Employment Law Attorneys
Podcast: An Employment Severance Agreement Explained in Detail

Podcast: An Employment Severance Agreement Explained in Detail

Employment Severance Agreement Explained: Whether or not you use an employment attorney to review and negotiate your employment severance agreement, you need to know the mechanics of the agreement.  The following episode will go in depth and explain the legal terms in an understandable way.

Generally, all severance agreements accomplish one task, paying employees to release their claims against the company in exchange for money and confidentiality.  Mark has seen thousands of these agreements in his twenty-five years of practicing employment law for employees and executives.  They are all relatively the same in the terms, but differ in their layout.  Most law firms use the same template, so Mark sees the same agreement used over and over again.

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

Your Host Mark Carey

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

Employee Survival Guide Podcast is Like No Others

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information about Employment Severance Agreement Explained, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Podcast

Podcast: Employment Tips From A Manager: Becoming a Great Employee

Podcast: Employment Tips From A Manager: Becoming a Great Employee

Employment Tips From A Manager: Becoming a Great Employee: In this episode of the Employee Survival Guide, Mark shares important employment tips from a manager on how to become a great employee.  These employment tips from a manager are gathered from real life employment law cases Mark has litigated and from his years managing employees at his office.  These employment tips from a manager include the following:

Treat Every Work-Day Like It Was Your First Day on the Job

Bad Habits and Practices Are Always Discovered

It’s Still a Privilege to Work for a Company

Don’t Discriminate

When Your Boss Gives You a Goal, Don’t Assume it is the Ceiling–it may be the floor

You’re An Adult, Act Like One at Work

Additional Links to further information mentioned in the podcast:

the-7-habits

Fight Or Flight Response

https://en.wikipedia.org/wiki/Golden_Rule

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

Your Host Mark Carey

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

Employee Survival Guide Podcast is Like No Others

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information Employment Tips From A Manager: Becoming a Great Employee, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Podcast: Employment Tips From A Manager: Becoming a Great Employee

Employment Tips From A Manager: Becoming a Great Employee

By Mark Carey

If you have been around the workplace as long as I have, you can definitely separate out good and bad employee behavior.  I have litigated both sides of employment cases for the past 25 years and currently act as a manager in my office for the past several years.  I offer the following tips to keep you moving in a positive direction and becoming a great employee.

Treat Every Work-Day Like it Was Your First Day on The Job

Do you remember the first day of any new job you started?  Yes, the feeling of newness, new colleagues, escape from the old rigid culture of your last job; it was a new relationship and the honeymoon just started.   You went “all in” and you were generally excited about the new gig.  You felt you belonged in this company and you walked around like you owned it.  Fast forward two or three years later, now you are settled in and comfortable in your new surroundings at work. You have new work friends and your employer is acknowledging your positive performance.  But then something unexpected/expected happened, “you’ve lost that loving feeling” about your job and it has turned into just another job where you look forward to time off away from work.  Overall, you are doing just the right amount, in comparison to your work colleagues, and you are just getting by.  What happened?  Where did the mojo go?   If you are not careful, your ambivalence may get the best of you as employers do notice; it’s the employer’s job to take notice of all employee behavior.  I suggest you do a reset and figure out what made you so happy about your job when you first started working for the company. Are you falling back on bad habits from your prior work history?  Take a fresh look at your advancement opportunities within the company and how you can create more equity and more compensation for yourself.  If you cannot, then maybe it is time to move on.

Bad Habits and Practices Are Always Discovered

I have this superpower, I can determine exactly why an employee or executive client was terminated from the last position, regardless of the explanation offered by the employer and the client.  When I receive a new case from a client I request a detailed factual narrative about their employment leading up to the termination.  Although I only ask for facts and not conclusions, we get a one sided emotion filled story from the client. When the facts are compared to the employer’s version of the events, you can sparse out the clients with good claims and those clients who maintained bad work habits that eventually got them fired.  Bad work habits can be anything from being argumentative, tardiness, insubordination, lack of attention to detail, conducting personal affairs on business time, only doing the bare minimum, not seizing opportunities to market the company’s services, etc.  The worst habit is not knowing you are following your bad habits.   Why do employees self-sabotage and why can’t they see the warning signs in advance?  I can only offer a partial answer as part of the problem lies in the psychology of the employee which is outside the scope of my pay grade.  We all have habits, good ones and bad ones.  Accordingly, good habits are formed over 21 days (Steven Covey- The 7 Habits of Highly Effective People). But bad habits are formed over a lifetime and can be changed or unlearned.  Try reading Covey’s book.  I would also suggest the book Designing Your Life by two Stamford University Engineering Professors, which is based on the number one class at the university.

It’s Still a Privilege to Work for a Company

Until you are financially well off and lucky enough to start your own business, you have to work for someone else.  When you apply for a new job, you are applying for the privilege to work for a company.  That privilege is controlled by the employer, who can take it away at a moments notice.  Notice, I did not say you are “entitled” to work for your employer because you are not.  But when employees start a new job they begin the psychological disconnecting process veering away from respecting the privilege to work for the company to an entitlement mentality.  I think we all know what I am talking about.  I see it all the time, especially when the ax falls and the work identify is severed from the individual.  Some say, “that job was my life” or “how can they do this to me after twenty years of dedicated service” and on an on.  Now do you see the entitlement ideology that many employees create.  It is still a privilege to work for the company, even after twenty years.  Some employees seem to have forgotten this very basic element of the contractual employment at-will relationship they have with their employers.  It was the same when you started and it was the same when you were fired.  Wake up and respect the privileged situation you have and throw out the other garbage in your head that confused you that your job was no longer a privilege—that it was yours and no one could take it away.  As an employment attorney/part-time armchair psychologist, I see this pattern and behavior in many employees.  If you heed this simple consideration, you will improve your overall performance, receive more respect amongst your work colleagues and your boss, your individual attention to your job will be enhanced and you may just begin to enjoy your job at a much deeper level.   Don’t ever lose this focus.

