Employment Law Attorneys
Covid-19 and Noncompetition Agreements: 4 Situations Where They Are Not Enforceable

Covid-19 and Noncompetition Agreements: 4 Situations Where They Are Not Enforceable

By Jill Halper

If this blog article has caught your attention, you likely already understand what a non-compete is and might even be dealing with a non-compete situation presently.

Just to summarize, a non-compete is a restrictive clause or agreement whereby an employee agrees not to become employed by a “competitor” of their former employer or to otherwise “compete” with their former employer. These restrictive covenants are usually restricted to a reasonable length of time and geography.

Non-compete agreements can sometimes be found to be unenforceable if the restricted party can show that they are not “reasonable”. If the restrictive terms are deemed to be too broad, too long a period of time, or not necessary to promote a legitimate business reason, a court may void a non-compete.

Many states, including CT, have been exhibiting an increased distaste for non-competes, with courts more apt to find these agreements unreasonable and unenforceable. In light of current events, we envision an even stronger trend in this direction.  There has already been and will continue to be company downsizing and dissolution, which means employees and executives will need to seek new employment or start their own business. We hope and expect Courts to favor employees, more than ever, during this economic crisis. We envision all of the current non-competes under which displaced employee’s may now find themselves, to be subject to scrutiny in the coming months as things continue to unfold.

While there are many scenarios where non-competes will need to be addressed in a Covid-19 context, below are four scenarios where you might want to promptly seek counsel regarding a non-compete

IF YOU ARE CURRENTLY UNDER A NON-COMPETE:

If you left your employment before (or during) the Covid-19 pandemic and are currently honoring a non-compete, all bets may be off in certain situations. For example, if your former employer or career happened to have been in what has now been termed an “essential business”, we would argue that your non-compete should be void. Courts often look to the totality of the circumstances when analyzing these agreements. As such, given the current outbreak and the need for essential workers in fields such as health care, banking, liquor stores and distribution, pharmacies, construction, marijuana dispensaries, to name just a few, one can make the argument that the public’s interest in having as many people working in these essential fields during this time, outweighs the former employers’ interest in enforcing a non-compete. Each state has their own designation of what constitutes an essential business.

In addition, arguments can be made that an act of God, such as a pandemic, can invalidate a contract or non-compete. We can advise you about this and have strategies for voiding your non-compete if you are an “essential” employee sitting on the sidelines honoring your non-compete, or even if you are not an essential employee based on the reasonableness of enforcing such an agreement when an act of God has wrecked so much havoc on employees and our economy.

IF YOU ARE CURRENTLY FURLOUGHED:

If you have been furloughed during the Covid-19 pandemic, but still employed, you might be worried that your furlough will at some point turn into a permanent separation from your job. If you currently have a non-compete with your employer and your furlough results in a termination, or you decide to leave during your furlough to accept other more gainful employment, it is important that you look to the specific terms of your non-compete in order to understand if it is enforceable under these unique circumstance. For example, some non-competes are not enforceable if you were terminated not for cause. In addition, if your furlough morphs into a termination or even a voluntary resignation, and you are subject to an enforceable non-compete for a period of time following your separation from your former employer, it is our position that your non-compete starts to run from the time you were furloughed not the time of your permanent separation. For example, if you are presently employed and have a 1 year non-compete from the time you ceased being employed, if you become furloughed for 2 months because of Covid-19, and then ultimately separated from your employer under these same circumstances, we will make the case that your 2 month furlough was “time served” and your remaining non-compete should only be for 10 months.

IF YOU ARE AN EMPLOYER LOOKING TO HIRE SOMEONE WITH A CURRENT NON-COMPETE:

Non-compete agreements often require the employee to inform any future employer about the existence of the non-compete. A future employer can be liable for interfering with a contract if they knowingly hire an employee who is under a non-compete. The new employer may be forced to fight an injunction and risk having to forfeit the recently hired employee, as well as subject to potential damages, if a court finds that a valid non-compete was in place and has been breached. But we will argue that all bets are off, and all of this is about to change in a Covid-19 world. We will fight for employers to show that the enforcement of the non-compete is unreasonable because people need jobs now and if an employer is willing to hire, they should not be restricted from doing so. There should be no obstacles to employers hiring at this time. Non-competes have been falling out of favor before Covid-19, and we believe that they will be even more frowned upon in the coming months. Courts will be reluctant to punish employers who are making efforts to getting back to business and providing employment even where there might be an existing non-compete.

IF YOU ARE A DISPLACED EMPLOYEE WHO IS BEING ASKED TO SIGN A NON-COMPETE IN ORDER TO SECURE NEW EMPLOYMENT:

Unfortunately, we are all finding ourselves right now in an “employers’ market” so to speak. While employers and their businesses are suffering immeasurably, they are still in the driver’s seat and the decision makers when it comes to hiring and firing. As such, if you are lucky enough to get new employment in this environment and an employer inserts a non-compete clause into your employment agreement, you might not have a great deal of leverage to fight back on this, as we would normally counsel our clients to do. If you find yourself in this situation, we still have strategies to protect you in lieu of fighting for the removal of the restrictive covenant at the outset and risking your new employment opportunity. We are having our clients sign affidavits contemporaneously with their employment contracts which speak to the extraordinary circumstances of obtaining employment amidst Covid-19. Contractual terms may be unenforceable if you can show that you signed under duress or that you did not intend to enter into a non-compete but had no choice. We believe that Courts will be reluctant to enforce non-competes entered into during this time and we have strategies such as the aforementioned affidavit that can be used at a later date if the employee needs or wishes to attempt to void a non-compete entered into during these unprecedented times.

