A record 22 million people were laid off in one month since the coronavirus pandemic shut down large portions of the U.S. economy as of the week ending April 16, according to the Wall Street Journal. The estimated current employment rate is 13.5%. But were all those layoffs really due to the corona virus or did employers use the pandemic as cover to get rid of employees for other reasons, maybe unlawful reasons. This is the big question many unemployed Americans are now asking. Please review the following frequently asked questions and see which applies to you.
FAQ: Were you recently furloughed, laid off, demoted or terminated due to COVID, but your co-workers remain employed?
FAQ: Is your Employer still operating and profitable, yet you were laid off or had your compensation reduced due to a business decision to reduce costs or eliminate your job position?
FAQ: Were other younger employees retained, while you were furloughed, laid off, demoted or terminated?
FAQ: Were you laid off or terminated and not offered any severance or insufficient severance?
FAQ: Were your unemployment benefits interfered with?
FAQ: If you were unable to continue to work because you were sick, because a family member was sick or because you have young children at home, were you permitted to take FMLA leave or were you instantly laid off or terminated?
FAQ: Were you the only one furloughed, laid off, demoted or terminated or due to COVID, even though your Employer is calling it a “reduction in force”?
FAQ: Do you think your Employer was looking for an excuse to get rid of you?
If you answered yes to any of the above, your seemingly straightforward COVID-based termination may be unlawful. Unfortunately, the majority of Employees in the U.S. are “at-will”. This means that employees are at the absolute and arbitrary whim of their employers and they may be demoted, terminated or otherwise treated adversely for any reason or no reason at all. The exception to the anything goes rule of an at-will employment arrangement is that employees may NOT be treated unlawfully.
If you have recently suffered an adverse change in the terms and conditions of your employment amidst the COVID-19 crisis, you may still have viable claims against your employer for unlawful or wrongful treatment. COVID-19 is not and should not be a catch-all excuse or defense for employers’ bad behavior and even a crisis of this magnitude does not relieve employers of their obligation to treat employees lawfully at all times. If something does not feel right to you about the circumstances of your change in employment, it is prudent to speak to an employment attorney and review the fact pattern surrounding your work situation. It is in your best interest to discern whether your employer may be using COVID-19 as a sham or cover for otherwise unlawful behavior.
Unlawful or wrongful acts that may entitle an employee to monetary damages for claims against their employer will usually fit in one of three scenarios. Employers actions can be shown to be unlawful if they:
1) violate or fail to comply with any legislative mandate, act or
2) breach a valid contract or agreement; or
3) discriminate, harass or retaliate based on a protected class trait.
COVID-19 does not give employers a green light to violate laws, ignore contracts or discriminate against employees, and a termination under any one of those scenarios might be a wrongful one.
Scenario 1 – Statutory Violations:
Employers must abide by all existing laws and statutes, especially as they apply to the COVID-19 pandemic. It is the employers’ obligation to stay abreast of and comply with all new mandates imposed and legislation enacted in response to COVID-19, including, but not limited to enhanced FMLA, the CARES Act and the expansion to the Unemployment Compensation Act. This is in addition the existing laws that have long protected employees from discrimination and retaliation such as Pregnancy, Sex Harassment, Sexual Stereotype, Disability, Age, Whistle Blowing and Family Medical Leave, to name just a few. Thus, any analysis of whether your termination was lawful and proper should begin with a review of the facts relative to the controlling law and any revisions and updates to those laws. If you identify any facts in the events leading up to your termination that just do not seem right, you may have uncovered the hidden basis for your termination. For example, you got a good review last fall and received a bonus in January, but in March you were terminated without explanation. The small window between the January bonus and March termination should be closely examined for any facts supporting bogus performance issues, favorable treatment given to other employees and not you and replacement by coworker who is substantially younger and lesser qualified. The examples are endless, but you get the gist. See further discussion below.
