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

Three Reasons Why You Should Not Accept Severance Pay

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

Reason 1: Confidentiality Clauses and Clawbacks

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

Reason 2: Non-competition and Non-solicitation Clauses

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

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

Reason 3: Severance Amount Is Too Low

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

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

Get in touch today!

 

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

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

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

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

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

Release of Claims/General Release

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

Amount of Severance

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

Non-compete

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

Expiration Date

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

Disparagement and Confidentiality

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

Bridging Pay or Set-off

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

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

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

Get in touch today!

 

10 Things You Should Know About Employment in Connecticut

10 Things You Should Know About Employment in Connecticut

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

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

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

2. Connecticut Employees Allowed 16 Weeks Unpaid FMLA Leave

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

3. Connecticut Employees Have a Right to Personnel Files

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

4. An Unfair Employment Termination is Not Necessarily Illegal

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

5. Independent Contractors Have Rights Too

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

6. The Legal Effect of Quitting Your Job

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

7. Employees with Criminal Records Are Protected

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

8. You May Have a Legal Right to Severance Pay

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

9. How to Predict When You Are Getting Fired

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

10. Don’t Sign Anything When You Get Fired

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

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

Contact us now!

5 Things Connecticut Employees Should Know About Non-Competition Agreements

5 Things Connecticut Employees Should Know About Non-Competition Agreements

If you have a non-competition agreement (also known as non-compete) with your employer, it’s important that you understand the information which can be used to legally destroy the agreement.  Here are factors the courts here in Connecticut use to analyze non-compete agreements.

1.    Employee Must Have an Intention to Enter into Non-compete Agreements

No one can make you sign an agreement. An employee must intentionally and voluntarily consent to entering into a non-competition agreement.  But why would any employee ever want to do that.  These agreements are one sided and only protect the employer.  If your employer forces you to sign an agreement under threat of termination, you do have rights.  Once you leave and work for a competitor, your old employer may come after you. You can successfully argue that the non-competition agreement was a sham or a take it or leave it agreement. Again, why would you ever want to enter this type of agreement?  Courts routinely relieve employees from non-competition agreements here in Connecticut based on this argument.

2.    The Non-compete Agreement Must Be Reasonable in Duration

Every non-competition agreement must be reasonable in duration of time. We have seen compete periods of up to five years. Courts in Connecticut have held that one and two year limitations are reasonable.  However, this is only one factor in the court’s analysis and it is not dispositive.

3.    The Non-compete Agreement Must Be Reasonable in Geographic Area

Every non-competition agreement must be reasonable in geographic scope.  Larger employers set the geographic scope to be worldwide and nationwide.  Smaller employers use more localized areas such as 15 miles from each office, an example would be a real estate office.  The Courts here in Connecticut will analyze this as one factor, but it is not the controlling factor.  Courts will not enforce a non-compete if the company has several offices in Connecticut and restricts employees to 15 miles from any office in Connecticut; effectively barring employment in Connecticut.  William Raveis Real Estate is a company that uses this type of non-compete geographic scope.  Recently, the Court informed Raveis that this form of agreement is unenforceable.

4.    The Non-compete Agreement Must Not Limit the Employee’s Ability to Work

The biggest factor in whether a non-compete would be enforceable is whether the agreement limits the reasonable ability of the employee to obtain work in his or her chosen profession.   If the agreement is too lopsided in favor of the employer, Courts here in Connecticut will void the agreement.  Courts typically review the protections afforded the employer to protect against competitive behavior versus the employee’s right to work and make a living.  Each case is fact and context specific.   The next item on the list provides the solution regarding the balancing of interests between the parties.

5.    Strategy to Escape Non-compete Agreements

If the employer has a non-compete, we always look to determine if the employer enforces these agreements consistently.  The employer’s burden is to show it consistently applies the agreement to everyone. But if some employees leave with non-compete agreements and start a competitive hedge fund in competition with their former employer, like Bridgewater Associates, Courts will deny protection to the employer. Go to the Connecticut Superior Court website and look up the employers actions to sue employees.  Also ask around and see if other employees who have departed received nasty cease and desist letters when they went to work for a competitor. If they did not receive a cease and desist or were not sued in Court, this information becomes your leverage to argue your non-compete agreement is not legally enforceable.