If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at info@capclaw.com.

The New Shared Work Program Might Be Your Solution During the Covid-19 Pandemic

The New Shared Work Program Might Be Your Solution During the Covid-19 Pandemic

By Jill Halper

It is possible that many of you might not be aware that the CT Department of Labor (CTDOL) already has regulations in place known at Shared Work Program which was enacted to specifically to address any unexpected and sudden downturns in your business, such as the one we are all currently experiencing.  While the scenarios for devising such legislation likely did not contemplate a Covid-19 pandemic, CTDOL has been promoting this platform in recent days to inform and remind businesses of this vital option available to them. For one, this program addresses the question that we have been getting repeatedly, “Are employees entitled to unemployment if they have not been terminated but are working fewer hours and making less money?”

This platform also provides a strategy for businesses who want to keep employees employed while they ride out the storm, but are not in a financial position to currently provide them with their regular full compensation. Although all non-essential businesses are currently shut down, with President Trump declaring that he wants businesses back open and people returning to work on April 12th,  the option of a shared work arrangement might be something to start to think about as both employers and employees consider the most optimal strategy for re-entry into MAKING MONEY.

HOW DOES IT HELP EMPLOYERS?

Shared Work is a voluntary program that helps employers during business downturns by providing an alternative to layoffs. Shared Work allows the employer to reduce work hours and pay for an entire group of affected employees rather than laying off across the board. To qualify, the business’ reduction of work cannot be less than 10 percent or more than 60 percent, however, it would not be surprising if those percentage requirements experience may get modified, in light of the recent events.

The program allows employers to pay partial unemployment benefits and partial pay as an alternative to a full termination which would result the employer’s obligation to pay full unemployment benefits to displaced employees. Further, by reducing hours as opposed to laying off employees, the relationship between employer and employee remains intact. This ensures that these employees will be available for regular hours when business picks up by keeping them on staff while providing them with reduced pay and partial unemployment benefits (and even fringe benefits) during a downturn or in this case, a total shutdown.

Whether a small business or a large manufacturer, the Shared Work Program can save the employer the time, worry and expense of having to hire and train new workers by keeping skilled and experienced workers on the job until business upturns. In light of current circumstances, this will allow for a smoother, quicker and more efficient return to normal business once the shutdown has been lifted. Searching for, training and onboarding new employees is a laborious process. Shared Work affords employers the opportunity to pick up where they left off as far as staff is concerned. The last thing employers are going to want to deal with once given the green light to reopen are delays in earning revenue caused by first having to find and train qualified employees, not to mention the expenses associated with the search and hiring process.

To participate, an employer must complete an application for the affected groups of employees or departments within the company and submit it to the CT Department of Labor for approval.

Our firm has become well versed in this program and are here to help answer any of your immediate questions, complete applications for you or provide ongoing counsel throughout the process.

HOW DOES IT HELP EMPLOYEES?

The Shared Work Program is an effective alternative to an employee’s full termination during what is already a most difficult and stressful time for everyone. Rather than being laid off, employees work a reduced number of hours and receive a portion of their compensation and a portion of their weekly unemployment benefit payment. The employer submits a weekly report to generate the employee’s unemployment payment. The employee does not have to file anything. In essence, the employee continues working while collecting unemployment benefits to supplement the lost or reduced wages. The Shared Work payment is based on the percentage of the reduction. For example, if an employee normally works 40 hours per week and earns $20 an hour, under the Shared Work program, if the employee’s hours are reduced by 20 hours per week (a 50% reduction), the unemployment benefit would be reduced by 50%.

To show how this can result in more money in an employee’s pocket, if the employee in the above scenario was totally laid off, they would be entitled to $400/week in unemployment benefits. However, under the Shared Work program, if they worked and earned 50%, they would receive $400 in pay ($20 hour x 20 hours) and $200 in unemployment (50% of the total benefit). So, they would be receiving $600/week instead of $400/week AND they would have a job to return to!

Under this program, the employee would also be entitled to fringe benefits such as health, retirement benefits, and union seniority (if applicable).

Our firm has become well versed in this program and are here to help answer any of your immediate questions, assist you in alerting your employer about the existence of this program, provide you with ongoing counseling throughout the process or help you with any of your employment needs.

If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at info@capclaw.com.

CONTRACTS AND COVID-19  What Businesses, Employers and Employees Need to Know NOW

CONTRACTS AND COVID-19 What Businesses, Employers and Employees Need to Know NOW

By Jill Halper

In light of the imminent widespread COVID-19 outbreak across the U.S., parties to contracts, both in business and employment scenarios need to carefully review their existing agreements in order to determine how these recent events might impact their contractual obligations. For example, in the likely scenario that a party to a contract is presently unable to perform under the contract due to having to self-isolate, due to an office, workplace or business closing, due to having the virus or any other related reason, can that party be relieved of their contractual obligations without exposure for breach? The answer is IT DEPENDS.

An Act of God May Void a Contract

Generally, as employment attorneys, we handle the drafting, review and negotiation of contracts for employers and employees as well as for asset purchase, merger, partnership, buy out and other business transactions. While the purpose of a contract is to bind the parties, there are certain instances, where parties are excused from performance because a contract is found to be void and no longer enforceable under law. With a voided contract, the parties are no longer bound by the contractual duties set forth in the agreement. Circumstances that might render a contract void by operation of law include a lack of capacity to perform by one or both of the signors, mistake, breach, signing under duress or coercion, and impossibility of performance. Regarding this last circumstance, an act of God may be interpreted as something that makes the performance of the contract impossible or impractical. In this instance, and absent express language voiding the contract for an act of God or the rule of impossibility, one would attempt to argue that because of unforeseen occurrences which were unavoidable and would result in extreme delay or expense, the contract is void and as such, the promise to perform is discharged.

