Employee Survival Guide® - 10 Employment Law Tips for Recent College Graduates

Starting point is 00:00:00 Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where we tell you what your employer wants to know and much more. Today, we're going to talk about 10 employment law tips for recent college graduates. So like many of you out there, I have two recent college graduates who are confronting the workplace for the first time. A few preparatory comments are needed to frame up the current employment atmosphere awaiting our new college graduates. Simply, it is a harsh world out there. Today, employers, quote unquote, think they control the work environment as the payers of labor.

Starting point is 00:00:41 The truth is that without employees, there are no corporations to create profit, as the pandemic has shown us. Employers, large and small, mandate a myriad of unilateral employment contracts nobody has the guts to challenge, except for us, let alone negotiate to their benefit. When new employees sign on, they become stuck and eternally connected to their employer. No, I'm not kidding. Let me explain. Non-competition agreements prevent college graduates from building a natural career in one industry because a second job is banned by the first employer. Not fair, right?

Starting point is 00:01:16 Well, it isn't, and the federal government is currently seeking to ban these agreements for that reason. And the Federal Trade Commission is the federal agency assigned with that task, under the specific direction by our good president, Joe Biden. The next draconian agreement college graduates face is the proverbial forced arbitration agreement, which mandates all employment disputes be filed in confidential and private arbitration outside the courts. The results are always hidden to prevent a marketing disaster for the company if the employee wins. The final act of torture is the ominous non-confidentiality agreement that smacks a gag order on any employee for life.

Starting point is 00:01:56 No, really, these agreements stand the testament of time and are enforceable. Think of Weinstein, the convicted sexual offender we all love to hate. His company locked victims in confidentiality agreements designed to conceal his bad acts. So our recent grads have a boatload of reasonable fear about the agreements they are unfamiliar with and forced to sign. Employers know all of this, intentionally perpetuate this narrative, and maintain an extreme advantage in the workplace. But knowledge is power, so now I will arm you with the exact information you need to deal with your employer's default employment practices. Here's the first one, the job search and interview. There are legal issues to confront in the job search and interview processes. Employers cannot discriminate based on your gender, sexual orientation, race, color, religion,

Starting point is 00:02:40 national origin, age, pregnancy, retaliation for complaining about discrimination. For recent college grads, presumptively 21 to 22 years of age and older, they will likely face all the above except for age and retaliation. Age discrimination arises after you reach 40 years of age, and retaliation is unlikely to arise in the hiring process. We know discrimination occurs in the hiring process. Just read the article on our website by Ask the Headhunter. And you'll be amazed by the new use of artificial intelligence in the hiring process. We see very few, if any, failure-to-hire cases come through our offices due primarily to the lack of available evidence.

Starting point is 00:03:19 How do you know you are being subjected to discrimination in the hiring process? Well, it is very hard to tell as you have virtually no data. Only the employer has the information. There is some available information to arm yourself beforehand. I'm not referring to salary.com or glassdoor.com. You can check the online if an employer has a history of discrimination by checking local court dockets for the employer. For example, in Connecticut, the civil court system allows you to do a quick name search for employers. You type in the name of the employer and look for 2020 and 2021 years, for example, cases where the employer is a defendant. Then go to the complaint and read it and discover if the issue being sued over is similar to yours. If you find a case, you need to

Starting point is 00:04:02 extrapolate from the allegations in the case whether it involves one person or many employees in the company. Here's a caveat. Many companies have forced arbitration, so you may not see these employers in a case lookup because the parties were contractually obligated to go to private and confidential arbitration. You should also Google employment discrimination and include the employer's name. I do this every day, and you'd be surprised at how much information is available on the web. Also, if you encounter a job interviewer conditioning the job based on sex or sexual favors, run. If the employer wants you to meet a guy named Harvey W. at a hotel, run even faster. Obviously, after the Me Too event, most people realize the above behavior is illegal.

