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.
Ugh, you got fired by a computer! Artificial Intelligence has arrived in the workplace at breakneck speed. Decisions about your performance and termination are being made by artificially intelligent machine learning computers. I enjoy sci-fi but the news of computers making decisions about performance and terminations has serious legal implications you should be concerned about.
Artificial Intelligence in Use Today
Companies such as Google and Bridgewater Associates have built powerful computers that render decisions about performance and termination. Currently, AI computers operated by Google and Facebook have been found to discriminate based on race or gender. See NYTimes Article July 9, 2015. Companies in the recruitment field have begun using AI in recruiting. For example, the new start up company Pymetrics built an AI machine to remove bias in the recruiting process.
A Very Disturbing Future For Employees in Employment Discrimination Cases
Today, employment discrimination cases are determined by direct or circumstantial proof of intentional discrimination against a variety of protected classifications of employees, i.e. sex, age, disability, race, sexual orientation etc. Employment Attorneys, courts and juries routinely examine the human interactions underlying factual evidence to determine if an employee was terminated or adversely treated because of an unlawful bias or intent to discriminate held by a supervisor, a.k.a. a decision maker. What happens when you replace the “human” decision maker with an Artificially Intelligent computer? Answer, chaos!
I predict that employers will shift the decision making to a computer and eliminate the decision making from their managers and human resource personnel. This AI HR Bot will conduct internal investigations, interview employees and witnesses and render a decision to terminate. All these functions will comply with current state and federal laws required of all employers. Most importantly, the AI HR Bot will make the “final” decision to terminate the employee, leaving employees and their attorneys, helpless to prove some human being held a discriminatory bias against them. You could expect this future to arrive in one to three years.
What can you do to prepare for the future when computers terminate you? Computers function on data, so employees should create lots of positive favorable data inputs for the AI computer to examine. For example, you should use company email to document abuse and make complaints to your manager. You should also use emails to write rebuttals to factually baseless performance reviews that are done on-line by your manager. Save all of your supporting data on your own home computer. Finally, you should hire an employment attorney to guide you through the process to develop a case to support your lawsuit or severance package.
If you have employment law questions or need help with specific workplace issues, contact Carey & Associates, P.C. Our employment lawyers can consult with you regarding your issue and offer guidance on the next steps.
Parting ways with an employer isn’t always a cut and dry process. Especially if you’ve invested years of your time and ideas to move the company forward. If you’ve recently been let go by your employer and are unsure how to proceed with the severance package you’re being offered, here are the top 5 things you should know about severance agreements and your options.
1. Have an Employment Attorney Review the Severance Agreement
If you had a medical condition, you would seek the advice of a physician. The same logic should apply when you have a legal situation such as an impromptu termination where the employer provides a severance package. There is a direct correlation between retaining an employment attorney to negotiate your severance package and the amount of the increase in severance pay. I have seen many people over the last twenty years attempt to negotiate their severance agreements by themselves with little success in the way of increased severance. Employers simply say, “This agreement is a take or leave it deal,” when employees attempt to negotiate the agreement on their own. An employment attorney can dramatically modify an existing severance agreement to make the deal fair and balanced, including the removal of one-sided non-competition agreements. The employment lawyer can also increase severance pay by developing legal claims you did not know existed.
2. If You Want More Money, You Need a Legal Claim
Face it, if you want more money in severance pay from your employer, you need to hire an employment lawyer. An employment attorney will review your detailed factual narrative and ask very pointed questions to develop legal claims that can be used to increase the amount of severance pay you will eventually receive. The employment lawyer can also diagnose the illegal activity committed by the employer and confront the employer with a sworn affidavit supporting a comprehensive notice of legal claims. When the employee substantiates his/her case in this manner, the employer often times increases the amount of severance pay the employee will receive under the severance agreement.
3. You Can Extend COBRA Coverage
An employment attorney will often time the length of the severance pay with the length of the COBRA period. This is a routine provision that most employees do not know they can increase. In fact, you can obtain COBRA coverage for up to 18 months.
4. Confidentiality is Key with Severanc Agreements
When you receive severance compensation you provide a full release of claims against the employer that is completely confidential. Employers shield themselves against potential liability and publicity by using broad confidentiality provisions that cover you, your attorney, your financial advisor and your family. An employment attorney can narrow the confidentiality so that it is only applicable to you, relieving the unnecessary burden on your accountant, attorney and your family.
5. Legal Fees Paid By the Employer
The employer gave you the severance agreement to review with an attorney. Most employers include a provision that you acknowledge you have been given the opportunity to review the agreement with an attorney. Then, the employer must pay your legal fees to review their one-sided severance agreement. The agreement should be modified to include coverage for your legal fees.
If you’re looking to get the most out of your severance agreement and don’t know where to start, contact Carey & Associates, P.C., we concentrate in employment, wrongful termination, discrimination, whistleblowing, and more. Get the severance you deserve. Contact us now!
“I encourage you to speak open and honestly.” An indirect quote from most any professional coach while coaching executives to “better communicate,” or how to “bond” an executive team, or how to “team build.” However, if you as the employee actually take this advice and speak honestly…most likely, your truth will be used against you. That seems to be the unfortunate culture of many work environments. Your boss does not want to hear how you feel, or whether you are trying to get pregnant, if your wife cheated on you, your child is sick, if you don’t like another employee, if another employee is not doing their job, if the hand soap in the bathroom gives you a rash, or if you are just in a bad mood because of the moon cycle. Really, what your boss cares about is the bottom line. Are you profitable for the company? Do you play nice in the sandbox? So long as you shut your mouth and swallow your true feelings, you are a “team player.” The minute you become “open and honest” and stir the pot you are automatically considered trouble. And companies don’t like pot-stirring trouble makers. And eventually, they will find a way to fire you.