The Impact of COVID-19 and Act of God Provision in Contracts

It is no doubt already clear to you how all of this fits into the current state of affairs regarding the COVID-19 outbreak. If you are currently a party to a contract and are unable to fulfill your duties under that contract because of these unforeseen events, you might be able to declare the contract void and thus discharge you from your contractual obligations. The first step is to determine whether your contract contains an act of God clause, otherwise known as a force majeure clause. These clauses, often used in insurance contracts in order to remove or limit liability for injury and losses caused by acts of God, also find their way into other important transactional instruments. If your contract does not include an act of God or force majeure clause, generally speaking, one will not be implied. If your contract does contain a force majeure clause, the specific language used will determine the scope and applicability of the clause.  The fact that a contract contains a force majeure clause does not automatically mean that you have the right to breach or seek relief as a result of impacts to your business from COVID-19. Because these are unchartered waters, it is highly unlikely that your current contract terms reference this virus as an act of God covered by this clause. Absent such express language, you will need to determine whether an event of force majeure under your contract has occurred. This is a matter of both a strict reading of the contract language and contract interpretation.

An Employment Attorney Can Provide Guidance

With this in mind, it is important that you seek legal advice and examine any contract where you are experiencing challenges in fulfilling your contractual duties or receiving the benefits of the bargain under the contract, because of the COVID-19 situation. In the absence of express language, we will need to analyze and interpret the language in order to counsel you as to your rights and liabilities. It is not as easy as one might think to get out of a contract and avoid a breach as the standard for demonstrating “impossibility of performance” is a hard one to meet. A disruption that merely impacts the profitability of a contract may not be sufficient for a force majeure claim, nor would an economic downturn or other ordinary adverse business conditions likely be sufficient. Therefore, it is always advisable to expressly include (or to intentionally not include) a customized force majeure clause, depending on which side of the agreement you are on. This is something we discuss with our clients when drafting and reviewing agreements or will help our clients negotiate depending on what their objectives are. Needless to say, such language in your agreements could be a much needed life-line for your business or job, especially during the current crisis.

What is a Usual Force Majeure Clause

In examining your agreements for the relevant and controlling language, a contractual term which states only that the “usual force majeure clause” applies or that uses boiler plate language has been held void for uncertainty. A force majeure clause operates as an exclusion clause, excusing a party from performing its contractual obligations. It is therefore subject to the reasonableness test under the Unfair Contract Terms Act 1977 or the fairness and transparency requirements of the Consumer Rights Act 2015. A force majeure clause that is too broadly drafted maybe considered to be unreasonable and declared void, providing no effective protection to a party and leaving them exposed to a claim for damages. What we are now so keenly aware of is that a force majeure clause that references acts of God may encompasses much more than natural disasters and weather events. As such, the language will ideally reference not just acts of God, but also might include particular events such as pandemics, outbreaks and epidemics. One might even want to include trigger events such as quarantines, social distancing mandates, government imposed lockdowns, shutdowns, shortfalls, supply chain obstacles and the like in these clauses These are events that we might not have previously contemplated, but given what we know now, they should be discussed and considered so as to make your force majeure clause as clear and comprehensive as possible. Courts in this Circuit have held that force majeure clauses should be interpreted by reference to the express words used and not by the parties’ general intention. An optimal force majeure clause will typically seek to exclude liability or excuse non-performance in certain circumstances described with a high degree of specificity AND be followed by a catch-all phrase. It might also include language that requires the invoking party to demonstrate that the event could not have been mitigated by preventive action.

Sample Force Majeure Clause

As such, in light of recent events, the below sample language might be contemplated when advising our clients in their current and future contract matters:

“Neither party hereto shall be liable except under the indemnities provided herein and for the payment of monies due hereunder for failure to perform the terms of the Agreement when performance is hindered or prevented by strikes (except contractor induced strikes by contractor’s personnel) or lockout, riot, war (declared or undeclared), act of God, pandemics, epidemics, insurrection, civil disturbances, fire, interference by any Government Authority, including but not limited to government shut downs of business operations, mandated quarantines or curfews, mandated social distancing, or other cause beyond the reasonable control of such party and unable to be reasonably prevented.”

With regard to Asset purchase agreements and other corporate transactional contracts, these agreements might include what is known as a material adverse change clause (also known as a MAC or material adverse event (MAE) provision) in place of or in addition to an act of God or force majeure clause. A MAC clause, for example, might give the buyer in an asset purchase agreement the right to terminate if the target business being acquired is materially and adversely affected by certain events occurring in a specific time period. Once again, in this context the recent coronavirus outbreak might be interpreted to be such an event and the parties will therefore need to be properly advised as to the enforceability of their asset purchase agreement terms.

If you are considering declaring and enforcing a force majeure event in order to be released from an agreement (asset purchase, employment, business or any other contract), because of the coronavirus outbreak or if any party is attempting to invoke a force majeure clause against you in an existing contract because of the coronavirus outbreak, you should carefully review your agreement and consult with legal counsel as soon as possible. Just as importantly, if you are creating or entering into any new contracts, or wish to draft addendums or modify any existing contracts, you should seek legal advice. A proper force majeure clause might be the most important language in your agreement and be a matter of economic life or death in these trying times, presently and in the months to come.