Starting point is 00:04:44 Fortunately, Twitter has become one of the primary sources of younger employees' news feed. The downside in this area is a lack of available information. The U.S. Equal Employment Opportunity Commission and states do not publish discrimination cases filed with these agencies on a Google searchable database. You may ask, isn't the EOC a federal agency? Google searchable database. You may ask, isn't the EOC a federal agency? Yes, but their primary mission is to seek conciliation and settlements in cases filed before the agency. I do not professionally agree with this logic, as the general public should be able to search all EOC filings to monitor employers and protect employees against further discrimination and retaliation. The agency does publish employer affirmative action diversity records, generally referred to as EEO-1 reports, but not specific to each employer. We now request

Starting point is 00:05:32 them directly from employers during the discovery phase of any litigation we are involved with as a firm. The second tip, the offer and the acceptance. A job offer is the most basic form of an employment contract. Clearly, the offer states, we want to hire you, will you accept? But the catch here is the offer is an at-will offer of employment and can be taken away at any moment. Once accepted, the position only lasts for as long as the employer wants to employ the recent college graduate. There are no promises to maintain your employment indefinitely. It is hard to trust an employer under these circumstances. There is no job security absent any, quote-unquote, for-cause termination job protections, which is discussed below.

Starting point is 00:06:12 I practice what I preach. In our office, all employees, both part-time and full-time, can only be terminated for cause. This unilateral action by our firm has created greater trust by employees of management, myself, more job security, and provides more employee control over their own employment. What do I mean? Under a four-cause termination, employees know in advance what their behavior is acceptable and which is not, so they can decide their own fate. Some states now require the posting of the salary information in

Starting point is 00:06:41 the job offer. There are a number of states that have passed legislation banning any request for salary history information from job applicants. The aim of these statutes is to end the cycle of pay discrimination, and you can search various states to help you assess current legislation in your state. A more important issue has recently arisen where employees are now more open about asking their colleagues about how much money they make. These employees tend to be much younger and looking for equality in pay and gender equality in particular. What if you discover you are being paid substantially less than your co-workers for the same job and based on the same level of experience? Some employees immediately become stressed as no one told them

Starting point is 00:07:20 about this situation in college and how to handle it. Well, here are my two cents based on my collective experience with thousands of clients. Employees have no advocates in the workplace, so they need to quickly learn how to become one for themselves. You definitely need to share how you feel about this inequality in your pay to your supervisor with a cc to their boss and then an email. Employees should frame an argument via email and professionally state they require a salary adjustment to the same level of their peers. Next, employees should ask the employer for the rationale why there was a discrepancy in the salary. Employers will generally not provide a clear answer. Regardless, now the employee has created an employment issue that the employer has to deal with.

Starting point is 00:08:01 Smart employers will say their bluff has been called and raise the salary to the same level as the peers. Stupid employers will reject the request and the employee just learned the most important thing about their employer, a lack of trust and respect for employees. The employee should then evaluate a resignation, common these days, but only after finding a similar or better position. Once you have an offer, tell your employer you want a raise, and if not, you're walking out the door. The third topic is the at-will job and the internships. We have previously explored the history of the at-will rule in prior posts on our website. The bottom line recent grads must understand, they're screwed just like everyone who currently is employed today.

Starting point is 00:08:43 No, seriously. Unless these grads have been made promises of lengthy term employment or have been subjected to discrimination or harassment, employers can fire them at will without notice. We continue to shame employers to change to a more just and fair employment termination for cause requirements just like Montana did. However, Montana recently curtailed the rule for termination of cause in three new bills signed by the Republican governor. Termination of cause means the employer must have a factual basis for termination, such as acts of insubordination, violating company policy, breaching an employment agreement. What does the four-cause provision really accomplish? Trust building and job security. Who doesn't want that? We all do.

Starting point is 00:09:25 But this new form of employment has been beaten down for years by lobbyists for employer groups. The tide is turning. During this pandemic, employees are eyeing this new form of employment. Employers are taking notice of the increasing leverage employees really do hold over employers. The biggest obstacles to full integration of this four-cause employment rule is employee education and awareness and the decentralized nature of private, non-unionized employment most people take part in. Once employee awareness increases, thanks to this article and social media, and social media forms a new consensus-building vehicle to organize the workforce, four-cause termination will become the norm. vehicle to organize the workforce, for-cause termination will become the norm. My view of the law and social policy is that the social issues guide the development of the law and not the other way around. Why do I say this? In the legal field, lawyers and judges build the law every day based on prior decisions, commonly called stare decisis. This has a positive and

Starting point is 00:10:20 negative impact. On the positive side, we now have employment right protections against sexual orientation discrimination based in part on the doctrine of stare decisis. On the negative side, the at-will rule promotes systemic discrimination across all categories of employees. Courts simply need jerk, react, and hold that if your employment is at will, there is nothing to prohibit an employer from terminating you for no reason. to prohibit an employer from terminating you for no reason. If no reason is provided, then employers can hide the discriminatory firing decisions under the cloak of court-endorsed secrecy. Not fair, right? Because it isn't. Contact your local congressman and tell them you are fed up with the status quo and demand legislation promoting foreclosure termination like Montana did.