Scenario 2 – Breach of Contract:
Even an at-will employment arrangement must be considered in light of any existing employment contracts or agreements between the employer and employee. In addition to or in the absence of a formal written employment contract, Courts may look to such documents as offer letters, on-boarding communications, employee handbooks, published severance plans and emails in order to demonstrate the existence of any enforceable covenants between the parties that may speak to such topics as causes for termination, compensation, bonus, healthcare, long term incentive compensation and severance. Thus, where a valid contract can be established as to any of your employment terms, your employer is bound by those terms and any deviation may be an unlawful breach for which you might be able to seek and recover damages. So, if you have been terminated or otherwise caused to separate from your employer, even if you are at-will and even amidst the COVID-19 crisis, it is imperative that you review all of your documents in order to discern that you are being treated lawfully according to the terms that were agreed upon and promised to you.
Scenario 3 (THIS IS THE BIGGIE) – Discrimination Claims:
Even if you are an at-will employee who was let go as a result of COVID-19, you may still have a claim for wrongful termination against your employer if their decision to let you go was at all based on discriminatory motives. Discrimination is unlawful and where an adverse act is taken against you because of such protected traits as your age, gender, pregnancy, race or national origin, disability, perceived disability, associational disability or sexual orientation, you may have legal claims against your Employer.
In the absence of direct evidence of discrimination or the smoking gun as we call it, discrimination can be shown if you are a member of the protected class and you were treated adversely (demoted, furloughed, laid off or terminated) under circumstances which give rise to an inference of discrimination, i.e. circumstances that show discrimination was the substantial motivating reason for the adverse act taken against you. The way an employer can defend itself against such a claim and rebut that inference is to show that there was a “legitimate” lawful reason for the termination, such as performance issues and other cause such as a business decision or reduction in force.
Certainly, you can all see where this is heading. COVID-19 and the related financial fallout provides your employer with the legitimate business reason it needs to “lawfully” terminate you. However, this cannot be accepted at face value. In fact, if you are able to show that the supposed legitimate reason relied on by employer was a sham or cover for discriminatory motives, you may prevail on your claims against them in a severance negotiation. There are surely many situations where an employer, especially during these challenging economic times, needs to make a tough business decision to lay off employees or institute a reduction of force, and where their decision to do so is legitimate and truthful.
Employer May Have Used Covid-19 As An Excuse to Fire You
However, there are also many instances where certain employees are selected within the context of a business decisions, based on discriminatory motives. For example, the company makes the “business decision” to lay off only the older employees, or only the female employees or only the pregnant employees. In addition, there might not even be any explicit or formal business decision to reduce costs or a effectuate a reduction in force, but your employer may still feel safe engaging in discriminatory behavior knowing or hoping that any terminations taking place now will be viewed as a necessary and legitimate, due to the Covid-19 business climate. Again, we cannot allow employers to use this catch-all defense to what maybe culpable and unacceptable discriminatory behavior. If you see something, say something to an employment attorney.
There is no doubt that both employers and employees are presently finding themselves in the most difficult and tenuous circumstances. However, employers, in response to COVID-19, seemingly have absolute power and new founded legitimacy to make discriminatorily targeted employment decisions against their at-will employees, under the guise of a business decision. And this is very concerning and unlawful. If you are in a protected class because you are over the age of 40 or fall into any of the other class of protected traits discussed herein, and have seen a change to your employment that you do not believe was made as the result of a good faith business decision, cost reduction, reduction in force in response to COVID-19, or other legitimate basis, we encourage you to speak to an employment attorney immediately. You may be entitled to reinstatement, severance or increased severance or settlement dollars relative to your discrimination claims for wrongful termination or other possible improper acts by your employer.
Carey & Associates, P.C. is currently providing complimentary consultations for potential new clients who are experiencing any employment related issues or believe they might have possible employment claims, as a result of the COVID -19 pandemic. Feel free to contact our office if you need help with that or any of your employment matters.
By Liz Swedock
COVID-19 is interrupting everyone’s lives these days, worldwide, and for many of us it is negatively impacting our jobs. Even while we are trying to achieve the work-from-home revolution, an unprecedented number of workers are experiencing frightening job stressors, including drastically reduced workload, changes in job responsibilities, dropped job responsibilities, and job loss. While not every negative impact can be fixed, there are a few legal protections that all workers should be aware of.
