By Mark Carey
We all work but we are not all equal in terms of our knowledge of working. In fact, there is a complete absence of accessible information related to a general internet search for the following phrase employee knowledge of employment rights or any similar search terms. Why is that (I am excluding any legal sites like ours www.capclaw.com from this search). What forces are at play here? Is this the result of a concerted employer/human resource community lobbyists to conceal information from the masses? Simple answer, yes!
There are 157.5 million working Americans and there are no businesses or websites marketing to this population to aid them in understanding their employment rights and benefits. Sites like glassdoor.com, indeed.com, linkedin.com, ziprecruiter.com, monster.com etc. do not serve up information about employee rights and benefits. Why is that? In contrast, there are hundreds, if not thousands, of websites providing consulting services to employers from everything to payroll, consulting, dealing with employee apathy, risk management, human resource functions and training.
There Are Two Forces At Play Here
After many years of handling employment cases, I have a unique and comprehensive understanding about all things considered employment. I discovered that employees are apathetic regarding learning about employment rights at all, mostly due to fear of challenging their employers and the presumption that employment laws are only for the understanding of management teams, human resource departments, lawyers and judges. Similarly, having dealt with hundreds of employers, I have concluded that employers, defense counsel and employer lobby groups have worked diligently to keep employees in check and in the dark about their rights. Why? Simply- to control employees. Knowledge is power, but here the knowledge is only possessed by employers. See the imbalance here? Do you feel the same way?
Employee Apathy About Their Legal Rights
The type of employee apathy I am referring to here is not the typical employee apathy you often hear about, i.e., reengaging employees to do the work they were hired for. What I have seen from clients over the years is a lack of a working knowledge of employment laws to provide internal guidance and protection against their employers. We typically see clients rush in after an emergency at work like receiving a PIP (Performance Improvement Plan) or a severance package upon termination. The clients are desperate for answers and what their legal rights are when faced with these situations. I am not shaming or faulting apathetic employees here, because employers actually caused the apathy in the first place! How are employers creating apathetic employees?
Concerted Employer Disinformation
Employers maintain employee apathy by controlling everything about your employment, including the information employees are provided. Think of the bland information your employer provides about employment rights on internal HR Portals or contained in employee handbooks. The content is written for defense purposes only and are reactionary rather than concerted employee focused attention and advice giving. Reactionary because employers were previously sued, lost or settled, and have shored up their employment defenses through HR content. Employers miss the mark. They view employees as only essential for-profit reasons but treat employees as opponents in every other regard. This oppositional attitude is beginning to wane, and employers are deeply worried. Employees should speak up for themselves and demand to be treated more fairly. Employers should trust employees more than they currently do.
Also tenuous is the siren call for more diversity and inclusion by employers in response to racial social tensions last summer. We all knew and know this was just a marketing event for most companies to get in line with the movements and nothing to do with leveling the playing field with employees of any race, age, disability, gender etc.
After litigating far too many employment cases, I came to the realization that employers do not care about employees, only controlling them and bolstering profit margins. Employers, both large and small, seek to limit the amount of employment law information they want employees to know about. But you may say that employers provide an appropriate level of employment information for employees to consume, understand and adhere to. Yes, I know there is a poster about employment rights next to the copier, but did you read it? Yes, I know there is the employer’s employment manual, but did you read that too? Your employer, and now some states, require your attendance with company sponsored seminars/training on sexual harassment and other forms of discrimination. Did you turn the volume down when listening to the recording enough just to hear the code to submit to the vendor or HR? Yes, I thought so!
What is the motivation by employers to limit or conceal employment information from employees? Again, employers seek to maintain a command-and-control work environment. In other words, the less information employees are provided about employment laws and their employment rights, the more control employers have. Employees spend considerable amounts of their lives working, gathering information and experience building individual careers. But even as employees work endlessly, they never seem to gather a working knowledge of employment law and their employment rights such laws plainly seek to protect. It is truly a dysfunctional relationship, wherein employers don’t talk about employment law issues openly, hoping the issues just disappear under the rug somehow. Sound familiar? If the opposite were true, then I would have no reason to write this article.
Employers have a direct incentive to keep employees in the dark regarding employment laws and regulations. The less employees know about their employment rights, the more control management and human resource departments have over employees and the workplace in general. The more control the more risks employers take with employees, often times illegally and that’s where I come in. Ask yourself this question, when was the last time your employer spent time with you explaining what your employment rights are and how you can protect yourself against the employer? This type of communication never happens in any company. Why? Management concluded it always needs to be in control over employees and this ideology has roots going back hundreds of years. But now this management tactic appears outdated, antithetical to the employee rights and current social thinking.
New Emerging Employee Attitudes
Employee attitudes are changing dramatically in the wake of the covid-19 work from home strategy employed by many companies and the cultural unrest of the summer of 2020. Employees feel more productive when they have flexibility to define their day around personal and business needs. These employees are collectively being heard by management and our near-term work/life future may very well involve some form of hybrid work from home environment. Employees argue they are more productive working in this hybrid model and many employers agree. Employers should listen more closely to employees and discover what their employees really want. Employees want more control over their daily lives, instead the unbridled 8-10-hour work days of the past. In a few cases, some employers are exploring the four-day work week under the conclusion more time off will make employees more efficient and loyal.
Although social consciousness has substantially increased regarding equality and diversity, employee attitudes related to job discrimination and employment rights in general has remained stalled in neutral for the past thirty years. Honestly, employees are not at fault here. Employers have created a default management practice, a phrase I like to use often because no one does. There is a concerted management practice propagated by consulting companies and employer side defense attorneys to run operations with a firm management control ideology. This simple ideology entails little information sharing, maintenance of fear amongst employees to deter challenges to management decision making (pro-retaliatory animus), overuse of noncompetition and forced arbitration agreements, and the perpetual use of the employment at-will rule.
Where Are We Headed?
I predict our current stressful times and political climate will result in dramatic improvements in our workplaces. Employers now realize they cannot continue to treat employees just as widgets and must create ways to garner employee trust and create a fairer working environment. For example, Amazon just snuffed a union attempt by convincing employees the company can do more than what the union would provide on their behalf. Employers must treat employees as co-equals in the workplace, instead of as opponents. Employers must remove the oppressive employment-at-will rule and replace it with a termination-for-cause rule, which are the same rules used in union organized shops without the union dues. Employers must remove the forced arbitration (like Google did in 2019) and forced confidentiality settlement agreements and make all employment matters externally transparent, i.e. less dysfunction. Yes, I am talking about you Bridgewater Associates and General Electric. Finally, employers must protect their coveted employees by providing objective and neutral educational information about employee rights. Instead of using employment defense counsel to give employment law seminars to employees, employers should hire plaintiff employment lawyers to speak to employees about their employment rights. Are employers concerned employees will discover information management did not want them to know about? Of course, that’s the point. The culmination of less secrecy and more education will directly result in less inequality, less racism, less ageism, and less discrimination across every employment category. Employees will feel more protected, than opposed, and more trusted and loyal to the employer’s mission. Why hasn’t this happened sooner? Employers keep getting the same old default management advice and are too scared to take the risk to do the right thing. There, I just saved employers millions in consulting fees if they would only accept my free suggestions.
If you would like more information about this article, please contact our employment attorneys at Carey & Associates, P.C. at firstname.lastname@example.org.