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?