Is your job being impacted in a way that is unethical, or possibly illegal?
The sad reality is that the global recession is going to quickly motivate employers to start firing people. Businesses are panicked right now about their financial bottom line, and those salaries for all the people who aren’t in the office are looking daunting. While it may be legal for employers to lay people off due to purely financial concerns, all employees should be their own watchdog for any layoffs, terminations, demotions, or changes in responsibilities that appear to be unfairly – or unequally – happening.
What is unfair or unequal? Often the answer is discrimination. These days most people are aware of the protected classes of employees. They include older individuals (over 40), disabled individuals (physical or mental), gender, race, national origin, religion, and others. It is illegal for employers to single out any of these classes of individuals for negative treatment.
It’s often not obvious if an employee is being illegally discriminated against, which is why workers should arm themselves with what to look for. Sometimes illegal mistreatment is blatant, such as bullying and inappropriate remarks. But it can also be done through much more subtle means, like removal of responsibilities, being taken off projects or sidelined, exclusion from important meetings, or old-fashioned favoritism.
We all know what’s coming. As the economy is disrupted, companies are going to be forced to start eliminating employees. So, keep your eyes and ears open and watch out for anything that seems wrong. Did an entire project get cancelled or an entire team laid off? That kind of activity might be perfectly legal. However, does it seem like only the older employees or those with medical conditions are suffering the consequences? Has your multi-gendered and multi-national team suddenly become, well, a lot less diverse? These types of selective actions could be crossing a line into illegal territory.
Are you being denied rights that you are entitled to, particularly medical leave or accommodations?
The headlines are warning us that a huge percentage of the population should expect to catch COVID-19, a/k/a Coronavirus. This means that an even larger number of people can expect to be impacted by the virus, including if family members get sick.
If you or an immediate family member gets sick, you may be entitled to take medical leave while your job is protected – meaning, you cannot be demoted or fired. Federally, the Family and Medical Leave Act (FMLA) guarantees employees up to 12 weeks of leave per year if you’ve been an employee for at least one year and worked a minimum of 1,250 hours over the prior year. FMLA leave is unpaid, which means your employer is not required to pay you while you are on leave, but is required to hold your job for you until you return. Any negative impact on your job, such as by giving your work away or demoting you because you took leave, is illegal.
In Connecticut, this protection is expanded to 16 weeks of leave for any employee who works 1,000 hours during the prior year. In New York, since 2018, employees may be entitled to up to 10 weeks of paid family leave, up to 60% of their average weekly pay. This is one of the strongest protections in the country.
Can you take FMLA leave any time you or a family member gets sick? For a simple illness, such as a cold or the flu, the answer is usually no. However, you are entitled to leave for any “serious health condition,” which is defined as “an illness, injury, impairment, or physical or mental condition” which involves “inpatient care” or “continuing treatment by a health care provider.” Sound confusing? It is. Put quite simply, it’s not a black-and-white rule about when legal protections kick in for any individual medical situation. The bottom line is that if you, or a family member, has a medical problem that requires repeated, or ongoing, medical treatment, you probably qualify for protected leave.
It’s also important to know that individuals can take this medical leave in pieces, or “chunks.” This is called “intermittent leave.” What this means is that if you qualify for leave, but you can work sometimes, you can still be eligible for the protections provided under these laws, most importantly that you cannot be fired or demoted while utilizing your leave. This is extremely important for people who have ongoing medical conditions that require short periods of treatment.
Lastly, every employee with a medical issue should understand how the law defines “disability” and what an “accommodation” is. Legally speaking, disabilities can be temporary! You can be legally disabled if you have a medical condition that “substantially limits one or more major life activities,” and “major life activities” includes working. Of course, this means that many people who qualify for FMLA medical leave will also qualify under the law as disabled.