If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at info@capclaw.com.

Free Yourself From Forced Arbitration

Free Yourself From Forced Arbitration

By: Jill Halper

At first glance, the word arbitration might sound like a less formal, lower cost, friendlier process than litigation. Certainly, in theory, it can be those things. But let’s talk about what it can also be…. forced arbitration can be devastating. It is an unconstitutional, unfair process whereby employees are prevented from suing their employers for potentially violating the law and are forced to have their claims heard and adjudicated in a private binding arbitration. This quasi-legal forum with no judge and no jury should be avoided by employees in almost all instances and to all extents possible.

Forced arbitration, also referred to as mandatory arbitration is an alternative form of binding dispute resolution used to resolve legal disputes out of the courts. Arbitration is “forced” when your employer requires you to sign away your right to go to court at the start of employment and before any legal dispute has arisen. Many forced arbitration agreements also ban groups of employers from coming together to file class action lawsuits. These forced arbitration provisions can find their way into employment offer letters, employment agreements, employee handbooks and even emails where the employee is instructed to electronically accept. Mostly, this occurs at the hiring stage, but there are times when arbitration agreements are presented in any of these forms after hiring and during the course of your employment and as a condition for continued employment, i.e. “forced”.

What you need to understand is that forced arbitration strongly benefits corporations and employers. Forced arbitration obstructs an employee’s pursuit of justice, violates employees’ civil rights and fails to hold employers accountable to employees and to the public. The mere fact the arbitration is forced and getting the job or being allowed to keep your job is a condition of entering into an arbitration agreement should make your hair stand on end. Here are just some of the ways forced binding arbitration can hurt you.

Arbitrations Are Private, Confidential and Not Transparent

For one, and what I see as the most serious concern with forced arbitration is that they are conducted in private, not publicly filed, and deprive plaintiffs of their day in court and the right to conduct discovery and a trial by jury. As such, forced arbitration is in fact arbitrary. They lack utter transparency, accountability and the employer is able to shield unlawful and unfair practices from the public. Not only is that a problem as a matter of public policy, but practically it takes away the leverage an employee might have to get an employer to the settlement table for fear of making their grievances public. The employer has no obligation or incentive to be transparent and to make things right. As a result of all of this, forced arbitration facilitates the perpetration of discriminatory and other unlawful and improper behavior in the workplace by preventing victims from being heard in an open court of law and preventing their complaints and stories from being made public. In addition, because there is no “verdict” and the findings of forced arbitration are private and confidential, there is no ability for future plaintiffs and their attorneys to uncover company-wide data to expose patterns and prior practices of discrimination and violations. In addition, arbitration does not yield publicly filed decisions and as such does not create legal precedent to inform future plaintiffs and their attorneys on whether laws have been violated and how to apply these laws to particular fact patterns.

Arbitration Favors Employers Not Employees

In addition to the above, forced arbitration strongly favors employer corporations as the employer selects and hires the arbitrator. In a court of law, neither party has the ability to select a judge and the process is blind. In addition, it is not uncommon that corporate executives may not only travel in the same social circles as the arbitrators and may be personal acquaintances of each other, but that corporate employers are often repeat offenders and as such become known by individual arbitrators in a particular market. Moreover, forced arbitration can be prohibitively expensive as plaintiffs may be required to share and sometimes even cover all of the fees, which include attorney fees. As in a court situation, both parties will want attorneys to represent them at an arbitration, so the costs can be significant on the flip side, there are far fewer options for pro bono counseling. Also, forced arbitration is binding and the rulings are final. It is almost impossible for employees to appeal an unfair or erroneous decision, as may be done in a court of law. Lastly, forced arbitration are subject to little if, any government oversight.

Employers Are the Clear Winners In Arbitration

In light of the above observations, employers and big business are the clear winners in this unjust and unfair process. The majority of time, forced arbitration results in favorable outcomes for employers. In fact, research shows that arbitrators are more likely find in favor of your employer and that employees are 1.7 times more likely to win in federal courts than in arbitration and 2.6 times more likely to win in state courts than in arbitration. In addition, forced arbitration settlements yield significantly lower damages for employees than in federal and state courts. (Sources: bit.ly/EPIArbitrationStudy, bit.ly/CPDArbitrationStudy)

Can Employees Avoid Arbitration?

So, what can employees do about this? You are already on your way as the first step is being informed. Now that you know how devastating a forced arbitration agreement can be, you will surely be aware of their existence in an employment context and take caution before entering into one. Remember that because forced arbitration benefits the employer, it is in their best interest that you sign on the dotted line. In order to accomplish this, they will often try to sneak a forced arbitration provision into your hiring paperwork. Courts have held that because employees entering into arbitration agreements are giving up their right to their day in court and a trial by jury, employers need to make these arbitration provisions obvious and bold and specifically identify the employee is waiving their right to a jury trial. Still, employers do not always comply with these common law requirements and it is easy for employees to get duped or pressured into signing away, especially when these agreements are forced, and a job offer or continuation of employment is at stake. As such, you must read all of your employment documents very carefully and it is advisable to seek legal counsel before accepting or signing anything. Also, be on the lookout for an email communication that may come anytime during your hiring or on-boarding process (or even later) that addresses arbitration. When presented in this form, there is usually a single step “option” to opt out of or opt into arbitration. It may be the case that just be failing to click the opt out, you have implied your consent to agree to arbitration. So again, you need to be very careful and immediately consult an attorney if any such email appears in your inbox.

