objections based on the lack of longitudinal research on the effects of the vaccines on the reproductive system. Many people of color have expressed objections to the vaccine based on historic precedents of medical experimentation on minority populations. If the ability to force vaccinations on employees under threat of economic ruin seems to be too much power for employers, we can thank the “at will employment rule.” This is the great default principle of American employment law. It holds that employers can essentially do (or not do) anything they want to their employees provided they do not violate specific statutes. Under this rule, as long as they stay within the law, employers are a law unto themselves.

There are a few exceptions to this general rule allowing employer mandated vaccines. While the employment at will rule allows employers to require vaccines as a condition of employment, their vaccination policies must comply with the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other state and federal workplace laws. The question then becomes when do these laws prevent an employer’s vaccine requirement?

One limitation on an employer’s right to force vaccinations covers employees who cannot be vaccinated due to a disability. The ADA requires that if an employer’s vaccine requirement will force the termination of a worker who cannot be vaccinated due to a disability, the employer must show that the unvaccinated worker will pose a “direct threat” or will create a serious risk of “substantial harm” to the worker, co-workers, or the public. Only if that risk is significant and it cannot be eliminated or reduced by some reasonable accommodation can the disabled employee be terminated. The EEOC has provided some guidance on how employers should assess the potential risk of an unvaccinated employee including: assessing the duration, severity, likelihood, and imminence of the potential harm. If an accommodation such as masks, or a work from home option would reduce the risk, then the disabled employee should be accommodated.

While this exception is fairly easy to understand on paper, it might not be so easy to implement in the workplace. What if the only way to mitigate the risk and to accommodate the one disabled employee is to require all other employees and all customers to wear masks in the facility? Right now everyone expects to wear masks all the time anyway but what about when the mask restrictions could be lifted due to mass vaccinations? Will that still be a “reasonable accommodation?”

A second exception to the employer’s right to force vaccinations on their workers is carved out in Title VII. An employer must accommodate an employee’s sincerely held religious objection to a vaccine unless the accommodation causes “undue hardship” to the employer. Sounds fair enough. The trouble with this rule is that the definition of “undue hardship” is any accommodation that has more than a “de minimis” or “absolutely minimal” cost or burden to an employer. How will courts apply this rule in the example above, where a single employee with a religious accommodation can continue to work only if all employees and customers are provided PPE? As this example suggests, the “de minimis” standard could be very difficult to meet in the workplace.

While the EEOC is trying to develop a set of workable guidelines that accommodates employee’s rights under existing laws like the ADA and Title VII, there are no accommodations available for the employee who objects to vaccination based on personal concerns like racial disparities or lack of research on fertility effects. For most workers who object to vaccination for a host of personal reasons, there will be no option for dissent. “Shoot up and shut up” will be the rule for many.

There are times when public safety and the protection of our economy should take precedence over personal choice. I personally intend to get vaccinated as soon as possible whether my employer wants me to or not. (Carey & Associates, P.C. will leave it to the employee’s discretion about whether to vaccinate or not). It is important however, to consider the power dynamics and the broad implications of the employment at will rule when it invades the province of our bodily integrity and personal conscience. In a world where politicians are willing to substitute facts for politically convenient fantasies, it is easy to imagine these power dynamics leading to much more extensive invasions of personal choice. In the short term at least, “Vaxed” is likely to be the new “Black.”

If you would like more information about this topic, please contact our employment attorneys at Carey & Associates, P.C. You can also send an email to info@capclaw.com or call (203) 255-4150.  If you liked this article, please leave us a review HERE.

 

 

 

 

Are You Picking Up What We Are Putting Down? Let Us Know

Are You Picking Up What We Are Putting Down? Let Us Know

It dawned on me this morning that I have never really asked the 20,000 people on our blog list what you all think about the articles we are writing every week and the associated podcast episodes.  For the past 17 or so years, we have been producing insightful and informative articles to help you better understand the complexity of employment and constitutional law issues that surround us every day at work. Our point of view is from the trenches, armed in dystopian combat, not some lofty ivory tower.  Our approach is neutral, straight down the middle but veering off to one side occasionally when the issue is obvious.  Topics range from severance negotiations, forced arbitration, to asserting first amendment rights outside of work.

