This article features a current employment discrimination case brought by a former Metlife employee in Connecticut on December 4, 2019. The employee, who is Black, accuses Metlife of race discrimination in her employment. The case was filed pro se and I volunteered as pro bono counsel along with a colleague in May 2020. The case is captioned as Stefanie Cunningham v. Metlife Group, Inc. and Metropolitan Life Insurance Company, 3:19-cv-01912 (AWT) (D.Conn.). A copy of the First Amended Complaint is attached hereto.
In September 2011, Ms. Cunningham became employed with Metlife, in the company’s Bloomfield, Connecticut offices. She worked there continuously and with good performance reviews until racial problems arose in her employment. During her tenure, Ms. Cunningham was working towards her Ph.D.
In July 2017, Ashlee Tringo, a biracial African American, became Ms. Cunningham’s supervisor. Ms. Cunningham’s former supervisor was Ms. Tringo’s husband, a Caucasian. Ms. Tringo asked Ms. Cunningham if she was Puerto Rican, and she responded no, that she was African American. You are probably thinking, why is the supervisor attempting to discover her race and why is that even relevant to her work duties—it’s not! Ms. Cunningham retorted that she does not talk about her race at work and that she was raised African American. Coincidentally, Ms. Cunningham’s sister was also employed at the company. Ms. Tringo further asked why Ms. Cunningham and her sister had different textured hair. Specifically, Ms. Tringo inquired if Ms. Cunningham was mixed race or biracial. Adamant, Ms. Tringo argued that she could see the textual differences in the sisters’ hair and demanded to know why. Again, these are not relevant questions related to work and are discriminatory.
During her training, Ms. Cunningham was confronted by another African American employee who was providing job training. The employee stated to Ms. Cunningham “you are a fake black person”. Ms. Cunningham immediately reported the incident to Human Resources and explained how shocked she was by the work environment at Metlife. An investigation ensued but as usual the company failed to confirm the existence of any discrimination or even that the racial statement was made.
In October 2017, Ms. Tringo abruptly gave Ms. Cunningham a written warning that was factually baseless and intended to harass Ms. Cunningham.
During her employment she would attend daily team huddles, wherein Ms. Tringo again made comments about Ms. Cunningham’s hair, that it is kinky and looks like pubic hair. Again, why is this even relevant to Ms. Cunningham’s work duties and performance—it’s not.
Ms. Tringo would often discuss her personal life while at work in front of Ms. Cunningham. “Ms. Tringo described the details of taking a shower with Matt [her husband and Ms. Cunningham’s former supervisor] at his parents’ house, compared to her new master bathroom at their new home, with sexual inferences. Ms. Tringo stated that she had more white girlfriends then black ones and in fact she stated she didn’t have any black girlfriends. She also told Plaintiff and others how she was a bully in school and that she had her friends help her bully and taunt a girl for stealing her sneakers.” (First Amend. Compl. ¶23).
On July 17, 2017, a federal judge (Judge William Pauley, III, deceased) in Manhattan approved a $32.5 million settlement to resolve a racial discrimination class action suit filed by former Metlife financial service representatives. “At Metlife, we are committed to promoting a diverse and inclusive workplace and do not condone discrimination,” Kim Friedman, a company spokesperson, said in a July 6, 2017 email to Bloomberg BNA.”
On April 25, 2018, Metlife received a state agency complaint for racial discrimination that Ms. Cunningham had filed the same day via telephone. On that same date, Ms. Cunningham received a written warning for allegedly “not being productive”; she refused to sign the warning. “After being handed the warning [Ms. Cunningham] just started to cry as she had tried so hard to rise above all the discriminatory conduct and finally hit a wall.” (First Amend. Comp. ¶ 57). After the complaint was filed, Ms. Tringo targeted Ms. Cunningham and made every attempt to force her to quit. Eventually, Ms. Cunningham was forced to take a medical leave of absence on June 7, 2018 due to the enormous stress caused by Ms. Tringo’s racial discrimination directed at her.