The main argument we always use is that the employee never intended to enter the agreement, thus there was no legal consideration or glue to bind you to the agreement.  This is a basic contract issue.  You will need to draft a sworn affidavit that explains when you received the agreement, had little if any time to review it, did not consult an attorney, you could not negotiate the agreement and the employer conditioned your job unless you signed the agreement.  We routinely send the signed affidavit to the employer along with a very detailed legal argument. Employers either forget the matter or try to push back with a cease and desist letter, assuming you went to work for a competitive employer.  We will also file suit here in Connecticut against the employer to get the noncompetition agreement to be declared illegal and unenforceable.

Are you currently looking for help with a non-competition agreement or have other employment law questions? At Mark P. Carey P.C., our employment attorneys are here to provide information and help to all Connecticut employees.

Contact us today!

 

Top Five Things to Know About Severance Agreements

Top Five Things to Know About Severance Agreements

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!

New York Times Article Mentions Mark Carey: “Bridgewater’s Ray Delio Spreads His Gospel of ‘Radical Transparency'”

New York Times Article Mentions Mark Carey: “Bridgewater’s Ray Delio Spreads His Gospel of ‘Radical Transparency'”

[Picture Attributed to the NYTimes]

On Sunday, September 10, 2017, the New York Times published an article captioned as “Bridgewater’s Ray Dalio Spreads His Gospel of ‘Radical Transparency'”.  The article purports to be a fuller examination of Dalio’s social experiment at Bridgewater Associates in comparison to similar articles by the New York Times.  The above article appears on the eve of his September 19, 2017 publication of Principles: Life & Work.  In the article, I was quoted as stating, “[t]his whole transparency and truth-seeking thing is juxtaposed with the fact that they intentionally secretize all interactions with employees from public view.”

I enjoy taking issue with Dalio’s principles and the adverse personal impact they have had on employees at Bridgewater Associates.  From my vantage point, I can see exactly what takes place inside the organization, including the fallout from poor, arbitrary, discriminatory and self-minded management decisions. Yes, Bridgewater is transparent to …an employment attorney like myself.

Can’t Get In Synch- Your Fired!

Frankly, I cannot take Principles seriously given the ample contradictory evidence I have seen. For example, Principle 20 is titled “Constantly Get In Synch”.  I have repeatedly read accounts that this principle is used to throw other employees under the bus.  Employees are too quick to hear the other side and grade others as “not getting in synch”, resulting in a negative score in their personnel file.  Under the same umbrella, Principle 26 states “recognize that conflicts are essential for great relationships because they are the means by which people determine whether their principles are aligned and resolve their differences.”  I have seen cases where Bridgewater has used this principle to deter employees from making legitimate discriminatory complaints regarding their own employment, only to be terminated shortly thereafter.  I have seen legitimate discrimination cases where Bridgewater took no action to resolve them internally before the conflict erupted into a legal dispute, or maybe that was the intended result.  This result conflicts with Principle 25 which states “Recognize that getting in synch is a two-way responsibility”.  I have only seen employees who have felt the brunt of the one-way communication policy that exists at Bridgewater, which becomes even narrower when employees escalate to management when they “can’t get in synch”. Principle 36 states “If you can’t understand or reconcile points of view with someone else, agree on a third party to provide guidance. This person could be your manager or another agreed-upon, believable person or group who can resolve the conflict objectively, fairly, and sensibly. This mechanism is a key element of our culture and crucial for maintaining a meritocracy of ideas.”  Honestly, the only objective and believable person in the conflicts brought to my attention was ….well me!  If your manager is discriminating against you, please don’t believe that management at Bridgewater will take your side.  You will be tossed to the curb without notice under the accusation that your refused to “cross-over” to the other side or you weren’t a “believable” person.

Trust in Truth is Misinformation

 “Trust in Truth” is the number one principle at Bridgewater, but nothing could be further from the truth. Dalio states “being truthful, and letting others be truthful with you, allows you to explore your own thoughts and exposes you to the feedback that is essential for your learning” (Principle 2) and “openness leads to truth and trust.” (Principle 4).  If these three laudable values are uniformly and consistently followed by the company, then the following practices violate all of them.  Bridgewater uses confidentiality and arbitration agreements to quell anyone from expressing the truth about what internally occurs at this company.  Any employee leaving the company for any reason is forced to sign a one-sided settlement agreement that contains a confidentiality provision.  The company demands such confidentiality in exchange for severance pay, settlement money, releases from noncompetition agreements or to receive profit sharing payments, no different than any other company.   Dalio and the company should be openly transparent with the public about internal employee complaints, not shield them forever in confidential settlement agreements and in private arbitration filings. This is especially true when Bridgewater is the fiduciary of public funds.  How can “we” the public trust in Dalio’s truth when “we” are not being given the full weight of the evidence to decide for ourselves; we can’t and we are not in synch!  More important, how can “we” confirm that employee feedback was taken seriously and the company learned from its own mistakes? As long as there is no openness, there is no trust among “we the people”.