Yes, my intentions are very clear. I enjoy stirring the pot regarding employment issues, because I can and because there is just too little discussion about this enormous time expenditure we call working.  If you get something out of our articles that helps you deal with work issues or as attorneys (and there are a lot of you on this list) (and “honorable guests”) we help you expand the scope of view on employment law, then let us know what you think.  This morning’s epiphany was really a question. What are other people thinking about the same topics we are writing about?  Speech is free, express your opinion and get the discussion going. You can bet I will write about the responses you all provide.

We invite you to let us know by a variety of ways.  All of the responses will help us understand what is important to you and what is not.

Send us an email to info@capclaw.com with your comments and opinions about what’s on your mind.

Hey, you can even pick up the phone and call me directly at the office (203) 255-4150.

Please share our blog and podcast with your friends and like our facebook page.

If you feel our articles and podcasts have helped you figure out your own employment issues without using an attorney, great! I would really like to know, please post a review on our website Carey & Associates, P.C., (www.capclaw.com) and thank you in advance!

Have a great weekend!

Regards, Mark Carey

 

Civil Disobedience and the Workplace: The Economic Consequences of Political Conscience

Civil Disobedience and the Workplace: The Economic Consequences of Political Conscience

Podcast explores freedom of speech by political activists on January 6, 2021 when they stormed the Capital Building and their employer’s reaction – immediate termination of an at-will employee.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship. Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

What To Expect When You’re Expecting To Be Fired!

What To Expect When You’re Expecting To Be Fired!

1.  THINK OF YOUR SEPARATION/SEVERANCE OFFER AS A NEGOTIATION.
2.  REVIEW WHAT YOU ARE BEING OFFERED – USUALLY MONEY.
3.  CONFIRM THAT YOU ARE BEING OFFERED EVERYTHING YOU ARE ENTITLED TO
4.  ASK FOR A COPY OF YOUR PERSONNEL FILE – YOU ARE LEGALLY ENTITLED TO IT.
5.  CONFIRM WHETHER YOU HAVE AN ERISA GROUP BENEFITS PLAN WHICH COULD INCLUDE SEVERANCE BENEFITS.
6.  CONSIDER WHETHER YOU MIGHT HAVE ANY LEGAL CLAIMS AGAINST YOUR EMPLOYER.
7.  REQUEST TO BE RELEASED FROM ANY NON-COMPETE, NON-SOLICIT, OR OTHER RESTRICTIVE COVENANTS (IF ANY APPLY TO YOU)
8.  REVIEW NON-DISPARAGEMENT PROVISIONS AND ASK THAT THEY LIKEWISE PROTECT YOU.
9.  CONTROL YOUR FUTURE REFERENCE.
10.  ARBITRATION CLAUSES.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Civil Disobedience and the Workplace: The Economic Consequences of Political Conscience

Civil Disobedience and The Workplace: The Economic Consequences of Political Conscience

By Chris Avcollie

In 1849, Henry David Thoreau was imprisoned for an act of civil disobedience. Thoreau had broken local laws by refusing to pay a poll tax which he found to be unconscionable. The story goes that when Thoreau’s friend Ralph Waldo Emerson visited Thoreau in jail he asked, “Henry, what are you doing in there?” To which, Thoreau replied, “Waldo, the question is what are you doing out there?”

Even in a free country, there are often profound consequences attached to the exercise of political conscience. On January 6, 2021 hundreds of pro-Trump protestors stormed the Capitol Building in Washington, D.C. in an attempt to stop the congressional certification of the electoral college vote which elected Joe Biden as our next President. While the protestors themselves probably believed that their actions were justified or motivated by conscience, those who occupied the Capitol and participated in the riot that terrorized the nation and caused at least five deaths and many more injuries have been properly branded as criminals and insurrectionists.

But what do their employers think of their actions? And can their employers punish them for their activity?

Major news outlets reported on January 8, 2021 that a number of those individuals who participated in the siege on the Capitol have been identified by their employers and terminated from their jobs for their participation in the violent assembly. (See, https://www.wsj.com/articles/some-ceos-fire-rioters-call-for-president-trumps-removal-from office-11610070410 ). One employee of a Maryland based marketing company was prominently photographed wearing his employee name badge inside the Capitol during the riot. This employee was promptly terminated from his job “for cause.”

