by Mark P. Carey | Apr 30, 2021 | Connecticut Employment Law Attorney, Connecticut Employment Lawyer, Mark Carey, New York Employment Attorneys, New York Employment Lawyers, Podcast, Severance Negotiation
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.
Podcast
by Mark P. Carey | Apr 27, 2021 | Employee Survival Guide, Employment Counseling, Mark Carey, Podcast, Team
Employment Tips From A Manager: Becoming a Great Employee: In this episode of the Employee Survival Guide, Mark shares important employment tips from a manager on how to become a great employee. These employment tips from a manager are gathered from real life employment law cases Mark has litigated and from his years managing employees at his office. These employment tips from a manager include the following:
Treat Every Work-Day Like It Was Your First Day on the Job
Bad Habits and Practices Are Always Discovered
It’s Still a Privilege to Work for a Company
Don’t Discriminate
When Your Boss Gives You a Goal, Don’t Assume it is the Ceiling–it may be the floor
You’re An Adult, Act Like One at Work
Additional Links to further information mentioned in the podcast:
the-7-habits
Fight Or Flight Response
https://en.wikipedia.org/wiki/Golden_Rule
The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.
Your Host Mark Carey
The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years. Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits. He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.
Employee Survival Guide Podcast is Like No Others
The Employee Survival Guide podcast is just different than other lawyer podcasts! How? Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few. This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about. Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company. Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing! Well, now you have the Employee Survival Guide to deal with your employer.
Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions. Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective. Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.
If you enjoyed this episode of the Employee Survival Guide please like us on 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.
by Mark P. Carey | Apr 23, 2021 | Employment Counseling, Employment Law Blog, Mark Carey, Newsletter, Thoughts
By Mark Carey
If you have been around the workplace as long as I have, you can definitely separate out good and bad employee behavior. I have litigated both sides of employment cases for the past 25 years and currently act as a manager in my office for the past several years. I offer the following tips to keep you moving in a positive direction and becoming a great employee.
Treat Every Work-Day Like it Was Your First Day on The Job
Do you remember the first day of any new job you started? Yes, the feeling of newness, new colleagues, escape from the old rigid culture of your last job; it was a new relationship and the honeymoon just started. You went “all in” and you were generally excited about the new gig. You felt you belonged in this company and you walked around like you owned it. Fast forward two or three years later, now you are settled in and comfortable in your new surroundings at work. You have new work friends and your employer is acknowledging your positive performance. But then something unexpected/expected happened, “you’ve lost that loving feeling” about your job and it has turned into just another job where you look forward to time off away from work. Overall, you are doing just the right amount, in comparison to your work colleagues, and you are just getting by. What happened? Where did the mojo go? If you are not careful, your ambivalence may get the best of you as employers do notice; it’s the employer’s job to take notice of all employee behavior. I suggest you do a reset and figure out what made you so happy about your job when you first started working for the company. Are you falling back on bad habits from your prior work history? Take a fresh look at your advancement opportunities within the company and how you can create more equity and more compensation for yourself. If you cannot, then maybe it is time to move on.
Bad Habits and Practices Are Always Discovered
I have this superpower, I can determine exactly why an employee or executive client was terminated from the last position, regardless of the explanation offered by the employer and the client. When I receive a new case from a client I request a detailed factual narrative about their employment leading up to the termination. Although I only ask for facts and not conclusions, we get a one sided emotion filled story from the client. When the facts are compared to the employer’s version of the events, you can sparse out the clients with good claims and those clients who maintained bad work habits that eventually got them fired. Bad work habits can be anything from being argumentative, tardiness, insubordination, lack of attention to detail, conducting personal affairs on business time, only doing the bare minimum, not seizing opportunities to market the company’s services, etc. The worst habit is not knowing you are following your bad habits. Why do employees self-sabotage and why can’t they see the warning signs in advance? I can only offer a partial answer as part of the problem lies in the psychology of the employee which is outside the scope of my pay grade. We all have habits, good ones and bad ones. Accordingly, good habits are formed over 21 days (Steven Covey- The 7 Habits of Highly Effective People). But bad habits are formed over a lifetime and can be changed or unlearned. Try reading Covey’s book. I would also suggest the book Designing Your Life by two Stamford University Engineering Professors, which is based on the number one class at the university.