Employees Can Negotiate and Sue to Avoid Arbitration

What else can you do to protect yourself in this situation. Because these arbitration agreements are forced and a condition of employment, you may believe that you have no choice but to sign in order to get or keep your job. For one, that is not always the case and experienced legal counsel in these matters can fight for you and attempt to negotiate this provision out of your agreement. In addition, we implement other legal strategies to protect our clients from these provisions such as the use of a sworn affidavit created and entered into by the client contemporaneously at the time of signing an employment/arbitration agreement; the employee makes a sworn statement that it was not their intention to sign an arbitration agreement, but that they had no choice and did so under duress and coercion. This can be helpful in the event there is a future legal dispute between the parties and the employer invokes the arbitration clause in an attempt to keep the matter out of court and compel arbitration. We can use this sworn affidavit as part of our practice in fighting the validity and enforceability of the arbitration agreement as it relates to the intent of the parties at the time the supposed contract was entered into.  We also file suit in court seeking a declaratory judgment action as whether the client had the intent to enter into the arbitration agreement.

Google Bans Forced Arbitration Agreements for All Employees

While all of this sounds rather scary (and it is), the good news is the courts and even some big business are seeing this the way we do, and strides have been made to get rid of forced arbitration. In one amazing example, the corporate giant Google recently promised to end mandatory arbitration for all current and future full-time employees, including temps, vendors and contractors by March 21, 2019, in order to resolve disputes such as harassment, discrimination or wrongful termination. Google employees, alarmed by this unjust practice actually banded together not through a union, and created Googlers for Ending Forced Arbitration. Through these grass roots, call to action efforts, a powerful and large coalition of 20,0000 plus employees was formed that stood up to their employer Google and worked to yield this ground breaking and encouraging outcome. Both Google and their employees should be lauded for this brave endeavor and perhaps (hopefully) other big business and band of employees can affect similar outcomes.

Congress Takes Action to Ban Forced Arbitration Agreements

To help this along, law makers are also seeing the light when it comes to forced arbitration. House Democrats recently (February 28, 2019) introduced a major bill that would protect access to the court system to millions of US employees. The Restoring Justice for Workers Act, which would ban businesses from requiring workers to sign arbitration clauses, is still being considered by congress.  If the legislation is passed, it would positively impact millions of US workers by giving them back their right to remove themselves from the unfair arbitration forum and have their potential claims heard in court.

If you are presented with a forced arbitration provision as part of your hiring documents and/or employment agreement, or at any time during your employment, do not sign until you consult with an employment law attorney. You will be giving away your rights and we caution you against doing so. Feel free to contact this office and we will be able to counsel you on this important issue, or help you with any of your employment law related needs.

 

Sexual Harassment Simplified: Are You a #MeToo?

Sexual Harassment Simplified: Are You a #MeToo?

By Jill Halper

Interestingly, although I have subtitled this article “Are YOU a #MeToo?”, a much more fitting and powerful subtitle would have been “Is it #Time’s Up For Your Employer?” I did not chose that subtitle, because I, like many, have always used the hashtag terms interchangeably and was not focused on any distinguishable meanings between the two phrases. Admittedly, even as an established employment attorney, I was not as up as I should have been on the subtle yet ever so important difference these two viral hashtags and relied solely on #MeToo in reference to my clients’ sexual harassment claims and experiences.

#Times Up Relates to Employment Only

However, as the number of incoming phone calls involving sexual harassment cases began to soar at my firm, it was time for me to dig deeper and contemplate the nuances in the social media phenomena. While I was well versed on the law, I needed to now be equally schooled in the sexual harassment social media vernacular and how I could use it to my clients’ best advantage. And that is when I learned that #MeToo is relevant to all victims and survivors of sexual harassment of any type, in any environment, while #Times Up is specifically meant to address sexual harassment IN THE WORKPLACE!

To further explain the difference between these two hashtags, #MeToo is a movement that deals generally with sexual violence and provides a platform and voice for ending sexual violence and for survivors of sexual violence. The #MeToo movement had been around for years before it started gaining national attention after allegations of sexual harassment by Hollywood producer Harvey Weinstein captured the headlines. The movement was created in order to encourage “millions to speak out about sexual violence and harassment”, according to the #MeToo website, and to promote healing and empowerment. To say it has been successful in this initiative, is an understatement. In contrast, #Time’s Up was founded on the premise that everyone, every human being, deserves a right to earn a living and to provide for themselves and their families, free of the impediments of harassment and sexual assault and discrimination at work. #Time’s Up is specifically focused on workplace issues involving fairness, safety and equity in the workplace. As such, #Time’s up was meant to indicate to an employer guilty of such behavior that their time is up and action will be taken. BINGO!

As a result of this simple, yet vital distinction between the underlying purposes of these two hashtags, imagine how powerful and compelling it would be to have an employer receive a formal letterhead communication from our firm with the phrase #TIMES UP _______(INSERT NAME OF EMPLOYER HERE) printed in bold large font  at the top of a sexual harassment claims letter, on behalf of one of our clients. That is exactly what we do and needless to say, it is most effective.

What Is Sexual Harassment In the Workplace?