The question is, why is this the culture and whether it can change. I’m not going to recite history, talk about equal rights in the work place for men and women, glass ceilings, or the like. But the culture was most likely created in an era where businesses were run by men and women were encouraged to work in the home. Big tough men, who don’t have feelings, are robotic and only care about making money and working their way up that corporate ladder. Feelings? What feelings? Men aren’t allowed to have feelings in the work place. Fast forward and the workplace evolved. Women began running companies too, sitting on the Board and bringing home six figure salaries. Another wave of robots. However, in this day of equality, men and women are treated equally…both are equally not allowed to express feelings in the workplace. So, shut your mouth and keep lying…because your truth will get you fired.
Ever want to look at your boss and say, “You want the truth? You can’t handle the truth!” And what you really want to say is, “You are a pig-headed ego-maniac and your treat your employees like garbage.” Or you work for someone so utterly incompetent that you want to tell him that his business plan will do nothing but drive the company into the toilet. For some, that would be “open and honest.” So while your boss or a professional coach may encourage “open and honest” communication, think about what they actually mean. I suggest that it actually means swallow your emotions and let’s talk “open and honestly” about work related issues that have nothing to do with emotion or feelings. So beware. Sometimes speaking “openly and honestly” actually means shut your mouth and keep lying. Or rather, be honest about the bottom line and how (or whether) you can take care of action items that your boss cares about. Your boss is your boss, not your counselor.
People talk and employees have rights. They have the right to work in a hostile free environment and an environment free of discrimination. And while, Connecticut is an at-will state, meaning you can be fired for no reason or a reason, the reason for termination cannot be discriminatory. With that….shouldn’t you be able to express your concerns openly and honestly without being concerned that your boss will hold them against you? Yes, yes you should. And an employer who does differently, is probably discriminating against you. So while dishonesty works (meaning it keeps you employed) and your truth may get you fired, you may have been fired for an unlawful reason and THAT is wrong. Work place culture may not change any time soon, but there are laws to protect you. Laws that allow you to speak open and honestly so you don’t have to shut your mouth and keep lying.
by Kirsten M. Schneider*
*This is my opinion. No professional coaches, executives, pot-stirrers or quiet individuals were harmed in the creation if this opinion piece. This is not meant to be legal advice or counsel. This is just my opinion….me being “open and honest.” That’s it.
S. 2189 (112th): Protecting Older Workers Against Discrimination Act
This was the proposed legislation by democrats in the Senate on March 13, 2012 to amend the Age Discrimination in Employment Act (ADEA), after it was gutted by the United States Supreme Court in the Gross v. FBL Financial Services, Inc. decision. Click HERE to read the newly proposed legislation.
Why is this proposed legislation important to you? Well, if you are forty and older, and you get fired from your job and you think it had something to do with your age then pay attention! Currently, your chances of proving age discrimination in court are not great! Unless you have statements, recorded or otherwise, from your boss that you’re too old to work, asking when you are going to retire and they say they want younger employees to replace you, you have a serious problem! Why? The Gross decision by the Supreme Court now requires that you prove that your age was the “but-for” reason for the termination you experienced. The old standard required you to show that your age was a substantial motivating factor, which is easier to prove. In fact, some states like Connecticut still follow the older rule.
The Congress and President Obama can mandate new socialized health insurance, raise the minimum wage for federal contract employees, but they cannot protect the “baby boomer” generation from the carnage of corporate greed and bias. Wait, wasn’t that the same generation that protested the Vietnam War, went to Woodstock, chided the political establishment etc. Wake up people and get off your butt, go protest the injustice that is sidelining thousands of well qualified and experienced employees-just because they (you) are getting older. If you don’t then the following will continue to happen over and over and over and over and over again. When you hit fifty-plus (50+), your employer begins a process of reviewing your age, compensation, costs premiums for health insurance and then sets up a plan for termination. This generation of employees are getting royally screwed but no one cares!
Ask yourself this question: Are more qualified and experienced today, than you were twenty years ago? If the answer to the question is yes, then why are you being fired before you retire at sixty-five? It’s your age!
How do I know all this? I have been watching this all too frequent occurrence in the cases I litigate and research. Call or email me to discuss (203) 255-4150 or email@example.com.
Click HERE to discover more about the newly proposed legislation and then call your congressmen to lobby your protest for the bill. Click HERE to connect with your U.S. House of Representatives. Click HERE to connect with your U.S. Senator.
Obviously, feel free to share this blog article and I hope it goes viral for your sake.
I am seeing an immediate increase in the number of calls reporting termination of individuals over the age of forty (40). There appears to be a new trend to terminate older workers, with an estimated average age of 50, with lows into the lower forties!! The firing of older workers because they are paid more than younger workers is legal to a relative degree, so long that age was not taken into account.
There is a pattern in the cases I am seeing, which is a little too obvious. Each individual is set up for termination using a negative performance appraisal and/or a performance improvement plan. In all cases to date, there is a complete lack of an objective factual basis for the negative performance allegation. In other words, the employer is bullshiting you and is lying. This is called pretext, where the employer is deliberately making false and broad conclusions/judgments about performance. You usually know you have one of these situations when the employer offers a six month severance package. If I told you any more, I would be disclosing litigation tactics.
But my favorite theme is the “subjective belief theory”, you can quote me on this nametag. Here, the employee is told she is not a team player, cannot run a team, possesses a lack of leadership- you get the picture. No matter how hard you try, being thrown under the bus hurts. In some cases, where there is no age discrimination, the performance improvement plan (PIP) is a signal that it’s time to look for another job.
Read about Age Discrimination at http://capclaw.com/home/articles/251
If this short article caught your attention, you better know who is on your side, because the company isn’t.
Mark Carey be reached at firstname.lastname@example.org