It’s Still a Privilege to Work for a Company
Until you are financially well off and lucky enough to start your own business, you have to work for someone else. When you apply for a new job, you are applying for the privilege to work for a company. That privilege is controlled by the employer, who can take it away at a moments notice. Notice, I did not say you are “entitled” to work for your employer because you are not. But when employees start a new job they begin the psychological disconnecting process veering away from respecting the privilege to work for the company to an entitlement mentality. I think we all know what I am talking about. I see it all the time, especially when the ax falls and the work identify is severed from the individual. Some say, “that job was my life” or “how can they do this to me after twenty years of dedicated service” and on an on. Now do you see the entitlement ideology that many employees create. It is still a privilege to work for the company, even after twenty years. Some employees seem to have forgotten this very basic element of the contractual employment at-will relationship they have with their employers. It was the same when you started and it was the same when you were fired. Wake up and respect the privileged situation you have and throw out the other garbage in your head that confused you that your job was no longer a privilege—that it was yours and no one could take it away. As an employment attorney/part-time armchair psychologist, I see this pattern and behavior in many employees. If you heed this simple consideration, you will improve your overall performance, receive more respect amongst your work colleagues and your boss, your individual attention to your job will be enhanced and you may just begin to enjoy your job at a much deeper level. Don’t ever lose this focus.
Don’t Discriminate
Need I say anything more? Unfortunately, this issue boils down to human nature. I am constantly thinking about this issue and why some employees engage in unlawful discriminatory behavior. Aside from the existence of real discriminatory bias, this is what I have concluded over twenty-five years of practicing as an employment attorney. Employees are hard wired for “fight or flight” at work and everywhere else. I call it the “crazy brain mentality”. Part of your brain is rational, empathetic and thoughtful, but the other wild side of your brain only seeks to self-promote, judge others who appear different than you, acting selfishly, reacting in a defensive posture, etc. This protective layer is cast out in an effort to protect employees against some form of “harm” they believe may come to them. What is the solution here? Simple, “audi alteram partem” which is a Latin phrase for “listen to the other side”. Listening means giving respect, even though you do not agree with the other person. But the more you listen, learn and digest how the other employee views the same reality, it will cut off your crazy brain from activation and allow your rational side of your brain to become more empathetic, sincere, understanding etc. even though you maintain a polar opposite point of view. The smartest and most successful position to attain is the one that truly reflects both positions with rationales for and against both, with a little bit of the right amount of humor to defuse the hostility. Right now in today’s workforce, and as a society as a whole, listening to the other side is altogether absent or is intentionally ignored in favor of drama and destructive ideologies based on the color of your skin, your gender or your age! Remember, listen more and react less. Throw a little bit of the golden rule on top of that and you should be good to go.
When your boss gives you a goal, don’t assume it is the ceiling- it may be the floor
Goals are important and carefully crafted goals are critical to how and if your team follows those goals. I see many employees only seek to hit the bare minimum and forget that they actually can over achieve a goal. A goal is only a floor and not ceiling. Do not ever forget that your employer is watching you and does take notice of slackers, team players and overachievers. Which one are you? Remember, working is a privilege, not an entitlement.
You’re An Adult, Act Like One at Work
You would be surprised how ridiculous grown men and women act in the workplace. I personally view the American workplace as a cesspool of maldeveloped psychologies that come together everyday with unbridled umbrage over people, internal fiefdoms, status, money etc. Remember the playground antics and bullies when you were in grade school? Yes, those memories! Well, all those nasty malcontents are now adults and no one ever told them to grow up nor trained them about how to be an adult at work. Do me a favor, please follow the golden rule, it will save your job, your career and your sanity. It will also save you from hiring an employment lawyer like myself to undo what you created all on your own.