Starting point is 00:11:01 Employers who hire college students and recent college graduates often hire them initially through an internship program. However, private sector for-profit employers must pay internship employees just like all other employees. According to the U.S. Department of Labor, courts have used the primary beneficiary test to determine whether an intern or student is in fact an employee under the Fair Labor Standards Act. whether an intern or student is, in fact, an employee under the Fair Labor Standards Act. In short, the TIST test allows the courts to examine the economic reality of the intern-employer relationship to determine which party is the primary beneficiary of the relationship. And in the article we have associated on our website, there's a seven-factor test you can follow. The fourth tip, non-competition agreements.

Starting point is 00:11:44 Non-competition agreements were created by employers for employers. Employees never had a chance to negotiate these agreements. We have written extensively about this topic on our website. Non-competition agreements serve no valid or reasonable purpose to protect the interests of employees, only employers. Non-competition agreements are an overreach by employers whose interests are already protected by confidentiality and proprietary information agreements that they have had the employee sign. Employers say the non-competition agreement further protects their competitive advantages, trade secrets, and other corporate proprietary information. That's a lie, told over and over again by the pro-employer lobby groups and the defense bar that support them. Employees are now restricted from gainful employment more than any time in this country's work history to their financial detriment.

Starting point is 00:12:30 Meanwhile, employers reap billions of dollars in unlawful restrictive trade practices that are ruining our economy. Just when we are trying to dig out from this pandemic. Shame on you, employers. How did employers cause this calamity? The facts are simple to understand. No one noticed the widespread use of this default employment practice. No one noticed How did employers cause this calamity? The facts are simple to understand. No one noticed the widespread use of this default employment practice. No one noticed the financial costs to employees. Employers are not organized, and politicians sought only to align themselves with a business lobby such as the Chamber of Commerce or the Society for Human Resource Management. It is exactly this decentralized and unorganized nature of non-unionized employees, roughly 150 million strong, that employers across the spectrum abuse and mistreat with non-compete agreements. How certain am I of this fact?

Starting point is 00:13:13 Very certain, as I watch the endless flow of non-compete cases come through our offices. In every case we have litigated, the employee never negotiated the non-compete agreement, had no say in the matter, was told to sign it or lose the job opportunity after they were already hired. These default employment practices have to stop. They are an abusive and restrict trade in the U.S. economy. This is not a political issue, and neither party can claim it as a weapon. Companies large and small run and owned by members from both political parties use non-compete agreements. Employers who force a non-compete agreement on an employee derive the same financial benefit, profits at the enormous expense to individual employees. On July 9, 2021, President Biden issued a comprehensive executive

Starting point is 00:13:55 order that stated in pertinent part, quote, consolidation has increased the power of corporate employers, making it harder for workers to bargain for higher wages and better work conditions. Powerful companies require workers to bargain for higher wages and better work conditions. Powerful companies require workers to sign non-compete agreements that restrict their ability to change jobs. To address agreements that may unduly limit workers' ability to change jobs, the Chair of the Federal Trade Commission is encouraged to consider working with the rest of the Commission to exercise the FTC's statutory rulemaking authority under the Federal Trade Commission Act To be abundantly clear, this is not a political issue or a socialistic propaganda by the Biden administration, but a return to fairness in placing a premium on a competitive workforce. As a political historian, employment activist, Republican, and employment litigator on the employee side,

Starting point is 00:14:55 I have professionally watched the nonsensical enforcement of unfair and dubious non-compete agreements for 25 years. Simply, enough is enough already. The pendulum is now swinging back to center. According to an accompanying fact sheet published by the Biden administration, quote, competition in labor markets empowers workers to demand higher wages and greater dignity and respect in the workplace. One way companies stifle competition is with non-compete clauses. Roughly half of private sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers, end quote. The fifth tip on for our college graduates is the following topic, discrimination. For as long as humans were