While the man wearing his company’s name badge was photographed inside the Capitol during the siege, several other employees were “forced” or at least asked to resign from their positions for their participation in the assembly, although they claimed that they only engaged in peaceful protest outside the building. Its not clear whether those employees would have been fired if they had not resigned.

Do employers have the right to terminate someone who is engaged in peaceful protest? What about not-so-peaceful protest? Why does an employer get to punish an employee for his or her political activity at all? Does the employer’s right to terminate kick in only when there is criminal activity associated with the protest? While many may not agree with the ideology that motivated the insurrection on January 6th, it is important to remember that Gandhi, Martin Luther King Junior and Thoreau also broke laws in the course of their political activism. Regardless of one’s political persuasion, why does an employer get to judge its employee’s political activism and mete out punishment for it?

Recently, the Wall Street Journal reported that employers have wide latitude to limit employee’s speech, both political and otherwise, that might offend other workers or impact the business.(See, https://capclaw.com/wsj-article-is-political-speech-protected-in-the-workplace-heres-what-you-need-to-know-quoting-mark-carey/ ). The general rule is that the First Amendment only prohibits the government from restricting speech not private employers. While government employees have some limited free speech rights outside the workplace (i.e. when the speech is of public concern and not related to the employment), most employers have a great deal of discretion in terminating employees for public activism both in and outside of work. Vaguely worded “employee codes of conduct” and other arbitrary company decrees are used to terminate employees who violate management’s sensibilities. (See, https://capclaw.com/the-employees-field-guide-to-protesting-what-you-need-to-know-before-the-rally/ ). While some states such as Connecticut have passed laws that seek to protect First Amendment rights, if the employer believes that the speech or activity interferes with job performance or the workplace relationships, the speech is not protected.

Where an employee’s political activism involves actual civil disobedience, the law  protects an employer’s right to terminate an employee for criminal conduct. While thirty-six states have enacted “Ban the Box” (BTB) laws which prohibit employers from asking about an applicant’s past criminal convictions on a job application, (some 30% of adult Americans have a criminal background of some kind) there is no law prohibiting an employer from conducting a background check after the interview or hiring process and refusing to employ someone with a criminal record. Bottom line: if an employer does not like what you did, they do not have to employ you.

While many may believe that the right to protest publicly and in defiance of laws one thinks are unjust is a right enshrined in the Constitution and the laws of our country, it is important to remember that that right does not include the right to be employed by a company or boss that disagrees with your views. While Americans may still enjoy the right to protest, we do not enjoy a right to be employed while doing so. As long as the law allows the “employment at will” rule to govern the employment relationship, all employees should be cautioned that public political protest often has a steep economic cost. Before you head out to “stick it to the man,” just remember the man can still “stick it to you” in the end.

If you would like more information about this topic, please contact Carey & Associates, P.C. or send an email to info@capclaw.com.

 

 

 

 

5 Ways to Beat Employer Performance Improvement Plans (PIPS)

5 Ways to Beat Employer Performance Improvement Plans (PIPS)

By Mark Carey

Really, you’re going to give me a PIP after my dedicated years of service to this company? That’s “bullshyte”! If this sounds recently familiar, it should be.  More and more and more employees are facing PIPs (Performance Improvement Plans).  (See related PIP articles we have written about HERE and HERE).  Here’s the bad news, the odds are you are going to get fired no matter how you react to the PIP. It’s like being unfriended or canceled, because your presence and contributions to the office are no longer valued.   The good news is I have a few ideas to promote your leverage and set yourself up for a severance/settlement package, even where one would never be offered to you. There is one catch, do not do this without an employment attorney.

According to SHRM (Society for Human Resource Management), a PIP “is a tool to give an employee with performance deficiencies the opportunity to succeed. It may be used to address failures to meet specific job goals or to ameliorate behavior-related concerns.” Ugh!  A PIP is a tool to set you up on a rotisserie and slow cook you until you are fired 60-90 days later!  I have never seen in all my years of practice a PIP that was even remotely justified. I am not alone in my disgust of this ancient and crusty management employment practice, Forbes published a story in July 2019 sounding the alarms entitled  “It’s Time We Finally Do Away With Performance Improvement Plans”.

