Employment Law Attorneys
Podcast: You Have the Right To…NOT Remain Silent…Dealing With Bullies In The Workplace

Podcast: You Have the Right To…NOT Remain Silent…Dealing With Bullies In The Workplace

According to the Workplace Bullying Institute (“WBI”) (https://workplacebullying.org/) nineteen percent (19%) of adult Americans experience workplace bullying. That means that some sixty point three (60.3) million workers are affected by this type of misconduct. Sixty-five percent (65%) of the people bullied at work are women and seventy percent (70%) of the perpetrators are men. Approximately sixty one percent (61%) of bullying is committed by a supervisor or boss.   In 2019 a Monster.com survey revealed that nearly ninety-four percent (94%) of responding employees reported being bullied in the workplace. These statistics are shocking when one considers that there is no federal law and few state laws prohibiting or even acknowledging bullying in the American workplace.

A study by the WBI found that thirty-seven percent (37%) of bullying targets were terminated, while thirty-three percent (33%) quit their jobs and seventeen percent (17%) were transferred from their positions or departments. The bullies were punished only four percent (4%) of the time, and only transferred in nine percent (9%) of cases.

For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you for listening.

Podcast: Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

Podcast: Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

When it comes to the world of requests for disability accommodations under the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act, the “black box” or the “unseen internal mechanism,” is the ever elusive “interactive process”. This is the process of information gathering and discussion between the employee requesting the disability accommodation and the employer who is obligated to determine whether the accommodation requested will be granted.  I analogize this process to a “black box” because it is inherently opaque. Why? While the ADA and the Rehabilitation Act require that both employers and employees engage in this interactive process, neither statute precisely defines what it is or when it starts or ends. It is not clear what precisely the employer must do in this process or what the employee can and should expect. How long should the process take? How does anyone know if they are doing it correctly? How do we know the proper accommodations were considered?

Now factor in the public health, work place safety, and personal medical complexities of the Covid-19 pandemic and the concomitant work-from home revolution and the box becomes even blacker. Do employers have to offer the same accommodations to teleworkers that they offered to workers when they were on site? Are accommodations automatically available for those with health conditions that put them at greater risk for Covid-19? If a disabled employee was able to do her job during temporary telework periods due to Covid-19, is she entitled to continue telework after the employer resumes regular operations?  More importantly, what is the specific “interactive process” that will be used to decide these issues?

For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you for listening.

Podcast Episode: COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

Podcast Episode: COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

[TRANSCRIPT]

You’re a free agent and your noncompetition agreement is void!  That should make you feel less stressed about getting your next job in the very industry you have spent so many years cultivating, especially during this pandemic.  Yes, I know your employer made you sign a noncompetition agreement when you were hired, but Covid-19 has changed everything.

I did not like noncompetition agreements before Covid-19 and I dislike them even more now seven months into this pandemic.  According to the latest jobs report, click HERE, “the total number of people claiming benefits in all programs for the week ending September 19 was 25,505,499…”  If you are a judge presiding over a complaint brought by an employer attempting to enforce a noncompetition agreement, would you enforce it against the unemployed employee in the face of these jobless numbers? Answer, No!  Regardless of the law related to noncompetition agreements (restrictive covenant), no judge will want to prevent employees terminated without cause from getting a new job. Who is going to pay for the employee’s food?  Who is going to pay for the employee’s mortgage?  How is she going to buy medication or diapers?

The time has now come to confront the idiotic, senseless and self-serving practice followed by 50% of all employers to force noncompetition agreements on vulnerable employees, especially during this pandemic. We need to protect employees and the income they need right now to survive.  We also need to confront employers and demand they stop using noncompetition agreements altogether because they are abusive and unnecessary. Employers are already overprotected by making employees sign Confidentiality and Proprietary Information Agreements, which protect against the disclosure of company trade secrets to third party employers.

