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.
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What To Expect When You’re Expecting To Be Fired–Severance Negotiation
Transcript:
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Welcome to another edition of the Employee Survival Guide, where you can learn everything your employer does not want you to know about and more. Now, here’s attorney Mark Carey. Hey, it’s mark here and welcome to another edition of the Employee Survival Guide. This week we’re going to talk about the long overdue death of non disclosure agreements, and uncovering the hidden truth of employment settlements. And an often quoted line from the hit TV series Dexter, actor Michael C. Hall, who plays the title character, said, quote, there are no secrets in life, just hidden truths that lie beneath the surface. For those of us involved in the resolution of employment claims on behalf of employees, this quote has special meaning beneath the surface and most employment settlement agreements lie the undisclosed facts that lead to the conflict, which often result in the messy and end employment relationship. recently proposed legislation in California seeks to ensure that those hidden truths do not remain hidden forever. A new law proposed in California this week, called the silence no more act or s n m act is intended to prevent the enforcement of non disclosure provisions in a wide variety of employment settlement agreements. The legislation proposed by the California State Senator Connie levia will expand upon the 2018 stand Act, which stands for is the stand together against non disclosure and will protect plaintiff in cases of employment discrimination and harassment of all kinds who choose to speak out publicly about their experiences. Under the current provisions of the standard act. Only plaintiffs in cases of gender discrimination or sexual harassment may avoid non disclosure provisions. The new law will expand the standard act to prevent the use of non disclosure provisions in employee severance agreements. Under the SLM act, targets of discrimination based on race, national origin, religion, gender, etc. We’ll also be free to ignore the contractual gag orders companies negotiate into their settlement agreements. This legislation has been supported by employee rights groups in California, including the California Employment Lawyers Association, and the equal rights advocates. The new laws are seen as an end to the days when employer misconduct can be hidden from public view. workers who have been targeted with harassment and discrimination will be free to speak their truth publicly. The perpetrators of this type of misconduct can no longer hide behind the veil of secrecy provided by their company. Non disclosure and non disparagement agreements will no longer be used to silence employees. The hope is that the public disclosure of the details of these abusive work environments will prevent perpetrators from targeting other workers in the future. Although the standard and SNM if enacted are or would be exclusively California laws. These statutes could ultimately have a broad national impact. Other states often follow California’s lead and implement matters. Further, the fact that so many large technology companies are headquartered in California gives these laws and outsized influence on the national conversation about non disclosure agreements. In the wake of the standard act, a number of states have enacted some limitations on non disclosure enforcement including Washington, New York, New Jersey, Vermont and Tennessee, many more states are likely to see some version of this legislation in the future. As an employment attorney, I was very curious about how this new legislation might impact the ability of plaintiffs lawyers to negotiate settlements for clients in employment discrimination cases. Often the best leverage plaintiffs have in the early stages of an employment case is the prospect of public disclosure of the misconduct on the part of the company employee or manager. The reason many companies offer offer settlement agreements to claimants is to avoid embarrassing public disclosures of uncomfortable truths about their corporate culture or work environments. Companies also have an interest in keeping settlements secret to avoid what they see as quote unquote, encouraging other claimants to looking to cash in on potential claims. In other words, the concern is that, that the non disclosure and non disparagement provisions outlawed by the standard Act and the s&m Act are the best tools to obtain fair settlements for employees who have been targeted with harassment or discrimination. further examination of the proposed statute reveals that it its scope is more limited than I had anticipated. These statutes are actually structured to encourage not discourage early settlement of discrimination cases. The standard Act allows for use and enforcement of non disclosure agreements, also called nbas in cases where there has yet to been any court or agency filings. So during the initial stage of the claim when a demand letter has been sent to the employer, but where the claims have not been filed with the state or federal human rights agencies such as the Equal Employment Opportunity Commission, and no lawsuit has been filed, the companies may include NDA s and settlement agreements, and they are enforceable. This exception to the ban of NDA is highly significant, far from discouraging early settlements of discrimination claims this feature of the proposed law offers employers a powerful incentive to settle employment disputes And harassment claims early. If an early settlement is not reached, then the agency filings will occur and the employer will lose the right to demand an NDA as part of the settlement agreement afterwards. In order to keep employee misconduct secret, employers will have to settle employment discrimination cases early and often. While some cases can be kept secret by early settlement negotiations, targets of discrimination who wants to shed light on their experience can ensure their ability to speak out by filing their claims with state and federal agencies. Opponents of anti NDA legislation contend that restricting MBAs takes away a survivor’s choice to keep their cases private, and provides a strong incentive for employers to refuse settlement options and to defend themselves against publicly disclosed allegations. According to attorney Jill bassinger, an entertainment litigation attorney in California, she says this harms survivors of sexual harassment and assault by removing their choice and forcing them to endure the hardship and uncertainty of a public trial as the only means of vindicating their claims. Unquote. Once an agency filing occurs or lawsuits commenced, the NDA is becoming unenforceable. It seems as if these laws would remove a strong incentive for definitive employers to settle claims. It appears however, as if the standard Act has resulted in an increase in pre filing mediations in employment cases in California. According to marinko, Yoshio Hara, the Legislative Counsel and policy director of the California