Starting point is 00:15:32 programmed for fight and flight, discrimination has existed. After too many years watching and litigating this phenomena, I can safely say my job is protected for life and for the lives of my descendants. The world will always need human rights advocates and employment attorneys. When humans perceive fear, they form biases, plain and simple. Some employees cannot turn off this self-defense genetic feature and go on to commit ridiculous and very serious discriminatory offenses that have ruined millions of lives to date. The best advice for recent college grads is to go to the EEOC.gov website and read about discrimination in general. Next, we tell all clients who are still actively working to maintain a private, quote-unquote,

Starting point is 00:16:11 offline journal or file and record all events that appear to be bias-filled employment actions. And to be clear, an offline journal is something on a device that's not owned by the employer that you can maintain and manage. Simply write down what happened. Employment attorneys use this background narrative in building cases against employers. Often these narratives are 30 to 40 pages in length, all of which is transformed into a sworn affidavit and sent to the employer when needed. The best advice is to learn what discrimination is in practical everyday terms and then seek to avoid it at all costs. However, if you are confronted with clear and factually substantiated discrimination, then choose your next steps wisely. Yes, you do have a

Starting point is 00:16:50 right to be free from discrimination, but today it takes money to fight that fight. Congress did provide for attorney's fees at the end of a winning case. However, 80% of our cases settle before they ever reached the courthouse steps and for very large jury verdicts. We internally track our settlements so we have the statistics and we know as a firm what works and what strategies do not. So if the case settles, then legal fees are paid through the settlement, not through the courts. Most importantly, the time and money and personal aggravation will be heavy, so plot your course correctly in the litigation arena. Next topic, number six, is the Family Medical Leave Act leave. I'll make this one simple to understand. If you and your family member are

Starting point is 00:17:31 sick, you are permitted to take a 12-week leave of absence. In some states, it's paid, but not under the federal statute. The catch here is that you need to be employed for 1,250 hours during a rolling 12-month period prior to your leave and work for an employer with 50 or more employees. In some states, they have a higher requirement. If you are sick, you are also potentially covered under the state and federal disability laws. So ask for accommodations, including taking an FMLA leave of absence. The tricks of the trade here are as follows. Make your FMLA request in writing, via email, for the timestamp that it provides, and demand a written response with a rationale from the employer.

Starting point is 00:18:10 Second, do not wait until the last day of your FMLA leave period to return to work. Return to work at least one week earlier so the employer cannot wiggle and shake off its responsibilities. You would be surprised how many employers attempt to deter employees from returning. Why? You would be surprised how many employers attempt to deter employees from returning. Why? In reality, most employers seek to get rid of unhealthy employees, in particular pregnant employees, because they are a drag on revenue. It's a fact, and I base this conclusion on many years of litigation experience. Once you are out the door on day one of your FMLA leave, the employer is delighted because they know they can replace you using a different job description for the same job. Not only is this practice illegal, but you need to confront the employer directly,

Starting point is 00:18:49 possibly even file a lawsuit. The FMLA law only provides a protection to return to work to the same or similar position with the same pay and benefits so long as you return prior to the FMLA leave expiration date. So know the date. You are probably asking, why should you take an FMLA leave if you know this information? Usually, you do not have a choice and Congress believed it needed to protect employees, in particular pregnant employees. Today, you can also receive FMLA pay under a few states, Connecticut and New York. Number seven, salary versus hourly. How do you know when you're entitled to overtime? When I heard my daughter received her salary, I asked a simple question.

Starting point is 00:19:29 How many hours per week are you required to work? She stated 35 hours. She's a first-time employee, freshman of school, and her position is not exempt. Therefore, she's entitled to time and a half over 40 hours in a given week. This is the biggest source of confusion among both employees and employers. Many employers seek many more than 40 hours per week given all the after-hour email traffic many employees experience. Many recent grads do not know how to raise a complaint to ensure they are getting the right amount of pay. This is very wrong. Employees should not have to fear losing their jobs by questioning their pay. So question your employer about your pay.

Starting point is 00:20:08 If they receive any negative feedback, report the issue to the human resource manager and ask the company to provide a written explanation why the employee is labeled exempt from overtime pay. Any employer who refuses to do so is not the type of employer you want to work with. Employees are entitled to a clear explanation of their pay. And for more information about this, you can go to the U.S. Department of Labor website to get information regarding overtime and the exemption requirements. Number eight, remote work. The double-edged sword. The remote working debate is ongoing. Employees across the board are reporting higher satisfaction with remote working,

Starting point is 00:20:41 primarily because employees have more say in how they spend their workday in managing their personal affairs. I personally believe this is an overall healthier change to the office commute and the workday grind. Employees are exercising more given the new flexibility, although younger college graduates are reluctant to step away from the laptop for fear of not being seen as being active and productive. This thinking is nonsense and needs to stop. Again, college never trained any employee about how to work or what standards are acceptable. They just learn the skill through assimilation to various often dysfunctional workplaces. The downside is also concerning. Really, how many hours can you sit in front of a Zoom meeting? Zoom fatigue is real and everybody's looking for a better solution.