NONCOMPETE MUST BE VOIDED DUE TO IMPOSSIBILITY

What does impossibility mean in relation to noncompetition agreements during the Covid-19 pandemic? Courts generally apply the doctrine of impossibility whenever there is an interference in achieving the purpose of the contract between the parties that is beyond their control and it was never foreseen prior to entering into the contract. “A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.” Roy v. Stephen Pontiac-Cadillac, Inc., 15 Conn. App. 101, 103-04 (1988) (internal citations omitted.) When impossibility is raised, “the court is asked to construct a condition of performance based on changed circumstances, a process which involves at least three reasonably definable steps. First, a contingency—something unexpected—must have occurred. Second, the risk of the unexpected occurrence must not have been allocated either by agreement or by custom. Finally, occurrence of the contingency must have rendered performance commercially impracticable.” Id. at 104, quoting J. Calamari & J. Perillo, Contracts (3d Ed.) § 13-1, p. 537; see also Hess v. Dumouchel Paper Co., 154 Conn. 343, 349-52 (1966)

All employers “intentionally” manipulate employees to sign noncompete agreements in order to get the job, i.e. take it or leave it.  Employers typically seek to prevent employees from working for a competitor for a period of twelve months after termination.  Bam! A pandemic hits the U.S. and the world. That’s the impossibility event.  Massive layoffs follow, covering nearly 40 million people. By the way, an estimated 157.76 million people work in the U.S.  Of course we want the economy to return to normal as quickly as possible, and those unemployed workers are part of that economy.  If 50% of all employers use noncompetition agreements, then we have a major economic obstruction caused by self-serving employers who deliberately seek to prevent these unemployed workers from earning a living.  Sounds unfair, because it is.  It is impossible for any employee to comply with the one sided noncompetition agreement because they need to put food on the table and just survive.  That is the argument I am making and will make in every court case my firm becomes involved with.  This is a public policy crisis plain and simple.  There exist no current Covid-19 court decisions on this issue, but there are a few cases now in the pipeline. The public, the politicians and the courts are faced with a major public policy dilemma. Should the courts protect employers for the sake of protection alone or can they help employees by overriding noncompetition agreements entirely.  I believe the scales tilt heavily in favor of employees, employed and unemployed alike.

WHAT IS A NONCOMPETE AGREEMENT IN 2020?

It is a promise the employee allegedly makes, without his/her consent, with their employer that after they are terminated, they need to refrain from accepting employment in a similar line of work, with a competitive company, or establishing a competing business, for a specified period in a certain geographical area. A non-compete clause ancillary to a valid agreement is unreasonable in restraint of trade and void as a matter of law if: (1) the restraint is greater than is needed to protect the business and goodwill of the employer; or (2) the employer’s need is outweighed by the hardship to the employee and the likely injury to the public. In other words, if you are unable to earn a living because you are sitting on the bench during the noncompete period, without pay, solely because of the employer’s self-serving noncompete, then a Court will void the agreement.  The employer is already protected from the employee because the employer forced the vulnerable employee to sign the confidentiality agreement, a.k.a. Confidentiality and Proprietary Information Agreement, which protects against disclosure of company trade secrets to third party employers.

WHAT IS THE BUSINESS INTEREST?

The argument in favor of enforcing noncompete agreements is primarily to protect the company’s trade secrets, client relations, customer goodwill, employee training.  However, restraining competition is not a legitimate and enforceable business interest.  As I have repeatedly stated, the employer is already protected against disclosures of trade secrets through the Confidentiality and Proprietary Information Agreement.  The employer’s argument that a noncompete agreement is necessary to prevent the disclosure of trade secrets to third party employers is simply abusive and overreaching.

NONCOMPETE AGREEMENTS VIOLATE ANTITRUST LAW

I argue that noncompetition agreements violate Section 1 of the Sherman Act because every noncompete agreement is an unlawful contract to restrain trade.   Section 2 of the Sherman Act makes it illegal to “monopolize, or attempt to monopolize, …any part of the trade…”  (The Sherman Act, 15 U.S.C.§ 1)

You will never hear an argument in any litigation over the attempted enforcement of an employee noncompete agreement that the enforcing employer was seeking to restrain competition of its competitor businesses. Such a statement and action would constitute an unlawful antitrust action.  But we know in reality, that is exactly what employers are doing.  This conclusion is further supported by the recent statistics that nearly 49% of all employers use  noncompetition agreement for some or all of their employees, a doubling of the amount from 2014.  Noncompetition Agreements are a tool to kill competition, plain and simple.  Do not fall for the argument about protecting the company from rogue employees seeking to damage the employer. This accusation, albeit true in the rarest of circumstances, is specious given the employer made the employee sign an agreement to protect the employer’s trade secrets, the Confidentiality and Proprietary Information Agreement.