If you need more information about this article or want to discuss your employment with an employment attorney, please call Carey & Associates, P.C. at call (203) 255-4150 or email to info@capclaw.com. Thank you and be safe and well.
by Mark P. Carey | Apr 21, 2021 | confidentiality agreements, Employment Contracts, Employment Law Blog, Mark Carey, Newsletter, Severance, Severance Negotiation, Severance Negotiations
By Mark Carey
Whether or not you use an employment attorney to review and negotiate your employment severance agreement, you need to know the mechanics of the agreement. The following discussion will go in depth and explain the legal terms in an understandable way. If you need further information on severance negotiations, we have written about severance agreements and negotiations in previous articles, read HERE and HERE.
Generally, all severance agreements accomplish one task, paying employees to release their claims against the company in exchange for money and confidentiality. I have seen thousands of these agreements in my twenty-five years of practicing employment law for employees and executives. They are all relatively the same in the terms, but differ in their layout. Most law firms use the same template, so I see the same agreement used over and over again.
The Intro Paragraphs
The initial paragraphs of every severance agreement identify the parties to the agreement and include a couple of “Whereas” paragraphs. The “Whereas” paragraphs are prefatory and not required in any agreement. I usually strike them as irrelevant.
The Non-Admission Provision
Every severance agreement includes a provision that the employer is not making an admission of wrongdoing, even though the employer’s actions were objectively discriminatory or wrongful. A non-admission provision is standard, but to the newly terminated employee, this provision seems awkwardly strange given the employee’s experience leading up to the termination.
The “Show Me the Money” Consideration Provision
Consideration or aka the payment provision. Well, for employees this is the most important provision in the agreement—what they will be paid to release their valid claims against their employer. It is important to consider the following structure when drafting the consideration or payment provision. First, all money paid to an employee to settle an employment case is taxable as income. Second, you can split the settlement payment into parts to take advantage of tax planning. The employer will also like this option too, as they pay less in FICA. We normally allocate 60% as 1099 income and 40% as W-2 income. This allows you to receive a larger lump sum as less taxes are deducted. The employer will require you to indemnify the employer if and when the IRS challenges the settlement agreement Form 1099 payments. In reality, I have never seen nor heard of the IRS conducting audits on client settlement agreements.
Attorneys’ Fees are Tax Deductible Against Gross Income
Remember, if you spent hard earned income on attorneys’ fees pursuing employment discrimination claims only and you received a judgment or a settlement in your favor, you can deduct the total amount of the attorneys’ fees against your gross income on your Form 1040. You can only take this deduction for the year in which the case settled or judgment occurred. See the attached link below. This is a crucial element to your decision to accept settlement, as most employers refuse to pay for your legal fees to get to a settlement. You are not alone if you never knew about this important IRS regulation. We regularly advise clients about this deduction, but it is recommended you speak to an accountant for tax advice. https://turbotax.intuit.com/tax-tips/tax-deductions-and-credits/can-i-deduct-legal-fees-on-my-taxes/L98fUeOrM
General Release of All Claims
When employers pay severance in exchange for a signed release, the general release provision is the primary provision most employers are concerned about. This provision effectively identifies every conceivable claim, known or unknown, that the employee has and then causes the employee to waive all such claims. Most severance agreements set forth a long laundry list of state and federal statutes the employee is agreeing to waive claims under. However, some claims can never be released in a written severance agreement, as state and federal laws prohibit such waiver of claims. For example, you cannot waive and release the following claims: (1) workers compensation; (2) unemployment insurance claims and (3) claims made to any self-regulatory government agency such as the Securities & Exchange Commission (SEC).
Challenge to Agreement or Enforceability
Most severance agreements contain a provision that if you seek to challenge the enforceability of the agreement, you have to return the money. That seems fair and it is. But some employers also sneak in penalty provisions in case the employee breaches the agreement for speaking out about the settlement etc. Employers often seek the total value of the settlement or some six figure amount to protect the employers in case the departing employee goes rogue and publicly denounces the employer on social media platforms. This penalty provision often shows up in cases where there is a lot of bad blood spilt between the parties, particularly after a lawsuit is filed. We strongly advise clients against these draconian provisions and inform employers they are overreaching and are already protected by non-disparagement clauses and employee confidentiality agreements previously signed at the start of employment.