Don’t Discriminate

Need I say anything more?  Unfortunately, this issue boils down to human nature.  I am constantly thinking about this issue and why some employees engage in unlawful discriminatory behavior.  Aside from the existence of real discriminatory bias, this is what I have concluded over twenty-five years of practicing as an employment attorney.   Employees are hard wired for “fight or flight” at work and everywhere else.  I call it the “crazy brain mentality”.  Part of your brain is rational, empathetic and thoughtful, but the other wild side of your brain only seeks to self-promote, judge others who appear different than you, acting selfishly, reacting in a defensive posture, etc. This protective layer is cast out in an effort to protect employees against some form of “harm” they believe may come to them.  What is the solution here?  Simple, “audi alteram partem” which is a Latin phrase for “listen to the other side”.   Listening means giving respect, even though you do not agree with the other person.  But the more you listen, learn and digest how the other employee views the same reality, it will cut off your crazy brain from activation and allow your rational side of your brain to become more empathetic, sincere, understanding etc. even though you maintain a polar opposite point of view.  The smartest and most successful position to attain is the one that truly reflects both positions with rationales for and against both, with a little bit of the right amount of humor to defuse the hostility.  Right now in today’s workforce, and as a society as a whole, listening to the other side is altogether absent or is intentionally ignored in favor of drama and destructive ideologies based on the color of your skin, your gender or your age!  Remember, listen more and react less. Throw a little bit of the golden rule on top of that and you should be good to go.

When your boss gives you a goal, don’t assume it is the ceiling- it may be the floor

Goals are important and carefully crafted goals are critical to how and if your team follows those goals. I see many employees only seek to hit the bare minimum and forget that they actually can over achieve a goal.  A goal is only a floor and not ceiling.  Do not ever forget that your employer is watching you and does take notice of slackers, team players and overachievers.  Which one are you?  Remember, working is a privilege, not an entitlement.

You’re An Adult, Act Like One at Work

You would be surprised how ridiculous grown men and women act in the workplace.  I personally view the American workplace as a cesspool of maldeveloped psychologies that come together everyday with unbridled umbrage over people, internal fiefdoms, status, money etc. Remember the playground antics and bullies when you were in grade school? Yes, those memories!   Well, all those nasty malcontents are now adults and no one ever told them to grow up nor trained them about how to be an adult at work.   Do me a favor, please follow the golden rule, it will save your job, your career and your sanity.  It will also save you from hiring an employment lawyer like myself to undo what you created all on your own.

If you need more information about this article or want to discuss your employment with an employment attorney, please call Carey & Associates, P.C. at call (203) 255-4150 or email to info@capclaw.com.  Thank you and be safe and well.

 

Podcast: An Employment Severance Agreement Explained in Detail

An Employment Severance Agreement Explained in Detail

By Mark Carey

Whether or not you use an employment attorney to review and negotiate your employment severance agreement, you need to know the mechanics of the agreement.  The following discussion will go in depth and explain the legal terms in an understandable way.  If you need further information on severance negotiations, we have written about severance agreements and negotiations in previous articles, read HERE and HERE.

Generally, all severance agreements accomplish one task, paying employees to release their claims against the company in exchange for money and confidentiality.  I have seen thousands of these agreements in my twenty-five years of practicing employment law for employees and executives.  They are all relatively the same in the terms, but differ in their layout.  Most law firms use the same template, so I see the same agreement used over and over again.

The Intro Paragraphs

The initial paragraphs of every severance agreement identify the parties to the agreement and include a couple of “Whereas” paragraphs. The “Whereas” paragraphs are prefatory and not required in any agreement. I usually strike them as irrelevant.

The Non-Admission Provision

Every severance agreement includes a provision that the employer is not making an admission of wrongdoing, even though the employer’s actions were objectively discriminatory or wrongful. A non-admission provision is standard, but to the newly terminated employee, this provision seems awkwardly strange given the employee’s experience leading up to the termination.

The “Show Me the Money” Consideration Provision

Consideration or aka the payment provision. Well, for employees this is the most important provision in the agreement—what they will be paid to release their valid claims against their employer. It is important to consider the following structure when drafting the consideration or payment provision.  First, all money paid to an employee to settle an employment case is taxable as income.  Second, you can split the settlement payment into parts to take advantage of tax planning.  The employer will also like this option too, as they pay less in FICA.  We normally allocate 60% as 1099 income and 40% as W-2 income. This allows you to receive a larger lump sum as less taxes are deducted.  The employer will require you to indemnify the employer if and when the IRS challenges the settlement agreement Form 1099 payments.  In reality, I have never seen nor heard of the IRS conducting audits on client settlement agreements.

Attorneys’ Fees are Tax Deductible Against Gross Income

Remember, if you spent hard earned income on attorneys’ fees pursuing employment discrimination claims only and you received a judgment or a settlement in your favor, you can deduct the total amount of the attorneys’ fees against your gross income on your Form 1040.  You can only take this deduction for the year in which the case settled or judgment occurred.  See the attached link below.  This is a crucial element to your decision to accept settlement, as most employers refuse to pay for your legal fees to get to a settlement.  You are not alone if you never knew about this important IRS regulation. We regularly advise clients about this deduction, but it is recommended you speak to an accountant for tax advice.  https://turbotax.intuit.com/tax-tips/tax-deductions-and-credits/can-i-deduct-legal-fees-on-my-taxes/L98fUeOrM

General Release of All Claims

When employers pay severance in exchange for a signed release, the general release provision is the primary provision most employers are concerned about.  This provision effectively identifies every conceivable claim, known or unknown, that the employee has and then causes the employee to waive all such claims.  Most severance agreements set forth a long laundry list of state and federal statutes the employee is agreeing to waive claims under.  However, some claims can never be released in a written severance agreement, as state and federal laws prohibit such waiver of claims.  For example, you cannot waive and release the following claims: (1) workers compensation; (2) unemployment insurance claims and (3) claims made to any self-regulatory government agency such as the Securities & Exchange Commission (SEC).