Before her leave, Ms. Cunningham repeatedly complained to Human Resources in January 2018 but nothing was ever done to correct the racially hostile work environment which continued until the day Ms. Cunningham left on a short term disability leave of absence. She relayed all of Ms. Tringo’s racial comments, that her hair looks like pubic hair, whether her hair was real, if she used chemicals to straighten her hair, if she was the lightest one in her family etc. The Human Resources employee admitted Ms. Cunningham should not have been treated in this discriminatory manner and told her she would speak to Ms. Tringo directly. Ms. Cunningham requested a transfer out of the department, but the Human Resource employee stated she had to work out her differences with Ms. Tringo. How does a Black employee work out “differences” created by a racist bi-racial supervisor they are forced to work under? Things got even worse. Ms. Cunningham was denied a promotion by Ms. Tringo, which was given to a lesser qualified Caucasian co-worker. In February 2018, Ms. Cunningham again complained to Human Resources asking to be removed from an unhealthy work environment. The Human Resource employee denied her request.
On May 7, 2018, Metlife concluded it’s purported investigation of Ms. Cunningham’s complaints of racial discrimination and reported that it had found no racial issues. The HR investigator told Ms. Cunningham she had interviewed her coworkers, but Ms. Cunningham asked her coworkers if anyone from HR had called them. Her coworkers all denied being questioned by HR. On June 6, 2018, Ms. Cunningham filed a police report complaining of a hostile work environment and racial discrimination.
On June 1, 2020, Metlife tweeted on its social media account, “As a company that is deeply committed to diversity, inclusion and human rights, we will strengthen our resolve in advocating for change and in doing our part so that we build a society that protects all people and values all voices.”
On June 18, 2020, the Metlife Foundation “announced it was committing $5 million over the next three years to advance racial equity in the United States. The Foundation will use these funds to promote Black educational and career opportunities, Black business ownership, and racial-justice initiatives…Metlife Foundation’s $5 million pledge will supplement the $10 million in annual contributions it already makes to support diverse communities and racial equality, along with $100 million in impact investments made by Metlife Investment Management to support diverse communities and small businesses.” However, Metlife never defines what these initiatives are or defines impact investments. You would need to research these in company filings made to the Securities & Exchange Commission, but who besides me has the time and patience to do so—no one that’s the point—it’s all a marketing and public relations program to make it appear Metlife is concerned about important social issues.
The Metlife Foundation announcement goes on to include this statement, “[I]n 2019, Metlife joined CEO Action for Diversity & Inclusion, the largest CEO-driven business commitment to advance diversity and inclusion in the workplace.” The Metlife CEO is Michel Khalaf, who reportedly earned $15,434,255 in total compensation in 2020. (Source) All CEOs who join the initiative pledge a specific set of actions the signatory CEOs will take to cultivate a trusting environment where all ideas are welcomed, and employees feel comfortable and empowered to have discussions about diversity and inclusion.” Remember, this CEO initiative began at the same time as Ms. Cunningham’s racial discrimination case was getting under way.
The CEO pledge reveals the primary goal for all company CEOs that sign it, “we know that diversity is good for the economy; it improves corporate performance, drives growth and enhances employee engagement.” The pledge contains four commitments all company CEOs have committed their organizations to:
We will continue to make our workplaces trusting places to have complex, and sometimes difficult conversations about diversity and inclusion.
We will implement and expand unconscious bias education.
We will share best—and unsuccessful—practices.
We will create and share strategic inclusion and diversity plans with our board of directors.
On June 24, 2020, Metlife tweeted “[i]nclusion is a priority at Metlife. Click here to read how we’re using our Global #Inclusion and #Diversity Insights Study to strengthen our culture: spr.ly/6011GKo11” When you click on the last link in the text it produces a 404 error code meaning the company page was taken down. Why?
According to the company’s website regarding Global Diversity Inclusion “Our Workplace”, the company fails to include any information about Blacks on this set of pages describing current diversity and inclusion initiatives. Why?
On June 21, 2021, Metlife filed a certified EEO-1 form to the U.S. Equal Employment Opportunity Commission, which reveals that no (zero) Blacks or African Americans occupy positions in the C-suite (Executive Officers/Senior Officials & Managers). Overall, Blacks or African Americans occupy only 3% of the entire company workforce. In comparison, Blacks and African Americans comprise 13.4% of the U.S. population, according to the latest Census data. However, Dr. Cindy Pace, African American, is the Vice President, Global Chief Diversity & Inclusion Officer at Metlife. She has held this lead role since April 2019. She tweets at https://twitter.com/savvycindy.