No Other Amounts Are Due
Employers often place a redundant provision in the agreement that the company does not owe the employee anything more. I say redundant because the release provision should have covered every claim under the sun.
Non-disparagement Clause
Every severance agreement contains a non-disparagement clause, but one only applicable to the employee and not the employer. We advise clients to include a mutual non-disparagement clause to be signed by the employer so it does not engage in blacklisting, which is a very real phenomenon. You will need to name specific individuals and managers when negotiating a mutual provision, as employers object to having to police their entire workforce. I personally never liked that response, but hey, these are called negotiations for a reason—you don’t get all the things you want and must compromise or litigate.
References and Employment Verification
Contrary to urban legend, employers do not provide references to departing employees. What they do provide is a 1-800 number to confirm your employment and title, but nothing more. If you have a good reference still within the company, I suggest you get that in writing or have the person contact your new employer directly.
No Future Employment
Most if not all severance agreements contain a provision that bars you from obtaining employment with the company, or its’ subsidiaries, in the future. Yes, this is perfectly legal. What the provision really accomplishes is that it prevents future liability by the company in the event you re-apply for a position and claim you were somehow discriminated against for a failure to hire. If you asserted claims against the company prior to termination or thereafter, be reasonable with yourself and do not expect the company will want to rehire you. Consider yourself “canceled” by your old employer.
Return of Company Property
Severance agreements require you to return company property upon your termination or before you receive your severance payment. You would be surprised by the number of times I have had to explain what is and is not company property to former or departing employees. I often use the example of company email; you know the one containing your corporate email address. Well, the email and the piece of paper it is printed on do not belong to you. So if an email does not belong to you, everything else the employer gave you to do your job also does not belong to you. My biggest concern arises when the employee tells me he wants to hold onto the hard drive he purchased that contains the company email list, client list, power point presentations and any other corporate proprietary information. All of the above company property must be returned to the employer or you risk getting sued for theft, conversion of property etc. and risk breaching your severance agreement and returning the money paid to you under that agreement.
Entire Agreement or Full Integration Provision
This is a standard term in all well drafted employment agreements, including severance agreements. Essentially, the only terms of the agreement are those terms set forth in the severance agreement. Any oral or written agreements made prior to the full execution of the severance agreement are nonbinding and unenforceable. So be careful in your review of your case so that you do not hold expectations that are not realistic. You would need to have an employment attorney evaluate a prior oral agreement to determine if it is viable prior to signing the severance agreement. Some employers have promised severance prior to the severance agreement but then walked back those promises. Again, an employment attorney can help you dissect this important legal issue. You may discover that your employer created a severance plan of one person—you.
Non-competition and Non-solicitation Provisions
We often see employers sneaking into severance agreements brand new non-competition and non-solicitation provisions where none previously existed during the employee’s employment. We advise clients to strike these provisions and most employers do not raise the subject again. As employment lawyers, we see this tactic used every day, but you do not. This is one example where you should involve an employment attorney to review your agreement, whether helping to negotiate it with the employer or from behind the scenes. We also see employers reaffirming the prior noncompetition and non-solicitation provision signed at the start of employment into the severance agreement. Again, we advise clients to challenge the inclusion and enforceability of these restrictive covenants. Most employers will back away once they are met with a good argument as to why the prior agreements are unenforceable.
Agreement Signed In Counterparts
It is common to include a provision that the parties to a severance agreement can sign in separate counterpart copies, each of which will be considered one fully executed agreement. Counterparts are exchanged via email and facsimile, as well as in person.