Challenge to Agreement or Enforceability

Most severance agreements contain a provision that if you seek to challenge the enforceability of the agreement, you have to return the money.  That seems fair and it is. But some employers also sneak in penalty provisions in case the employee breaches the agreement for speaking out about the settlement etc.  Employers often seek the total value of the settlement or some six figure amount to protect the employers in case the departing employee goes rogue and publicly denounces the employer on social media platforms.  This penalty provision often shows up in cases where there is a lot of bad blood spilt between the parties, particularly after a lawsuit is filed.  We strongly advise clients against these draconian provisions and inform employers they are overreaching and are already protected by non-disparagement clauses and employee confidentiality agreements previously signed at the start of employment.

No Other Amounts Are Due

Employers often place a redundant provision in the agreement that the company does not owe the employee anything more.  I say redundant because the release provision should have covered every claim under the sun.

Non-disparagement Clause

Every severance agreement contains a non-disparagement clause, but one only applicable to the employee and not the employer. We advise clients to include a mutual non-disparagement  clause to be signed by the employer so it does not engage in blacklisting, which is a very real phenomenon.  You will need to name specific individuals and managers when negotiating a mutual provision, as employers object to having to police their entire workforce.  I personally never liked that response, but hey, these are called negotiations for a reason—you don’t get all the things you want and must compromise or litigate.

References and Employment Verification

Contrary to urban legend, employers do not provide references to departing employees. What they do provide is a 1-800 number to confirm your employment and title, but nothing more. If you have a good reference still within the company, I suggest you get that in writing or have the person contact your new employer directly.

No Future Employment

Most if not all severance agreements contain a provision that bars you from obtaining employment with the company, or its’ subsidiaries, in the future. Yes, this is perfectly legal.  What the provision really accomplishes is that it prevents future liability by the company in the event you re-apply for a position and claim you were somehow discriminated against for a failure to hire.   If you asserted claims against the company prior to termination or thereafter, be reasonable with yourself and do not expect the company will want to rehire you. Consider yourself “canceled” by your old employer.

Return of Company Property

Severance agreements require you to return company property upon your termination or before you receive your severance payment. You would be surprised by the number of times I have had to explain what is and is not company property to former or departing employees.  I often use the example of company email; you know the one containing your corporate email address.  Well, the email and the piece of paper it is printed on do not belong to you. So if an email does not belong to you, everything else the employer gave you to do your job also does not belong to you.  My biggest concern arises when the employee tells me he wants to hold onto the hard drive he purchased that contains the company email list, client list, power point presentations and any other corporate proprietary information.  All of the above company property must be returned to the employer or you risk getting sued for theft, conversion of property etc. and risk breaching your severance agreement and returning the money paid to you under that agreement.

Entire Agreement or Full Integration Provision

This is a standard term in all well drafted employment agreements, including severance agreements.  Essentially, the only terms of the agreement are those terms set forth in the severance agreement.  Any oral or written agreements made prior to the full execution of the severance agreement are nonbinding and unenforceable.  So be careful in your review of your case so that you do not hold expectations that are not realistic.  You would need to have an employment attorney evaluate a prior oral agreement to determine if it is viable prior to signing the severance agreement. Some employers have promised severance prior to the severance agreement but then walked back those promises.  Again, an employment attorney can help you dissect this important legal issue. You may discover that your employer created a severance plan of one person—you.

Non-competition and Non-solicitation Provisions

We often see employers sneaking into severance agreements brand new non-competition and non-solicitation provisions where none previously existed during the employee’s employment.  We advise clients to strike these provisions and most employers do not raise the subject again.  As employment lawyers, we see this tactic used every day, but you do not.  This is one example where you should involve an employment attorney to review your agreement, whether helping to negotiate it with the employer or from behind the scenes.  We also see employers reaffirming the prior noncompetition and non-solicitation provision signed at the start of employment into the severance agreement. Again, we advise clients to challenge the inclusion and enforceability of these restrictive covenants.  Most employers will back away once they are met with a good argument as to why the prior agreements are unenforceable.

Agreement Signed In Counterparts

It is common to include a provision that the parties to a severance agreement can sign in separate counterpart copies, each of which will be considered one fully executed agreement. Counterparts are exchanged via email and facsimile, as well as in person.

21 Days to Sign or Else

Don’t panic if you have not signed your agreement within the 21 days, as spelled out in the “proposed” agreement.  There is no state or federal law that states you have 21 days or 45 days to sign the severance agreement.  If the agreement is not signed by you, do you think you have an enforceable contract?  No.  So, ignore the 21 or 45 day threat and just speak with an employment attorney to discover what claims or leverage you have to increase the severance amount.  Often times, consulting with an employment attorney will pay off in huge dividends to you in the form of a much higher settlement value at the conclusion of the negotiations.  The difference or delta here is the employment attorney.  She or he has the professional experience you lack, and it is that experience and knowledge of the law that is applied to your narrative to develop claims that stick against your employer.  As you read above, your legal fees are 100% tax deductible, so why wouldn’t you explore your potential claims with an employment attorney?