Employment Lawyers Association. The predictions and fears over the standard act, impairing the ability to settle have not been borne out. According to attorney, Yoshihara attorneys involved in this type of litigation Heaven, informally reported that the legislation has not lowered settlement amounts or impaired the settlement process. Additionally, according to Xu Hara, it has made it easier to advocate for employee rights from a public policy perspective, because these targets of harassment and discrimination can make their stories public. While dispositive data on this point is not yet available, it seems as if the legislation is working in California. Further fear surrounding the forced public disclosure of the identity of the claimant are unfounded. Under the standard act, there are specific provisions which protect the identity of the complaining employee in the context of a lawsuit. The standard act includes a specific provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including documents and pleadings filed in court at the request of the claimant. Thus, the anti NDA legislation does not force a disclosure of a claimants identity. While many employer advocacy groups, including various Chambers of Commerce and Industry, and trade associations have oppose legislation such as a stand and SNM. similar legislation should being considered by all state legislators that have not already enacted similar laws. When it comes to use of MBAs and employment discrimination and sexual harassment cases. There is an unfair imbalance of power between the bargaining parties. The employers, who are often defending the harasser, or denying the harassment occurred have an overwhelming advantage over the complaining employee in terms of investigative, legal, personal, and financial resources. Employers are frequently holding all the cards and settlement negotiations. Legislation sets a standard SNM will help to level the playing field at least with respect to the MDS. Placing the power over which aspects of the case can or will be made public in the hands of employees who experienced harassment and discrimination will help it balance the power in the arena of employment settlement agreements, as evidenced by the initial success of the stand act. These laws can be important tools in ending the culture of silence that is permitted, harassing and discriminatory conduct behavior to continue in the workplace for so long. In a recent opinion piece, the feminist writer and critique Marcy Bianco said, quote, at the societal change necessary for dignity and justice is to occur, we must move from awareness to accountability, and quote, this legislation should help bridge the gap between awareness and accountability, we need to see a whole lot more of those hidden truths lying beneath the surface of the American workplace. Hey, I’m always interested in finding out what our listeners are going through at work. So if you have a question regarding your work, please send it to us@info.ca pC law.com. And I will answer the question on our next podcast. And I will keep your name out of it, of course, but please send your your questions. Thanks. Hey, it’s mark here. And if you’re in need of an employment attorney, and regarding your situation at work, please give us a call at Karen associates, PC at 203-255-4150 or on the web at ca Pc law.com. In my experience as an employment attorney litigating for last 25 years, I will tell you that the ability of individual employees to seek equality and workplace, especially during these changing times that we purportedly are seeing after The Summer of 2020, I’m going to just lay it out there that we are far away from achieving that. And why? Well, two important or three important issues confront this issue. And there won’t be equality unless this happens. First nbas what the confidentiality and settlement permits, seeks to basically shield from the public’s view, and avoid essentially what I call public shaming. So, all the states should pass laws to ban non confidentiality of settlements of any kind of any type of discrimination or harassment, period, end of story. And I’d like to hear what employers have to say about that, because, well, they’re not going to achieve equality in their workplace unless they do that. The second thing is forced arbitration, very similar. It takes from the public view, the ability of employees to bring their cases to court, to bring the to the attention of the public, the corporate wrongdoing, and to securitize it. That’s what forced arbitration means. So if you have an arbitration agreement and 50% of employees do, because they’re so rampant, and they’re egregiously enforced by courts all the time, which is huge, hugely unfortunate. And they basically concealed bad actors behind the veil of a reported arbitration provision that says, this is the way we need to do it’s cheaper, etc. That’s a bunch of nonsense, or I call it’s bullshit, in Irish terms. And the third aspect is the at will employment rule. Now you’ve heard me talk about in past articles, and podcast posts, the whele rule, which is an arcane rule developed by some lawyer in upstate New York years and years ago. And what it essentially does is, it allows an employee to be fired for no reason whatsoever, and shields the ability of the employer to give reasons why they fired for somebody, we have been postponing a pounding the issue of banning that we’ll implement and for the following reason, if you ban that will, and you force an employer to demonstrate a reason for termination for cause, aka the for cause termination, instead of that will rule then you have an employer who’s got to reconcile the performance with real facts, not some, you raised your eyebrow, or you dressed improperly one day or whatever they come up with, because I’ve seen it all. They do new, make employers obtain facts that are supportive of bad performance, that is the only grounds to terminate somebody. And those three principles, the banning of the non disclosure or confidentiality and settlement agreements, the for the banning of forced arbitration, and the banding of that will rule the three of them together. Okay, the three of them together will only result in equality in the workplace period. So you can cry all you want about BLM and any other racial aspect to Asian rights, etc. is not going to happen in this state of this country, period, no matter what party is in control. That’s my opinion. But that’s after looking at this for a very long time. I’m going to tell you management’s got a hook on this thing until employees to to wake up and people start to motivate things will remain the same going forward for the next four years. Period. So my little editorial at the end of this podcast, but that’s how I really feel and that’s what I’m really seeing. If you’d like to have more information about this podcast please do contact us at Carey & Associates PC on the web at www.capclaw.com and you can send us an email at info@capclaw.com and I look forward to talk to you soon. Thank you
Tags: employment law confidentiality agreement nondisclosure agreement settlements severance negotiation employment lawyer