21 Days to Sign or Else
Don’t panic if you have not signed your agreement within the 21 days, as spelled out in the “proposed” agreement. There is no state or federal law that states you have 21 days or 45 days to sign the severance agreement. If the agreement is not signed by you, do you think you have an enforceable contract? No. So, ignore the 21 or 45 day threat and just speak with an employment attorney to discover what claims or leverage you have to increase the severance amount. Often times, consulting with an employment attorney will pay off in huge dividends to you in the form of a much higher settlement value at the conclusion of the negotiations. The difference or delta here is the employment attorney. She or he has the professional experience you lack, and it is that experience and knowledge of the law that is applied to your narrative to develop claims that stick against your employer. As you read above, your legal fees are 100% tax deductible, so why wouldn’t you explore your potential claims with an employment attorney?
Confidentiality Provision
I saved the best for last. Of course everyone knows that you give up your legal rights in a severance agreement, but many do not know you also agree to a “lifetime” of silence. No, you cannot write a book about your horrible employer if you agree to take their blood money! But the reason why I saved this topic for last is because of recent social and legal developments. The #metoo event and the aftermath that followed brought with it a new understanding about confidentiality agreements, also called nondisclosure agreements (NDAs). The social issue that has arisen is that we are no longer comfortable letting the bad actors of the world get away with their misdeeds, in particular any misdeed of a sexual nature—regardless of gender or sexual orientation, by covering them up with confidential settlement agreements. Think of Harvey Weinstein or the former Met Opera conductor James Levine. For decades and continuing today, every single employer requires the departing employee sign a confidentiality provision in a severance agreement in exchange for severance payments. This is the default rule followed by all employers. This default rule has only caused more employees to be harmed by the same bad actors who caused the previous cases that eventually settled.
Many states like New York have created statutes requiring a voluntary confidentiality agreement, separate and apart from the settlement agreement. While this sounds like a good idea, it has already been abused by employers. Most employers will now apportion a part of the settlement payment to be exchanged for a signed confidentiality agreement. Simply, the legislators were lobbied by employers and should have banned the use of settlement dollars in exchange for signed confidentiality agreements.
The bottom line for you is this. We are just not at the social pivot point for you to resist the use of confidentiality provisions in settlement agreements, so don’t waste your time arguing about this issue with your former employer. But one day confidentiality provisions in employee severance agreements will be banned as a matter of statute and public policy. This is a nonpolitical issues, as both liberals and conservatives use confidentiality agreements to conceal the illegal misdeeds of their managers and employees.
If you need more information about this article or want to discuss your severance agreement with an employment attorney, please call Carey & Associates, P.C. at call (203) 255-4150 or email to info@capclaw.com. Thank you and be safe and well.
by Mark P. Carey | Apr 13, 2021 | Employment Law Blog, Mark Carey, Newsletter
On April 12, 2021, I set out to ride my 2000th mile toward my solo journey to 10,000 miles in a year for a cure of Multiple Sclerosis. I have could not have picked the worst day to ride weather wise. The rain and wind pelted my sore body early on in the ride, but I still had 32 miles to go. I could not turn back, just as I could not turn back on my 10,000 mile ride for an MS Cure. At the end, I swear I felt hypothermic, as the temperature dipped into the low forties; I was soaked to the bone. Once you buy into this sort of thing, the only thing that will stop you is an injury or an accident. I have the injuries, but fortunately no accidents. In addition to the hard rain that day, my legs are still recovering from high altitude training (10,000 feet above sea level) from three weeks prior. At my age, the body feels the pain longer than when I was younger, but again, no turning back. My cause is greater and matched by my persistence to succeed.
In case you are wondering how I can ride this many miles in a week, here’s a little peak into the madness that is required to ride a stationary trainer, Peloton bike, and the wide open hilly roads of Connecticut for 10,000 miles in a year. My total current elevation gained is 22,192 feet, by comparison Mount Everest is 29,032 feet tall. I initially started hammering out 30 mile rides at a time multiplied by five rides a week (schedule is 27 miles a day for 365 days). But given I started the journey on January 10, I started out in a deficit by nearly several hundred miles. I began doing what I call “double doubles”, where rides would last 60 and in one case 80 miles in one day. Either I would ride the morning and evening, 30 miles a piece, or just bang out a cool 60-80 miles. That’s four plus hours on a bike; this is no small feat of psychological and physical endurance. I occasionally take a day off just when I can’t think of riding another mile due to fatigue. Fortunately, I have experienced less pain as the miles have piled on. Part of me starts to think about doing this every year, but the jury is still out. Today, I average 40-50 miles per ride, as my base training is completed and now I am just racking up mile after mile after mile etc.