So, what protections do you have if you are legally disabled? A complete answer here would require far more space and time than I’m tackling in this article. However, the short answer is that your employer is required to cooperate with you so that you can do your job. In legal terms, this is called an “accommodation.” If you can do your job with a reasonable accommodation, then it is illegal for your employer to fire you, demote you, or do anything else to hurt your employment.
Just like with medical leave, it’s different for each person. However, an example how these legal systems work might be something like this – Person A contracts Coronavirus. Unfortunately, person A has the aggressive symptoms of the virus and needs to be hospitalized for a week, and then required to quarantine at home for a few more weeks. While they are hospitalized, Person A would be entitled to FMLA (and state) leave while they are in the hospital, and, most likely, while they have to self-quarantine at home. At the same time, Person A would most likely also qualified as disabled. This means Person A would have the following protections: the employer has to hold Person A’s job while person A is out, and, while Person A is recovering, the employer is required to offer Person A accommodations so that Person A can do Person A’s job. In other words, Person A cannot be fired, and must be given options to enable Person A to perform the job.
The takeaway here is to know your rights and stand up for yourself! Don’t expect your HR department to know the law or give you good advice. Even the most well intentioned employers or human resources people often don’t know how this process works, or what they are legally required to provide to you. You need to speak to an employment attorney to get the right advice, especially now during this Coronavirus pandemic.
If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at firstname.lastname@example.org.
By Mark Carey
What do you mean I can be fired for any reason or no reason at all? Who made up this rule? Why do I have to follow the employment at-will doctrine? Well, you don’t and there are several reasons companies and employees should shift to a modified approach that satisfies the expectations of both the employer and the employee.
I can honestly say that over the past twenty-three years handling employment law cases for both executives and employees, my clients are really confused and bewildered by the employment at-will rule and the significant financial impact it creates when employers decide to let them go. Many clients always state they understand the basic rule that they can be fired at any time and they can leave at any time. But beyond that they know absolutely nothing about why the rule came into being or more importantly how they can negotiate around it. When a termination occurs the adverse impact is clear, the uncertainty of the break in career trajectory and financial resources.
At the executive level, I routinely negotiate employment contracts that provide for termination “for cause” and “termination for good reason” by the executive. This is standard in the industry at the executive level. However, I do confront the hybrid cases, where the employer “shoves” in the provision identified as “termination for any reason”. Well, that sounds like the employment at-will rule doesn’t it, because it is. Enter the LeBron James Rule. (I made up this rule). When negotiating employment contracts, employees needs to identify their leverage factor; it is what makes the employer throw money or equity in order to induce the hire. LeBron James can write his own ticket to work wherever he finds the highest bidder, and he can demand the termination for cause and good reason provision with a severance payout. Find your leverage and do not be shy about asserting it.
Well you might say not everyone is as fortunate as LeBron. I disagree and this is what has bugged me for many years. We all too often knee jerk react and accept this stupid and ill-conceived rule that your employment is as good as the last minute or hour you just worked. Some say, just be grateful you have your job etc. Give me a break! There is a new way to handle this.
I propose getting rid of the employment at-will rule and replacing it with the modified form we see in executive employment contracts. Specifically, employees can be fired for cause or terminated by the employee for good reason. If the good reason event occurs, then the employer pays a severance amount to take care of some of the financial issues related to your transition to new employment. If you land a job, your severance stops, as this is fair in an economic theory way of thinking. “Termination for cause” means you violated the law and company policies. “Termination for good reason” means the employer materially changed your title, salary, reporting structure, location of your office etc.
Now here are several positive effects of eliminating the employment at-will rule based on my research into this issue.
- Management vs. Everybody: Eliminating the employment at-will rule will get rid of the large divide between management and employees. Literally, this is the trust divide. If you scare employees into believing they can be fired any time, management is not creating a loyal and trusting environment that spurs innovation and creativity which will push the company forward in profound economic ways. Employers want employees to be focused on their work, but this rule is utterly distracting and frankly non-motivating. The rule erodes any semblance of entrepreneurial creativity among the team. Employers need to seriously rethink this one.