A PIP is more like the red paddle in the grade school principal’s office that she used to enforce the rule of law through corporal punishment. (In reality, my principal was a gem of a lady, but you get the point!)  The PIP screams at you to comply, but for what? You were already working at a 110% capacity, and every performance review up to that point was exceeds or average. So what is the story here?  Is it your gender, sexual orientation,  race, age, etc. that caused you to receive a PIP?  Unfortunately, it is highly likely.  Yes, I am jaded, but at least I know the statistics and how routinely this happens to our clients.

As background for this article, I conducted a bit of legal research among employment discrimination cases that mentioned or discussed the use of performance improvement plans.  I wanted to reaffirm what I already knew to be true, that PIPs are used to set employees up for termination and courts often let employers get away with it.  Performance Improvement Plans are a means to an end-  the end of your job!  Although I enjoy working with my colleagues from the bench, in almost every case I found, the court upheld the validity of the PIP given to the employee. Why is that? You need to understand that Courts are extremely reluctant to second guess employers; they seek to avoid becoming Super-HR Departments.  I did discover a few cases where the performance improvement plan was viewed negatively by the courts, only because the employee was successful in demonstrating a discrimination case at the summary judgment stage of the case.  Specifically, and as I will show you below, the employee was able to factually demonstrate evidence of intentional discrimination in and around the administration of the performance improvement plan, i.e. the employee was able to establish the employer’s reasoning behind the PIP was pretextual or false.  However, the odds currently favor employers, and we seek to change those “Vegas odds” by empowering you with the following tricks of the trade.

Now with all of this information in hand, let me show you how to beat a Performance Improvement Plan.  FYI – I have thought about these comments over a period of weeks to ensure the following strategy points were realistic, practical and successful.

1. Never Sign the PIP Under Any Circumstances and Start Looking for Another Job

Employers always demand that employees sign their performance improvement plans. We advise our clients not to sign them, so as to avoid any level of consent or acknowledgment to the bogus narrative strung through the PIP by the employer.  You are getting fired anyway, so why worry about the threat that you will be fired if you refuse to sign it.  The moment you take a step in the direction to admit anything on the PIP was correct, or the very fact that your received one, your future employment case is doomed!  Receiving the PIP demonstrates you were put on notice of it and the employer will hold you to whatever bogus goals they established for you. I have seen this play out in court where a federal judge held my client to the PIP just because she received it, even though she did not sign it.  Hopefully for you the next job will be better and management will be more employee focused and enlightened.

2. Written PIP Rebuttals and Corporate Whistle Blowing

Do a 180 degree turn on your employer and show them in writing the PIP you just received is part of a systemic problem related to flawed quality control measures, clearly established violations of the Sarbanes-Oxley internal compliance rules, outright corporate fraud, and discrimination.  If they don’t pay attention, well then let them freeze in litigation hell with the authorities. Employers who receive internal complaints also face external scrutiny from the Securities Exchange Commission (if the event involves a material misrepresentation of financial information and is reported directly to the SEC), the U.S. Dept. of Labor (regarding wages) and the U.S. Equal Employment Opportunity Commission (regarding discrimination and retaliation, although in my experience getting the EEOC litigation department to pay attention is like pulling teeth).  Bottom line, if you are a true professional, then your demonstration of proper and ethical corporate practices via your PIP rebuttal and whistle blower claim will protect you from any future allegations of corporate malfeasance or spurious claims of breach of duty of loyalty and care (“aka” attack claims used by defense counsel to make you feel insecure).  You must not go down with the sinking corporate ship and your professional reputation must remain intact.  Afterall, you have personal financial obligations to protect.

3. An All Out Full Frontal Attack😊

I have a skiing motto amongst my knucklehead buddies, DROP IT LIKE IT’S HOT!  (also a song by the same name, listen here). This was on a sign posted before entering an avalanche prone area at Targhee in Wyoming.  When dealing with your unscrupulous employer regarding the PIP you just received, you are going to pull out ALL the guns.