Confidentiality Provision

I saved the best for last. Of course everyone knows that you give up your legal rights in a severance agreement, but many do not know you also agree to a “lifetime” of silence.  No, you cannot write a book about your horrible employer if you agree to take their blood money!  But the reason why I saved this topic for last is because of recent social and legal developments.  The #metoo event and the aftermath that followed brought with it a new understanding about confidentiality agreements, also called nondisclosure agreements (NDAs).  The social issue that has arisen is that we are no longer comfortable letting the bad actors of the world get away with their misdeeds, in particular any misdeed of a sexual nature—regardless of gender or sexual orientation, by covering them up with confidential settlement agreements. Think of Harvey Weinstein or the former Met Opera conductor James Levine. For decades and continuing today, every single employer requires the departing employee sign a confidentiality provision in a severance agreement in exchange for severance payments.  This is the default rule followed by all employers.  This default rule has only caused more employees to be harmed by the same bad actors who caused the previous cases that eventually settled.

Many states like New York have created statutes requiring a voluntary confidentiality agreement, separate and apart from the settlement agreement. While this sounds like a good idea, it has already been abused by employers.  Most employers will now apportion a part of the settlement payment to be exchanged for a signed confidentiality agreement.  Simply, the legislators were lobbied by employers and should have banned the use of settlement dollars in exchange for signed confidentiality agreements.

The bottom line for you is this.  We are just not at the social pivot point for you to resist the use of confidentiality provisions in settlement agreements, so don’t waste your time arguing about this issue with your former employer.  But one day confidentiality provisions in employee severance agreements will be banned as a matter of statute and public policy.  This is a nonpolitical issues, as both liberals and conservatives use confidentiality agreements to conceal the illegal misdeeds of their managers and employees.

If you need more information about this article or want to discuss your severance agreement with an employment attorney, please call Carey & Associates, P.C. at call (203) 255-4150 or email to info@capclaw.com.  Thank you and be safe and well.

Carey Reaches 2000 Miles toward his 10,000 Mile Goal for a Cure for Multiple Sclerosis

Carey Reaches 2000 Miles toward his 10,000 Mile Goal for a Cure for Multiple Sclerosis

On April 12, 2021, I set out to ride my 2000th mile toward my solo journey to 10,000 miles in a year for a cure of Multiple Sclerosis.  I have could not have picked the worst day to ride weather wise.  The rain and wind pelted my sore body early on in the ride, but I still had 32 miles to go.  I could not turn back, just as I could not turn back on my 10,000 mile ride for an MS Cure. At the end, I swear I felt hypothermic, as the temperature dipped into the low forties; I was soaked to the bone.  Once you buy into this sort of thing, the only thing that will stop you is an injury or an accident.  I have the injuries, but fortunately no accidents.  In addition to the hard rain that day, my legs are still recovering from high altitude training (10,000 feet above sea level) from three weeks prior.  At my age, the body feels the pain longer than when I was younger, but again, no turning back.  My cause is greater and matched by my persistence to succeed.

In case you are wondering how I can ride this many miles in a week, here’s a little peak into the madness that is required to ride a stationary trainer, Peloton bike, and the wide open hilly roads of Connecticut for 10,000 miles in a year. My total current elevation gained is 22,192 feet, by comparison Mount Everest is 29,032 feet tall.   I initially started hammering out 30 mile rides at a time multiplied by five rides a week (schedule is 27 miles a day for 365 days).  But given I started the journey on January 10, I started out in a deficit by nearly several hundred miles. I began doing what I call “double doubles”, where rides would last 60 and in one case 80 miles in one day.  Either I would ride the morning and evening, 30 miles a piece, or just bang out a cool 60-80 miles.  That’s four plus hours on a bike; this is no small feat of psychological and physical endurance.  I occasionally take a day off just when I can’t think of riding another mile due to fatigue.   Fortunately, I have experienced less pain as the miles have piled on.  Part of me starts to think about doing this every year, but the jury is still out.  Today, I average 40-50 miles per ride, as my base training is completed and now I am just racking up mile after mile after mile etc.

Please make a donation today and BUY MILES for this worthy cause! Donate a $1.00!  I need your donations to continue riding, no I am not kidding.  Right now I have raised $4101.00.  Show your support to help cure Multiple Sclerosis, put more gas is in the tank and I can ride for more miles.  I need your help, donate today and use this link https://www.facebook.com/donate/233329948389093/

Thank you in advance for your support!  Ride on!

Mark Carey

Podcast: The Man Who Lost His Voice Box and His Career

Podcast: The Man Who Lost His Voice Box and His Career

In this episode of the Employee Survival Guide, Mark shares a real life story about a successful executive who lost his voice box and his career.  Mark guides us  through the initial stages of the employee’s successful career until he was diagnosed with throat cancer.  Once the employee lost his ability to speak, his employer intentionally discriminated against the employee in an attempt to force him to quick his job. The employee took a leave of absence under the ADA and the FMLA and was able to reach a successful settlement with the employer.  Mark notes the employee was able to carve out of the settlement the employee’s ongoing short and long term disability benefits; he did not waive his claims for STD and LTD benefits.  Mark then describes the difficulty and illegal actions taken by the disability benefits insurance carrier to claim the employee had an anxiety disability and not a physical disability, the loss of his voice box.  Mark describes the administrative process the employee followed to eventually obtain an award for LTD benefits for his physical disability, the loss of his voice box.  Mark concludes by summarizing the multi-layered process that every employee must follow to deal with employment discrimination and unlawful actions by a disability carrier to deny disability benefits.  The employee successfully complained of employment discrimination, obtained a sizable settlement and then proceeded to challenge his disability benefits denial and won.  All of these actions were accomplished without the need for filing a lawsuit or costly litigation in court.

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

Your Host Mark Carey

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is, including the man who lost his voice box and his career, and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

Employee Survival Guide Podcast is Like No Others

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Podcast: When Can Non-Competition Agreements Be Enforced Against Independent Contractors?

Podcast: When Can Non-Competition Agreements Be Enforced Against Independent Contractors?

