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!
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.
“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.
“No Whiners Please”. This was the bumper sticker I saw on the back of a large sail boat last night after sailing. At first I thought the phrase was directed at the owner’s kids who disliked sailing with the captain every weekend. Then I realized maybe the captain’s message was much broader in scope. Certainly, we all know someone who fits nicely under this category. We do distance ourselves from them either because they are simply annoying or because we just do not have the energy to deal with the nuances of their person agitation.
We as a lot find our work life stimulating and challenging. Office politics and upward struggle are the norm and we comfortably handle these obstacles. However, there are those coworkers who simply unnerve us by their incessant complaints related to the latest ongoing work issue. Whether the coworkers’ complaints are justified or not, the coworker gets labeled as a whiner! In reaction, the coworker becomes alienated and ostracized by his or her peers in the office. Sometimes whiners find themselves together with other like-minded whiners, –and there is nothing wrong with that, they need someone to whine to. But it is our basic collective intuitive reaction to immediately disassociate ourselves with whining coworkers that caused me to pause and think twice about the bumper sticker.
What if the whiner was bitching about something that was vitally important to the business, but coworkers chose not to listen and labeled him as a whiner. In my experience, this happens every day and more often than you think. The consequences of ignoring the complaints of the complainer could be enormous, such as a failure to address internal complaints involving fraud or misconduct, resulting in loss of revenue or assets. Other examples involve internal complaints of discrimination that go uninvestigated and the employee is later fired and files suit. No investigation means no defense in employment lawsuits. Whiners can be actual whistle blowers and their tirade can alert management to serious concerns in the company. So, think twice about whiners, they may be on to something important.
In 2009, there has been a substantial increase in the number of employment retaliation claims filed by employees. According to the EEOC, retaliation claims rose 23% in the year ended September 30, 2008, to 32,690, which is more than a third of all claims filed with the agency. Discrimination claims that didn’t involve retaliation rose 12% in the same period.
The reason for the increase is straight forward, more employees are aware of the type of unlawful activities being committed by their employers and registering internal complaints to management and the human resources department. Employees are using these easy to prove claims to bargain for more severance or settlement. Employees should not fear playing hardball with a tough employer, the payout could be substantial.
Retaliation claims are far easier to prove than other discrimination claims. An employee registers a good faith complaint about his or her own unlawful discrimination, the discrimination of others or participates in the investigation of claims of discrimination, inside and outside his or her own employment. You must prove the employer is aware of the activity. You must also prove you experienced an adverse employment event caused by the employer, i.e. demotion, reduction in pay, termination, failure to receive bonus or pay raise. Finally, you must show the close connection between your complaint or participation in the investigation and the adverse employment event you experienced.
The following short list contains the types of actions most employees complain about in order to build a case for retaliation: 1) you verbally or in writing complained of your own discrimination, BEFORE any decision was made to discipline or terminate you; 2) you reported the discrimination complaint of a co-worker to management BEFORE any decision was made to discipline or terminate you; 3) you made a complaint to management regarding a co-worker who did not want to file a complaint but you witnessed discrimination and felt it ought to be reported, and such complaint was made BEFORE the decision was made to discipline or terminate you; and 4) you participated in an investigation and informed management about what you personally witnessed.
The bottom line is that the workplace is filled with people who make serious errors in judgment when handling complaints by employees who report to them. Of course we all presume your manager should not retaliate against you, but it happens every day. Alternatively, what you believe is an error in judgment is actually a business risk the employer is taking to force you to quit or to fire you. The risk is that you will not find a lawyer and register a complaint. The latter is more commonly the norm today, than ever before.