Starting point is 00:21:31 So we've put on the website part of the article, we've given you a link to the solutions that are being offered. Number nine, social media. The Society for Human Resource Management website goes into detail about how employers should and should not use applicant social media information. Here are the highlights from the website and I'll put them in quotes. Quote, When using social media sites to find information about prospective employees, employers must be careful. They may not have the right to access the information they are looking for without the applicant's permission. End quote. The website goes on to say, quote,

Starting point is 00:22:03 Some employers demand that applicants give them the passwords to their social media accounts. However, most legal experts warn against such practices, and some states have banned it. In fact, there is a growing federal movement to protect job applicants and employees from such requirements. And then the final quote was, The website goes on to say, looking at applicants' social media profiles and postings provide employers with information that they may not otherwise obtain or might not obtain until they conduct a face-to-face interview. Social networking sites might discuss information that might be considered legally protected in a job interview, such as information about race,

Starting point is 00:22:42 age, family, relationships, disabilities, political views, and more. Applicants could claim discrimination if they did not get a job and believe that they were rejected based on a protected information that the employer discovered via social media. HR experts say the HR department, not the hiring managers, should conduct any social media research about candidates, and HR should do so only during background checks on finalists for the job. The best advice I can offer is what to post on your social media accounts is simple. Ask yourself what a potential employer will think of your post and how it

Starting point is 00:23:18 reflects on professional reputation. Now, I did a link to the Instagram account, but what I linked to was the examples of individuals posting their drinking antics while obviously impaired and jumping off roofs and falling down and hurting themselves, etc. So all that's being on Instagram and their social media accounts. So that's stuff you don't want to post. You're a professional, so give the representation that – the appearance that you are a professional. Just don't post that stuff. It's not going to help you. The last topic I wanted to share with you is severance negotiation. Now, I know the college graduate is new to the workforce and severance may not be something that they're even contemplating, but they definitely need to know this.

Starting point is 00:24:03 So we write a lot about severance negotiations because we do this every day. I've included articles on the article this podcast is based upon, and you can read that. One says how to negotiate severance agreement, and the other says implement severance agreement explained in detail. And I might even cover that in a podcast or two here. Both articles will bring you up to speed and get you thinking about your severance transaction. And I put transaction in quotes because it is. I included all the bits and pieces of strategy to make your next severance negotiation successful, whether or not you use an attorney to help you negotiate it. Also remember how to use an employment attorney you hired. The most effective

Starting point is 00:24:40 negotiation is one where the employment attorney investigates the possible leverage or legal claims we we refer to them, and directly negotiates with the opposing party's attorney. There's also another effective angle to follow. You can use an employment attorney behind the scenes, but keep them out of the email traffic. The opposing side will discover there is an attorney lurking about in the periphery and will not push so aggressively against the employee during the negotiations. We do this quite often with our clients and it really does work. We will often direct the client to drop sound bites to grab attention and steer the negotiation in a favorable direction. For example, during negotiation, we may raise the cause of action of the client, essentially a whistleblower claim involving, let's say,

Starting point is 00:25:25 financial disclosures to the SEC or sexual harassment or sexual assault that has arisen in the fact pattern. Incidentally, both of these type of issues are reportable now to the Securities and Exchange Commission pursuant to recent finding that they made. Overall, these are the tips I wanted to share with recent college graduates. I understand that the information I provided is really rather lengthy, but education is king here. So the more they learn and the faster they learn, the more protection they will have in dealing with really difficult situations that many professionals, adults, deal with.

Starting point is 00:26:03 So knowledge is power. And you can't say that you weren't given a fair shake if you ignore the information. You ignore it at your own peril, but if you accept the information and begin to understand the rules of engagement by looking at the sources I gave you, you'll have a much more level of degree of confidence in handling and becoming a self-advocate with your employer. Hope you enjoyed the information and have a great week. Look forward to talking to you soon. Thanks.

Employee Survival Guide® - 10 Employment Law Tips for Recent College Graduates

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