by Mark P. Carey | Jun 12, 2018 | Age Discrimination, Arbitration, Arbitration Agreements, Disability Discrimination, Discrimination, Employment Counseling, Mark Carey, Newsletter, Noncompetition & Nonsolication Agreements, Pregnancy Discrimination, Pregnancy Discrimination, Race & National Origin Discrimination, Religious Discrimination, Retaliation Discrimination, Sexual & Gender Discrimination
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!
by Mark P. Carey | Feb 21, 2018 | Employment Contracts, Noncompetition & Nonsolication 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.
by Mark P. Carey | Jun 15, 2017 | Arbitration, Arbitration Agreements, Discrimination, Employment Contracts, Mark Carey, Newsletter, Noncompetition & Nonsolication Agreements, Severance Negotiations
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.
