Employee Survival Guide® - C'mon, Man! Employees Continue to Get Screwed Over

Episode Date: February 25, 2021

In this episode of the Employee Survival Guide Mark confronts systemic barriers created by employers that promote inequality of gender, age, race, sex, sexual orientation etc. and protects  bad actors and bad companies from public exposure of their illegal actions and public shaming.   Mark examines the current social equality movement (#metoo and BLM) to find system barriers thrown in their faces of employees by the very employers who publicly denounce sexism and racism.  Employers should be banned from using confidentiality agreements in employment discrimination settlements. We should ban the employment-at will rule because it only promotes biased discrimination in the workplace.  And finally, every case should be made public instead of being forced into the black hole of arbitration.  We need to know how our employers are treating our coworkers and ultimately ourselves.Listen to the Employee Survival Guide podcast latest episode here  https://capclaw.com/employee-survival-guide-podcast/If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.For more information, please contact Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

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 the next edition of the Employee Survival Guide. This week, we're going to talk about the following topic. Come on, man. Employees continue to get screwed. As we await the dawn on the 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, or the confidentiality of settlement agreements, or forced arbitration of employment disputes? Can you say no to these things? Maybe.

A majority of you may never question or oppose your employer because of fear. 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, in my opinion, solely for marketing purposes, then we should see signs of dramatic changes to reverse racial discrimination, racial inequality at work, promote pay equality, and end the firing of 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 hashtag MeToo and BLM are real long-lasting social movements to correct injustices at work, I should not be able to hear anything over the gigantic thunder of public outrage towards racial, sexual, and age inequality hurtling at my office window, internet, and television. 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 doing this podcast 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's why. Employers continue to require the following chains of servitude and secrecy solely to promote their default control-at-all-cost 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 is downright undemocratic. But you will not hear anyone else dare to say these truths. I will because I don't care what management and corporations say. Why don't you feel the same way? Non-disclosure agreements and confidentiality agreements conceal bad actors and bad companies. Shame and more shame. If you statutorily ban the use of confidentiality provisions in settlement of employment discrimination cases, bad actors and bad companies will stop discriminating. Why? Companies will seek to avoid public shaming if we all knew. If we knew that a CEO attempted to rape a subordinate,

that a billionaire hedge fund manager fired a woman with young children who was 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, the victim, to sign a separate confidentiality agreement. I brought this practice to the attention of the relevant state attorney general's office without even getting a response. The statutes are worthless because employers always seek the default to control you and control their self-interest. Here's 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, to name a few. Think about the millions of dollars saved by companies that could be used to train employees and managers about the golden rule.

The money saved by you by not having to pay attorney's fees to employment lawyers like myself. Please, I beg you, to put me out of business. I would be glad to retire. But employers cannot seem to give up this confidentiality drug. There's 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. 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 NILA, the National Employment Lawyers Association, says that it is. Here's my disclaimer. I'm a long-term member of NILA and a registered Republican doing the people's 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 at any moment. This is the implement at will rule. The rule should be banned nationwide and replaced with the termination for cause rule. The rule should be banned nationwide and replaced with the 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 to implement 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 employment 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 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. Finally, forced arbitration conceals everything bad that your employer does not want you to know about. What is forced arbitration?

Simply, your employer says it's a quicker and cheaper way to resolve employment disputes. It's not quicker. 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. It never benefited you at all. It's a management default rule, and more than 50% of employees in the United States are adversely affected 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 in a non-public black hole. There's absolutely no way to publicly discover what types of discrimination claims were sent to arbitration, as Google cannot crawl it, and Wessel Research Database does not cover it. It is as if these claims never happened at all. The woman who was almost raped by the CEO, the black man fired after being asked to give a BLM explanation? Worse, you cannot shame the corporation for what they did.

That's the point of forced arbitration. It's secret. 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? If you would like more information about this topic, please contact Karen Associates PC on the web at capclaw.com. I thank you for listening, as always, and have a great week.