- HR vs. Everybody: Honestly, did you really believe the Human Resources Department was there to help you. I make it my mission to point this out to every client I have. They (HR) have a duty of loyalty to the employer and have absolutely no interest in doing what’s right for you. By eliminating the employment at-will rule, employees will closer align themselves with HR and HR will do a better job of “caring” for the very employees that make up the company; without employees you have no company. Where did all those employers go astray?
- Eliminating Fiefdoms: Does your boss have their favorites? Do they hire from the last place of employment? Are there any “brown-nosers” in the team who believe the only way to the top is to “work it” what ever that means to you. It’s childish and it’s irritating to say the least. You know what I am referring to. Why do other employees do this and why do supervisors encourage it? Eliminating the employment at-will rule will breed meritocracy, but not the type Bridgewater Associates thinks they are creating. Employees will begin to feel compassion for their coworkers and work more closely as a team or family, instead of putting a knife in their back at work. Employees will work with management for the company common good; all will prosper together not just the few.
- Reducing Discrimination: If you create trust, honesty, transparency and vulnerability, then you create lasting relationships where employees want to stay and work. Employment discrimination bias arises from many reasons, but my theory is that if you get rid of the employment at-will rule you will gut the walls that employees build in their work environments with the sole goal of getting ahead. Think about it. If you say something or do something negative about another person to make yourself look better in the eyes of your employer, you will do it to get ahead. That negative comment or idea could be motivated based on gender, age, race, religion or manipulation like seeking sexual favors in exchange for career advancement. We need a sea change to course correct our current direction. The status quo just doesn’t work anymore; although it may work for employment attorneys like myself as we are very busy policing this garbage. If you see something, say something. Have the courage to speak out, you will be protected.
Finally, here is my shout out to older employees. If you are an older employee “we honor your wisdom and experience, you are worth every penny we pay you”. Employees who are in their fifties and even sixties are well paid because they have many years of experience to offer, more than someone twenty years their younger. I say we should keep them on board and ignore the bottom-line cost issues and focus on their economic impact these older wiser employees can create for the company. Management must stop terminating the baby boomers because the economic argument that fosters this decision making is not financially sound and never was to begin with. It’s like a bad drug addiction. Remember, wisdom still is a virtue for a reason.
When will this change occur? When management realizes they can make greater revenue multiples by providing better job security. They will have to stop listening to management side defense employment counsel who banter incessantly to maintain the employment at-will rule for every client. The world isn’t flat, or at least until someone very smart said it wasn’t. Same goes here, management should adopt this new rule and maybe just maybe they will convince themselves that #employees matter.
If you want more information about employment law issues, please feel free to contact Mark Carey, Carey & Associates, P.C., at email@example.com or call the office at 203-984-5536.
Very often, someone will come to our office having just been fired, feeling that the reason given by their employer just doesn’t make sense. For example, a seasoned marketing executive loses his job shortly after his company brings in a team of young consultants. When the marketing department turns its focus exclusively upon social media, his role and responsibilities are gradually minimized. Eventually, he is terminated and replaced by several of his own former trainees.
In another instance, a Senior Benefits Administrator with 30 plus years of stellar performance is suddenly criticized by her new manager as, “incompetent” and “not a forward thinker”. She is placed on a performance improvement plan (PIP) and her workload is increased so much that she can no longer keep up. Meanwhile, the company posts a job ad for an entry level Benefits Administrator. After the new hire has shadowed her for a few weeks, her manager fires her for failing the PIP.
In yet another instance, a Strategy Analyst is abruptly demoted after over a decade in his supervisory position. He is assigned to “project work” as his role in the firm is slowly marginalized. The firm’s turns its employee recruitment efforts on finding “young”, “energetic”, “enthusiastic” new graduates. His compensation is drastically reduced when the firm decides to allocate the lion’s share of the annual bonus pool to its new hires. When he complains, he is warned that he could easily be replaced by a kid right out of school for a fraction of his salary.
Age discrimination occurs when an employer treats an individual who is qualified for their job differently because of their age. The federal Age Discrimination in Employment Act (ADEA) protects job applicants and employees 40 years of age and older from discrimination on the basis of age. Many states, including Connecticut, have similar laws protecting older individuals.