Please make a donation today and BUY MILES for this worthy cause! Donate a $1.00! I need your donations to continue riding, no I am not kidding. Right now I have raised $4101.00. Show your support to help cure Multiple Sclerosis, put more gas is in the tank and I can ride for more miles. I need your help, donate today and use this link https://www.facebook.com/donate/233329948389093/
Thank you in advance for your support! Ride on!
Mark Carey
by Mark P. Carey | Mar 24, 2021 | Discrimination, Employee Complaints, Employee Survival Guide, Family Medical Leave Act, Mark Carey, Podcast, Reasonable Accommodation, Team
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.
For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.
The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship. Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.
by Mark P. Carey | Mar 10, 2021 | Employee Survival Guide, Independent Contractor, Mark Carey, Noncompetition & Nonsolication Agreements, Podcast
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.
For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com or email at info@capclaw.com.
The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship. Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.
by Mark P. Carey | Feb 25, 2021 | confidentiality agreements, Employee Survival Guide, Employment At-Will, Forced Arbitration, Mark Carey, nondisclosure agreements, Podcast
In this episode of the Employee Survival Guide Mark confronts systemic barriers created by employers that promote inequality of gender, age, race, sex, sexual orientation etc. and protects bad actors and bad companies from public exposure of their illegal actions and public shaming. Mark examines the current social equality movement (#metoo and BLM) to find system barriers thrown in their faces of employees by the very employers who publicly denounce sexism and racism. Employers should be banned from using confidentiality agreements in employment discrimination settlements. We should ban the employment-at will rule because it only promotes biased discrimination in the workplace. And finally, every case should be made public instead of being forced into the black hole of arbitration. We need to know how our employers are treating our coworkers and ultimately ourselves.
The Employee Survival Guide is a podcast only for employees. We will share with you all the information your employer does not want you to know about and guide you through various important employment law issues. The goal of the Employee Survival Guide podcast is to provide you with critical insights about your employment and give you the confidence to protect your job and career, especially during difficult times.
YOUR HOST MARK CAREY
The Employee Survival Guide podcast is hosted by seasoned Employment Law Attorney Mark Carey, who has only practiced in the area of Employment Law for the past 25 years. Mark has seen just about every type of employment dispute there is and has filed several hundred lawsuits in state and federal courts around the country, including class action suits. He has a no frills and blunt approach to employment issues faced by millions of workers nationwide. Mark endeavors to provide both sides to each and every issue discussed on the podcast so you can make an informed decision.
EMPLOYEE SURVIVAL GUIDE PODCAST IS LIKE NO OTHERS
The Employee Survival Guide podcast is just different than other lawyer podcasts! How? Mark hates “lawyer speak” used by lawyers and just prefers to talk using normal everyday language understandable to everyone, not just a few. This podcast is for employees only because no one has considered conveying employment information directly to employees, especially information their employers do not want them to know about. Mark is not interested in the gross distortion and default systems propagated by all employers, but targets the employers intentions, including discriminatory animus, designed to make employees feel helpless and underrepresented within each company. Company’s have human resource departments which only serve to protect the employer. You as an employee have nothing! Well, now you have the Employee Survival Guide to deal with your employer.
Through the use of quick discussions about individual employment law topics, Mark easily provides the immediate insight you need to make important decisions. Mark also uses dramatizations based on real cases he has litigated to explore important employment issues from the employee’s perspective. Both forms used in the podcast allow the listener to access employment law issues without all the fluff used by many lawyers.