In this episode of the Employee Survival Guide, Mark explores when can non-competition agreements be enforced against independent contractors and whether they can be voided.  Noncompetition agreements on independent contractors should not be enforced based on the analysis in the episode.

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

YOUR HOST MARK CAREY

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is, including the man who lost his voice box and his career, and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

EMPLOYEE SURVIVAL GUIDE PODCAST IS LIKE NO OTHERS

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

Can You Sue Your Employer for Covid-19 Illness?

Can You Sue Your Employer for Covid-19 Illness?

By Chris Avcollie,

Can You Sue Your Employer for Covid-19 Illness?: Several faithful readers of our humble employment blog have asked us a pressing and important question that many employees are thinking about at the moment: “Can I sue my employer if I get Covid-19 at work?” As with most employment law questions, the answers are neither simple nor straightforward and they depend to a large extent on the laws of the state wherein the employment is located. The basic answer is: “Yes. You can sue your employer if you get Covid-19 at work except in states that have passed statutes prohibiting it, provided you can over-come the significant legal obstacles to this type of claim.” I will attempt to unpack some of the key issues surrounding this significant and timely inquiry. Let’s try to jump those legal hurdles!

The Initial Hurdle: Worker’s Compensation

The answer to the question: “Can I sue my employer if I get Covid-19 at work?” depends, in the first instance, upon what you mean by the word, “sue.” In a broad sense, most people consider “suing” to encompass any type of legal claim against another party. Lawyers, however, use this term to refer specifically to the initiation of a lawsuit against another party in court. In this instance, we must carefully distinguish between the term “lawsuit” or a civil action for damages brought in a trial court and “Worker’s Compensation claim,” which is an administrative action usually brought before a state agency to seek statutorily limited compensation for work related injuries.

In most cases where one can demonstrate that one has contracted Covid-19 at work, the infected employee can bring a Worker’s Compensation claim.  It is important to note that this is not a “lawsuit.” The primary difference between a “lawsuit” and a “Worker’s Compensation claim” is that a plaintiff in a lawsuit can seek full, fair, and just compensation for all of his or her damages and losses as well as equitable relief if applicable. In a Worker’s Compensation case, the claimant may seek only the limited damages set forth in the state’s Workers Compensation statutes. Worker’s Compensation is therefore a very limited remedy. The benefit of a claim under Worker’s Compensation laws is that unlike the plaintiff in a lawsuit, the claimant in a Worker’s Compensation suit need not prove that the employer was at fault or that he or she committed some negligence, recklessness, or misconduct which caused the damages. It is enough to prove that the injury or illness in this case, occurred at work. Additionally, the claimant in a Worker’s Compensation case need only prove the type of injury or illness sustained at work and the damages are then calculated by a statutory formula. Thus, the Worker’s Compensation system is considered a “trade-off.” Claimants give up a portion of the damages they could otherwise obtain at law, but they are relieved of much of the delay, cost, and burdens of proof that litigants face in court. Hereafter, we will refer to Worker’s Compensation cases as “claims” and actions for damages brought in court as “lawsuits.”

The most commonly available remedy for a worker who contracts Covid-19 at work is the Worker’s Compensation claim. Most every state that has a Worker’s Compensation system also has laws that make Worker’s Compensation the “sole and exclusive remedy” for all workplace illnesses or injuries. This means that a Worker’s Compensation claim is the only type of claim an employee may bring. Injured workers do not have a choice to pursue their damages in court if they wish. This means that as an initial matter, most cases involving Covid-19 at work are going to be resolved in the Worker’s Compensation process and no lawsuit may be filed except in very specific circumstances. That means most cases of workplace Covid-19 are going to be poorly compensated. Even in cases involving the death of the infected employee, the exclusivity rule of the Worker’s Compensation system will often prohibit the employee’s survivors from filing a lawsuit for wrongful death. Even survivor’s claims are strictly limited to the Worker’s Compensation system.

On February 14, 2021, Lauren Weber of The Wall Street Journal published an article captioned “Why So Many Covid-19 Workers’ Comp Claims Are Being Rejected“.  The take away is that employees are facing a high bar to prove their Covid-19 Workers’ Compensation claims.

The Liability Hurdle: Intentional or Willful Conduct

So what are the “specific circumstances” when an infected employee might be able to get around the exclusivity rule of the Worker’s Compensation system and file a Covid-19 lawsuit against their employer? One common exception to the exclusivity rule is the third-party exception. If a person or entity other than your employer causes your workplace illness or injury, an employee may sue that third party depending on the applicable state laws. Another common exception applies in some states in cases where the employer does not carry Worker’s Compensation insurance. In some states that do not include occupational illnesses in the category of compensable injuries under their Worker’s Compensation law, employees may sue their employers for Covid-19 infections. The most common exception to the exclusivity rule involves cases where the employer either intentionally or willfully engaged in misconduct that caused the worker’s illness or injury.

In Connecticut, this exception is called a “Suarez Case” after the case called Suarez v. Dickmont Plastics Corp., 242 Conn. 255 (1997), where the Connecticut Supreme Court held that employees could sue their employers (for illness or injury) in cases where the employee can prove: “either that the employer actually intended to injure the plaintiff (“actual intent” standard) or that the employer intentionally created a dangerous condition that made the plaintiff’s injuries substantially certain to occur (“substantial certainty” standard).” Id., at 257–58. This standard provides a very narrow exception to the exclusivity rule because it is so difficult to establish. The plaintiff employee must prove that the employer intentionally or deliberately created the dangerous situation under circumstances where the injury or illness was very likely to occur. Not many employers would deliberately harm their workers, so this is quite difficult to prove. Many states have exceptions similar to Connecticut’s Suarez exception, although the standards differ from state to state.

