Employment Law Attorneys
C’mon, Man! Employees Continue to Get Screwed Over

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

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.

The Workplace of Tomorrow III: A New Path

The Workplace of Tomorrow III: A New Path

By Fran Slusarz

About a million years ago, I remember hearing that the Star Wars epic was meant to track the rise and fall of the Roman empire. It starts as a republic, becomes an empire as its boundaries grow and power is consolidated, becomes corrupt because power corrupts, and finally it falls. After the chaos, a new government starts the cycle again as a republic. I have no idea if this is true and, in any event, once Leia survived the vacuum of space with her Poppinsesque flying power it no longer mattered. But the New Path for The Workplace of Tomorrow is very different and we are going to show you why.  So, let me tell you about the Old Path first so you can get your bearings.

The Old Path

Once upon a time, a person could expect to work for one or two companies (at most) for their entire adult lives, earn a decent wage, and retire with a pension. Manual laborers were unionized and enjoyed income and job protection from the strength of their ability to bargain collectively. Office workers were not typically union members, but their identities as employees of particular companies were practically encoded at the DNA level. Men (and they were nearly all men) at IBM wore dark suits, white dress shirts, rep ties, and wing tips. Men at Procter & Gamble wrote P&G Memos. In those days, a man could start off working in the mailroom with a high school diploma and, if he were hard working, smart, and white, he could make it to the Executive Suite.

Technically, most of the non-union “Organization Men” were employees at-will. They could leave at any time, for any reason, and their employers would terminate their employment at any time and for any reason. It just didn’t happen very much. The sense of community and shared purpose that eludes modern businesses was alive and well on the Old Path. Those team-building activities we “enjoy” at company retreats were unnecessary because companies fielded baseball teams and bowling teams and engaged in a variety of other activities. The International Ladies Garment Workers Union had a famous chorus that recorded tunes, gave concerts, and showed off their chops in many memorable commercials of the ‘70s.

Better Start Swimming Or You’ll Sink Like a Stone

Things began to change as union membership decreased in the 50s and 60s. The turbulent economic times of the early ‘70s through early ‘80s (oil embargo, inflation, recession, rinse, repeat), followed by the corporate raiders throughout the 80’s effectively severed the symbiotic relationship between workers and management in America. Raiders would take on huge debt to take over control of a public company, and then strip assets from the company to pay their debt or otherwise profit. These takeovers invariably involved massive layoffs and reorganizations of the companies. “Flat organizational structures” became de rigeur as middle management all but disappeared and my high school classmates’ fathers became “consultants;” i.e., unemployed.

In the 30+ years since Black Monday, October 19, 1987 – the day the stock market crashed and lost 22.5% of its value – the connection between employer and employee has become more tenuous and opportunistic. Black Monday triggered an economic downturn and both parasitic layoffs. Same thing in the Dot Com Bust, the Great Recession, and now the Covid19 era.

The flipside of knowing your employer doesn’t have your back and your employment at- will can be terminated at any moment, is a lack of loyalty to your employer. In other words, employees do not trust their employers will protect them, even though the employer needs the employees now more than ever to – just survive. Ironic isn’t it?  I haven’t checked recent statistics, but GenX, Millennials, and GenZ are expected to change jobs 10-20 times in their adult working lives.

Enough with the History. Where’s this New Path?

I am not an at-will employee, nor do I breathe the rarified air of those with written contracts of employment for a specific period of time and who can only be terminated for cause. So, what am I? I am a traveler on the New Path.

Mark Carey, who has written on why at will employment is a bad rule and how it was invented by lawyer in 1877, puts his money where his mouth is. My employment is not terminable “at will,” it is terminable “for cause.” It means no one from my office has been laid off during the pandemic.  We are all in this together and I have a vested interest in the success of my employer. It means if I do my job, my employer will have my back. In exchange, I’ve agreed to stay with my firm unless I have good reason to leave (i.e., reduction in pay, demotion). The Thirteenth Amendment prevents Mark from enforcing my side of the deal, but the trust engendered in his commitment to me as his employee engenders my reciprocal promise to stay.

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

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

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

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

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

DOWNLOAD YOUR COPY OF OUR
We're here to help with COVID-19 questionsRead More