If you enjoyed this episode of the Employee Survival Guide please like us on 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, 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.
by Mark P. Carey | Feb 24, 2021 | confidentiality agreements, Discrimination, Employment At-Will, Employment Law Blog, Mark Carey, Newsletter, nondisclosure agreements, Termination for cause
As we await the dawn on this purported new era of social change in America, I can promise you that your employment rights will not improve. I am unapologetic. In fact, your employment rights have been so eroded by your employers that we are collectively veering toward ever more systemic inequality and racism in the workplace. Now that I have your attention, what are YOU going to do about it?
You have sat on the sidelines watching others do the heavy lifting, but when are you going to start questioning your employer regarding your employment and the selfish one-sided employment practices you are somehow required to follow, such as the employment at will rule, confidentiality of settlement agreements, and forced arbitration of employment disputes. Can you say “No”? Maybe?
A majority of you, may never question or oppose your employer because of fear – of losing your job, income and benefits. I get the financial insecurity issue faced by all, but that’s the employer’s only leverage! “Come on Man”, as President Biden is often quoted as saying. But really, come on men, women and other, how much pain and suffering has to occur before the collective “YOU” says enough? If we are in the midst of a new social revolution in support of diversity and equality where big corporations have piled on diversity support initiatives, solely for marketing purposes in my opinion, then we should be seeing signs of dramatic changes to reverse racial inequality at work, promote pay equality and the end of firing older workers (55 and above) just because they cost too much.
Wait, pause, listen- what’s that? Is that the sound of my meditation music playing in the background? If #metoo and BLM are real long lasting social movements to correct the injustices at work, I should not be able to hear anything over the gigantic thunder of public outrage toward racial, sexual and age inequality hurtling at my office windows, internet, television, etc. I have not heard nor read anything after the recent election that indicates real changes beyond political hyperbole. And as far as I can see, employers continue to default into the same old management practices of yesterday. Nothing has changed, nor will it change. Employers will continue to screw YOU (collectively) for the near future. I am writing this article in order to make you understand what your employer does not want you to know about; “default management practices” are real and designed to suppress the collective YOU literally.
Here is why. Employers continue to require the following chains of servitude and secrecy solely to promote their default “control at all costs” position at your expense. You did know your current employment system stems from the centuries old practices of Master and Servant, right? The following employment practices are inherently racial, sexist, ageist, homophobic and just downright undemocratic, but you will not hear anyone else dare to say these truths. I will because I do not care what management or corporations say. Why don’t you feel the same way?
NDA’s and Confidentiality Agreements Conceal Bad Actors and Bad Companies
Shame and more shame. If you statutorily ban the use of confidentiality provisions in settlements of employment discrimination cases, bad actors and bad companies will stop discriminating. Why? Companies will seek to avoid public shaming if we all knew – that a CEO attempted to rape a subordinate, that a billionaire hedge fund manager fired a woman with young children and recently diagnosed with two forms of aggressive cancer, that a Black man was immediately fired after being asked and gave an internal talk regarding the BLM movement, that an older man was fired for losing his voice box due to cancer and told he did not have a physical disability, that a pregnant woman was fired from a large public company because her brain allegedly changed as a result of her pregnancy. Need I go on?
Some states have decided to ban confidentiality provisions in employment settlement agreements, but they have not gone far enough because employer lobby groups temper down the statutory language and create gaping loopholes for employers to slither through. For example, some employers have conditioned part of the settlement payment requiring the employee (victim) to sign a separate confidentiality agreement. I brought this to the attention of the relevant state Attorneys General’s Office without even a response. The statutes are worthless because employers always seek the default to control you and control their self-interest.