For example in some states such as Arizona and New York, the exception applies only if an employer’s purposeful actions were actually intended to harm the employee. Florida only allows the exception where an injured employee can prove that the employer’s actions were “virtually certain” to cause the worker’s injury, that the employee was unaware of the risk, and where the employer took steps to conceal the danger. Texas allows the exception only in cases that result in the wrongful death of the employee and only if the employer exhibited, “gross negligence.” New Jersey, like Connecticut, has a slightly lower but still formidable standard. New Jersey’s Supreme Court has held that the employee does not have to prove that the employer intended the harm the employee, only that there was a “substantial certainty” that the employee would be injured. While these state law exceptions to the exclusivity rule are burdensome, it is not yet clear in most states how courts will apply them to Covid-19 cases where employers disregard established safety protocols like mask-wearing, social-distancing, work from home options, and reduced capacity. Is Covid-19 “virtually certain to occur” in public workspaces where mask-wearing, health screening, and social distancing precautions are not enforced?

One important distinction to understand here is the difference between claims of negligence and those involving intentional conduct. While most injury lawsuits are based on the concept of “negligence” which is the standard of liability which applies where a party breaches the ordinary standards of care in circumstances where an injury is foreseeable, the exceptions to the Worker’s Compensation exclusivity rule generally require some level of intentional conduct to succeed. Employers who are merely negligent or careless can almost never be sued for Covid-19. Because of the exclusivity rule this means that employees cannot file a lawsuit in cases where an employer was merely negligent or careless in following Covid-19 protocols and workplace safety rules. In cases involving employer negligence or carelessness, only a Worker’s Compensation claim would be available. Merely proving careless or inconsistent enforcement of Covid-19 safety protocols is not enough to meet the exceptions to the exclusivity rule.

The Big Hurdle: Causation

In workplace Covid-19 lawsuits, the largest hurdle to overcome in my view is the hurdle of causation. A claimant in a Worker’s Compensation case only needs to prove that he or she contracted the virus at work. This in itself can be a herculean task. Extensive and well documented contact tracing and even genetic sequencing of the relevant strains of the virus by public health officials may be required to prove where and when someone contracted the disease. This can be devilishly challenging in the case of a highly contagious and widespread virus because it can be contracted easily almost anywhere one goes in public. If the coffee shop you stop to pick up coffee at on the way to work, the gas station you go to twice a week, and your grocery store, as well as your office all have cases of Covid-19, how can one prove that it was more likely than not that the would-be plaintiff caught the virus at one location and not the others? Merely proving that it is more likely than not that you contracted the virus at work is a huge task.

A plaintiff in a lawsuit, however, must not only prove that the virus was contracted at work, but also that the employer’s actions or inactions caused the employee to contract the illness.  This is a much more difficult burden of proof. Did the employer cause the employee to contract the virus where mask mandates were not enforced but social distancing was practiced? If cases of Covid-19 circulated among the staff who were required to wear masks can it be proven that the failure of the employer to enforce mask wearing among customers caused the employee’s illness?

 The Last Hurdle: Proving Damages

If an infected plaintiff employee is able to clear the Worker’s Compensation hurdle, overcome the intentional conduct hurdle, and summon evidence to surmount the causation hurdle, the final hurdle in bringing a Covid-19 case in court against your employer is proving and calculating the damages that you are asking to be awarded. As with liability, questions of damages are more easily resolved in a Worker’s Compensation claim than in a lawsuit. At Worker’s Compensation, damages are strictly limited to set categories of damages and a specific formula calculation. Damages for pain and suffering and emotional distress are often very limited or unavailable in a Worker’s Compensation claim.  In a lawsuit, however, each element of damage must be proven by the plaintiff by a preponderance of the evidence.

How does one calculate the damages suffered when one contracts a deadly disease amidst a global pandemic? Symptoms for Covid-19 can range from no symptoms at all to death and all levels of illness in between. Can damages be calculated for the suffering that occurs when one unknowingly infects one’s spouse or children with Covid-19 due to an employer’s misconduct? What damages should be awarded in cases where an infected employee is only mildly ill for several weeks but because the employee is suffering from medical conditions that put her at high risk of death from Covid-19, she spends those weeks in constant fear of imminent death?  How can a plaintiff be compensated where he or she is suffering from long term complications from Covid-19 that doctors do not know yet how to treat? While many types of damage are not compensable in the Worker’s Compensation context they must be proven and calculated in a lawsuit.

State Imposed Hurdles: Statutory Liability Shields

Some states have created special laws that shield some or all of its employers from lawsuits related to Covid-19. Many states, including Connecticut and New York, have enacted laws that shield healthcare facilities from liability related to Covid-19 infections. States such as Michigan have passed laws that shield all employers from Covid-19 liability. Ohio has passed a law that shields nearly all employers from Covid-19 liability from its workers unless the employer engaged in willful and reckless misconduct. Many of these state shielding laws have exceptions similar to the Worker’s Compensation exclusivity exceptions such as for intentional misconduct or intentional disregard of government imposed safety protocols.

Some creative plaintiffs and their lawyers have tried to get around these liability shields and the Workers Compensation hurdles by framing their lawsuits under alternative theories of liability. A number of lawsuits have been filed against employers who disregard Covid-19 safety protocols under theories that they have created a public nuisance. These suits allege that the employer is creating a dangerous situation to the public by failing to take proper Covid-19 precautions. Plaintiffs in these cases often seek court-ordered injunctions requiring the offending employer to enforce safety procedures. Cases have also been filed alleging the employer’s breach of OSHA safety guidelines. Other employees have sued their employers under whistleblower protection laws. Employees who file “whistleblower” claims have alleged that they were terminated illegally for complaining about the employer’s failure to follow proper safety protocols. Several states allow employees to bring claims of constructive discharge in Covid-19 cases. These claims allege that the employee was forced to quit her job because she was put in danger by her employer’s failure to follow safety protocols.