But let’s take a step back and first understand if you might have a sexual harassment case in the first place. In order to get a better grasp on that, here is your sexual harassment made simple tutorial. Harassment in the workplace is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 and the laws in many states, including, Connecticut and New York. According to The US Equal Employment Opportunity Commission (EEOC), it is unlawful to harass a person because of that person’s sex. The law defines sexual harassment as unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature or based on someone’s sex, that it is severe or pervasive, creating a hostile working environment or affecting working conditions. This definition covers a wide range of unwanted comments and behaviors directed towards the victim, but the acts will usually be of a sexually charged tenor, including unwelcome sexual advances, requests for sexual favors, and other verbal comments or physical harassment of a sexual nature. In a workplace context, the victim may not only be an employee, but also an applicant. In addition, both victim and the harasser may be either a woman or a man, and the victim and harasser may even be the same sex. Lastly, the harasser may be a manager, supervisor or person in power, a colleague or co-worker, or even a vendor. In any of those scenarios, the employer may be found liable if they caused the behavior,  knew about the behavior and did not take steps to correct and stop it, or if they should have known through the exercise of reasonable care. Lastly, employers should have strong written policies in place against sexual harassment and clear procedures set forth for reporting and addressing sexual harassment. In fact, in some states, including Connecticut, employers of a certain size, are required to provide sexual harassment training for supervisors.

Despite these general guidelines and laws, sexual harassment can take many forms and courts have interpreted what constitutes sexual harassment on a case by case basis. As such, if you feel or believe that you have been a victim of any behavior in the workplace, by anyone in the workplace, that may be sexual harassment, we encourage you to seek counsel immediately as there are statutory deadlines within which claims must be filed. We will listen to and analyze your fact pattern, in order to determine whether you might have sound legal grounds for a sexual harassment claim. It is too often the case where if something feels wrong, it is wrong, and we urge you to speak up and make this right for yourself and others.

Start Your Own Investigation: Documents and a Written Narrative

Along with seeking immediate counsel, we also instruct you to maintain a narrative of everything that takes place, including dates, times and witnesses, and to also maintain copies of all written and verbal communications between you and the harasser/employer. In addition, it is crucial to report the harassment to your employer’s Human Resources department as well as to your direct boss or supervisor.

Increased Number of Sexual Harassment Claims Filed

It is no surprise that with the #MeToo and #Time’s Up movement, the amount of sexual harassment cases has greatly increased in the past year. The data in Connecticut mirrors national trends. The EEOC’s 2018 sexual harassment data shows more than a 50% increase in suits challenging sexual harassment over 2017.  Charges filed with the EEOC alleging sexual harassment increased by more than 12% over the same time period. Anecdotal information regarding the number of sexual harassment complaints filed with the Connecticut Human Right’s Office (CHRO) in the current year suggests an even more dramatic rise in the number of these claims in the first half of 2019. No doubt, the increase in sexual harassment claims and complaints based on sex discrimination coincides with the explosion of media headlines and high profile sexual harassment cases which sparked the #MeToo movement.

The simple fact is that sexual harassment is against the law and should not to be tolerated anywhere, but particularly in the workplace where employees should have the right to do their jobs and earn their livings free from abuse, discrimination, and mistreatment. Just because Connecticut does not generate the type of celebrity fueled headlines seen in other large cities, does not mean we do not have our share of victims, and in fact the data above shows that we do.

If you believe you are the victim of sexual harassment, it might be time to have us put your employer on notice that their TIME IS UP and seek to help you recover monetary damages relative to your legal claims for sexual harassment and discrimination. Feel free to contact  us at the number below, if you believe you have been subject to sexual harassment situation at work, or for any of your workplace needs.

Are Performance Improvement Plans (PIPS) Illegal?

Are Performance Improvement Plans (PIPS) Illegal?

If you have been placed on a Performance Improvement Plan (PIP) and think that this is an authentic and well-intentioned attempt by your employer to help you improve your performance at work, then think again. In truth, our experience counseling employees in these situations has consistently shown that an employer/manager only puts you on a Performance Improvement Plan as a mechanism to terminate you. Certainly, this is a hard dose of reality to swallow, as we all want to believe that our managers are there to guide and mentor us. But knowing that it is not the real goal and purpose of a PIP, will help you protect and position yourself as best as possible during this stressful time at your job. Please contact our employment lawyers in Fairfield County, CT if you’d like our guidance in navigating this challenging situation.

A PIP Is Intended to Set You Up For Failure

If you are reading this article and interested, you have probably already been placed on a Performance Improvement Plan or believe you are about to be placed on a Performance Improvement Plan, also sometimes referred to as a Performance Action Plan, and therefore likely know what this is. But for those who are unclear, technically a PIP is a plan presented by an employer to an employee when the employer believes said employee is experiencing performance related deficiencies. The plan often sets forth the alleged basis for the deficiencies and provides a set of tasks, goals and expectations to be met by the employee in order to realize improvement. However, make no mistake, these plans are designed to do just the opposite. They are implemented to set you up to fail.

Five Ways PIPs Make You Fail

How do they set you up to fail when they appear to want to help on their face? The answer to this is five-fold. For one, they impose standards and set goals and expectations that are unrealistically high and impossible to meet and succeed under. Second, the plans themselves create additional work and are so overly burdensome that complying with the additional requirements under the plan actually take your time and energy away from your basic job duties (the duties that you were supposedly having trouble doing or completing when you were NOT working under a labor intensive plan). Third, the employer/manager who decided that you needed to be placed on this plan also often operates as your evaluator while on this plan. As such, it only stands to reason that the employer/manager who placed you on this sham PIP, will similarly provide you with sham negative evaluations and sham negative findings throughout the PIP. Fourth, these PIPS, while operating under the guise of trying to help you, do not make any attempt to hide the fear and pressure they impose. Without question, the cloud of fear, criticism and intimidation under which an employee is forced to work on a PIP wreaks havoc on the employee’s psyche and creates a defeatist mentality. The employee quickly becomes discouraged, making it that much harder for the employee to stay positive and succeed. Lastly, a closer look at a PIP, and the actual execution of a PIP, will make it clear that there is little to no teaching, or mentoring taking place. The PIP, while aggressive in its critiques and exhausting in its expectations, usually provides NO actual help or guidance in getting there. Put simply, there is no genuine showing you how to improve, rather just a barrage of arbitrary and unreasonable assignments, observations, evaluations, goals and expectations to demonstrate “improvement.”