First, get your facts straight, no I’m not kidding. Set your facts to paper in chronological order, because there are inferences, large and small, that flow through and between your fact pattern.  Start with the day you were hired and move forward to the date of the PIP and then beyond.  You want to specifically focus on your prior performance reviews, manager comments and your own comments. Pull the PIP accusations apart and factually rebut them contemporaneous with your fact pattern.  You also want to look around and see if anyone else in your department was treated more favorably than you in any way. Chances are they were. Internal corporate counsel and HR just do not have the time resources to monitor every employee/supervisor relationship.  Yes, there are bad eggs inside every organization- this I know to be true and it keeps my firm busy like bees.   Keep a wide eye for all possible protected classifications you may fall into and the classifications of your colleagues.  Is age, gender, sexual orientation, race, disability, sexual harassment etc. playing a part in the decisions your employer is making with respect to your job?  You will need to report factual situations where your colleagues were treated more favorably than you in your attempt to show how discrimination or retaliation was the real motive behind your supervisors’ PIP accusations.

Next, file an employment discrimination complaint internally to HR, copy to your boss and your boss’s boss. In one case a few years back, I sent the sexual harassment complaint to the CEO’s wife- it worked out in my client’s favor.   All it takes is a simple email stating you are being discriminated against.  Next, take your detailed factual chronology and file an administrative complaint with the EEOC and the relevant state agency.  These two acts will insulate you against immediate termination during the PIP and begin to build a case for retaliation discrimination when you do get fired or demoted.  Remember, internal complaints and complaints to the EEOC are not subject to google searches, so your claims are confidential at this point.

Now that you have effectively blocked or checked your employer’s nonsense, start to think about what you want to do with your new found legal leverage. Normally, our clients start negotiating severance terms, which will eventually lead to your signing a complete release and waiver of your legal claims in exchange for MONEY!  If you are lucky and have a good claim with well supported facts, you can negotiate the right dollar amount to transition you to the next job.

If you are not so fortunate and your employer continues to give you the cold shoulder, the next step is to file a lawsuit. I do it everyday, but for you it’s not so normal.  Also, you need to consider what effect if any having your name appear on a lawsuit out there on the internet.  People do it all the time, so you just need to get comfortable with this small but significant caveat.  Well, now that you are off to the races there is some hope of a settlement during litigation, as 98% of all cases settle at some point in the process. We live in an era of evaporating trials, which is a good sign that parties work out deals.  But if you continue to receive the cold shoulder, as we sometimes do in 20% of all cases, then settle in for a lengthy litigation and the associated financial expense.  Please remember to maintain your full frontal attack posture at every stage mentioned above, as psychology and public exposure play an enormous role in every case.  Good luck and drop it like it’s hot!

4. Fight With Facts But No Legal Claims

Ok, so you went through this article and you realize you don’t have any legal claims to stand on, what do you do?  You also can’t leave your job because you need the income.  This is a tough one and I see it quite often.  You just have to hunker down and face that freight train head-on.   Who knows, you may just survive the Vegas Odds.  Go through the PIP and create a word document, breaking down each section and write a rebuttal. Ignore any employer resistance to your filing a rebuttal or lack of space on the PIP document.  Under each accusation of poor performance, locate and list objective facts that demonstrate your point of view. Hell, throw in your contributions to the financial performance of the company over the past five years, i.e. you saved or made them money.  We will assume here that your performance was not flailing, but your employer wants to hire his colleague from another job to replace you.  All you can do is send a letter containing your factual arguments to each of the purported performance problems.  Send the letter to your boss, to your boss’s boss and to the HR Department.  I would also encourage you to dig down deep into your corporate culture and try demonstrating that you are committed to a lengthy career with this employer.  Show them you bleed corporate colors, but make it believable.  Next, get on the campaign wagon and start networking internally, letting everyone know you are as corporate loyal as it gets.  Finally, say some prayers and go buy a few lottery tickets.   Good luck, you’ll need it

5. Quit and Don’t Look Back- It’s Cheaper

This last strategy begs the question of how you define success here. Sure, you can hire a lawyer and fight the employer and potentially find yourself in a lawsuit and legal fees.  Not spending money on a lawyer is a practical option that most employment lawyers will not advise, but we do. Leave your employment immediately and save the time, expense and anxiety related to dealing with a PIP.  A PIP is really just an employer’s way of saying “here is the writing on the wall please leave”.  I actually prefer the employer just terminate the employee instead of putting her through an unnecessary and worthless process.  No one learns anything from a PIP, not the employee and not the employer.  There is no management epiphany that causes further efficiency within the organization.  What there are a lot of are scorched professional reputations and deeply diminished corporate cultures.  Really, who wants to work in an office that promotes this sort of thing, no one. Yet, management continues to follow this tortured practice.  Give me a break and give yourself a break- RUN!