Ms. Cunningham’s case continues to the present. As her attorneys, we have recently filed motions to compel further discovery and motions for sanctions against the defendants and their legal counsel. The issues involved in each motion address the wholesale failure to provide relevant discovery to Ms. Cunningham and absurd legal objections designed to conceal the very same racial discrimination alleged in the First Amended Complaint. In addition, Metlife has sought to shield a great many documents behind the attorney-client privilege. However, as claimed in Ms. Cunningham’s motions, Metlife abused the attorney-client privilege because the attorney identified in the defendants’ privilege log was not admitted in Connecticut during all dates of his communications from New York to the defendants’ employees in Connecticut who were handling Ms. Cunningham’s internal complaints of discrimination and her agency complaint for the same. Strangely, during a telephone conference, I was sternly warned by defendants’ legal counsel not to pursue a claim of the unauthorized practice of law by the out-of-state attorney in New York, who was also a former associate at the same firm. Both the District of Connecticut and the Statewide Grievance Panel will have to decide this issue.
What is your impression regarding Metlife’s efforts to support Black Lives Matter and Diversity Initiative while also handling of Ms. Cunningham’s case during the same period of time? Is Metlife canceling Ms. Cunningham while at the same time seeking to promote its’ corporate image related to the treatment of Blacks in America? The aforementioned information was all derived from publicly available information.
If you would like more information about this article, please contact our employment attorneys at Carey & Associates P.C. at 203-255-4150 or email to info@capclaw.com.
Employer Mandated Covid-19 Vaccinations for All Employees
By Mark Carey
Employers can now mandate all employees to get a Covid-19 vaccination as a condition of their employment without violating federal laws. This resolution was anticipated but it is unclear how the guidance will be followed after the population falls short of the so called herd immunity. On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance that allows all employers to require a Covid-19 vaccination in order to work, with two exceptions. Specifically, the EEOC guidance states for all employees entering back to the physical workspace, they must provide proof of vaccination. The guidance is just that, not a governmental mandate. The EEOC is the primary agency in charge of enforcing work related policies and statutes.
Direct Threat – Primary Rationale by Employers
In essence, the EEOC stated that if an employee refuses to show proof of vaccination, then the employer has the right to prevent the employee from coming to the physical workspace and terminate the employee if necessary. The primary rationale is that an unvaccinated employee poses a “direct threat” to the employer and its’ employees, which trumps the few employment rights employees already have. There are two exceptions. First, if the Covid-19 vaccination would interfere with the employee’s medical condition, including pregnancy, he or she has the right to request a reasonable accommodation under federal disability laws. Second, if because of religious reasons the employee does not want to become vaccinated, he or she again can request a reasonable accommodation from the employer. In both cases, the employee must provide supporting documentation that they qualify for the exemption. The employer is required to follow federal law and provide an interactive discussion regarding possible reasonable disability and religious reasonable accommodations.
Will the Government Mandate Vaccination to Win the War Against Covid-19?
Although I was interested in providing this newsworthy item, I was more interested in the future of how this guidance will be enforced once we have reached a national impasse where far too many employees refuse to vaccinate and the pandemic roils onward. Forget everything we now know, including politics, as these are unchartered waters. How do you require employees to vaccinate for Covid-19 against their will? Answer, by the force of the rule of law due to a national health emergency. I wrote about this issue recently, Employer Mandated Covid-19 Vaccinations- Can They Do that?. Remember, your individual rights are only as strong as the country you belong to, but if the country is under attack – guess what- the government takes over to defend us all. The governmental action will not come from the EEOC, but from an Act of Congress under the War Powers Act (War Powers Resolution of 1973).
The federal government will pass legislation requiring all employees to become vaccinated in order to finally bring an end to the pandemic and the overall infringement on our personal freedoms. I predict this will happen once we see a resurgence of Covid-19 cases in the unvaccinated population and it will be riding tandem with the end of the vaccination efficacy period for which data is still emerging, i.e. the date when the current Covid-19 vaccines wear off. These events might also coincide with a substantial decline of the Covid-19 vaccines efficacy against new highly contagious variants. If this perfect storm hits the U.S., consider it an act of war and the federal government will institute an unprecedented vaccination mandate requiring all employees, including the non-working population, to vaccinate. Our government is immensely powerful indeed, regardless of who is in power, and it can declare an act of war against foreign enemies; we just have not done so since 1942. It is not impossible. Covid-19 is that foreign enemy. Prepare yourselves, as this may get uglier before the enemy is finally defeated.