Don’t Walk, Run to An Employment Attorney!

So, this brings us to the next question… if the employer’s goal is to get rid of you, why go through the exercise of placing you on a Performance Improvement Plan in the first place, especially when the majority of employment agreements create “at will” employment arrangements where you can be terminated for any reason or no reason at any time. The answer to this question is exactly why you need legal counseling the moment you are placed on a PIP or believe you will soon be placed on a PIP. Our employment attorneys are to here to help you. Although most jobs are at will, employers are never permitted to terminate employees for unlawful, discriminatory or retaliatory reasons. In order to defend themselves against possible claims of discrimination or other unlawful actions taken against an employee, the employer will need to establish that an employee was terminated or treated adversely for cause. Therefore, if an employer has a discriminatory or retaliatory motive to get rid of an employee, they will need to create a narrative and calculate a plan by which to demonstrate that the employee was, in fact, a poor performer or provide other such cause for termination, in order rebut a presumption of discrimination the law provides to certain protected classes of people, such as employees over the age of 40, employees with disabilities, whistleblowers etc.

Employers Only Use PIPs to Defend Terminations

By placing you on a PIP, the employee is documenting your personnel file and setting the stage to rebut potential claims related to an unlawful termination. If they need or want to find cause to terminate you, they will under a PIP, given the overly burdensome requirements and arbitrary and impossibly high expectations set forth in these plans. Therefore, be warned, that placing you on an unwarranted PIP is a strategy used by the employer to demonstrate and document poor performance and failure to improve, when neither may be the case. And by doing so, the employer further shows that not only were you struggling in your job, but that the proper mechanisms were put in place to help you to improve, but you were unable to do so, thereby resulting in an apparent lawful termination for cause.

This scenario, as described above, is both common and especially disconcerting in a public school setting. In this context, highly experienced and tenured educators over the age of 40 are often targeted because they are at the top of the pay scale and can be easily replaced by younger teachers earning half as much. Because of their tenured status, these teachers may only be terminated at a tenured teacher termination hearing, which will be warranted after the school has found they are failing under a PIP. In most cases, public schools use a two tier PIP process whereby a teacher is first placed on an initial PIP and once they fail under that PIP, they are placed on an intensive PIP, under which they are even more certain to set up to fail. At any time during this intensive phase, the termination for cause hearing may be ordered. As such, being placed on a PIP has become a most feared and devastating event for these hard working older teachers who have devoted their lives to this honorable profession. Do you still think a Performance “Improvement” Plan is meant to help an employee improve and succeed? Our age discrimination lawyers in Connecticut don’t, and we will fight for you.

A PIP Can Be An Adverse Employment Action

Further to this discussion, in order to prove a claim of discrimination, an employee must show that an “adverse action” was taken against them by their employer. Because these PIPS have become well known springboards to termination, being placed on an unwarranted and undeserved PIP can be considered, in and of itself, an “adverse action”. As such, an employee should not wait to be actually terminated before seeking legal counsel from an employment lawyer in this situation. If you are a member of a protected class, as soon as you are placed on an unwarranted PIP; the adverse action has occurred; the writing is on the wall, and the end is near. In addition, once an employee places an employer on notice of legal claims of a discriminatory adverse act, if/when the employer does terminate you, you may want to consider asserting additional claims of retaliation. As such, we encourage you to seek legal counsel as soon as possible to document your discrimination claims and understand your rights and the statutory deadlines by which these claims must be filed. We also encourage you to keep a detailed narrative of everything that takes place as soon as the words “Performance Improvement Plan” are uttered, and to rebut in writing any determinations that are made prior to and during the plan, which you believe are a sham and unwarranted.

While we would love to be wrong about the so called Performance Improvement Plan, our experience in this area has unfortunately proved us right. Please do not hesitate to contact our discrimination attorneys if you are in this untenable and frightening situation, or with regard to any of your employment needs.

Attorney Jill Halper can be reached at (203) 255-4150 or info@capclaw.com.

 

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

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

You have been terminated from your employment and have been fortunate enough to be offered the opportunity to separate from your employer by way of a severance agreement. A severance pay out can certainly be the silver lining in the otherwise unfortunate scenario of losing your job. In fact, it might even seem too good to be true – receiving compensation from your employer without having to work anymore and sometimes in addition to earnings from a new position. But as they say, if something seems too good to be true, it probably is. In fact, severance paid to a soon-to-be-former employer does not come FREE and there are usually substantial conditions that come along with this payment, or what the law refers to as “consideration.” As the employee, it is crucial that you are fully apprised of what you are giving or giving up in return for this payment. Knowing this at the outset means that the agreement under which the severance is offered needs to be meticulously reviewed, understood and negotiated, before you sign.
It is important to begin any conversation of severance agreement with the understanding that a severance agreement is a contract and as such, once executed, the terms and conditions are binding for both parties. While severance agreements can take many forms and vary substantially, these agreements are almost always generated by the employer and provided by the employer to the employee. As such, there are certain provisions that typically find their way into these agreements that can work to the detriment of the employee and to the benefit of the employer.
Here are examples of such severance contract items that need to be carefully considered – before you take the money and run.