If you would like more information about this topic, please contact Carey & Associates, P.C. and speak to one of our employment lawyers.  Or send an email to info@capclaw.com.

Oh Ye of Little Faith! Does the Company I Work for Have More Religious Freedom Than I Do?

“Oh ye of little faith!” Does the company I work for have more religious freedom than I do?

When it comes to freedom of religious expression in the commercial context, the corporation you work for may have more rights than you do. How is this possible? Well, as you may know, there is a peculiar legal doctrine that regards corporate organizations as “persons.” Although we all know corporations are not exactly “people,” the law treats them as if they were. This is what lawyers call a “legal fiction.” We know it’s not literally true but the law pretends it’s true to make things work. This particular legal fiction is the source of many unjust and inequitable laws. What is worse is that it is so deeply ingrained in our jurisprudence that people no longer question it. They should definitely start.

As it applies to the topic of protections for religious expression, our lawmakers and the United States Supreme Court have begun to take this legal fiction a bit too far. In the landmark case Burwell v. Hobby Lobby, 573 U.S. 682 (2014), the Supreme Court ruled that closely held for-profit corporations could be exempt from laws to which its owners object on religious grounds if there is a less restrictive means of furthering the law’s objective. Id. at 730-31. This ruling turns on an absurdly broad interpretation of a federal law called the Religious Freedom Restoration Act (RFRA). In Hobby Lobby, the Court recognized for the first time that a corporation could hold religious “beliefs.” While the decision does not explicitly state that corporations are protected by the free-exercise of religion clause of the First Amendment of the Constitution, we can someday expect to see that innovation. After all, the other “people” in the country have that right. It’s only fair. Corporations are people too, right?

The Court appears to base its reasoning in Hobby Lobby in part on the idea that by ascribing personal religious freedoms to corporations, the law is protecting the religious freedoms of the corporation’s owners. Id. at 706-07. But what of the rights and beliefs of the workers who make a corporation possible but whom are not privileged to own the company? Are their religious views considered when the company declares the tenets of its deeply held faith? No. Not at all. The owners are presumably the only entities within the corporation that matter, even where the corporation employs thousands of people. What if most of the employees who actually comprise the corporate entity hold entirely different religious beliefs than the owners? Why is a company Christian if its workers are mostly Hindu or vice versa? Can a corporation undergo a religious conversion? Apparently the religious beliefs of a corporation are determined solely by the individual or individuals holding a controlling interest. Surprise plot twist: Court creates more privileges for the wealthy.

This doctrine begs the question: If the owners of the corporation already have all of the individual religious liberties that all other individuals have, why do they get to carry their beliefs into the marketplace and exercise them as a corporate entity as well? The owners of closely held corporations now have an extra set of religious liberties not available to those who do not own corporations. What is the source of this extra set of religious prerogatives?

Hobby Lobby is not a lone anomaly. Apparently bakeries also may have sincerely held religious beliefs that need protection. In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission (2018), a private cake decorating business claimed that it had the right to ignore Colorado’s civil rights laws prohibiting discrimination based on a customer’s sexual orientation because of its sincerely held religious beliefs. The Court did not directly answer the question as to whether a business has a constitutional right to discriminate based on its owner’s religious beliefs. Instead, the Court decided that in Masterpiece, the Colorado law was unenforceable because the Commission expressed an impermissible hostility towards the bakery’s sincerely held religious convictions. Apparently, the fact that bakeries are simply commercial pastry manufactories that cannot hold personal beliefs except by some absurd metaphysical alchemy was not an important fact the Court needed to acknowledge.