You may be a victim of age discrimination if:
Your performance reviews start going down as you get older;
Your employer makes frequent age-related comments;
You are disciplined for behavior that younger employees are not disciplined for;
You are passed over for promotions in favor of younger employees;
You are reassigned to unwanted or unpleasant tasks while younger employees get better assignments;
You are passed over for hire in favor of a younger job candidate or replaced by younger worker.
But proving that you were demoted or fired because of your age can be a difficult task. First, direct evidence of discrimination, such as your boss telling you he is firing you because you are too old, is very rare. Most employers will try protect themselves by carefully documenting a narrative explaining why your firing had nothing to do with age.
In each of the real-life examples above, the employer set up a pretext of poor performance to cover up its true discriminatory motives. If you are suddenly and inexplicably given a poor performance review or placed on a PIP, your employer may be building a pretext to pave the way for your termination. Knowing that your performance has remained consistent, you are blindsided by your supervisor’s sudden and inexplicable criticism. Attempting in vain to save your job, you then try to to work even harder. By the time you are terminated, you feel somehow responsible for failing at your job. It’s not your fault, it’s your age!
In addition to prohibiting employers from treating older workers differently than their younger counterparts, the law also prohibits policies and practices that have a “disparate impact” on older workers. This particularly insidious type of age discrimination occurs when an employer’s seemingly neutral policies have a disproportionately adverse impact upon older workers. For example, a company announces that it will be laying off all employees above a certain salary level. This policy has a disproportionately adverse impact on older workers who generally earn larger paychecks.
But courts are reluctant to second guess a company’s layoff policy, where the employer can show that it is a “business necessity”, in this case, cost-saving. In order to win a disparate impact claim, an employee would then need to bring forth evidence of an equally effective, but non-discriminatory way for the company to achieve the same goal. The cost-saving “business necessity” excuse makes disparate impact claims particularly hard to prove. Older workers tend to earn higher wages than younger workers by virtue of their added years of experience. Making the situation even murkier is that the impact of these “cost saving” layoffs tends to fall specifically on older workers in middle to upper middle management positions. In a case like this, the company’s officers, also over the age of 40, decide to get rid of its long-term managers and replace them with younger workers at lower salaries.
If any of these scenarios sound familiar and/or you just received a severance package, you should consult our employment lawyers. Please call (203) 255-4150 or email firstname.lastname@example.org.
The next recession is now here, depending on the of source of information or this source. The Federal Reserve is reversing interest rate hikes to soften the economic expansion and the unemployment rate is at a 50 year low. We are well past the cyclical ten year timeframe as recessions go. What is your strategy to preserve your job in the face of this new recession? What is your strategy if and when you are laid off?
You are probably thinking, “what strategy?” You get up, go to work and hope you can continue to remain an at-will employees until the end of the new pay period, under the presumption you have no control over your job. Better yet, you planned on retiring from your company in the distant future. On the other end of the spectrum, there are employees who think their longevity with their employers will insulate them from any headcount reductions during recessions. Both viewpoints are wrong and employees can control their employment outcomes during a recession.
5 Strategies To Save Your Job During a Recession
The following strategies are followed by our clients when they see the “writing on the wall” by their managers. Although some clients never see the messaging from their employer, we do. Depending on how soon you pick up all the clues determines which strategy to pursue. Hint, the sooner you speak with an employment attorney the better. If we are engaged earlier in the process, we can evaluate and develop an aggressive strategy that will force the employer to maintain your employment and/or pay a larger severance package with more favorable terms.