Release of Claims/General Release

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

Amount of Severance

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

Non-compete

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

Expiration Date

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

Disparagement and Confidentiality

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

Bridging Pay or Set-off

Many severance agreements include language that reference severance pay out as money intended to “bridge” the time between when you are terminated from your current employer and when you seek re-employment and regain earning a living. In essence, what this seeks to accomplish is that once you gain new employment, you are obligated to inform your former employer of this and that your severance will stop on the first day of your new employment. Severance is often paid out over the span of the severance period, in conjunction the company’s usual pay roll schedule. However, we believe severance is intended to and needs to be treated as a lump sum settlement amount to which you are fully entitled, regardless of if and when you begin a new job. Even though it might technically be paid out over the course of the bridging period, at no time, even in the event of re-employment, should you be deprived of the full amount of this settlement. We will always seek to have this set-off clause removed from the agreement.
While every severance situation is unique, generally speaking these are just some of the types of matters that we counsel our clients on when they come to us after having been terminated and presented with a severance/settlement/release agreement. Our goal is to educate and counsel the client on what they are signing and specifically what they are giving up in return for the severance payout. We will then discuss what needs to be negotiated and work with the employer and opposing counsel in getting an optimal, more balanced and legally sound agreement presented to our client.
If you’ve been terminated by your employer and offered a severance agreement, let the employment lawyers at Carey & Associates, P.C. help you feel confident before signing on the dotted line.
Get in touch today!
 

Pregnancy Discrimination: Reviewing Lactation Legalities

Pregnancy Discrimination: Reviewing Lactation Legalities

Central to any present-day discussion of pregnancy discrimination is the issue of lactation and nursing moms in the workplace. The practice of breastfeeding has expanded in recent years and various legal issues have accompanied this development.

The law is designed to protect moms who breastfeed in almost all 50 states, Connecticut included.

The Patient Protection and Affordable Care Act (P.L. 111-148, known as the “Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide, “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”
Employers must provide as many breaks as are needed by the employee. Employers are also required to provide, “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”
Therefore, the Federal statute ensures that employers provide nursing employees with a time and a space to “express milk” if there is an employee with this need and the employer is made aware of the need.  Moreover, all employers covered by the FLSA must comply with the break time and private place provision for nursing mothers. Small businesses with less than 50 employees, who are not covered by the FLSA may be exempt from the FLSA provisions if they can demonstrate that compliance with the provision would impose an undue hardship.

How does all of this apply to employers and nursing employees in Connecticut?

The FLSA requirements for nursing mothers to express breast milk does not preempt state laws. And in fact, state law in Connecticut actually provides greater protections to nursing employees. The Connecticut Breastfeeding Coalition joined with the Departments of Public Health and Labor, and the Commission on Human Rights and Opportunities to create the, “Guide to Connecticut Breastfeeding Nondiscrimination and Workplace Accommodation Laws.” A closer look at the guide and the law in CT will show CT to be a state that gives great deference to, and places high public importance on, the protection of breastfeeding moms in the workplace.
Michele Griswold, chairperson of the Connecticut Breastfeeding Coalition said, “Most people want mothers and infants to be healthy, but not all understand the connection between breastfeeding and improved health outcomes. Taking steps to remove barriers for breastfeeding mothers and their children is a win-win situation for everyone. Increased breastfeeding rates ultimately mean healthier communities.”
Specifically, in the state of Connecticut, ALL businesses, regardless of the size, must provide breastfeeding protection in the workplace. Conn. Gen. Stat. Section 31-40 (along with the Patient Protection and Affordable Care Act, amending Section 7 of the Fair Labor Standards Act) requires employers to provide a reasonable amount of time each day to an employee who needs to breastfeed or express breast milk for her infant child and to provide accommodations where an employee can do so in private. And these CT laws apply to all businesses in CT regardless of their size or number of employees.

Sec. 31-40 entitled CT Breastfeeding in the Workplace reads as follows:

(a) Any employee may, at her discretion, express breast milk or breastfeed on site at her workplace during her meal or break period. CT case law has expanded this provision to mean, when possible this milk expressing activity should occur on your meal or other work break, but if it occurs at another time the employer is not obligated to pay you during the pumping break.
(b) An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private.
(c) An employer shall not discriminate against, discipline or take any adverse employment action against any employee because such employee has elected to exercise her rights under subsection (a) of this section.
(d) As used in this section, “employer” means a person engaged in business who has one or more employees, including the state and any political subdivision of the state; “employee” means any person engaged in service to an employer in the business of the employer; “reasonable efforts” means any effort that would not impose an undue hardship on the operation of the employer’s business; and “undue hardship” means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, its financial resources and the nature and structure of its operation.
This requirement in CT is a much harder standard to meet than the Federal statute as it defines undue hardship as posing a, “significant difficulty” for the employer.
It is also important to note that whereas the Federal statute defines the protected activity as “expressing milk” in the workplace, the State of CT law is unique in that it protects and allows mothers to actually breastfeed their babies in the workplace, and/or express milk/pump.
If you are a mother returning to work after pregnancy and believe that your employer is failing to provide you with the breastfeeding protection you are owed under Federal and State law, please feel free to reach out to the employment lawyers at Carey & Associates, P.C. for help in this area, or for help with any other matters involving pregnancy discrimination in the workplace.
Remember: A CT business is not permitted to discriminate against, discipline or take any adverse employment action because you’ve elected to exercise your right to breastfeed or express milk at work.

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