For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you for listening.

Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

Fear of Covid-19 At Work: How to Apply For Disability Benefits Through Your Employer

In this episode of the Employee Survival Guide we discuss how to apply for disability benefits through your employer if you fear for your personal safety at the workplace due to Covid-19.  Whether you have an anxiety or panic disorder  or you are trying to protect your vulnerability due to Covid-19, Employment Attorney Mark Carey will give you a short guide about how to apply for your employer’s Short Term Disability benefits and Long Term Disability benefits under a federal statute called ERISA (Employee Retirement Income Security Act). Mark will also discuss the very important overlap with the Family Medical Leave Act, the Americans With Disabilities Act and state antidiscrimination laws. He will show you how protected you actually are against your employer unfairly terminating you for taking a much needed disability leave of absence due to Covid-19.   For more information, please contact Carey & Associates, P.C. at 203-255-4150 or email at info@capclaw.com.

Podcast: The Workplace of Tomorrow: A New Path

Podcast: The Workplace of Tomorrow: A New Path

Employers should seriously consider the current “relationship” they have with their employees.  Employees are the backbone of each company and employers could not exist without them. Trust- that’s what employees want right now and presumptively have always wanted it.   Now that the blinders are coming off due to Covid-19, employers must realize they cannot abuse employees and treat them like a number. There are currently Forty million plus (40,000,000) job terminations during this pandemic, this is not exactly what I would call building trust with your employees.  These recently terminated employees (“Your Ex-Employees”), are real people of all races and backgrounds, with emotions, goals, financial issues just like you.  If you give employees a real sense of security in their jobs, they will reword their employers tenfold- with #EmployeeTrust and increased EBITDA (aka profitability).

Employers- show your employees they can trust you at all times– that you got their backs in times of trouble. Here are a couple of suggestions:

  1. Provide a termination for cause employment agreement-ignore your management lawyer’s advice not to follow this suggestion;
  2. Make sure employees feel confident they will not get sick when they come back to work- give them everything they need and write if off on your PPP and SBA money you just received;
  3. If employees want to work from home and/or the office, just let them- but remind them you do pay rent in an office they should use;
  4. Buy them necessary computer gadgets to work remotely – anywhere;
  5. Build a sense of a strong community experience amongst employees;
  6. Immediately fire any employee, manager or not, who exhibits any discriminatory bias against anyone- this will deter the bad actors- as we are all in this together;

This list of perks employers can provide to develop and ensure employee trust is endless and specific to your company, but you get the main idea.  Yes, employees need perks too!

If you would more information about this topic, please contact Carey & Associates P.C. at 203-255-4150 or email to info@capclaw.com.

Podcast: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

Podcast: Supreme Court Says Sex Discrimination Includes Homosexuality and Transgender Status

This episode of the Employee Survival Guide discusses a landmark U.S. Supreme Court decision granting employment protection to transgender and homosexual employees.  Your host Attorney Mark Carey will run you through the case analysis and the impact on your employment rights and what you can do to protect yourself from employment discrimination based on your sexual orientation.

For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you for listening.

Podcast: How to Negotiate a Severance Agreement With Your Employer

Podcast: How to Negotiate a Severance Agreement With Your Employer

This episode of the Employee Survival Guide discusses a very important topic of how to negotiate a severance package with your employer.  Your host Attorney Mark Carey will run you through his tactics and strategies of how to negotiate a successful severance agreements.  Mark’s knowledge covers more than 24 years negotiating severance employment agreements for employees and executives.

For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to info@capclaw.com. Thank you for listening.

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