Here is the bottom line, remove all confidentiality provisions from every employment settlement agreement and you will directly and substantially decrease all forms of racial, ethnic, sex, sexual orientation, disability, religious and age discrimination. Think about the millions of dollars saved by companies that could be used to train more employees and managers about the Golden Rule. The money saved by not having to pay attorneys’ fees to employment lawyers like myself. Please, I beg you to put me out of business, I would be glad to retire. But employer’s cannot seem to give up this “confidentiality” drug. There is absolutely no contrary rational argument in favor of the continued use of confidentiality provisions to shield bad actors and bad employers; if there is one let me know. So why does this nonsense continue? That’s how powerful employers are, always seeking to maintain this “default” management practice. And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice. It’s a bipartisan effort to screw you! As I continue to say, employment law is not political- but NELA says it is (Disclaimer: I am a NELA member, but a registered republican doing the peoples’ work).
Employment At-Will Conceals Discriminatory Behavior and Must Be Banned
I will beat this drum till the end of time. Most employees, except those in Montana, are capable of being fired for no reason at all and at any moment – this is the employment at-will rule. The rule should be banned nationwide and replaced with a termination for cause rule. The at-will rule arose out of the Master and Servant context and is still the current management default rule adversely impacting – everyone, except those employees in Montana and executives with the clout to demand employment contracts with severance and termination for cause.
Why is the at-will rule so dangerous? When employers do not have to give a reason for termination, employers and managers, who hold a discriminatory bias of any kind, can quietly terminate employees they do not like. Yes, the at-will rule promotes racism, sexism, disability discrimination, ageism etc. But again, employers are so addicted to this rule, they can’t give it up. This issue is equivalent to the opioid crisis and more companies and management counsel continue to prescribe this drug of choice. That’s how powerful employers are, always seeking to maintain this the most coveted of all “default” management practices. And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.
Instituting the termination for cause rule would result in decreased discriminatory practices, as employers would be required to demonstrate an objective factual basis to support the decision to terminate, not one that was arbitrary and capricious – which is what discrimination is.
Forced Arbitration Conceals Everything Bad That Your Employer Does Not Want You To Know About
What is forced arbitration? Simply, your employer says it is a quicker and cheaper way to resolve employment disputes. It’s not quicker and it’s not cheaper – for you! It’s called “forced arbitration” because your employer mandated your job offer or your continued employment on your signing the agreement. You could not negotiate it away and it never benefits you at all. It is a management default rule and more than 50% of employees in the United States are adversely impacted by this one sided practice.
What is it really? The sole purpose of arbitration agreements in the employment context is to “conceal” bad actors and bad companies. The adverse effect on all employees is identical to the default use of confidentiality agreements. This default rule is so entrenched in our work culture that courts overwhelmingly compel arbitration in nearly all cases; concealing your claims of discrimination to a nonpublic black hole. There is absolutely no way to publicly discover what types of claims were sent to arbitration, as google cannot crawl it and Westlaw (lawyer research database) can’t search it. It is as if those claims never happened at all, i.e. the woman who was almost raped by the CEO, the Black man fired after being asked to give a BLM explanation etc. Worse, you cannot shame the corporations for what they did- that’s the point! It will take an act of Congress to overturn the Federal Arbitration Act, and this current Congress won’t touch this with a 100 mile pole. That’s how powerful employers really are, always seeking to maintain this “default” management practice at every level. And worse yet, companies controlled by progressive liberals and conservatives follow this default management practice.
You now know what I would propose, but what will you do to effect real change?
If you would like more information about this topic or would like to hire an employment attorney, please contact Carey & Associates, P.C. at info@capclaw.com or call (203) 255-4150.
by Mark P. Carey | Feb 18, 2021 | confidentiality agreements, Employee Survival Guide, Mark Carey, nondisclosure agreements, Podcast
In this episode of the Employee Survival Guide, Mark explores The Long Overdue Death Of Non-Disclosure Agreements: Uncovering The Hidden Truth Of Employment Settlements– the use of nondisclosure or confidentiality provisions in settlement agreements. In essence, employers seek to hide their bad acts behind confidentiality agreements and shield them from public disclosure. Mark explores a new California statute being proposed that will further provide transparency to unlawful employer conduct. Finally, Mark provides a solution to creating more equality in the work place by banning nondisclosure agreements and two other initiatives he has been raising for several years.
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, 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.