While these state imposed liability shields do not make it completely impossible to bring a lawsuit for Covid-19 in the workplace, they make the bar so high that only the most egregious cases of employer misconduct could have a chance of success.  Each state is currently working out its own legislative and judicial tolerance for worker suits related to Covid-19.

What to Do If You Are at Risk of Covid-19 Due to an Unsafe Workplace

Can You Sue Your Employer for Covid-19 Illness? Given the high hurdles the law has erected to make it difficult to sue an employer for a workplace Covid-19 infection, what can you do to protect yourself if your employer is not implementing appropriate safety precautions? I recommend the following:

-Report the unsafe conditions to your employer or Human Resources department in writing. In many cases employers want to provide a safe environment but they may not be aware of all of the protocol violations throughout their organization. Making your complaint in writing will also help to document your efforts to address the problem should you need to make a claim later.

-Document the violations of protocol as well as your efforts to communicate them to management. This is important to demonstrate the nature of the unsafe conditions should you need to prove them in later. Strong evidence of the unsafe conditions in the workplace will be needed for any type of claim or lawsuit related to Covid-19..

-If management does not address the Covid-19 related safety issues promptly, then make a report in writing to OSHA and to your state Department of Public Health. A detailed report outlining the safety violations and any other relevant information could trigger an agency investigation that could help address the issues.

-In some states you can terminate your employment and bring suit against your employer for constructive discharge if you are forced to quit in order to protect your health and safety. In other states you cannot bring such a suit but you may have to leave your job anyway. Although it is deeply unfair that employees sometimes have to choose between their health and their livelihood, the limited legal options provided to address Covid-19 in the workplace may make that life or death choice necessary.

-Seek an experienced employment attorney to help you navigate the situation. Dealing with an unsafe work environment due to Covid-19 can be difficult and confusing. There is no substitute for a skilled employment attorney in these circumstances. Seek legal advice as soon as you observe a problem at work.

Conclusion

Can You Sue Your Employer for Covid-19 Illness? The issue of whether to hold employers liable for Covid-19 infections in the workplace raises fundamental questions about our social and economic values. How should we apportion the inevitable risks of commercial activity in society? Should the employers shoulder more of the burden because they profit the most from the economic activity? Should employees deal with the risks themselves since they are free to choose more or less safe work environments as they wish?  Should the government provide some compensation to victims of Covid-19 who risked their health to increase our gross domestic product and therefore our national interests? While most Americans seem to honor the front-line workers who have courageously pulled our nation through the early stages of the pandemic, we seem to be reluctant to provide any equitable legal remedies to them when they become sick or die serving our collective good.  Removing some of the hurdles employees have to jump over to obtain compensation for unsafe working environments during the pandemic would be a great first step.

If you need advice on Can You Sue Your Employer for Covid-19 Illness? please contact us at Carey & Associates, P.C. at info@capclaw.com or call (203-255-4150Chris Avcollie is an Associate Employment Law Attorney with the firm.

Christopher S. Avcollie

 

Podcast: When Can Non-Competition Agreements Be Enforced Against Independent Contractors?

When Can Non-Competition Agreements Be Enforced Against Independent Contractors?

By Chris Avcollie

When Can Non-Competition Agreements Be Enforced Against Independent Contractors? In response to a recent Carey & Associates, P.C. survey of topics of interest in employment law, some of our readers asked: “Are non-competition agreements enforceable against independent contractors?” This is an excellent question. The short answer in Connecticut is: “Yes, but with some exceptions and special circumstances.”

What Is A Non-Competition Agreement?

Non-competition agreements are special contracts between employers and their workers which prohibit workers from engaging in business activities that compete with their former employers, usually for a fixed period of time following the end of an employment relationship and usually within a definite geographical area.  These agreements, often called, “restrictive covenants” allow employers to prevent a former employee or contractor from earning a living in his or her business after the employment relationship ends.

Courts Generally Enforce Non-Competition Agreements

Courts in Connecticut will generally enforce non-competition agreements provided there is consideration provided for the promise not to compete and provided the restrictions are not unreasonable to protect the employer’s legitimate business interests. Facts which our courts consider in evaluating the “reasonableness” of an non-competition agreements include: (1) the duration of the restriction, (2) the scope of the geographic restriction, (3) the protection afforded to the employer, (4) the degree of restriction on the employee’s career opportunities, and (5) whether the restrictions are in the public’s interest. If even one factor fails the “reasonableness” test, the non-competition agreements could be held to be unenforceable.

In Connecticut, as in many states, there are no statutes or regulations that specifically address non-competition agreements outside of the medical profession.  Whether a non-compete agreement is enforceable against an independent contractor is not specifically addressed under Connecticut law at this time.  Our courts do not formally distinguish between non-competition agreements with employees as opposed to independent contractors. That being said, the five-factor analysis described above does vary when it is applied to the independent contractor relationship. When courts analyze the fourth factor, i.e., the effect the non-competition agreements has on the worker’s career opportunities, our courts must account for the fact that independent contractors are by definition expected to serve more than a single customer at one time. That is what makes them, “independent.” Notwithstanding this obvious basis to reject all non-competition agreements as applied to independent contractors, our courts will often find non-competition agreements enforceable. For example, non-competition agreements were upheld in circumstances where an independent contractor uses their position with the employer to gain information to set up a competing business for themselves.

Rationale For Non-Competition Agreements Are Faulty

The concepts underlying and justifying these restrictive covenants are faulty. One underlying notion that is misapplied to non-competition agreements is the “freedom of contract.” This legal fiction posits that individuals and firms are free to act in the marketplace in their own best interests and are therefore free to make any lawful agreements they see fit. Unfortunately for most workers this “freedom” is an illusion. The notion that workers who do not want to be bound by non-competition agreements can simply “choose” to work elsewhere is absurd. Jobs are difficult to find during the best of times. During a global pandemic amid skyrocketing unemployment, locating a good position can be overwhelmingly difficult. If one is restricted from using one’s business contacts, skills, and training to function in the market and the industry in which one has established a record of experience, the task of finding gainful employment becomes insurmountable. In the employment context the power and resources of the employer as opposed to the employee is generally so unbalanced that “freedom of contract” is a bad joke.