Plan Ahead and Gather Intelligence From Managers and Coworkers
Are you proactive about your employment or do you follow the wait and see approach? Becoming proactive with your employer means obtaining objective feedback from your managers and coworkers. No, I am not referring to the annual performance review or 360 reviews. A proactive employee will develop an initial assessment of his or her own performance by quietly engaging in one on one discussions with managers and coworkers about their working relationship and performance. You will need to keep detailed notes of these conversations in order to track the information over time and over various contexts. Forget about the formalities of the annual review or the vague performance metrics employers follows. I am talking about all the intel you can gather by having a straight up ever day conversation with your manager and coworkers. Examine the body cues such as facial expressions, tone of voice and the context of conversations in relation to those cues. Observe more instead of being reactionary or defensive. The better you are at this task, the more intelligence you will pick up, as your manager or coworker will not know you are gathering information. Once you collected this information, you will need to strategize how to position yourself as a thought leader, influencer, leader and over-all get the job done kind of employee. Lead by example and always remain the consummate professional during all interactions with your employer and coworkers.
Ironically, your employer is collecting similar information about you and your coworkers. In a recent article from SHRM, “A good way to begin is by collecting information about the organization’s workforce that can be used for long-range planning. ‘[HR] should be looking at the data, knowing who is where in their careers, who is where in their teams’… ‘Are people ready to move into the next position? Are they happy where they are?’ Review job descriptions and tasks and determine whether responsibility for those tasks can be more evenly distributed throughout the team. By understanding the big picture, HR leaders can advise business leaders on how to ready the workforce for future changes without resorting to morale-damaging layoffs.”
File Internal Complaints of Discrimination to Maintain Your Job
Once we determine you are may be the victim of employment discrimination or have other employment claims, we will advise you about bringing these claims to your employers attention without escalating to an external governmental agency. The main idea here is to engage in a protective activity to force your employer to “back the heck off” and cause them to reevaluate your potential termination. Our longest standing record to keep an employee employed using this method is two years (my opposing counsel in that case was not happy, but I was not there to please him).
If necessary, you may need to file your discrimination claims with governmental agencies in order to preserve your legal rights. The same antiretaliation laws apply and employers will back off for a limited period of time in order to avoid you asserting an easy to prove retaliation claim.
Dealing With Performance Improvement Plans (PIPS)
Combatting those inaccurate, one-sided and self-serving performance improvement plans. We wrote about this issue in Are Performance Improvement Plans (PIPS) Illegal? A PIP is a clear indicator you will be terminated and you will need to engage an employment attorney ASAP!
Severance Negotiation Based Years of Service
This strategy is relatively straight forward. If you are slated for termination in a layoff, your employer may have a severance plan governed by ERISA, a federal statute that governs these plans. Essentially, an ERISA severance plan spells out the amount you will be paid a salary continuation based on the number of years you worked for the company. There is one catch, you will need to sign a waiver and release of all your legal claims against the employer in order to receive the payout. You will also need an employment attorney to review the settlement agreement to insert favorable terms or get rid of unfriendly terms like noncompetition agreements. Make sure when speaking with an employment attorney that he or she is an ERISA attorney, as there is a difference. Our ERISA attorneys know how the statute works and will even point out in certain cases that you can create an ERISA plan based on one employee, “you”, even though the employer never created an ERISA plan. Engage us to learn more.
Getting Rid of That Noncompete Agreement on the Way Out
Great, you will be getting terminated but your employer stuck you with a noncompete, either at the start of your job or as part of the severance agreement. What do you do? The noncompete does not benefit you at all, only your employer. Now you have to navigate away from jobs you would normally apply for given your years in the same industry. Is this fair? No. Someone has to pay the utilities, mortgage and household expenses, but do not count on your employer to do you a favor. I have long taken a stand against these selfish one sided agreements and forced employers to rescind them or obtain an order from the court to void them. We can help you remove your noncompete agreement with your employer and make you a free agent in the job market. We will challenge the validity of the agreement with the employer directly and if the employer does not back down, we will take them to court through what is called a declaratory judgment action. Essentially, we ask courts to void the agreement due to lack of intention by the employee to enter into the agreement, aka a lack of consideration.
If you need more help planning for your future employment issues, please contact an employment attorney in our office. Employment law is all we do.
On February 14, 2019, after three full days of trial testimony, a federal judge in Connecticut denied an employer’s (Graham Capital Management in Darien, CT) motion for injunction because the employer could not demonstrate any harm beyond their mere “insecurity” about what the employee, a quantitative financial researcher, would do with recordings made during company business meetings. See full Court Decision Denying Injunction here.