In a case currently pending before the Supreme Court, Fulton v. City of Philadelphia, the Supremes must decide whether the Constitution protects a private corporation’s right to discriminate against LGBTQ couples in violation of the law. The plaintiff in Fulton is Catholic Social Services (CSS), an organization that was hired as a contractor for the City of Philadelphia to place foster children in suitable homes. CSS believes it has the right to violate its contract with the City by intentionally discriminating against LGBTQ couples based on its religious beliefs without losing its contract rights. Fulton challenges the long-held doctrine that neutral laws that apply equally to religious and secular parties without singling out people of faith for inferior treatment are constitutional. CSS also challenges the government’s right to regulate its own contractors in the public interest.

While CSS should not be compelled to enter into any contract that will cause it to violate the religious beliefs of its organizers, when it voluntarily seeks to become a government contractor, it should not be exempt from the laws and regulations which govern such contracts. It certainly should not be exempt from the terms of the contract it voluntarily entered! In Fulton, CSS seeks to bend the public laws to conform to its religious beliefs. In the sphere of public commercial activity, what interest is served by ascribing personal religious beliefs to an organization? Rather than asking the question: Does a private religious organization have the right to dictate how the government conducts its business(?); we should rather ask: Does any organization engaged in commerce in a public market have the right to assert personal religious beliefs to begin with? How will the Supreme Court’s new religious conservative majority answer these questions?

So given that our laws are carving out an expanding set of religious liberties for corporate entities in the public marketplace, what rights do the employees of a corporation have to exercise their religious preferences in the workplace? The answer: almost none. While corporate entities controlled by people with religious views may enter the public marketplace and assert their religious prerogatives at the expense of the government and the general public, a worker at a corporation has very few rights to express or protect his or her sincerely held religious beliefs.

Under Title VII of the Civil Rights Act of 1964, employers are required to provide a reasonable accommodation for an employee’s sincerely held religious beliefs or practices, but only if the accommodation needed does not impose an “undue hardship” on the employer. A reasonable religious accommodation is a modification to a company policy or workplace that permits an employee to practice or express his or her religious beliefs. Accommodations often include minor schedule changes, exemption from vaccinations on religious grounds, relaxation of dress codes, or lateral transfers.

The key to understanding the employer’s obligation to accommodate, however, lies in the use of the term “undue hardship.” In this context, “undue hardship” is defined basically as any factor that disrupts the workplace in any way or that has a more than de minimis cost to the company. Thus, if an employer must incur any identifiable cost or endure any inconvenience to its business, it may deny or ignore an employee’s request for religious accommodation.

Thus, while the Supreme Court has carved out vast areas where a private corporation may assert its religious preferences in the public marketplace to defy the laws and regulations enacted by duly elected government bodies in the interest of the public, an employee cannot assert his or her religious preferences at work even in defiance of a private company’s arbitrary and idiosyncratic policies unless the accommodation has no impact on the business whatsoever. Under the RFRA the government must show that a law is the least restrictive means of accomplishing the law’s purpose in order to enforce it in the face of a private company’s claim of religious imposition. If laws passed by democratically enacted bodies must yield to a corporation’s religious preferences, why doesn’t a private company’s policies have to yield to an individual’s religious convictions? Answer: the company has more religious freedom than its individual employees in the American marketplace.

Corporations are commercial entities formed by leave of the government. They are “things” not “people.” How do we know? They are bought and sold legally. People cannot be bought or sold any longer in this country. When corporations are formed they must seek the permission of the state and local government wherein they are located in order to operate. State and federal laws and regulations are specifically enacted to regulate, limit, and control the conduct of these entities. They are not private persons with individual liberties and “beliefs.” Very few corporations are owned and operated by a single individual. Most corporations involve a multitude of individuals to function, each with his or her own sets of beliefs and liberties.

Further, when one or more individuals form a corporation, the primary objective and chief benefit of that formation is to shield the owners from individual liability. In essence, the whole purpose of the corporate form is to legally distinguish the corporate entity from the individuals that control it. The Supreme Court rulings in Hobby Lobby and the ruling urged by the plaintiffs in Fulton would eliminate the very distinction between owners and entity that the law provided when the corporation was formed. These rulings are not just illogical. They are fundamentally inequitable. Let’s start treating corporations as what they are: things.

If you would like more information about this topic, please contact one of our employment lawyers at Carey & Associates, P.C. at (203) 255-4150 or send an email to info@capclaw.com.

DOWNLOAD YOUR COPY OF OUR
We're here to help with COVID-19 questionsRead More