By Mark Carey,
If you listen, just wait a moment, you will hear it. The sound of an employer tsunami racing across the country clawing back the work life improvements employees gained during the past two and a half years since the pandemic began. Can employees nationwide let this just happen? Do employees have a say in the matter? This is not a union fix issue, it is a every employee issue. It is a chance to take a stand, to expand everyone’s rights, and eliminate discriminatory behavior. Are we at a pivot point in history to make lasting changes in the workplace or is it just another example of the gargantuan power employers have over us all, as they roll back the tide? Worse yet, no one really seems to care enough to make the following changes stick!
For the first time in decades, if not unprecedented, during the pandemic employees experienced a form of positive social change in the workplace. Employees experienced increased job flexibility, remote work and work-life balance brought on by the pandemic. Yes, it worked out just fine and employees were even more productive in comparison to productivity of office work pre-covid. We all need to collectively thank the role of technology in facilitating this transformation, it was truly a remarkable achievement. Anyone want to get on a zoom call for a few hours? According to a recent survey, more than 80% of American workers say the pandemic provided more clarity about their work-life goals. Also, 73% of American workers say they feel they can make positive changes to their work-life balance. This sounds likes the groundswell of a populist worker movement, and it is, but employers want to crush it before it takes hold. I will explain below.
New Social Upheaval and Racial Tensions
New social upheaval and racial tensions caused employers to seek diversity initiatives at every level, including the executive suite. Although, I saw a few employment cases of race discrimination caused by ill-informed management engaged in kowtow marketing to stay on the correct side of the larger social movement. Also, we all now understand that cancel culture is unlawful hate speech and discrimination under federal law, and in many cases reverse discrimination against white Americans. Any employers and educational institutions who continue to assert or aid and abet cancel culture practices should expect to be sued by anyone adversely affected by racial practices under 42 U.S.C. § 1981.
An Historic Win
We did witness history in 2020 when the Supreme Court declared sexual orientation discrimination unlawful under Title VII of the 1964 Civil Rights Act. See Bostock v. Clayton County, Georgia (June 15, 2020). This decision ended the boot strapping claims many had to fight to shoe horn their way under Title VII definition of sex. This case arose independently of the pandemic strain, but there may have been a warming up of the human and American spirit amongst the Court’s majority caused by the pandemic similar to the aftermath of 911. Employers must follow this ruling to the letter.
The Great Resignation
Next up was the great resignation, where 4.5 million employees quit to obtain better paying positions. Who could blame these employees for wanting to make more money in the largest capitalistic economy on earth. For many employees, predominantly service workers, the low minimum wage was too small to make a meaningful economic impact in their lives. The increased wage increases caused by jumping ship to a higher hourly rate job helped to raise living standards and added to the already increased savings rate among a majority of American workers resulting from the PPP and EDIL programs.
The federal government and states passed laws for paid Family Medical Leave during the pandemic, easing the financial pressures on employees but not on employers seeking to fill positions and having to pay for the absences. Many of these financial safety net laws remain today, post pandemic.
Ban On Forced Arbitration
Oh, wait I forgot a small improvement. President Biden signed into law the ban on forced arbitration only in sex discrimination cases. This law reversed nearly 97 years of draconian rule under the Federal Arbitration Act, at least with respect to sex discrimination cases. This was the fall out of the #metoo movement and some nasty internal behavior at FoxNews revealed to us by Gretchen Carlson, who was committed to the cause that led to the Act. But as dramatic as that news was, the darkness left in place by continued forced arbitration in all other employment discrimination cases is limitless.
Employers Want it All Back!
After more than two and half years of remote work and worker flexibility, Employers are now taking back control over you and their workplaces, even if remotely. They do not trust you and never have. They eavesdrop on every remote zoom call or laptop via employee monitoring software that is very sophisticated and undetectable. Employers view employees as subservient to their masters in almost every regard. In the private sector, you have no freedom speech or religion at work and your employment rights are diminished to merely at-will toss outs when undesirable. Employers do not have to give you a reason for termination”and it is exactly that rule which covers up so much discriminatory bias in the United States. It is an easy out, and frankly I am shocked BLM supporters and other progressive organizations such as the NAACP and the ACLU have yet to pick up on this widespread discriminatory tool of choice. How long can these groups bury their heads in the sands? We must end the employment-at-will rule.
Fear Based Management Practices
Employers want to go back to the same old fear based at-will employment of the past. They will fire you unless you come back to the office to use the office space they have rented or built out before the pandemic. For example, Mr. Musk’s Directive at Tesla ordering all employees to return to work or be fired; a quick cheap way to save unemployment benefits by the company and reduce office rents and expenses. Here is an excellent example of how companies treat their employees. On June 17, 2022, Musk just fired at least two employees at SpaceX involved in an internal letter to management complaining of his public behavior was tarnishing the companies image. (Source: WSJ 12:52 pm). I cannot imagine many employees of the company feeling much trust in their savior Musk.
Employers continue to place you on performance improvement plans and then fire you. They want to force you into secretive arbitration hearings and drown you in legal fees. They want to enforce the noncompete you never negotiated and restrict your ability to earn an income. The pandemic temporarily halted employer efforts to enforce noncompetition agreements due to impossibility of enforcement! No court was going to touch a noncompete case during the pandemic, presumptively because jobs and income were sacred.
Now that you have been warned about the future, what are you going to do to save this new way of working before it too is canceled? I have some thoughts I am working on and will share them with you soon.
If you would like more information, please contact Carey & Associates, P.C. call 203-255-4150.
Listen to Podcast: Employees Are Losing A Big Opportunity to Change Work Forever