What Do Honey Bees and Bridgewater Associates Have in Common?

What Do Honey Bees and Bridgewater Associates Have in Common?

If you believe in the natural order of things in the environment, nature will take care of itself all on its own.   When mankind introduces unnatural externalities into the orderly flow of evolution, fundamental changes develop that alter the natural order in nature.  Take honey bees and Bridgewater Associates for example, each have been infected with a chemical or unnatural pathogen that is slowing destroying them; don’t mess with Mother Nature.

Honey Bees and Neonicotinoids

I raise honey bees at my home, caring for about 10 hives each year. Bees are a bewildering microcosm of chaos but in reality they are a highly efficient hierarchical system of organized labor supporting their beloved queen bee.  Honey bees function just fine left alone. They will raise their brood into worker and drone bees.  In this culture the females run the show and everything turns out sweet as honey. By the way Drone (male) bees serve only one limited purpose, to help the queen produce more bees.  There is no talking, complaining or rating systems among the employees, just a system of chemical pheromones and directional dances that make the hive hum and maintain an adequate balance sheet of honey food stores which my neighbors and I enjoy. Honey bees are born with a coded instinct to get along, just like employees (i.e. the golden rule).  Then enters MAN, who seeks to disrupt the natural order of bees with a new language and culture. To yield more crop production and make lawns green as the emerald isle of Ireland, man introduces chemicals that interfere with the language, culture and natural order of bees.  Please stop using pesticides on your lawn. Not only are pesticides slowing killing you, they are deadly to honey bees and other pollinators. No bees, no food, no you!  Learn a new vocabulary word- Neonicotinoids. Connecticut and the European Union is moving to completely ban this epidemic use of the chemical, which has been proven to cause colony collapse in bees.  I can personally attest that Neonicotinoids kill bees, I lost 20-30 hives in the past three years because my fellow citizens treat their lawns with this chemical.  I hope for a better future and continue to raise bees.

“Principles” Are Not Working at Bridgewater Associates

Then there is Bridgewater Associates, located less than three miles from my office. I am not saying the company ever used pesticides on employees, but maybe they used a psychosocial pathogen to infect their culture, aka “The Principles”.  The company and its founder have introduced an unnatural externality into the work place previously never seen in the working world.  With the introduction of a new language and culture, which I comically refer to as “Newspeak”*, the company’s founder Ray seeks to re-order the natural order of human interaction at work- impacting 1500 employees at its’ two campuses in Westport, Connecticut. The company’s Newspeak presumes we are weak and dysfunctional and we need to be fixed. Bridgewater Associate employees must reconcile themselves with the founder and leader “Ray”, who is on a self-promotional advertising campaign these days to compel future disciples to follow him on his legacy, to buy into the Principles.  When you force employees to hold ipads and rate one another during every human interaction (only the negatives and not the positives) something seems strangely unnatural. The employees must follow Ray because they have no choice. Either follow or exit the hive after two years or less with significant handcuffs related to confidentiality and noncompetition.  Employees are people, not machines processing big data. They have feelings, emotions, disabilities, and sometimes it is just OK to be vulnerable and weak.  Presumptively, employees seek out encouragement, optimism and uphold a personal desire to succeed in their careers.  Principles or Newspeak seeks to prey upon the weak and injured and suck dry any semblance of empathy and “Compassion”, a Buddhist concept (Bodhicitta or “enlightened mind”). Yet Ray wants to sell his brand of Principles to every corporation and we should all be concerned.

(*“Newspeak” was a phrase used repeatedly in George Orwell’s infamous novel 1984 and fully described in the Appendix to the novel. “Newspeak was the official language of Oceania and had been devised to meet the ideological needs of Ingsoc or English Socialism…The purpose of Newspeak was not only to provide a medium of expression for the world-view and mental habits proper to the devotees of Ingsoc, but to make all other modes of thought impossible. It was intended that when Newspeak had been adopted once and for all and Oldspeak forgotten, a heretical thought—that is, a thought diverging from the principles of Ingsoc—should be literally unthinkable, at least so far as thought is dependent on words…For the purposes of everyday life it was no doubt necessary, or sometimes necessary, to reflect before speaking, but a Party member called upon to make a political or ethical judgment should be able to spray forth the correct opinions as automatically as a machine gun spraying forth bullets. His training fitted him to do this, the language gave him an almost foolproof instrument, and the texture of the words, with their harsh sound and a certain willful ugliness which was in accord with the spirit of Ingsoc, assisted the process still further.” Id.)