While non-competition agreements are becoming increasingly common, these restrictions on a person’s ability to work often cause extreme hardship on workers who must find continuous employment within their chosen industry in order to survive and to support their families.  Why should an employer who has no legal obligation to employ its workers for any period of time get to dictate to a former employee where and how he or she can work? How can such an economically crippling restriction between parties of drastically unequal bargaining power be tolerated by courts of equity?

In a recent article, Attorney Mark Carey explores the profound injustice of restricting an employee’s right to work. (Covid-19 Cancels All Noncompete Agreements Due to Impossibility) During a pandemic where millions of American workers are unemployed, restricting anyone’s freedom to work is patently unconscionable. While our courts consistently uphold “reasonable” restrictions on competition, the Connecticut state legislature is at last beginning to address the problem directly.

In another recent article on this blog, Attorney Liz Swedock explains the provisions of a piece of proposed legislation currently under consideration by the Connecticut Legislature’s Labor and Public Employee Committee.(Connecticut “May Pass” a Partial Ban on Noncompetition Agreements). The new proposed legislation, SB 906, “An Act Concerning Non-Compete Agreements” would impose some reasonable limits on an employer’s ability to enforce a non-compete agreement. As it applies to independent contractors, SB 906 would prohibit non-competition agreements against contractors unless the contractor is being paid over five times the minimum wage or $60.00 per hour. While this proposed legislation is a step in the right direction in that it prevents non-competition agreements from victimizing the lowest-paid workers in the marketplace, it does not address the fundamental injustice of these agreements. The legislature’s special treatment of independent contractors under SB 906 indicates a recognition that employees and contractors are not in the same position with respect to these contracts.

Independent Contractors Serve More Than One Master

When it comes to independent contractors, the applicability of non-competition agreements becomes quite complex. While courts have recognized an employer’s interest in protecting its trade secrets and “good will” through non-competition agreements, independent contractors are by definition, not bound to a single employer, although in practice they sometimes are. The term “independent” refers to a contractor’s ability to provide goods and services to many businesses at once. Employees on the other hand are generally obligated to devote all of their productive time and energy to furthering the interests of their employer.

Employers Face Risks When Enforcing Non-Compete Against Independent Contractor

There are risks for employers who try to enforce non-competition agreements against independent contractors. When an employer imposes non-competition restrictions on an independent contractor, it runs the risk of changing the nature of its relationship with that worker. Where an employer exercises a high degree of control over the work of a contractor, that contractor could be considered a regular employee. Imposing a non-competition agreement could be construed as evidence of the very control that marks a traditional employment relationship.

Thus, employers sometimes seek to enforce non-competition agreements but are then counter-sued for employee benefits and wages based on the assertion of control under the non-competition agreement. Employers could incur liability for wages, administrative fines, or worker’s compensation benefits when an employee is “misclassified” as an independent contractor. This fact gives employers pause when enforcing non-competition agreements against their independent contractors.

Non-Competition Agreements Are Overreaching

In general, while courts in Connecticut will enforce non-competition agreements against independent contractors where they are held to be “reasonable”, it is difficult to justify the necessity of these restrictions. While employers often justify their restrictive covenants by asserting their right to protect confidential business information, this argument is irrelevant given the fact that all of an employer’s proprietary information is protected under trade secret and intellectual property protection statutes. Further, employers can and do include broad confidentiality and non-disclosure provisions into their employment agreements, which provide contractual protections from dissemination of vital company information. It is simply over-kill and over-reach to also seek to prevent competition from former workers whether they are employees or contractors.

The basic answer to the reader’s question about enforceability of non-competition agreements against independent contractors is that they are enforceable against independent contractors, but it is slightly more difficult and definitely riskier for employers to enforce such agreements against them. The larger answer is that all non-competes are inherently unjust, inequitable, and should be resisted by employees and contractors alike.

If you would like more information about When Can Non-Competition Agreements Be Enforced Against Independent Contractors? or would like to hire an employment attorney, please contact Carey & Associates, P.C. at info@capclaw.com or call (203) 255-4150.

Christopher S. Avcollie

2021 US Dept. Labor New Rule on Independent Contractors

 

Podcast: C’mon, Man! Employees Continue to Get Screwed Over

Podcast: C’mon, Man! Employees Continue to Get Screwed Over

In this episode of the Employee Survival Guide Mark confronts systemic barriers created by employers that promote inequality of gender, age, race, sex, sexual orientation etc. and protects  bad actors and bad companies from public exposure of their illegal actions and public shaming.   Mark examines the current social equality movement (#metoo and BLM) to find system barriers thrown in their faces of employees by the very employers who publicly denounce sexism and racism.  Employers should be banned from using confidentiality agreements in employment discrimination settlements. We should ban the employment-at will rule because it only promotes biased discrimination in the workplace.  And finally, every case should be made public instead of being forced into the black hole of arbitration.  We need to know how our employers are treating our coworkers and ultimately ourselves.

The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.

YOUR HOST MARK CAREY

The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years.  Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits.  He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.

EMPLOYEE SURVIVAL GUIDE PODCAST IS LIKE NO OTHERS

The Employee Survival Guide podcast is just different than other lawyer podcasts! How?  Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few.  This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about.  Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company.  Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing!  Well, now you have the Employee Survival Guide to deal with your employer.

Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions.  Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective.  Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.

If you enjoyed this episode of the Employee Survival Guide please like us on FacebookTwitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.

For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.

The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.

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