The employee Steve Bongiovanni, age 56, filed an age discrimination lawsuit in Connecticut state court on December 29, 2017; he remained employed after the lawsuit was filed. Bongiovanni alleges his supervisor Ed Tricker, age 33, made the following discriminatory remark, [w]hy should we pay you so much when we can hire some young kid right out of college for $150K?” Under state and federal age discrimination laws, Mr. Tricker made an unlawful direct statement implicating not only Mr. Bongiovanni’s age but also the fact he was paid to much. Not surprisingly, Mr. Tricker denied the statement during cross examination. As far as direct evidence goes, it does not get any better than Mr. Tricker’s age based statement. Mr. Bongiovanni was later fired on October 1, 2018 for recording company meetings in attempt to capture evidence to support his age discrimination and retaliation claims.
The Court denied the employer’s injunction motion based on the following findings. “It is worth noting that the content of the audio files is sketchy and significantly limited in scope when compared to the content of confidential information accumulated in Bongiovanni’s head over years of employment with GCM. Therefore, Bongiovanni’s possession of these recordings does not significantly affect his ability to misappropriate GCM’s proprietary information.” In Connecticut, it is legal to record nontelephonic conversations with your coworkers so long as “you” consent to the conversation.
The Court went on to hold, “Bongiovanni argues that his intent in making the recordings is clear from his testimony. He testified in a believable and convincing way that his purpose in making the recordings was to support his discrimination claims against GCM. Indeed, when GCM challenged Bongiovanni’s right to unemployment benefits, the Connecticut Employment Security Appeals Division Referee found that Bongiovanni “did not knowingly violate the employer’s policy.” Moreover, Bongiovanni submits that he has no intention of utilizing the recordings to compete against GCM and no intention of disclosing the recordings to any person or entity outside of GCM. Bongiovanni has offered to stipulate with GCM to a protective order that would effect the exact confidentiality GCM seeks here through injunctive relief. Accordingly, Bongiovanni contends that GCM has failed to demonstrate any threat of disclosure by Bongiovanni to a third party.” Strangely, when Bongiovanni’s attorneys offered to enter into a protective order regarding the same company information, the employer objected!
“During the course of the three-day hearing, testimony from GCM supervisory employees focused on the primary threat of harm caused by Bongiovanni’s removal of recordings from GCM’s premises: insecurity.”…“Bongiovanni is not competing with GCM. Indeed, to date, he is not employed by anyone, much less a competitor.”
“As the court noted during the hearing, it is willing and able to order Bongiovanni to return his copies of the recordings to GCM to remedy any danger of insecurity. Moreover, as discussed above, Bongiovanni has offered to stipulate to the return of his copies of the recordings. Nevertheless, GCM is not seeking the return of Bongiovanni’s copies of the recordings. The problem for GCM is that the remedies it does seek – that Bongiovanni be enjoined from (a) using GCM’s confidential information or trade secrets in any manner or for any purpose, and from (b) disclosing GCM confidential information or trade secrets to any person or entity outside of GCM – will not prevent the harm of insecurity illustrated by GCM’s testimony.” “The instant case is one more step removed, as no evidence demonstrates that Bongiovanni is actively misappropriating from GCM”
“The court understands GCM’s wariness of Bongiovanni considering his secret recordings and discrimination lawsuit against the company. However, “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. GCM’s mistrust of Bongiovanni is not evidence of irreparable harm sufficient to warrant the injunctive relief sought by GCM. Accordingly, GCM’s motion for preliminary injunction will be denied.
During the course of the proceedings, Bongiovanni’s counsel Mark Carey, was asked by GCM’s counsel on three separate occasions to enter into a stipulated injunction; all such requests were rejected by Bongiovanni. As argued during the preliminary hearing, GCM filed the complaint and motion for injunctive relief against Bongiovanni only to create a defense to his age discrimination lawsuit.
Please contact Mark Carey if you would like to discuss your employment law situation.
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.
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.
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!
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.