Contact Mark Carey at mcarey@capclaw.com.

“Wait, We Never Said That”- Employer Misrepresentations

“Wait, We Never Said That”- Employer Misrepresentations

It’s day one of the new job and upon arrival you suddenly realize you may have the wrong address or the wrong employer.  Everything the new employer represented to you during the interview is either false or a half truth.  Your new employer has lied to you about your new position, salary, responsibilities, location or some other material aspect of the job that lured you into accepting the job offer.  But wait, you just notified your former employer that you quit and they already hired someone else to replace you. What are you going to do?

Employers misrepresent information about potential job offers all the time.  The purpose of the misrepresentation is to lure employees in the door who would not ordinarily accept employment if they knew the real deal going on at work.  For example, a common situation we see is where the employer represents the job duties to the candidate but once hired she discoverers she will actually be performing a different role altogether.  In another example, the employee is hired for the job she applied for, but discoverers the employer’s financial situation is not great and the employee struggles in the new position due to lack of resources.  In a different example, the employer states it does not require employees to sign noncompetition agreements. However, on the first day the employer tells you the job is contingent on signing a noncompete agreement.  You sign because you have no choice, but a year later when you leave, the employer reminds you of the noncompetition agreement.  You are upset because you are told you cannot work in your chosen career all because the employer lied to you and is now threatening you with a nasty cease and desist letter from the company attorney.

The problem employees experience is what to do about the misrepresentation when they discover it.  You can quit your job and find a more reliable employer.  Prior to accepting employment, you should investigate your employer by searching for legal cases on the internet filed against the company for fraudulent or negligent misrepresentation. If you find a case arising from the same company office you are applying to, you can ask the potential employer about similar issues in your job offer and see if they have cured the previous representational errors, without ever bringing up the legal cases you found. You can also go to glassdoor.com for colorful comments about the company, but remember, information contained on that site is full of mine fields. Be conservative, use the information you find to help you make an educated decision whether or not to accept the new position.   Normally, employees discover misrepresentation claims after they have been terminated and only after they speak with an employment attorney, typically as part of a severance negotiation.

Aside from quitting, the only real way to confront the employer is by using an attorney to assert claims of fraudulent and negligent misrepresentation either through a confidential settlement negotiation or the filing of a lawsuit.

There are two forms of misrepresentation claims. Fraudulent misrepresentation arises where the employer intentionally omits information or discloses information it knows is not true.  In this claim, you need to prove the employer made a knowingly false representation of fact and the representation was made to induce you to act on the information and you did to your detriment.  Negligent misrepresentation is similar, but here you need to prove the employer knew or should have known that what it represented to you was in fact false but said nothing about it to your detriment. Courts around the country apply the same basic law regarding both of these claims.

If you decide you want to engage a lawyer and confront the misbehaving employer, you will need to get your facts straight.  You should write out your facts in a chronological narrative.  Your attorney will notify the employer and attempt to resolve the case without litigation.  We advise our clients to use litigation only as a last resort.  Many employers will also want to settle these claims primarily to avoid bad press and increased future risks caused by litigation.

If you need more information about this subject, please contact Mark Carey at mcarey@capclaw.com or 203-255-4150.

Four Ways to Get Out of Arbitration Agreements At Work

Four Ways to Get Out of Arbitration Agreements At Work

You may not know it, but your employer duped you into signing an arbitration agreement. Buried in all that paperwork when you started, was a hidden clause that said if you have a legal dispute with the company, you are required to file a private arbitration case and you waived your right to a jury trial in a public court.  That does not feel good right?  Use of arbitration agreements has skyrocketed out of control. (October, 2015, the NY Times). There are ways to escape this corporate nonsense.

1.         You Must Have the Intention to Agree to Arbitration
Arbitration is not required or mandated when there is no agreement to arbitrate.  An employee cannot be compelled to arbitrate unless he or she agreed to do so. The intent of both parties lies at the heart of the issue of whether an arbitration agreement should or should not be enforceable.