Feedback Responses to Cancel Culture is Illegal At Work
When I decided to write the first article (Cancel Culture is Illegal At Work!) I knowingly anticipated immediate judgment and backlash. In essence, I knew I was going to be canceled. That was the point. I was inviting debate about the entitlement mentality – to cancel others at will. What I knew to be true was the lack of legal substance to the argument in favor of cancel culture being used and defended at work. How could there be. In order for any legitimate social/political argument to arise to future public policy and statutory initiation, there would need to be a foundation based on prior legal precedent. Without legal precedent, cancel culture supporters are just acting arbitrarily based on social passions. Passions and emotions are high certainly. It is not my intention to criticize cancel culture, but to show the negative consequences of unfettered and arbitrary bias and the impact legally. Yes, it is still illegal to cancel at work and I invite any argument to support why it is not. I am listening but are you listening to my question here? To ignore me is to cancel me. To accept opposing viewpoints is only wise, as it will convince opponents there may be a sliver of justification for cancel culture. All of our American legal developments that address social concerns always follow this same process – seeking a foothold in the rule of law, as discussed below.
Angry Feedback Without Legal Foundation
In response to my first article I received several angry email responses informing I was wrong about what is cancel culture and accused me of perpetuating whiteness. But none of the objections to the article provided a legal basis to support the continued use and protection of cancel culture at work. This is my point. Proponents of cancel culture are not even understanding the legal issues or just ignore them entirely in order to perpetuate their narrative. Social movements must have a footing in the rule of law, otherwise they do not and will not survive. Advocates of cancel culture never cite any legal basis to support its existence but for the fact it just “IS” and we should all heed to it.
The Future of Cancel Culture at Work
The future of cancel culture at work will definitely result in lawsuits against individuals based on reverse discrimination. Now currently, only a select number of federal statutes provide individual liability, particularly 42 USC 1981. Section 1981, as it is commonly referred to, is a post-civil war reconstruction statute to protect and enfranchise early African Americans to own land of their own and to contract for business purposes, both of which did not previously exist. Today, employment lawyers, including myself, use Section 1981 to combat race discrimination in the workplace of any kind, whether Brown, Black, White, Hispanic, LatinX, Asian. Congress and the courts have never specified which race was protected by the statute; actually the word race was never mentioned in the statutory wording. Although it did set the standard to measure against, “as is enjoyed by white citizens”. 42 USC Section 1981 states specifically,
“(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”
Individual Liability for Employees Who Pursue Cancel Culture at Work
Most people who pursue cancel culture at work do not realize they can be sued individually for race discrimination under Section 1981. This is commonly referred to as reverse race discrimination, but that phrase too is also not mentioned in the statutory language. To be clear, reverse race discrimination can apply to any race.
Courts are responsible for this development and the use of Section 1981 to protect all races against invidious race discrimination. Cancel culture IS invidious race discrimination. There is no legal argument to be used to say that it is not. In fact, the point of this article is to demonstrate the utter lack of foundational legal support behind cancel culture at work. After all, we derive our individual rights, liberties and protections from the “rule of law”. In order for cancel culture to rise to its assumed zenith, it must first ground itself in the rule of law. What do I mean by this? Let’s assume a cancel culture event occurred at work and the employee perpetrating the canceling seeks to vindicate his “legal” right, not social right, to cancel another employee. The employee must assert legal “standing” to do so. Standing is a legal term that defines the right or opportunity to contest a legal interest. Where is the standing to “cancel” another employee at work? I have yet to hear any cogent argument to support cancel culture standing in the legal, not social, context. There are none. Cancel culture at work is illegal. I predict cancel culture will not survive because it is legally flawed.
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 Facebook, Twitter 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.
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 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 Facebook, Twitter 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.
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.
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.
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/
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 Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.
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.
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 Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.
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.