2.         An Employer Cannot Force You Into An Agreement to Arbitrate By Fraud or Duress
If an employee can show some substantial relationship between the fraud committed or the misrepresentation made by the employer and the arbitration agreement, a court will void the agreement.  Basically, if you lack the intent to agree to arbitration by way of demonstrating you were tricked into the agreement in some way with false representation, then you will not be forced into arbitration.

3.         Unconscionable Arbitration Agreements Will Not Be Enforced
If you can show that the making of the arbitration agreement was unconscionable in some way, meaning you never meant to enter into it in the first place, then you can escape enforcement of the agreement.  Similar to fraud or misrepresentation, the employer cannot trick you into entering the agreement through the use of fine print or convoluted language or unequal bargaining positions.  You can also escape an arbitration agreement by demonstrating that the terms of the agreement itself are inherently unequal in favor of the employer.  Courts require both of the aforementioned methods to show the agreement is unconscionable, thus unenforceable.

4.         Failure to Provide a Valid Jury Waiver
You can further avoid arbitration agreements by demonstrating the agreement does not provide a valid jury waiver.  You have a basic constitutional right to a jury trial in civil cases and any arbitration agreement must set out in bold print, easy enough to spot, some language saying you are waiving your right to a jury trial.   Connecticut and many other states follow this rule.

5.         Corporations Use Arbitration to Conceal Their Bad Behavior
Corporations tell you they rely upon arbitration agreements because this form of litigation is cheaper and quicker.  That’s a whole lot of bull. Corporations use arbitration agreements to conceal bad behavior of their own management employees from the public and other employees who also want to sue their employers for the same bad behavior.  There is no public data base to look up who brought an arbitration proceeding against their employer. It’s like it never happened.

For more information, please contact Mark Carey at 203-255-4150 or mcarey@capclaw.com.

Employers Pay Severance Out of Fear of Getting Sued

The real reason companies pay severance compensation is because they fear being sued by folks like myself.  Employers are super paranoid over employment lawsuits, and the severance amounts I have received prove it.  I have participated in hundreds of severance cases over my lengthy career and I would like to share my observation in an attempt to contribute information into the dysfunctional and incongruent playing field between employers and employees that continues to exist unimpeded.

Employers maintain a constant fear of litigation because they know they are breaking the law regarding their treatment of employees.  This is the only reason why I have been so darn busy over the past two decades fighting employers.  I refuse to give employers the benefit of doubt due to mistake or ineptness, as that viewpoint is foolish and naïve. Big businesses and small, save a heck of a lot of money when they unlawfully terminate employees, fail to pay wages and fail to pay employee benefits.  A relative with a business degree once remarked that companies are in the business of assessing and taking risks.  That is exactly the behavior I have been watching my entire career.  Employers know their actions are illegal, but take the risk nonetheless. They do it because the financial motivation is enormous.  They know the variables of the transaction and manipulate them to their favor.  Finally, employers see employees as powerless to do anything about, which in my opinion is poor business judgment. The more often employees confront guilty employers, the less likely employers will continue to abuse employees.

My observation is simple.  The more dollars employers offer during the severance negotiation, the more likely the unlawful activity occurred.  On average, I have seen final severance amounts in the range of $150,000, $300,000, $550,000 and even $750,000. Of course, I cannot disclose actual case amounts to due confidentiality, but I wanted to give you a feel for the amounts employers have been paying to cover up their unlawful behavior.

The aforementioned amounts are not the result of ERISA severance plans or pre-negotiated executive severance agreements, but reflect cases where I have demonstrated employer liability across a spectrum of claims without the use of litigation.  Specifically, and it is no secret, you have to have a valid legal claim(s), supported by lengthy detailed facts, in order to convince the employer of their own misdeeds and get them to pay severance.  I have a rule of thumb, roughly 80% of the time the employer would rather negotiate a pre-lawsuit settlement, then risk the public disclosure and extreme litigation costs.  Employers also know that once other employees learn of the disastrous liability, others will follow, so they quickly put a lid on the deal with a severance agreement containing a strict confidentiality clause. However, I routinely receive calls from multiple employees from the same company, including people previously named in prior cases.  Fortunately, news does travel fast amongst employees before employers can lock down the confidentiality provision in the severance agreement.

Employees faced with a severance offer should dumpster dive into the facts and consult an employment attorney. Severance compensation could result with limited financial investment into legal fees.  If you would like more information, contact Mark Carey at 203-255-4150 or mcarey@capclaw.com.  Thank you for reading.
© Carey & Associates, P.C. October 7, 2015.

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